Heard Sri Pramod Kumar Jain, Senior Advocate assisted by Sri Abu Bakht, learned counsel for the plaintiff-revisionist, now represented by her heirs and legal representatives and Sri S.D.Singh, Senior Advocate assisted by Sri Abhijit Banerjee, learned counsel for the defendants-respondents.
The judgment and order dated 22.5.2003 passed by the Additional District Judge as Small Causes Court dismissing S.C.C. Suit No.15 of 1999 (Smt. Savitri Devi Didwania Vs. M/S. Allied Pharmaceuticals and another) is under challenge in this revision under Section 25 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as the 'Act').
The plaintiff-landlady after determining the tenancy of the respondents-tenants under Section 106 of the Transfer of Property Act, 1882 instituted the above suit for their eviction. The suit was dismissed holding that the property is covered under the U.P. Act No.13 of 1972 (hereinafter referred to as the "Rent Act") and since there is no default in payment of rent, the suit for eviction cannot be decreed.
The submission of Sri P.K. Jain, Senior Advocate is that the monthly rent of the property in question exceeds Rs.2000/- and, therefore, it is exempt from the operation of the Rent Act by virtue of Section 2(1)(g) of the Rent Act which provides that the Rent Act shall not apply to any building whose monthly rent exceeds Rs.2000/-.
In defence to the above argument, the submission of Sri S.D. Singh, Senior Advocate is that the court below as of fact had found that the rent of the property in dispute is only Rs.1725/- p.m. and, as such, no exemption under Section 2(1)(g) of the Rent Act is available. According to him, the taxes i.e. house tax and water tax as well as charges paid for other facilities in addition to the rent cannot be included in the rent of the property in dispute for the purposes of Section 2(1)(g) of the Rent Act. The house and water tax are not meant to be payable to the owner and landlord but to the municipal authorities and, as such, would not form part of the consideration to enjoy the property so as to be the part of the rent.
In view of the respective submissions of the parties, the only question which I am required to deal in this revision is whether the property in question is amenable to the Rent Act or is outside its purview on account of its rent.
The first question, therefore is to decide about the rate of rent of the property.
It is important to note that the plaintiff-landlady has clearly stated in the plaint that the property in question is exempt from the operation of the Rent Act for the reason that its rent exceeds Rs.2000/- p.m. The respondents-tenants in paragraph 3 of the written statement has stated that the rent of the property in dispute is Rs.1725/- p.m. with taxes @ Rs.310-50 p.m. and other amenities including security at the rate of Rs.556.30 p.m. total Rs.2591.80 p.m. In short, the tenants-respondents admit monthly payment to the plaintiff-landlady in the following manner:
Again in paragraph 6 of the written statement it has been stated that the rent is Rs.1725/- p.m. and after adding water tax and charges for other amenities including security, the total amount payable per month to the plaintiff-landlady is Rs.2591.50. Some of the rent receipts, specially 54 Kha and 55 Kha also disclose that for the months of April and May, 2003 the tenants-respondents had paid rent as follows:
(1)Rent Rs.1700/- (2)Municipal taxes and other facilities Rs.891/- Total Rs.2591/-
The tenant-respondent No.2, Suresh Chand Oswal as D.W. 1 has admitted that the rent amount of Rs.2591.80 payable to the landlady includes other facilities and that the aforesaid amount was paid to the landlady through cheques and the rent receipts bear his signatures.
In view of above factual position, the tenants-respondents admit payment of Rs.2591.80 p.m. to the plaintiff-landlady which includes taxes and charges for other facilities.
Now the question before the Court is whether in the above circumstances, the taxes and other charges would form part part of the rent for the purposes of Section 2(1)(g) of the Rent Act.
The word 'rent' has not been defined under the Rent Act. Therefore, it has to be taken in its ordinary sense and as defined under Section 105 of the Transfer of Property Act, 1882. Section 105 of the Transfer of Property Act, 1882 while defining lease states that the money, share of crops, service or any other thing of value rendered periodically or on specified occasions to the transferor by the transferee in consideration for transfer to enjoy the property is the 'rent'. Thus, the rent forms consideration for the transfer of rights to enjoy the property. Therefore, to determine rent one most examine what constitutes the consideration for right to enjoy the property of the landlord.
In P.L. Kureel Talib Mankab Vs. Beni Prasad and another AIR 1976 Allahabad 362 it has been said that it is an established proposition that 'rent' includes not only what is ordinarily described as 'rent' but also payment in respect of special amenities provided by the landlord. Rent includes all payments agreed by the tenant to be paid to the landlord for the use and occupation not only of the building but also of furnishing, electric installation and other amenities.
