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SUPREME COURT OF INDIA
(Bombay High Court)
A.M. Ahmadi, K. Jagannatha Shetty, R.M. Sahai
RAJU KAKARA SHETTY, APPELLANT
VERSUS
RAMESH PRATAPRAO SHIROLE AND ANOTHER, RESPONDENTS.
Civil Appeal No. 5020 of 1989
decided on January 15, 1991.
Transfer of Property Act - Section 106 - No reliable evidence - Against the judgment – Tenant – Appeal against conviction - Appellant contended that said amendment had retrospective effect and he was entitled to benefit thereof - In alternative he also contended that he had paid the rent to respondent 1 but latter had failed to issue rent receipts - He also questioned validity of the notice terminating his tenancy - He denied allegation that he had sub-let the premises or has parted with the possession thereof in favor of respondent 2 or that he was guilty of causing nuisance and annoyance to neighbors - Allegation that he had raised a structure of a permanent nature in the hotel premises without permission of respondent was also disputed - He, therefore contended that the suit was liable to fail – Held, Only submission which made for taking case out of purview of Section 12 was that entire rent was not payable by the month which was first condition to be satisfied for invoking the said provision - According to him since tenant was bound to pay education and other taxes in respect of the demised premises which were payable from year to year a part of rent was not payable by the month and therefore the first condition of Section 12(3)(a) was not satisfied - Hence submitted case fell within phrase in any other case by which clause (b) of Section 12 opens - Before we answer the submission of Dr. it may be advantageous to refer to relevant provisions of the Maharashtra Education Act Section 4 said Act provides for levy and collection of tax on lands buildings at rates specified in Schedule A on the annual letting value of such lands or buildings - Primary responsibility to pay this tax is cast by Section 8 on owner of land or building irrespective of whether or not is in actual occupation thereof. Section 13 next provides that on payment of amount of tax in respect of such land or building owner shall be entitled to receive that amount from the person in actual occupation of such land or building during the period for which tax was paid - Under Section 15 any person entitled to receive any sum under Section 13 is conferred for recovery thereof the same rights and remedies as if such sum were rent payable to him by person from whom he is entitled to receive the same - It thus seems clear that education is a tax and owner is primarily responsible to pay same to local authority and on such payment a right is conferred on him to recover same from actual occupant in addition to the standard rent in respect of the demised premises - Appeal and dismissed
Key Points: - The tenancy was held to be a monthly tenancy (!) . - Rent including quantified education cess was payable monthly (!) . - Section 12(3)(a) applies only when rent is payable by the month with no dispute on amount (!) (!) . - Non-payment of rent for six months or more justifies eviction under Section 12(3)(a) (!) . - Tenant failed to pay rent and taxes as required (!) (!) . - Landlord served a valid eviction notice and tenant did not respond or pay (!) (!) . - Education cess is a tax payable annually and forms part of rent when quantified by agreement (!) . - The amended Section 12(3) was held prospective and not applicable to the facts (!) (!) . - Appeal dismissed with time granted to vacate until December 31, 1991 (!) .
JUDGMENT
AHMADI, J. - This is a tenants appeal by special leave directed against the judgment of the High Court of Maharashtra at Bombay whereby it confirmed the eviction order passed by the 6th Additional District Judge, Pune, in Civil Appeal No. 662 of 1988 in reversal of the order of dismissal of the suit passed by the learned Additional Judge of the Court of Small Causes, Pune, in Civil Suit No. 348 of 1985 on April 30, 1988. The brief facts giving rise to this appeal are as under :
On February 5, 1976 the appellant executed a lease agreement in respect of a part of the ground floor of property bearing City Survey No. 1205/2/9 situate at Shivaji Nagar, Pune city, more particularly described in paragraph 1 of the said agreement. The said premises were taken on rent for the purposes of restaurant business on monthly rental basis. By clause 3 of the agreement the appellant undertook to pay a total rent of Rs. 1000 per month for the demised premises (Rs. 900 for the hotel portion and Rs. 100 for the garage); the said rent being payable every month in advance. Clause 5 of the agreement prohibited sub-letting of the premises or parting with the possession thereof in any other manner. As the appellant committed a default in the payment of rent from June 1983 to December 1984 in respect of hotel portion and from November 1979 to December 1984 in respect of the garage, respondent 1 despatched a notice dated December 31, 1984 terminating the appellants tenancy as required by Section 106 of the Transfer of Property Act. The appellant failed to respond to the said notice and neglected to pay the amount of arrears to rent claimed therein within one month from the date of receipt of the notice. Consequently, respondent 1 filed the suit which has given rise to this appeal on February 26, 1985, being Civil Suit No. 348 of 1985, seeking eviction on four grounds, namely, (i) the tenant was in arrears of rent for more than six months and has failed and neglected to pay the amount due within one month from the date of receipt of the eviction notice, (ii) the tenant had raised a permanent structure in the suit premises in breach of Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act), (iii) the tenant was guilty of causing nuisance and annoyance to the neighbours, and (iv) the tenant had sublet the premises to respondent 2 without his consent.
2. The suit was contested by the appellant-tenant by his written statement Ex. 25 and the supplementary written statements Exs. 56 and 60 filed after the amendments in the plaint. Respondent 2, the alleged sub-tenant, adopted the written statement of the appellant by his purshis Ex. 30. During the pendency of the suit Section 12(3) of the Act was amended by Section 25 of the Amendment Act 18 of 1987 whereby clauses (a) and (b) of sub-section (3) of Section 12 were deleted and instead a new sub-section (3) was substituted which restricted the courts right to pass a decree for eviction on the ground of arrears of standard rent and permitted increases, if on the first date of the hearing of the suit or on such other date as the court may fix, the tenant paid or tendered in court the standard rent and permitted increases then due together with simple interest on the amount of arrears at the rate of 9 per cent per annum and thereafter continued to pay or tender in court regularly such standard rent and permitted increases till the final decision of the suit and also paid the cost of the suit as directed by the court. The appellant contended that the said amendment had retrospective effect and he was entitled to the benefit thereof. In the alternative he also contended that he had paid the rent to respondent 1 but the latter had failed to issue rent receipts. He also questioned the validity of the notice terminating his tenancy. He denied the allegation that he had sub-let the premises or has parted with the possession thereof in favour of responden
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