Martin Burn Ltd. vs Krishna Abbi
1989 Latest Caselaw 582 Del

JUDGMENT

Mahesh Chandra, J.

(1) This petition under Article 227 of the Constitution of India has been filed for quashing the order dated 27th September 1989 of Shri O.P. Dwivedi. Rent Control Tribunal, Delhi whereby the Rent Control Tribunal bad set aside order dated 1st June 1989 of Shri Gurdeep Kumar, Additional Rent Controller passed under Section 45(3) of the Delhi Rent Control Act. 1958 (hereinafter referred to as -the Act'). The petitioner feeling aggrieved has come up before this court.

(2) I have beared the learned counsel for the parties and have gone through the lower court files and after giving my considered thought to the matter before me I have come to the following findings.

(3) The petitioner is a tenant of first floor in premises No. C-3, Friends Colony, New Delhi under the respondent and it had filed a petition under Section 45 of the Act for directions to the respondent-landlady to remove the obstructions in the water pipe line. and to restore and ensure normal water supply to the said premises through direct pipe line as well as through overhead water tank and booster pump on the allegations that the respondent-landlady wants the petitioner to vacate the said premises and has been pressing respondent to do so but the petitioner has declined and in consequence the respondent filed an eviction petition against the petitioner on the ground of bona fide personal requirement which petition wai pending as Petition No. E-213/88 in

(4) The said petition under Section 45 of the 'Act is being contested by the respondent-landlady. The respondent in her reply has admitted the tenancy of first floor other premises in dispute-as also the factum of filing of the eviction petition but has denied that she has cut off/withheld or stopped or obstructed water supply etc.

(5) It was in this main petition under Section 45 of the Act, that an application under Section 45(3) of the Act was filed by the petitioner for grant of ad interim order directing respondent to remove the obstruction in water pipe line and restore and ensure normal water supply to the said premises which application was opposed by respondent but was ultimately allowed vide order dated 1st June, 1989 of the Additional Rent Controller.

(6) Feeling aggrieved, the respondent appealed Rent Control Tribunal and the appeal was allowed and order dated 1st June, 1989 was set aside. Hence this petition

(7) It is not disputed that the petitioner is a tenant in first floor of House No. P-3, Friends Colony, New Delhi. It is also admitted that the petitioner was served by an overhead water tank for supply water in addition to a direct water connection. Similarly it is not disputed before me that there was an obstruction in the water supply from overhead tank. Even otherwise this fact is established from the report Of the local commissioner appointed by Additional Rent Controller. It is admitted likewise that an eviction petition has been filed before Additional Rent Controller by respondent against the petitioner. What has been contended before me by the learned counsel for the petitioner's that in these circumstances the Rent Control Tribunal was not justified in setting in aside order dated 1st June, 1989.

(8) Learned counsel for the respondent has contended that the respondent landlady had neither in any manner cut off nor obstructed the water supply of the petitioner from overhead tank nor the supply of water was cut off nor obstructed with a view to get the premises vacated nor for raising the rent and as such Section 45(3) of the Act did not come into play.

(9) As regards the submission of landlady that she had not cut off or obstructed the water supply to get the premises vacated, the facts of the case speak for themselves inasmuch as eviction petition has admittedly been filed by the landlady on ground of bona fide personal requirement and the same is pending and is being contested by the petition. The water supply came to be obstructed or cut off during the pendency of the said eviction petition. In these circumstances the contention of the petitioner that water supply has been cut off or obstructed with a view to get the premises vacated or enhanced the rent appears to be correct.

(10) Coming to the other submission, it would be difficult to accept that it could only be where landlady cuts off/obstructs the water supply herself that provisions of Section 4 of the Act come into play. In this behalf reference may be made with advantage to the section itself which lays down as under:

"45.Cutting off or withholding essential supply or service :-

(1)-NOlandlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

(2)If a landlord contravenes the provisions of Sub-section (1), the tenant may make an application to the Controller complaining of such contrvention.

(3)If the Controller is satisfied that, the essential supply or service was cut off or/withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent the Controller may pass an order directing the landlord to restore the: amenities immediately -pending the enquiry referred to in Sub-section (4). explanation-An interim order may be passed under this subjection without giving notice to the landlord.

(4)If the Controller on enquiry finds that the essential supply or service enjoyed by the tenant in respect of the premises was cutoff or withheld by the landlord without just and sufficient cause, he shall make an order directing the landlord to restore such supply or service.

