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Abnash Chander and Another Vs. Mulakh Raj and Another - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 1006 of 1981
Judge
Reported inAIR1993P& H190
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 9
AppellantAbnash Chander and Another
RespondentMulakh Raj and Another
Appellant Advocate H.L. Sibal,; Deepak Sibal and; Naresh K. Joshi, Advs
Respondent Advocate H.L. Sarin,; Ashish Handa and; Alka Sarin, Advs.
Cases ReferredPuran Chand v. Mangal
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 28 of 1975, 67 of 1975 and 32 of 1976, the tenant on the first date of hearing, tendered the entire arrears of rent as well as the interest and costs so assessed by the rent controller. 60 of 1976, the rent as claimed as well as the interest and costs were tendered and paid to the landlord but house-tax was paid w. 3. the rent controller as well as the appellate authority ordered the ejectment of the tenant on the ground that the tenant failed to tender/ pay the house-tax as claimed by the landlord on the first date of hearing......that the tenancy starts from 16th of each month. these revision petitions arise out of different ejectment applications filed by the landlord for the ejectment of the tenants. in the ejectment petition no. 28 of 1975, the landlord claimed ejectment of his tenant on the ground of nonpayment of rent w.e.f. 28th of january 1975 to 28th of may, 1975 at the rate of rs. 1600/-per month. in the petition, house-tax was also claimed and was stated to be part of the rent. similarly in the ejectment petitions nos. 67 of 1975, 32 of 1976 and 60 of 1976, rent for the period from 28th of may, 1975 to 27th of november 1975, 28th of october, 1975 to 27th of may, 1976, and 28th of march, 1976 to 27th of october, 1976, respectively, was claimed. in all these petitions, rent was claimed at the rate.....
Judgment:
ORDER

V. K. Jhanji, J.

1. This will dispose of Civil Revisions Nos. 1006, 1007, 1008 and 1009 of 1981 preferred by the tenants. Since the facts of these four revision petitions are common, I propose to dispose them of by one judgment. The facts of this case have been taken from C.R. No. 1006 of 1981.

2. The dispute between the petitioner (tenant herein) and the respondent (Landlord herein) relates to the premises known as 'Air Lines Hotel and Restaurant' - a three storeyed building-situated in the main bazar of Pathankot. According to the landlord, the premises were let out to the tenant at the rate of Rs. 1600/- per month and the tenancy starts from 28th of each month. However, in the earlier litigation, i.e. Civil Revisions Nos. 206 to 209 of 1979, the mallet with regard to commencement of tenancy was decided on the basis of statement made by the counsel for the landlord that the tenancy starts from 16th of each month. These revision petitions arise out of different ejectment applications filed by the landlord for the ejectment of the tenants. In the ejectment petition No. 28 of 1975, the landlord claimed ejectment of his tenant on the ground of nonpayment of rent w.e.f. 28th of January 1975 to 28th of May, 1975 at the rate of Rs. 1600/-per month. In the petition, house-tax was also claimed and was stated to be part of the rent. Similarly in the ejectment petitions Nos. 67 of 1975, 32 of 1976 and 60 of 1976, rent for the period from 28th of May, 1975 to 27th of November 1975, 28th of October, 1975 to 27th of May, 1976, and 28th of March, 1976 to 27th of October, 1976, respectively, was claimed. In all these petitions, rent was claimed at the rate of Rs. 1600/- per month as wellas the house-tax which was alleged to have been paid by the landlord. In all the three petitions namely ejectment petitions Nos. 28 of 1975, 67 of 1975 and 32 of 1976, the tenant on the first date of hearing, tendered the entire arrears of rent as well as the interest and costs so assessed by the Rent Controller. However, house-tax was not paid. In ejectment petition No. 60 of 1976, the rent as claimed as well as the interest and costs were tendered and paid to the landlord but house-tax was paid w.e.f. 15th of June, 1976. Apart from claiming ejectment on the ground of non-payment of rent, the landlord also claimed ejectment on the ground that the tenant has materially impaired the value and utility of the premises. As far as the second ground is concerned, the same is no longer material since there is no finding against the tenant in respect of second ground i.e. impairment of value and utility of the premises. The only ground that survives is of non-payment of rent on the first date of hearing.

3. The Rent Controller as well as the Appellate Authority ordered the ejectment of the tenant on the ground that the tenant failed to tender/ pay the house-tax as claimed by the landlord on the first date of hearing. All the four petitions were decided by the Rent Controller on 26th of November, 1979 and the appeals of the tenants were dismissed by the appellate Authority on 2-3-1981.

4. In the favour petitions, the only controversy involved is as to whether the house-tax claimed by the landlord in the ejectment petition was, part of the rent or not.

5. Mr. H. L. Sibal, Senior Advocate, learned counsel for the tenant contended that S. 9 of the East Punjab Urban Rent Restriction Act, 1949, (briefly 'the Act') makes an addition to the rent from the date the landlord exercises his right under that Section to increase the rent to the extent of amount of house-tax. He further contended that in the present case, the landlord sent a notice to the tenant only on 15-6-1976 vide which, he exercised his right under S. 9 of the Act, by increasing the rent to the extent of amount of house-tax and, therefore, increase in rent was made only w.e.f. 15-6-1976.

