Vijay Bandhu vs Som Dev Malik

A.S. Nehra, J.—The petitioner has filed this petition u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the Act) against the judgment dated 7-1-1991 passed by the Appellate Authority Yamuna Nagar, by which the appeal filed by the respondent was allowed and the order dated 27-5-1987 passed by the Rent Controller, Jagadhri, was set aside.

Briefly stated, the facts of the case are as follows. The petitioner filed a petition under Sections 9/10 of the Act against the respondent on the allegations that the petitioner is in possession of a portion of the premises, in dispute, as a tenant at a rent of Rs. 115/- per month inclusive of house tax, but the petitioner was to pay charges of electricity, consumed by him, if got installed by the respondent in the premises, in dispute. It has been further averred in the petition that when the petitioner took the premises or rent from the respondent, the respondent assured him that he would provide him with electricity connection and that is why, at the time of fixing the monthly rent, the respondent put the liability on the petitioner to pay charges of electricity etc., that the respondent at that time was knowing that the petitioner was going to run a school under the name and style "Bharat Public School" and, for that purpose, the respondent also allowed him the amenity of usage of the latrine constructed in the northern-eastern corner and also allowed to use water from the water-hand-pump installed in the street on the eastern corner of the premises, in dispute; that the students of the school were enjoying the amenities of the said latrine as well as water from the water-hand-pump; that the respondent, inspite of persistent demands for installation of electricity in the premises on a number of occasions, had been avoiding the same and did not get the electricity installed in the premises, in dispute; that with a view to getting the premises vacated from the petitioner, the respondent filed on ejectment application on 19-9-1984 against the petitioner in the Court of the Rent Controller. Jagadhri, on non-existent and flimsy grounds and thereafter he also got removed the water hand-pump and disallowed the usage of the latrine, with the result that the petitioner and the students were undergoing great hardship without the amenities of electricity, lavatory and drinking water; that the respondent, after removing the water-hand-pump, got installed a municipal water tap in the courtyard on the northern side of the premises, in dispute, but even he intentionally did not allow the use of the same by the students of the school with the motive to get the premises vacated under pressure; and that the aforesaid amenities of drinking water, lavatory and electricity are the basic necessities but the respondent did not provide the same in spite of repeated requests.

Notice of the petition, filed by the petitioner, was given to the respondent and, in reply thereto, the respondent admitted the rate of cent of the premises, in dispute, as Rs. 115/- per month. It was alleged by the respondent that there was no agreement between the parties about the aforesaid amenities, as the house, in question, was rented out oh temporary basis and that the premises, in question, was in a dilapidated condition, which could fall at any time and any electricity installation could electrocute any human being It has been further stated in the written statement that the question of installation: of water-hand-pump does not arise, as there is no provision in the entire house. It has also been asserted by the respondent that the room of the building are in a deplorable condition ; that there was no undertaking, verbal or in writing, that the petitioner would run a public school.

On the pleadings of the parties, the following issues were framed :

Whether the relationship of landlord and tenant exists in-between the parties ?

Whether the respondent has agreed to provide electric connection in the building, in dispute ?

Whether the petitioner is entitled for the facilities of lavatory and drinking water in the building, in dispute ?

Whether the respondent has filed case u/s 13 of the Rent Act, for the eviction of the premises, in dispute, on the ground of unfit and unsafe for human habitation ?

Relief.

Issues Nos. 1, 2 and 3 were decided in favour of the petitioner. Issue No. 4 was not pressed by the respondent. The petition filed by the petitioner was accepted and the respondent was directed to restore the aminities of drinking water and lavatory within 30 days from the date of the order. The respondent was also directed to get installed electricity connection in the premises, in dispute, failing which it was held by the Rent Controller that the petitioner would be entitled to get these amenities at his own cost and would furnish a bill of expenditure to the respondent and effect recovery from the rent under the law.

The finding of the Rent Controller, Jagadhri, has been set aside by the Appellate Authority on the ground that no notice u/s 9 (2) of the Act was given by the petitioner before filing the petition under Sections 9 and 10 of the Act In order to appreciate the matter in controversy, sections 9 and 10 of the Act are reproduced as under :-

Landlord to provide certain amenities :-

(1) If the amenities of electricity, sewerage or tap water supply, have, been made available in any; locality by the State Government or a local authority, the tenant of the building or rented land of such, locality shall be entitled to the enjoyment thereof subject to the provisions :hereinafter contained..

