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Nosir Marafatia and Co. Vs. Bank of Baroda Ltd., Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revision Appln. No. 446 of 1972
Judge
Reported inAIR1975Guj170; (1975)0GLR300
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28 and 28(1); Gujarat Education Cess Act, 1962 - Sections 19 and 21
AppellantNosir Marafatia and Co.
RespondentBank of Baroda Ltd., Ahmedabad
Appellant Advocate A.N. Divecha, Adv. for; I.M. Nanavati, Adv.
Respondent Advocate Ashok C. Gandhi, Adv.
Cases ReferredSmt. Muktabai Gangadhar Kadam v. Smt. Mukt
Excerpt:
.....21 of gujarat education cess act, 1962 - recovery of education cess paid by landlord on behalf of tenant - recovery of such sum by landlord from tenant amount to recovery of rent - as such suit considered to be suit filed for recovery of rent covered under section 28 - section 28 applicable in case of suit between landlord and tenant relating to recovery of rent - held, court referred in section 28 empowered to hear such suit and not court of small causes. - - 3. the petitioner-tenant, by its written statement, contended inter alia, that the court bad no jurisdiction to try the present suit. divecha has submitted that the relevant provisions of the gujarat education cess act, 1962 (which will be hereinafter referred to as 'the cess act'), clearly indicate that this amount of..........there from that even if the recovery is to be made from such licensee, it should be termed to be a suit for recovery of rent.10. in my opinion. this argument has no bearing on the question that is posed before me. section 28 of the rent act will have application only if it is a suit between a landlord and a tenant. it will not have an application if it is a suit between a licensor and a licensee. in the instant case, admitted position is that this is a suit between a landlord and a tenant. that condition is satisfied. the only question that requires consideration is. whether it is a suit relating to, the recovery of rent. in view of the provisions of section 21 of the cess act, such a suit would be a suit relating to the recovery of rent.11. mr. gandhi has pointed, out to me sub-section.....
Judgment:
ORDER

1. This is a revision petition filed by the original defendant-tenant against the plaintiff-opponent (landlord) against the judgment and decree passed by the learned Judge of the Small Causes Court, Ahmedabad, in Summary Suit No. 2106 of 1969. decreeing the plaintiff's suit against the defendant with costs for a sum of Rs. 361.45 paise.

2. Plaintiff-opponent filed the aforesaid suit against the petitioner-defendant (tenant) for recovery of Rs. 3,61.45 paise, being the amount of Education Cess paid by it on behalf of the petitioner in respect of the suit premises let by it to the petitioner-tenant. The liability of payment of the education cess was on the petitioner-tenant. As the tenant did not pay it, it was- obliged to pay it in the Municipal Corporation. The suit was, therefore, filed to recover that amount with 6 per cent. interest from the date of the suit till the date of payment.

3. The petitioner-tenant, by its written statement, contended inter alia, that the Court bad no jurisdiction to try the present suit. The suit was barred by law of limitation. There is no liability of it to pay the education cess in view of the term in the lease deed, that the municipal and other property taxes are to be borne by the landlord.

4. Issues were framed at Ex. 23. The learned trial judge reached the conclusion that the suit was not barred by the law of limitation. Small Cause Court had jurisdiction to try the suit and not the Court contemplated by Section 28 of the Bombay Rents, Hotel and Lodging House Rate s Control Act, 1947 .(which will be hereinafter referred to as 'the Rent Act'). The plaintiff has proved the suit claim. In view of its findings, the trial Court decreed the suit as stated above.

5. All these three findings are challenged by Mr. A. N. Divecha, appearing for Mr. 1. M. Nanavai for the petitioner-tenant. If the question regarding jurisdiction is decided in favour of the petitioner, it will go to the root of the ease and so the submission regarding it is considered first. Mr. Divecha has submitted that the relevant provisions of the Gujarat Education Cess Act, 1962 (which will be hereinafter referred to as 'the Cess Act'), clearly indicate that this amount of education cess sought to be recovered would be a Part of the rent. Admittedly, the relationship between the parties is that of a landlord and tenant.

