K.B. Asthana, C.J.
1. The petitioners are landlords of an accommodation in Kanpur city. Opposite parties 3 to 9 and 11 are its tenants. The owner of this accommodation formerly was one Mohd. Ishaq. Before the petitioners purchased the accommodation from Mohd. Ishaq, water connection of the accommodation had been cut off by the Corporation of Kanpur as excess water charges had not been paid. When the petitioners became the owners of the accommodation the opposite parties 3 to 9 and 11 were tenants and the water connection stood cut off. After the petitioners acquired the ownership of the accommodation the opposite parties Nos. 3 to 9 and 11, filed an application under Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act (U. P. Act III of 1947), for restoration of water connection as an amenity of which the tenants stood deprived of. The petitioners filed an objection to the effect that they were not responsible for cutting off the water connection and no action of the petitioners resulted in the deprivation of tenants from getting water from the tap installed in the accommodation. This objection did not prevail.
The Rent Control and Eviction Officer directed the petitioners as landlords to restore the water connection within specified time or face penal action as enjoined by the provisions of Law. The petitioners filed this petition under Article 226 of the Constitution seeking the quashing of the order passed by the Rent Control and Eviction Officer and for other necessary directions. It is alleged by the petitioners that they were not at all responsible for the action taken by the Corporation authorities in cutting off the water connection for default of payment of excess water charge, that when the water connection was cut off the petitioners were not the landlord of the accommodation and the excess water was consumed by the tenants themselves hence they were responsible to pay the price for it to the Corporation and the petitioners cannot be said to have cut off the water connection. According to the opposite parties the petitioners were responsible under the law to preserve the supply of water in the accommodation so that an essential amenity could be enjoyed by the tenants and if by any act of omission or commission, the Corporation authorities cut off the water connection in the eye of law it would be an act of the petitioners and they are bound to restore the water connection.
When the matter came up before the learned Single Judge, it appeared to him that the Supreme Court in Kanaiyalal Chandulal Monim v. Indumati T. Potdar (AIR 1958 SC 444) laid down a law which supported the contention that the provisions of the nature as are contained in Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act, being penal in nature, are to be strictly construed and their scope could not be extended by interpretation and the cutting off of water connection could not be said to be an act of the petitioner as he had on his own not cut off the connection but it was the result of the operation of law that the Municipal Corporation cut the water connection off. The attention of the learned Single Judge was, however, invited to a decision of a learned Single Judge of this Court in Sheo Narain Lal v. The District Magistrate, Allahabad, (1956 All LJ 23) in which it has been held that if the water connection was cut off by the Municipal Board on account of non-payment of excess water charge, even then the landlord would be bound to restore the water connection under Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act, The learned Single Judge, therefore, referred the matter to a Division Bench. This is how this writ petition has come before us.
2. It has not been disputed before us that water connection was cut off by the Corporation authorities long before the petitioners became its owners by purchasing the accommodation in question. It has further not been disputed that ever since the petitioners became the owners they and as also their predecessor had always been paying to the Corporation authorities all the municipal dues including the water tax. It is well known that under the scheme of our Municipal Laws water tax is charged for normal water supplied through the pipes end taps installed in any house or building within the municipal or corporation area. Any excess water consumed over and above the existing normal limit is also to be paid for and it is called excess water charges. It is not a regular tax. Very often houses and buildings are metered. The reading of the meter at regular intervals furnishes the volume of water consumed and then calculations are made by the authorities as to how much water in excess was consumed as compared to the normal prescribed limit. It cannot be denied that water is consumed by the occupant of the house or building.
In the instant case it is not disputed that the petitioners as landlord were not residing in any part of the accommodation in question. The whole of the accommodation was occupied by the tenants. It is the tenants, therefore, who actually consumed the excess water for their own benefit and enjoyment. The petitioners were, in no way, benefited by the excess water consumed by the tenants of the accommodation in question. Viewed in this light, we do not think it is necessary for us to finally determine the question of law that arises from the argument of the learned counsel for the petitioner. His argument was that there is nothing in the scheme of Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act 1947 and the corresponding Sections 26 and 27 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, which make a landlord responsible for cutting off any amenity or depriving the tenants of any amenity which is caused as a result of any act of another person though actually the landlord does not himself cut off the amenity or deprives a tenant of any amenity.
