HARBANS KAUR versus IQBAL SINGH & ANR.
[2019] 2 S.C.R. 535, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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HARBANS KAUR
v.
IQBAL SINGH & ANR.
(Civil Appeal Nos. 12561-12562 of 2017)
JANUARY 29, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Rajasthan Rent Control Act, 2001 – ss.4, 6, 7 & 14 – Default
in payment of rent – Appellant-landlord let out shops to the
respondent-tenant at the rent of Rs.8,500/- per month – Rent deed
dated 19.08.1995 executed between the parties, contained a clause
for yearly increase of rent by 10% – Accordingly, tenant paid the
agreed rent with 10% enhancement yearly – In 2003, tenant was
paying rent at the rate of Rs.16,564/- per month – In April 2003,
tenant made payment upto month of July at the rate of Rs.16,564/-
per month – Thereafter, tenant committed default in payment of rent
– Appellant-landlord issued notice dated 27.03.2004 demanding
arrears from 01.08.2003 to 29.02.2004 amounting to
Rs.1,15,945/- calculated @ Rs.16,564/- per month rent for period
of seven months – Tenant deposited Rs. 95,200/- on 26.04.2004
and took the stand that in accordance with provisions of Act, 2001
w.e.f. 01.04.2003, on increasing the rent under the provisions of
s.6, the prescribed rent of Rs.8500/- month @ 7.5% p.a. from
01.04.2003 comes to Rs.13,600/- p.m. – Accordingly, tenant
deposited rent amount of Rs.95,200/- – Rent Tribunal held that the
case of tenant that rent is payable @ 13,600/- p.m. cannot be
accepted and directed for eviction of tenant – Same was upheld by
Appellate Tribunal – However, High Court held in favour of  the
tenant – On
appeal, held: s.6 of the Act, 2001 empowers the landlord
to obtain revision of rent and to calculate the rent from date of
initiation of tenancy – But in the event landlord does not choose to
invoke the machinery of revision of the rent as provided in s.6 and
s.14, the agreed rent between the parties shall not automatically be
changed nor the tenant can unilaterally revise the rent – Further,
s.4 of the Act which deals with the agreed rent, provides that rent
payable for any premises shall subject to the provisions of this Act,
be such as may be agreed between the landlord and the tenant –
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In the instant case, tenant was paying the rent of Rs.16,564/- per
month before the enforcement of the Act as per the rent
agreement – Said amount of Rs.16,564/- per month was agreed
amount which was being paid before the enforcement of the Act –
The arrears demanded by the notice  dated 27.03.2004 i.e.
Rs.16,564/- per month starting from August, 2003 to February, 2004
totalling Rs.1,15,945/- were required to be paid by the tenant and
having paid only Rs.95,200/- as per his calculation of the rent at
the rate of Rs.13,600/- per month, he has committed default – Also,
landlord had not added 10% increase in the rent demanded,
therefore, there was no breach of s.6 – High Court has committed
error in allowing the writ petition of the tenant – Order of the Rent
Tribunal restored.
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
– s.6 – Rajasthan Rent Control Act, 2001 – s.6 – Held: A comparison
of scheme of s.6 as it existed in Act, 1950 and s.6 as it brought
under Act, 2001 makes it clear that although the tenant under the
old Act was entitled to apply for fixation of standard rent if the rent
was excessive whereas u/s.6 of the Act, 2001 tenant has not been
given any right to pray for reduction of the rent.
Rajasthan Rent Control Act, 2001 – s.9 – Notice by landlord
demanding arrears of rent – Plea of tenant to relieve him from
eviction – Tenability of – Held: In the present case arrears demanded
by the notice
i.e. Rs.16,564/- per month starting from August, 2003
to February, 2004 totalling Rs.1,15,945/- were required to be paid
by the tenant and having paid only Rs.95,200/- as per his calculation
of the rent at the rate of Rs.13,600/- per month has committed default
– Order of the Rent Tribunal directing eviction of the tenant restored.
Rajasthan Rent Control Act, 2001 – ss.4, 6, 7 , 9  & 14 –
Discussed.
