1. Mrs. K. Kamala, the tenant-respondent herein filed an application, HRC No. 2067 of 1969, out of which this civil revision petition arises against Mrs. Sakuntala Rajappa, the petitioner herein, under Section 8(5) of the Madras Buildings (Lease and Rent Control) Act (18 of 1960), before the Rent Controller for permission for depositing into the tribunal the rents for two months at the rate of Rs. 175 per month in respect of the premises demised viz, the building bearing door No. 164-C Llyods Road, Madras; and it was contended by the respondent that the monthly rental was Rs. 175 only, that the electricity and water charges, which she had agreed to bear separately, did not form part of the monthly rent stipulated, that as the petitioner would not give regular supply of water from 1-5-1969, the respondent had made alternative arrangements and was not liable to pay water charges any more and that, as the petitioner refused to receive the rent of Rs. 175, the respondent was entitled to deposit the monthly rent into the tribunal.
2. The application for deposit of rents was resisted by the petitioner substantially on two grounds. The first is that the monthly rent was Rs. 275, Rs. 175 for rent for the premises and Rs. 100 for amenities. As the total rent was over Rs. 250 per month, the premises was exempt from the operation of the Rent Control Act and as such the Rent Controller has no jurisdiction to entertain the application by virtue of the provisions of Section 30(ii) of the Rent Control Act. The amenities agreed to be provided under the agreement of lease included not only water but also water closet, wash basin, supercem coating, mosaic flooring, compound wall, extra electric fans, power plugs, shower etc. In the second place it is contended that, as the building had been constructed after the commencement of the Act, in 1964, the Rent Controller is barred from deciding the matter under Section 30(i) of the Act.
3. The Rent Controller upheld the petitioner's contention that the building was constructed after 1960, that the monthly rent was Rs. 275 and that the building was therefore exempted from the operation of the Act. The Appellate authority took a different view on both the points and accordingly allowed the application filed by the respondent.
4. The two contentions which are urged before the tribunals below are the subject-matter of this revision. On the question whether the building was constructed after the year 1960, it appears to me clear that the petitioner has no case whatsoever. Section 30 of the Act provides that nothing contained in the Act shall apply to any building the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned. The Section implies that the construction must have been completed after the date of the commencement of the Act and that the construction must be notified to the local authority concerned. The petitioner's husband R.W.1 has deposed that the building was constructed after 1960 and relies on Ex. R. 3, the sanctioned plan and Ex.R.4, a permit issued by the Corporation of Madras on 30-7-1964 to put up the construction envisaged by the sanctioned plan 29-11-1962 and purports to show the proposed additions and alterations in premises No. 164 Lloyds Road, Royapettah. The building let out to the respondent-tenant, on the other hand, bear door No.164-C ; and it is not clear from the evidence on record that the building No.164--C which has been demised to the respondent is the addition proposed by the plan Ex.R.3. The plan admittedly refers to the bigger premises bearing No.164 Lloyds Road and shows the constructions which are proposed to be retained and the additions and alterations to be made as indicated by the read line. Section 30(i) contemplates the construction of a new building, and it is not clear from the evidence that the premises demised in favor of the respondent was a new building constructed after the year 1960. R.W.1, the petitioner's husband has no doubt asserted that the building was constructed after the year 1960 ; but it is not clear from his evidence, as I have already indicated, that the additions proposed to be made under the plan comprised the entire building leased out to the respondent.
5. Admittedly, there is no documentary evidence to show that the construction was notified to the Corporation ; but it is not disputed that the building had been taxed and it can therefore be legitimately presumed that the taxation has been made only after the construction was brought to the notice of the Corporation.
6. In view, however, of the fact that it is not satisfactorily established that the premises leased to the respondent was constructed after the year 1960, it is obvious that the exemption sought for cannot be based upon the provisions of Section 30(i) of the Act.
