Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Mohd. Mohinuddin Khan, learned counsel for revisionist, learned State counsel and perused the record.
By means of the present revision filed under Section 25 of the Provincial Small Causes Courts Act, the revisionist has challenged the judgment dated 09.02.2012 passed by Additional District Judge, Court No. 3, Sultanpur.
Facts as submitted by learned counsel for revisionist is that the owner/landlord of the premises filed S.C.C. Suit No. 2 of 2009 (Abdul Majid Ansari Vs. District Supply Office and another) against the opposite parties for arrears of rent, ejectment and damages on the ground that he is landlord and the opposite party Nos. 1 and 2 are the tenant on a monthly rent of Rs. 1870/- besides Water Tax and House Tax. The building (premises is an old construction,governed by U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972. Despite the notice of demand and terminating the tenancy, arrears of Water Tax and House Tax with effect from 01.04.1999 have not been paid.
By means of the judgment dated 09.02.2012 the court below has dismissed the suit, operative portion is quoted as under:-
"प्रस्तुत लघुवाद निरस्त किया जाता है तथा वादी को यह निर्देशित किया जाता है की भुगतान होने की दशा में गृहकर व जलकर के मद में जमा धनराशि को अग्रिम बकाया किरायें में एडजस्ट करे अथवा भुगतान न होने की दशा में प्रतिवादिगण को वापस कर दिया जाय |"
Learned counsel for revisionist while challenging impugned order submits that the same is illegal and contrary to the provisions of Section 7 of U.P. Act No. 13 of 1972, in this regard he has placed reliance on the averment as made in para No. 7 of the plaint and argued that the finding given by the court below in respect to payment of water tax and house tax illegally, thus, material irregularity has been committed by the court below while deciding the SCC suit as it is liability of the tenant in the instant matter to pay the house tax and water tax subject to any contract in writing to the contrary and in the instant matter respondent No. 1 having failed to produce any such written contract absolving it of the liability to pay house tax and water tax, so the suit should not be dismissed by the court below as the burden and onus lays on the respondent no. 1 to prove that he is not liable to pay house tax and water tax, so the impugned judgment is liable to be set aside.
On the other hand, learned State counsel submits that there is illegality or infirmity in the impugned judgment passed by the court below as the monthly rent which is payable at the rate of Rs. 1870/- has been paid to the landlord as per the order dated 15.09.2006 passed by this Court, hence the impugned revision lacks merit and is liable to be dismissed.
I have heard learned counsel for parties and perused the record.
It is not disputed in the present case that the possession of the premises in question has been handed over by the tenant to the landlord/Abdul Majid, and the revisionist/landlord filed SCC suit in respect to premises in question initially on 01.05.1973 given on tenancy at monthly rent of Rs. 100/- per month to the District Supply office. On 29.03.1975, the same has enhanced to the tune of Rs. 125/-. Thereafter, in the proceeding under Section 21 (8) of the U.P. Act No. 13 of 1972, this Court has enhanced the rent from Rs. 125/- to Res. 1870/- per month which had been paid by the revisionist regularly.
Further, the court below while deciding the controversy involved in the present case has framed four issues and so far in respect to the payment of water tax and house tax, issue no. 2 has been framed which is quoted hereinbelow:-
"2. क्या प्रतिवादिगण के किराये में गृहकर व् जलकर शामिल है? यदि हाँ तो प्रभाव?"
On the basis of the facts and material on record, the court below has given a finding that in view of the earlier litigation by which the monthly rent has been enhanced to the tune of Rs. 1870/- the tenant has no liberty to pay water tax and house tax, accordingly dismissed the suit.
Thus, the sole question to be decided in the present case is whether the tenant is liable to water tax and house tax to the landlord as per Section 7 of the U.P. Act No. 13 of 1972, the relevant provisions of the same reads as under:-
"7. Liability to pay taxes. Subject to any contract in writing to the contrary but notwithstanding anything contained in Section 149 of the Uttar Pradesh Municipalities Act, 1916, 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, namely:
(a) the water tax ;
(b) twenty-five per cent of every such enhancement in house tax made after the commencement of this Act, or such portion thereof, as is not occasioned on account of the increase in the assessment of the building as a result of the enhancement of rent under the provisions of Section 5 ;
Provided that nothing in this section shall apply in relation to a tenant the rate of rent payable by whom for the time being (excluding any enhancement of rent under provisions of Section 5) does not exceed twenty-five rupees per month."
The bare reading of 7 of the U.P. Act No. 13 of 1972, the position which emerged that the intention of the legislation while framing it is that liability of tenant to pay water tax or the percentage of the house tax to the landlord is confined to the building or part thereof under his tenancy. That is to say if, the building under tenancy of the tenant is separately assessed to water tax and house tax, then the tenant will be responsible for payment of the entire amount of water tax assessed on it as well as 25% of each increase in the house ax made after the commencement of this Act. However, where the portion of the building under tenancy is not separately assessed to house tax or water tax, the tenant will be liable to pay proportionate amount of water tax or increase in the house tax. Where, the assessment of the building is increased as a consequence of increase in the rent under Section 5, the landlord will not be able to claim 25% of the increase in the house tax from the tenant under the present section.
Further, the Legislature has avoided subjecting the tenant to double enhancement of rent, viz., enhancement of rent in respect of an old building where, the tenancy was continuing from before this Act, as contemplated by Section 5, and again on revised assessment due to such enhancement of rent. And, if the house tax is enhanced as a result of increase in assessment of letting value of a building, on account of enhancement of rent payable under Section 5, then, the tenant would not be liable under this Section to pay 25% of the increase in the house tax.
In other words, the section comprehends the enhancement of house tax as a result of general assessment done by the Municipal Board or the Ngar Mahapalika or the Notified Area or Town Area after a regular period Municipal assessment is done every five years. Words "if any", go to suggest that it is only where a building is assessed to water tax or house tax, that the tenant would be liable under the present section to pay entire or proportionate part of the water tax, or 25% of the increase in house tax or proportion thereof, to the landlord. But where a building under tenancy is not so assessed to water tax or house tax, the tenant would not liable to pay the water tax or house tax.
Thus, where a portion of the building with respect to the remaining portion of the same building is increased, then the tenant will not be liable to pay any portion of the enhanced house tax as there would be none payable in respect of the building under his tenancy. Before any amount could be claimed as a house tax, it had to be shown that 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. In the absence of such proof of the claim regarding house tax will have to be rejected.
However, in the instant matter, the court below while deciding the suit in issue has not taken into consideration the provisions of Section 7 of the U.P. Act 13 of 1972 and passed the impugned judgment, so the same is liable to be set aside.
For the foregoing reasons, the revision is allowed, the order judgment dated 09.02.2012 passed by Additional District Judge, Court No. 3, Sultanpur is set aside and the matter is remanded to the Additional District Judge, Court No. 3, Sultanpur to decided expeditiously in accordance with law.
Date :- 16.12.2014 Ravi/