Allowing the appeals, the Court
HELD: 1. The important differences between the statutory
scheme as contained in Section 6 of Rajasthan Premises (Control
of Rent and Eviction) Act, 1950 and as now contained in Rajasthan
Rent Control Act, 2001 are: (i) Under the old Act the landlord or
the tenant both were entitled to file a suit for fixation of standard
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rent, if it is claimed that rent is either low or excessive. Thus,
landlord could have moved the Court for enhancement of the
rent and equally the tenant could have instituted a suit in the
event the rent was excessive and the Court after holding inquiry
was to determine the standard rent for such premises; (ii) In
Section 6 of Act, 2001 the tenant has not been given any right to
apply for revision of the rent on any ground. The old Act did not
contain any prohibition regarding the annual increase of rent
whereas Section 6 now contains the prohibition, restricting annual
increase only by 5% for both the tenancies which were in existence
prior to enforcement of the Act as well as tenancies which
commenced after the commencement of the Act, 2001.
[Para 13] [544-G, H; 545-A-C]
2. Sub-section (4) of Section 6 of the Act 2001, further
provides that rent revised as per formula given under sub-section
(1) and sub-section (2) shall be payable, after the commencement
of this Act from the date agreed upon between the landlord and
the tenant or where any revision petition is filed, from date of
filing of such petition. [Para 16] [546-A]
3. Section 14 of the Act, 2001 contains procedure for
revision of rent which provides that landlord may seek revision
of rent under Section 6 and 7 by submitting a petition before the
Rent Tribunal accompanied by affidavits and documents, if any.
Section 14 sub-section (1) uses the words “landlord may seek
revision”. It is not
obligatory for every landlord to seek revision
of rent in accordance with Section 6. Section 6 contains provision
entitling landlord to seek revision of rent notwithstanding anything
contained in any agreement between landlord and tenant. Section
6 empowers the landlord to obtain revision of rent and to calculate
the rent from date of initiation of tenancy. But in the event landlord
does not choose to invoke the machinery of revision of the rent
as provided in Section 6 and Section 14, the agreed rent between
the parties shall not automatically be changed nor the tenant can
unilaterally revise the rent. Section 6 is also beneficial to the
tenant to the extent that any contrary agreement between the
parties to increase the rent annually more than as provided under
Section 6 cannot be enforced by a landlord after the enforcement
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of the Act. In the event landlord applies for revision of the rent,
the revision of rent has to be in accordance with the formula as
provided under Section 6(1) and 6(2) of the Act. The statutory
scheme does not indicate that the tenant can unilaterally compute
the rent as per formula under Section 6(1) from the inception of
the tenancy and reduce the amount of rent which he was paying
immediately before the enforcement of the Act. In the present
case, the tenant has come up with the case in his written statement
that he has recomputed the rent from inception of tenancy and
has arrived at calculation that the rent payable with effect from
the enforcement of Act, 2001 was Rs.13,600/- only and relying
on the said computation he deposited an amount of Rs.95,200/-
in response to the notice. [Para 17] [546-B-G]
4.  Section 4 of the Act which deals with the agreed rent
provides that rent payable for any premises shall subject to the
provisions of this Act, be such as may be agreed between the
landlord and the tenant. When the tenant was paying the rent of
Rs.16,564/- per month before the enforcement of the Act as per
the rent agreement, the said amount was agreed amount which
was being paid before the enforcement of the Act. It is true that
in the agreed amount which was being paid immediately before
the commencement of the Act, the landlord cannot increase @
10% of the rent as per agreement. The increase after the
enforcement of the Act shall be in accordance with Section 6 and
in the event the tenant does not agree for the said increase, the
landlord is free to file application under Section 6 read with
Section 14. Thus, the High Court has not appreciated the true
import of Sections 6 and 7 of the Act, 2001 in observing that the
tenant is not in default.  [Para 20] [547-F-H; 548-A]
5.  In the present case arrears demanded by the notice i.e.
Rs.16,564/- per month starting from August, 2003 to February,
2004 totalling Rs.1,15,945/- were required to be paid by the tenant,
the tenant having paid only Rs.95,200/- as per his calculation of
the rent at the rate of Rs.13,600/- per month has committed default.
