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Bablu Alias Jagdishsingh Vs. Ladharam M. Mirchandani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2250 of 1974
Judge
Reported in(1978)80BOMLR310
AppellantBablu Alias Jagdishsingh
RespondentLadharam M. Mirchandani
DispositionAppeal dismissed
Excerpt:
.....the case of a tenant in arrears of payment of education cess covered by section 12(3)(a) of the bombay rent act--constitution of india, article 227--limits of jurisdiction of high court.;education cess which a landlord is entitled to recover from the tenant though rent within the meaning of section 12(3)(a), is not payable by the month as required by the said provision. when education cess is claimed in addition to contractual or standard rent it constitutes a permitted increase under the bombay bents, hotel and lodging house rates control act, 1947.;harbanslal v. prabhudas & fascinate v. w.e. works (1976) 78 bom. l.r. 213 s.c., referred to.;muktabai gangadhar v. muktabai laxman (1969) 71 bom. l.r. 752, followed.;the education cess therefore which is recoverable by the landlord..........the suit was filed on the grounds mentioned in section 12(5)(a) and section 13(7)(g) of the bombay rents, hotel and lodging house rates control act, 1947, hereinafter referred to as 'the bombay rent act'. the defendant resisted the suit by denying in the first place that the plaintiffs or either of them required the suit premises reasonably or bona fide for their own use and occupation. he also contended that he was not in arrears of permitted increases because he sought credit for the amount which he had paid on behalf of the landlord to the municipality towards water charges. if credit were given for this amount, no arrears even on account of permitted increases would be due. he also raised a dispute regarding the amount of standard rent in his written-statement which, however,.....
Judgment:

Jahagirdar, J.

1. The concurrent refusal of two Courts below to decree the landlord's suit for possession is challenged by this petition under Article 227 of the Constitution. The petitioner, who is a minor, has filed this petition through his guardian and in the trial Court he was plaintiff No. 1. The suit itself had been filed by two plaintiffs of whom the present petitioner was plaintiff No. 1 and his father's sister one Pushpakaur Chatursing Shikh was the second plaintiff. Both of them together had purchased House No. 842 situated at Dastur Meher Road in Poona. This purchase was made on August 19, 1968. In the said house the respondent was residing in two rooms, hereinafter referred to as 'the suit premises', on a monthly rent of Rs. 20. By a notice dated March 24, 1970 the tenancy of the respondent was terminated by the petitioner and the other joint owner with effect from the end of April 1970. The immediate provocation for the issuance of the notice to the respondent was arrears of rent of the suit premises. It is admitted that after the suit notice was issued, the respondent paid all the arrears of rent due from him. It was the case of the plaintiffs, however, that the respondent did not pay arrears of education cess that were due from him at least from 1968.

2. On June 15, 1970 a suit, being Civil Suit No. 1750 of 1970, was filed by the petitioner and the other joint owner, hereinafter referred to as 'the plaintiffs' against the respondent, hereinafter referred to as 'the defendant' for possession of the suit premises on various grounds. In this judgment, however, reference will be made to only two of the grounds viz. that the defendant was in arrears of permitted increases for more than six months and further that the plaintiffs or either of them required the suit premises reasonably and bona fide for their own use and occupation. Broadly speaking, therefore, the suit was filed on the grounds mentioned in Section 12(5)(a) and Section 13(7)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as 'the Bombay Rent Act'. The defendant resisted the suit by denying in the first place that the plaintiffs or either of them required the suit premises reasonably or bona fide for their own use and occupation. He also contended that he was not in arrears of permitted increases because he sought credit for the amount which he had paid on behalf of the landlord to the Municipality towards water charges. If credit were given for this amount, no arrears even on account of permitted increases would be due. He also raised a dispute regarding the amount of standard rent in his written-statement which, however, it must be noted, was filed long after the expiry of one month from the issuance of the notice dated March 24, 1970. Bearing in mind the recent judgment of the Supreme Court in Harbanslal v. Prabhudas & Fascinate v. W.E. Works (1976) 78 Bom. L.R. 213., it must be said that by raising the dispute about the standard rent for the first time in the written-statement which was only long after the expiry of one month of the issuance of the notice, the case would not cease to be covered by the provisions of Section 12(5)(a) of the Bombay Rent Act. The trial Court, however, proceeded on the basis that it was covered by Section 12(5)(b) and since the deposit of the arrears of rent due from the tenant had been made in the Court as per Section 12(5)(b) of the Bombay Rent Act, decree for possession on the ground of arrears of rent was refused. In view of the recent judgment of the Supreme Court in Harbanslal's case, such deposit may not take the case out of the mischief of Section 12(5)(a) of the Bombay Rent Act. However for reasons to be indicated later in this judgment, this case is still governed by the provisions of Section 12(5)(b). On the question of bona fide and reasonable requirement, the trial Court negatived the case of the plaintiffs. With these findings, the trial Court naturally dismissed the plaintiffs' suit for possession. On the defendant's contention regarding the standard rent, the trial Court fixed the standard rent at Rs. 20 p.m. which was the agreed rent. This was done by its judgment and order dated April 25, 1973.

