IMPORTANT POINT
Earlier enactment, if a special enactment, will prevail over subsequent general enactment even if the latter contains non-obstante clause.

JUDGMENT

S.ABDUL NAZEER, J.

1. Leave granted.

2. This appeal involves an important question of law as to whether property tax recoverable from the tenant under Section 67(3) of the New Delhi Municipal Council Act, 1994 (for short ‘NDMC Act’) as arrears of rent by the landlord/owner can be considered to be forming part of the rent for the purpose of seeking eviction or ejectment of such tenant who defaults in payment of such recoverable tax as rent and when the rent including recoverable tax in respect of the tenanted premises exceeds Rs.3500/-per month, thereby losing protection of the Delhi Rent Control Act, 1958 (for short ‘Rent Act’).

3. The appellant/plaintiff is the owner/landlord of the building known as Atma Ram Mansion (previously known as Scindia House), Connaught Circus, New Delhi-110001 by virtue of a registered sale-deed dated 31.5.1980 executed by previous owners in favour of the plaintiff. The respondent/defendant has been a tenant in respect of a portion of the aforesaid property. The rent of tenanted premises prior to termination of tenancy was Rs.1438/-per month exclusive of electricity and water charges. The defendant has been paying service tax of Rs.148/-on the said amount of Rs.1438/-and thus the last paid rent was Rs.1586/-per month.

4. Pursuant to the amendment of the New Delhi Municipal Council (Determination of Annual Rent) Byelaws, 2009, (for brevity ‘the Byelaws 2009’) the house tax on the properties situated in the New Delhi Municipal Council (for short ‘NDMC’) area was assessable on the basis of Unit Area System. The tenanted premises in occupation of the defendant fell within the jurisdiction of NDMC. The house tax payable on the said property in accordance with the Unit Area System comes to Rs.9,64,710/-per annum, i.e. Rs.80,392.50 per month. According to the plaintiff, the defendant was liable to pay the said amount. The plaintiff issued a notice dated 6.7.2009 calling upon the defendant to pay the entire house tax or pay its monthly installment. However, the defendant neither replied to the same nor deposited/paid house tax to the plaintiff. The plaintiff issued a further notice dated 8.12.2009 calling upon the defendant to pay the house tax. The defendant did not come forward to make payment of the house tax. In order to safeguard its property and to avoid any penal action, the plaintiff deposited the total house tax of Rs.2,94,23,237/-on the basis of self-assessment of the property tax with NDMC. After payment of the house tax, the plaintiff again sent a notice dated 7.4.2010 calling upon the defendant to pay the said amount of tax. The notice was returned with the report “left without address”.

5. According to the plaintiff, the tax paid on the suit property was far more than the initial rent, the amount of property tax levied by NDMC and the initial rent became recoverable as arrears of rent and the suit property having fetched rent above Rs.3500/-per month has ceased the protection of the Rent Act. As such the plaintiff vide legal notice dated 16.6.2010, terminated the tenancy of the defendant without prejudice to its legal rights. The defendant sent a reply dated 23.7.2010 denying its liability to pay the rent. Therefore, plaintiff filed the aforesaid suit for a decree for possession of the tenanted premises, for damages/mesne profits of Rs.6,24,600/-per month w.e.f. 1.5.2011 till 31.5.2011 and for directing an enquiry under Order XX Rule 12 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for assessment of future damages/mesne profits till the delivery of vacant possession of the tenanted premises.

6. The defendant filed the written statement denying its liability to pay the enhanced rent. It was contended that the plaintiff has no authority or power to increase the rent on its own. It was further contended that the tenanted premises is governed by the Rent Act and that the defendant is a protected tenant. The NDMC byelaws cannot govern the relationship of landlord and tenant by by