According to the tenant, the rent paid by the tenant was sufficient
to cover the rent upto December, 2003 and part of January, 2004,
admittedly, the arrears as demanded having not been paid and
the Court having found that the landlord has demanded arrears
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of rent for seven months according to rate of rent Rs.16,564/-
per month which was being paid by the tenant even before the
enforcement of the Act, 2001 and after the enforcement of the
Act, 2001. The landlord  having not added 10% increase in the
rent demanded, there was no breach of Section 6 and the High
Court has committed error in allowing the writ petition of the
tenant. [Para 24] [550-D-F]
Prakash Mehra v. K.L. Malhotra (1989) 3 SCC 74 :
[1989] 2 SCR 744 – referred to.
Case Law Reference
[1989] 2 SCR 744
   referred to
Para 23
CIVIL APPELLATE JURISDICTION :  Civil Appeal Nos.12561-
12562 of 2017.
From the Final Judgment and Order dated 09.10.2014 and
14.12.2015 of the High Court of Judicature for Rajasthan at Jaipur Bench,
Jaipur in S.B. Civil Writ Petition No.6965 of 2014 and D.B. Special
Appeal (Writ) No.2075 of 2014 in S.B. Civil Writ Petition No.6965 of
2014 respectively.
Puneet Jain, Abhinav Deshwal, Harsh Jain, Ms.Pratibha Jain,
Advs. for the Appellant.
Abhishek Singh, Shreasth Arya, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. These appeals have been filed by
the appellant, the landlord of the premises in question, challenging the
judgment of the Rajasthan High Court dated 09.10.2014 allowing the
writ petition filed by the tenant setting  aside the order of eviction passed
by Rent Tribunal as well as Appellate Rent Tribunal. Division Bench of
the Rajasthan High Court vide its judgment dated
14.12.2015 dismissed
the Special Appeal(Writ) of the landlord as not maintainable.
2. Brief facts of the case necessary to be noticed for deciding
these appeals are:
The appellant is landlord of Shop No.3 and 4 in Plot No.362 which
was let out to the respondent-tenant in August, 1995 at the rent of
Rs.8,500/- per month. A Rent Deed dated 19.08.1995 was executed
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between the parties. Rent deed contained a clause for yearly increase
of rent by 10%. The tenant continued to pay rent to the landlord as per
the agreed rent with 10%  enhancement yearly. In the year 2003 the
tenant was making payment of rent at the rate of Rs.16,564/- per month.
In April, 2003, rent which was paid by the tenant was   Rs. 16,564/-, upto
July, 2003 the tenant paid the rent at the rate of Rs.16,564 per month.
The landlord issued notice dated 27.03.2004 stating that with effect from
01.08.2003 upto 29.02.2004, for a period of seven months, the tenant
has neither paid or tendered rent, arrears from 01.08.2003 to 29.02.2004
amounting to Rs.1,15,945/- were asked to be deposited in the bank account
of landlord. Notice mentioned that in the event the tenant does not deposit
the amount in the account, landlord shall be compelled to carry out legal
proceedings for eviction of the tenant. After the aforesaid notice dated
27.03.2004 the tenant deposited an amount of Rs.95,200/- on 26.04.2004
in the bank account of the landlord. Landlord filed an Application No.1258
of 2004 under Section 9 of the Rajasthan Rent Control Act, 2001
(hereinafter referred to as the “Act, 2001”) praying for eviction on the
ground of arrears of rent. The tenant filed reply opposing the abovesaid
application. The tenant took stand in the application that in accordance
with the provisions of Act, 2001, which has come into effect from
01.04.2003, on increasing the rent under the provisions of Section 6 in
the prescribed rent of Rs.8,500/- @ 7.5% per annum the rate of rent
from 01.04.2003 comes to be Rs.13,600/- per month. It was stated In
the written statement that tenant has deposited rent upto February, 2004
@ Rs.13,600/- per month i.e. a total of Rs.95,200/- in the bank account.
3. Rejoinder was filed by the landlord where it was pleaded that
respondent-tenant has been paying rent from August, 2002 @
Rs.16,564/- per month which rent was paid till July, 2003. It was claimed
that the respondent-tenant is liable to pay rent @ Rs.16,564/- per month.
