:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1449 OF 2008 M/s. M.D.Construction Co., Malad ...Petitioner Mumbai through its partner Mr.Y.A.Mehta Versus Shri Suryakant B.Bhonsale, Colaba Mumbai ....Respondent ====== Mr.N.V.Walawalkar, Sr.Adv. i/by. Mr.Sean Wasoodew, Adv. for the petitioners. Mr.Sandeep Patil i/by. Mr.Vikas Mahangare, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 14TH MARCH, 2008. P.C. P.C. P.C. : : : 1. This Writ Petition under Article 227 of he Constitution of India is directed against the Judgment and Order dated 12.12.2007 delivered by the Small :2: :2: :2: Causes Court in an Application (Exhibit-11) in R.A.E.Suit No.1058/1613 of 2006. The petitioners application for a direction to the Respondent to deposit the proportionate share of the ground rent payable by the Respondent to the petitioners is dismissed. 2. The case of the petitioners is that they are a partnership Firm and they purchased a plot which is more particularly described in para-2 of the petition with building standing thereon consisting of ground and two upper floors. The property was purchased and thereafter it was noticed that it was held on a lease from the Mumbai Improvement Trust from the previous owners and landlords under an Indenture of Lease dated 4th August 1903. The lease expired on 20.9.2000. The petitioners got a Deed of Assignment dated 7.4.2006 executed in their favour from the previous Lessees. Thus, the property has been transferred in the name of petitioners as Lessees. 3. The Respondent occupied Room No.8 admeasuring 60 sq.ft on the First Floor of the said property. The :3: :3: :3: rent of the suit premises is Rs.711/- per quarter excluding permitted increases. The respondent is in arrears of rent with effect from January, 2005. He was liable to pay a sum of Rs.2,71,000/- by way of his proportionate share of lease rent. It is undisputed that the Municipal Corporation of Greater Bombay is the successor of the Mumbai Improvement Trust. Therefore, the ownership of the lands, insofar as, the Municipal Corporation of Greater Bombay is concerned, is undisputed. 4. The petitioners have claimed that the respondent is in arrears from 29.9.2000 to 31.12.2006 and the arrears are required to be paid as per the monthly Notice dated 22.6.2006. The petitioner has already paid the lease rent to the Municipal Corporation on 10.5.2007. The receipt is also annexed as Annexure-C. Upon the Respondents’ share being computed, the Advocates Notice was issued and firstly there was correspondence with regard to the right of the petitioners to recover and thereafter the tenancy came to be terminated. :4: :4: :4: 5. R.A.E.Suit No.1058/1613 of 2006 was filed in the court of Small causes at Mumbai and the petitioners demanded lease rent payable being proportionate share of the respondents. 6. In the suit filed by the petitioners, an Application for permission to deposit the arrears of rent was filed by the respondents. The petitioners filed a reply thereto and thereafter they filed an Application for an order and direction to the respondent to deposit the arrears of rent and the Trial Court after granting an opportunity to the Respondents to dispute the same, passed an order on 3.9.2007. 7. Aggrieved and dissatisfied with that order, the Respondent filed Writ Petition NO.8181 of 2007 and this court after hearing both sides on 1.11.2007 passed the following order. O R D E R R D E R R D E R "(i) The impugned order to the extent it directs deposit of Rs.2,71,000/- towards the petitioner’s share in ground rent is hereby set aside. However, the petitioner shall deposit the said amount in the trial court within a period of six weeks from today since the ground rent has been calculated :5: :5: :5: proportionately. (ii) the trial court shall consider the respondent’s application dated 15.1.2007 praying for deposit of the ground rent independently and separately in accordance with law within a period of six weeks from today. (iii) the rule is made absolute in the above terms. (iv) This order shall be communicated immediately by the petitioner to the trial court. " 8. The Trial court order was set aside by this court and after the matter was reheard the Trial Court has rejected the Application of the petitioners on 12.12.2007. 9. That is how the petitioners are in writ jurisdiction before me. 10. In para-8 of the impugned order the Trial Court has held that the petitioners have produced one Receipt dated 10.5.2007 evidencing payment of Rs.70,43,270/- towards revised lease rent. The Trial Court held that the said payment is not regarding the ground rent. Section 12 of the Maharashtra Rent :6: :6: :6: Control Act states that the landlord has to deposit the ground rent with the Municipal Corporation and thereafter he is entitled to get it reimbursed proportionately from the Tenant. The conclusion is that the petitioners have not produced any receipt to show that ground rent was paid to the Municipal Corporation. 11. There appears to be substance in the contention of Mr.Walawalkar appearing for the petitioners that the Trial Court has confused itself completely. It has proceeded on the basis that lease rent and ground rent are two different concepts. Therefore what the landlord has paid is the lease rent and that cannot be said to be ground rent. 12. Mr.Patil, appearing for the respondents could not satisfy me about the correctness of this conclusion of the trial court. 