Punjab-Haryana High Court
M/S Desh Raj Hans Raj vs Sh. Krishan Chand S/O Late Sh. Ishwar ... on 30 August, 2012
Author: K. Kannan
Bench: K. Kannan
CR No.3419 of 1997(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.3419 of 1997(O&M)
Date of Decision: 30.08.2012
M/s Desh Raj Hans Raj, Sugar Dealers, Janta Market, Kaithal
through its Partner Sh. Kashmiri Lal.
... Appellant
Versus
Sh. Krishan Chand s/o Late Sh. Ishwar Chand, resident of Old
Subzi Mandi, Kaithal (Haryana).
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. A.P. Bhandari, Advocate,
for the petitioner.
Mr. C.B. Goel, Advocate and
Mr. Nitin Jain, Advocate,
for the respondent.
*****
1.Whether reporters of local papers may be allowed to
see the judgment? NO
2.To be referred to the reporters or not? NO
3.Whether the judgment should be reported in the
digest? NO
K. KANNAN, J.
1. The revision petition is at the instance of the tenant who is aggrieved with the order of eviction passed on the ground that he has not made the payment of rent and house tax. The Rent Controller had ordered the eviction on the ground that the amount paid by the tenant at the first hearing constituted a short tender and the same finding was also rendered by the Appellate Court. The counsel appearing on behalf of the tenant CR No.3419 of 1997(O&M) [2] in revision before me stated at the outset that notwithstanding the finding relating to the short tender, admittedly, the decisions were rendered much prior to the decision of the Supreme Court in Rakesh Wadhawan and others v. M/s Jagadamba Industrial Corporation and others, AIR 2002 SC 2004, which while interpreting the provisions of Section 13 of the East Punjab Urban Rent Restriction Act relating to eviction on account of non-payment of rent, has held that there ought to be a provisional assessment of rent payable by the Rent Controller and the tender of rent at the first hearing must be understood as a hearing subsequent to such a provisional adjudication. The learned counsel argued that the amount which is found to be short tender must have been stated as the amount that was liable to be paid and the tenant could not have been ordered to be evicted without affording an opportunity to the tenant to make the payment in the manner provided through the judgment of the Supreme Court.
2. The learned counsel appearing on behalf of the respondent-landlord would deny that Rakesh Wadhawan's judgment (supra) would apply to the case and would contend that the tenant was all time contending that he was not liable to pay the arrears of rent for a period in excess for three years prior to the filing of the petition and that further the tax which was a component of rent had also not been paid. In a case CR No.3419 of 1997(O&M) [3] where the tenant was denying his liability to make the payment, the decision in Rakesh Wadhawan's case (supra) does not apply.
3. The case would, therefore, require to be examined in the context of the dispute between the parties as to what constituted the liability of the tenant by way of rent to the landlord and whether the non-payment of such an amount could afford a ground for eviction without following the procedure as laid down by the decision in Rakesh Wadhawan's case (supra).
4. The admitted case was that the property which had been let on an annual rent of `2,400/- per annum was raised to `2,750/- per annum plus house tax by a consent order issued on 11.05.1988. This was to be operative from a retrospective date of filing of the application for fixation of fair rent. The tenant contended that the initial rent was `1,800/- per annum which was increased to `2,400/- per annum and this was again raised to `2,750/- per annum by the order passed on 11.05.1988. The difference in rent payable was `350/- per annum along with interest @ 12.5% p.a. being house tax. The landlord had filed an earlier application for ejectment on 21.11.1986 but the petition came to be dismissed when the rent was tendered for two years @ `2,400/- per annum. This was cited by the tenant to show that prior to the fixation of fair rent CR No.3419 of 1997(O&M) [4] increasing the rent to `2,750/- p.a., there had never been any liability for payment of house tax.
5. The Rent Controller found as a matter of fact that the documents on record clear showed that the rent payable from 01.04.1983 had been `2,400/- p.a. without house tax. Taking up the issue of calculation of what was the real amount due by the tenant, the Rent Controller found that as per the order passed subsequently fixing the fair rent, the liability had been cast on the tenant not only to pay an additional rent of `350/- p.a. but he had also to pay 12.5% on the total rent towards the house tax. While adverting to the contention of the tenant that he could be made liable for payment of house tax only for the amount actually paid by the landlord to the Municipality by references to the copies of extract from 1983-84 to 1991-92, the Rent Controller held that any payment at 12.5% of the fair rent fixed that was in excess of the amount actually paid towards house tax would require to be adjusted to the credit of the tenant. The Rent Controller observed that this would have been the normal position, if the liability undertaken was only an additional amount of `350/- p.a. plus the house tax paid. However, the manner agreed between the parties was that it would be additional amount of `350/- p.a. plus 12.5% of the fair rent as a measure of provision for house tax. The Court observed that if the landlord had not really intimated the CR No.3419 of 1997(O&M) [5] Municipal Committee about increase of the rent and was continuing the Municipal tax only at the previous rate, he would be required to face the music and pay the penalty and this could not be cited by the tenant for reducing his own liability which was agreed upon in the manner of determination of fair rent.