3. It should, however, be mentioned that during the pendency of the suit plaintiff No. 2, the aunt of plaintiff No. 1 and the other joint owner of the property, expired arid the suit was proceeded with by original plaintiff No. 1 as he had by that time become the sole owner of the suit property.

4. The plaintiff preferred an appeal being Civil Appeal No. 403 of 1973 against the judgment of the trial Court and the appeal also came to be dismissed by the learned Extra Assistant Judge of Poona by his judgment and order dated April 26, 1974. The learned appellate Judge concurred with the findings of the trial Court on both the issues.

5. Aggrieved by this order of the appellate Judge, the petitioner-plaintiff has approached this Court under Article 227 of the Constitution of India. Mr. Agarwal, the learned advocate, appearing in support of the petition, predictably relied upon the judgment of the Supreme Court in Harbanslal's case and contended that since the defendant had not raised the dispute about the standard rent by making an application within one month under Section 11 of the Bombay Rent Act and that since he had not paid arrears due on account of permitted increases within one month after the notice, the provisions of Section 12(3)(a) were immediately attracted to the facts of the case and it was not open to the Court below not to pass a decree for eviction. As already indicated earlier if this were the only point involved, a decree for eviction ought to follow. But Mr. Rairkar, appearing in opposition to the petition, has pointed out that this is not a case which will be governed by the provisions of Section 12(5)(a) of the Bombay Rent Act because the rent which is alleged to be in arrears is not payable by the month. Admittedly, what was in arrears for more than six months at the time of the suit was not standard rent but education cess which is now held to be permitted increases under the Bombay Rent Act.

6. Mr. Rairkar took me through the relevant provisions of the Maharashtra Education (Cess) Act, 1962, and pointed out that education cess which a landlord is entitled to recover from the tenant, though rent within the meaning of Section 2(5)(a), is not payable by the month as required by the said provision. Before considering the relevant provisions of the Maharashtra Education (Cess) Act, 1962, it would be proper to make a reference to a judgment of this Court in Muktabai Gangadhar v. Muktabai Laxman : (1969)71BOMLR752 , wherein it has been held that education cess payable by an occupant by virtue of Section 13 of the Maharashtra Education (Cess) Act, 1962, is part of the 'rent' within the meaning of that term as used in the Bombay Rent Act and when claimed in addition to the contractual or standard rent constitutes a 'permitted increase' as defined in Section 5(7) of the Bombay Rent Act. The facts of that case disclose that there was a contention that education cess was not rent at all within the meaning of that term as used in the Bombay Rent Act. Since there was no mention of the term 'education cess' in the Bombay Rent Act itself, it appears to have been contended that it was not a permitted increase under the Bombay Rent Act. The judgment of Bal J. clearly held that education cess which is recoverable by virtue of the provisions contained in the Maharashtra Education (Cess) Act, 1962, is part of the rent and also that because of the same provisions it is a permitted increase under the Bombay Rent Act. With respect, this judgment which has thoroughly and exhaustively considered both the Acts viz. the Bombay Rent Act and Education (Cess) Act is binding upon me and I must proceed on the basis that education cess which is recoverable by the landlord is a part of the rent and when it is claimed in addition to contractual or standard rent constitutes a permitted increase under the Bombay Rent Act.

7. The provisions of Section 12(5)(a) of the Bombay Rent Act must be reproduced for understanding the point involved in this petition. It runs as follows:

Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2); the Court shall pass a decree for eviction in any such suit for recovery of possession.

8. The above provisions clearly show that if the rent, which includes education cess, is payable by the month and there is no dispute regarding the amount of the education cess, which is a permitted increase, then the tenant must face a decree for eviction if he has neglected to make payment thereof within one month after the notice given under Sub-section (2) of Section 12. If, however, education cess is not payable by the month, then the provisions of Section 12(5)(a) of the Bombay Rent Act will not be applicable at all.

9. In order to find out whether education cess which is part of the rent as held by Bal J. in the case referred to above, is payable by the month I will have to have a fresh look at the provisions of the Maharashtra Education (Cess) Act, 1962. The question whether education cess is payable by the month or not did not arise on the facts of the case before Bal J. and, therefore, that question has not been answered by him. Section 4 of the Education (Cess) Act provides for the levy and collection of education cess with effect from the dates mentioned therein. There are certain amendments made to Section 4 of the Education (Cess) Act but those amendments themselves are not of any significance so far as this petition is concerned. Section 5 of the Act provides for the mode of assessing education cess in certain cases. Section 6 of the Act provides that the proceeds of the education cess and penalties recovered under the Act are required to be credited to the Consolidated Fund of the State. The provisions of chap. III of the Act, however, are important for our purposes. Section 7 refers to exemption of certain lands and buildings from payment of education cess. Under the provisions of Section 8 the primary responsibility for the tax on buildings is on the actual occupier. Where, however, the building is let, the liability is upon the lessor. It is clear, therefore, that if there is a tenant in the building, the primary responsibility for the payment of the tax will be on the landlord.

