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IN THE HIGH COURT OF BOMBAY
A.P. Shah, J.
Lalji Lachhamndas ..... Petitioner.
Versus
Amiruddin Amanulla another ..... Respondents.
Writ Petition No. 3845 of 1983, decided on 16/18 26-6-1998.
Advocates appeared:
G.S. Godbole as Amicus Curie, for petitioner.
Anita A. Agarwal, for the respondents.
Section 12(3)(a) - Maharashtra Slum Areas (Improvement Clearance and Redevelopment) Act, 1971, Section 22(1)(a) and 4 - Default in payment - Applicability of Act-contention that as the area within which the property lies is declared as slum, the suit is barred under Section 22(a) of the Slum Clearance Act, does not hold good, because the suit was filed much before declaration and also the said declaration has been declared void, therefore, the provisions of the Act shall not be applicable.
Section 12(3)(a)-Validity of notice for termination of tenancy, if there is no dispute about standard rent the courts below have done mistake by unnecessarily raising the issue, even if the landlord has given notice for rent at different rate, the tenant should have made payment at the rate of standard rent, the notice shall not be termed as invalid, only because the amount was a meagre one.
Sections 12(3)(a) and 11(3)(b)Relevance of dispute of default in payment-As per the decision of Supreme Court in AIR 1976 SC 2205, even if the tenant has not raised an issue of standard rate but only dispute about rent, under Section 11, the case will come within purview of Section 12(3)(a) of the Act.-Within the protection of Section 12(1) of the Act where a tenant raises a dispute about the standard rent payable, he must make an application to the Court under Section 11(3) of the Act and thereafter, pay-or tender the amount or rent and permitted increases, if any, specified in the order made by the Court. If he does not approach the Court under Section 11(3) it is not open to him thereafter to claim protection of Section 12(1) and, therefore, where a suit was filed on the ground that the tenant was in arrears for a period of more than six months and although a dispute was raised by the tenant as to the standard rent or permissible increased recoverable under the Act, the tenant made no application in terms of Section 11(3), he cannot claim protection of Section 12(1) by merely offering to payor even paying all arrears due from him when the Court is about to pass a decree against him.
In Harbanslals case, AIR 1976 SC 2005, the Supreme Court held that in order to avoid the operation of Section 12(3)(a) of the Act, the dispute in regard to standard rent or the date of service of notice under Section 12(2) of the Act and it is not enough to raise a dispute for the first time in written statement.
The Appellate Court has relied upon the judgment of Jahagirdar, J., in Gulabchand v. Voorbag, 1980 Born CR 716. In that case the learned Judge relying upon his earlier judgment in Mohanlal v. Khemraj, 1978 Mah LJ p. 611, held that in order to establish that there is dispute about standard rent it is not necessary for the tenant to make application under Section 11(3) read with Explanation 1 of Section 12 of the Rent Act within one month of the notice under Section 12(2). Such a dispute could be raised in a manner other than by the filing of an application for fixation of standard rent. It was held that by the reply to the notice if the tenant has raised with the provisions of the Act.
It is required to be noted at this stage that the decision of Justice Jahagirdar in Gulabchands case, 1980 Born CR 716 was over ruled by the Division Bench of this Court in the case of Jaypal Bandu Adake and another v. Basavali Gurulingappa Mhalank and another, 1982 Mah LJ p. 512. The Division Bench observed :
The only way to prevent a decree for eviction being passed under the provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act is that the tenant must make an application raising a dispute regarding rent and must ask for fixation of standard rent under Section 11 (3) of the Bombay Rents, Hotel and Lodging House Rates Control Act as required by Explanation 1 to Section 12. There is no other mode permissible for raising a dispute as to standard rent for the purposes of Section 12 of the Bombay Rent Act. By raising a dispute with regard to standard rent by the tenant in a reply to the demand notice before the expiry of one month without making an application under Section 11(3) read with Explanation 1 to Section 12, the Court will not be prevented from passing a decree for eviction under the provisions of Section 12(3)(a)."
Similar view was expressed by the Division Bench in Chaganlal v. Narayan Jagannath, 1983 Mah LJ p. 251. It was held that whenever a Court has to consider a case under Section 12(3) of the Rent Act, the question of standard rent cannot be gone into unless the tenant has made an application for that purpose within one month from the receipt of the notice. In as much as a tenant precluded from raising a dispute about the standard rent in a suit if he has not filed any application within one month from the receipt of the notice, it is clear that he cannot raise such a contention about the standard rent for the purpose of urging that he was all while ready and willing to pay the standard rent and that he could not pay because the standard rent was not fixed.