The Rent Tribunal heard the parties and by its judgment and order dated
22.04.2011 directed for eviction of the tenant. The Rent Tribunal held
that the case of tenant that rent is payable @ Rs.13,600/- per month
cannot be accepted. The tenant having not deposited at the rate of
Rs.16,564/- per month, has committed default in paying rent. An appeal
was filed by the tenant before the Rent Appellate Tribunal which too
was dismissed by order dated 15.01.2014. The order of the Rent Tribunal
was upheld. The tenant aggrieved by the order of the Appellate Tribunal
filed Writ Petition No.6965 of 2014 in the High Court which writ petition
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was allowed by the learned Single Judge vide its judgment and order
dated 09.10.2014. Against the judgment of the learned Single Judge dated
09.10.2014 Special Appeal (Writ) No.2075 of 2014 was filed which was
dismissed by the Division Bench vide its judgment dated 14.12.2015
holding writ appeal  as not maintainable. Aggrieved against the judgments
of the High Court landlord has filed these appeals.
4. Learned counsel for the appellants submits that the High Court
committed error in interpreting the provisions of Sections 4, 6, 7 and 14
of the Act, 2001. He submits that the rent which was being paid by the
tenant on the enforcement of the Act i.e. w.e.f. 01.04.2003 was
Rs.16,564/- per month, the tenant was liable to pay the rent at the same
rate. It is not the case of the appellants that they are demanding rent
with the hike of 10% after the enforcement of Act, 2001. The tenant,
however, is calculating the rent by revising the rent with effect from
year 1995 as per the provisions of Section 6 of the Act. The tenant’s
case that rent payable was Rs.13,600/- per month is erroneous. By the
notice given by the landlord dated 27.03.2004 an amount of Rs.1,15,945/-
which was due from August, 2003 to February, 2004 was demanded at
the rate of Rs.16,564/- per month. The tenant having not deposited the
due amount and having deposited amount of only Rs.95,200/- on
26.04.2004 has committed default. The rent which was being paid on
the date of the commencement of the
Act, 2001, shall be treated as
agreed rent between the parties. There is change in the statutory scheme
of Act, 2001 which now entitles landlord to seek revision of the rent. As
per the provisions of Act, 2001 the tenant has not been given a right to
get revision of the agreed rent under the statutory scheme.
5. Learned counsel for the respondent refuting the submission of
the learned counsel for the appellants submits that the High Court has
rightly taken the view that the landlord was not entitled to enhancement
of the rent more than 5% in view of the Act, 2001. The landlord was not
at liberty to claim rent with enhancement at the rate of 10% per annum.
The High Court had rightly held that permitting the landlord to demand
rent with increase of 10% shall be contrary to the Section 6 of the Act,
2001. Any agreement cannot be given effect if it provides the revision of
rent above @ 5%. Learned counsel for the respondents additionally
submitted that in the event the rate of rent as claimed by the landlord is
accepted the agreed rent, after the receipt of the notice by the tenant,
tenant has deposited amount of Rs.95,200/-, which covered rent upto
HARBANS KAUR v. IQBAL SINGH & ANR.
[ASHOK BHUSHAN, J.]
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December, 2003 and part of rent of January, 2004. The tenant was not
in default for four months, hence he could not have been evicted under
Section 9 of Act, 2001. He submits that unless there is default for payment
of 4 months rent eviction cannot be ordered. He submits that due to this
reason the orders of eviction were unsustainable and this Court may not
interfere with the judgment of the High Court.
6. We have considered the submissions of the learned counsel for
the parties and perused the records.
7. We need to look into the statutory scheme of Act, 2001 for
considering the respective submissions. The Rent Control Legislation
which was in operation prior to Act, 2001 also need to be noted for
appreciating the changes in law brought by the Act, 2001. The issue in
these appeals pertains to rate of rent and the revision of rent as prescribed
by the Act, 2001, hence, only those provisions of both the earlier Act and
the Act, 2001 need to be noted. Act, 2001 has repealed the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950. We may first notice
the provisions of Act, 2001 which are relevant for the present case.
Section 4 provides for rent to be as agreed which is to the following
effect:
“Section 4. Rent to be as agreed. - The rent payable for any
premises shall, subject to other provisions of this Act, be such as
may be agreed upon between the landlord and the tenant and it
shall not include the charges
payable for amenities which may he
agreed upon separately; and shall be payable accordingly.”
