Avtar Krishan vs Rattan Lal Gondi

The plaintiff/ petitioner filed a suit for permanent prohibitory injunction. The prayer made was that defendant/ respondent be restrained from

interfering in any manner into the peaceful possession of the plaintiff/ petitioner over a shop situated at Peer Mitha. Jammu. The description of these

premises are given in the heading of the plaint.

In para 5 of the plaintiff it is submitted that the plaintiff has become owner by adverse possession. Alongwith the suit an application has been

filed. In this a prayer has been made that the plaintiff be permitted to repair the said premises. It is stated that the roof alongwith backwall of the

suit shop is in a dilapidated condition and is likely to collapse at any time. This application was filed on 331998. The respondent/ defendant filed

the written statement. The plea taken by him is that the plaintiff was inducted in the premises by one Ravinder Kumar. It is submitted that the

plaintiff is a sublesser and therefore, he has no legal right to continue in the premises. It is also submitted that the defendant would be taking steps

with a view to recover the possession by restoring to the provisions under the J and K Houses and Shops Rent Control Act.

So far as the interim application is concerned the stand taken by the respondent is that the plaintiff/ petitioner has no locus standi to file the suit.

It is submitted that the plaintiff in his capacity as tenant cannot make any structural changes. This interim application was decided by the trial court.

It has been observed by the trial court that on account of the provisions contained in Section 27 of the J and K Houses and Shops Rent Control

Act the appropriate relief can be sought from the judicial forum constituted and available under the said Act.

It be seen that the J and K Houses and Shops Rent Control Act 1966 extends to the Municipalities of Jammu and Srinagar and to such other

urban areas to which this Act may be extended. If this be the situation then the plaintiff would have to prefer an application in terms of Section 27

of the aforementioned Act. For facility of reference section 27 is being reproduced below:

Making of repairs and taking of measures for the maintenance of essential service by the tenant on the failure or neglect of the landlord to do

so (1) The Controller shall, on application made to him in this behalf by any tenant in possession of any house or shop, cause a notice to the served

in the prescribed manner on the landlord thereof requiring him to make any repairs which such landlord is bound to make to the house or shop or

to take any measures for the due maintenance of any essential supply or service, such as the maintenance of the supply of water or electricity, the

maintenance of concervancy or sanitary service and the maintenance of any lift, which such landlord is bound to maintain in the house or shop

under the conditions of the tenancy or according to local usage.

(2) If after the service of such notice, the landlord fails to show proper cause or neglects to make such repairs or take within reasonable time such

measures, as the case may be, the tenant may submit to the Controller an estimate of the cost of such repairs or to take such measures himself and

thereupon the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of cost arid making such

inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs or to take such measures, as the case may be

at a cost not exceeding such amount as may be specified in the order, and it shall thereafter be lawful for the tenant to make such repairs or tax

take such measures himself and to deduct the cost thereof, which shall in no case exceed the amount so specified from the rent or otherwise

recover it from the landlord.

Proved that the amount so deducted or recoverable in any year shall not exceed onetwelfth of the rent payable by the tenant for that year;

Provided further that if the repairs or measures though necessary in the opinion of the Controller, exceed in cost the said amount and the tenant

agrees to bear the excess cost himself, the controller may permit the tenant to make such repairs or to take such measures.

(3) The repairs or measures mentioned in subsection (1) shall not be deemed to include such repairs or measures without which the house or shop

is not habitable or usable except with great inconvenience, like keeping them wind and watertight. The landlord shall be bound to make such

repairs or take such measures in any event. On his failure to do so the provisions of subsections (1) and (2) shall apply without the limitation as to

the amount deductible or recoverable as provided in the said subsections"".

A perusal of the grounds of revisions would show that the legal position as appreciated by the trial court has not been refuted. All that has been

said is that the condition of the premises is such which required immediate remedial measures to be taken. It is suggested that if the repairs are not

undertaken then the irreparable damage may be caused to the premises. It is submitted that the plaintiff has shown concern so that no mishap may

take place. It is urged that if permission is not granted then the roof and the wall may fall at any time. The view expressed by the trial court that it is

section 27 of the Act which would govern the issue has not been controverted at all in the grounds of revision.

I am of the view that the view expressed by the trial court cannot be faulted. A remedy is available to the plaintiff petitioner. He can prefer an

application under Section 27 of the J and K Houses and Shops Rent Control Act and in case he does so and if he convinces tho court where such

proceedings are taken, then he would be granted such relief as would be deemed appropriate.

The law is well settled that when a special statute has been enacted and which statute provides for making of repairs, the tenant has to seek his

remedies under the Rent Control Legislation and cannot resort to the provisions of the Section 108F of the Transfer of Property Act. See Bal

Kourvs. Chander Parkash, 1979 (2) Rent Control Journal 523. In another case reported as S. Aggarwal vs. Harbans Singh, 1979 (2) Rent Law

Reported 365, a tenant has filed an application for permission to effect repairs at the cost of the landlord as the landlord was not agreeing to do so.

The Rent Controller passed an order permitting repairs. On the next date the landlord filed an application seeking setting aside of the order. The

tenant was restrained from making further repairs. The previous application in which a prayer was made i.e. the application preferred for seeking

repairs be consigned to records as the requisite repairs have since been effected was held to be not justified. Supreme Court of India was of the

view that the matter was required to be disposed of on merits and the file could not be consigned to record room, without there being a decision

on an application preferred by the landlord. If the aforementioned judicial precedents are taken note of then it would be apparent that the only

recourse which is available to the plaintiff is to approach the authority constituted under the J and K House and Shops Rent Control Act. The view

expressed by the trial court in this regard cannot be faulted with. This petition is found to be without any merit and is dismissed.

File be remitted to the trial court forthwith for further proceedings.