7. The second question is not free from difficulty. The terms of the tenancy are admittedly embodied in a deed Ex.R.1 dated 19-7-1968 and the tenancy is for a period of 11 months and the relevant terms thereof are:(1) The rent of the building per calendar month is Rs. 175 and for amenities Rs. 100, in all Rs. 275 per month.(2) The tenant will hold herself responsible for the electric fittings, fans, sanitary fittings, wash basins etc.(3) Electricity charges have to be borne by tenants as per M.E.S. Bill.(4) A sum of Rs.825 has been paid by way of advance and must be returned when vacant possession of the building is handed over at the expiry of eleven months. (5) The rent is payable on or before the 5th of the succeeding calendar month.
8. In the reply notice Ex.P.4 dated 26-6-1969, admittedly sent by the petitioner herein it is stated that the rent for the building was fixed at Rs.175 per month and that the respondent-tenant agreed to pay a sum of Rs. 100 per month for the amenities viz, electric fan, wash basin, water and other amenities. P.W.1 the respondents husband has sworn that the respondent was paying Rs.175 as rent and Rs.100 for water facilities and that the respondent did not pay Rs.275 as rent per month and has filed Ex.P.1 series rent receipts issued by the petitioner to show that for the months of September, November and December 1968 and January February, March and April, 1969 a sum of Rs.175 p.m had been paid. For the month of March, 1969, a separate receipt for Rs.100 has been issued by the respondent, evidently for amenities, though under a receipt styled rent bill.
9. R.W.1, the petitioner's husband has shown that the monthly rent was Rs.275 as per the rental agreement Ex.1 and that three months advance of rent.
10. Section 30(ii) exempts any residential or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds two hundred and fifty rupees.
11. The petitioner contends that the monthly rent for the building let out to the respondent-tenant is the sum of Rs. 275 and that the provisions of the Rent Control Act of 1960 will not therefore apply to the tenancy between the petitioner and the respondent. On behalf of the respondent it is contended that the monthly rent for the building is only Rs.175 and that the Act will therefore apply to the tenancy.
12. Section 2(2) of the Rent Control Act, 1960, defines 'building' as any building or hut or part of a building to be let separately for residential or non-residential purpose and includes--(a)the garden, grounds and out-houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut and (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house.
13. On behalf of the petitioner reliance is placed on the decision of the Supreme Court in Karnani Properties Ltd. v. Miss Augustine, : 1SCR20 a case under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. In that case a flat consisting of a single room, a bath and a covered verandah was let at a monthly rent of Rs. 100; and the tenant was entitled to the use of a number of fans, plug points, towel racks, a basin, a commode and a glass shelf; and the landlord also was bound to supply electric energy for the use by the tenant of lamps, fans, radio, and refrigerators and also to supply service of night guards, sweepers, liftmen etc, apart from repairing the electric installations, and sanitary fittings; and he has to bear the owner's and occupier's shares of Municipal taxes. In other words, the monthly rent of Rs. 100, according to the agreement, included the hire charges of electric fans, the electric charges for the use of fans, lights etc. It was contended that as the tenancy comprised not only buildings and structures and permanent fixtures but also the supply of electric power, other amenities and services, the Bengal Act was inapplicable to the tenancy. The Supreme Court has laid down, approving of the decision of a Division Bench of the Calcutta High Court in Residence Ltd. v. Surendra Mohan Banerjee, : AIR1951Cal126 , that the Bengal Rent Control Act applied to such tenancies and has made the following observations--
'Under this head the question reduces itself to this: whether if by a stipulation between the landlord and the tenant the landlord agrees to provide for additional amenities like electric power for consumption and such other facilities, the case is taken out of the operation of the Act. The Act is intended 'to make better provision for the control of rent of premises.' It has defined 'premises' in very wide terms, as pointed out above. Hence it is difficult, if not impossible, to accept the contention that the Legislature intended the provisions of the Act to have a limited application depending upon the terms which an astute landlord may be able to impose upon his tenants. In order fully to give effect to the provisions of the statute, the Court has to give them the widest application possible within the terms of the statute. Having those considerations in view, we do not think that the supply of the amenities aforesaid would make any difference to the application of the Act to the premises in question.'