8. Chapter II of the Act, 2001 deals with “Revision of Rent”.
Section 6 of the Act (as existing on relevant day) provides as follows:
“Section 6. Revision of rent in respect of existing tenancies.
- (1) Notwithstanding anything contained in any agreement, where
the premises have been let out before the commencement of this
Act, the rent thereof shall be liable to be revised according to the
formula indicated below :-
(a) where the premises have been let out prior to 1st January,
1950, it shall be deemed to have been let out on 1st January, 1950
and the rent payable at that time shall be liable to be increased at
the rate of 7.5% per annum and the amount of increase of rent
shall be merged in such rent alter ten years. The amount of rent
so arrived at shall again be liable to be increased at the rate of
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7.5% per annum in similar manner upto the year of
commencement of this Act;
(b) where the premises have been let out on or after 1st January,
1951, the rent payable at the time of commencement of the
tenancy shall be liable to he increased at the rate of 7.5% per
annum and the amount of increase of rent shall be merged in such
rent after ten years. The amount of rent so arrived at shall again
be liable to be increased at the rate of 7.5% per annum in similar
manner upto the year of commencement of this Act.
(2) Notwithstanding anything contained in Sub-section (1), where
the period of ten years for merger of increase of rent under Sub-
section (1), is not completed upto the year of the commencement
of this Act, the rent at the rate of 7.5% per annum shall be
increased upto the year of the commencement of this Act and
amount of increase of rent shall be merged in rent.
(3) The rent arrived at according to the formula given in Sub-
section (1) and (2) shall, after completion of each year from the
year of commencement of this Act, again be liable to be increased
and paid at the rate of 5% per annum and the amount of increase
of rent shall he merged in such rent after ten years. Such tent
shall further be liable to he increased at similar rate and merged in
similar manner till the tenancy subsists.
(4) The rent revised as per formula given under Sub-section (1)
or Sub-section (2) shall be payable, after the commencement of
this Act, from the date agreed upon
between the landlord and the
tenant or where any petition is filed in a Rent Tribunal, from the
date of filing of such petition.”
9. Section 7 deals with revision of rent in respect of new tenancies
which is to the following effect:
“Section 7. Revision of rent in respect of new tenancies. -
(1)In the absence of any agreement to the contrary, the rent of
the premises let out alter the commencement of this Act shall be
liable to be increased at the rate of 5% per annum and the amount
of increase of rent shall be merged in such rent after ten years.
Such rent shall further be liable to be increased at the similar rate
and merged in similar manner till the tenancy subsists.
HARBANS KAUR v. IQBAL SINGH & ANR.
[ASHOK BHUSHAN, J.]
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(2) Any agreement for increase of rent in excess of 5% per
annum shall be void to that extent.”
10. Section 14 provides the procedure for revision of rent. Section
14 sub-section (1) is as follows:
“Section 14. Procedure for revision of rent. - (1) The landlord
may seek revision of rent under Section 6 or Section 7 by submitting
it petition before the Rent Tribunal accompanied by affidavits and
documents, if any.”
11. Now we notice the relevant provisions as existed in Act, 1950.
Section 5 dealt with the payment as agreed rent to the following effect:
“Section 5. Rent to be as agreed.- The rent payable for any
premises situated within the areas to which this Act extends for
the time being shall, subject to the other provisions thereof, be
ordinarily such, as may be agreed upon between the landlord and
the tenant.”
12. Section 6 dealt with fixation of standard rent. Section 6(1) is
as follows:
“Section 6. Fixation of standard rent.-(1) Where no rent has
been agreed upon or where for any reason the rent agreed upon
is claimed to be low or excessive, the landlord or the tenant may
institute a suit in the lowest court or competent jurisdiction for
fixation of standard rent for any premises.
       (2)..................”
13. In the Act, 1950, Section 7 provided for fixation of provisional
rent, which provided that upon the institution of a suit under Section 6,
the Court shall forthwith make an order fixing in a summary
manner a
provisional rent for the premises in question, which shall be binding on all
parties concerned and shall remain in force till a decree fixing the standard
rent therefor is finally made in such suit.