6. Section 28 of the Rent Act clearly indicates that the Court contemplated by that Section 28 alone will have Jurisdiction to entertain and try any suit or proceeding between a land-lord and a tenant, relating to the recovery of rent or possession of the premises to which any of the provisions of this part applies.

The Court contemplated to have that special jurisdiction in the city of. Ahmedabad is the Court of Small Causes of Ahmedabad. In the instant case, the suit has been -filed in the ordinary Small Cause Court as if the suit was a pure and simple money suit. In view of the provisions of Section 18 of the Rent Act, which invests special jurisdiction of that Court. Such a suit which would be admittedly a suit between a landlord and a ten-ant, and in view of the relevant provisions of the Cess Act, the suit would be a suit relating to the recovery of rent The trial Court was, therefore, in error in not reaching the conclusion that such a suit could be entertained and heard only by the Court contemplated under Section 28 of the Rent Act.

7. Section 2 (iv) of the Cess Act defines 'Education Cess'. It means, a surcharge or tax on lands and buildings levied under the Cess Act. In the instant case, we are concerned with the property situated within the limits of Ahmedabad Municipal Corporation and consequently, education cess in the instant case is a tax on lands and buildings levied, under the Cess Act.

8. Section 3 of the Cess Act reads.

'For the purpose of providing for the cost of promoting education in the State of Gujarat, there shall be levied and collected in ~accordance with the provisions of this Act an education cess which shall consist of.

(a) xx xx xx

(b) a tax on lands and buildings in urban areas.'

Section 12 of the Cess Act specifies the rates at which such tax shall be levied with effect from the Ist day of April 1970, on lands and buildings situated in an urban area. Section 14 of the Cess Act deals with- the question as to the person who is primarily liable to -pay such tax on lands and buildings. Section 19 of the Cess Act, which is material for our purposes, reads:

'(1) If any person from whom under the provisions of S. 12 the tax is livable pays the tax in respect of any land or building, he shall if he be not himself in occupation thereof during the period for which he has paid the tax, be entitled to recover an amount not exceeding half the amount of the tax from the person, if any, in actual occupation of such land or building for such period.

(2) xx xx xx

Provided that, no such recoveries shall be made in respect of

(a) xx xx xx

(b) any tenement the tax on which by the terms of the tenancy, such person has -agreed to pay for its occupier.

(3) The recovery of any amount of tax from an occupier under this section shall not be deemed to be an increase for the purposes of Section 7 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, or any law corresponding thereto.'

The most material section for our purposes is Section 21 of the Cess Act. which reads:

'Any person entitled-to recover any. sum under Section 19 or 20 shall have for the recovery thereof, the same rights and remedies as he would have if such sum were rent Payable to him by the person from whom he is entitled to receive the same.'

A mere glance at the wording of this Section 21 of the Cess Act leaves no doubt, :that the legislature has introduced a deeming fiction and recovery of such amount is deemed to be a recovery of the ;rent amount. This section in terms states that, a person like the opponent who is a landlord and who has paid the education cess, he being liable Primarily under the ,Cess Act and he wants to recover this amount from his tenant, It will be evident that he being a -person entitled to ~recover this sum under Section 19 from his tenant, shall have for the recovery thereof. the same rights and remedies as he would have, if such a sum were rent payable to him by the petitioner-tenant from whom he is entitled to receive the ,same. It would, therefore, necessarily mean that recovery of such a sum by the landlord from the tenant would be recovery of rent payable to him by the tenant. It will, therefore, be a suit filed by if he landlord against the tenant relating ~!to the recovery of the rent. It would, ;therefore, fall within the mischief of Section 28 of the Rent Act. It is, therefore, evident that it is the Court referred to in clause (a) of sub-section (1) of Section 28 of the Rent Act having a special jurisdiction under Section 28 of the Rent Act, which will have jurisdiction to hear such a suit and not the ordinary Court of Small Causes.

9. Mr. Ashok Gandhi, appearing for the opponent-landlord, has contended that an occupier need not necessarily be a ten-ant. He may be even a licensee. It will not therefore be correct to reach the conclusion that such amount of education cess would amount to rent and it would not be correct to deduce further there from that even if the recovery is to be made from such licensee, it should be termed to be a suit for recovery of rent.