The second contention urged before the Supreme Court was that Section 9 of that Act (Bengal Act) dealing with the fixation of standard rent did not in terms contemplate the enhancement or reduction of rent according to the rights for electric current and Government duty thereon were enhanced or reduced. But the Supreme Court, while conceding that none of the clauses(a) to (f) of Section 9 of the Bengal Act has any reference to these considerations, relied upon the residuary clause, which is the effect that, where no provisions of the Act for fixing standard rent apply to any premises, by determining the standard rent at a rate which is fair and reasonable. Following the English decision Property Holding Co. Ltd. v. Clark, (1948) 1 KB 630 and the case of Alliance Property Co. Ltd. v. Shaffer, (1948) 2 KB 464, their Lordships have observed that 'the term 'rent' has not been defined in the Act, that it must hence be taken to have been used in its ordinary dictionary meaning, that the term 'rent' is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is therefore irresistible that all that is included in the term 'rent' is within the purview of the Act and that the Rent Controller and other authorities had the power to control the same.
They have also overruled the decision of the Calcutta High Court in : AIR1951Cal126 , which is to the effect that amounts paid as rent for the flat does not include any payment for the additional facilities and conveniences provided by the landlord for the use of the tenant and their Lordships approved of the decision of the Appellate authority in that case which applied the provisions of clause(g) of Section 9 of the Act for determining the fair and reasonable rent after taking into consideration the fact that electric charges as also Government duty on consumption of electric power had been increased.
14. Reliance is placed by the learned counsel for the petitioner upon the decision of a Division Bench of this Court in Ramachandra v. Rayal and Co., : (1969)2MLJ8 . In that case, the tenant was paying an annual rent of Rs. 3375, an annual contribution of Rs. 225 towards repairs and a further annual contribution of Rs. 220 towards taxes; and the dispute related only to the extra municipal tax of Rs. 1212 which was agreed to be paid by the tenant as a result of an oral agreement subsequent to the original registered agreement of lease. It was held by the Division Bench consisting of Anantanarayanan, C. J. and Natesan, J. that the additional payment of annual extra municipal tax of Rs. 1212 agreed subsequent to the demise cannot be deemed to be part of the rent for two reasons :--
(1) that the additional payment cannot be said to be consideration for the right of enjoyment of the premises; and (2) that as the original tenancy was by a registered instrument, it is not open to the tenant during the currency of the tenancy to plead any variation of rent which is not evidenced by another registered instrument. The actual decision is not relevant for our case; but the observations made by the learned Judges on the meaning of rent under the Madras Buildings (Lease and Rent Control) Act, 1960, and the scope of Section 30 of the Act are quite relevant for our purposes. The relevant observations are these:
'The word 'rent' is nowhere defined in the Rent Act and it is not questioned that in the expression 'monthly rent' found in Section 30 of the Act, the word 'rent' is not used in any special sense.
As it is the amount of rent paid, under Section 30 that brings a tenancy within the purview of the Act or takes it out of its operation, in the absence of any specific meaning, being assigned to it, the word 'rent' must be taken to be used as it is ordinarily understood with reference to contractual tenancies.
'Rent ' is the whole amount agreed to be paid by a tenant to his landlord in respect of his enjoyment of what is let to him, whether described as rent or not. Additional payments made for such things as fitments and payments in respect of rates where the landlord is rated, all agreed to be paid by the tenant as consideration for the tenancy, will be rent. But the essential features of rent in the absence of any special definition are: it must be in consideration of the letting.
Rent under Section 30 of the Rent Act is a payment which the tenant is bound to make to his landlord for the demise.'
15. The judgment proceeds on the basis that Municipal taxes agreed to be paid by the tenet in that case were part of the rent and the only dispute was whether the additional municipal tax agreed to be paid by the tenant under the subsequent agreement would form part of the rent or not. The learned Judges have observed that Srinivasan,J has proceeded on the basis that, if there is a sum of money, it may be rates, which a tenant agrees to pay as consideration for the tenancy, it is rent and that no exception was taken before them to this proposition as one of Law.
