JUDGMENT
J.S. Narang, J.
1. Landlord filed an eviction petition No. 59-R of 1987, vide which arrears of rent had been claimed with effect from 1.11.1986 to 31.10.1987. The tenant tendered the demanded arrears of rent on December 5, 1987 before the Rent Controller, which was accepted by the landlord, and the petition was dismissed on February 1, 1988. It is alleged that the tenant sent a money order of Rs. 200/- on account of arrears of rent for four months as the monthly tenancy was at the rate of Rs. 50/-. The rent was sent for the period of November 1987 to February 1988 and that the said amount was duly received by the landlord. However, another petition was filed by the landlord registered as No. 79 of 1989 vide which the arrears of rent have been claimed with effect from 1.2.1988 to 30.6.1989. The tenant after having put in appearance tendered the said rent on October 27, 1989 under protest with the reservation that he has already paid the rent upto February 1988 but despite this reservation, the counsel for the landlord accepted the tender and intentionally did not disclose/admit the rent having been received by him for the month of February 1988. Resultantly, the landlord is stated to have violated the provisions of the Act.
On the aforesaid premises, an application under Section 22 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as ‘the Act’) has been filed on January 4, 1990. It has been categorically averred that the rent had been duly paid to the landlord through a money-order in the sum of Rs. 200/- against the arrears of rent of four months i.e. November 1987 to February 1988 and that the amount had been duly received. Again an application for eviction had been filed for non payment of rent with effect from February 1988 to February 1989.
2. The landlord contested the application by way of filing reply and taking the plea that the monthly rent was enhanced from Rs. 50/- with the consent of the tenant and that the rent tendered in the sum of Rs. 200/- is not the rent for four months but has been tendered for three months at the enhanced rate. This fact has been controverted by way of replication filed by the tenant the pivotal issue has been framed which reads as under:-
“Whether there is sufficient ground to prosecute the respondent under Section 22 of the Haryana Urban (Control of Rent & Eviction Act)? OPA
3. The parties have led their respective supporting evidence. Upon perusal of the same, the Rent Controller has arrived at a categoric finding that the rent for the month of February 1988 had been duly received by the landlord. The plea of rent having been enhanced has not been accepted on the premises that the rent tendered at the rate of Rs. 50/- per month for the period November 1, 1986 to October 31, 1987, in the previous application filed for eviction on the ground of non payment of arrears of rent, has been duly accepted by the landlord. There was no reason or question for enhancing the rent and, therefore, the plea of the landlord is totally misconceived and the same has been set up only to avoid prosecution. The petition which has been filed by which the rent has been claimed with effect from February 1988 to June 1989, the landlord has received the rent at the rate of Rs. 50/- per month and the counsel for the landlord has made the statement accordingly by virtue of which the petition was got dismissed. The statement has been exhibited as Ex. A3. This corroborates the fact succinctly that the rent has been received twice over by the landlord knowing well that in the first instance the amount had been received through the money order and second time by way of the aforesaid petition. The Rent Controller has therefore, given a categoric finding in this regard and has held the landlord guilty of the offence. Resultantly, the sanction has been granted for prosecution of the landlord vide order dated 17.1.1994 in view of the judicial pronouncement of this Court rendered in re: Ajit Kumar Jain v. Jageer Chand, 1984(2) R.C.R. 35.
4. The petitioner has filed the present petition making the aforesaid order as subject matter of challenge. It has been pleaded that the provision as envisaged under Section 22 of the Act would not be attracted to the facts of this case. Thus, the Rent Controller has fallen into error in granting sanction for prosecution of the landlord. The plain reading of the requisite provision would show that the receipt of the rent twice over, even if not attributable to a mistake on the part of the landlord, would not fall within the mischief of the said provisions. The tenant at best would be entitled to claim a set off but such receipt of rent would not be punishable under the provisions of the Act.
5. It has been further averred that the tender was made in October 1989 and at that time the rent for the months beyond the period stated in the petition had also fallen due and that no objection was raised for adjustment of the rent for the said months. Thus, in view of this, no offence can be said to be made out against the petitioner.
