ORDER
H.L. Agrawal, J.
1. The defendants have moved this Court in revision against the order of the learned Munsif passed under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as “the Act”), by which they have been directed to deposit the arrears of rent at the rate of Rs. 60-00 per month, being the fair rent determined by the House Controller, as also the Municipal taxes of the premises in question. The question falling for determination before this Court is as to whether the direction to deposit the Municipal taxes also can be sustained in law.
2. The plaintiff-opposite party instituted a title suit against the petitioners for their eviction from a premises described in the plaint and also claimed a decree for arrears of rent. According to the case of the plaintiff, the petitioners had taken the building in question on a monthly rent of Rs. 60-00 according to the Hindi Calendar month, besides the Municipal taxes which, in terms of monthly payment, came to Rs. 11.50. In this way the total monthly rent payable by the defendants came to Rs. 71.50. In the plaint, arrears of rent were claimed since Magh 1377 Fasli upto Chait 1377 Fasli and the arrears of Municipal tax for the year 1969-70.
3. In the written statement, the defendants challenged the claim- of the arrears and the liability to pay the Municipal taxes.
4. On the 24th March 1971, the plaintiff filed an application under Section 11-A of the Act for directing the Defendants to deposit the arrears of rent as stated above and also the current and future rent. The petitioners filed an objection petition stating that they had already paid the rent for the months of 15th Chait to 15th Bhado 1377 Fasli, that is, for six months in advance at the request of the plaintiff. A set off was claimed by them for the said amount. The Second objection was that the fair rent of the premises had since been determined at Rs. 60.00 per month which was applicable for the period in question and, therefore, no Municipal tax, over and above the fair rent, could be realised from them. A further claim of set off for a sum of Rs. 930-00 paid towards the Municipal tax for the period 1-10-1961 to 31-3-1969 was also made.
5. The learned Munsif allowed the parties to adduce evidence and on a consideration of the same rejected the plea of advance payment of the house rent set up by the petitioners. With respect to
the second question, namely, the liability to pay the Municipal tax, apart from the fair rent as determined by the House Controller, relying upon a Bench decision of this Court in Sagarmal Agarwalla V. Smt. Annapurna Neogi, 1963 BLJR 334 = (AIR 1964 Pat 298), he directed the petitioners to deposit the monthly rent at the rate of Rs. 71-50 per month from the month of Mash 1377 Fasli and onwards and also directed them to deposit the current and future rents in accordance with the provisions of Section 11-A of the Act
6. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. was extensively amended by the Amending Act of 1955 (Act XVI of 1955). Prior to the amendment by the said Amending Act, the procedure prescribed for determination of the fair rent of a building, as laid down by Section 8 of the Act, was that the Controller had to determine fair rent having due regard to the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances at any time during the twelve months preceding the first day of November, 1941. Added to the same, the increased cost of repairs and also general increase in the cost of site and building construction was to -be taken into consideration. After the amendment by the Amending Act 16 of 1955, the provision for determination of fair rent has completely been changed and entirely a new provision has been substituted in place of the old provision in Section 8 of the Act. According to the present provision, the fair rent of a building, in respect of which the Municipal assessment has been made, for each month has to be one-tenth of the amount of such assessment. It has also been specifically stated in this very Section 8 that a landlord is not entitled to recover from a tenant, in addition to the amount, namely, the fair rent, any Municipal rates, taxes or cesses in respect of such building, except in case of certain contingencies contemplated by Section 8-A of the Act, such as increase in the Municipal rates, taxes or cesses, etc. In Section 8-A (2) of the Act, it has again been provided that where a tenant has to pay Municipal rates, taxes or cesses payable by a landlord because of the default of the landlord to meet those charges, the tenant shall be entitled to recover the same from the landlord by adjustment towards the rent payable by him or as if the amount paid by him were a debt due to him by the landlord.
7. Reading the provisions of the existing law, which admittedly apply to the facts of the present case, I have no doubt in my mind that the order of the
learned Munsif directing the petitioners to deposit the arrears of house rent at the rate of Rs. 71.50, which includes also the Municipal taxes, cannot be sustained in law. In Sagarmal Agarwalla’s case 1963 BLJR 334 = (AIR 1964 Pat 298) (supra), the plaintiff had instituted a suit for recovery of Rs. 7,000/- consisting of Rs. 5,550/- as house rent and Rs. 1,455.00 as Municipal taxes as arrears from September, 1949 to September, 1955. According to the plaintiff’s case in that suit, the tenant had agreed to pay, besides the monthly rental of Rs. 150.00, Municipal taxes. A contest was made on behalf of the defendant with respect to his liability to pay the Municipal taxes in addition to the monthly rent. Their Lordships while allowing the claim of the plaintiff in respect of the Municipal taxes, on reference to the provisions of the Act then in force, observed that as no provision of the Act applied to a contract for payment of Municipal taxes by a tenant to the landlord, it must be held that the tenant was liable to pay the Municipal taxes to the plaintiff in addition to the rent fixed by the Controller. This authority therefore has no application to the facts of the present case. I have already referred to the provisions of the Amending Act of 1955, and by the amendment specific provision has been made for payment of the Municipal rents and taxes etc. by the landlord himself. In fixing the fair rent of a building at] one-tenth of the amount of the Municipal assessment, the legislature has taken into consideration the burden to be borne by the landlord, namely, the payment of the Municipal rates and taxes as also the costs of annual repairs, etc. I am therefore, of the definite view that in view of the clear and unambiguous statutory provisions, the plaintiff is not entitled to get Municipal rates and taxes, in addition to the monthly rent of Rs. 60 determined by the Controller as the fair, rent of the building. I am supported in my views by a recent Bench decision of this Court in the case of Harihar Prasad v. Sashidhar Das (Civil Revn. No. 1545 of 1970 disposed of on 10-4-1973 (Pat)). In this case the aforesaid Sagarmal Agar-walla’s case, 1963 BLJR 334 = (AIR 1964 Pat 298) (supra) was also considered and a similar distinction was made. The learned Munsif, therefore, has committed an apparent error of jurisdiction in this case and has not correctly applied the decision of the Sagarmal Agarwalla’s case, 1963 BLJR 334 = (AIR 1964 Pat 298) (supra) to the facts of the present case.
8. I would, accordingly, allow this application in part and modify the order of the Court below to the extent that the petitioners are absolved from
the liability to pay the Municipal taxes. The petitioners shall deposit the arrears of rent from Magh 1377 Fasli to Shravana 1380 Fasli at the rate of Rs. 60-00 per month within a period of fifteen days from today and also deposit the current and future rents from the month of Bhado 1380 Fasli and onwards by the 15th of the each following month punctually. In default of the petitioners to carry out this direction, the consequences contemplated by Section 11-A of the Act will follow automatically.
9. It appears that at the time of admission of this application by this Court on the 9th December, 1971. the operation of the order under revision was stayed on the condition that the petitioners shall comply with the same by depositing a rent of Rs. 60.00 per month, instead of Rs. 71.50, as ordered by the Court below. If the petitioners have already been carrying out the above direction of this Court, then there is no need of any further deposit in terms of my direction towards the arrears of rent Be that as it may, if any deposit of rent has already been made, the petitioners will be entitled to adjustment of the same from the arrears that has to be deposited by them in pursuance of the present order,
10. In the circumstances of the present case. I shall direct the parties to bear their own costs of this Court