16. The learned counsel for the respondent contends that the decision of the Supreme Court in Karnani Properties case, : 1SCR20 and of this court in : (1969)2MLJ8 cited above are distinguishable on facts and must be confined to the facts of the case dealt with and must not be applied to the facts of the present case. It is contended that the definition of 'rent' under the English Rent Restrictions Act relied on by the Supreme Court must be confined to cases arising under the English Rent Restrictions Acts, in view of the peculiar features of those Acts, that the adoption by the Supreme Court of the definition of 'rent' by the English Court was not justified while interpreting the term as found in the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, that the definition of rent by the Supreme Court must, in any event, be deemed to be based upon the peculiar provisions contained in the West Bengal Premises Rent Control (Temporary Provisions) Act,1950 and cannot be applied to cases under the Madras Rent Control Act the provisions of which are dissimilar and that the observations relating to 'rent' made by this court in : (1969)2MLJ8 are opposed to the provisions of Section 30 of the Madras Rent Control Act, 1960 and must in any event be deemed obiter and will not govern the facts of this case. The learned counsel pleads that the term 'rent' contemplated by Section 30 of the Madras Rent Control Act must be taken to be the compensation payable under the contract of tenancy only for the building or part of the same as defined under Section 2(2) of the Madras Act of 1960 (i.e., the building and any furniture supplied by the landlord for use in such building) and cannot therefore include the sum payable under the tenancy for the provision of amenities like water, sanitary fittings, electric fans, wash basins etc.
17. Speaking for myself I am unable to brush aside the contention of learned counsel for the respondent as frivolous in nature or without any substance whatsoever. The Supreme Court in the case cited above has approved of the meaning of the word 'rent' as defined by the King's Bench in (1948) 1KB 630. The learned Judges who decided that English case have accepted the dictum of Younger, L.J in Wilkes v. Goodwin, (1923) 2 KB 86 , which is to the effect that the word rent in the exception to Section 12(2) of the Rent Restriction Act 1920 meant not rent in the strict sense but the total payment under the Instrument of letting and that the exception assumed the rent so called may include for example board, payment of which is not rent. The Rent Restriction Act of the year 1920 by Section 12(2) which defined ' house' brought within the Act with reference to rent or ratable value by proviso(1) excluded from the Act 'houses bonafide let at a rent which includes payments in respect of board, attendance or use of furniture; and the present dispute 10 which was introduced by the second Act of 1923 provided that the inclusion of the use of furniture or of attendance shall not cause the house to be deemed to be bona fide let at a rent which includes either unless the amount forms a substantial part of the whose 'rent'. Having regard to these provisions the learned Judges upheld the view of Younger, L.J referred to above and held that the word 'rent' used in Section 12(1)(a) of the Act of 1920 must be given the same meaning as the word 'rent' found in Section 12(2). of the Act, Section 12(1)(a) of the Act of 1920 was enacted with a view to fix the rent; and the learned Judges have taken the view that the legislature could not have intended that the word ' rent' used in Section 12(1)(a) was intended to have a different meaning from the word 'rent' used in the provision to Section 12(2) of the Act.
18. Thus it is seen that, in defining the word 'rent' the English Courts were influenced by the peculiar provisions found in the exception and the general notion which prevails in English about the 'rent' and the learned counsel for the respondent therefore contends that the definition of the word 'rent' as accepted by the English courts must be confined to cases which arise under the English Rent Restrictions Act and cannot be extended to cases under the Madras Rent control Act where 'building' has been specifically defined as building or hut and furniture supplied by the landlord. He points out that Section 30 refers to monthly rent paid by the tenant in respect of the building or part and contends, by reference to this provisions, that monthly rent contemplated by Section 10 must be the rent payable by the tenant for the use of the building and furniture demised under the lease and that the compensation paid by the tenant under the contract for the use of any other amenity whether referred to as rent or not, must not be treated as part of the rent for the purposes of Section 30 of the Act.
