N. K. Mehrotra, J. - (1.) THIS is a revision under Section 25 Provincial Small Cause Courts Act, 1887, against the judgment and decree dated 18.12.2002 passed by the Addl. District Judge, Unnao in S.C.C. Suit No. 4 of 2001, Smt. Shanti Nigam v. Lakshmi Narainan Gupta, decreeing the suit for eviction, arrears of rent and damages in favour of the plaintiff against the defendant.
(2.) I have heard the learned counsel for the parties on merit at admission stage after summoning the record. A perusal of the record goes to show that the plaintiff opposite party Smt. Shanti Nigam claiming herself to be the landlady of the disputed premises, filed a suit for eviction of the defendant after determinating his tenancy on the ground of default in payment of rent and for recovery of rent, damages and water tax. According to the plaintiff's case the defendant being tenant at the rate of Rs. 460 per month has not paid rent since 1.2.1996 to 20.8.2001. Thereafter, a notice for payment of rent and determinating the tenancy was sent to the defendant, which was served by refusal. The defendant-revisionist filed written statement by pleading that the rent has been paid to the son of the landlady and the notice has not been served on him and the water-tax is not his liability. The learned trial court after framing issues recorded a finding that the defendant has been tenant of the plaintiff at the rate of Rs. 460 per month. The plaintiff is entitled to realise the water-tax. The provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are applicable. The rent has not been paid since 1.2.1996 and the notice was served by refusal and by affixation. It has also been held that the defendant is not entitled for the benefit of Section 20 (4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is against this judgment that the instant civil revision has been filed.
(3.) THE learned counsel for the revisionist has argued that the service of notice is not proved and the presumption under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable. It has been argued that the revisionist denied on oath the tender of the registered letter to him by postman and no cross-examination of the revisionist-tenant has been made on this point. I find no force in this contention. THE notice has been served by refusal and by affixation. THE revisionist has been cross-examined. THE finding recorded by the learned trial court is not perverse in any way. The learned counsel for the revisionist has further argued that the revisionist is not liable to make payment of water-tax after taking the help of provisions of Section 7 of the Act No. 13 of 1972. He has argued that the revisionist had occupied the premises without any allotment order by private negotiation and the liability of payment of water-tax could not be fixed under Section 7 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. There is no document to show that the revisionist agreed to pay water-tax and there is no evidence that the premises in suit has been assessed separately for water-tax. He has relied on a judgment of Supreme Court in Nutan Kumar and others v. IInd Addl. District Judge and others, 2003 (1) AWC 213 (SC) : 2003 (1) SCCD 408 : 2002 AIR SCW 4040, in which it has been held that the tenant without allotment under the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is an unauthorized occupant of premises like a trespasser and a suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy. I find that in Nutan Kumar case, Supreme Court was hearing the appeal against the judgment of the Full Bench of the Allahabad High Court in which Full Bench has made an attempt to distinguish the earlier judgment of the Supreme Court in Nanakram v. Kundal Rai, (1986) 3 SCC 83, in which the question was whether a lease in violation of statutory provisions was void. It was held by the Supreme Court in Nanakram case (supra) that in the absence of any mandatory provision obliging eviction in case of contravention of the provisions of the Act, the lease would not be void and the parties would be bound, as between themselves, to observe the conditions of lease. It was also held that neither of them could assail the lease in a proceeding between themselves. The Supreme Court in Nutan Kumar case (supra) reiterated the earlier decision in Nanakram case (supra), therefore, the revisionist cannot take any advantage of this decision in his favour. Agreement of lease between the parties will be applicable on them and the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, are applicable and, therefore, the provisions of Section 7 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, shall also be applicable. Section 7 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 makes the tenant liable for water-tax if there is no contract to the contrary.;