The important differences between the statutory scheme as
contained in Section 6 of Act, 1950 and as now contained in Act, 2001
are:
(i) Under the old Act the landlord or the tenant both were entitled
to file a suit for fixation of standard rent, if it is claimed that rent is
either low or excessive. Thus, landlord could have moved the
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Court for enhancement of the rent and equally the tenant could
have instituted a suit in the event the rent was excessive and the
Court after holding inquiry was to determine the standard rent for
such premises.
(ii) In Section 6 of Act, 2001 the tenant has not been given any
right to apply for revision of the rent on any ground. The old Act
did not contain any prohibition regarding the annual increase of
rent whereas Section 6 now contains the prohibition, restricting
annual increase only by 5% for both the tenancies which were in
existence prior to enforcement of the Act as well as tenancies
which commenced after the commencement of the Act, 2001.
14. The moot question to be answered is as to whether the agreed
rent which was being paid by the tenant immediately before the
commencement of Act, 2001 i.e. with effect from 01.04.2003 is liable to
be re-determined as per provisions of Section 6 of Act, 2001 by a tenant
and tenant can unilaterally revise the rent under new  Section 6. Reverting
to the facts of the present case, it is on the record that tenant was paying
the rent of Rs.16,564/- per month immediately before the enforcement
of the Act and even subsequently till the month of July, 2003. In the rent
agreement there was mutual agreement between the parties for annual
increase @ 10% and the rent of Rs.16,565/- per month was arrived at
complying @ 10% increase annually to the tenancy which commenced
from 01.08.1995. As per tenant the rent which was
become payable
after the enforcement of the Act has to be re-determined applying Section
6 and instead of 10% as agreed between the parties calculation has to
be on the basis of increase at the rate of 7.5% w.e.f. 01.08.1995 as per
provision of Section 6.
15. A comparison of scheme of Section 6 as it existed in Act,
1950 and Section 6 as it brought under Act, 2001 makes it clear that
although the tenant under the old Act was entitled to apply for fixation of
standard rent if the rent was excessive whereas under Section 6 of the
Act, 2001 tenant has not been given any right to pray for reduction of
the rent. It is true that Section 6(1) begins with the words “Notwithstanding
anything contained in any agreement”. Section 6(1) sub-clause (b)
provides for “where the premises have been let out on or after
01.01.1950”, the provision contemplates that the rent payable at the time
of commencement of the tenancy shall be liable to be increased at the
rate of 7.5% per annum.
HARBANS KAUR v. IQBAL SINGH & ANR.
[ASHOK BHUSHAN, J.]
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16. Sub-section (4) of Section 6 further provides that rent revised
as per formula given under sub-section (1) and sub-section (2) shall be
payable, after the commencement of this Act from the date agreed upon
between the landlord and the tenant or where any revision petition is
filed, from date of filing of such petition.
17. Section 14 of the Act contains procedure for revision of rent
which provides that landlord may seek revision of rent under Section 6
and 7 by submitting a petition before the Rent Tribunal accompanied by
affidavits and documents, if any. Section 14 sub-section (1) uses the
words “landlord may seek revision”. It is not obligatory for every landlord
to seek revision of rent in accordance with Section 6. Section 6 contains
provision entitling landlord to seek revision of rent notwithstanding anything
contained in any agreement between landlord and tenant. Section 6
empowers the landlord to obtain revision of rent and to calculate the rent
from date of initiation of tenancy. But in the event landlord does not
choose to invoke the machinery of revision of the rent as provided in
Section 6 and Section 14, the agreed rent between the parties shall not
automatically be changed nor the tenant can unilaterally revise the rent.
