T.U. Mehta, J.
1. In this revision application the only point which at present survives for consideration is whether the petitioner-tenant is liable to be evicted on the ground of non-payment of arrears of rent in form of education cess of Rs. 4.55 due for the period from 1-4-65 to 31-3-66. The opponents Nos. 1 and 2 have claimed eviction on this ground in Civil Suit No. 500/66 filed in the court of Civil Judge, Junior Division at Baroda. The learned trial Judge dismissed the suit but in appeal which was Civil Appeal No. 246/68, the learned Assistant Judge has decreed the plaintiff's suit on the ground that the education cess of Rs. 4.55 was payable by the tenant as rent and since he failed to make that payment within one months after the receipt of the notice making the demand, the case is covered by Clause (a) of Section 12(3) of the Rent Act and, therefore, the tenant has rendered himself liable to be evicted.
2. The facts of the case show that the notice making the demand of rent in arrears as found at Ex. 25 was given by the opponents Nos. 1 and 2 on 6.1.66. By this notice they made the following claim:
Rs. 160.00 Arrears of rent from 3-5-65 to 2-1-66.Rs. 8.00 For water and drainage charges.Rs. 10.00 Water charges from 3-7-64 to 2-5-65.Rs. 5.00 For rent for meter from 3-7-64 to 2-5-65.Rs. 45.00 Charges for electric consumption from3.7.64 to the dateof the notice i.e. 6.1.66.Rs. 4.55 education cess from 1.4.65 to 31-3-66Rs. 236.55 Total.
It is apparent that out of the demand thus made, only the amount of Rs. 160/-represented the rent due. Both the lower courts have found, as a matter of fact, that cart of the total demand of Rs. 236.55 only Rs. 191, 55, which included the education cess of Rs. 4.55 was payable by the tenant to the landlord.
3. Now this notice making demand of the above amount was received by the tenant on 8.1.66. It is an admitted position that before the expiry of one month from the date of receipt of this notice, the tenant made the money order of Rs. 187/- to the landlord, but the landlord refused to accept the same. This tender of the amount of Rs. 187/- by money order thus fell short of the amount of Rs. 191.55 as found payable only by Rs. 4.55 which amount represents the demand for education cess for the period from 1-4-65 to 31-3-66.
4. The learned Judge of the trial court took the view that education cess is neither rent and nor permitted increase and, therefore, non-payment of the same would not attract the provision of Clause (a) of Section 12(3) of the Rent Act. This view of the learned trial Judge is obviously wrong, because, Section 21 of the Gujarat Education Cess Act, 1962, specifically provides that any person entitled to recover any amount of education cess under Sections 19 and 20, shall have, for the recovery thereof, the same rights and remedies as he would have if such sum were rent payable to him by the person from whom he is entitled to receive the same. Section 19 of the Education Cess Act provides that the person liable to pay tax under the Act is entitled to recover the amount from the occupier of the land or building in question and Section 20 provides for the apportionment of liability for tax when land or buildings are let and rateable value exceeds amount of rent. Therefore, if a landlord who is primarily liable to pay the education cess, as provided by Section 14 of the Education Cess Act has to pay the education cess, he can under Section 21 recover the said amount as if it were rent payable to him. It would, therefore, follow that education cess can be recovered by a landlord as if it were rent.
5. However, this aspect of the matter does not help the landlord's case because when the education cess of Rs. 4.55 was demanded by the notice Ex. 25 which is dated 6th January, 1966, the same was not due at all. Here it should be noted that in the notice Ex. 25 the landlords have specifically mentioned that the amount of Rs. 4.55 represented the cess for the period running from 1 -4-65 to 31-3-66. The notice was given in the month of January and, therefore, it is obvious that on the date of the notice, this cess which was for the year 65-66 had not become due at all. Shri Patel, who appeared on behalf of the landlords however, contended that if the reference is made to the plaint, it will be found that therein it is not clarified upto what period this amount of cess was due because the plaint mentions that the cess of Rs. 4.55 was due only from 1-4-65. According to Shri Patel, the defendant has not made any denial of this fact either in his written statement or in his evidence and, therefore, the court should hold that this amount of Rs. 4.55 was due even on the date of the notice. This argument is obviously unacceptable because on the landlords' own admission as contained in their notice Ex. 25 the amount of Rs. 4.55 was the cess for the assessment year 1965-66 ending on 31st March, 1956. It, therefore, follows that the demand of Rs. 4.55 was not justified on the date of the notice. If the same was not justified on the date of the notice, and if the cess has become due at a subsequent period that would not help the landlords in bringing the case within the preview of Clause (a) of Section 12(3) of the Rent Act.
6. Moreover, an important aspect remains to be considered in this connection is that education cess and other permitted increases contemplated by Section 10 onwards can be demanded by the landlord only after they are paid to the local authority concerned. This becomes clear by reference to Section 10 to Section 10E which speak of those permitted increases which are actually 'paid' by the landlord. In this case it is obvious that the education cess of Rs. 4.55 had not fallen due on the date of the notice Ex. 25 and, therefore, not paid by the landlord to the local authority. If that is so, we find another reason why the landlords' demand for this amount on the date of the notice Ex. 25 was not justified.
7. If the same was not justified, the tenant was not obliged to make the payment thereof within one month from the date of the notice making the demand, and if that be so, it cannot be said that the case falls under Clause (a) of Section 12(3) of the Rent Act. It also cannot be said that the tenant has rendered himself liable to be evicted for non-payment of arrears of rent.
Under these circumstances, I find that this revision application should succeed. It is therefore allowed and the decree for eviction passed by the lower appellate court is set aside The rule is made absolute with costs.