Delhi District Court
Ms. Poonam Jain vs Jawala Pershad on 29 February, 2012
1
IN THE COURT OF SH. LALIT KUMAR, CCJ-CUM-ARC, CENTRAL,
DELHI.
E-62/09/03
1.Ms. Poonam Jain
W/o Sh. Rakesh Jain
2.Pranesh Jain
S/o Sh. S.C. Jain,
Both residents of
162, Pushpanjali,
Delhi-92. ...... Petitioner
1. Senior Superintendent of Post Office,
New Delhi Central Division,
Meghdoot Bhawan, New Delhi.
2. Union of India, Through its Secretary,
Ministry of Telecommunications,
New Delhi-5. .......Respondent
Date of Institution : 04.11.2003
Date on which reserved for judgment : 16.02.2012
Date of decision : 29.02.2012
JUDGMENT
29.02.2012
1. Vide this judgment, I shall dispose of the eviction petition filed by petitioner against the respondent under the provisions of Section 14(1) (a) of DRC Act.
2. As per petition, petitioners are the owners and landlor of the property bearing no.9054-55, Model Basti, Post Office, Karol Bagh, New Delhi. It is further averred that petitioners vide Lease Agreement dated 01.01.1998 had let out the said property to respondent for a term of 5 years commencing w.e.f., 01.01.1998 at monthly rent of Rs.1,800/-. It is further averred that the said period of 5 years has expired on 31.12.2002 by efflux of time. The said Lease Agreement has come to end on 31.12.2002. The petitioners have not E-62/09/03 1/8 2 opted for the renewal of the lease and therefore, they have become unauthorized occupant for the said property w.e.f. 01.01.2003. respondent is an old tenant since 1992 in respect of one room on first floor of property no. 16/258-E, Tank Road, Bapa Nagar, Karol Bagh, New Delhi. It is further averred that after the expiry of 3 years from the date of commencement of Lease Agreement the petitioners were liable to pay the statutory increase of 10% in the aforesaid monthly rent of Rs.1,800/- with respect to the aforesaid property. It is further averred that the said increase became due w.e.f., January, 2001. Therefore, the increased rent became Rs.1,980/- per month w.e.f., 01.01.2001. It is further averred that petitioners have failed to pay the increased rent of Rs.1980/- w.e.f., 01.01.2001 and sum of Rs.6170/- has become due and outstanding against them towards arrears of rent, which the respondents have failed to clear/pay inspite of the repeat demands of the petitioners and a legal notice dated 11.06.2003 was sent. The respondent has failed to pay the due rent inspite of the service of notice of demand. Hence, the present petition.
3. In Written Statement, the respondents has admitted the relationship of landlord and tenant between the parties. It is further averred by the respondents that the present petition is not maintainable and liable to be dismissed as the petitioner have filed the petition on the ground of default of the statutory increase in rent w.e.f., January, 2001 vide legal notice dated 11.06.2003 but the legal notice is neither property nor legally tenable. It is further averred that there is no term and condition in the lease dated 01.01.1998 for any increase/enhancement of rent. Thus petitioners are entitled for rent from the subsequent tenancy month of date of proper and valid demand/notice and not for the period prior to the demand. It is further averred by the respondents that there is no demand on the part of the respondents in payment of the statutory increase of rent because the respondents are the Govt. of India Department and financial transaction is taken after following the proper procedure which takes some time. It is further E-62/09/03 2/8 3 averred that after the demand notice dated 11.06.20033 and the increase in rent from Rs.1800/- per month to Rs.1980/- per month w.e.f., January, 2001 was sanctioned vide sanctioned memo dated 30.09.2003 and the same has been sent to the petitioner no.1 inadvertently whereas the the rent is paid to the both petitioners by the respondent no.1. Thereafter fresh sanction in the name of the both the petitioners/landlords were taken w.e.f., 01.01.2001 to 31.10.2003 total amounting to Rs.6120/- (Rs.3060/- each) has been sent to the petitioners vide Service Money Orders No.2511 & 2512 both dated 02.12.2003. It is further averred by the respondents that the petition is not maintainable as the petitioners have not complied with the provisions of the Rule framed under DRC Act, 1958 coupled with the fact that the petitioners have not furnished the copy of notice along with the present petition. It is further stated by the respondents that the present petition is barred by the Arbitration clauses in the lease agreement dated 01.01.1998.
