JUDGMENT
G.S. Singhvi, J.
1. This case has been placed before the Division Bench for determination of the following question of law:-
“Whether the proviso to Section 13(2) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act”) is applicable to the claim of arrears of rent after an application for fixation of fair rent has been decided and rent has been determined as per Sections 4, 5 and 6 of the Act?”
2. First of all we may notice the background in which the learned Single Judge has referred the aforementioned question to the larger Bench.
3. Shri Hari Krishan Dutt, father of the petitioner Nos. 1, 3 and 4 and husband of petitioner No. 2 leased out a portion of the property bearing municipal number 226, Block VI situated in Bazar Vakilan, Hisar to respondent-Neki Ram on 1.11.1962 at a monthly rent of Rs. 70/- plus house tax. After his death, the petitioners filed application dated 27.2.1975 for fixation of fair rent, which was disposed of by Rent. Controller, Hisar vide his order dated 15.9.1979. He fixed the fair rent of the premises in question at Rs. 124/-. per month plus house tax. After about one year, the petitioners filed application for eviction of the respondent on the ground of non-payment of rent and enhanced house tax. They claimed Rs. 1845.64 as the difference of original rent and fair rent for the period from 27.2.1975 to 30.9.1977 at the rate of Rs.59.40 per month; rent for the period from 1.10.1997 to 31.3,1980 at the rate of Rs. 136,40 per month and rent for the period from 1.4.1980 to 30.9.1980 at the rate of Rs. 139.50 per month. The respondent contested the eviction petition by asserting that he had already paid the arrears of rent with house tax alongwith interest and costs.
4. By an order dated 29.5.1981, the Rent Controller dismissed the eviction petition. He held that even through the fair rent fixed vide order dated 15.9.1979 became payable by the tenant w.e.f. 27.2.1975 i.e. the date of application filed under Section 4 of the Act, in view of the embargo contained in second proviso to Section 13(2)(i) of the Haryan Urban (Control of Rent and Eviction) Act, 1973 (for short, the Act), the petitioner are not entitled to claim arrears of rent for a period exceeding three years immediately, preceding the date of application i.e. 25.9.1980. In support of the conclusion, the Rent Controller, relied, on the judgment of this Court in Jaswant Singh v. Chuni Lal 1980(1) Rent Control Reporter (Pb. & Hry.) 710 in which a learned Single Judge interpreted Sections 4 and 13 or the Act and held as under:-
“Under Section 13(2)(i) the tenant has been made liable to be ejected on the
ground of non-payment of arrears of rent and under second proviso thereto the term
“arrears of rent” has been restricted to a period of three years immediately preceding
the date of application for ejectment. It is true that under Section 4(1) of the Act the
fair rent fixed becomes operative from the date of the application and in certain cases
the period covered thereunder may be more than three years. The fact that the fair rent
fixed exceeds the contractual rent and becomes operative for period more than three
years would not enlarge the scope of “arrears of rent” given in second proviso to
Section 13(2)(i) in the context of that section; In other words, a tenant would not be
liable to be ejected on the ground of non-payment of arrears of rent if he tenders rent,
for a period of three years immediately preceding the date of application for ejectment
irrespective of the fact that the fair rent fixed exceeds the, contractual rent and is
operative for a period more than three years. It is admitted that the respondent tenant
did tender arrears of rent on the first date of hearing for a period of three years
immediately preceding the date of the application. The Rent Controller, therefore,
rightly concluded that the respondent was not liable, to be ejected on the ground of
non-payment of arrears of rent.”
5. The Appellate Authority dismissed the appeal of the petitioners and upheld the order of the Rent Controller.
6. The learned Single Judge (Hon’ble J.S. Narang), who heard the revision filed by
the petitioners doubted the correctness of the proposition laid down in Jaswant Singh ‘s
case (supra) and referred the matter to the larger Bench by expressing his views in the
following words:-
“I am doubtful that the interpretation of both the provisions i.e. Sections 4 and 13 of the Act has been made homogeneously. Admittedly, the cause of action to recover the fair rent determined in excess of the rent already payable between the parties arises in favour of the landlord on the date of determination of the application. By virtue of Section 4, it becomes applicable from the date of filing the application. In such a situation, the amount so payable has to be read into “arrears of rent” payable, on the date of determination of such application. The period of three years, as provided in the proviso of Section 13(2) would be applicable if such application under Section 13(2) is filed after the expiry of the period of three years from the date of determination of the application for fixation of the fair rent. It shall be apposite to notice the decision rendered by Mysore High Court in somewhat similar circumstances, wherein it is held that the standard rent when finally determined became the date on which the arrears for entire period became due within the meaning of Article 110 of the Limitation Act and hence no part of the arrears became time barred. Reliance has been placed upon the judgment in re: Badappa and Ors. v. Shrishilappa Shivappa and Ors., A.I.R. 1969 Mysore 200. Since I am differing with the view expressed in the aforesaid judgment, it shall be appropriate that the question raised here above be determined finally by a larger Bench.”