It is thus seen that in I.A. Shaikhs case, AIR 1994 SC 1609, the Supreme Court considered its previous judgments in Harbanslal v. Prabhudas, and Dhansukhlal v. Dalichand, AIR 1976 SC 2005, but it was only in the context of the question posed before the Supreme Court whether the case was covered under Section 13(I)(b) of the Act or not. In this context it was observed by the Supreme Court that in case the tenant disputes standard rent or permhted increases in the notice, the tenant in enjoined under Section 12(3)(a) of the Act to dispute the correctness thereof and to plead prevailing one by issuing a reply notice within one month from the date of its receipt. If he fails to dispute and omits to pay arrears within one month from the date of receipt of the notice, he becomes liable to be evicted under Section 12(3)(a) of the Act. It was noticed by the Supreme Court that the statute did not prescribe any period of limitation under Section 11(3) to file the application for fixation of standard rent and, therefore, it was observed that even though application under Section 11(3) is not filed within one month expeditious action is called for to prove the bona fides of the tenant disputing the right of the landlord in the claim of standard rent or permitted increases. In I.A. Shaikhs case, the Supreme Court was not concerned with the question whether the tenant can take up a plea of standard rent in the written statement or not and, therefore, the observations made in that case are of no help Supreme Court in Harbanslal v. Prabhudas, and Dhansukhlal v. Dalichand. In the instant case, the tenant has not filed the standard rent application. He has merely raised the dispute in the written statement. Thus applying the ratio in Harbanslals case, the present case is clearly governed by Section 12(3)(a) of the Act.
Coming then to the argument of Mrs. A about the validity of the notice, it is seen that both the lower courts have committed an error in deciding the issue of standard rent in the absence of a standard rent application filed by tenant under Section 11 of the Act. No dispute about standard rent is permissible to be raised in a suit if the tenant has not made any application under Section 11 of the Act. There finding of fixation of standard rent was thus uncalled for and was without jurisdiction. Even assuming that the standard rent is Rs. 12/- the notice making demand at the rate of Rs. 13.50 ps. cannot be said to be bad in law. The respondent had an option to pay the undisputed amount of rent i.e. at the rate of Rs. 12/- per month and raise dispute as regards the rest or the claim as made by the landlord, which he has not done so, and instead he has raised the dispute in the reply to the notice. As held by the Division Bench in Chhaganlal v. Narayan Jagannath, any mistake in making demand for short amount would not render the police invalid. Same view is reiterated by another Division Bench in Purushottam Bhandudas Palse v. Shakuntalabai Vishwanath Ayyaswam, Writ Petition No. 3650 of 1981. Therefore, the contention about validity of notice must rejected.
2. The respondent in his defence filed on 13th February 1969 challenged the notice terminating his tenancy as it was invalid. He also contended that the contractual rent was not Rs. 13.50 ps. as alleged but it was Rs. 12/- only. According to him he was not in arrears of rent from April 1967 as alleged. He denied having changed the user of the premises. He also denied having constructed any unauthorised structure as alleged. According to him the contractual rent of Rs. 12/- charged by the petitioner was in excess of the standard rent. He pleaded protection of the Rent Act and contended that the suit be dismissed with costs.
3. On these pleadings the learned trial Judge framed relevant issues. On the examination of the evidence of the parties both oral and documentary, the learned trial Judge came to the conclusion that the tenancy of the respondent was duly terminated by legal and valid notice. On the question of standard rent the learned trial Judge came to the conclusion that the standard rent in respect of the suit premises was Rs. 12/- per month. The learned trial Judge held that the respondent was in arrears of rent from April 1967 and he failed and neglected to pay the arrears within time inspite of receipt of notice of demand. On the question of change of user the learned Judge found that the respondent has changed user of the suit premises from residence to business. As regards the third ground, the learned Judge found that the respondent had not carried out any unauthorised construction of permanent nature as alleged by the petitioner. In view of these findings, the petitioner was held to have become entitled to recover possession of the suit premises and therefore, a decree in eviction was passed against the respondent.
4. Against the decree passed by the trial Court, the respondent preferred Civil Appeal No. 470 of 1976 which came to be allowed by the Appellate Bench of the Small Causes Court on 22nd December 1981. The Appellate Court held that there is no convincing evidence brought on record to suggest that the suit premises was used for commercial purpose and therefore, the ground of change of user was negatived. As regards the ground of default the Appellate Court noted that the respondent had raised dispute of standard rent by reply notice and therefore relying upon a decision of Jahagirdar, J., in (Gulabchand Ramchand Jain v. Noorbeg Umbarbeg Mirza)1, reported in 1980 Bom.C.R. 716 the Appellate Court held that the tenant must not necessarily make an application under section 11(3) of the Act and even when he does not make an application under section 11(3) of the Act his case will be governed by the provisions of section 11(3)(b) of the Act if the evidence otherwise shows that a dispute about the standard rent is raised within one month after the receipt of the 'notice. The petitioner has now challenged the decree passed by the Appellate Court by this petition
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