6. The tenant had actually tendered the rent for past arrears @ `350/- p.a. from 17.07.1983 to 31.03.1987 but the amount of tax tendered was only `165/- during the said period for four years. The house tax for the years 1983-84 to 1986-87 as per the tax registers Annexure R1 to R4 was 459.38 and even the tenant's contention that he was liabile to pay as per the tax assessed by the Municipality even then the tender was short. The tenant wanted to explain the short tender by reference to the fact that he had actually paid the difference of `350/- for a period more than three years and, therefore, that should be adjusted against any shortfall in the component of tax admitted by him to be payable. The Rent Controller rejected this plea and proceeded to dismiss the petition. This was again affirmed in the appellate Court.
7. There is evidently a case of short tender where the assumption of tenant was that he was liable to pay only the tax which was actually assessed by the Municipality and not the amount of 12.5% of the rent payable i.e. `2,750/- p.a. as a provision for house tax. Since the fair rent itself was fixed on CR No.3419 of 1997(O&M) [6] the basis of consent, the liability fixed at a particular rate as a provision towards house tax alone was required to be paid. It could not have been merely the amount which was actually shown as taxed on the landlord. This interpretation becomes relevant only because the undertaking by the tenant was not to make the payment directly to the Municipal Committee but on the other hand, the liability was towards the landlord to make the payment as a provision for house tax. What the Municipality was actually levying could not have been, therefore, the basis and the manner reasoned by the Rent Controller was correct. If the landlord was receiving 12.5% of the amount of the rent as payable towards house tax but he was paying less tax by not showing the escalation of rent from `2,400/- p.a. to `2,750/- p.a., the landlord was rendering himself liable for penal action and the tenant cannot take advantage of the lesser liability as taken by the landlord. I will not make an issue about the fact that the tenant had earlier committed a default that required the landlord to file a petition for eviction when another petition for fixation of fair rent was actually pending. All that could be seen is that 12.5% of fair rent was `343.25, when the tenant was contending that he would be liable to pay `165/- per annum. It meant a shortfall of `178.25 per annum and for four years prior to the petition the amount payable was `713/-. This is the amount which the Rent CR No.3419 of 1997(O&M) [7] Controller ought to have pointed out as the amount payable over and above the calculation of amount for four years @ `350/- being the additional amount payable per year. The total amount would have been `2,113/- (including the additional amount of `350/-) after filing of the petition. The liability again would be for all the four years and could not be restricted to 3 years. The period of limitation would apply only to institution of suit for rent and nothing to do with the liability of rent who had to pay all the arrears. This was no suit for recovery of rent. The Court could not have directed an ejectment without calling upon the tenant to make the said payment. In Para 30 of the judgment of Rakesh Wadhawan (supra), while paraphrasing the law laid down by it for interpreting the Section 13(2)(i) proviso, the Supreme Court held thus:
"Para 30(5): If the final adjudication by the Controller be at variance with his interim or provisional order passed under the proviso, one of the following two orders may be made depending on the facts situation of a given case. If the amount deposited by the tenant is found to be in excess, the Controller may direct a refund. If, on the other hand, amount deposited by the tenant is found to be short or deficient, the Controller may pass a conditional order directing tenant to place the landlord in possession of the premises by giving a reasonable time to the tenant for paying or tendering the deficit amount, failing which alone he shall be liable to be evicted. Compliance shall save him from eviction.
CR No.3419 of 1997(O&M) [8](6) While exercising discretion for affording the tenant an opportunity of making good the deficit, one of the relevant factors to be taken into consideration by the Controller would be, whether the tenant has paid or tendered with substantial regularity the rent falling due month by month during the pendency of the proceedings."
In this case, there has been a shortfall and I have already observed that the short tender had been for four years to an extent of `713/-. I believe that the tenant had already paid the difference amount of `350/- for all the four years prior to the filing of the petition although under protest. The amount of `713/- shall be paid by the tenant within 4 weeks from the date of receipt of copy of the order. If the amount is not paid he shall be liable for eviction.
8. I find reason to exercise the discretion to afford an opportunity to the tenant to make the payment especially when it was possible, after all for the tenant to believe that the liability to pay the tax which was undertaken ought to be in real terms only to the amount which was landlord was liable to pay. If the landlord himself had not apprised the Municipality about the increase in rent and allowed himself to make a payment of lesser tax, the tenant was probably misled into thinking that the liability cannot be in excess. I have already set out the reason as to why such an inference is not possible. I find no mala fides in the conduct of the tenant in not tendering the entire amount CR No.3419 of 1997(O&M) [9] of tax A provision made through the agreement between the parties. The shortage of payment ought not to, therefore, render him liable for eviction without affording to him an opportunity to make the payment.
9. The order of eviction passed already shall stand set aside and revision petition is allowed. The liability for eviction would arise only if there is non-compliance of the direction as given above. Needless to state the liability to pay would continue to be at `350/- per year plus 12.5% of `2,750/- towards provision of house tax from the date of filing of the petition till the rent is modified by the mutual agreement or by a re-assessment made by the Court afresh through fresh action in accordance with law.
August 30, 2012 ( K. KANNAN ) Rajan JUDGE