DAYALAL GANGARAM Vs. BHIMANI BHUPATRAI CHUNILAL

JUDGEMENT

(1.) The short question which has been referred by the learned Single Judge in this matter is as under: In the absence of a contract between the landlord and the tenant as regards payment of the education cess by the tenant would the amount of education cess form part of the ren payable by the tenant to the landlord so as to enable the Court to decide in a case governed by sec. 12 of the Bombay Rents Hotel and Lodging H use Rates Control Act 1947 (hereinafter referred to as the Rent Act) whether the said rent is payable by the month or otherwise?. The context in which this question had arisen was that the suit premises had been let to the tenant on a monthly rent of Rs. 20.00and there was no rent note or anything to show that besides this amount of monthly rent which the tenant agreed to pay as consideration for taking the property the tenant agreed to pay inter alia the education cess. The rent had fallen in arrears from August 1 1966 for more than six months and so the statutory notice under sec. 12(2) was given by the landlord on March 18 1967 and was served on the tenant on March 21 1967 Within one month no dispute about the standard rent had been raised and even the defence of the tenant having paid Rs 200/- towards arrears was disbelieved by both the Courts of facts. The trial Court however refused the eviction decree because education cess which was a part of the rent was not payable by the month and so the case was held to fall under sec. 12(3)(b) while the appellate Judge held that the education cess was nst part of the rent and therefore the eviction decree was passed because of the gross default under sec. 12(3)(a). It is in this context that the present reference has been made by the learned Single Judge as he was differing from the view taken by J. M. Sheth J. In VANLILA VADILAL V. MAHENDRA KUMAR 16 G.L R. 71 where such education cess was held to be a part of the rent but it being not payable by the month it was held that such cess could not fall under sec. 12(3)(a).

(2.) Sec. 12(3)(a) of the Rent Act in terms provides as under: (3)(a) where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub-sec. (2) the Court may pass a decree for eviction in any such suit for recovery of possession.

(3.) In order to interpret this relevant first condition. where the rent is payable by month the term rent will have to be interpreted in the context and setting of this particular eviction provision for gross default when the tenant is in arrears for a period of six months or more which the Legislature considers as so gross as to leave no discretion to the Court and lays down a duty that the Court shall evict the tenant. It is only in other cases that sec. 12(3)(b) can be invoked by the Court to give relief to the tenant in arrears. When such is the context of this provision this term would have to be interpreted not merely as a contractual rent but as lawfully realisable rent in the special context of this Rent Act which is a measure for controlling rent and which prohibits under sec. 7 any recovery of rent in excess of the standard rent or permitted increases. The question of arrears in the context of sec. 12 (3)(a) would have reference only to what is lawfully recoverable from a tenant by way of rent which under the scheme of this rent control legislation is standard rent as well as permitted increases. That is why the legislature has furnished intrinsic evidence of its intention by using the expression such rent or increases in sec. 12(3)(a). The case would be of gross default only if such standard rent or permitted increases only are in arrears for a period of six months or more and the tenant neglects to make payment thereof. The term such rent and increases could mean only previously referred to in sec. 12(3)(a) and so the rent in arrears which is referred to and which is also required to be payable by month for compliance with the first condition would be this lawfully recoverable rent in the wider sense in view of this statutory bar created under sec. 7 against recovery of excess over standard rent and permitted increases. The term standard rent is defined in sec. 5(10) and the term permitted increase are defined in sec. 5(7) to mean an increase in rent permitted under the provisions of the Rent Act The term landlord and tenant are defined in sec. 5(3) and 5(11) as persons entitled to receive rent in respect of premises and the person by whom or on whose account rent is payable for the premises and even a statutory tenant is also included. Sec. 7 then in terms provides as under :