10. Under Section 13 of the Act if any person from whom the tax is leviable pays the tax in respect of any land or building he shall, if he himself is not in occupation, be entitled to receive the amount of the tax from the person in actual occupation of the building for the period for which that tax has been paid. In other words, the landlord is entitled to recover the amount of tax paid by him from the tenant who is in actual possession of such land or building. The material words in Sub-section (1) of Section 13 are to the effect that the person paying the tax will be entitled to receive the amount of the tax from the person occupying the land or building if he has paid. Sub-section (2) of Section 13 provides for a case where the building consists of more than one tenement and the tax in respect of that building is paid by the landlord. In such a case, if the tax in respect of the building is paid by the landlord, he is allowed to recover the amount of the tax pro rata from the occupiers of the tenements. In either case, (under Sub-section (7) or (2) of Section 13) the landlord is entitled to recover education cess paid by him from the tenants if he has paid the same to the Government under Section 8 of the Act. It may also be further noted that this cess is payable by the persons named in Section 8 annually. Prima facie, therefore, it appears that if the landlord has paid the education cess which is payable annually he may recover the amount from the tenant annually or once in a year after he has paid the education cess to the Government. The education cess, therefore, which is recoverable by the landlord pursuant to the provision contained in the Education (Cess) Act is obviously not a payment which is to be made monthly. Since it is settled that ' education cess is part of the rent and since after examination of the relevant provisions of the Education (Cess) Act it is clear that it is not payable by the month it follows that where a tenant is in arrears of the education cess payable by him to the landlord, the case will not be one that will be covered by the provisions of Section 12(3)(a) of the Bombay Rent Act. It may also be mentioned 'that Section 15 of the Cess Act specifically provides that any person entitled to receive any sum under Section 13 or 14 shall have for further recovery same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same. This was one of the grounds on which it can be held that education cess recoverable by the landlord from the tenant is part of the rent, as indeed it has been held by Bal J. in the judgment referred to earlier.

11. Similar view has been taken by the division Bench of the Gujarat High Court in Dayalal Gangaram v. Bhimani Bhupat Rai Chunila [1977] 1 R.C.J. 649. Considerable part of that judgment is devoted to the discussion as to whether education cess was rent. On this question, however, since there is a binding decision of this Court I have not found it necessary to discuss that question. Once it is held, as indeed I am bound to hold, that education cess is part of the rent within the meaning of that term used in the Bombay Rent Act and once it is found as I have found above that it is not payable by the month, then the present case is clearly taken out of the provisions of Section 12(3)(a) of the Bombay Rent Act. It would then necessarily be governed by the provisions of Section 12(5)(b). As the trial Court pointed out in para. 15 of its judgment, the defendant had deposited in the Court all the arrears then due. He was therefore entitled to the protection given by Section 12(5)(b) of the Bombay Rent Act and the orders of the Courts below refusing to pass a decree for eviction on the ground of arrears of rent must therefore be confirmed, though on different grounds.

12. The question as to whether the provisions of Section 12(3)(a) have become redundant in the case of arrears of education cess for over six months, must also be considered. The Gujarat High Court has pointed out in the judgment referred to above that in a given case the landlord may enter into an agreement with the tenant for the payment of the education cess by month and in such a case the provisions of Section 12(5)(a) will conceivably be attracted. With respect I agree with that view.

13. Mr. Agarwal then proceeded to criticise the judgments of the two Courts below in so far as they relate to the question of reasonable and bona fide requirement of the landlord. Mr. Agarwal contended that the findings of the Courts below and in particular the finding of the learned appellate Judge on this question is inconsistent with and contrary to the evidence on record and in that sense it is perverse. Mr. Agarwal invited my attention to certain parts of the evidence led in the trial Court and on the basis of that evidence he proceeded to say that if the learned appellate Judge says that no reliable evidence had been brought on record to show that the father of the plaintiff was really occupying the premises from which he is under the pressure to be evicted, it could not but be said that this finding is perverse. If the finding of the two Courts below were based only on this factor I would have found some justification in Mr. Agarwal's criticism of the judgments of the two Courts below. From para. 15 of the judgment of the appeal Court I notice that the appellate Judge has taken into consideration several factors including the probabilities of the case and after, doing this has concurred with the view of the trial Court that the suit premises were not required reasonably or bona fide by the plaintiff. In the face of this concurrent finding on a question of fact, it would be inappropriate for me to look into the evidence and see whether the finding recorded by the Court below is correct. It has been held by the Supreme Court in Babhutmal v. Laxmibai : AIR1975SC1297 , that High Court would be going beyond the limits of its jurisdiction under Article 227 in interfering with the findings of fact reached by district Court. Error of fact even though apparent on the face of record, is not subject to correction by High Court in exercise of its jurisdiction under Article 227.

14. The petition, therefore, must fail. The rule is discharged with no order as to costs.


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