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1993 DIGILAW 475 (GUJ)

RASIKLAL CHIMANLAL NAGRI v. UNION OF INDIA

1993-10-04

B.S.KAPADIA

body1993
B. S. KAPADIA, J. ( 1 ) THE present revision application is filed by the original plaintiffs against Union of India through the Post Master, General Post Office, Mirzapur road, Ahmedabad, for the recovery of Rs. 1,870. 50 being the amount of education cess plus the interest of Rs. 290. 50 at the rate of 9% per annum. The aforesaid amount was claimed by the plaintiffs as the opponent Union of India showed its unwillingness and disowned its liability to pay full amount of education cess for the financial year April 1973 to March 1974 which comes to Rs. 1870. 50. ( 2 ) FOR the recovery of the said amount, the Regular Civil Suit No. 2834 of 1975 was filed in the Small Cause Court at Ahmedabad on July 31, 1975. ( 3 ) THE Union of India resisted the suit by its Writtent Statement at Exh. 11 and inter alia contended that though it has agreed by Exh. 27, registered Rent note dated 2-10-1968, to pay all Municipal taxes and other taxes, it is under no obligation to pay more than an amount equal to half the amount of education cess levied on the demised premises. It further contended that in view of the amendment in Sec. 19 of the Gujarat Education Cess Act, 1962, which came into force from April 1, 1970, it was not liable to pay more than half the amount of Education Cess. However, the trial Court has passed the decree for the full amount as claimed by the plaintiffs. ( 4 ) HENCE, the New Trial Application No. 29 of 1978 under Sec. 38 of presidency Small Cause Courts Act was filed, which was subsequently converted into Appeal under the Rent Act. The appellate Bench heard the said matter and partly allowed the appeal inter alia modifying the decree that the defendant Union of India do pay to the plaintiffs an amount of Rs. 935. 25 only which would be half the amount of Education Cess for the period from 1-4-1973 to 31-3-1974 in respect of the demised premises within a period of two months from 1-5-1979, the date on which the order was passed. The parties were ordered to bear their own costs of the suit as well as of the appeal. 935. 25 only which would be half the amount of Education Cess for the period from 1-4-1973 to 31-3-1974 in respect of the demised premises within a period of two months from 1-5-1979, the date on which the order was passed. The parties were ordered to bear their own costs of the suit as well as of the appeal. ( 5 ) BEING aggrieved by the aforesaid judgment passed by the Bench of the small Cause Court dated 1-5-1979, the present revision application has been filed, under Sec. 29 (2) of the Bombay Rent Act. ( 6 ) THOUGH the powers of this Court under Bombay Rent Act are wider than revision under Sec. 115 of Code of Civil Procedure, this Court has a very limited powers under Sec. 29 (2) of the Bombay Rent Court, namely, it has jurisdictional control over the subordinate Court and further that the powers are to be exercised with a view to satisfy that the judgment rendered by the lower Court is according to law and unless miscarriage of justice is done, this Court would not like to interfere with the order passed by the Court below. ( 7 ) WITH this background, it is necessary to see what was the relevant provision of law under the Education Cess Act prevalent for recovering the Education Cess claimed for the period from 1-4-1973 to 21-3-1974. On perusal of the provisions of the Act it is clear that under Sec. 12 of the said Act leviability of Education cess is created on lands and buildings with effect from 1st April 1970 under Sec. 12 of the said Act. Under Sec. 14 of the said Act the primary liability is held to be with the occupier of the building who is the owner thereof or who is holding it on a building or other lease granted by or on behalf of Government or a local authority or on a building lease from any person, then the tax shall be leviable primarily on such occupier. In any other case, it will be the liability of clauses (a), (b) and (c) of sub-sec. (2) of Sec. 14 of the said Act. Here in this case, the liability would be on the lessor, that is, the landlord. In any other case, it will be the liability of clauses (a), (b) and (c) of sub-sec. (2) of Sec. 14 of the said Act. Here in this case, the liability would be on the lessor, that is, the landlord. Sec. 19 of the said Act confers a right on the landlord who pays the tax when it is not occupied by him but the occupation thereof during such period from