19. Pursuing the same line of argument, the learned counsel contends that the Supreme Court ought to have held that the rent under the Bengal Rent Control Act meant only the compensation payable for the use of the building furniture and fitments and that the adoption by that Court of the wide meaning of the word 'rent' given by the English Court was not warranted by the provision of the Bengal Rent Control Act. 'Premises' has been defined by Section 2, Sub-clause(8) of the West Bengal Premises Rent Control Act, 1950 as any building or part of a building or any hut or part of a hut let separately and includes(a) the gardens, grounds and out-house (if any) appertaining to such building or part of a building or hut or part of a hut, and (b) any furniture supplied or any fittings affixed by the landlord for the use of the tenant in such a building or part of a building or hut or part of a hut. According to the learned counsel, there was no justification for adopting the so called popular meaning of the word 'rent' merely because the word is not specifically defined in the Act, when the West Bengal Rent Control legislation had chosen to define the premises in precise terms.
20. The decision of the Division Bench of this court in Ramachandra's case : (1969)2MLJ8 cited above is also attacked by the learned counsel on the same ground ; and he further contends that, in view of the fact that the Legislature has specifically used the words 'if the money rent paid by him in respect of that building or part' in Section 30, there was totally no justification for interpreting the word 'rent' in the general popular sense of the word. According to the learned counsel, keeping the definition of the word 'building' in Section 2(2) of the Madras Rent Control Act,1960 in mind, the 'rent' must be deemed to have been used only to indicate the compensation payable under the contract of tenancy for the use of the building and furniture only. The learned counsel pleads that, in view of the language adopted in Section 30 of the Madras Rent Control Act,1960, Division Bench was not justified in importing the definition of the term 'rent' as used in the English Rent Restrictions Act. He points out that the term 'rent' as defined in the English dictionaries means only the sum paid by the tenant for the use of the land or houses and does not include the compensation payable for furniture, fittings fixtures, services or board. At page 2536 of Stroud's Judical Dictionary (Vol. 3 3rd Edn.) the following passage is found : 'Probably it may be said that the primary meaning of rent is the sum certain in gross, which a tenant pays his landlord for the right of occupying the demised premises. The Shorter Oxford English Dictionary on Historical Principles defines the term as a return or payment made (in money or in kind) by a tenant to the owner or landlord at certain specified or customary times for the use of the lands or houses. Webster's Third New International Dictionary, 1965, defines the word as a pecuniary sum agreed upon between a tenant and his landlord and paid at fixed intervals by the tenant to the landlord for the use of land or its appendages (for a house).
21. It is further contended that the popular use of the word 'rent' in India or, in particular, Tamil Nadu does not include the payable for even furniture, leave alone fixtures,services or board. According to the learned counsel, the popular meaning of the word coincides with the notion of rent as understood in the Transfer of property Act and it is taken as consideration for the transfer or a right to enjoy immovable property. In Indian Villages bare house alone are let and the question or providing water closets and toilet facilities like wash basin does not generally arise. It is only in recent times that the provision of such facilities in the demised buildings has been thought of and that too only in towns ; and the introduction of the flat system in very recent times on the Bombay model has only brought in the notion of providing furniture and fittings in rented houses. It is, therefore, strenuously urged that the adoption of the popular meaning of the word as understood in ultramodern country, England, in a less sophisticated country like India and particularly in Tamil Nadu, cannot be justified.
22. It is further contended by the learned counsel for the respondent that the observations made by the Division Bench in Ramachandra's case. : (1969)2MLJ8 , are obiter in nature and that the decision must be confined to the facts of that case. Admittedly, the case merely decides that Municipal taxes form part of the rent as used in the Madras Rent Control Act of 1960 ; and the question of fixtures, amenities and services did not arise for consideration at all in that case. It is contended that the decision did not materially turn upon the scope, effect and operation of Section 30 of the Madras Rent Control Act, 1960 and that the decision must be taken as an authority for the proposition that, where rent has been fixed by a registered instrument, the rent cannot be varied by any subsequent oral arrangement.
23. The learned counsel for the respondent further points out that the decision of the Division Bench in Ramachandrs's case, : (1969)2MLJ8 has ignored the very basis of the Supreme Court decision which is that the object of the rent control legislation which has been enacted admittedly for the protection of the tenants from unscrupulous landlords must not be allowed to be defeated by the introduction in to the lease arrangement apart from the building, furniture and fitments, amenities like electric energy, services of night watchman etc. The learned counsel therefore contends that the landlord in this case should not be permitted to escape the provisions of the Rent Control Act of 1960 by introducing in to the lease arrangement amenities like water, wash basin, electric current etc, which do not fall within the connotation of the term 'furniture'.