7. Shri Sanjay Bansal, learned counsel for the petitioners argued that the expression “arrears of rent” appearing in second proviso to Section 13(2)(i) should be read in conjunction with Section 4 of the Act, else the effective date of landlord’s right to claim arrears of fair rent would be negated. He further argued that the period of three years specified in second proviso to Section 13(2)(i) is not applicable to a case in which an application for eviction is filed after determination of the fair rent under Section 4 of the Act. An alternative argument made by Shri Bansal is that the limitation of three years would be applicable to a case in which an application for eviction is filed after expiry of three years from the date of determination of application for fixation of fair rent and not to a, case in which the application is filed within three years from the date of such determination. In support of his arguments, Shri Bansal relied on the following decisions:-
1. Basant Ram Ralla Ram v. Gurcharan Singh, A.I.R. 1959 Punjab 578.
2. J.M. Andres v. Radio Engineering Co., A.I.R. 1963 Mysore 113.
3. Basappa and Ors. v. Shrishailappa Shivappa and Ors. A.I.R. 1969 Mysore 200.
4. Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors., (2000-2)125 P.L.R. 370.
8. Shri Sudhir Mittal, counsel for the respondent argued that the proposition of law laid down in Jaswant Singh ‘s case is based on a correct interpretation of Sections 4 and 13 of the Act and does not call for re-consideration. He further argued that proviso to Section 13(2)(i) of the Act is applicable to all types of cases in which the landlord claims arrears of rent including the fair rent determined under Section 4 and there is no justification for interpreting the expression “arrears of rent” differently for different types of cases. Elaborating his arguments, Shri Mittal submitted that the bar of three years contained in Second proviso to Section 13(2)(i) cannot be waived in the cases in which the arrears are claimed by the landlord after the decision of the application filed for fixation of fair rent.
9. We have given serious thought to the respective arguments. Sections 4(1), 5(1), 6, 6A(1), 8(1) and 13(1) and (2)(i) of the Act, which have bearing on the question referred by the learned Single Judge, read as under-
“4. Determination of fair rent.- (1) The Controller shall, on application by the tenant or the landlord of a building or rented land, fix the fair rent for such building or rented land after holding such inquiry as the Controller thinks fit. Such fair rent shall be operative from the date of application.
5. Revision in fair rent in certain cases.- (1) when the fair rent of a building or rented land has been fixed under Section 4, no further increase or decrease in such fair rent shall be permissible for a period of five years.
Provided that an increase may be allowed in cases where any addition, improvement or alteration has been carried out at the expense of the landlord, and in the building or rented land which is in occupation of the tenant then at the request of the tenant.
Provided further that the decrease may be allowed in cases where there is a decrease or diminution in the accommodation or amenities provided.
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 exceeding one months’ 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 Deposit of rent.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, if a landlord refuses to receive, or grant a receipt for any rent payable in respect of the building or rented land when tendered to him by a tenant, the tenant may apply to the Controller for leave to deposit, the rent in his office, and the Controller shall receive the deposit, if, after examining the application, he is satisfied that there is sufficient ground for the application and if the applicant pays the fee, if any, chargeable for the issue of the notice hereinafter provided.
13. Eviction of tenants,-
(1) A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller, for a 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 not 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 agreement 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 such arrears together with such costs of the application if any, as may be allowed to have duly paid or tendered the rent within the time aforesaid;
Provided further that the landlord shall not be entitled to claim arrears or rent for a period exceeding three years immediately preceding the date of application under the Provisions of this Act.”
