ivil Appeal No 2443 of 1980
From the Judgment and Order dated 8980 of the Delhi High Court in SAO No 339 of 1980
732 Mukul Mudgal for the Appellant
Rajinder Sachhar and Mrs J Wad for the Respondent
The Judgment of the Court was delivered by SHARMA J
This is a tenant s appeal against the decree for his eviction from certain disputed premises passed by the Rent Controller Delhi and confirmed in appeal and second appeal
The respondent the owner of the premises let it out to the appellant in 1961 as a monthly tenant
An unregis tered deed of lease was executed on that occasion containing the following statement as one of the clauses That they will not assign or underlet or part with the premises hereby demised without the permission in writing of the landlord subject however to this proviso that they shall be entitled to assign or otherwise part with the possession of the said premises or any part thereof to their associate concerns without such consent but in any event the lessees shall be liable for the payment of the rent during the term hereby granted
The appellant is a manufacturing company of Scooters Pickup Vans and Auto Three Wheelers
Alleging that the appellant had sub let the premises to Ms United Automo biles without his consent the respondent contended that the ground mentioned in section 14 1 Proviso b of the Delhi Rent Control Act 1958 was made out and the appellant was liable to be evicted
The eviction proceeding was defended by the appellant on the ground that the Ms United Automobiles are the authorised dealer and distributor of the product manufac tured by the appellant and has been in occupation of the premises in that capacity and can not therefore be de scribed as a sub tenant
It was alternatively argued that in view of the term of the lease as quoted above the arrange ment with the Ms United Automobiles can not be condemned as a sublease without the consent of the respondent
The stand of the respondent has been that the above mentioned term of the lease can not be looked into as document was not registered and further the Ms United Automobiles can not be assumed to be an associate a concern  within the meaning of the term
The Rent Controller as well as the 733 appellate authority held that the afore mentioned term of the lease was not inadmissible and the appellant was enti tled to rely upon the same but ordered eviction on the ground that Ms United Automobiles was inducted in the premises as a sub lessee
The High Court dismissed the appellant s second appeal in limine and in this situation the present appeal by special leave has been filed
It has been strenuously contended by the learned counsel for the appellant that as i the United Automo biles is a distributor of the product manufactured by the appellant on the basis of commission ii it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent and iii is entitled to be in possession only as long as it continues to be a dis tributor it should be held to be an associate concern  within the meaning of the aforementioned term of the lease
In reply of the respondent s contention that the term can not be taken into consideration as the deed is not a regis tered one it was urged that the appellant in view of the provisions of section 49 of the Registration Act is entitled to rely upon the term for collateral purpose 
The argument is that the document may not be admissible for the purpose of proving the existence of a lease or the terms thereof but as the afore mentioned clause does not come within that category in as much as it merely amounts to a written permission to the appellant to create a sub lease it can not be excluded from consideration on the ground of non registration
There is no dispute that the appellant has put Ms United Automobiles in possession of the premises and has thus parted with the possession within the meaning of section 141 Proviso b of the Act
The appellant Company has a separate legal entity and has nothing to do with Ms United Automobiles except that the latter is the dealer distribu tor of some of its manufactured articles
Ms United Auto mobiles is not a licensee and is not in possession of the premises on behalf of the appellant
The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicles and does not include the right of enjoyment of the premises
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material
The irresist ible conclusion is that the appellant has created a sub lease in favour of its dealer
The question now is whether the clause in the lease mentioned above amounts to the respondent s consent in writing
The contention of the learned counsel for the respondent that 734 the aforesaid clause can not be looked into for want of registration of the lease deed appears to be correct
Reli ance has been placed on the observations of Fazal Ali J in Sachindra Mohan Ghose vs Ramjash Agarwalla AIR 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose
The learned counsel for the appellant attempted to meet the point by saying that so far the consent of the landlord permitting sub letting is concerned it does not require registration and the clause therefore must be excepted from the requirement of registration and consequent exclusion from evidence
We do not see any force in this argument
The question whether a lessee is entitled to create a sub lease or not is undoubtedly a term of the transaction of lease and if it is incorporated in the document it can not be disassociated from the lease and considered separately in isolation
If a document is inad missible for non registration all its terms are inadmissi ble including the one dealing with landlord s permission to his tenant to sub let
It follows that the appellant can not in the present circumstances be allowed to rely upon the clause in his unregistered lease deed
There is still another reason to hold that the afore said clause can not come to the aid of the appellant
A perusal of its language would show that it contains the respondent s consent in general terms without reference to Ms United Automobiles
As a matter of fact Ms United Automobiles came to be inducted as a sub tenant much later
Can such a general permission be treated to be the consent as required by section 14 1 Proviso b of the Act It was held by this Court In Ms Shalimar Tar Products vs SC Sharma   that Ss
141 Proviso b and 162 and 3 of the Delhi Rent Control Act 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub letting and any other interpretation of the provisions will defeat the object of the statute and is therefore inpermissible
