Dr. Man Mohan Albert vs Shakir Ali and Another

N.K. Agarwal, J.—Respondent No. 1 is running tailoring shop since 40 years as tenant of Appellant. Admittedly, there is no electric connection in the suit accommodation. Respondent No. 1 applied for new electric connection, was opposed by the Appellant, Respondent No. 2 refused to supply electric energy. Therefore, Respondent No. 1 made an application u/s 38 of the Chhattisgarh Accommodation Control Act, 1961 (hereinafter referred to as ''the Act'') before the Rent Controlling Authority (hereinafter referred to as "the RCA"). The above application was allowed. An appeal preferred there against before the First Appellate Court was dismissed vide impugned judgment and decree dated 10th September, 2008, hence this appeal u/s 32 of the Act.

Shri Somnath Verma, learned Counsel appearing for the Appellant would submit: admittedly, there is no electric connection in the suit shop enjoyed by the tenant. In the absence of cutting off or withholding supply of electric energy by the Appellant, the learned RCA has no jurisdiction to pass the order u/s 38 of the Act, therefore, the judgment and decree impugned as well as the order passed by learned RCA are perverse and deserves to be set aside.

On the other hand, Shri Rajeev Shrivastava, leaned Counsel appearing for Respondent No. 1 would submit that the electricity is a necessity for proper enjoyment of accommodation and the words "enjoyed by the tenant" would mean right to enjoy the supply of electricity.

I have heard learned Counsel for the parties, perused the judgment and decree and the records of the Courts below.

The question falls for determination of this Court is whether mandate to supply of electric energy which was not enjoyed by the tenant in respect of suit accommodation is within the purview of Section 38 of the Act, and whether the RCA is empowered for such direction to the landlord.

Section 38 of the Act, reads as under:

Cutting Off or withholding essential supply or service.-- (1) No landlord 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 accommodation let to him.

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

(3) If the Rent Controlling Authority on inquiry finds that the essential supply or service enjoyed by the tenant in respect of the accommodation was cut off or withheld by the landlord without just and sufficient cause, it shall make an order directing the landlord to restore such supply or service.

(4) The Rent Controlling Authority may in its 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 had cut off or withheld the supply or service without just and sufficient cause.

The Section prohibits the landlord himself or through any person purporting to act on his behalf from cutting off or withholding any essential supply or service enjoyed by the tenant in respect of the accommodation let to him without just and sufficient cause. It enables the tenant to seek his redress by making an application to the RCA complaining of such contravention by the landlord.

One can withhold only which one was holding out or giving out or supplying. Therefore, the very expression connotes voluntarily stopping of something which was being supplied voluntarily. The section is aimed at insuring that the landlord does not render the protection to the tenant illusory or compelling him to vacate by deliberately depriving him of any essential supply or service by some positive act of omission and commission to that effect. Mandate to supply electric energy which was not enjoyed by the tenant in respect of the suit accommodation is out of the purview of Section 38 of the Act.

In order to attract the provisions containing in Section 38 of the Act, it is necessary that essential supply - electricity - should have been enjoyed by the tenant. The words "cut off or withhold any essential supply or service enjoyed by the tenant" would mean "the tenant has been in enjoyment of essential supply or service and that it was cut off or withheld by the landlord".

The Supreme Court while dealing with provision contained in Section 24 of Bombay Rents Hotel and Lodging House Rates Control Act (57 of 1947), in the matter of Kanaiyalal Chandulal Monim Vs. Indumati T. Potdar and Another, has observed in Para 5 of its judgment as under:

But it has been said that the expression "enjoyed by the tenant" in Section 24 does not necessarily mean that the tenant should have physically made use of the essential supply, and that the requirements of the section are satisfied if the tenant had the right vested in him to call for such a supply. In other words, the argument is that the word "enjoyed" does not import physical use of the amenity in question, but the juridical aspect of it in the sense that the supply of the water, was one of the rights vested in the tenant. On this construction, if the tenant had, as in this case the first Respondent had, the right to enjoy the supply of water, that would amount to her having "enjoyed" the supply, and, thus, both the requirements of Section 24 would be fulfilled. In our opinion, it would be straining the language of the section to say that "enjoyed" should mean "had the right to enjoy". If that was the intention of the Legislature, those words would have been different. That this was not the intention of the Legislature, becomes clear on an examination of the terms of Sub-section (3) of that section. It speaks of "the tenant has been in enjoyment of the essential supply or service and that it was cut off or withheld by the landlord", which imports recent "enjoyment" until the supply was cut off, and not "enjoyment" in the remote past. If the intention was that "enjoyment" should have been at any time in the past, irrespective of the consideration when the Act came into force, the Legislature would have used some other words to indicate that intention, even assuming that the Legislature could have done so. But it was suggested that Sub-section (1) of Section 24, was self-contained, and that it was not necessary to construe its terms in the light of the provisions of Sub-sections (2) and (3) which go together. But it is clear from the terms of Sub-section (2) that it cannot come into operation without the landlord having contravened the provisions of Sub-section (1). Therefore, the provisions of Section 24 have to be construed as a whole, in order to find out the true intention of the Legislature.

In view of the above, as the Respondent No. 1 was not enjoying supply of electricity, the learned RCA has no jurisdiction to pass the order impugned u/s 38 of the Act in as much as the same is outside the scope of above section and the judgment and decree passed by the First Appellate Court as well as the order of RCA, being without jurisdiction, deserve to be and are hereby set aside. The appeal is allowed.