3. The learned counsel placed before us the relevant provision of Section 34 of the Bombay Rents Hotel and Lodging House Rates Control Act which was the subject-matter of consideration by the Supreme Court in Kanaiyalal v. Indumati (AIR 1958 SC 444) and drew our attention to the Explanation II to Section 24 of the said Act which is as follows :
'For the purposes of this section, withholding of essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut off by the local authority or any other competent authority.'
4. Learned counsel further drew our attention to the observation of the Supreme Court made in para. 6 of the report at page 447 wherein the learned Judges of the Supreme Court observed that had the Explanation not been enacted by the Legislature, it would have been difficult to compel a landlord by law to restore an essential supply or service the deprivation of which or cutting off of which was not directly done by the landlord himself. It is this observation, in paragraph 6 of the Supreme Court, which influenced the learned Single Judge in doubting the correctness of the decision in S. N. Lal v. The District Magistrate. Allahabad (1956 All LJ 23). As observed earlier, we do not think it is necessary to afford relief to the petitioners in the instant case to examine the question whether the provisions of Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act 1947, would be attracted to an act of omission of a landlord, the consequence of which is cutting off of water supply by the Corporation authorities. We assume for the purpose of this case that a landlord may come within the mischief of Section 7-D of the said Act, if as a result of omission to pay the dues of the local authorities, water connection is cut off from an accommodation.
5. It would be noticed that Section 7-D of the U. P. (Temporary) Control of Rent and Eviction Act 1947, opens in its first sub-section with the sentence--'No landlord shall without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenants (underlining ours).' In the instant case even if we hold a landlord responsible for cutting off of the water connection, he can yet escape the rigours of penal provisions of Section 7-D by showing that it was for just or sufficient cause that he did it. As we have noticed above, it is not the case that the water connection was cut off for want of payment of water tax. It was cut off for non-payment of excess water charges. It were the respondents who consumed the excess water. In equity, they were responsible to pay for it as they enjoyed, in excess, the water which normally could be available to them under the contract of tenancy. It is nobody's case that the contract of tenancy included, as one of its terms, that the landlord will pay for the excess water consumed by the tenants for their own benefit.
The landlord would be perfectly justified in asking the tenants to pay the excess water charges, no matter under the law the responsibility of payment of all the municipal dues relating to house or building situate in the municipal area or corporation area, also lies on the landlord. But there is nothing in law to prevent the tenant himself depositing the dues to escape from the rigours of law, for his own advantage and benefit. We think that non-payment of water tax and non-payment of extra water charges stand on different footing. Water tax include? normal supply of water and a landlord cannot just sit quiet, not pay the tax and bring about a situation that water connection is cut off by the municipal authorities. But the same would not be the case if excess water charge is not paid by him as a tenant himself or themselves can prevent the mischief of non-supply of water to them by depositing the excess water charge which, seen from equitable point of view, he or they should pay for they are the direct beneficiary.
A landlord cannot be expected to regulate and control any water supply through taps fitted or installed in the accommodation leased out by him to a tenant or tenants. A tenant cannot be permitted to consume as much water as he liked even to the extent of wasting it thus increasing the burden of the landlord and then turning upon him to pay for all what they have enjoyed on the threat of taking recourse to the machinery of law regulating control and letting out of accommodation. We think that the learned Single Judge in the case of S. N. Lal v. The District Magistrate, Allahabad (1956 All LJ 23) (supra) was not right in laying down the law that even if water connection is cut off on account of non-payment of excess water charge, the case would be covered by Section 7-D of the Act. In fact, we do not find any discussion in the judgment of the learned Single Judge on the aspect that for just and sufficient cause an amenity can be cut off, such consideration was not at all in the mind of the learned Judge.
In the view, we have taken, we hold that even if we assume that the omission on the part of the petitioner to deposit the excess water charges was the direct cause of cutting off water connection, it would be deemed that there was sufficient and just cause for it. Therefore, the petitioner cannot be ordered or directed under Section 7-D of the Act, to restore the water connection be the accommodation in question.
6. The other point raised by the learned counsel that supply of water by itself would not be an amenity within the meaning of Section 7-D need not be considered inasmuch as what we have held above is conclusive of the matter for affording necessary relief to the petitioners.
7. The result is that this petition is allowed, the impugned order of the Rent Control and Eviction Officer dated 22nd December 1970 and all other consequential directions in pursuance thereof, are quashed. The petitioners are entitled to costs.