1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1618 OF 2009 1. Dhansuklal Motibhai Shah, (since deceased, through L.Rs.) (Original Plaintiff No.1) 1a) Dayabhai @ Rajendra Dhansuklal Shah, Age 53 years, Occu. Agri & Business, 1b) Gajendra Dhansukhlal Shah, Age 50 years, Occ. Agri. 1c) Snehlata d/o Dhansukhalal Shah, Age 54 years, Occ. Household, 1d) Hemuben d/o Dhansukhalal Shah, Age 57 years, Occ. Household, 1e) Sunita d/o Dhansukhalal Shah, Age 47 years, Occ. Household, All R/o Desaipura, Nandurbar 2. Mansukhlal Motibhai Shah, deceased (Original Plaintiff No.2), through L.Rs. 2a) Smt. Gunwantibai w/o Mansukhlal Shah, Age 70 years, Occ. Household R/o Desaipura, Nandurbar 2b) Bhupendra Mansukhlal Shah, Age 52 years, Occ. Business, R/o Kailas Appt. Juhu Vile Parle (W), Mumbai. 2c) Nalin Mansuklal Shah, Age 42 years, Occ. Advocate, R/o 303 A Pran Aashish Apart, Varsova Beach Road, Andheri (W), Mumbai 2 2d) Mrs. Devayani Arvind Desai, Age 53 years, Occ. Household, R/o Sonal Apart, J.P. Road, Goregaon (E), Mumbai 2e) Mrs. Sandhya Mahendra Shah, Age 47 years, Occ. Household, R/o Desaipura, Nandurbar . ... PETITIONERS VERSUS Pandit Motiram Patil, (deceased), through L.R. Pankajsingh Pandit Patil, Age major, Occ. Agri., R/o Khandbara, Taluka Navapur, District Nandurbar. ... RESPONDENT ..... Shri P.M. Shah, Senior Counsel, instructed by Shri J.R. Shah, Advocate for the petitioners Shri A.S. Abhyaknar, Advocate holding for Shri S.V. Natu, Advocate for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 29th October, 2010 Date of reserving judgment : 19th October, 2010 Date of pronouncing judgment : 29th October, 2010 JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 3 2. The petitioners are owners and landlords of the suit premises, a godown, rented to the respondent, on monthly rent of Rs.55/-, as per Gregorion calendar month. 3. The respondent did not discharge his liability of regular remittance of the rent, as is ordained in Section 12(3)(a) as stood to the Amendment of 1997 of the Bombay Rent Act, 1947. In terms of Section 12(2) of the Rent Act, a notice was sent to tenant on 24.12.1979. The tenant, thereafter again continued his habit of remaining in default for the period from 1.9.1979 to 31.1.1982. Resultantly, a notice was issued on 9.2.1982. Even after the notice, the respondent did not comply the obligations. It was followed by the petitioners filing Regular Civil Suit No.63/1982 in the Court of learned Civil Judge, Junior Division, Nandurbar, for possession of suit premises on the ground of default in payment of rent in terms of Section 12(3)(a) of the 1947 Rent Act. The learned Civil Judge, Junior Division, Nandurbar, on evaluation of evidence, decreed the suit by order dated 9.7.1993, holding that the respondent tenant has defaulted in remittance of rent and also he was in breach of Section 12(3)(b) of the Rent Act. The respondent carried the matter to the appellate Court and the learned Adhoc Additional District Judge, Nandurbar, by his order dated 12.8.2002, allowed the appeal by setting aside the decree for eviction. This order is 4 questioned by the writ petitioners as to its legality and competence by the learned District Judge in holding that the quit notice was invalid. 4. The provisions of Section 12 as applicable in Maharashtra under Bombay Rent Act, 1947 read as under : “12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increase, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after, notice in writing of the demand of the standard rent or permitted increases has been served upon tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882) 3 (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, 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. (b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter 5 continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.” 5. The notice at Exh. 77 was replied by the defendant’s brother Jaysingh under a postcard (Exh. 79), admitting the arrears of rent. In the written statement (Exh. 12), the defendant has admitted the arrears of rent in paragraph No.6. It is evident, as on date of suit, dated 13.4.1982, the tenant/respondent was in arrears of rent. It is also a matter of record that, within one month of the notice or even of the service of summons, no application was moved by respondent/tenant for depositing amount or making any application for determination of standard rent. The decree of the learned trial Court illustrated, the learned Judge found infraction of Section 12(3)(b) of the rent Act. However, the learned appellate Court held that the notice is not valid. The learned counsel for respondent submits, the notice was defective making demand of excess amount, hence no infirmity in the order. 