6. Learned counsel for the petitioner has argued that the purpose and intention of Section 22 and Section 6 of the Act is entirely different. The perusal of these provisions would show that such situation does not fall within the mischief of these provisions and that the rent received for one month more would not amount to any offence as prescribed and described in these provisions. It shall be apposite to notice the provisions of the Act, which are reproduced as under:-
“6. Landlord not to claim anything in excess of fair rent:
Save as provided in this Act, when the Controller has fixed the fair rent of a building or rented land under Section 4.-
(a) the landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, but the landlord may stipulate for and receive in advance an amount not exceedings one month’s rent:
(b) any agreement for the payment of any sum in addition to fair rent or of rent in excess of such fair rent shall be null and void.
6-A xx xxx xxx xx xx “22. ‘Penalties:-
(1) If any person contravenes any of the provisions of Sub-section (2) of Section 8. sub section (1) of Section 10, Section 11 or Section 21, he shall be punishable with fine which may extend to one thousand rupees.
(2) If any person contravenes any of the provisions of Clause (a) of Section 6, he shall be punishable with imprisonment which may extend to two years or with fine, or with both.
(3) No Court shall take cognizance of an offence under this section except upon-(a) a complaint in writing (of facts which constitute such offence) filed with the sanction of the Controller; or
(b) a report in writing of such facts made by the Controller.”
7. It is argued that the penalty under Section 22 of the Act can be imposed only if any violation is committed as envisaged under Section 6, Sub-section (2) of Section 8, Sub-section (1) of Section 10. Section 11 or Section 21.
8. The perusal of these sections would show that under Section 6, the landlord is not entitled to claim anything in excess of fair rent, meaning thereby if the fair rent has been determined as envisaged under Section 4 and the landlord stilt charges more than the fair rent so determined he can be subjected to penalty under Section 22. Similarly, the land-lord has been restrained from recovering the amount of any rate, cess 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, safeguard is provided in sub section (1). It is envisaged under Sub-section (1) that the landlord shall be entitled to increase rent of a building or rented land if after the commencement of the tenancy a fresh rate, mess or tax is levied in respect of the building or rented land by any legal 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. This has been further subjected to the provisos under the said clause.
9. It is further provided that if any violation is made as spelt out in Section 11, the tenant may be liable for the penalty under Section 22 of the Act. It is categorically contained in Section 11 that no person shall convert the residential building into a non residential building except with the permission of Controller. It is further expected from every landlord and from every tenant of a building or rented land to furnish to the Controller or any person authorised by him in that behalf, such particulars in respect of such land or rented land as may be prescribed. If the correct particulars relating to the building or rented land are not furnished by either of the two-landlord or the tenant, they can be subjected to prosecution and suffer the penalty as envisaged under Section 22 of the Act.
10. It has been argued that none of the provisions envisaged any such situation where the rent has been received or charged in excess by the landlord. Thus, the Rent Controller has definitely fallen into error in holding that the petitioner has committed violation of the provisions of the Act and, therefore, is liable to be prosecuted. He has further erred in placing reliance upon a judgment of this Court in Ajit Kumar Jain’s case (supra). He has made pointed reference to para 15 of the aforesaid judgment wherein it has been observed that the landlord cannot take any advance rent exceeding one month and in case he does so he is liable to be prosecuted under Section 22 of the Act. The contention is that under the provisions of the Act, there is no such stipulation, but it has been mentioned only in Section 6 of the Act which deals with payment being received beyond the fair rent. Admittedly the fair rent is determinable under Section 4 of the Act and the word which has been used that the landlord may stipulate and receive in advance an amount not exceeding one month rent, would mean fair rent only. It is further contended that the word “fair rent” has not been defined under the Act but the procedure to determine the same has been spelt out under Section 4 of the Act. Thus, the judgment referred to by the Rent Controller is not applicable to the facts of this case. It is not the case of the tenant that the fair rent was ever determined and that such rent has been paid exceeding one month. In such a situation, the tenant is only entitled to claim set oft, if any excess rent has been paid to the landlord but such payment would not fall within the mischief of Section 22 of the Act. Thus, the order of the Rent Controller deserves to be set aside.
