Punjab-Haryana High Court
Hari Chand vs Kishori Lal on 7 February, 2003
Equivalent citations: (2003)134PLR172
JUDGMENT M.M. Kumar, J.
1. Hari Chand petitioner has approached this Court by the instant petition filed under sub-section 6 of Section 15 of the Haryana Urban (Control) of Rent & Eviction) Act, 1973 (for brevity, the Act) challenging the order dated February 27, 1985 passed by the Appellate Authority, Jind, dismissing his ejectment application. The only ground taken in the ejectment application was payment of arrears of rent and house tax with effect from May 1, 1982 to December 31, 1982.
2. The landlord-petitioner filed Rent Case No.53 of December 15, 1982 pleading that the demised premises was let out to the tenant-respondent on September 1, 1972 at a monthly rent of Rs.70/- and a rent note to that effect was also executed between the parties on April 1, 1977. The fair rent of the shop was fixed at Rs.82/-. He sought ejectment of the tenant-respondent on the ground of non-payment of rent from May 1, 1982 to December 31, 1982. He also pleaded that the increase in the house tax to the extent of 5% with effect from April 1, 1983 has also not been paid. A registered notice to that effect was given by the landlord-petitioner to the tenant-respondent.
3. Despite issuance of notice as required by Section 8 of the Act, the tenant-respondent appeared on 25.1.1993 and offered to pay rent for the period 1.5.1982 to 31.1.1983. However, he refused to tender the house tax on the ground that he was not liable to pay the same. A total amount of Rs.789/- was tendered which was rent for 13 months, interest amounting to Rs.25/- and costs of Rs.35/- as were assessed by the Rent Controller.
4. In his written statement, the tenant-respondent took the stand that he was not liable to pay the house tax and disputed the receipt of notice from the landlord-petitioner. On the basis of pleadings of the parties, the following issues were framed;-
1. Whether the respondent is liable to eviction on the grounds mentioned in the application? OPP
2. Whether the tender of the rent is not valid? OPP
3. Relief.
5. On issue Nos.1 and 2, the Rent Controller recorded the finding that when the Municipal Committee increased the house tax to the extent of 5% i.e. from 7-1/2% to 12-1/2% with effect from 1.4.1981, the tenant-respondent was under legal obligation to pay the increased amount of house tax as provided by Section 8 of the Act. The landlord-petitioner also served a valid legal notice under registered cover calling upon the tenant-respondent to pay the house tax at the rate of 5%. The notice having been duly received by him was also replied and he disowned his liability to pay house tax. Therefore, the Rent Controller reached the conclusion that the tenant-respondent has failed to discharge his legal obligation of paying house tax to the landlord-petitioner and was ordered to be ejected.
6. On appeal by the tenant-respondent, the Appellate Authority proceeded to reverse the findings recorded by the Rent Controller observing that even if the tenant-respondent is held liable to pay the house tax, then the tenant-respondent having tendered the arrears of rent upto 31.12.1982 inclusive of the month of January, 1983 which had not yet become due, the over paid rent could be adjusted towards the payment of house tax w.e.f. 21.4.1982 i.e. from the date of notice. As the arrears of house tax w.e.f. 21.4.1982 was calculated to Rs. 48.80 paise till 31.12.1982 and Rs.82/- extra rent of one month had already been paid, the tender would be deemed to be valid. This view of the Appellate Authority is reflected in paragraph 7 of the judgment, which reads as under;-
"..... Before me, in appeal, the liability of the tenant to pay the house tax at the enhanced rate of 12-1/2 per cent (previously it was 7-1/2 per cent) from the date of the notice Ex.P1 i.e. 21.4.1982 has not been challenged. Only argument of the learned counsel for the appellant is that in the application which was filed on 13.12.1982, the landlord had claimed arrears of rent up to 31.12.1982 but the appellant had tendered the arrears of rent up to 31.12.1982 on 25.1.1983 which was accepted by the landlord and that as rent for the month of January, 1983 had not become due by that time, this rent may be adjusted towards the payment of house tax w.e.f. 21.4.1982 which come to Rs.48/80 paise only. Perusal of the application would show that the landlord had therein claimed arrears of rent w.e.f. 1.5.1982 to 31.12.1982. However, vide his statement dated 25.1.1983, the tenant had tendered the arrears of rent w.e.f. 1.5.1982 to 31.1.1983 together with interest and costs of the proceedings as assessed by the court. Therefore, when this rent was tendered and accepted by the landlord, rent for the month of January, 1983 had not yet become due. Thus the landlord had received one months rent amounting to Rs.82/- in advance from the tenant. In view of the authorities of our own Hon'ble High Court reported as Pritam Singh v. Smt. Sibo, (1980)82 P.L.R. 577; (1980)82 P.L.R. 577. Pahlad Singh v. Bishan Dass and Ors., 1984 H.R.R. 604, and Mulakha Raj v. Ram Rup, 1985(1) C.L.J. (C&CR) 105, this amount of Rs.82 can be adjusted towards the payment of house tax amounting to Rs.48,480 paise. Now if this amount is adjusted towards the payment of the house tax, then there is no short tender in the case."