13. With the assistance of the learned counsel appearing for both sides, Section 12 of the Maharashtra Rent Control Act has been perused by me. The said :7: :7: :7: provision reads thus :- "12. "12. "12. Increase Increase Increase in rent on account of payment in rent on account of payment in rent on account of payment of of of rates, etc- rates, etc- rates, etc- (1) Where a landlord is required to pay to Government or to any local authority or statutory authority in respect of any premises any fresh rate, cess, charges, tax, land assessment, ground rent of land or any other levy on lands and building, or increase in rate, cess, charges, tax, land assessment, ground rent of land or any other levy on lands and buildings, he shall, notwithstanding anything contained in any other provisions of this Act but save as otherwise expressly provided in any other law for the time being in force, be entitled to make an increase in the rent of such premises. Provided that, the increase in rent shall not exceed the amount of any such rate, cess, charges, tax, land assessment, ground rent of land or any other levy on lands and buildings, as the case may be. (2) Where the rent is inclusive of charges for electricity and water and the landlord is required to pay the increase in these charges in respect of any premises, he shall be entitled to make an increase in the rent of such premises by an amount not exceeding the additional amount payable by him in respect of such premises on account of such increase. (3) The amount of the increase in rent recoverable from each tenant under sub-sections (1) and (2) shall bear the same proportion as the rent payable by him in respect of his premises bears to the total amount of any such rate, cess, charges, tax, land assessment, ground rent of land or any other levy on lands and buildings, or increase in electricity or water charges, as the case may be. " :8: :8: :8: 14. The obvious intention appears to be to enable the landlord to recover all such rates, charges and taxes that he incurs in respect of the property by making payments either to the Government or to any local authority. The legislature has used the words rate, Cess, charges, tax, land assessment, ground rent of land or any other levy on lands and building which the landlord is required to pay to the Government or to any local authority or statutory authority and all that falls within the purview of this provision. There are several Nomenclature given to these levies and charges. Sometimes, the rent is known as lease rent which is required to be paid to Lessor. The same is also termed as ground rent. Ultimately, land and ground is something which has not been specified as that would not be necessary. The ground and land beneath the Structure belongs to the local body or the Government. The Government therefore levies taxes and charges in respect thereof and calculates them under several heads. Once the landlord pays them and after he erects a Building or a Structure on these lands lets out a portion thereof, then, after the Rent Control Act :9: :9: :9: becomes applicable to the premises or portions thereof, the landlord must be able to recover not just the rent which is calculated for the occupation of the premises but also such rates and charges which the landlord pays and incurs for the lands beneath the structure. If the landlord desires that all such charges also be included and the rent increased, if these charges go up periodically, then, the landlord must have right to recover the proportionate share from each of the Occupant/tenant and such share has to be computed and calculated by taking into account, the rent payable by each such tenant. A simple device therefore is made available to enable the computation and calculation. There need not be any confusion in this case, inasmuch as, the correspondence between the parties makes it clear that what the landlord is demanding is nothing but the ground rent. If the term is mentioned in the Municipal Notice as Lease Rent, that hardly makes any difference. 15. Ultimately the lease and the Charge or Amount for the Land beneath the structure is the subject matter of Notice of the Corporation and the landlord’s :10: :10: :10: liability is in that behalf. In such circumstances, I do not see any distinction between these concepts in the peculiar facts of the case. Therefore, the denial, of the request of the landlord, by the trial court cannot be sustained. The trial court has failed to consider the provisions which are relevant and applicable. It has reached an erroneous conclusion by misreading the provisions, so also, the documents and Notice placed before it. The Trial Court does not deny the right of the landlord. In such circumstances, the rejection of the Application of the Landlord was not proper. 16. On the last occasion a doubt was expressed as to whether the petitioner is called upon to pay his proportionate share or that he has to bear some additional liability. I called for certain details by directing the landlord to file an Affidavit. The Affidavit has been filed and a copy thereof has been forwarded to the respondent-tenant. However, Mr.Patil, appearing for the respondent-tenant submits that the Affidavit does not meet the requirement stipulated in this court’s order, and in any event, does not disclose :11: :11: :11: the extent of the liability of the respondent. He does not dispute that a sum of Rs.9,63,470/- has been already paid/deposited. The additional sum according to Mr.Patil must have some bearing with the liability that is specified in Section 12. He submits that the petitioners have been unable to point out to as how much they had paid to the Municipal Corporation and whether the demand made by them is on the basis of Respondent’s proportionate share of rent. The figures and computation have not been disclosed fully. 5. In such circumstances, without in any manner commenting one way or the other about the extent to which the respondents would be required to pay any additional sums or the deposit in the Trial court, I suggested to both sides that appropriate course would be to have recomputation and recalculation done. Both sides agreed that the impugned order may be quashed and set aside and the matter may be remanded back for passing orders afresh after hearing them. The only clarification that was sought by Mr.Walawalkar was with regard to the confusion in the mind of the Trial court about the ground rent/lease rent. That having been :12: :12: :12: reasonably clarified, in my view, interest of justice would be subserved if the order under challenge is set aside. Exhibit -11 is restored to the file of the Trial Court on merits and in accordance with law. The Trial Court to decide the said Application uninfluenced by the observations made in the earlier order. Needless to state, that I have not expressed any opinion as to whether the calculation or computation complies with the requirement stipulated by Section 12 or not. Further, on account of the remand, I have also not gone into the issue as to whether the Affidavit filed in this court complies with the requirement stipulated in the order dated 4.3.2008. Petition disposed off in the above terms. No costs.