6. Learned counsel for respondent has placed reliance on following judgment. 6 (a) 2002(2) Mh.L.J. 467 (Ramvilas Shivlal Navandar and others Vs. Biharilal @ C.R. Ray and another), The facts in the matter of Ramvilas Shivlal Navandar will not be applicable to the present case as the position of law is clear being indicated in the matter of Raju Kakara Shetty Vs. Ramesh Prataprao Shirole and another reported in (1991) 1 Supreme court Cases 570. (b) 1988 Mah.L.R. 1199 (Supreme court (Mohan Laxman Hede, Appellant Vs. Noormohamed Adam Shaikh, Respondent) In that case the tenant has deposited entire rent at the time of appearance. No such eventuality in the present case. In the instant case, notice specifies the rental and the grievance for accumulated education cess was made and nothing more. (c) 1992 Mh.L.J. 436 (Ramchandra Appaji Manjage, since deceased by L.Rs. Vs. Mahavir Gajanan Mug) In the case of Rameshchandra Appaji Manjage, the demand was for excessive amount not legally due and payable by the tenant on date of notice. Even the error in computation of arrears not marginal. The learned Single Judge held the notice was invalid. 7 (d) 2006(6) Mh.L.J. 353 (Madhavsingh Tulsidas, since deceased through L.Rs. Uday Madhavsingh Palicha and another Vs. Bhyaktiben Narandas Paleja, since deceased through L.Rs. Jawahar Narandas Paleja and others) In the said case, since the learned Judge did not consider issue relating to Section 12(3)(b) of the Rent Act and deposition during pendency, the matter was remitted to the appellate Bench of the Small Causes Court. (e) (1995) 6 Supreme Court Cases 576 (Laxmikant Revchand Bhojwani and another Vs. Pratapsing Moyhansingh Pardeshi, deceased through his heirs and legal representatives) In said case, Landlady refused to accept the rent, though attempted by tenant. Total arrears mentioned in notice were paid and Court found no neglect by tenant, hence clause (b) of Section 12(3) or clause (a) not applied. In the instant case, the tenant agreed to be in arrears of rent and thereafter belatedly paid the rent. (f) (1995) 6 Supreme Court Cases 580 (Dr. Ranbir Singh Vs. Asharfi Lal) In the said case, there was denial of landlord’s title and question of comparative hardship was also raised. Same is not applicable to the facts in the present case. 8 (g) 2010(1) Mh.L.J. 746 (Virendra Adhirubhai Shah and others Vs. Natwar Parekh Title was in controversy. No such eventuality germinating in the present case as there is no denial to the status between the parties. (h) 1987 (3) Bom.C.R. 338 (Awabai Muncharji Cama & others Vs. M.N. Kaka The fact of this case will not be applicable to present case as the landlord has specified the rental arrears and thus informed to the tenant of his liability to pay education cess. 7. The learned Senior Counsel for the writ petitioner relied on following judgments : (1) (2007) 1 Supreme Court Cases 202 (Hotel Kings and others Vs. Sara Farhan Lukmani and others etc.) “Rent Control and Eviction – Rent – Meaning and scope – Rates and taxes required to be paid by tenant – When form part of the rent - “Permitted increase” in rent being linked by rent control statute to amount of rates and taxes payable – Effect – Held, the said link contained in S. 10, Bombay Rent Act does not make the said rates and taxes a part of the rent – Amount of rates and taxes payable only 9 serves as a yardstick to determine the “permitted increase” in rent – Such situation distinguished from that obtaining when a statute deems certain rates, cesses or taxes to be a part of the rent, as provided under S.13, Maharashtra Education (Cess) Act, 1962 – Transfer of Property Act, 1882 – S. 5 – Cess, Tolls and Misc. Taxes – Maharashtra Education (Cess) Act, 1962 (27 of 1962) S. 13 – Effect of – Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947) – Ss. 10 and 5(7). Rent Control and Eviction – Rent – Periodicity of payment of Determination of – Periodicity of payment of rates and taxes required to be paid by lessee – Specification of periodicity of payment in lease deed – Effect of – Held, in present case the lease deed makes it abundantly clear that rent is required to paid on a monthly basis – Merely because tenant was liable to pay certain rates and taxes, and those were payable on a six-monthly basis, periodicity of payment of rent would not be altered to six months – Furthermore, the lease deed clearly provided that rates and taxes and other outgoings were to be treated to be the separate liability of renant – Hence, lease