M/S. Jyoti
Prashad Vinod Kumar & Anr Vs. Yash Pal & Ors [1996] INSC 1013 (23 August 1996)
Punchhi,
M.M. Punchhi, M.M. Thomas K.T. (J)
CITATION:
JT 1996 (8) 195
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
This
is an appeal against the judgment and order of a learned Single Judge of the
High Court of Punjab and Haryana dated 26-5-1995, passed in Civil Revision
No.4928/94, dismissing the revision petition of the present appellants in limine.
The
facts as are relevant for our purpose are as follows:
In an
eviction petition, raising a number of grounds, the sole surviving one was :
whether the tenants had made a valid tender of arrears of rent, inclusive of
taxes. The period for which arrears of rent were claimed was from 1-4- 1984
till 30-9-1986. So far as the quantum of
contractual rent was concerned, that indisputably was paid before the Rent
Controller. The dispute centered around the payment of house-tax. It is
undisputed that the house-tax was payable w.e.f. 1-4-1985. The fact that the said house-tax could form part of the rent,
was never disputed. Section 8(1) of the Haryana Urban (control of Rent and
Eviction) Act, 1973 provides for this eventuality, which is worth reproduction
at this stage. which reads:
"8.
INCREASE OF RENT ON ACCOUNT OF PAYMENT OF RATES, ETC. OF THE LOCAL AUTHORITY -
(1) 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 increase in rent shall not exceed the amount of any such rate, cess or tax
or the amount of 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 the 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 or 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 subsection (1)." 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 date 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,
(i) on
the happening of the event 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 desired
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.
In
view of the Rent controller, the tender had fully and validly been made which
was inclusive of house-tax the appellate authority, however, took the view that
it had not been made so. The High Court, as said before, affirmed the view of
the appellate authority by dismissing the revision petition in limine. Nowhere
do we find on the present record it ever having been pleaded or found that
there was a notice in terms of the 2nd proviso sent to the tenant. There were,
however, three documents on record being Exhibits A-6, A-7 and A-8 having a
bearing on the controversy. Ex. A-6 is dated 23-1-1985 and the same was sent at the instance of the landlord by
his counsel to the tenant's counsel by means of 3 registered letter. lt is
specifically not a notice of demand as such but it only blames the tenants of
having failed to remit the house-tax payable along with the rent due. Ex.A-7
and A-8 are both dated 2-4-1985 purported to have been sent by the landlord to
the two tenants in identical language thereby putting to notice the respective
tenants that house-tax in the sum of Rs.262.50 per annum w.e.f. 1-4-1985 was
payable by each. The receipt of these notices has not been accepted by the
tenants. All the same, it is crystal clear that these were not sent to the
tenants under `registered cover' as is the requirement of the 2nd proviso to
Section 8. Ex. A-7 and A- 8, indubitably, were otherwise timely notices. Even
if the tenants are not bound by these, the landlord definitely is.
Ex.A-6
being of a date prior to 1-4-1985 (the date of levy), could not be
termed as a notice or despatch in terms of the 2nd proviso. Thus it was no
notice in the eyes of law. A-7 and A-S too fail to conform to the strict
requirements of the proviso. Thus, in the absence of a valid notice/despatch in
terms of the 2nd proviso, it goes without saying that the tenants were under no
obligation to tender house-tax alongwith arrears of rent. However, they seem to
have voluntarily tendered before the Rent controller house tax w.e.f. 1-10-1984 to 30-9-1986. By
their manifested conduct, therefore, they stand duly noticed as to their
obligation to pay house tax. They were however under no obligation to pay the
house tax demanded for the period prior to 1-4-1985. For this reason, no defect can be
found in the tender made by the tenants-appellants. Their eviction was, thus,
uncalled for. The Appellate Authority committed an error in ordering eviction
and the High Court concurring in the same.
Resultantly,
we would, and do hereby, upset the orders of the appellate authority and that
of the High Court and order restoration of that of the Rent Controller,
dismissing the eviction petition on the ground of failure to pay rent.
The
appeal, thus, stands allowed with costs.
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