10. In my opinion. this argument has no bearing on the question that is Posed before me. Section 28 of the Rent Act will have application only if it is a suit between a landlord and a tenant. It will not have an application if it is a suit between a licensor and a licensee. In the instant case, admitted position is that this is a suit between a landlord and a tenant. That condition is satisfied. The only question that requires consideration is. whether it is a suit relating to, the recovery of rent. In view of the provisions of Section 21 of the Cess Act, such a suit would be a suit relating to the recovery of rent.

11. Mr. Gandhi has pointed, out to me sub-section (3) of Section 19 of the Cess Act and urged that recovery of such amount of tax from an occupier under Section 19 of the Cess Act would not be deemed to be increase for the purpose of Section 7 of the Rent Act or any law corresponding thereto. It would, therefore, necessarily mean that recovery of such tax was not the recovery of rent amount. There is fallacy in this argument of Mr. Gandhi. Section 7 of the Rent Act reads :

'Except where the rent is liable to periodical increment by virtue of an agreement entered into before the specified date, it shall not be lawful to claim or receive on account of rent for any premises any increase above the standard rent, unless the landlord was, before the coming into operation of this Act, entitled to recover such increase under the provisions of the Bombay Rent Restriction Act, 1939 or the Bombay Rents, Hotel and Lodging House Rates Control Act, 1944, or is entitled to recover such in-. crease under the provisions of this Act.' The landlord, in view of the provisions of the Cess Act, is entitled to recover from its tenant such educational cess paid by it on account of its liability being a primary liability.

12. Section 19 (3) of the Cess Act only states the position that recovery of such amount will not be deemed to be an increase for the purposes of Section 7 of the Rent Act. It means that such recovery of rent will not be illegal within the meaning of Section 7 of the Rent Act. That sub-section (3) of Section 19 of the Cess Act, therefore, does not assist the submission made by Mr. Gandhi.

13. This conclusion reached by me, gets support from the decision of a Single Judge of the Maharashtra High Court in Smt. Muktabai Gangadhar Kadam v. Smt. Mukt,abai Laxman Palwankar, (1969) 71 Bom LR 752. It is observed therein:

'Education Cess Payable by an occupant by virtue of Section 13 of the Maharashtra Education Cess Act, 1962, is Part of the 'rent' within the meaning of that term as used in the Bombay Rents, Hotel and Lodging I-louse Rates Control Act 1947, and when claimed in addition to the contractual or standard rent constitutes a I Permitted increase' as deemed in Section 5 (7) of the latter Act.'

It is significant to note that the relevant sections of the Maharashtra Education Cess Act, 1962, are in pari nbateria with the relevant Provisions of the Cess Act.

14. In Civil Revn. Appln. No. 405 of 1971, decided on 18th February. 1974= (reported in AIR 1975 Guj 163) 1 have taken a similar view, observing:

'Payment of such education cess. or the liability to pay it, would be in respect of a part of the rent.'

I have followed the aforesaid decision of the Maharashtra High Court and observed in that behalf:

'............I am in agreement with it and I feel no hesitation in reaching the conclusion that this education cess, which ultimately becomes Payable by the tenant, is a part of the rent. It is not on account of any contract, but it is on account of the statutory provisions of the Act.'

The trial Court has, therefore, committed an err5r of law in reaching the conclusion that the present suit will not tall within the mischief of Section 28 of the Rent Act and so., the ordinary Small Causes Court had jurisdiction to hear this Summary Suit. In this view of the matter, it is not necessary to go into the merits -of the case.

15.The result is that the decree has got to be set aside and the order will have to be made to return the plaint to the plaintiff-opponent for A5 presentation to the proper Court.

16. Civil revision application is allowed and the judgment and decree passed by the trial Court are set aside and the trial Court is directed to return the plaint to the plaintiff -opponent to Present it in the Court contemplated under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Looking to the circumstances of the case, each party is ordered to -bear its own costs in this revision petition. Rule is made absolute.

17. Petition allowed.


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