24 On behalf of the petitioner it is strenuously pleaded that the decision of the Division Bench in Ramachandra's case, : (1969)2MLJ8 on the meaning of the word 'rent' is not obiter in nature and is binding on me sitting as a single Judge and that the definition of rent adopted by the Division Bench had been made by the Supreme Court after an elaborate review of the authorities, both Indian and English and that it would not open to me to adopt a different definition of the word ' rent' for the purpose of interpreting the provisions of Section 30 of the Rent control Act.
25. The arguments of the learned counsel are admittedly sound and attractive; but then, they can be urged with propriety only before another Bench or the Supreme Court, if and when a further occasion arises for canvassing the scope and effect of Section 30 of the Rent Control Act of 1960, particularly with reference to the meaning of the word rent found in Section 30. The decision of the Division Bench is one under Section 30(ii) of the Act; and sitting as a single Judge, I am bound by the principle which underlies the decision of the Division Bench ; and the basis of the decision is that rent is a whole amount agreed to be paid by a tenant to his land lord in respect of his enjoyment of what is let to him whether described as rent or not and that additional payments made for such thing as fitments and payments in respect of rates where the landlord is rated, all agreed to be paid by the tenant as consideration for the tenancy will be rent. In other words, the judgement implies that the term 'rent' used in the Madras Rent Control Act,1960, would include all Payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building and furniture but,also for rates electricity,water and other words,any sum of money which the tenants agrees to pay as consideration for the tenancy would be rent.
26. The learned Counsel, however contends that, even if the view taken by the Division Bench of this Court in Ramachandra's case, : (1969)2MLJ8 about rent is taken as binding, it will still be open to the Court to find out whether the parties intended that the additional payment for the amenities should be viewed as part of the rent or not; and it is contended that the parties in this case themselves have stipulated that the rent for the building was Rs.175 and that the addition of Rs.100 stipulated, as compensation for amenities was not treated by the parties as being included in the rent of the premises. Strong reliance is also placed by him upon the fact that the petitioner-landlady had been issuing separate receipts one for the building and another for the amenities.
27. I am invited to the following observations made by Evershed. L.J in Property Holding Co. Ltd. Clark, (1948) 1KB 630 cited supra:
'...................and I was at once impressed by the argument that if the landlords chose to adopt so careful a distinction in the terms they put forward to the tenant, they ought not now to be allowed to resile from the consequence of the distinction because for present purposes it suited them to do so. But there is no sufficient evidence, in my judgment, to justify the assumption that the document was in fact the landlord's document and to apply accordingly the rule contra preferences against the landlords'.
28. The learned counsel for the petitioner contends that the language of the lease as set out in Ex. R.1 shows that the sum of Rs. 100 paid for amenities was included in the rent of the building and that the clause in that document is to the effect that the rent of the building in all was Rs. 275 per month ; and emphasis is laid on the fact that a sum of Rs. 825 which is thrice the sum of Rs.275 the monthly rent stipulated, had been paid by way of advance.
29. On a fair construction of the terms of the tenancy set out in Ex.R.1 and taking into account the subsequent conduct of the petitioner in issuing a separate receipt for rent of the house and a separate receipt for the amenities, I am satisfied that the parties intended that the monthly rent was only Rs.175 and that the principle referred to be Evershed, L.J is applicable to this case. In any event, the observations of the Supreme Court in : 1SCR20 that it will not be open to the astute landlord to defeat the provisions of the Act by introducing clauses in to the lease which would take the lease away from the operation of the Act will apply with great force in this case. For the foregoing reasons, I hold that the monthly rent of the premises in question was only Rs. 175 and the result is that exemption claimed by the petitioner from the operation of the Madras Rent Control Act of 1960 by virtue of the provisions of Section 30 cannot be granted.
In the result, the civil revision petition is dismissed ; but, under the circumstances, without costs.
30. Revision dismissed.