Purshottam Vinayak Shindikar Vs. Khushalsingh Gangaramsinh Rajput and ors. - Court Judgment

Excerpt:
tenancy - eviction - section 12 (3) of bombay rents, hotel and lodging house rates control act, 1947 - order directing eviction on grounds of non-payment of arrears of rent under section 12 (3) (a) challenged - alleged grounds that specified sum of rent along with electricity charges not been paid by tenant - tenant tendered lesser amount than what was demanded - tenant admitted that he is liable to pay charges for electricity consumed by him - no definite agreement between parties to pay electricity charges over and above monthly rent - tenant not in breach of section 12 (3) (a) - amount payable does not include electricity charges - impugned order set aside. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1. an interesting controversy has arisen in this case wherein both the trial court and the appeal court have arrived at a concurrent finding against the petitioner-tenant that the non-payment by him of the electricity charges in respect of the suit premises constitutes an actionable breach within the meaning of section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter for the sake of brevity referred to as 'the rent act'). the controversy assumes some significance because the issue that is raised and which is of some consequence, in so far as it would be applicable in numerous other cases, is the question as to whether the harsh action of eviction should follow in a case where the rent in question was tendered forthwith on the notice of demand being served, but the amount demanded under the head of electricity charges, which was in dispute, had not been tendered. it is precisely this aspect of the matter that is referred to by the learned judge when he refers to the transaction of the year 1971, wherein the amount of rs. 197-04 paise was actionable in so far as it comes clearly within the mischief as pointed out in the two division bench judgments. , and that the courts have very clearly held that where amenities go along with the premises that the amount chargeable for the provision of those amenities such as, for instance, the provision of electric power, come within the composite head of rent and that these are not divisible or separable entities. augustin, [1957]1scr20 .11. i do not for a moment dispute the position, therefore, that it is perfectly permissible to recover the electricity charges as a component of rent if the terms of the agreement so specify. this was precisely why in the instance referred to by the learned trial judge the amount of rs.m.f. saldanha, j.1. an interesting controversy has arisen in this case wherein both the trial court and the appeal court have arrived at a concurrent finding against the petitioner-tenant that the non-payment by him of the electricity charges in respect of the suit premises constitutes an actionable breach within the meaning of section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter for the sake of brevity referred to as 'the rent act'). the controversy assumes some significance because the issue that is raised and which is of some consequence, in so far as it would be applicable in numerous other cases, is the question as to whether the harsh action of eviction should follow in a case where the rent in question was tendered forthwith on the notice of demand being served, but the amount demanded under the head of electricity charges, which was in dispute, had not been tendered. it is not a matter of legal hair-splitting, but a question of a clear interpretation of section 12(3)(a) of the rent act, which this court is required to deliver on the facts of this dispute, which are set out below :2. the petitioner-tenant is in occupation of a tenement on the ground floor in a house situated on plot no. 5/2 within the municipal limits of amalner. the tenancy is an old one, having commenced in the year 1938 when the rent was rs. 8/- per month which was raised to rs. 12 per month and subsequently, when the present landlord became the owner, to rs. 13/- per month. the tenant approached the court in november 1972 on the ground that the amount of rs. 13 per month was inclusive of the electricity charges or, in other words, with an application that the court should determine the exact quantum of rent payable. this litigation dragged on untill january, 1975 when the tenant withdrew the proceedings. on 18-8-1975, the landlord served a notice on him demanding arrears of seven months' rent at the rate of rs. 13/- per month as also an amount of rs. 197-04 paise, which were the electricity charges for the period from 1-7-1971 to 9-8-1975. this aspect is of some significance for two reasons, the first of them being that the arrears under the head of rent were for a period of seven months; whereas the arrears under the head of electricity charges covered a span of 49 months. this aspect of the matter is of some significance. the tenant sent a reply dated 20-8-1975 wherein he contended that the amount payable by him at rs. 13/- per month was inclusive of the electricity charges. one needs to take note of the fact that the premises are extremely small, that the rate of electricity charges in those days was obviously much lower than what it is to-day and that, as the record indicates, the amount of electricity consumed in the premises was hardly in the vicinity of re 1/- to rs. 2/- per month. the background of the case also indicates that the monthly rent payable was varied from rs. 12 per month to rs. 13/- per month when the present landlord bought the premises.3. when the tenant raised the contention that this additional amount covered the electricity charges, the landlord did not accept this position. the landlord's clear case at all times was that the rent payable was exclusive of the electricity