Hafiz Miyan Manzoor Ali Shah v. Peer Bux — 1971 DIGILAW 301 (ALL)

JUDGMENT K.N. Singh, J. - The petitioner is the owner and landlord of plot of land situated in Mohalla Jawaharnagar, Konch, District Jaulon. Pir Bux and Abdul Aziz claimed to be the tenants of the plot in question over which a Katcha shop having a tin roof was said to be in existence for the last 7 or 8 years. The shop consisted of one room and Saiban, they used land in front of Saiban and stored their Bans and Ballis as they were carrying on business of sale of Bans and Ballis. Some dispute arose between the landlord and the tenants, whereupon, the petitioner filed a suit in the Civil Court for the ejectment of Pir Bux and Abdul Aziz on the ground that they were trespassers and were forcibly occupying the plot in question. The Civil suit was contested by the tenants on the ground that they were not trespassers and that over the plot there was a shop of which they were tenants. 2. The dispute between the petitioner and the aforesaid tenants was going on and relation between them were highly strained. The respondents tenants asserted that on 9th October, 1969, the petitioner landlord went to the disputed shop along with several persons. They took away the tin, which roofed the shop in question as a result of which, the shop fell down and they were not able to carry on their business. Pir Bux and Abdul Aziz filed an application before the Rent Control and Eviction Officer, Jaulon under Section 7-D and 8 of U.P. Control of Rent and Eviction Act, 1947. Notice of that application was given to the petitioner. He filed a written statement controverting the allegations made by the tenants. The petitioner asserted that the Rent Control and Eviction Officer had no jurisdiction to entertain or try that application as Pir Bux respondent No. 1 and Abdul Aziz respondent No. 2 were not tenants and hence they were not entitled for any protection under the U.P. Rent Control Evictions Act 1947. 3. The proceedings before the Rent Control and Eviction Officer however proceeded. The parties before the Rent Control and Eviction Officer filed their documentary evidence but as regards oral evidence, the case was adjourned to several dates, finally 21st of April, 1969 was fixed for evidence. 3. The proceedings before the Rent Control and Eviction Officer however proceeded. The parties before the Rent Control and Eviction Officer filed their documentary evidence but as regards oral evidence, the case was adjourned to several dates, finally 21st of April, 1969 was fixed for evidence. On that day, the landlord could not appear before the Rent Control and Eviction Officer and sough and adjournment through telegram. The Rent Control and eviction Officer, however did not adjourn the proceedings and proceeded to record the evidence produced by the tenants. The Rent Control and Eviction Officer by his order dated 27th of May, 1969 held that Pir Bux and abdul Aziz were the tenants of the shop No. 121 and the landlord in order to harass them had forcibly removed the tin sheets and other Malba of the shop. He, therefore, directed Sri Manzoor Ali Shah, the petitioner to replace the wooden shop and tin sheets to roof the shop and to hand over its possession to the applicants failing which the applicants were authorised to erect the shop on the plot in question and deducted the cost thereof from the rent. The rent Control and Eviction Officer further directed for taking proceedings under Section 8 of the U.P, Control of Rent and Eviction Act, 1947 against the petitioner for his prosecution. The petitioner by means of the present writ petitioners has challenged the legality of the order dated 27th of May, 1969 of the Rent Control and Eviction Officer. 4. The learned counsel for the petitioner has made only two submissions. Firstly, he has urged that the order of the Rent Control and Eviction Officer is liable to be set aside as it was passed without giving any opportunity of hearing to the petitioner. Secondly, the direction contained in the impugned order for the reconstruction of the shop and petitioner's prosecution is wholly without jurisdiction. 5. As regard the first contention, I need go into the matter because if the petitioner succeeds on the second question raised by him, it would not be necessary to decided the first question. I would, therefore take up the second question first. 6. The tenant's application before the Ret Control and Eviction Officer was made under Section 7-D of the Act as would appear from the impugned order. I would, therefore take up the second question first. 6. The tenant's application before the Ret Control and Eviction Officer was made under Section 7-D of the Act as would appear from the impugned order. There is no other provision except Section 7-D conferring power on the District Magistrate or the Rent Control and Eviction Officer to restore any amenity to the landlord. We have, therefore, to examine the scope and ambit of Section 7-D of the Act to ascertain the extent of powers conferred in the Rent Control and Eviction Officer. 