6. On the other hand, Mr. H. L. Sarin, Sr. Advocate, learned counsel for the landlord submitted that the landlord in the petition for ejectment categorically claimed that the tenant was liable to pay house-tax as mentioned in the petition, and the laid claim should be deemed to be a claim of increase in rent and therefore, ejectment of the tenant was rightly ordered by the Authorities under the Act.

7. Both the counsel in support of their arguments, relied upon a Division Bench judgment of this Court in Puran Chand v. Mangal, 1969 PLR 571 : (AIR 1969 Punjab 367).

8. In order to appreciate the rival contentions of learned counsel for the parties, it is necessary to notice the relevant provisions for the increase of rent on account of levy of house-tax as contained in S.9 of the Act which reads as under :--

9. Increase of rent on account of payment of rates etc., of local authority but rent not to be increased on account of payment of other taxes etc.,

(1) Notwithstanding anything contained in any other provision of this Act, a landlord shall be entitled to increase the rent of a building or rented land if after the commencement of this Act a fresh rate, cess or lax 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 the 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.

(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 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-sec. (1).

A reading of the afore-mentioned provision shows that it neither make the payment of house-tax the liability of the tenant, nor conies into operation automatically on an increase in the house-tax by any local authority. It only permits a lawful increase in the rent payable by the tenant if the landlord wishes to effect an increase. Section 9 of the Act was considered by a Division Bench of this Court in Puran Chand's case (supra) wherein it was held that rent can be increased either by mutual agreement or if permitted by law for the time being in force by serving a notice of increase in the rent. The only other eventuality for increasing the stipulated rate of rent of a certain rented premises is by some statute providing an automatic increase. No claim can be made for something for payment of which liability has been incurred before making of the claim. A claim for increased rent could only follow the effecting of the increase. Where the landlord has not exercised his option to increase the rent by adding thereto the amount of house-tax or cess levied on him in respect of the rented premises, the rate at which the tenant is liable to pay the arrears of rent cannot possibly include the amount of house-tax or cess.

9. It is equally true that no particular mode is provided under S. 9 of the Act which can be adopted by the landlord to intimate to the tenant about the increase in rent on account of levy/increase of house-tax. Notice can be verbal or expressed. Where the landlord claims that he verbally informed the tenant about increase in the house-tax, then he has to prove this fact by cogent and clinching evidence. In this case, though the landlord in his ejectment petition claimed house-tax apart from the agreed rent, yet he has no where stated in his petition that any such demand on account of levy/ increase in rent was ever made by serving a notice on the tenant. The averments in the petition do not indicate that at any point of time, the landlord had informed the tenant about the increase in rent on account of levy/ increase of house-tax, either verbally or through notice in writing. It is only in the last ejectment petition No. 60 of 1976, where the landlord stated that telegraphic notice dated 15-6-1976 was sent to thetenant and on the following day, i.e. 16-6-1976, a confirmative letter conveying the telegraphic message was also sent. The telegraphic message which was sent to the tenant, reads as under:--

'Take notice that rent of building hotel restaurant 'Air Lines' stands increased by Rs. 100/- per month from April, 1973, to March 1975, and by Rs. 180/- per month from April, 1975, onwards due increase house-tax by municipality Pathankot, and same is claimed. Notice of increase already given to you in ejectment applications Nos. 22, 28 and 67 of 1975 pending in Court. Pay arrears on account of increase.'

A reading of the telegram shows that the landlord not only claimed increase in rent up to the extent of house tax for the past period, i.e. w.e.f. April, 1973, but also for the period April, 1975 onwards. The question is whether the landlord by giving a notice dated 15-6-1976 to the tenant can claim arrears of rent as house-tax for the period earlier to the date of notice. In my view, the landlord cannot treat the telegraphic notice dated 15-6-1976 as operating retrospectively, to effect increase in the rent to the extent of house-tax as from April, 1973. There being no automatic increase of rent, the landlord can exercise his right to increase rent to the extent of levy of amount of house-tax only when he chooses to exercise his right as provided under S. 9 of the Act. In the present case, he made a demand for the increase of rent only by notice dated 15-6-1976. The landlord, therefore, cannot be taken to have made a demand from the date earlier to the date of notice. The landlord thus cannot claim house-tax earlier to the date of issuance of telegraphic notice, as part of arrears of rent for the purposes of ground for eviction of the tenant. The contention of Mr. Sarin that the claim made in the petition should be taken to be a demand for increase is wholly untenable because no claim could be made for something for payment of which liability had not been incurred before making the claim. Considering the facts of this case in the light of judgment of Division Bench of this Court in Puran Chand's case (supra), I find that thetenant is not liable to be ejected because he paid the house-tax from the date he received the telegraphic notice effecting an increase in the rent on account of levy increase of house-tax.

10. Consequently, the revision petition is flowed, the orders of the Authorities below are set aside and as a result thereof, ejectment petitions filed by the landlord are dismissed. However, the parties are left to bear their own costs.

11. Petition allowed.


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