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2006 DIGILAW 201 (CAL)

SOMNATH MUKHERJEE v. MAMATA RANI SAHA

2006-04-03

TAPEN SEN

body2006
( 1 ) THIS Civil Revision application is directed against the order dated 13. 2. 2006 passed by the learned Vlth Civil Judge (Junior Division) at Alipore in ejectment (RC) Case No. 175 of 2005 whereby and whereunder, while dealing with an application under Section 27 (2) of the West Bengal Premises Tenancy act, 1997 (hereinafter referred to as the said Act) he held that it was the Controller alone who was empowered to entertain such an application and therefore, he was not inclined to entertain the same. As a consequence, he directed that the petition under Section 27 (2) of the said Act be returned so that it could be filed before the concerned Controller within the period of limitation. ( 2 ) THE opposite party filed an application for evicting the petitioner on the ground of default and reasonable requirement before the Vlth Additional Rent controller at Alipore where the same was registered as Ejectment Case No. 175 of 2005. ( 3 ) THE petitioner who is the tenant entered appearance and filed an application under Section 7 (1) (a) (b) of the said Act and also filed application under Section 7 (2) pleading protection against eviction. The opposite party, in the capacity of being the owner (Landlord) filed her objection. It is stated that the Ejectment Case is still pending disposal. ( 4 ) IT is further stated that in the aforementioned Ejectment Case No. 175 of 2005 the opposite party had filed an application under Order 39 Rules 1 and 2 read with Section 151 C. P. C. for an order of injunction restraining the petitioner from creating their party interests and/or from parting with the possession of the property. It appears that an order was passed directing the parties to maintain status quo, but subsequently, on 20. 2. 2006 the interim order was vacated. ( 5 ) THE petitioner has stated that in the meantime, the opposite party illegally stopped supply of water to the tenanted premises which compelled him to file an application under Section 35 of the said Act for restoration of water supply. It appears that by Order dated 5. 1. 2006 the said application was allowed and an Advocate Commissioner was appointed to file a report. It appears that by Order dated 5. 1. 2006 the said application was allowed and an Advocate Commissioner was appointed to file a report. ( 6 ) WITHOUT going into further details of this case, the bone of contention which appears to be involved in this particular case is the statement of the petitioner to the effect that electricity line connected to the tenanted premises was also disconnected and when the petitioner attempted to reconnect the same, the opposite party and her family members "illegally obstructed and man-handled" the Electrician through whom the petitioner was attempting to restore the electricity connection. It is further stated and/or alleged that the opposite party threatened the petitioner that she would not allow Electricity to be restored. Immediately thereafter, the petitioner informed the Officer-on-Duty tollyganj Police Station and on the next date i. e. 20. 1. 2006, the petitioner lodged a complaint before the said Police Station. ( 7 ) THEREAFTER on 30. 1. 2006 the petitioner filed an application under Section 27 (2) of the said Act before the Vlth Civil Judge (Junior Division), Alipore and prayed for a direction upon the opposite party to restore the electricity connection to the tenanted premises and also prayed for compensation to the extent of rs. 5000/- (Rupees five thousand) for disconnecting the electricity supply without prior permission of the Court where the main matter was pending. It appears that an objection was filed against the aforementioned application and on 13. 2. 2006 the same was taken up for hearing and after hearing the parties, the impugned order was passed. ( 8 ) BEFORE proceeding to deal with the matter, it is necessary to take note of the fact that Section 6 of the West Bengal Premises Tenancy Act, 1957 has been amended by the West Bengal Act No. VI of 2005 by substituting and inserting the words "by the Civil Judge having jurisdiction" in place of "by the controller" ( 9 ) THUS as on date, Section 6 as it stands, provides that no Order or decree for recovery of possession of any premises shall be made by the "civil judge having jurisdiction" in favour of the landlord against the tenant except on an application made to him by the landlord etc. . . . . . . . . . . . . . . . . . . . . . . ( 10 ) APPARENTLY therefore, power has been conferred upon the Civil Judge to deal with the matter relating to eviction of a tenant. If the Civil Judge has been conferred with the power to deal with such a matter and if amenities and/or essential services are directly connected to the premises, there is no reason why the Civil Judge cannot be held empowered to deal with the application under Section 27 irrespective of the language in Section 27 which lays down inter alia that "no landlord, either himself or through any person purporting