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1994 DIGILAW 196 (GAU)

Prabhat Chandra Saha v. Bhimsen Verma and Ors.

1994-09-30

A.K.PATNAIK

body1994
This is an application filed by the petitioner for directing the opposite, parties to restore the electric connection to the premises. 2. The facts as stated in the application are that the petitioner is a tenant under the opposite party No. 1. The opposite party No. 1 filed a suit in the Court of the Sadar Munsiff, Guwahati for ejectment of the petitioner from the suit premises and for recovery of arrear amount of Rs.1495/- from the petitioner. The suit was transferred to the Court of the Sadar Munsiff No. 2, Guwahati and was numbered as Title Suit No. 52 of 1985. The petitioner contested the said suit by filing a written statement and on con­sideration of the evidence led by the parties, the trial Court dismissed the suit by judgment and decree dated 23.10.90. Against the said judgment and decree of the trial Court, the opposite party No. 1 preferred Title Appeal No. 1 of 1991 in the Court of the Assistant District Judge, Guwahati and the appeal was allowed by judgment and decree dated 23.12.1991. Aggrieved by the said judgment and decree of the learned Assistant District Judge, Guwahati, the petitioner has filed this Civil Revision No. 56 of 1992 before this Court and on 6.2.92 while issuing Rule, this Court passed an interim order suspending the execution of the decree of the learned Assistant District Judge No. 1, Guwahati in Title Appeal No. 1 of 1991. By virtue of the said interim order, the petitioner continues to be in possession of the suit premises. During the pendency of the civil revision, however, electricity supply to the suit premises is alleged to have been disconnected on 22.11.93. The petitioner has appro­ached the opposite party No. 2, Assam State Electricity Board, through the Sub Divisional Officer, ASEB, Paltanbazar (opposite party No. 3), and has deposited Rs. 40/- towards reconnection fees, but the opposite party No. 3 informed the petitioner that he cannot reconnect the line since the house owner, opposite party No. 1, has not given consent for such reconnection. In the circumstances, the petitioner requested the opposite party No. during the 1st week of December, 1993 for reconnection of the line but opposite party No. 1 refused to reconnect the line. In the circumstances, the petitioner requested the opposite party No. during the 1st week of December, 1993 for reconnection of the line but opposite party No. 1 refused to reconnect the line. In the aforesaid circumstances the petitioner has moved this Court for restoration of supply of electricity to the suit premises during the pendency of the civil revision und«r section 7 (1) and (2) of the Assam Urban Areas Rent Control Act 1972, and section 151 CPC. 3. An affidavit-in-opposition has been filed by the opposite party No. 1 wherein it has been contended that an application for restoration of electricity can only be filed under section 7 (1) and (2) of the Assam Urban Areas Rent Control Act, 1972 before the civil Court and not before this Court. In the said affidavit-in-opposition, the opposite party No. 1 has also denied the various averments made by the petitioner in the application for restoration of electri­city and has stated that the opposite party No. 1 has never disconnected the electricity supply to the suit premises and that the petitioner has never approached the opposite party No. 1 during the 1st week of Dec' 93 with a request to reconnect the line. In reply to the affidavit-in-opposition filed by the opposite party No. 1, the petitioner has filed a re-joinder reiterating the facts stated in the application for restoration of electricity. 4. At the hearing, the learned counsel for the petitioner, Mr. D, Mazumdar, submitted that this Court passed an interim order on 6.2.92 suspending the execution of the decree dated 23.12.91 of the learned Assistant District Judge, Guwahati in Title Appeal No. 1 of 1991 and by virtue of the said order the petitioner is still continuing in the suit premises. Until the civil revision is disposed of, this Court should direct the opposite parties to supply electricity to the suit premises as the petitioner is unable to run his watch shop without electricity. He further submitted that the said direction can be issued under section 7 (1) and (2) of the Assam Urban Areas Control Act 1972 or under section 151 of the CPC. 5. Mr. He further submitted that the said direction can be issued under section 7 (1) and (2) of the Assam Urban Areas Control Act 1972 or under section 151 of the CPC. 5. Mr. Chutia, learned counsel for the opposite parties No. 2 and 3, did not dispute the factual position that the petitioner has approached the opposite parties No. 2 and 3 for electric connection but submitted that under clause 3 (A) (iii) of the Terms and Conditions of the Supply of Electricity Energy made by the Assam State Electricity Board under section 49 (1) of the Electricity (Supply) Act 1948, the applicant who is not the owner of the premises for which electric connection is applied for is required to submit along with his application a consent letter from the owner. In the present case, since the opposite party No. 1 who is the owner of the suit premises has not furnished such consent letter, the Board cannot possibly supply electricity to the suit premises. 