Section 6 is also beneficial to the tenant to the extent that any contrary
agreement between the parties to increase the rent annually more than
as provided under Section 6 cannot
be enforced by a landlord after the
enforcement of the Act. In the event landlord applies for revision of the
rent, the revision of rent has to be in accordance with the formula as
provided under Section 6(1) and 6(2) of the Act. The statutory scheme
does not indicate that the tenant can unilaterally compute the rent as per
formula under Section 6(1) from the inception of the tenancy and reduce
the amount of rent which he was paying immediately before the
enforcement of the Act. In the present case, the tenant has come up
with the case in his written statement that he has recomputed the rent
from inception of tenancy and has arrived at calculation that the rent
payable with effect from the enforcement of Act, 2001 was
Rs.13,600/- only and relying on the said computation he deposited an
amount of Rs.95,200/- in  response to the notice. The High Court in its
judgment has held that after the enforcement of the Act, 2001 no
agreement can provide for higher revision of rent. The High Court in its
judgment has made following observation:
“Section 6 of the Act starts with non-obstantive clause, thus no
agreement to provide higher or lower rate of revision of rent would
operate after commencement of the Act of 2001.
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The landlord was thus not at liberty to claim rent with enhancement
@ 10% per annum.”
18.    Ultimately, the High Court held following:
“The landlord was entitled to the rent as was payable on the date
of commencement of the Act of 2001 without its revision, in facts
and circumstances of this case. In view of above, I find that
demand of rent based on the agreement was not proper so as to
consider it to be a case of short remittance and default in payment
of rent thereof. In the background aforesaid, the findings of the
default in payment of rent, recorded by the Rent Tribunal so also
by Appellate Rent Tribunal cannot be allowed to stand. The
impugned orders passed by the Rent Tribunal so also by Appellate
Rent Tribunal are thus, quashed. A case of default in payment of
rent is not made out.”
19. The observation of the High Court that landlord was entitled
to the rent as was payable on the date of commencement of the Act,
2001 without its revision is perfectly correct. The landlord cannot claim
revision of rent as per agreement at the rate of 10% per annum after the
enforcement of the Act. The present is not a case that the landlord is
claiming rent after the enforcement of the Act by adding 10% increase
in the rent. The landlord’s case throughout is that the rent at the rate of
Rs.16,564/- per month was being paid by the tenant since before the
commencement of the Act and even after the commencement of the
Act, till the month of July, 2003 the tenant
paid rent at the rate of
Rs.16,564/- per month.
20. Section 4 of the Act which deals with the agreed rent provides
that rent payable for any premises shall subject to the provisions of this
Act, be such as may be agreed between the landlord and the tenant.
When the tenant was paying the rent of Rs.16,564/- per month before
the enforcement of the Act as per the rent agreement, the said amount
was agreed amount which was being paid before the enforcement of
the Act. It is true that in the agreed amount which was being paid
immediately before the commencement of the Act, the landlord cannot
increase @ 10% of the rent as per agreement. The increase after the
enforcement of the Act shall be in accordance with Section 6 and in the
event the tenant does not agree for the said increase, the landlord is free
to file application under Section 6 read with Section 14. In view of the
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foregoing discussion, we are of the view that the High Court has not
appreciated the true import of Sections 6 and 7 of the Act, 2001 in
observing that the tenant is not in default.
21. One more submission which has been pressed by the tenant
to relieve the tenant from eviction has to be considered. Section 9 of the
Act provides for eviction of the tenant which is to the following effect:
“Section 9. Eviction of tenants. - Notwithstanding anything
contained in any other law or contract but subject to other
provisions of this Act, the Rent Tribunal shall not order eviction of
tenant unless it is satisfied that, -
(a) the tenant has neither paid nor tendered the amount of rent
due from him for four months :-
Provided that the ground under this clause shall not be available
to the landlord if he has not disclosed to the tenant his hank account
number and name of the bank in the same Municipal area, in the
rent agreement or by a notice sent to him by registered post,
acknowledgment due :
Provided further that no petition on the ground under this clause
shall he filed unless the landlord has given it notice to the tenant
by registered post, acknowledgment due, demanding arrears of
rent and the tenant has not made payment of arrears of rent within
a period of thirty days from the (late of service of notice.
Explanation.- For the purposes of this clause, the rent shall be
deemed to have been tendered when the same is
remitted through
money order to the landlord by properly addressing the same;or
having been deposited with the Rent Authority;or”
22. Section 9(a) provides that eviction can be ordered only when
the tenant has neither paid nor tendered the rent due from him for four
months. He submits that admittedly after the receipt of the notice dated
27.03.2004 demanding arrears of rent of Rs.1,15,945/-, the tenant has
paid an amount of Rs.95,200/- which covered the payment of rent upto
December, 2003 and part of rent of January, 2004. He submits that
notice was issued demanding arrears of rent from August, 2003 to
29.02.2004 and the rent upto December, 2003 having been deposited
there was no default for four month entitling the landlord to claim eviction.
