Under Article 227, the court dismissed a writ petition challenging an appellate order that quashed a release application. The court held that water tax added to monthly rent makes the total rent exceed the statutory exemption limit, rendering the Act inapplicable and the release application non-maintainable.
The writ petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.F.R.
Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 9892 of 2016
Petitioner :- Ram Das Mehra Respondent :- Sri Sunil Kumar Gupta Counsel for Petitioner :- Chandra Bhan Gupta,Manu Saxena
Hon'ble Manoj Kumar Gupta,J.
The instant petition under Article 227 of the Constitution is directed against the judgement and order dated 22.11.2016 passed by Additional District & Sessions Judge, Court No.15, Kanpur Nagar allowing Rent Appeal No.56 of 2016 filed by respondent-tenant against release order dated 28.7.2016 passed by Prescribed Authority in proceedings under Section 21(1)(a) of U.P. Act No.13 of 1972 (for short 'the Act').
The short issue for consideration is whether the release application filed by the petitioner under the Act was maintainable in view of the admitted fact that rent of the disputed shop was Rs.2000/- per month apart from water tax. The respondent-tenant opposed the release application by filing an application bearing Paper No.58 praying for rejection of the release application on the ground that the rent of the premises being above Rs.2000/- per month, the building was exempt from the provisions of the Act under Section 2 (1) (g). The Prescribed Authority allowed the said application by order dated 28.9.2015. By another order dated 28.7.2016, the Prescribed Authority proceeded to allow the release application oblivious of its earlier order. The appeal filed by the respondent-tenant has been allowed on the short ground that water tax payable over and above
agreed rent of Rs.2000/- per month has to be treated as part of rent in view of Section 7 of the Act, therefore, the building was exempt from the provisions of the Act. Consequently, the release application filed under Section 21 of the Act would also not be maintainable.
Learned counsel for the petitioner submitted that water tax was payable on yearly basis, whereas rent of Rs.2000/- per month was being paid, on a monthly basis. Consequently, clause (g) of sub-section (1) of Section 2 would not be attracted.
Paragraph 7 of the release application reads thus:-
Þ7- ;g fd vkosnd dk edku fxfyl cktkj jksM] dkuiqj uxj dh eq[; lM+d ij fLFkr gS rFkk vkosnd ds mDr edku ds Hkwfe [k.M ij ,d nqdku] iSek;'kh yxHkx 8 fQV pkSM+h o yxHkx 28 fQV yEch] ftldh pkSgn~nh vkxs nh x;h gS] dk foi{kh eqcfyx 2000@& ekgokj vykok tydj dk fdjk;snkj gSAß
Section 2 specifies the buildings which are exempt from the operation of the Act. Clause (g) provides that any building whose monthly rent exceeds Rs.2000/- would be exempt from the operation of the Act. Section 4 of the Act prohibits charging of premium over and above rent payable in respect of a building. However, sub-section (2) of Section 4 provides thus:-
“(2) Except as provided in Sections 5, 6, 7, [8, 9-A and 10], the rent payable for any building shall be such as may be agreed upon between the landlord and the tenant and in the absence of any agreement, the standard rent.”
Section 7 of the Act lays down the liability to pay taxes. It reads
thus:-
“7. Liability to pay taxes.- Subject to any contract in writing
3.
to the contrary, but notwithstanding anything contained [in Section 149 of the Uttar Pradesh Municipalities Act, 1916] the tenant shall be liable to pay to the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, if any, payable in respect of the building or part under his tenancy, namely :-
(a) the water tax ;
(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5;
Provided that nothing in this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of section 5) does not exceed twenty-five rupees per month.”
Thus, in the absence of any contract to the contrary, Section 7 fastens liability to pay water tax upon the tenant in addition to and as part of the rent . Once it is admitted by the landlord that rent of the premises was Rs.2000/- per month plus water tax, though it was being paid on yearly basis, the rent of the building would definitely be an amount exceeding Rs.2000/- per month. Consequently, clause (g) of sub-section (1) of Section 2 would be squarely attracted. Therefore, this Court does not find any illegality in the view taken by the appellate court in holding that the release application was not maintainable, as provisions of the Act were not applicable to the building in question.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J)
Order Date :- 4.1.2019 skv
3 issues framed by the court
Whether a release application under Section 21 of the Act is maintainable when rent exceeds Rs.2000 per month including water tax as part of rent.
Whether water tax payable yearly on a monthly rent agreement comes within the exemption clause for buildings with rent exceeding Rs.2000 per month.
Whether the Prescribed Authority acted legally in holding the building exempt from the Act due to effective rent inclusion of water tax.
3 provisions across 1 enactments
Ram Das Mehra
Sri Sunil Kumar Gupta
Manoj Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