6. Mr. RK Jain, learned counsel for the opposite party No. 1, forcefully submitted that specific provision has been made in section 7 of Assam Urban Areas Rent Control Act, 1972 providing a remedy to the tenant to apply to the civil Court when the landlord neglects to maintain essential supply and services such as electricity and hence the remedy of the petitioner is to move the civil Court under section 7 of the Act and not this Court under section 151 of the CPC. Mr. Jain cited before me the decision of the Supreme Court in the case of Nainsingh ts. Koonwurjee, reported in AIR 1970 SC 997 where­in the Apex Court has held that the inherent jurisdiction of the Court must be exercised subject to the rule that if the Civil Procedure Code contained a specific provision which would meet the necessity of the case, the Court cannot make use of the provision of the section 151 of the CPC. Mr. Jain also submitted that no direction can be issued to the Assam State Electricity Board for restoring supply of power to the suit premises as it was not a party in the suit before the trial Court. 7. Mr. Jain also submitted that no direction can be issued to the Assam State Electricity Board for restoring supply of power to the suit premises as it was not a party in the suit before the trial Court. 7. In my opinion while it is true that the power under section 7 of the Assam Urban Areas Rent Control Act, 1972 to direct the landlord to maintain essential services including electricity to the tenant is vested in the civil Court, an application under section 7 of the Act to the civil Court by a tenant cannot be an effective remedy where the appellate Court has already decreed the eviction of the tenant as in the present case. Further, the provision of clause 3 (A) (iii) of the Terms and Conditions of the Supply made by the Assam State Electricity Board contemplates a normal situation where there is no dispute between the owner and the tenant with regard to the tenanted premises but where a dispute between the owner and the tenant in respect of tenanted premises exists and is pending and the Board is not a defendant in the suit between the tenant and the landlord, the Court can in exercise of its inherent powers direct the Assam State Electricity Board to supply electricity to the disputed premises during the pendency of the dispute. In the case of M/s Santoth Kumar Kishore Kumar vs. M/s Mlsrilal Nirmalkumar reported in 1982 GHC 69, this Court has held that Courts has powers to issue mandatory temporary injunctions for restoring electric connection to the tenanted premise on an application being made by the tenant. A similar view has been taken by this Court in the case of RC Bhagwan Das vs. Pawan Agarwala reported in (1983) 1 GLR 443. 8. In the present case, the dispute between the petitioner and the opposite party No. 1 with regard to the suit premises is pending before this Court and the Assam State Electricity Board is not a defendant in the suit in the Court below. 8. In the present case, the dispute between the petitioner and the opposite party No. 1 with regard to the suit premises is pending before this Court and the Assam State Electricity Board is not a defendant in the suit in the Court below. By interim order dated 6.2.92 this Court has suspended the execution of the decree dated 23.12.91 passed by the learned Assistant District Judge No. 1, Guwahati in Title Appeal No. 1 of 1991 for ejectment of the petitioner from the suit premises and by virtue of the said interim order the petitioner continues to be in possession of the suit premises. So long as the petitioner continued to be in possession of the suit premises by virtue of interim order passed by this Court, it is for this Court which is seized of the dispute to pass appropriate interim orders in the interests of justice directing the Assam State Electricity Board to supply electricity to the disputed premises during the pendency of the dispute. In such a situation, this Court cannot abandon its inherent powers to do justice and cannot forget that "the inherent power has its roots in necessity and its breadth is co-extensive with the necessity. (Benjamin Cardozo on the nature of the Judicial process quoted in AIR 1976 SC 1152 at 1155). 9. In the result, therefore, the opposite parties No. 2 and 3 are directed to supply electricity to the suit premises within a period of one month from today on the petitioner paying to the Assam State Electricity Board the required charges for the same. The Misc. Case is allowed with the aforesaid direction.