(5)The Controller may in his discretion direct that compensation. not exceeding fifty rupees-

(A)be paid to the landlord by the tenant, if the application. under Sub-section (2) was made frivolously or vexatiously ;

(B)be paid to the tenant by the landlord; if the landlord bad' cut or withheld the supply service without just and sufficient cause.

EXPLANATIONI- In this section, "essential supply or service" includes supply of water, electicity, lights in passages and on staircases conservancy and sanitary services.

EXPLANATIONII- For the purposes of this section, withhold any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply is cut off by the local authority or any other competent Authority."

(11) The use of words landlord cither himself or through any person 'purporting to act on his behalf......' in Sub-section (1) itself suggests that the landlord may cause the "cutting off or obstruction either himself or through any other person," which would also include 'another tenant of the same building' as well. As to how this another tenant had been acting or purporting to act on behalf of landlady is a question to be considered at the time of final disposal of petition under Section 45 of the Act. For disposal of interim application under Section 45(3) of the Act the Controller has to be only "satisfied that the essential supply of service was cut off or withheld by the landlord with a view to compel the tenant to vacates the premises or to pay an enhanced rent". Explanation Ii of the Section shows that withholding any essential supply or services shall include "acts or omissions" also Further a perusal of Explanation to Sub-section 3 shows that interim order for restoration of 'essential supply or service' can be passed even without giving notice to the landlord. This implies that for granting an interim order the allegation of the petitioner-tenant in the application.are to be accepted as correct prima fade. The immediate concern of the Controller has to be the restoration of the essential supply or service in the first instance. In accordance with Explanation I 'essential supply or service' includes supply of water.

(12) In view of my discussion above, it would be difficult to concur with the view taken by the learned Rent Control Tribunal The Rent Control Tribunal had not given due weight to the provisions of Section 44(1) of the Act which lays down that "every landlord shall be bound to keep the premises in good and tenantable repairs" otherwise the Tribunal would not have observed that ''besides the deliberate acts on the part of the landlord there can be other causes which may result in the disruption of an essential supply, namely, normal wear and tear, fire or an act of God. In such cases the landlord cannot be said to have cut off of withheld the essential supply". Undue importance has been given by the Rent Control Tribunal to the fact that second floor terrace is in occupation of Shri R.M. Singh. Shri Singh might be tenant on second floor, but it cannot be imagined much less accepted that overhead tank would also fall in his tenancy. This fact cannot and does not absolve the landlady from taking steps to restore the water supply of the petitioner. Similarly reliance of the Tribunal on cause (2) of the lease deed is misplaced because the tenant cannot have access to any other portion of the building other than his tenancy premises.

(13) As observed above by me, the immediate concern of the Controller acting under Section 45(3) of the Act has to be the restoration of essential supply and service. Other question can wait and be gone into at the disposal of the main petition under Section 45 of the Act. It is regrettable that because of tangential approach of the Tribunal the tenant is without water since December, 1988. I do not think that the Controller would be a mute and helpless spectator where a landlord by his ingenuity or deceit' manages to disrupt essential supply through another person.

(14) The Tribunal has relied upon Dhan Raj Mal v. State of Bombay, 1975 Bomaby Law Reports 245 but the said judgment was specifically overruled in J. Salayavrata and another v. Mohamedbhai Abdulhussen Sadiq Bahreinwalla and others . Following State v. Sunder Lal, it was held in J. Satyavrata and another (Supra) as under: "THERE is nothing in Section 24 or in Explanation Ii for that matter, to warrant the conclusion that Explanation Ii can be said to limit the scope and ambit of the word 'withheld' inSubsection(l)or the word 'withheld' in Sub-section(3). Also. the words 'cut off' and 'withheld' do not have the same shade of meaning. They have different meanings with well market and distinct connotations and cannot be read ejusdem generis with each other. The wold 'withhold' in Section 24(1) connotes the withdrawal or deprivation of an essential supply or service by some indirect means or act on the part of the landlord, Thus, where a landlord wrongfully fails to do something, whereby the indirectly deprives the tenants of the essential supply or service enjoyed by them and which they are entitled to enjoy, the landlord can be said to have withheld such essential supply or service, even though he may have done no direct act to that end. The various shades and nuances of the meaning of word 'withheld' disclose the holding or keeping back or refraining on the part of the landlord the granting or continuing to grant to the tenants the essential supply or service, which it is within the power and control of the landlord to make available to the tenants. Thus while the 'cut off' is positive and applies where the withdrawal or deprivation of the essential supply or service is brought about by some or direct and positive act or means on the part of the landlord, the word 'withhold' connotes some negation on the part of the landlord which results in the essential supply or service not being made available to the tenants even though it is within the landlords's power and control to make available".

