Ghanshyam Das v. Ivth Addl. District Judge, Etah — 1983 DIGILAW 810 (ALL)

JUDGMENT A. BANERJI, J. 1. THIS writ petition filed by the landlord of a building raises an interesting question of law. The question is whether a tenant is liable to pay water-tax for the building in his occupation to the landlord as a part of the rent regardless of the fact whether the landlord has paid to the Municipality the water-tax for the said building. The landlord's contention is that water tax is a part of the rent and the tenant is liable to pay the same along with the rent and in any event on demand. The tenant's stand is that water tax is not a part of the rent and the tenant is not liable to pay the same. Secondly, the landlord had to prove that he had paid the concerned water-tax to the Municipality. Thirdly, there would be no liability on the tenant to pay water-tax when he had separate water connection from the Municipality. To appreciate the question raised, it would be necessary to set out the relevant facts. 2. THE petitioner Ghanshyam Das, who is the owner-cum-landlord of the building in dispute filed a suit for the ejectment of the tenant Baijnath Agarwal after serving him a notice. THE petitioner stated that rent of the building was Rs. 35/- per month and that the tenant was also liable to pay house and water tax. In the notice dated 4th April, 1974 he demanded house and water tax with effect from 1-10-72 till 31-3-74. THE tenant, according to the petitioner, did not tender the entire amount due. Thereupon, the petitioner filed a suit in the court of Judge, Small Causes, Etah and claimed the relief of ejectment as well as recovery of Rs. 105/- as three months' rent, Rs. 63/- as water tax at the rate of Rs. 3.50 per month and Rs. 5.25 as house tax besides damages for use and occupation. THE defence in the suit was a denial of the liability to pay water tax, and a plea was taken that the tenant had been paying water charges to the Municipal Board and accordingly these charges had to be adjusted against the water tax. THE Court of Small Causes held that the water tax would be adjusted and consequently there was no default and as such the suit was dismissed. Thereafter, the petitioner filed a revision before the District Judge. THE Court of Small Causes held that the water tax would be adjusted and consequently there was no default and as such the suit was dismissed. Thereafter, the petitioner filed a revision before the District Judge. THE District Judge held that there was no ground for interference in the revision. He observed that no notice had been served on the defendant Baijnath and in the absence of a proper notice of demand, there could be no default. He further held that the petitioner-landlord had not paid any water tax to the Municipal Board before the service of the alleged notice of demand or even till the institution of the suit. He also observed that "the landlord cannot recover water tax from the tenant unless he pays it to the Municipal Board." On this ground the revisional court held that the landlord could not demand the amount of water tax from the tenant and consequently there was no default and affirmed the judgment of the trial court. Thereafter, a civil revision was filed in this Court by the petitioner, but the same was dismissed as not maintainable. Thereupon, the petitioner filed the present writ petition. I have heard Mr. S. K. Verma, learned counsel for the petitioner and Mr. A. K. Sharma, learned counsel for the respondent. I have also perused the lower court record. 3. IT is not in dispute that the building in question is governed by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. Section 7 of the Act places a liability on the tenant of a building, which is governed by the Act. These liabilities are the payment of water tax and 25 percent of the enhancement in the house tax made after the commencement of the Act i. e. 15th July 1972. The relevant provision reads:- "7 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." This provision is subject to any contract in writing to the contrary. The proviso to the section stipulates that nothing in this section would apply to a tenant paying rent upto 25 rupees per month. The proviso to the section stipulates that nothing in this section would apply to a tenant paying rent upto 25 rupees per month. Admittedly, the rent of the building payable by the tenant is Rs. 35/- per month. Therefore, the provision would have no application. Another consequence would be that the tenant would be liable to pay water tax and that too is payable as part of the rent. There is no dispute that the water tax payable is Rs. 42/- per annum i. e. Rs. 3.50 per month. Therefore the tenant was liable to pay a sum of Rs. 3.50 as water tax along with the rent as part of the rent. There is nothing on the record to show that the parties had contracted that the sum of Rs. 35/- would include