charges, though that amount was recoverable from the tenant as an amenity that was provided with the premises and was, therefore, recoverable along with and under the head of rent. in view of the non-remittance of rs. 197-84 paise when the tenant remitted the arrears of seven months' rent by money order on 20-8-1975, the landlord refused to accept the payment and instituted suit no. 12 of 1977 for eviction of the tenant on the ground of non-payment of arrears of rent under section 12(3)(a) of the rent act. this suit was resisted by the tenant on the ground that he cannot be construed as having committed an actionable default in so far as he had tendered the requisite amount of rent, that he was always ready and willing to pay the same and that, consequently, no decree in eviction could be passed in law against him. the trial court negatived this contention and the learned trial judge observed that even in the year 1971 the tenant had paid an amount of rs. 39/- when three months' rent was demanded from him apart from a sum of rs. 8/- which were electricity charges for those three months and that this action on his part negatived his defence that the rent of rs. 13/- per month was inclusive of the electricity charges. the learned trial judge upheld the view that where a specified sum was payable under the head of rent which, in the present case, was rs. 13/- plus the electricity charges and where the said sum was demanded and that tenant tendered a lesser amount than the amount that was demanded, that a breach under section 12(3)(a) of the rent act was complete and that, consequently, a decree of eviction had to follow as a matter of course.4. the tenant thereafter carried the matter in appeal. the learned appellate judge, after hearing the parties and examining the record, upheld the view projected by the learned trial judge in so far as the learned appellate judge also confirmed the position, both on facts and in law, that the tenant was obliged on the facts of this case to have paid the electricity charges that were demanded along with the amount of rs. 13/- which was defined as rent, that the tender of the lower amount was an improper and an insufficient tender in law, that the default was actionable and that the decree passed against the tenant was valid and liable to be upheld. it is against this judgment and order that the present writ petition has been filed. 5. shri abhyankar, learned counsel appearing on behalf of the petitioner, has taken me through the judgments of the two courts below and he has confined his arguments to only one contention. shri abhyankar does not dispute the position in law that if it is demonstrated that the petitioner-tenant was in arrears of payment of rent for over six months in august, 1985 when the demand notice was served on him and if he has not tendered what the law required him to do so that a decree shall follow and that there is no option left with the court in the matter. shri abhyankar also concedes the position that the powers of interference by this court are very limited and circumscribed and that this court will not exercise its jurisdiction unless it is demonstrated in law that the two courts below have committed a grave and manifest error. he also accepts the position that this is the third round of the proceedings wherein there can be no question of re-appreciation of evidence. starting from this premises, shri abhyankar submits that taking the record as it exists, he will be in a position to demonstrate that within the framework of the law both the trial court and the appellate court are in gross error and that a decree could not have resulted. towards this end, shri abhyankar draws my attention to the passages in the judgment of the trial court wherein there is a clear reference to the terms of the notice of demand. he states that, admittedly, on the facts of this case, there was a common power supply to the various tenements, one of which was in occupation of his client. the landlord, therefore, paid the electricity bills and thereafter recovered the electricity charges from the various tenants, obviously on a pro-rata basis. the record indicates that as far as the present petitioner is concerned, he was upset by the fact that the manner in which the electricity charges were divided were unfair to him because some other tenants used more power and that his consumption was less; whereas he was required to pay a higher amount under this head. he, therefore, got a separate sub-meter installed, but obviously since the premises were in the name of the landlord, the sub-meter also stood in the landlord's name and the only utility that it served was that it indicated the actual consumption of electricity used by the present tenant. it is quite clear from the record that the tenant was not unreasonable and that he never refused to pay his share of the electricity charges and that he used to reimburse to the landlord this amount apart from the rent. it is precisely this aspect of the matter that is referred to by the learned judge when he refers to the transaction of the year 1971, wherein the amount of rs. 39/-, being three months' rent, is paid and rs. 8/- for which three months' electricity consumed is obviously tendered along with the rent at which time the tenant has specified the number of units of electricity consumed by him according to his meter-reading and tendered the payment in respect thereof. it is on the basis of this material that shri abhyankar has advanced the submission that the learned trial judge was certainly wrong in having held on these facts that the amount payable under the head of rent was an amalgamated amount from which the rent of the premises and the electricity charges were inseparable. shri abhyankar's contention is that the two amounts were definitely separable and