Mohinder Singh vs Siri Chand

S.S. Kang, J.—This is a tenant''s revision petition against the order dated the 18th of February, 1975, of the Appellate Authority, who has ordered the ejectment of the Petitioner on the ground of non-payment of rent.

The facts in brief are that Siri Chand filed an application for ejectment of Mohinder Singh, tenant, from the shop situated at Narnaul on the ground that the tenant had not paid rent at the rate of Rs. 6/- per annum with effect from the 9th of January, 1973 to the 8th of May, 1973. Mohinder Singh, tenant, contested the petition and stated that he had been tendering the rent to the landlord but he had been refusing to accept the same. He had been sending money orders, but the landlord refused to accept them.

On the first date of hearing, Mohinder Singh, tenant, tendered Rs. 25.80 on account of rent from the 9th of January, 1973 to 9th of May, 1973, plus Rs. 1.50 as house-tax and 0.30 p. as interest as assessed by the Rent Controller. The tenant also expressed his eagerness to pay the costs of the application. However, the Rent Controller did not assess any costs because the money orders sent by the tenant had been refused by the landlord. Siri Chand, landlord, did not accept the money and contended that it was not a valid tender and also for the reason that costs had not been assessed.

On the pleadings of the parties, the following two issues were f rained:

Whether the tender made by the Respondent is valid?

. 2. Relief.

The Rent Controller held that after the promulgation of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the ''Haryana Act'') it was the duty of the Rent Controller to calculate the interest. So, the plea that the amount to cover interest on the tender made by the tenant was less, was not accepted. However, the Rent Controller accepted the application and decided issue No. 1 against the tenant on the ground that the tenant, though had tendered the arrears, yet had not deposited the same incompliance with Rule 10 of the Haryana Urban Restriction Rules (hereinafter called ''the Rules'') framed u/s 20 of the East Punjab Urban Rent Restriction Act (hereinafter called the ''Punjab Act'').

The appeal filed by the tenant failed and was dismissed by the learned Appellate Authority on the 18th of February, 1975. He affirmed the findings of the Rent Controller and held that for violation of Rule 10 of the Rules, the tenant was liable to be evicted.

In order to appreciate the pleas raised by the learned Counsel, it will be beneficial to notice the relevant statutory provisions at the very threshold. The\\are set out below:

Section 13(2) of the Haryana Act:

A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied--

(i) that the tenant has hot paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the gruffest of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that For which the rent is payable:

Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight per centum, per annum on south arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall., be deemed to have duly paid or tendered the rent within the time aforesaid:

Provided further the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date of application under the provisions of this Act;

(ii) to (v) x x x x x x x

The Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:

x x x x x x x

Rule 10 of the Rule:

Rent, interest and costs assessed by the Controller, which are tendered by the tenant u/s 13 of the Act, but refused by the landlord, shall be deposited by the tenant in the Court of the Controller. Such sums deposited shall be treated as Civil Court Deposits and account for and dealt with according to the rules of the Civil Deposits in force in Civil Courts in the State of Haryana.

Section 24(2) of the Haryana Act:

(1) x x x x x x x

(2) Notwithstanding such repeal, anything done or any action taken under the Act so repealed (including any rule, notification or order made) which is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act as if this Act were in force at the time such thing was done or action was taken and shall continue to be in force, unless and until superseded by anything done or any action taken under this Act.

Section 20 of the Punjab Act:

The State Government may, by notification, make rules for the purpose of carrying out all or any of the provisions of this Act.

The Haryana Act was enforced on the 27th of April, 1973. The ejectment application was filed on the 31st of May, 1973. So, it will be governed by the provisions of the Haryana Act. The Rules including Rule 10 had been framed by the State of Haryana in exercise of the powers conferred on it by Section 20 of the Punjab Act. By Section 24, Haryana Act, the East Punjab Urban Rent Restriction Act was repealed. However, because of Sub-section (2) of this section, the rules framed under the Punjab Act, which were not inconsistent with the provisions of the Haryana Act, were to be deemed to have been framed under that Act.

Mr. H.L. Sarin, the learned Counsel for the Petitioner, has argued that after the enforcement of the Haryana Act, a tenant could be evicted only on the grounds mentioned in Section 13 thereof. For the purpose of this case, the relevant provision is Section 13(1)(i). A tenant, who is in arrears of rent incurs a liability of ejectment if he fails to pay or tender the arrears of rent and interest together with the costs within 15 days of the first hearing of the application. It is the duty of the tenant to pay or tender the arrears of rent with interest and costs, if any, assessed by the Controller within 16 days of the first hearing of the application. In the present case, admittedly the arrears of rent alongwith the interest assessed by the Rent Controller were tendered by the tenant but the landlord refused to accept them on the ground that it was not a valid tender and the costs had not been assessed. The tenant had fulfilled his obligations prescribed by law. He had either to pay or tender the arrears of rent and interest. He followed the latter course. After the refusal of the landlord, he was not obliged to deposit the money in the Court. The Courts below have erred gravely in ordering ejectment for non-compliance with Rule 10. He has argued that non-compliance with Rule 10 has not been made a ground of ejectment by the Legislature. Secondly, Rule 10 is ultra vires of Section 13 of the Haryana Act. It introduces an additional ground of ejectment which is not provided by the Legislature.