to act on his behalf, shall, without any prior permission of the Controller, cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let out to him. " The reasons for coming to this conclusion are set out in the paragraphs hereinafter enumerated. ( 11 ) ELECTRICITY being an essential service and the Civil Judge having been ordained with the power to deal with the matter relating to recovery of possession of any premises, it must therefore, be deemed that he has the power also to deal with essential services and/or essential amenities which are directly connected to such premises. In the instant case, there is no dispute that the opposite party had initially filed an application for Ejectment of the petitioner vide Ejectment Case No. 175 of 2005 before the 6th Additional Rent Controller but, by reason of the amendment to Section 6 by the West Bengal Act No. VI of 2005, the matter stood transferred and is presently pending before the 6th Civil judge (Junior Division), Alipore. ( 12 ) UNDER the West Bengal Premises Tenancy Act, 1956, Section 34 deals with the making of repairs and taking measures for the maintenance of "essential services". Power, no doubt, is vested with the Controller. Similar provision is to be found in Section 35 of the West Bengal Premises Tenancy act, 1997. In both the sections, it is the Controller who has been empowered to take steps as against the landlord provided an application is filed before him by the tenant. The relevant portion of Section 34 (1) of the Old Act reads as follows:-"34. Similar provision is to be found in Section 35 of the West Bengal Premises Tenancy act, 1997. In both the sections, it is the Controller who has been empowered to take steps as against the landlord provided an application is filed before him by the tenant. The relevant portion of Section 34 (1) of the Old Act reads as follows:-"34. Making of repairs and taking a measures for the maintenance of essential services.- (1) The Controller shall, on application made to him in this behalf by and tenant in possession of any premises, cause a notice to be served in the prescribed manner on the landlord thereof requiring him to make such repairs in the premises or to take such measures for the due maintenance therein of any essential supply or service, such as measures for the maintenance for the supply of water, gas or electricity, the maintenance of conservancy or sanitary service or the maintenance of any lift, as the landlord may be bound to make or take, as the case may be, under the conditions of the tenancy or when the conditions of the tenancy do not include any provisions for repairs as the Controller may consider essential. . . . . . . . . . . " ( 13 ) SECTION 35 of the 1997 Act is equivalent to Section 34 of the 1956 act. The relevant portion of Section 35 (1) of the 1997 Act reads as follows:-"35. Making of repair and taking of measures for maintenance of essential service.- (1) If the landlord neglects or fails to make tenantable repair of the premises or to take measures for due maintenance of essential supply or service comprised in the tenancy, the Controller shall, on application made to him by the tenant in possession of the premises, cause a notice to be served in the prescribed manner on the landlord requiring him to make such repair or take such measures for due maintenance therein of the essential supply or service. . . . . . . . . . . " ( 14 ) SECTION 35 of the 1997 Act is included under Chapter-IX therein and it deals with the making of repairs and taking of measures for maintenance of "essential services". . . . . . . . . . . " ( 14 ) SECTION 35 of the 1997 Act is included under Chapter-IX therein and it deals with the making of repairs and taking of measures for maintenance of "essential services". ( 15 ) SECTION 27 of the 1997 Act, on the other hand, is included in chapter and it deals with the penalty for cutting off or withholding of "essential supply or service". The relevant portion of Section 27 (1) reads as follows:-"27. Penalty for cutting off or withholding of essential supply or service.- (1) No landlord, either himself or through any person purporting to act on his behalf, shall, without any prior permission of the controller, cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let out to him. . . . . . . . . . . " ( 16 ) UNDER Explanation 1 appended to Section 27 of the 1997 Act, the terms "essential supply or service" means and includes supply of water, electricity, light in passage, staircase and conservancy and sanitary service. ( 17 ) THUS, for all practical purposes, both Section 27 as well as Section 35 of the 1997 Act (which is equivalent to Section 34 of the 1956 Act) deal with "essential services. ". ( 18 ) IT is true that both under Section 27 of the 1997 Act as well as under section 35 thereof, (which is equivalent to Section 34 of the 1956 Act) it is the controller who has been empowered but, in view of Section 6 of the 1997 Act, there cannot be ouster of jurisdiction of the Civil Judge in matters where he is already IN SEISIN of an application of a landlord for the eviction of the