that, consequently, the electricity charges in this case did not form a component of the rent. starting from this premise, shri abhyankar advanced the submission that a decree under section 12(3)(a) of the rent act can follow only if it is demonstrated that his client was in arrears or that he was not ready and willing to pay the rent demanded for a period of six months or more. shri abhyankar relies on the fact that the tenant has forthwith replied the notice dated 18-8-1975 on 20-8-1975 and he has, by a money order of the said date, tendered the full amount of arrears due at the rate of rs. 13/- per month and not any lesser amount. he states that on these facts, therefore, the learned judge was not justified in having passed the decree because the law requires that such a decree can be passed only if the arrears are for a period of over six months which presupposes the fact that the arrears are of rent. it is, undoubtedly, a fine distinction, but shri abhyankar insists that the rigours of a decree of eviction cannot follow unless the case strictly comes within the four-corners of law and that, under these circumstances, he assails the validity of the decree that has been passed against his client.6. shri karlekar, learned counsel appearing on behalf of the landlord, pointed out to me that this is a case in which no interference is called for not only because this court is required to be very guarded and slow in interference with a case where two courts have arrived at concurrent findings of fact, but mainly because the view canvassed by both the courts below is fully supported by the law. in the first instance, shri karlekar has drawn my attention to two division bench judgments of this court, the first of them in the case of nandlal topandas v. r.k. joshi 76 bom.l.r. 703, and the other in the case of kartarsingh v. muktabai 76 bom.l.r. 706. in both these cases, it was shown that the tenant, on the demand being made, had tendered an amount lesser than the aggregate amount demanded from him as a result of which the argument was advanced that the arrears in question got reduced to a period of less than six months. in other words, it was a part payment and the tenant had sought to take refuse under the argument that the arrears having come below six months that no decree in eviction could follow. the position in law was clarified and this, in fact, is the crystal clear position as finds support from several judgments not only from this court but also the supreme court, that if the whole of the amount demanded is not paid the default takes place and it cannot avail the tenant to argue that the amount outstanding is equivalent to less than six months' arrears and, therefore, no decree can follow. on this basis, shri karlekar submits that the non-payment of the total amount demanded by notice dated 18-8-1975 constituted a breach and the tender of seven months' rent at the rate of rs. 13, namely, rs. 91/- without the payment of the additional amount of rs. 197-04 paise was actionable in so far as it comes clearly within the mischief as pointed out in the two division bench judgments. in this view of the matter, he submits that the argument canvassed by shri abhyankar is liable to be rejected.7. shri karlekar then contended that there is absolutely no defence whatsoever on the facts of the present proceedings available to the tenant in so far as if at all it was his case that there was a dispute in respect of the amount payable that it was obligatory on the tenant's part to have got that issue resolved as the law requires, by applying to the court within a period of one month for resolution of that dispute. shri karlekar advanced the additional submission that, admittedly, the tenant had gone to the court in 1972 for resolution of this very issue and that he withdrew the proceedings in 1975 without that issue having been resolved. under these circumstances, he contended that it must be held that the tenant had conceded the position that there was no controversy left with regard to the payment by him of the electricity charges as a component of rent.8. in this regard, shri karlekar drew my attention to a decision of the gujarat high court in the case of khemchand v. mahmadbhai, gujarat law reporter, 829. that was a case where a distress warrant had been issued for the recovery of an outstanding amount under the provisions of the bombay rent act and shri karlekar pointed out to me that the court has in no uncertain terms observed that the electricity charges formed part of the rent payable. shri karlekar contended that the rent, as is to be found from the definition in the statute, does not consist only of the compensation for the occupation of the land or property leased out, but it also encompasses certain other heads such as, for instance, a cess, certain taxes, etc., and that the courts have very clearly held that where amenities go along with the premises that the amount chargeable for the provision of those amenities such as, for instance, the provision of electric power, come within the composite head of rent and that these are not divisible or separable entities. he repelled the argument of shri abhyankar who had submitted before me that in a given case electricity charges would form part and parcel of the term 'rent', but that these charges are not necessarily inclusive, the submission being that it would depend on the terms and conditions agreed upon at the time of lease. it is shri karlekar's submission that in all these types of cases where there is no written document executed at the time when a small room or some tiny premises are given out on rent that the court will have to gather from the overall facts and circumstances and the position in law as to what constitutes the component of the term 'rent' that it is impermissible to contend that