house tax and water tax. In other words, there is no indication any where on the record that there was a contract to the contrary. In this view of the matter, the tenant was liable to pay the water tax relating to the building in his occupation as a part of the rent. 4. THE other question relates to house tax. THE petitioner has claimed a sum of Rs. 1.75 as house tax, but before any amount could be claimed a house tax it had to be shown that the house tax had been enhanced after the commencement of the Act. Only 25 per cent of enhancement in house tax is liable to be paid by the tenant. I was not referred to any material on the record which would show that the house tax was enhanced after the commencement of the Act and before the institution of the suit. THE claim regarding house tax will, therefore, have to be rejected. The next question is about payment of water tax. The provisions of the Municipalities Act make it clear that it is owner of the building who is liable to pay the municipal taxes. The provision also makes it clear that house and water tax can also be realised from the occupant of the building. It is no body's case that water tax was sought to be realisad by the Municipal Board from the tenant. On the contrary, it was the landlord-petitioner who was seeking to realise the amount of water tax in respect of the building occupied by the tenant from the latter. It is no body's case that water tax was sought to be realisad by the Municipal Board from the tenant. On the contrary, it was the landlord-petitioner who was seeking to realise the amount of water tax in respect of the building occupied by the tenant from the latter. The tenant took the plea that the landlord-petitioner had disconnected his water supply and ultimately he was forced to take separate connection to the building occupied by him as a tenant. He had paid for the connection, meter and allied charges. He further stated that he had been paying water charges to the Municipal Board. He further claimed that the water charges, which had been paid by him, are liable to be adjusted. Learned counsel for the petitioner, however, urged that the tenant was not liable to adjust payment for water charges towards water tax liability of the tenant. 'Water tax' is entirely different from 'water charges'. The water tax is imposed by the Municipality as provided under section 128 (i) (x) of the U. P. Municipalities Act. This tax is levied on the annual value of a building or land or both situated within the Municipal area. 'Water-tax' is computed on the valuation of the building. On the other hand, 'Water-charge' is a charge made for the excess consumption of water. It has nothing to do with water tax. Every building or land in the Municipal area is entitled to certain amount of water free of charge on the basis of the amount of water tax paid for the building. Water consumed in excess of the above entitlement is liable to be paid for. This is calculated from the readings taken from the water meter installed in the premises. Any amount paid towards water charges i. e. for excess consumption of water cannot be treated to be a payment of water tax. Water tax, as seen above, is a liability imposed under the Act. But the liability to pay water charges arises out of excess consumption of water for which the Municipal Board sends a separate bill. It is open to a tenant to have a separate connection to facilitate his getting regular supply from the Municipal pipeline. In that event he has to pay for the water consumed. In such an event, the landlord is not liable to pay anything towards the water consumed by the tenant. It is open to a tenant to have a separate connection to facilitate his getting regular supply from the Municipal pipeline. In that event he has to pay for the water consumed. In such an event, the landlord is not liable to pay anything towards the water consumed by the tenant. Where a tenant has taken a separate water connection, he is liable to pay for the same and the liability for the same cannot be passed on to the landlord. 5. SECTION 7 of the Act makes a departure in regard to payment of water tax. Prior to this provision, water tax was the liability of the owner of the building and the rent paid by the tenant to the landlord covered water tax paid for the building. Now the position has altered under the Act. The landlord has been permitted under Act to realise the amount of water tax from the tenant. The specific words in Sec. 7 make it clear that "the tenant shall be liable to pay to the landlord in addition to and as part of the rent" the water tax. It not only imposes liability of payment of water tax, but also makes that water tax a part of rent. It is obvious from the above that a tenant cannot avoid realisation of water tax as a part of rent under the provisions of the Act, unless he establishes that there was a contract to the contrary. As seen above, no