Equivalent Citation: 2008(5)MhLj955
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
W.P. No. 2821 of 2008
Decided On: 03.07.2008
Appellants: Ravindra D. Ahirkar
Vs.
Respondent: Ravikishore S/o Ramkisanji Pashine and Anr.
Vs.
Respondent: Ravikishore S/o Ramkisanji Pashine and Anr.
Hon'ble Judges/Coram:
A.B. Chaudhari, J.
A.B. Chaudhari, J.
Tenancy - Eviction - Water Charges - Sections 7(8), 12, 15 and 15(2) of Maharashtra Rent Control Act, 1999 - Petitioner-tenant filed present writ petition against order of his eviction from suit promises on account of water/revised water charges - Petitioner contended that Section 15(2) of Act does not permit default in payment of water charges as ground for eviction of tenant as amount of water charges cannot be constituent of permitted increases - It is further contended that notice claiming arrears of water charges for relevant period is defective because there is claim in respect of future demand for water charges and Section 15 of Act contemplates only amounts due - Held, perusal of Section 7(8), 12 and 15 of Act show that water charges/revised water charges have been treated by legislature as part of rent - This appears to have been deliberately made by legislature in order not to have loose end in provision about inclusion of water charges/revised water charges into rent - Admittedly, rent can be increased and such increased rent would also fall in category of permitted increases - Thus, water charges/revised water charges become part of rent and consequently submission made by petitioner will have to be turned down - Notice issued by respondent claiming water charges/revised water charges from petitioner is clearly for relevant period which is about a period of nine months - Demand for water charges was served on respondent on relevant dates - Therefore, even if these two dates are taken into consideration to find out whether amount of water charges are due or not, same can be termed as amount due - Hence, there is no merit in writ petition and same is dismissed accordingly
1. Rule returnable forthwith. Heard finally by consent of the parties.
2. Learned Counsel for the petitioner made the following submission before me,
(1) Section 15(2) of the Maharashtra Rent Control Act, 1999 does not permit default in payment of water charges as a ground for eviction of a tenant as the amount of water charges cannot be the constituent of the permitted increases. The notice dated 4-6-2001 claiming arrears of water charges for the period from 1-8-2000 till 31-5-2001 is defective because there is a claim in respect of future demand for water charges and Section 15 of the Act contemplates only the amounts due.
(2) That the finding recorded by the Appellate Court holding that the petitioner/tenant has acted in violation of Section 16(1)(b) of the Act is incorrect and illegal because the petitioner sold cloth cut pieces in his shop and that is integral part of business of tailoring.
3. Per contra, learned Counsel for the respondents made the following submissions:
(1) Section 15(2) will have to be read with Section 7(8) and Section 12 of the Maharashtra Rent Control Act, 1999. A harmonious construction of these provisions read with Section 15 of the Act will show that water charges/revised water charges by the Corporation is a part of permitted increases and, therefore, Section 15(2) of the Act enables the landlord to issue quit notice.
(2) By notice dated 4-6-2001, demand of revised water charges for the period from 1-8-2000 to 31-5-2001 was made. The notices demanding water charges were received on 9-12-2000 and 2-3-2001. Even if these two dates i.e. 9-12-2000 and 2-3-2001 are taken as due dates, there is default on the part of the tenant for aggregate period of three months and, therefore, the landlord was entitled to issue quit notice to the tenant.
(3) It is not disputed position that in order to carry out the business of selling cloth cut pieces, the petitioner tailor-tenant constructed a permanent structure in the form of mezzanine floor in the tenanted premises without consent of the landlord in writing and in clear cut violation of the building construction rules of the Corporation for which respondent received notice for unauthorised construction. Learned Counsel for the respondents, therefore, prayed for dismissal of the writ petition.
4. I have gone through the impugned judgments made by the trial Court and the Appellate Court and having heard Counsel for the rival parties, I find it profitable to reproduce Section 15 of the Act.
15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increase. - (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 increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.
(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.
(4) Pending the disposal of any suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit.
5. Perusal of the above provisions show that Sub-section (1) in addition to the standard rent and permitted increases also speaks of the terms and conditions agreed upon between the landlord and the tenant. But then the penal provision is to be found in Sub-section (2) which does not provide for the terms and conditions in the agreement between landlord and tenant. However, for interpreting provision of Section 15(2) of the Act one will have to look to the other provisions of the Act. It is essential to have harmonious construction of the provisions of this Act. Section 7(8) read with Section 12 of the Act are reproduced below:
Section 7(8). "Permitted increase " means an increase in rent permitted under the provisions of this Act.
12. Increase in rent on account of payment of 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 any 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 building, or increase in electricity or water charges, as the case may be.
6. Perusal of these provisions show that water charges/revised water charges have been treated by the legislature as a part of the rent. This appears to have been deliberately made by the legislature in order not to have loose end in the provision about inclusion of water charges/revised water charges into rent. Admittedly, rent can be increased and such increased rent would also fall in the category of permitted increases. Thus, I find that water charges/revised water charges become part of the rent and consequently the submission made by Advocate Shri Dhumale will have to be turned down.
7. The notice dated 4-6-2001 issued by the landlord claiming water charges/revised water charges from the tenant is clearly for the period from 1-8-2000 to 31-5-2001 which is about a period of nine months. According to landlord the total amount due was Rs. 1040/- for this period against the tenant. The learned Counsel for the respondents submitted that this demand for water charges was served on the landlord on 9-12-2000 and 2-3-2001. Therefore, even if these two dates are taken into consideration to find out whether the amount of water charges are due or not, in my opinion, the same can be termed as amount due. Submission made by Advocate Shri Dhumale on this aspect therefore does not appeal to me. Now insofar as the construction of permanent structure, namely, the mezzanine floor is concerned, there is no dispute that the petitioner made the construction without the consent of the landlord. Section 16(1)(b) of the Act requires such consent in writing. It appears that the petitioner on his own made the said construction in violation of the building control rules and as a result the respondent landlord received a notice from the Corporation for violation of those rules. The construction of a mezzanine floor is obviously a permanent structure. Therefore, the case falls in the mischief of Section 16(1)(b) of the Act. Thus, on all these counts, the Appellate Court has rightly found that the petitioner/tenant was liable to be evicted. I, therefore, do not find any merit in the writ petition. The same is, therefore, dismissed.
Rule is discharged. No order as to costs.
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