1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 3742 OF 1993 Shri Vasant Rathunath Sahane, ) Aged-Adult, Occupation – Service, ) Residing of 4081, Deshpande Wada, ) Budhawar Peth, Nashik. ).. Petitioner (Org. Defendant) Versus 1. Smt. Pushpa Ganesh Deshpande, ) Aged-Adult, Occ. Sukhavastu. ) 2. Mr. Mhalsakant Ganesh Deshpande, ) Aged-Adult, Occ. Sukhavastu. ) 3. Mr. Shrikant Ganesh Deshpande, ) Aged-Adult, Occ. Sukhavastu. ) 4. Mr. Chandrakant Ganesh Deshpande, ) Aged-Adult, Occ. Sukhavastu. ) 5. Mr. Shital Ganesh Deshpande, ) Aged-Adult, Occ. Sukhavastu. ).. Respondents (Org. Plaintiffs ) -- Shri S.M. Gorwadkar for the Petitioner. Shri R.A. Thorat for Respondent Nos.1 to 5. -- CORAM : A.S.OKA, J. DATE : 13th January 2010. ORAL JUDGMENT: . Heard learned counsel appearing for the parties. 2. The Petitioner is the original Defendant/tenant and the 2 Respondents are the landlords. The Respondents filed a suit for eviction essentially on the ground of default under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Control Act, 1947 ( hereinafter referred to as “the said Act”). The case of the Petitioner was that he was a monthly tenant in respect of the suit premises. The rent of the suit premises was Rs.11.30 ps. per month. The Respondent alleged that the Petitioner was in arrears of rent from 1st March, 1981. A notice of demand was issued by the Respondents to the Defendant-tenant on 21st December, 1983. The case is that though the notice was served, compliance was not made by paying the amount, and therefore, the suit was filed. In the Written Statement, the Petitioner admitted that the agreed rent was Rs.11.30 ps. p.m. It was contended that though the rent was paid by the Petitioner for a period of one year, rent receipts were not issued by the Respondents. It was contended that the amount of Rs.200/- was sent by the Petitioner by Money Order which was not accepted. 3. The trial Court dismissed the suit. An appeal was preferred by the Respondents which was allowed and a decree has been passed under Section 12(3)(a) of the said Act. 4. The submission of the learned counsel appearing for the Petitioner is that the agreed rent was Rs.8/- per month and the balance amount demanded by the Respondents constitutes education cess. He submitted that the education cess is payable yearly and hence a part of the rent of Rs.11.30 per month demanded by the Respondents was not payable by 3 month. He, therefore, submitted that Section 12(3)(a) of the said Act was not applicable. He submitted that the Respondents-landlords have not pleaded existence of an agreement by which the Petitioner agreed to pay the education cess along with monthly rent. He submitted that the case could have been considered only under the provisions of Section 12(3)(b) of the said Act and the Petitioner has made full compliance with the requirements of Section 12(3)(b) of the said Act. He submitted that the decree could not have been passed on the ground under Section 13(3)(a). Learned counsel appearing for the Respondents supported the impugned judgment and decree. 5. I have considered the submissions. It cannot be disputed that under the provisions of Maharashtra Education (Cess) Act, 1962, the education cess is payable annually. It is also accepted position that the education cess being permitted increases forms part of the rent. In a given case, if a part of the rent is not payable by month, Section 12(3)(a) of the said Act will not be attracted. On this aspect, it will be necessary to consider the decision of the Apex Court in Raju Kakara Shetty v. Ramesh Prataprao Shirole & Another, [(1991)1 SCC 570]. The issue arose before the Apex Court was whether a decree under Section 12(3)(a) of the said Act could be passed when a part of the rent being the education cess is payable annually. The Apex Court in paragraph 13 of its decision held thus:- “13. .....A right to recover a certain tax amount from the tenant-occupant under the provisions of a statute can be waived by the owner or quantified by agreement at a figure not exceeding the total liability under the statute. If by 4 agreement the amount is so quantified and is made payable by the month notwithstanding the owner’s liability to pay the same annually to the local authority, the question is whether in such circumstances the ‘rent’ can be said to be payable by the month within the meaning of Section 12(3) (a) of the Act ? We see no reason why we should take the view that even where the parties mutually agree and quantify the tax amount payable by th tenant to the landlord on monthly basis, the rent should not be taken to be payable by the month within the meaning of Section 12(3)(a) of the Act. A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so long as it is not in violation of statute. If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner’s statutory right to recover the tax amount and for discharging the tenant-occupant’s statutory obligation to reimburse the owner, we see no reason for refusing to uphold such a contract and if thereunder the parties have agreed to the tenant-occupant discharging his liability by a fixed monthly payment not exceeding the tax liability, the said monthly payment would constitute ‘rent’ payable by the month within the meaning of Section 12(3)(a) of the Act......” ( Underline supplied ) 6. In the present case, from the judgment of the Courts below, it appears that the contention that a part of the rent is not payable by month was not specifically raised. Nevertheless, I have considered these submissions made by the learned counsel appearing for the Petitioner. In the plaint, specific averment in Paragraph 2 is that there is an agreement under which the Petitioner is bound to pay a sum of Rs.11.30 per month inclusive of tax amount per month. This averment is dealt with in Paragraph 2 of the Written Statement in which there is no denial and it is 5 accepted that the sum of Rs.11.30 is payable per month. Respondent No.4 stepped into a witness box. He stated that the rent was of Rs.11.30 including education cess. He stated that the said rent is payable after every month. There is no cross-examination on this aspect of the said witness. There is no suggestion given that the education cess is not payable by month. The Petitioner stepped into a witness box. He has also not come out with a case that there was no agreement to pay education cess by month. This shows that the parties mutually agreed and quantified the tax amount payable by the Petitioner to the landlords on monthly basis. Therefore, the law laid down in the decision of the Apex Court in Raju Kakara Shetty’s case (supra) will squarely apply to the present case and Section 12(3)(a) of the said Act will certainly apply. 7. It is not in dispute that there was no compliance made with the demand notice. On the date on which this notice was issued, the Petitioner was in arrears of rent for a period of more than six months. There is no application filed by the Petitioner for fixation of standard rent raising a dispute about the rent demanded. 8. Hence, the Court had no option but to pass a decree for possession under Section 12(3)(a) of the said Act. Hence, no case for interference is made out. The Writ Petition is rejected with no order as to costs. Rule is discharged. 6 9. At this stage, learned counsel appearing for the Petitioner prays for continuation of the interim relief granted by this Court. The said prayer is opposed by the learned counsel appearing for the Respondents. Interim relief granted by this Court on 20th September, 1993 will continue to operate for a period of 12 weeks from today, subject to condition that the Petitioner will not create any third party interests in respect of the suit premises and will not part with the possession thereof. (A.S.OKA,J)