7. I have heard Ms. Monika Goel, learned counsel for the landlord-petitioner and Mr. Bhoop Singh, learned counsel for the tenant-respondent. It has been urged on behalf of the landlord-petitioner that in paragraph 2 it has been made absolutely clear that house tax has been imposed on an enhanced rate of 12-1/2% raising it from 7-1/2% for 1981-82. A notice regarding enhanced rate of house tax has already been sent by registered post to the tenant-respondent on 21.4.1982 stating therein that the liability to pay enhanced rate of house tax to the extent of 5% is on the tenant-respondent. Therefore, it cannot be claimed that only payment at enhanced rate from the date of notice i.e. 21.4.1982 was due.
8. Mr. Bhoop Singh, learned counsel for the tenant-respondent has argued that averments made in paragraph 4 of the ejectment application clearly show that house tax has been claimed at the enhanced rate of 5% w.e.f. 21.4.1982. Therefore, the tender is absolutely valid as has been rightly held by the Appellate Authority.
9. I have thoughtfully considered the rival submissions made by the learned counsel and of the view that this petition is devoid of merit. Section 8 of the Act reads as under:-
"8. Increase of rent on account of payment of rates, etc., of local authority.
Notwithstanding anything contained in any other provision of the Act a landlord shall be entitled to increase the rent of a building or rented land if after the commencement of the tenancy a fresh rate, cess or tax is levied in respect of the building or rented land by any local authority, or if there is an increase in the amount of such a rate, cess or tax being levied at the commencement of this Act;
Provided that the increase in rent shall not exceed the amount of any such rate, cess or tax or the amount of the increase in such rate, cess or tax, as the case may be.
Provided further that such increase in rent shall be payable by the tenant from the date of despatch of the written notice of demand sent by landlord under registered cover.
(2) Notwithstanding anything contained in any law for the time being in force or any contract, no landlord shall recover from his tenant the amount of any rate, cess, tax or any portion thereof in respect of any building or rented land occupied by such tenant by any increase in the amount of the rent payable or otherwise save as provided in Sub section (1)."
A perusal of Section 8 of the Act makes it evident that a landlord is entitled to increase the rent of a building if after the commencement of the tenancy, there is either imposition of fresh tax or on increase in the amount of such a rate to the extent of increase. The above increase is further subjected to the condition that such an increase would be payable by the tenant from the date of despatch of the written notice of demand under registered cover.
The aforementioned provision came up for consideration before the Supreme Court in somewhat similar circumstances in the case of Jyoti Prashad Vinod Kumar and Anr. v. Yash Pal and Ors., (1997-1)115 P.L.R. 55. Analysing the above provision, their lordships observed as under;-
"Specific attention need be invited to the second proviso which mandates that increase in rent due to levy or increase in rate, cess or tax payable by the tenant is not automatic from the date of levy but permissible from the dates of despatch of the written notice of demand. The liability transferred is thus prospective. There are evidently three important elements for the proviso to be operative, namely (1) on the happening of the evident there shall be a despatch of written notice of demand; (ii) it must be sent by the landlord under registered cover' and (iii) the increased rent shall be payable by the tenant from the date of despatch of demand letter and not from a date earlier, it is, thus, patently clear that even if a fresh rate, cess or tax had been levied in respect of the demised building or rented land. Unless the demand is made in terms of the 2nd proviso, it per se does not go to increase the liability of the tenant to pay increased rent. The spirit of the provision, apparently, is that the liability to pay fresh rate, cess or tax or increase thereof is primarily that of the landlord, but the law permits him to shift the burden to the tenant in the manner ordained in the second proviso."
10. It is thus clear that the house tax was payable by the tenant-respondent from the date of its demand made through Registered A.D. notice which was sent on 21.4.1982. If the payment of house tax was due to the landlord under law from the date of issuance of notice under Section 8 of the Act i.e. 21.4.1982, then obviously no fault can be found in the findings recorded by the Appellate Authority, namely, that the tender was in accordance with law inclusive of houses tax. therefore, I do not find any legal infirmity in the order passed by the Appellate Authority which is just, fair and consistent with the provisions of Section 8 of the Act. Therefore, the revision petition is liable to be dismissed.
11. For the reasons recorded above, this petition fails and the same is dismissed.