Since it is not suggested that the consent of the respondent was obtained specifically with reference to the Sub letting in favour of Ms United Automobiles the clause in the lease deed which has been relied on can not save the appellant even if it be assumed in its favour that the clause is admissible and the sUb lessee is appel lant s associate concern
The appeal therefore fails and is dismissed with Costs


Summary:
The appellant assesse is a Society registered under the Societies Registration Act
Its members are Cardamom growers in the State of Kerala
The Society conducts the business as an auctioneer under a licence issued to it under the Carda mom Act Act 42 of 1965 read with the Cardamom Licensing and Marketing Rules 1977 one of the Conditions of this licence being that as an auctioneer it shall not charge more than one percent of the sale price as commission for the services rendered by it
It is common ground that the socie ty has obtained the relevant licence and the individual membersgrowers of Cardamom had no such licence
The mode of the business was that planters left their produce with the Society and the Society after mixing the produce of all the growers put the same to auction
The Society collected 1 as commission out of the sale proceeds from each of the planters
Besides cardamom the Society sold other goods also
The Kerala General Sales Tax Act 1963 imposes sales tax on every dealer whose total turnover for any year exceeds a specified sum which differed from year to year
In 1957 the Kerala Legislature introduced a surcharge on sales tax
Section 3 of the Kerala Surcharge on taxes Act 1957 pre scribes that the tax payable under the Kerala General Sales Tax Act 1963 shall in the case of a dealer whose turnover exceeds Rs30000 a year be increased by a surcharge at the rate of 5 of the tax payable for that year
The provisions of the Kerala General Sales Tax Act were made applicable to the levy and collection of the said surcharge
Kerala Act 40 of 1976 stepped up the rate of surcharge
The important feature of the latter Act is that unlike sales tax which the dealer was entitled to get reimbursed from the purchaser of the goods sold by him the surcharge had to be borne by the dealer himself as 720 Sub Section 2 of Section 3 of the Surcharge Act prohibited the dealer from collecting the surcharge payable by him
Further the dealer might be liable for sales tax at differ ent rates on the turnover of the different goods dealt with by him he was to pay surcharge calculated on the amount of the sales tax payable by him in respect of his total deal ings throughout the year
The assessee s contention was that the Society sold goods only in its capacity as a commission agent for various principals and that on the general principle of agency an agent like the assessee could be liable to surcharge only to the same extent as the principal whom it represented
On this plea it could not be made liable for any surcharge in respect of the sales effected by it on behalf of the princi pals whose sales through the Society did not exceed the limits set out in Sec
31 of the Surcharge Act
The Tribunal had accepted the above contention of the appellant in the appeals against the assessment for the assessment years 1967 68 to 1969 70
The sales Tax assess ments of the appellant for the assessment years 1973 74 to 1976 77 were completed by the Sales Tax Officer following the aforesaid order of the Tribunal
These assessments were set aside by the Dy
Commissioner of Sales Tax who took the view that the Society was liable to pay surcharge on its aggregate turnover in each of the assessment years
The appellant assessee preferred appeals to the Appellate Tribu nal against the orders of the Deputy Commissioner
The Tribunal allowed the appeals following its order relating to the earlier assessment years
It accordingly set aside the orders of the Dy
Commissioner and restored the assessments made by the Sales Tax Officer for the assessment years 1973 74 to 1976 77
The Department moved revision petitions before the High Court against the order of the Appellate Tribunal
The High Court accepted the revision of the De partment and set aside the order of the Tribunal
Hence these appeals by the assessee
It was contended by the appellant i that the liability of an agent is co extensive with that of principal and its liability cannot be higher than that of principal ii that it is contrary to the principle underlying rule 9k of the Kerala General Sales Tax Act whereunder the turnover of sales or purchases made by a dealer through his agent in respect of which tax has been paid by the agent is excluded from his taxable turnover and iii that the assessee has been placed in a financial predicament in that it has to pay he surcharge from out of the meagre commission of 1 limited by the statute
721 Dismissing the appeals this Court HELD The Surcharge Act does not envisage a fresh deter mination of the assessee s turnover at all
It prescribes nothing more than a simple arithmetical calculation of the prescribed percentage on the sales tax determined as payable by the assessee for that year
It does not permit the compu tation of the surcharge for whatever reason on a part only of the tax determined as payable by the assessee for the year in question
It does not contemplate any dissection of the turnover into transactions on behalf of various princi pals by reference to their individual liability to pay either sales tax or surcharge
The contentions urged on behalf of the petitioner create a number of difficulties and or about a very simple procedure evolved by the statute to meet the present situation It brought the Commission agent within the definition of a dealer and made his aggregate turnover liable to tax
But it provided at the same time that the turnover so included and taxed in the hands of the agent should he excluded from the turnover of the principal where he is separately assessed
726C D 727E F 728C Rule 9k confers an exemption not on the Commission agent but on the Principal and does not help the assessee
728D The rate of tax on any type of goods being uniform irrespective of the turnover the turnover in regard to that item will get assessed only at one place either in the hands of the principal or in the hands of the agent but not both
728D A suggestion was mooted before us that the hardship to the assessee on this account is so substantial that this requirement should be held to he an unreasonable restriction violating Article 19
This is a new contention involving investigation into facts which this Court is not inclined to permit the assessee to raise here for the first time
728G H