10. An analysis of the provisions reproduced above shows that on an application by a tenant or landlord, the Rent Controller is required to fix fair rent of a rented building or land and once so fixed, the fair rent is operative from the date of application. (Section 4(1), Section 5(1) contains an embargo against the revision of fair rent for a period of five years once such rent has been fixed under Section 4. However, proviso thereto enables the landlord to seek increase in the fair rent where any addition, improvement or alteration has been carried out at his instance. Likewise, a tenant can claim decrease in the rate of fair rent where there is a decrease or diminution in the accommodation or amenities provided. Section 6 prohibits the landlord from claiming any amount in addition to the fair rent or any rent in excess of the fair rent. Section 6-A provides for deposit of rent by the tenant in case the landlord refuses to receive the same. Section 13(1) lays down that a tenant shall not be evicted from a building in his position or rented land except in accordance with the provisions of that section. Sub-section (2) of Section 13 envisages filing of the application by the landlord for eviction of the tenant and passing of an order by the Rent Controller if he is satisfied that the tenant had not paid or tendered the rent due from him in respect of the building or rented land within 15 days after expiry of the time fixed in the agreement of tenancy or in the absence of any proviso to Section 13(2) (i) contains a deeming fiction, it lays down 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 Rent Controller at eight per centum per annum on such arrears together with such costs of the application, if any, as may be allowed by the Rent Controller, the tenant shall be deemed to have duly paid or tendered rent within the time specified in Clause(i), Second proviso lays down that the landlord shall not be entitled to claim arrears of rent for a period exceeding three years immediately preceding the date application. The expression “fair rent” finds mention in Sections 4, 5(1) and 6(1) and the expression ‘arrears of rent” finds mention in the first and second provisos to Section 13(2)(i). The word “rent” appears in Sections 6-A(1) and 8(1). The same word appears in Clause (i) of Section 13(2) in conjunction with the word “due”. There is nothing in the plain language of Section 13(2)(i) and two provisos appearing below it which may suggest that the expression “arrears of rent” used therein should receive different interpretations for different types of cases i.e. one in the cases in which the landlord applies for eviction after determination of fair rent under Section 4 so as to entitle him to claim arrears of rent for a period exceeding three years immediately preceding the date of application for eviction and the other in the cases in which the landlord applies for eviction without seeking determination of fair tent. In our opinion, even if the fair rent fixed under Section 4(1) exceeds the contractual rent and becomes operative for a period of more than three years, the landlord cannot seek a direction for payment of arrears of rent exceeding three years and non-payment thereof cannot be made a ground for eviction of the tenant.
11. We are further of the view that the embargo contained in second proviso to Section 13(2)(i) of the Act is applicable to all types of cases in which the landlord claims
arrears of rent and the limitation of three years cannot be waived simply because the
landlord files application for eviction after determination of the fair rent. The situation
would, however, be different if the tenant commits default in payment of rent due from
him and also fails to avail the benefit of deeming fiction contained in first proviso to
Section 13(2)(i).
12. In view of the above discussion, we hold that the scope of the expression “arrears of rent” used in second proviso to Section 13(2)(i) of the Act cannot be enlarged simply because the fair rent fixed by the Rent Controller may exceed the contractual tent and become operative for a period exceeding three years. As a logical corollary, we hold that the proposition laid clown by the learned Single Judge in Jaswant Singh’s case (supra) represents correct position of law and does not warrant re-consideration.
13. We also agree with Sh. Sudhir Mittal that the expression “arrears of rent” used in the two proviso appearing below Section 13(2)(i) cannot be given different meaning for different types of cases because that would amount to re-writing of the statute and there are no compelling reasons for adopting that course.
14. Now, a few words about the judgments, relied upon by Sh. Sanjay Bansal.
15. In Basant Ram v. Gurcharan Singh (supra), a Division Bench of this Court interpreted Section 13(2)(i) of Pepsu Urban Rent Restriction Ordinance and held as under;-
“Where the tenant complies with the demand of the landlord with respect of the arrears of rent due from him constituting the cause of action for the petition for eviction the tenant should be deemed to have satisfied his landlord’s claim. The rights and liabilities of the parties as they exist on the date of the initiation of the , proceedings atone fall within the scope of the investigation of which the tribunal is properly seized and it is generally incompetent for a tribunal to adjudicate upon any controversial matter which does not find place in the pleadings of the parties. Thus the proviso to Section 13(2)(i) means that the amount to be deposited by the tenant should only be the amount due as arrears according to the landlord’s application up to the date on which the application for ejectment is made and not the entire amount due as arrears up to the date of the first hearing when the deposit is made in court”,
16. In J.M. Andrews v. Ragio Engineering Co. (supra), a learned Single Judge of Mysore High Court considered the question whether the right to sue for recovery of arrears of rent at the enhanced rate accrues after determination of the application of fair rent and answered the same in the affirmative.
17. A similar view was expressed in Bassappa and Ors. v. Shrishilappa Shivappa and Ors. (supra).
18. In Rakesh Wadhawan’s case (supra), their Lordships of the Supreme Court interpreted Section 13(2)(i) of the hast Punjab Rent Restriction Act, 1949 and held that the
order of eviction shall follow if the tenant fails to comply with the order of assessment
of arrears of rent made by the Rent Controller.
19. In none of the aforementioned cases, the Court was called upon to interpret the provisions similar to the one contained in proviso to Section 13(2)(i) of the Act and, therefore, the decisions of those cases cannot be relied upon for declaring that the proviso to Section 13(2)(i) is not applicable to the claim of arrears of rent fried after fixation of fair rent under Section 4 of the Act.
20. As a result of the above discussion, we answer the question referred by the learned Single Judge in the following terms;-
Second proviso to Section 13(2)(i) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 is applicable to claim or arrears of rent after an application for fixation of fair rent has been decided and the landlord is not entitled to claim arrears of rent for a period exceeding three years.”
21. The file of the case may now be placed before the Single Bench for disposal in accordance with law
Sd/- Kiran Anand Lall, J.