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PETITIONER: M/S. JYOTI PRASHAD VINOD KUMAR AND ANR.

       Vs.

RESPONDENT: YASH PAL AND OTHERS

DATE OF JUDGMENT:       23/08/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. THOMAS K.T. (J)

CITATION:  JT 1996 (8)   195

ACT:

HEADNOTE:

JUDGMENT:                          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

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    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

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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.