7. Section 7-D of U.P. Rent Control and Eviction Act, 1947 reads ad follows :- "Denial of Amenities by Landlord - (1) No landlord shall without just or sufficient cause cut off or with hold any of the amenities enjoyed by the tenant. (2) The tenants in occupation of an accommodation may, if the landlord has contravened the provisions of this section, make an application to the District Magistrate complaining of such contravention. (3) If the District Magistrate 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 asking the landlord to restore such amenities. (4) If the landlord fails to restore the said amenities within the time fixed by the District Magistrate, it shall be competent for the District Magistrate to direct that the tenant may have such amenities restored and the costs thereof may be deducted from the rent which is payable to the landlord." The section makes it clear that a landlord is not entitled to cut off or withhold any of the amenities which are necessary for the enjoyment of the premises let out to tenant. If the amenity, which is necessary for the enjoyment of the tenant, is withdrawn by the landlord, then the tenant has a right to apply to the District magistrate and if on inquiry, the District Magistrate is satisfied that the amenities enjoyed by the tenant had wrongly been withheld by the landlord, he is armed with power to direct for the restoration of these amenities. The amenities contemplated in Section 7-D of the Act are something different than the premises itself. 8. The amenities contemplated in Section 7-D of the Act are something different than the premises itself. 8. There is a marked distinction in Section 7-D and Section 7-E. Section 7-D provides a remedy to a tenant when the landlord denied enjoyments of amenities by the tenant. The amenities contemplated under Section 7-D of the Act have not been enumerated The Legislature has left this question open which is to be decided on the facts of each case. The power to restore the amenities has been conferred on the District Magistrate. If, on inquiry the District Magistrate finds that a tenant has been in enjoyment of the amenities and that those were cut off or withheld by the landlord without just or sufficient cause, he shall make an order asking the landlord to restore such amenities. If the landlord fails to restore those amenities within the time fixed by the District Magistrate, the section further confers power on the District Magistrate to Authorise the tenant to have such amenities restored and for deduction of the cost there of from the rent payable to the landlord. The amenities contemplated under Section 7-D are those which are necessary for the enjoyment of the premises itself. These may be in the nature of water connection, bath room and passage for egress and ingress. In certain other cases failure to deposit municipal dues and to get the water supply restored may also amount to withholding of amenities. Shri Kanhaiya Lal Chandulal v. Indumati, AIR 1958 Supreme Court 444 : Shri Sheo Narain Lal v. District Magistrate Allahabad, 1956 A.L.J. 23 : Shri Ram Chandra Saksena v. Kailash Kishore Verma, 1955 A.L.J. 198 : Dr. Panna Lal v. R.C.E.O. Kanpur, AIR 1955 NUC 2031 Allahabad. 9. Section 7-E enjoins upon a landlord to keep the accommodation wind-proof, water-proof and also to carry out repairs so that the tenant may use and occupy the accommodation. If the landlord fails to carry out annual repairs, or if he fails to keep the accommodation wind-proof and water-proof as a result of which any portion of the accommodation falls down the tenant is entitled to make an application before the Munsif having territorial jurisdiction for that area for the redress of this grievance. If the landlord fails to carry out annual repairs, or if he fails to keep the accommodation wind-proof and water-proof as a result of which any portion of the accommodation falls down the tenant is entitled to make an application before the Munsif having territorial jurisdiction for that area for the redress of this grievance. Section 7-E further confreres on the Munsiff to make an inquiry into the matter, and if he is satisfied that the landlord had neglected to carry out repairs or that he had failed to keep the accommodation wind-proof and weather proof he may direct the landlord to carry out the repairs and to restore the roof or the wall of the accommodation in within a period fixed by him. If the landlord fails to carry out the repairs in accordance with the directions given by the Munsiff, the tenant may submit an estimate of the cost of such repairs and the Munsif after, considering the same may authorise the tenant to carry out repairs within the costs allowed by the Munsif and the Munsif may further authorise the tenant to recover such costs from the landlord. 