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2005 DIGILAW 439 (UTT)

Vijay Gupta v. Nanhi Devi

2005-10-06

PRAFULLA C.PANT

body2005
Judgment Heard learned counsel for the petitioner and learned counsel for respondent Nos. 1 to 4. 2. By means for this petition, moved under Article 227 of the Constitution of India, the petitioner has sought direction quashing the order dated 03-022005, passed In Rent Control Case No. 11 of 2000, by Prescribed Authorlty/Addl. Civil Judge (Junior Division), Haldwani, District Nainital, whereby she has allowed the application under Section 28-8 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 3. Brief facts of the case, as narrated in the petition, are that the predecessor of respondent Nos. 1 to 4 moved an application under Section 28-B of the U.P. Act No. 13 of 1972 before the Prescribed Authority, Haldwani (copy Annexure-l to the petition) with the allegations that they are the tenant of the house in question on rent at the rate of Rs. 15/- per month. It is further stated in said application by Hari Shankar, the predecessor of respondent Nos. 1 to 4 that, for studies of his children he needs electric connection for domestic use but on account of objection raised by the petitioner and his brothers (landlords), the tenant is deprived of the electric connection. The said application was contested by the petitioner challenging the tenancy of predecessor of respondent Nos. 1 to 4 and, as such, justified objection to the electric connection to the predecessor of respondent Nos. 1 to 4. It Is further stated in the petition filed before this Court that the rent which was being deposited by Hari Shankar, predecessor of respondent Nos. 1 to 4, was at his own risk and the petitioner's rights are not affected by it. Learned Prescribed Authority after hearing the parties, allowed the application granting the permission to install the electric connection in the house in question Aggrieved, by which this petition has been filed. 4. A counter affidavit has been filed on behalf of respondent Nos. 1 to 4 before this Court, in which it has been stated, that initially Mohan Lal, father-inlaw of Nanhi Devi (respondent No.1) was the tenant of the house in question. It Is further stated that for last 60 years from the time of Mohan Lal his children are 'continuing as tenant on rent at the rate of Rs. 15/- per month and landlord of the house in question was Munna Lal, father of the petitioner. It Is further stated that for last 60 years from the time of Mohan Lal his children are 'continuing as tenant on rent at the rate of Rs. 15/- per month and landlord of the house in question was Munna Lal, father of the petitioner. It is further stated in the counter affidavit that initially rent used to be paid to Smt. Katori Devi, the grandmother of the petitioner, and thereafter to Smt. Narayani Devi, mother of the petitioner, through money orders (copies of some of the acknowledgement receipts are annexed as Annexure C.A.-1 and C.A.-2). Petitioner is one of the sons of Narayani Devi, who refused to receive the rent, as such, the predecessor of respondent Nos. 1 to 4 had no option but to deposit the same under Section 30 of the U.P. Act No. 13 of 1972., It has further been stated in the counter affidavit that the petitioners have six brothers and want to force the tenants/respondents to vacate the house. It appears that in the year 1991 a civil suit No. 78 of 1991 was instituted by Hari Shankar, the predecessor of respondents, to seek the injunction against the landlords not to get evicted the tenants without due process of law, which appears to have been decreed ex-parte on 16-07-1993. Alleging, that since the petitioner objected to the seeking of electric connection in the house in question, Sri Hari Shankar, predecessor of respondent Nos. 1 to 4, had to move an application (Rent Control Case No. 11 of 2000) under Section 28-B of the U.P. Act No. 13 of 1992 for permission to get instailed the electric connection. 5. Before further discussion, It Is pertinent to mention here, the relevant provision of law pertaining to this case. Section 28-B of the U.P. Urbani Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, reads as under:" "28-8. Tenant right to get water connection and sanitary fittings installed.- Notwithstanding anything contained in any law for the time being in force relating to a local authority, the tenant (including a subtenant) shall have the right to get water connection electric connection and sanitary fittings installed in the building under his tenancy at his own cost, and the provisions of sub-section (3) of Section 26 shall, apply in relation to every such installation." 6. Learned counsel for the petitioner argued that learned Prescribed Authority has erred' in law by allowing the application moved under Section 28B of the aforesaid Act, without deciding the question of relationship of landlord and tenant between the parties. I have gone through the impugned order passed by learned Prescribed Authority. The Prescribed Authority has discussed the issue in this regard in para 9 of the impugned order, and considering the ex-parte decree, which was earlier passed by the court for injunction not evicting the tenant without due process of law, it has allowed the application'. In the circumstances, it cannot be said that learned Prescribed Authority: has not considered the disputed fact relating to relationship of landlord and tenant, before passing the impugned order. 