the person in actual occupation of such building. However, that Section has undergone certain amendments. That section has been amended from 1-4-1970 and the relevant amendment which would be applicable to the period in question in the present case is as under -"if any person from whom under the provisions of Sec. 12, the tax is leviable 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 from the person, if any, in actual occupation of such land or building for such period. "now, therefore, it is clear from the very language of that amendment that from 1-4-1970 the landlord would be entitled to recover half of the Education Cess paid from the tenant who is actually occupying the premises. The period in question here is from 1-4-1973 to 31-3-1974 and, therefore, the plaintiff would be entitled to recover half of the tax but not entire tax paid by him as per the provisions of the said Act. ( 8 ) IN that view of the matter, Mr. Nanavati, learned Advocate appearing for the petitioners, submits that there is a condition in the Rent note at Exh. 27 itself that all the Minicipal taxes and other taxes will be borne by the tenant. It is true, that there is such a clause but when the law permits only half of the tax, for the remaining amount whether the condition of the lease can be enforced or not. It is important to note that sub-sec. (3) of the Sec. 19 of the Gujarat Education Cess act, 1962, provides that recovery of any amount of tax from a occupier under this section shall not be deemed to be an increase for the purposes of Sec. 7 of the bombay Rents, Hotel and Lodging House Rates Control Act, 1947 or any law corresponding thereto. (3) of the Sec. 19 of the Gujarat Education Cess act, 1962, provides that recovery of any amount of tax from a occupier under this section shall not be deemed to be an increase for the purposes of Sec. 7 of the bombay Rents, Hotel and Lodging House Rates Control Act, 1947 or any law corresponding thereto. Sec. 7 of the Bombay Rent Act specifically prohibits any increase in the standard rent. It is clearly stated in that Section that 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 Rates and Lodging House Rates (Control) Act, 1944 or is entitled to recover such increase under the provisions of this Act. Therefore, if that term under the Rent note is enforced in respect of the relevant period, it will be repugnant and/or contrary to the provisions of Sec. 7 of the Bombay Rent Act. The said condition will not be consistent with the provisions of the Rent Act. Hence, that term cannot be enforeced as it would be illegal to enforce the same. ( 9 ) HOWEVER, it may further be noted that Sec. 19 of Gujarat Education Cess act has undergone certain amendments by the Act 15 of 1980 and that has subdivided the paragraphs for recovery of the amount not exceeding half the amount of the tax and for the recovery of the full tax in clauses (a) and (b) of sub-sec. (1) of Sec. 19. Clause (a) provides for the building used for the public charitable purposes by a public trust registered under the Bombay Public Trust Act, 1950, or for residential purposes. Clause (b) provides for the building used for the purposes of trade, commerce, or industry or carrying on of profession or business of or for the purpose other than those specified in Clause (a ). It, therefore, clearly appears that subsequently as per the provisions of Clause (b) of sub-sec. Clause (b) provides for the building used for the purposes of trade, commerce, or industry or carrying on of profession or business of or for the purpose other than those specified in Clause (a ). It, therefore, clearly appears that subsequently as per the provisions of Clause (b) of sub-sec. (1) of Sec. 19 of the Gujarat Education Cess Act the landlord would be entitled to recover the full amount of Education Cess from the date the Gujarat Amendment Act 15 of 1980 came into force unless it has been so further changed or modified by any subsequent legislation. If no further change is made after 1980, the landlord would be entitled to recover the full amount of Education Cess from the opponent. ( 10 ) THEREFORE, in my view, the appellate Court has rightly discussed the point and came to the conclusion that the plaintiff-landlord would be entitled to half the amount of the Education Cess paid by him for the period from 1-4-1973 to 31-3-1974, that is, Rs. 935. 25 but not the full amount as claimed by him. In that view of the matter, I do not see any merit in the Revision Application, hence, it is dismissed with no order as to costs. .