Mr. A.N. Mittal, the learned Counsel appearing for the landlord, has contended that Rule 10 of the Rules is valid. It has to be treated to be part of the Haryana Act. In any case, it only supplements the provisions of the statute. It does not add any new ground of ejectment.

The Haryana Act had been enacted to control the increase of rent within the limits of urban areas and to protect the tenants from unreasonable eviction. It is beneficial piece of legislation and the language permitting has to be interpreted in favour of the tenant. Section 13 of the Haryana Act to the extent it provides grounds for ejectment is penal in nature. It has to be construed strictly. According to this section, a tenant can be ejected only if he fails to pay or tender rent, interest and costs, if any, assessed by the Rent Controller within 15 days of the first hearing of the ejectment application. The tenant is required either to pay or tender the rent, etc. The word "tender" has been interpreted in Nobat Ram v. Mangal Singh 1973 PLR 251, to mean the physical act of offering the money or thing to be tendered. The required amount should be actually produced before the Rent Controller for payment to the landlord. A mere offer to pay the said amount would not be a valid tender.

The section does not require that the arrears and interest etc. have to be deposited in Court, once the tenant has tendered the amount, he has discharged his duty. If for some reasons valid or otherwise, the landlord does not accept that tender, the tenant cannot be made to suffer on that account. Rule 10 to my mind only provides the procedure enabling the tenant to deposit the arrears of rent in the Court of the Rent Controller. It is a procedural rule. No doubt, the word "shall" has been used but the rule is directory only. Here word "shall" means "may". No penalty for non-compliance with this rule has been provided. This is a salient test to find out whether this rule is mandatory or directory. In this rule also, it is not mentioned that in the case of non-compliance therewith the ejectment shall be ordered. In fact the parties went to the trial only on the question of the validity of the "tender". No issue was framed as to what was the effect of non deposit of the arrears after the refusal of the tender. There was previously some controversy as to whether the money deposited before a Rent Controller could be considered to be payment or tender. It seems, to clear those doubts, this rule was framed. Otherwise Section 13 of the Punjab Act requires the payment or tender of the rent on the very first date of hearing it does hot grant any further time. So, the crucial date for determination under the Punjab Act is the first date of hearing. If the valid tender is made on the first date of hearing that is sufficient. This rule was framed under the Punjab Act when the Haryana Act had not bee menaced. The only object of the rule was to provide for deposit of the arrears even after the refusal of the tender of the rent by the landlord so that the tenant may not have to pay interest on arrears in any subsequent ejectment application. I his rule is not analogous to the rules framed under the Code of Civil Procedure. Section 20, of the Punjab Act clearly shows that the rules could be framed to carry out all or any of the purposes of this Act. These rules, though by fiction of law will be deemed to have been framed under the Haryana Act if they are not in any manner inconsistent with that Act. However, they do not get themselves engrafted on the Haryana Act. Therefore, they cannot add any thing to the Act, because their function is only to carry out the objects of the Act Therefore, they cannot prescribe an additional ground for eject-orient. If they do so, they add something to the Act which is not permissible. In similar circumstances, it has been held in Huzrat Syed Shah Mustarshid Ali Al Quadari Vs. Commr. of Wakfs and Others, :

In some statutes, powers is given to frame rules and when so framed they are made part of the statute. In such a case, it might be permissible to supplement the provisions of the statute itself, within limits. But where rules are to be framed for ''carrying out the purposes of the Act'', such rules cannot travel beyond the four corners of the Act it self

Rule 10 does not in any manner supplement grounds of eviction. To conclude Rule 10 is directory. It provides procedure for deposit of arrears of rent in cases of refusal of the tender. It does not in itself lay down that incase of its violation, the tenant shall be liable to be ejected. The rule does not prescribe an additional ground for ejectment.

The Rent Controller and the learned Appellate Authority have clearly fallen in error in holding that non-deposit of rent after the refusal of the tender by the landlord will invalidate the tender itself The act of tend became-complete when the tenant produce the amount due in Court and offered the same to the landlord. The fact that later on he did not deposit this money in Court has no bearing on the validity of the tender.

Consequently, Tallow this revision petition, set aside the orders passed by the Rent Controller and the Appellate Authority and dismisses the ejectment application with costs. Counsel fee Rs. 200/.