4. In replication, the petitioner denied all the contentions of the respondent and reiterate the same facts as stated by him in the petition.
5. Both parties led evidence. On behalf of petitioner, Sh.Pranesh Jain deposed as PW1.
On behalf of respondent, Sh.S.K. Tiwari, Asstt. Superintendent, Post Office New Delhi, Central DN, deposed as RW1.
6. I have already heard the arguments. Both parties have also filed the written arguments on record. I have gone through the record carefully. File reveals that the present petition was dismissed in default for non-appearance on 27.01.2005 and was restored to its original number vide separate order dated 29.08.2005 passed by the Ld. Predecessor of this court.
7. Perusal of the file shows that an application under Order 12 Rule 6 CPC was moved by the petitioners on 01.01.2004 to which the respondents E-62/09/03 3/8 4 has filed reply for the same on 14.12.2004. Thereafter, the Ld. Predecessor of this court has observed on 22.01.2008, that to prove the default, the petitioner has to lead the evidence to show that rent was not deposited/enhanced by the respondent within the stipulated period but was paid later on and hence the matter was posted for P.E.
8. On behalf of the petitioner, evidence was led by the PW-1 Shri Pranesh Jain, and in his affidavit he relied upon the documents from Ex.PW1/1 to Ex.PW1/7 but at the time of tendering in chief, he deleted the Ex.PW1/1 to Ex. PW1/3 and Ex. PW1/7 and only relied on Ex. PW1/4 to Ex. PW1/6.
On behalf of the respondent, evidence was led by the RW-1 Sh. S. K. Tiwari, and he deposed his evidence as Ex. RW-1/A.
9. Perusal of the file shows that in demand notice Ex.PW1/4 dated 11.06.2003, petitioners has submitted that respondents vide Lease Agreement dated 1.1.1998 had let out the said property to the respondents for a term of 5 years commencing from 1.1.1998 at monthly rent of Rs.1800/-. It is further mentioned in the legal notice that after the expiry of 3 years from the date of commencement of Lease Agreement, respondents are liable to pay the statutory increase of 10% in aforesaid monthly rent of Rs.1800/- which became due w.ef., 01.01.2001 @ Rs,1980/- per month.
10. It may be seen that the petitioners have filed the present petition on the ground of default of payment of arrear with respect to the statutory increase in rent. But the demand notice dated 11.06.2003 is neither proper nor legally tenable as petitioners have demanded the statutory increase retrospectively i.e., w.e.f., January ' 2001 @ Rs. 1980/- per month.
It is further seen that there is no such term and condition in the last agreement dated 01.01.1998 for any increase or enhancement of rent. Admittedly the premises in question was let out to the respondent on 30.08.1960 at a monthly rent of Rs.99/-. Thereafter, the tenancy was renewed E-62/09/03 4/8 5 from time to time and it was lastly renewed in the year 1998 for 5 years on monthly rent of Rs.1800/-.
It is observed that in the Lease Dated 01.01.1998, there is no such term and condition for any increase and enhancement of rent which is also reflected by the deposition of PW-1. In his chief examination PW-1 has mentioned in the Lease agreement dated 01.01.1998 as Ex. PW1/1 and letters dated 2001 and reminder dated 07.02.2012 and Ex. PW1/7. But at the time of tendering of affidavit, these exhibits were deleted but in cross of PW-1 again this agreement is exhibited as Ex. PW1/P-X which goes to show the discrepancies on the part of petitioner.
The controversy which has arisen for consideration in the present case in hand is whether the petitioner is entitled for the statutory increase of rent for the period prior to the demand notice i.e., 11.06.2003 and can it be termed as arrear of rent. For better understanding, it is necessary to discuss the provisions of section 6A and section 8 of DRC Act. The provisions of section 6 (A) and section 8 of the DRC Act which read as follows:-
"6A. Revision of rent. - Notwithstanding anything contained in this Act, the standard rent, or, where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent, every three years."