It was further observed therein : "DESPITE the fact that the essential service has come to an end not on account of any act directly done by landlord but on account of an act done by a third party or by reason of some factor over which the landlord had no direct control, even so, he can be said to have withheld the supply or service if it was within his power and control to get the some restored and despite that, failed to do so".

(15) The Gujarat High Court had held in State of Gujarat (Supra) as under: "WITHHOLDING essential supply or service as contemplated by Section 24(1) would mean refraining from granting or giving essential supply or service though it is within the power of the landlord to do so. Of course, in order to entitle the tenant to this privilege of essential supply or service, the same should have been made available for the use of the tenant i.e. enjoyed by him, at some time when the Act was in force. In a case where the essential service or supply has come to an end not on account of any direct act done by the landlord but on account of the act done by a third party, or on account of any factor over which the landlord had no control, the landlord can be said to have withheld the supply or service il the omits to get it restored though it is within his power to do so. His omission in such a case amounts to refraining from granting or giving the privilege of the supply or service to the tenant"

(16) In Kanaiyalal Chandulal Monim v. Indumati T. Potdar and another, relied upon by the Tribunal, the supply of municipal water had been cut off by the municipality as a result of the default in payment of municipal dues, by the appellant's predecessor-in-title and yet it was held: "THE appellant was not to blame for the default in payment of municipal dues; but it was open to him to pay the dues and have the water connection restored. He might not have been directly responsible for the cutting off the supply of municipal water, but it was within his power to get the supply restored by the municipality on payment of prescribed fee. Hence, in so far as the appellant omitted to do so, such an omission was attributable to him within the meaning of Explanation Ii which was inserted into the Act in 1953. Therefore the appellant was continuing to withhold an essential supply within the meaning of Section 24 as it stood in 1953".

Thus even Kanaiyalal Chandulal Monim (Supra) does not help the landlady.

(17) The provisions of Section 45 of the Act are almost similar to that of Section 24 of Bombay Rents, Hotel and Lodging House Rate Control Act and as such the principles of law enunciated in above mentioned rulings would be applicable to the case in hand. There is another provision in the form of Section 44 of the Act. When Section 44 is read with Section 45 of the Act in the light of discussion above, following conclusion would flow.

(18) Every landlord is duty bound under Section 44 of the Act to keep the premises in good and tenantable repairs. No premises can be deemed to be tenantable-if its essential supply or service has been cut off or withheld and has not been restored by the landlord. Under Section 45(1) of the Act the landlord is debarred from cutting off or withholding essential supply or service enjoyed by the tenant either himself or through any other person without just and sufficient cause. If he cuts off or withholds the essential supply or service. Section 45(3) of the Act would become available to the tenant for getting the same restored. Section 45(3) of the Act is an all embracing provision for immediate restoration of the essential supply or service of a tenant which has been cut off or withheld by his landlord either himself or through any other person. So long as the landlord is capable of restoring the essential supply he would not be heard to say that the essential supply/service had come to an end not on account of any act done by a third party or by reason of some factors over which he had no direct control. If it is within the control of the landlord to restore the essential supply, he would be liable to restore it". The cutting off or withholding of the essential supply would in such a situation be attributable to him within the meaning of this sub-section and if he omits to restore it the Rent Controller would be competent to direct its immediate restoration by the landlord.

(19) It is submitted by the learned counsel for the respondent that since the petitioner was getting water from direct connection, he was not entitled to any relief, we do not had any weight in this submission. If the petitioner was getting amenity of water supply from overhead tank which he admittedly was, he is entitled to get it restored.

(20) Mere fact that Shri Singh has locked the second floor, would be no ground to refuse interim relief claimed by the petitioner.

(21) In view of discussion and findings above, the Civil Misc. (Main) is allowed and the impugned order dated 27th September, 1989 of the Rent Control Tribunal is set aside and the order dated Jst June, 1989 of the Additional Rent Controller is restored. No order as to costs.