electricity charges are exclusive. towards this end, he pointed out to me that the court must look to the actual facts of the case individually and that in the present instance, admittedly, there was a common power supply and common electric meter and, under these circumstances, there can be no gainsaying that the landlord was empowered as of right and as of law to recover the pro-rata electricity charges for this amenity every month as the component of the rent. he submitted that it is quite irrelevant as to whether it was shown as a separate head or an inclusive bill was issued because shri abhyankar pointed out to me that even in the earlier bills, the electricity charges had been separately noted. shri karlekar's answer is that this was purely for accounting purposes and in order to clarify as to how the total had been arrived at, but that the legal obligation was very clear in so far as the rent payable per month necessarily included the electricity charges in respect of the premises.9. shri karlekar thereafter relied on a decision of the supreme court in the case of puspa sen gupta v. susma ghose, : [1990]2scr564 . this was a proceeding under the west bengal premises tenancy act and in that particular case the tenant was required to pay rs. 32/- per month as rent and an additional sum of rs. 8/- per month for electricity charges. when the arrears were demanded, the rent amount was paid and the electricity charges were not paid and the supreme court upheld the decision of the calcutta high court that the non-payment of the electricity charges constituted a breach and that it was on par with the non-payment of rent in the true sense of the term. shri karlekar submitted that there can be no case on facts which is closer to the present one than the case referred to supra wherein the two amounts were bifurcated and separately shown and where default in payment of the electricity charges was held to be a sufficient ground for eviction. shri abhyankar sought to distinguish this decision by contending that the west bengal premises tenancy act did make a provision for recovery of various amounts, even for furniture, etc., and that, consequently, the law as enforced in that proceeding would not be applicable in relation to a case under the bombay rent act. cumulatively, on the strength of this material, shri karlekar made a forceful plea that this court should refuse to interfere with the decree that has been passed and confirmed by the appeal court and that neither on facts nor in law has any case been made out for the orders of the lower courts to be varied.10. the facts in this case are hardly in dispute and, in any event, this is not the stage for any re-appreciation of the evidence. as regards the position in law, quits apart from the decisions that have been cited before me, it is quite clear that the payment of electricity charges can form part and parcel of the component of rent, even under the bombay rent act. it is, however, essential, as has been pointed out by the courts, that the terms and conditions under which the parties have entered into an agreement of lease are required to be carefully scrutinized. this is because there is no provision which ipso facto permits the inclusion of electricity charges in the component of rent. if it is, therefore, the understanding and the contract between the parties that this is to be the position, then regardless of whether it is shown as a composite head or regardless of whether it is shown as an addition would make little difference. i need to observe here that the supreme court in puspa sen gupta's case referred to supra had occasion to deal with some of the earlier cases decided by the supreme court, notably, the case of radha kishan sao v. gopal modi, : [1977]2scr984 , wherein the supreme court did take the view that non-payment of electricity charges would constitute a default. that case was, however, distinguished by the supreme court as the facts of the earlier case were entirely different. the supreme court considered and approved of a decision of the calcutta high court in the case of residence ltd. v. surendra mohan baneries, : air1951cal126 , wherein the court had taken the view that if additional services or amenities are provided for by a landlord that the charges against the same are recoverable as a part of the component of rent. this view was affirmed by the supreme court in the case of kamani properties ltd. v. augustin, : [1957]1scr20 .11. i do not for a moment dispute the position, therefore, that it is perfectly permissible to recover the electricity charges as a component of rent if the terms of the agreement so specify. this however, is not by operation of law. it is in these circumstances that the principle will have to be applied to the facts of the present case. i do find on a scrutiny of this record that the tenancy which commenced in the year 1938 continued all the way until the time when the present landlord purchased the premises, the only difference being that the monthly rent payable increased from rs. 8/- per month to rs. 12/- per month. we do not have on record any indication as to when an electric power connection was made available to the premises. the record is entirely silent with regard to this important aspect. it, however, indicates that when the rent payable was increased by the present landlord from rs. 12/- per month to rs. 13/- per month that the tenant did raise the contention that the amount did include the electricity charges and that he was not liable to pay those charges separately. what is necessary for me to take cognizance of is the fact that the tenant did not refuse to pay for the amenity provided for him along with the premises, but he contended that this was inclusive in the overall amount recoverable from him every month under the head 'rent' as was