Section 8 of the Act further provided that landlord can give a notice of his intention to make the increase and in so far as such increase is lawful under this Act, it shall be due and recoverable from the date on which notice was given. Section 8 read as under:-
"8. Notice of increase rent.-(1) Where landlord wishes to increase the rent of any premises, he shall give the tenant notice of his intention to make the increase and so far as such increase is lawful under this Act, it shall be due and recoverable only in respect of the period of the tenancy after the expiry of thirty days from the date on which the notice is given.
2. Every notice under sub-section (1) shall be writing signed by or on E-62/09/03 5/8 6 behalf of the landlord and given in the manner provided in Section 106 of the Transfer of Property Act, 1882(4 of 1882)."
11. The word agreed rent used in section 8 of DRC Act clearly shows that there was no retrospection option of the said section. Whatever is agree rent, can be increased by 10% after giving 30 days notice of intention to increase the rent in every 3 years. The right becomes miserable only after one month notice as per section 8 of the DRC Act in futuro.
Bare reading of section 8 of DRC Act would go to show that the notice as prescribed section 8 of the DRC Act is condition precedent for claiming increase in rent. A Landlord cannot claim increase without first serving a notice on the tenant expressing his intention to make the increase. Such notice must be in written sign or on behalf of the Land Lord must be be given material provided in section 106 of the DRC Act.
In a case titled as National Coop. Cons. Fed. Vs. Jawala Pershad Ashok Kumar Chopra, (Delhi( (DB), 1998 (2) R.C.R. (Rent) 115: 1998 AIR (Delhi) 308 whereby the Hon'ble Delhi High Court also discussed section 6(a) and section 8 of DRC Act and further in para 9 of this judgment that "section 6A of the Act must be read subject to the rule that in absence of an express provision or clear implication, the Legislature does not intend to attribute to the amending provision retrospectively. It will be noticed that there is no provision in the Act prohibiting a landlord to exercise his right to revise rent under section 6A until expiry of three years from the date of its enforcement. Therefore, in the absence of such a provision it cannot be assumed that the Legislative intended that operation of the said section shall remain suspended for a period of three years from the date of its coming into force. All that the Section provided is that from the date it comes into force the landlord would be entitled to enhance the agreed rent by 10% and further there must be a gap of three years between two revisions of rent. In one sense Section 6A which is undoubtedly a piece of beneficent Legislation conferred on a landlord additional right to enhance rent subject to a maximum E-62/09/03 6/8 7 limit of 10%. It also lays down a rule of limitation. Further the word "agreed rent" used in Section 6A clearly show that there was no retrospective operation of the said section. Whatever is the agreed rent, can be increased by 10% after giving a 30 days notice of the intention to increase every three years. The right becomes exercisable only one month's notice as per section 8 of the Act in Futuro. Of course the argument of restrospectivity as raised by the Learned counsel for the appellant, could be possible if the statue permitted increase in the rent from a date prior to the coming of the amendment into force. Here the statue permits increase in the rent only prospectively i.e., after one month's notice could be given by the land lord.
10. In this connection it is also important to note that if the intention of the legislature was to postpone the exercise of this right conferred by Section 6A by three years it could have specifically said so in the statue itself. Instead of saying that rent could be increased by 10% every three years, it could have been easily used that the increase will be after three years. The word 'after' could have been easily used if that was the intention."
In view of the above said background , I am of the considered opinion that in the present case the landlord has been claiming the increased rent from January ' 2001 by serving a demand notice dated 11.06.2003 whereas the statutory increase in rent if any would be payable from the subsequent tenancy month from the date of proper and valid demand. Therefore, in the present case, the demand notice, though given but is not valid and proper. Moreover, the statutory increase in the rent is payable only from the subsequent month i.e., July, 2003 onwards and not for the period prior to the demand i.e., from January, 2001. Therefore, alleged arrears of rent from January, 2001, sought by the petitioner cannot be said arrear in law and non payment of the same does not in any manner amount to any default on the part of the respondent. When there is no default, then there is no ground under section 14 (a) of the DRC Act. Hence, the present petition filed by petitioner is not maintainable. Accordingly, the same is dismissed being not E-62/09/03 7/8 8 maintainable in law. No order to costs.
12. This petition be consigned to record room.
Announced in open court LALIT KUMAR
on 29th February, 2012 CCJ-cum-ARC(Central)
THC: DELHI
E-62/09/03 8/8