District Khadi Gram Udyog Karya Karta Sangh vs Ved Parkash

V.S. Aggarwal, J.—The present revision petition has been filed by the District Khadi Gram Udyog Karya Karta Sangh, Bathinda, directed against the judgment of the learned Rent Controller, Bathinda, dated 3-2-1994 and of the learned Appellate Authority, Bathinda, dated 19-9-1997. The learned Rent Controller had passed an order of eviction which was upheld by the learned Appellate Authority.

The relevant facts are that respondent Ved Parkash filed an eviction petition against the petitioner asserting that the petitioner is a tenant in the suit premises at a monthly rent of Rs. 400/-. The rent was to be paid in advance for six months. The petitioner was claimed to be in arrears of rent from 1-6-1996 besides house tax. A notice dated 22-8-1986 was stated to have been served on the petitioner regarding enhancement of the rent on account of the house tax. On 26-11-1986 the respondent field an ejectment application against the petitioner. On the first date of hearing, the petitioner tendered the arrears of rent up to 31-3-1987 but did not pay the arrears of house tax.

In the subsequent petition under consideration the respondent claimed that the petitioner has not paid the arrears of rent from 1-4-1987 and house tax from 1-12-1986. It was explained that the respondent is not claiming the arrears of house tax from 22-8-1986 to 30-11-1986 because the appeal against the ejectment order passed in the earlier petition was pending.

The petitioner contested the petition for eviction. On the first date of hearing, the petitioner tendered the arrears of rent from 1-4-1987 to 31-3-1990 amounting to Rs. 14,400/- stating that it includes the house tax as well. Besides, Rs. 1400/- as interest and Rs. 100/- as costs was tendered.

In the written statement filed, the petitioner claimed that the arrears of rent were due at the rate of Rs. 400/- per month which includes house tax. Thus, it was claimed that the petitioner is not liable to be evicted.

The learned Rent Controller framed the issues and evidence was recorded. It was held that, as per petitioner''s own admission, rent of Rs. 400/- did not include the house tax. Reliance in this regard was placed on the fact that the petitioner itself was depositing the arrears of house tax.-Accordingly, it was held that a notice had been served and further that the petitioner was liable to pay the house tax. It was further held that the tender, so made was short and, therefore, an order of ejectment was passed.

Appeal was preferred against the said order of eviction. The Appellate Authority held that notice was served and the rent did not include the house tax. The petitioner admitted the payment of house tax and itself had deposited the same. It was also held that the tender on the first date of hearing was short. This led to the tender on the first date of hearing was short. This led to the filing of the present revision petition.

It is not in controversy that the respondent had earlier filed a petition for eviction against the petitioner. The ground of eviction was the same and, as mentioned above, the arrears were claimed from 1-6-1986 at the rate of Rs. 400/- per month. Liability to pay house tax was denied though on the first date of hearing Rs. 4000/- on account of rent from 1-6-1986 to 31-3-1987 was tendered besides Rs. 115/- as interest and Rs. 35/- as costs. The learned Rent Controller had passed an order of eviction copy of which is Exhibit A11. The petitioner preferred an appeal. It came up for hearing before the learned Appellate Authority, Bathinda. Certified copy of the judgment of the learned Appellate Authority is Exhibit R-4. The findings of the learned Rent Controller were set aside but as regards the finding as to if the rent included the house tax or not, there was no specific finding recorded by the learned Appellate Authority. It was held as under :--

"........... Assuming that the house tax is payable, the amount till Oct. 1986 comes to Rs. 120/-. Interest and costs, it is not contested, are Rs. 90/- and Rs. 35/- respectively. Aggregate comes to Rs. 2245/-. As against this, the tenant tendered a sum of Rs. 4150/-. The question will be whether the tenant would not be within its rights to claim adjustment of the excess amount paid against any amount of house tax which was not tendered as such on the first date of hearing ..............."

It is obvious from the aforesaid that the learned Appellate Authority did not record any specific finding if arrears of rent included house tax or not. The earlier finding of the learned Rent Controller or the learned Appellate Authority cannot be termed to be outside the said controversy which may operate as res judicata.

Section 9 of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") 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 tax is levied in respect of this building or rented land by any local authority, if there is an increase in the amount of such rate, cess or tax to be levied at the commencement of the Act:

Provided that the increase in rent shall not exceed the amount of any such rate, cess of 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-section (1)."