would be governed by S. 12(3)(a), Bombay Rent Act and not S. 12(3)(b) thereof – Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (57 of 1947) – S. 12 – Applicability of S. 12(3)(a) or 12(3)(b).” (2) (1991) 1 Supreme Court Cases 570 (Raju Kakara Shetty Vs. Ramesh Prataprao Shirole and another ) “Rent Control and Eviction – Arrears of rent – Default in payment of standard rent and permitted increases - ‘Permitted increases’ - Education cess payable by tenant in addition to the standard rent under rent agreement – Held, covered by the definition of ‘permitted increases’ in Section 5(7) of Bombay Rent Act. (3) (2005) 7 Supreme Court Cases 38 (Jaswant Raj Soni Vs. Prakash Mal) (4) (1979) 4 Supreme Court Cases 214 (V. Dhanpal Chettiar Vs. Yesodai Ammal) 10 The Constitution Bench of 7 Honourable Justices of the Apex Court observed that, notice under Section 106 of the Transfer of Property Act in an eviction suit is not mandatory. 8. The controversy will be revolved if the notice and its interpretation is effectively seen. The notice in first two paragraphs refers to monthly tenancy, irregularities on the part of respondent/ tenant in making rent. Third paragraph refers to dues of more than six months. It was ultimately a demand of Rs. 1595/- and also intimating the tenancy would be terminated by end of 28.2.1982. In the last paragraph, without any specifications the tenant/ respondent was informed that he has a liability to pay education cess, employment guarantee scheme tax, tree plantation taxes and he was asked to remit the same and to collect necessary receipt from the landlord. A grievance was also made that the tenant/ respondent is lax in remitting the cess. 9. The learned District Judge certainly erred in holding that it was mandatorily informed to the tenant to pay the education cess or tax. The notice as a whole would have to be read. Specific amount of Rs.1595/- as due was claimed. Had it been a case that any education cess or other taxes are to be 11 recovered as part of the obligation, the figure would have been indicated in the notice Exh. 77. There is no controversy that the amount payable towards education cess would be payable on year to year basis and that too subject to the agreement between the parties. There is no agreement between the parties that education cess would be payable year to year basis. The reading of the notice Exh. 77 contrary to its true text and intention, by the learned Additional District Judge has added to a miserable situation, which calls for interference. The permitted increases were pointed to the tenant, but there was no specific figure thereof. In the above situation, the notice cannot be said to be invalid. 10. The learned Judge held that since the notice itself is invalid and hence the suit cannot be maintained on the ground of default, even if there is subsequent default of not remitting the rent during pendency of the suit, it will not obliterate the effect. There will not be any bar of Section 12(3)(b) of the Bombay Rent Act. 11. The learned appellate Court indeed did not venture to consider the arrears in terms of Section 12(3)(a) of the Rent Act. Even there was no indication from the landlord/ petitioner to claim charges of education cess or other cess from the respondent/ tenant as in claim paragraph 16, specific demand of 12 Rs.1860/- as arrears was made, on which Court fee of Rs.222=25 was paid. 12. In (1991) 1 Supreme Court Cases 570 (Raju Kakara Shetty Vs. Ramesh Prataprao Shirole and another), the Hon’ble Lordships of the Apex Court have observed, “If by 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 the 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. The view expressed by the Gujarat High Court in Vishwambar Hemandas does not, with respect, state the law correctly if it holds that even in cases where the entire tax liability is on the landlord and the tenant had to pay a gross rent of Rs.19.50 p.m. the mere recital in the lease that the rent is inclusive of taxes takes the case outside the purview 13 of Section 12(3)(a) of the Act. We are, therefore, in respectful agreement with the view taken by the appellate court and the High Court in that behalf. We, therefore, hold that as the tenant had failed to comply with the requirement of Section 12(3)(a) to seek protection from eviction, the courts below were justified in ordering his eviction.” 