(2) IT the landlord at the written request of the tenant fails to agree in writing to provide all or any of the amenities within a period of thirty days or fails to provide; the same within a period of ninety days of such request, the tenant may apply to the Controller for that purpose. The Controller may, on such application by the tenant, and. after such enquiry as he may deem fit permit the tenant to have such amenity at the cost of the landlord on such conditions as he may deem proper. The tenant shall be entitled to deduct the expenses incurred by him in providing the amenity from the rent payable to the landlord till the full amount is realised :-

Provided that the rate of deduction of such expenses shall not exceed fifty per centum of the amount of rent :

Provided further that the Controller may reject the application if he is satisfied that such an order will cause undue hardship to the landlord, keeping in view his source of income, or would involve expenditure in commensurate with the benefit sought to be achieved.

(3) The Controller may fix the extent and specifications of the amenity as far as possible keeping in view the circumstances of the case and also the estimated cost thereof.

(4) After the amenity has been provided the tenant shall immediately thereafter send the details of the expenses incurred by him to the landlord.

(5) In case of dispute as regards the quantum of the amount spent for providing the amenity, the same shall be decided by the Controller after enquiry on an application made to him.

(6) The landlord shall be entitled to enhance the rent of the building or the rented land to the extent of eight per centum per annum of, the amount spent for providing such amenity from the date amenity is provided :-

Provided that where the tenant has initially incurred the expenses, for providing such amenity, the enhancement of rent shall not be allowed till the amount spent by the tenant has been-realised.

(10) Landlord not to interfere with amenities.-

(1) No landlord shall, without just and sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant.

(2) A tenant in occupation of a building or rented land may if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention.

(3) If the Controller on enquiry finds that the tenant has been in enjoyment of the amenities and that they were cut off or withheld by the landlord without just or sufficient cause, he shall make an order directing the landlord to restore such amenities'':

Provided that if the Controller is satisfied from affidavit or otherwise that immediate enjoyment of the amenities is essential, he may by order in writing, allow the tenant to get such amenities restored on such terms and conditions as may be imposed by the Controller subject to his final decision as regards the expenses on the restoration of amenities."

The learned counsel for the petitioner has argued that the petitioner and the students of his school were enjoying the amenities of water-hand-pump and the latrine before filing the petition and, therefore, the respondent cannot withhold the above-mentioned amenities without a just and sufficient cause in view of Section 10(1) of the Act.

It has been further argued by the learned counsel for the petitioner that the respondent did not raise any objection in his written statement to the effect that as no notice, as required under sub-section (2) of section 9 of the Act was given by the petitioner, therefore, no relief u/s 9 of the Act could be provided to the petitioner, and that the Appellate Authority has erred in law in allowing the respondent to raise the above-mentioned objection in the appeal for the first time. There is no force in the above-mentioned argument raised by the learned counsel for the petitioner, because notice under sub-section (2) of section 9 of the Act is a mandatory provision and unless notice under sub-section (2) of section 9 of the Act is given by the petitioner-tenant, no relief u/s 9 of the Act can be granted to the tenant. This is a mandatory requirement of law. Therefore, the finding of the Appellate Authority is upheld so far as the relief regarding electricity connection is concerned, as this relief is sought u/s 9 of the Act. However, the petitioner is permitted to give a fresh notice under sub-section (2) of section 9 of the Act for granting him the amenity of electricity in the premises, in dispute. In case, after the service of the notice under sub-section (2) of section 9 of the Act, the respondent does not provide the amenity of electricity to the petitioner within 30 days of the notice, then the petitioner can file a fresh petition for the grant of amenity of electricity.

