Rajinder Kumar vs Dr. Rajwant Rai Sood

J.V. Gupta, J.—This order will dispose of Civil Revision Petitions Nos. 762 and 763 of 1982 as the question involved in both of them is the same. Both the revision petitions are directed against the order of the Rent Controller dated December 22,1979, whereby the application u/s 19 of the East Punjab Urban Rent Restriction Act, (hereinafter called the Act) filed on behalf of the tenant respondent was allowed and it was directed that a complaint be filed against the landlord petitioner u/s 19 of the Act, in the Court of the Chief Judicial Magistrate.

The landlord petitioner filed an application for the ejectment of the tenant from the demised remises inter-alia on the grounds of non-payment of the rent due and the house tax. In the said ejectment application though the landlord had claimed the house-tax, yet he had not mentioned the amount of the same. The tenant moved an application in the Court of the Rent Controller requesting to tell him the amount of the house tax claimed by the landlord for the relevant period. According to the tenant, the house tax claimed was Rs. 891.00 for the year 1977-78. Thus, in order to avoid his ejectment, he deposited one half of the said amount due from him. However, according to the allegations of the tenant, as per the rate of rent, the amount of house tax came to Rs. 365/- only and that the landlord with full knowledge that the house tax due from him was Rs. 365/-, had intentionally and knowingly claimed and recovered the excessive amount of the house tax to the tune of Rs. 80 50. In any case, the actual amount of the house tax deposited by the landlord in the Municipal Committee was Rs. 801.95 and, therefore, he had claimed the excessive amount of Rs. 35.95 from him. Thus, according to him, the landlord contravened the provisions of subsection (2) of section 9 of the Act and as such, he was liable to be punished u/s 19 of the Act. In the reply filed on behalf of the landlord to this application, it was stated that the original bill received by him from the Municipal Committee was for Rs. 891.00 though subsequently, certain rebate was allowed to him under law. Under these circumstances, it was submitted that there was no question of any contravention of sub-section (2) of section 9 of the Act, as alleged. The Rent Controller took the view that the landlord could only claim Rs. 365/- as the house tax from the tenant while he had claimed and charged Rs. 445.50 from him. Hence, he had violated the provisions of sub section (2) of Section 9 of the Act. Dissatisfied with the same, the landlord has come up in revision to this Court.

The Learned Counsel for the petitioner, vehemently contended that the provisions of sub-section (2) to Section 9 of the Act, are not at all attracted to the present case. The petitioner never recovered anything from the tenant save as provided under sub-section (1) of section 9 of the Act As a matter of fact, the landlord sought the ejectment of the tenant inter alia on the grounds of non-payment of the rent due and the house tax which the landlord was entitled to claim in view of the provisions of sub-section (1) of section 9 of the Act. In any case, if the tenant was of the view that the rent and the house tax, as claimed by the landlord, was more, than due, he could contest the ejectment application, but under no circumstances, the provisions of sub section (2) of section 9 could be invoked so as to attract the penalty as provided u/s 19 of the Act. It was also contended that from the very inception of the tenancy, the tenant never paid the rent regularly and as and when it was due, the landlord had to file an ejectment application against him on that ground wherein the tenant, in order to save his ejectment, paid the arrears of rent on the first date of hearing. According to the Learned Counsel, such a defaulting tenant was not entitled to invoke the provisions of sub-section (2) of section 9 of the Act. The very conduct of the tenant disentitles him to invoke these provisions. In support of his contention, the Learned Counsel relied upon Isri Devi v. Mahabir Parshad 1981 (1) R.C.J. 140 : 1981 (1) RLR 173.

After hearing the Learned Counsel for the parties, I am of the considered opinion that the provisions of sub-section (2) of Section 9 of the Act are not at all attracted to the present case. Section 9 reads:-

9(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 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-section (1).

As is evident, sub-section (1) of Section 9, reproduced above, inter alia provides that the landlord shall be entitled to increase the rent of a building if after the commencement of the Act, a fresh tax is levied in respect of the building by any local authority or if there is an increase in the amount of such a tax, and sub section (2) inter alia provides that it can only be recovered from the tenant as provided under sub section (1). In case it is recovered in contravention thereof the provisions of section 19 of the Act will be attracted. The landlord in his ejectment application only mentioned that the tenant was in arrears of rent and the house tax for a particular period. The amount of the house tax due was mentioned when the tenant requested the Court in that behalf. It is the common case of the parties that the original bill regarding house tax was for Rs. 891.00. It was subsequently that the landlord paid Rs. 801.90 because of the necessary rebate allowed to him under law. Under these circumstances, there was nothing wrong if the landlord claimed one half of the amount of the original bill. In any case, if the tenant was of the opinion that the amount of the house tax as claimed by the landlord was excessive, than due, he could contest the ejectment application. After having deposited the arrears of rent and the house tax in order to save his ejectment, he cannot subsequently turn round and claim that the amount paid by him was in excess of the amount due to the landlord and, therefore, the landlord contravened the provisions of sub-section (2) of section 9 of the Act Moreover, under the provisions of section 2 of the Act which inter alia provides that where any sum has been paid, which sum is by reason of the provisions of this Act, irrecoverable,'' such sum shall at any time within a period of six months after the date of the payment, be recoverable by the tenant and may, without prejudice to any other method of recovery, be deducted by such tenant from any rent payable within such six months by him to the landlord, the tenant was at liberty to seek his remedy. While construing sub-section (2) of section 9 of the Act, the provisions of Section 8 cannot be lost sight of

However, from the very beginning of the tenancy, there is no material on the record to show any violation of sub section (2) of section 9 of the Act. The Learned Counsel for the respondent, mainly relied upon an unreported judgment of this Court in Civil Revision Petition No. 774 of 1971 (Shrimati Kirpal Kaur v. Bhagwant Rao CR No. 774 of 1971), decided on September 25, 1972, by Mahajan, J., (as he then was). This judgment has been noticed and distinguished by G.C Mittal, J, in Isri Devi''s case (supra) wherein it has been held that the levy of the house tax becomes part of the rent payable by the tenant and the rent payable by the tenant will continue to be the same till it is agreed to be enhanced by the parties or till the levy of the house tax is increased, but would not vary because the landlord has earned a rebate by paying before the due date, or penal interest is charged on the house tax for late payment Since no argument was raised in Shrimati Kirpal Kaur''s case (supra) in regard to the interpretation of Section 9 of the Act and the judgment in that case rather proceeded on the basis that the counsel for the landlord was not able to raise any argument, I do not find any difficulty in following the view taken by G.C. Mittal, J in Isri Devi''s case (supra)

For the reasons recorded above, both the revision petitions succeed and are allowed. The order of the Rent Controller is set aside and the application u/s 19 of the Act, filed by the tenant is dismissed with costs.