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23. Section 9 second proviso of Act, 2001 contemplates a notice
by landlord demanding arrears of rent and the tenant has not made
payment of rent within 30 days from the service of the notice. The
words “arrears of rent” mean the arrears as demanded by notice and
the ground for eviction as contemplated under Section 9(a) is “the tenant
has neither paid nor tendered the amount of rent due from him for four
months”. The payment and tendering of rent thus relates to rent for four
months. The tenant cannot be heard saying that since although his
payment was done complying the arrears of rent as demanded but since
he has made the payment upto December, 2003 and the part of January,
2004, he should be relieved from eviction. What Section 9 contemplates
is payment or tendering the amount of rent due from him for four months,
thus, tendering of payment of rent is rent due from him for four months.
In the event rent due from him for four months is not paid the ground as
contemplated under Section 9(a) is made out. We in this context notice
a judgment of this Court in Prakash Mehra vs. K.L.Malhotra, (1989)
3 SCC 74. In the above case this Court has occasion to consider the
provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears
demanded by the notice were the arrears which were required to be
paid by the tenant. The High Court has held that Section 14(1)(a) of the
Act made out a ground for eviction only where the tenant had neither
paid nor tendered
the whole of the arrears of rent legally recoverable
from him within two months of the date on which a notice of demand for
the arrears of rent was served on him by the landlord. In the above case
the contention of the landlord was that the rent which was due after the
notice should also be treated to be as defaulted rent which argument
was not accepted. In paragraph 7 of the judgment following was laid
down:
“7. It is urged before us by learned Counsel for the appellant that
Section 14(1)(a) of the Act contemplates the payment or tender
of the whole of the arrears of rent legally recoverable from the
tenant on the date when the demand notice is sent including the
rent which has accrued after service of the demand notice. When
the notice was sent on 7 May 1976, rent for the months of April
and May 1976 lad become due, and as two months was given for
payment of the arrears, it would include also the rent which had
accrued during the said period of two months. We are not satisfied
that there is substance in the contention. The arrears of rent
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envisaged by Section 14(1)(a) of the Act are the arrears demanded
by the notice for payment of arrears of rent. The arrears due
cannot be extended to rent which has fallen due after service of
the notice of demand. In this case, the two bank drafts representing
the arrears of rent covered by the notice of demand had been
tendered within two months of the date of service of the notice of
demand. The High Court is right in the view taken by it. We are
not satisfied that the construction placed by B. C. Misra, J. in Jag
Ram Nathu Ram v. Surinder Kumar [S.A.O. No. 52 of 1975
decided on 28 April, 1976 (Del)] and in S.L Kapur v.
Dr. Mrs. P. D. Lal, [1975 Ren C.J. 322 (Del)] lays down the
correct law on the point. “
24. This Court in the above case has held that arrears of rent as
envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act
are the arrears demanded by the notice for payment of arrears of rent.
In the present case arrears demanded by the notice i.e. Rs.16,564/- per
month starting from August, 2003 to February, 2004 totalling
Rs.1,15,945/- were required to be paid by the tenant, the tenant having
paid only Rs.95,200/- as per his calculation of the rent at the rate of
Rs.13,600/- per month has committed default. According to the learned
counsel for the tenant, the rent paid by the tenant was sufficient to cover
the rent upto December, 2003 and part of January, 2004, admittedly, the
arrears as
demanded having not been paid and we having found that the
landlord has demanded arrears of rent for seven months according to
rate of rent Rs.16,564/- per month which was being paid by the tenant
even before the enforcement of the Act, 2001 and after the enforcement
of the Act, 2001. The landlord  having not added 10% increase in the
rent demanded, there was no breach of Section 6 and the High Court
has committed error in allowing the writ petition of the tenant.
25. In view of the foregoing discussions, we allow the appeals,
set aside the judgment and order of the High Court and restore the order
of the Rent Tribunal.
Ankit Gyan
                               Appeals allowed.