13. In (2005) 8 Supreme Court Cases 38 (Jaswant Raj Soni Vs. Prakash Mal), the Apex Court has held that: “For institution of eviction petition there is no requirement of a notice under Section 106 of Transfer of Property Act. This issue stands concluded as per a Seven Judge Bench decision of Supreme Court in V. Dhanapal Chettiar Vs. Yesodai Ammal (1979) 4 Supreme Court Cases 214. It has been held that there is no legal requirement for issuance of a notice under Section 106 of the Transfer of Property Act before institution of an eviction petition. Therefore, requirement of notice under Section 106 is not necessary. The only point left for decision in this case is whether there was agreement between parties requiring service of one month’s notice prior to the institution of an eviction petition. For agreement between the parties, reliance is placed only on a condition printed at the back of the rent receipt issued by the landlords. In our view, it cannot be said on the basis of what is printed on the back side of the rent receipt that the parties had accepted it as a condition of the lease. The rent receipt is a document issued by the landlord acknowledging the receipt of payment of rent by him. Conditions printed at the back of the rent receipt cannot be said to be a conscious decision taken by the parties governing the lease of premises. The terms and conditions of a lease result from conscious decision of parties. Therefore, we are unable to accept that the parties have entred into an agreement about service of one month’s notice in advance to vacate the premises before institution of eviction petition.” 14 14. This legal position should have been taken into consideration by the learned Additional District Judge while treating the notice to be invalid and dismissing the suit for eviction. 15. In AIR 1980 SC 954 (Mranalini B. Shah and another Vs. Bapalal Mohanlal Shah), the Apex Court has held : “In the case of monthly tenancy, Court has no discretion to treat payments made at irregular interval as sufficient compliance with clause (b) of Section 12(3) of the Rent Act.” In the instant case, the respondent/ tenant has been irregular in remittance of rent during pendency of the suit, though the tenant has claimed to have deposited arrears before first day of hearing. The schedule of payment at Exh. 107 shows that on 27.7.1983, the defendant/ tenant had deposited Rs.272/- as rent for September 1979 to July 1983 while the issues were framed on 20.10.1983. There was delay of 15 days in depositing the rent up to August 1984. Rent for September 1984 was deposited along with rent of October on 5.11.1984, again delay of 19 days. While depositing rent for November and December 1984, there is delay. Then there was again delay ranging between 2 to 16 days for the period from August 1985 to January 1986. The rent for 15 February 1986 was not at all deposited by the respondent/ tenant. The rent for March 1987 was deposited on 29.4.1987 while for April 1987, it was deposited on 15.6.1988. These details of the chart demonstrate that the tenant/ respondent was not regular in tendering the rent to claim benefit in terms of Section 12(3)(b). There was indeed infraction of Section 12(3)(b) of Rent Act. 16. The learned counsel representing the tenant/ respondent submits, on 18.7.1988 entire amount was deposited along with interest and there is no neglect in payment of rent during pendency. There is no intention to avoid payment. However, the earlier details illustrate otherwise. 17. The learned counsel for respondent/ tenant raised a new point that the learned Civil Judge, Junior Division, Nandurbar had no jurisdiction to decide the suit as there is no provision that it should be attended by Jt. Civil Judge, Junior Division. I do not agree to this objection of the learned Judge. There is no difference in the status of Jt. Civil Judge, Junior Division or Civil Judge, Junior Division of Nandurbar. Even if in 1990 a Court of Civil Judge, Senior Division was established at Nandurbar, the suit having decided on 9.7.1993 by Jt. Civil Judge, Junior Division, need not be branded to be a illegality. 16 18. The survey of events illustrate that the respondent/ tenant proved to be a chronic defaulter and avoided his obligation to discharge and consequently, is liable to face eviction. Hence order : 19. Writ Petition is allowed. Rule made absolute. The order of learned Adhoc Additional District Judge, Nandurbar is set aside. Regular Civil Suit No.63/1982 before the learned Civil Judge, Junior Division, Nandurbar is decreed. The respondent- tenant to vacate the premises up to 30th June 2011. The respondent-tenant shall pay regular monthly charges and shall also enter into an undertaking within three weeks before Registrar of this Court, not to part with possession or create any encumbrance on the suit property, the godown. K.U. CHANDIWAL JUDGE