such case was either pleaded or established. Consequently, the position is that the tenant would be liable to pay water tax. 6. THE revisional court has referred to Sections 149 and 230 of the U. P. Municipalities Act to observe that "where a building is occupied by a tenant the landlord cannot recover water tax from the tenant unless he pays it to the Municipal Board." A perusal of the said provision does not support the above observation by the revisional court. Section 149 fastens a liability tor payment of certain taxes on annual value of the building. THE tax is primarily leviable from the lessor where the property is let, from the superior lessor where the property is sub-let and from the persons in whom the right to let the same vests where the property is unlet. Sub-sec. Section 149 fastens a liability tor payment of certain taxes on annual value of the building. THE tax is primarily leviable from the lessor where the property is let, from the superior lessor where the property is sub-let and from the persons in whom the right to let the same vests where the property is unlet. Sub-sec. (3) of Sec. 149 makes it clear that on the failure to recover any sum due on account of such tax from the persons primarily liable, it may be recovered from the occupier. Sub-sec. (4) makes it clear that "An occupier who makes any payment for which he is not primarily liable under the foregoing provisions, shall, in the absence of any contract to the contrary, be entitled to be reimbursed by the person primarily liable." It means that in case the tenant occupier made payment of the Municipal taxes for which he was not liable, he was entitled to be reimbursed by the landlord. But the position has been altered by the provisions of Sec. 7 which makes the tenant liable to pay the water tax. Consequently, the landlord can recover water tax relating to the building from the tenant. Section 230 of the Act stipulates that when a building is connected with the Municipal pipeline, the Municipal Board may charge the owner, lessor or occupier for all water consumed at the prescribed rate. In the present case, the connection was taken by the tenant and it was he who was liable to pay the charges for water consumed by him. Sub-sec. (2) specifies that " he board shall deduct from the charge on account of water supplied in any month one-twelth of the water-tax assessed on the building or land." This in effect means that while making out a bill for the excess water consumed, the Municipal Board will take into consideration the amount of water tax-assessed for the building for the relevant period and give relief accordingly. It is well established that the quantum of free water supplied to a building by the Municipal Board is dependent upon the amount of water tax paid. Section 230 (2) therefore makes a provision for giving relief to the extent for which the water tax is leviable to the building. It will be noticed that sub-sec. It is well established that the quantum of free water supplied to a building by the Municipal Board is dependent upon the amount of water tax paid. Section 230 (2) therefore makes a provision for giving relief to the extent for which the water tax is leviable to the building. It will be noticed that sub-sec. (2) uses the expression "water-tax assessed on the building or land." It is therefore, evident that the relief was to be given on the basis of water-tax assessed and not on the basis of water-tax paid. The landlord is liable to pay the water tax to the Municipal Board. Even if he has not paid the water-tax he is entitled to recover the same from the tenant by virtue of Sec. 7 of the Act. Consequently, the observation of revisional court that it was incumbent upon the landlord to pay the water tax before he could realise the same from the tenant is wholly misconceived. The provisions of Sections 149 and 230 of the Act do not justify the observation made by the revisional court which has been quoted above. 7. IT was urged by the learned counsel for the respondents that Papers C-30, C-31 and C-32 evidenced payment of water-tax by the tenant. The record has been examined. None of these three papers show that any water tax was paid by the tenant. Paper C-30 is a bill for water charge. Paper C-31 is a receipt for payment of water charge and Paper C-32 refers to the installation of a water-meter for separate connection for which the charges were paid by the tenant. None of these documents support the tenant's plea that he had paid water tax in relation to the building. 8. IN view of the above, the order passed by the revisional court cannot be upheld, as it is manifestly erroneous and it must be set aside. The order of the revisional court is quashed and the case is sent back to the District Judge for a fresh hearing of the revision and decision in accordance with law. IN the circumstances of the case, parties are directed to bear their own costs.