7. On behalf of the petitioner, it is further argued that under Section 26 of the U.P. Act No. 13 of 1972, there is no obligation to the landlord to provide the electric connection, unless the tenant was already enjoying the same. As such, in this connection, it is further contended that since the respondents, even if accepted as tenants, were not enjoying the amenities of electric connection, as such they cannot be permitted the same without the consent of the landlord. Sub-section (1) of Section 26 of aforesaid Act provides that no landlord shall without lawful authority or excuse, cut off; withhold or reduce any of the amenities enjoyed by the tenant. In fact, this provision is silent as to the amenities which were not available to the tenant at the time when the accommodation was let out to him / her. In such a situation, in the opinion of this Court, sub-section (1) of Section 26 does not provide whether, a tenant who was given premises without electric connection, can seek such connection or not? That is why, it appears that Legislature felt it necessary to make a provision in the Act and inserted Section 28-6 by amendment vide U.P. Act No. 28 of 1976. As such, merely for the reason, that the tenant was not provided electric connection, when the premises was let out to him, he cannot be deprived from getting electric connection, provided he fulfills the conditions required under the aforesaid Section 28-6. As such, merely for the reason, that the tenant was not provided electric connection, when the premises was let out to him, he cannot be deprived from getting electric connection, provided he fulfills the conditions required under the aforesaid Section 28-6. The only restriction to the tenant in getting water connection or electric connection is provided in sub-section (3) of Section 26, which says : - "subject to any contract in writing to the contrary, no tenant shall, whether during the continuance of the tenancy or after its determination, demolish any improvement effected by him in the building or remove any material used in such improvement, other than any fixtures of a movable nature. Explanation.- the expression "material used in such improvement" includes the wiring of an electrical fitting or a pipe pertaining to any water connection." From the evidence on record, there is nothing which shows that by getting electric connection the act of the tenant is going to cause such material damage to the property which attracts sub-section (3) of Section 26. 8. As to the relationship of the landlord and tenant, it is pertinent to mention here, that on behalf of the respondent Nos. 1 to 4, copies of the acknowledgement receipts of money orders are filed as Annexures C.A.-1 and C.A.-2, showing that the rent used to be paid by the tenant to the landlords. Four such receipts annexed with C.A.-1, at page 15 show that during the sixties, Katori Devi used to receive the rent from the tenant, who has signed the money order acknowledgement receipts. In the counter affidavit as mentioned earlier, Katori Devi was infact, grandmother of the petitioner. Similarly, four such money order acknowledgement receipts are annexed with C-A-2, at page 17, which shows that Narayani Devi, mother of the petitioner, used to receive rent during seventies. 9. Lastly, learned counsel for the petitioner argued that the Prescribed Authority has wrongly entertained the application under Section 28-B of the U.P. Act No. 13 of 1972, for it has nowhere been provided in said section, if such application has to be moved before it. Regulation of Letting, Rent and Eviction Rules, 1972, provide the Forums, before whom the applications are to be moved. Said Schedule appears to have been framed In the year 1972 and amended vide Notification No. 1795/39-E-55(A)-75 dated May 25, 1997. Regulation of Letting, Rent and Eviction Rules, 1972, provide the Forums, before whom the applications are to be moved. Said Schedule appears to have been framed In the year 1972 and amended vide Notification No. 1795/39-E-55(A)-75 dated May 25, 1997. Said Schedule is also silent as to the Forum before whom the application under Section 28-6 is to be presented. In the opinion of this Court, the submission made on behalf of the petitioner appears to be misconceived, for the reason that Section 28-B is a part of Chapter V of the U.P. Act No. 13 of 1972, which relates to regularization of other rights or obligations of landlord and tenant. This Chapter contains Section 25 to Section 30. Though, it is not separately mentioned in Section 28-B that before whom the application for electric connection would be made but in that circumstance, the provision of said Section would have to be read with the preceding Sections of the Chapter. Section 27 of the Act, which relates to enforcement of landlord's obligation regarding amenities, c1eariy provides that Prescribed Authority has the power to exercise the jurisdiction in respect of the restoration of amenities under Section 26. Similarly, sub-section (5) of Section 28 also provides that the Prescribed Authority on receiving the application relating to the repairs of the house would dispose of the same in the manner prescribed thereunder. As such, after reading the Scheme of the Provisions and intention of the Legislature, there appears no authority except the Prescribed Authority, who can entertain the application under Section 28-B of the Act. 10. In the circumstances, as far as permission accorded by the learned Prescribed Authority allowing the application under Section 28-B of U.P. Act No. 13 of 1972 is concerned, for the reasons discussed above, neither there is any illegality nor jurisdictional error in passing said order. Therefore, this' petition is liable to be dismissed and the same is dismissed. No order as to costs. Interim order, if any, granted earlier by this Court, automatically stands vacated.