11. It has been further argued that the rent was tendered in the month of October 1989 and that the claim in the petition is only upto June 30, 1989. Thus, if the amount has been paid more than the period spelt out in the petition, the same would be adjustable in the next month though not spelt out in the petition. On this count also, the Rent Controller has fallen into error as the tenant has not been able to establish that such excess payment as alleged has not been adjusted for the months of July, August, September and October 1989. The Rent Controller has acted in a post-haste manner while granting sanction to prosecute the petitioner. The judgment which has been relied upon by the Rent Controller has not dealt with the situation of payment of rent. Ordinarily the words “exceeds one month’s rent” has been picked up from Section 6 wherein the restraint has been provided on the landlord not to claim anything in excess of fair rent. Since the tenant has failed to establish the fact as to whether the said alleged excess rent has been or has not been appropriated for the subsequent months, the order suffers from the rigour of this aspect as well and, therefore, deserves to be set aside.
12. After hearing learned counsel for the petitioner, I find substance in the argument. The perusal of the aforesaid provisions and reading of Section 22, no violation can be said to have been made out against the landlord. It shall be apposite to notice the other provisions apart from the one reproduced here above. The same are reproduced as under:
“8. Increase of rent on account of payment of rates, etc. of local authority:-
xx xx xx xx
(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 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).”
“10. Landlord not to interfere with amenities:-
(1) No landlord shall, without just and sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant.
(2) and (3) xxx xxx xx xx xx ”
11. Conversion of a residential building into a non-residential building:-
No person shall convert a residential building into a non residential building except with the permission in writing of the Controller.”
21. Landlord and tenant to furnish particulars:
Every landlord and every tenant of a building or rented land shall be bound to furnish to the Controller, or any person authorised by him in that behalf, such particulars in respect of such building or rented land as may be prescribed.”
13. The aforesaid sections have been mentioned in Section 22 and it has been provided categorically that if any person contravenes any of the provisions of the aforesaid sections, he shall be punishable with fine which may extend to one thousand rupees, in case violations committed fall within the perview of Sub-section (2) of Section 8, sub section (1) of Section 10, Section 11 and Section 21 and so far as Section 6 is concerned, the same shall be punishable with imprisonment which may extend to two years or with fine, or with both.
14. I am of the considered opinion that no offence can be said to have been made out against the landlord and, therefore, the Rent Controller has acted in a post-haste manner in granting sanction to prosecute the landlord. Reliance placed upon Ajit Kumar Jain’s case (supra), is also not tenable. The sanction to prosecute the landlord or the tenant, as the case may be, can only be granted if the violation of the provisions as contained under Section 6, 8(1), 10(1), 11 or 21 can be said to be made out. In the case at hand, receipt of one month’s rent in excess would not fall within the ambit of any of the aforesaid provisions. It has not been established that the rent has been received in excess of the fair rent as envisaged under Section 6 of the Act. In the case at hand, the fair rent has not been determined as no such prayer has been made nor any such fact has been established by the tenant. So far as Section 8(2) is concerned, the same relates to increase of rent on account of payment, of rates etc. which is not the point at issue in the present case. Likewise, there is no violation attributable to the landlord under Section 10(1) which pertains to the amenities being enjoyed by the tenant and that Section 11 deals with a factum where the tenant converts the residential building into a non residential building without permission in writing of the Controller. So far as Section 21 is concerned, nothing has been attributed that any of the persons have not disclosed the particulars in respect of the building defined as demised premises. Thus, the excess payment as alleged to have been received by the landlord does not fall within the mischief or within the ambit of any of the aforesaid provisions. Resultantly, the landlord cannot be subjected to any penalty as envisaged under Section 22 of the Act.
The second argument that the rent has been claimed by the landlord with effect from 1.2.1988 to 30.6.1989 but the rent has been tendered in October 1989, the excess rent is adjustable and can be taken as set off against any of the months of July. August. September and October, 1989. The tenant has not established that the rent so received in excess has not been appropriated against any of these months. Thus, in the absence of the same, it was not correct on the part of the Rent Controller to have opined that any kind of violation has been committed. However, in view of my opinion in respect of the first argument, I am not required to give any finding in this regard. Thus, I refrain myself to do so.
15. In view of the above, the petition succeeds and the same is allowed. Consequently, the order dated January 17, 1994 passed by the Rent Controller is set aside. The application of the tenant is dismissed with no order as to costs.