10. In the case of withholding of amenities the District Magistrate is empowered to take necessary action in the matter, while in the case of repairs and falling of a portion of the accommodation due to the negligence of the landlord, power to give protection to the tenant has been conferred upon the Munsif who is Civil Judicial officer. The purpose of Section 7-D is to maintain the amenities which are beneficial to the enjoyment of the accommodation itself. The amenities, however do not form part of the accommodation itself Under Section 7-E it is the accommodation itself which is the subject matter of dispute, while under Section 7-D it is only the amenities and not the accommodation. The two sections are directed for different purpose and two different authorities have been nominated by the Legislature for giving protection to the tenant. The construction of dilapidated wall or the restoration of roof distinctly falls within the purview of Section 7-E of the Act and for that purpose only the Munsif is authorised, to enquire into the matter and to issue necessary directions. The construction of dilapidated wall or the restoration of roof distinctly falls within the purview of Section 7-E of the Act and for that purpose only the Munsif is authorised, to enquire into the matter and to issue necessary directions. The District Magistrate has no authority in law to pass any order for the restoration of roof in exercise of his powers under Section 7-D of the Act. I find support for my view in a decision of a Division Bench in the Case of J.B. Verma v. Smt. Anis Begum, 1964 A.W.R. 702. 11. In the present case, the tenant in their application before the Rent Control and Eviction Officer a copy where of has been filed as annexure A to the petition, had stated that the landlord had wrongly demolished their shop had taken away the tin-sheet roofed the shop. A prayer was, therefore made to take action against the landlord and for the restoration of the shop and its roof. The rent Control and Eviction Officer by order dated 27th May, 1969 directed the landlord to replace the wooden shop and tin-sheet to roof the shop and hand over the possession to tenants. Failing which the tenants, were authorised to erect the shop on the plot in dispute and deduct the costs thereof from the rent payable by the tenants to the landlord. In view of the above discussion about the scope and purview of Section 7-D of the Act it is clear that the Rent Control and Eviction Officer who was exercising the delegated powers of the District Magistrate, had no jurisdiction to issue any such direction to the landlord, because the restoration of roof or of the reconstruction of the shop does not amount to restoration of any amenity necessary for the enjoyment of the accommodation itself under Section 7-D of the Act. If the tenants had any grievance, they had their remedy under Section 7-E of the Act before the Munsif, but so far as the Rent Control and Eviction Office was concerned, he had no jurisdiction to issue any direction to the petitioner landlord for the restoration of the roof or the reconstruction of the shop. Under these circumstances the impugned order of the Rent Control and Eviction Officer is without jurisdiction and it must be quashed. 12. The Rent Control and Eviction Officer has further directed for prosecution of the petitioner landlord. Under these circumstances the impugned order of the Rent Control and Eviction Officer is without jurisdiction and it must be quashed. 12. The Rent Control and Eviction Officer has further directed for prosecution of the petitioner landlord. He was of the view that since the petitioner was guilty of high handed action and he had illegally withheld the amenities enjoyed by the tenants, he had violated the provisions of the Act and therefore, he should be punished. On these findings he directed for the prosecution of the petitioner under Section 8 of the Act. As already observed, the entire proceedings before the Rent Control and Eviction Officer were for the reconstruction of the shop and restoration of the tin-sheets, which were beyond his jurisdiction. I have already held that the order directing the landlord to restore the shop and the tin roof of the shop is without jurisdiction, the order of the Munsiff directing the prosecution of the petitioner is therefore also illegal and without jurisdiction. 13. During the pendency of this petition an order was passed by this Court on 5th April, 1971, whereby the tenants were allowed to make constructions in the shop at their costs. But the Court had directed that the cost of the constructions shall not be realised from the petitioner landlord till further order of the Court. Since the order of the Rent Control and eviction officer has been found to be illegal and without jurisdiction, the respondent tenant are not entitled to recover any costs which they may have incurred, from the petitioner landlord. 14. In the result the petition is allowed. The order dated 27th May, 1969 passed by the Rent Control and Eviction Officer, Jalaun at Oral is quashed. The parties shall bear their own costs.