The petitioner as P.W-1 deposed that he took the building, in dispute, on rent to run a school, and, at that time, a water-hand pump was already in existence outside in the eastern portion of the premises, in dispute, and the lavatory was also in existence towards the northern side of the building, in dispute, and the way of the same was towards the street; that the school children were using the same (latrine and water-hand-pump) since the time the petitioner took the building on rent and the respondent dismantled the latrine on 15-6-1985 and the; way of the latrine was also closed by bricks; that AW-2 Vinod Kumar took the snaps on the same day at about 9/9.15 a.m. ; that the water-hand-pump was also uprooted by the respondent; that the respondent, however, got ins tailed a Government tap in the building, in dispute; that non-supply of water and non-availabity of latrine is causing great hardship to the school children as they cannot go outside the building, in dispute; and that the respondent is residing on the first floor of the building, in dispute. AW-2 Vinod Kumar deposed that he took snaps Exhibits A-5 to A-7 of the building, in dispute, on 15-6-1985 at about 9.00 a.m. at the instance of the petitioner, whose negatives are Exhibits A-2 to A-4; that these photographs were taken by him; and that when he reached the place of occurrence, the wall was lying in a broken condition. AW-3 Vidya Sagar deposed that the petitioner has been running a school in the building, in dispute, for the last 8 years and his nephew is also studying in that school and that a lavatory was in existence in the building, in dispute, and its way was towards the street; and that water-hand-pump was also there and the same was uprooted by the respondent a few days ago. AW-4 Puran Chand deposed that he had seen the disputed property and that his daughter and two nephews are studying in that school. AW-5 Narinder Sharma also deposed that he took the snaps of the building, in dispute.

The respondent as RW-1 deposed that he gave the building to the petitioner on rent on a temporary basis for running a school; that, at the time, neither any electricity was there nor did the petitioner apply for the same; that there are no arrangements for water and lavatory as the property, in dispute, is in a dilapidated condition ; that he also filed a civil suit for the ejectment of the petitioner on this ground as he received a notice from the Municipal Committee for the demolition of the building, in dispute; and that the alleged photographs are false. In his cross-examination, RW-1 deposed that he gave the building, in dispute, on rent to the petitioner about 7-8 years back for running a school in the name "Bharat Public School"; that it is wrong that he gave any assurance to the petitioner about installation of any electricity connection; that it is correct that he has installed a water-tap for his personal use and has also installed a hand-pump in the garden; that he is not ready to give the facility of lavatory in the premises, in dispute; and that, in case the petitioner is ready to bear the expenses of water, then he can get a water-hand pump in the premises, in dispute, from his own pocket.

The learned counsel for the petitioner has argued that from the statements of the petitioner and his witnesses it is evident that the respondent has removed the lavatory from the place which is visible from photographs Exhibits A-5 to A-7. He has further argued that the respondent, without any reason, also got removed the water-hand-pump from the place only to harass the petitioner so that he may get the premises, in dispute, vacated from the petitioner. It has been further argued by the learned counsel for the petitioner that the building, in dispute, was let out to the petitioner for running a school and, therefore, the amenities of lavatory and water are essential" and necessary for the children who come in the school; that before letting out the premises, in dispute, both these amenities were in existence in the premises and thus the respondent now is liable to restore both these amenities in the premises, in dispute; and that, as '' the aforesaid facilities are the basic necessities, so the respondent be directed to provide the same immediately.

The learned counsel for the respondent has vehemently opposed the arguments advanced by the learned counsel for the petitioner and argued that the plea of the petitioner about installation of water-hand-pump prior to the letting out of the premises, in dispute, is wrong He submitted that the true facts are that the alleged water-hand-pump was in existence outside the premises, in dispute, and that the lavatory was also not in existence in the premises, in dispute. The learned counsel for the respondent as such has argued, that, as there was no agreement in-between the parties at the time of letting out the premises, in dispute, for providing these amenities, so the petition filed by the petitioner is liable to be dismissed.

After hearing the learned counsel for both the parties and going through the photographs Exhibits A-5 to P-7, which indicate that a wail in the courtyard has been broken, which, to some extent, clearly shows that something was in existence therein, I have come" to the conclusion that the possibility of existence'' of the lavatory therein cannot be ruled out. The existence of water-hand-pump outside the building, in dispute, at the time of letting out the building, in dispute, has also been admitted by the respondent but he has failed to satisfy as to why the same was got removed. It is also an admitted fact that it was in the knowledge of the respondent that the petitioner was taking the building, in dispute, on rent for running a school, for which the facilities of water, lavatory and electricity are the basic necessities. The petitioner''s evidence has proved beyond doubt that the facilities of drinking water and lavatory were in existence at the time the premises, in dispute, were given on rent to the petitioner. Therefore, the revision petition is partly allowed, the judgment dated 7-1-1991 of the Appellate Authority is set aside and the respondent is directed to restore the facilities of drinking water and lavatory within 30 days from the date of this order.