It is abundantly clear from the perusal of Section 9 of the Act that a landlord is entitled to increase the rent of the building or rented land if after the commencement of this Act a fresh rate, cess or tax is levied lay the local authority or there is an increase in such rate, cess or tax. It is clear from the reading of the provision of Section 9 of the Act that it does not make the payment of the house tax a liability of the house tax a liability of the tenant. It merely permits a lawful increase in the payment of rent by the tenant if the landlord wishes to effect the increase. It is an enabling provision. The landlord is entitled to increase the rent if the tax or cess is increased or levied after the commencement of this Act as the case would be. To the same effect is the decision of this Court in the case of Abnash Chander v. Mulakh Raj (dead) through his L.Rs. 1997 (2) RLR 52. Reliance was placed on the earlier decision of this Court in the case of Smt. Kirpal Kaur Vs. Bhagwant Rai, , wherein it was held as under:--

"On the levy of house tax a landlord is entitled to increaFAIRse in the rent to the amount of house tax. There is no provision for applying to the Rent Controller to increase the rent. It is only when the landlord takes a step to increase the rent that the rent becomes increased to the amount of the house-tax. He must demand the increased rent by serving a notice of demand on the tenant. Unless a landlord moves u/s 9 of the East Punjab Urban Rent Restriction Act to exercise his right to increase the rent to the extent of the levy of the amount of the house tax, there is no automatic increase of the rent immediately as the house tax is levied. It is to be landlord''s own act in exercising his right under the provisions of the section which increases the rent and the enhanced rent commences from the date of the notice of demand and not earlier. "

Therefore, by itself it cannot be termed that the tenant is liable to pay the house tax. In the present case in hand, there is no increase shown in the cess or the house tax after the commencement of the tenancy or the Act. In terms of Section 9 of the Act, therefore, it cannot be held that the rent could be increased.

Reliance was placed on the fact that a notice had been served on the petitioner-tenant by the respondent regarding the payment of the house tax. Copy of the same is Exhibit A-1. It reads as under :--

"Under the instructions from my client Sh. Ved Parkash s/o Sh. Hari Ram r/o Bathinda, I do hereby serve you with the following notice :--

That you had taken a shop which is part of municipal property bearing No. 5266 belonging to my client situated in Sirki Bazar, Bathinda on a monthly rent of Rs. 400/- per month.

That although you had agreed to pay the house tax on the aforesaid amount to my client but till today you have not paid any thing out of the amount of house tax. So by serving the aforesaid it is required of you to pay the house tax in future otherwise suitable action in a competent Court of law shall be taken against you and in that event you shall be held liable for all costs and expenses, which my client may have to incur thereby. A copy of this notice has been retained in my office record and further reference."

Even if it be taken that some house tax had been levied which in fact, had been shown to have been levied or increased after the commencement of the Act or the tenancy, on the basis of notice Exhibit A-1, it cannot be termed that rent could be enhanced or in other words there could be increase in the rent on payment of tax to the local authority. The notice is vague and does not indicate as to what was the house tax levied. The notice in this regard should be specific so that the tenant is not taken by surprise. It should also be mentioned from which date house tax has been increased. On both these counts, it is conspicuously silent. On the basis of the said notice, it cannot be said that there is any increase in the house tax. The notice as already referred to above, cannot be taken note of.

Both the learned Rent Controller and the Appellate Authority had greatly relied upon the fact that the petitioner itself had deposited the house tax along with the rent and this shows that the petitioner was aware that the rent of Rs. 400/- did not include the house tax. Reliance in this regard was placed on the documents Exhibit R-1 to R. 3 wherein the petitioner had deposited some house tax along with rent for a period uptil 31-3-1993. Can on the basis of this fact it be taken that the petitioner was liable to pay the house tax or that there could be lawful increase in the rent ? I have already recorded above that rent in terms of Section 9 of the Act cannot be enhanced. If the law docs not permit any enhancement of rent on that account, merely depositing a specific amount by the petitioner will not tantamount to increase in the rent or by adding house tax thereto. There can be no estoppel against the statute. If the law does not permit, the conduct of the petitioner will not come in favour of the respondent. It must, therefore, follow that the rent was Rs. 400/- per month and house tax could not be added to be levied and made payable by the petitioner. On the first date of hearing, the petitioner had tendered the entire arrears at the rate of Rs. 400/- per month besides interest and costs. Therefore, the order of eviction as such could not have been passed.

For these reasons, the revision petition is allowed and instead eviction petition is dismissed.