The Apex Court also in Karnani Properties Ltd. Vs. Miss. Augustine and others AIR 1957 SC 309 held that the 'rent' is comprehensive enough to include all payments agreed by the tenant to be paid to the landlord for the use and occupation not only in respect of the building and its appurtenances but also in respect of furnishings, electric installations and other amenities agreed between the parties to be provided to the tenant.
In view of the above meaning of the rent, not only the rent of the building but any additional charges paid by the tenant to the landlord for any other amenities connected with it would form part of the rent. In that situation of the matter, amount of Rs.1725/- paid by the tenants-respondents as rent for the building and the amount of Rs.556.30 paid along with it for other facilities on monthly basis constitutes monthly rent. In other words, this comes to Rs.1725.00 + Rs.556.30 = Rs.2281.30 which exceeds Rs.2000/- p.m. Thus, even if the taxes paid by the tenants-respondents are excluded, the rent exceeds Rs.2000/- which is enough to bring the property in dispute outside the ambit of the Rent Act by virtue of Section 2(1)(g) of the Rent Act.
In addition to the above, In Raj Kumar Pandey Vs. Rama Nand Upadhyay 1982 ARC 248 a learned Single Judge of this Court while dealing with the definition of 'rent' in the light of provisions of Section 105 of the Transfer of Property Act held that the definition of the 'rent' is very comprehensive and it includes service or any other thing of value to be rendered periodically or on any other specific occasions to the transferor by the transferee to enjoy the property transferred. It also held that water tax is a part of rent unless there is contract to the contrary.
In another decision of this Court in the case of Smt. Raj Rani Kapoor Vs. Bhupinder Singh1986(2) ARC 457 it was held that if the tenant agrees to pay taxes, two situations may arise, either the taxes are payable along with the rent as part thereof or the tax amount may be payable separately in addition to the rent. It is always open to the parties to agree that the house tax and water tax be paid as part of the rent. The aforesaid matter on remand by the Supreme Court, on some other point, came to be decided by this Court again which is reported in 1990 (2) ARC 460 Smt. Raj Rani Kapoor Vs. Bhupinder Singh. The Court therein held that for creating relationship of landlord and tenant the landlord transfer to the tenant the right to enjoy the property for a certain time or in perpetuity and anything which the tenant pays for this transfer of right to enjoy the property will be taken to be the 'rent' of the property. The Court thereafter proceeds and holds that if as consideration of the right to enjoy the demise of the premises the tenant undertakes to pay the rent and house tax and water tax, the total amount so paid would form that consideration and would be rent payable in respect thereof. Thus, not only the rent of the building and other additional charges but also the house and water tax, if agreed to be paid by the tenant and paid along with the rent, not separately, would constitute the rent.
The word 'rent' has been considered by me in extenso in Milap Chandra Jain Vs. Roop Kishor 2014 (3) ADJ 525. It has been held therein that any periodic payment made by the tenant to the landlord for the enjoyment of the property which has been leased out either in the form of money or service or other things of value would constitute 'rent'.
Again in SCC Revision No.265 of 2012 Baleshwar Singh Vs. K.P.Singh decided by me on 12.11.2014 that as all taxes and charges towards fixtures and fittings were being paid together with rent, they will form part of the 'rent'.
In view of the aforesaid facts and circumstances, the conclusion is that the rent of the property in dispute is Rs.2591.80 p.m. which exceeds Rs.2000/- p.m. Thus, the building is exempt from the application of the Rent Act.
Since the Rent Act is not applicable and the tenancy has been determined under Section 106 of the Transfer of Property Act, 1882 simplicitor and there is no defect in the notice or its service, the tenants-respondents cannot avoid their eviction from the property in dispute.
In view of the above discussion, the judgment and order dated 22.5.2003 passed by the court below is set aside and the suit of the plaintiff-landlady is decreed.
Sri S.D. Singh, Senior Advocate at this stage submits that some reasonable time may be allowed to the tenants-respondents to vacate the property in dispute as they have to shift their business to an alternative accommodation.
The prayer appears to be fair and reasonable. Accordingly, with the consent of the parties, four months' time is allowed to the tenants-respondents for vacating the property in dispute provided the respondent No.2 furnishes an undertaking on affidavit in the court below within a period of three weeks from today to the effect that they will handover peaceful vacant possession of the property in dispute to the plaintiff-landlady within the above period of four months and would clear off all the dues including arrears of rent and damages at the same rate for the use and occupation on or before vacating the property.
The revision is allowed with the above concession.
Order Date :- 21.11.2014 Brijesh