done earlier. in the absence of any clear indication as to whether or not there was electric power in the premises earlier, there is some ambiguity that arises on the record of this case as to what was the position prior to the increase of rent from rs. 12/- per month to rs. 13/- per month. when the tenant contends that the amount of rs. 13/- per month was inclusive of the electricity charges, one needs to take note of the fact that vis-a-vis the existing arrangement or agreement between him and the landlord that it cannot be held that there was a clear understanding between the parties which forms the terms of lease that the amount payable every month of rs. 13/- was exclusive of the electricity charges. this, to my mind, is condition precedent for purposes of applying the rigours of section 12(3)(a) of the rent act to the facts of the present case. it must be held on the present facts and to that extent, to my mind, shri abhyankar is right when he pointed out that the law has been misapplied by the trial court and by the appeal court. shri abhyankar did submit before me that if the record was unambiguous and if it was shown that there was a definite agreement to pay the electricity charges as and by way of component of the rent or if it was shown that the amalgamated amount was recoverable inclusive of the electricity charges and there was a default in tendering this amount that the position would be unanswerable for him. he, however, emphasised very strongly that on the facts of this case, the courts have gone manifestly wrong in having passed a decree under section 12(3)(a) of the rent act. the position in law as enunciated by shri karlekar is unanswerable and, in fact, that is the correct position. i, however, find some difficulty in upholding the decree passed against the present petitioner in so far as, to my mind, the record does not indicate that there was a definite agreement between the parties to pay the electricity charges over and above the amount of rs. 13/- per month which was the monthly rent payable. in these circumstances, when the tenant made a tender of the amount of rs. 13/- per month exclusive of the amount of electricity charges, he cannot be said to have been in breach of the provisions of section 12(3)(a) of the rent act. i need to further record that the conduct of the parties, which i have had occasion to refer to earlier, supports the view canvassed by shri abhyankar rather than the one canvassed by shri karlekar. admittedly, since there was no agreement between the parties that the electricity charges formed part and parcel of the component of rent, but at the same time since the tenant was liable to reimburse this amount, he was indicating the exact amount of electricity charges consumed by him and tendering it along with the rent that was demanded. this was precisely why in the instance referred to by the learned trial judge the amount of rs. 39/- by way of rent of three months was paid and an amount of rs. 8/- was separately calculated as the electricity charges and it may be that the two amounts were tendered together. this, however, to my mind, will not amalgamate them nor can it be held on the facts of this case that the amount payable included the electricity charges.12. shri karlekar, learned counsel appearing on behalf of the landlord, drew my attention to two passages that have been extracted verbatim, both by the trial court and the appeal court which, according to him, constitute total and complete admission in law on the part of the tenant to pay the electricity charges and he, therefore, submitted that the matter is beyond any shred of dispute. both the courts below have placed heavy reliance on this statement which i am not reproducing verbatim as the same is in marathi. in sum and substance, the sentence reads that the tenant does not dispute the fact that he is liable to pay the charges for the electricity consumed by him from month to month. i have taken full cognizance of this statement, but, to my mind, the courts were not justified in treating this as an admission of the fact that the electricity charges formed part and parcel of the component of rent. to my mind, that issue, for the reasons set out by me earlier, was in dispute, but the court went wrong in interpreting this statement to establish that the tenant has not disputed the fact that he is liable to pay for the electric power that had been consumed by him, but it was his case that this amount being extremely small that it came within the amount of rs. 13/-. to that extent, it cannot be construed as being an admission that the amount was in addition to the amount of rs. 13/-. undoubtedly, this is a fine distinction, but it does make a difference on the facts of this case.13. in the light of this position, to my mind, the trial court was in error in having passed a decree for eviction and so was the appeal court in confirming that decree. the writ petition accordingly succeeds. the orders of the trial court and the appeal court are set aside and the suit stands dismissed.14. shri abhyankar informs me that his client has deposited in the trial court all the arrears that were due from him uptodate. shri abhyankar also states that his client does not desire to invite any further trouble by raising any dispute with regard to the electricity charges payable by him month to month for the amount of electric power consumed by him and that if at all there are any outstanding amounts under either of the two heads that the same will be deposited by him client in the trial court within a period of four weeks from the receipt of this order by the lower court. the respondents shall be at liberty to withdraw all such amounts deposited in the trial court. the writ petition accordingly succeeds and is allowed. the rule is made absolute. no order as to costs.