tenant. ( 19 ) IN a judgment delivered in the case of Loken Base v. Ashima Dey and anr. , reported in 81 CWN 948, an Hon'ble Single Judge of this Court held, while dealing with Section 34 of the West Bengal Premises Tenancy Act, 1956 that the said section was not a Bar and did not oust the jurisdiction of the Civil Court to grant relief by way of a mandatory injunction. In the aforementioned judgment, it has been held at paras-2 and 3 therein as follows:-"2. In the aforementioned judgment, it has been held at paras-2 and 3 therein as follows:-"2. Under Section 34, the Controller has been authorised to grant relief to the tenant for the making of repairs and taking of measures for the maintenance of essential services. There is nothing in Section 34 or in any other provisions of the West Bengal Premises Tenancy Act, 1956 which bars either expressly or by necessary implications the jurisdiction of the Civil Court to grant the same or similar relief to a tenant who is a defendant in a suit for ejectment. It is true that the remedy under Section 34 is a speedy remedy which a tenant can avail of for the restoration of essential services to and repairs of the premises. But, if the tenant has an additional remedy under any other law. I do not think that he should be deprived of that remedy. 3. It is, however, contended on behalf of the plaintiff opposite party that as a special remedy has been provided for in the statute for the grant of relief to the tenant as mentioned in Section 34, it should be presumed that by necessary implication the legislature has barred the jurisdiction of the Civil Court to grant the same relief to the tenant in a suit for ejectment. I am unable to accept this contention. The bar of jurisdiction of a Civil Court should not be readily inferred. It is not the intention of the legislature to drive a tenant to a separate proceeding under Section 34 to avail of the relief as provided for therein. If, in spite of the fact that a suit for eviction is pending, the tenant has to approach the Controller under section 34 for the restoration of essential services to the promises, it will mean multiplicity of proceedings. "[sic] ( 20 ) IT is true that under the Old Act of 1956, the Civil Courts' jurisdiction was not specifically ousted as has been done by Section 44 of the 1997 Act which reads as follows:-"44. "[sic] ( 20 ) IT is true that under the Old Act of 1956, the Civil Courts' jurisdiction was not specifically ousted as has been done by Section 44 of the 1997 Act which reads as follows:-"44. Jurisdiction of Civil Courts barred in respect of certain matters save as otherwise expressly provided in the Act.- [save as otherwise provided in the Act, no Civil Court shall entertain any suit or proceeding in so far as it relates to fixation of fair rent in relation to any premises to which this Act applies] or to any other matter which the Controller is (23)empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court. " ( 21 ) IT therefore, appears that Section 44 of the 1997 Act ousting the jurisdiction of the Civil Courts is in head-on conflict with the provisions of Section 6 of the said Act which empowers the Civil Judge to deal with matters relating to recovery of possession. The relevant portion of Section 6 of the 1997 Act, reads as follows:-"6. Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made [by the Civil Judge having jurisdiction] in favour of the landlord against the tenant, except on an application made to him by the landlord in the prescribed manner on one or more of the following grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 22 ) SUCH being the position, it does not stand to reason that a Civil Judge having jurisdiction to entertain a matter relating to a dispute qua the landlord and tenant in respect of the tenanted premises would cease to have jurisdiction when the same tenant complains of disruption and/or curtailment of essential services in respect of the same premises. Such a position would be extremely disharmonious and will certainly give rise to multiplicity of proceedings between the same parties in respect of the same premises causing an additional prejudice to both the parties of having to undergo harassments in different forums when, the same can be decided by the Civil Judge having jurisdiction to entertain a matter relating to recovery of possession. When any violation and/or grievance is made in respect of essential services of the premises which is the subject-matter of a pending litigation between the landlord and the tenant under Section 6 of the 1997 Act, the Civil Judge will certainly have powers to deal with the same. ( 23 ) THIS Court therefore, is of the view that wherever a matter relating to recovery of possession under Section 6 of the 1997 Act is pending, the Civil judge having jurisdiction to deal with the same, will alone have the jurisdiction to deal with all matters arising out of Chapters-VIII and IX containing Sections 27 to 37 of the 1997 Act and in all such pending matters, the jurisdiction of the controller shall be ousted. ( 24 ) THE Controller will have jurisdiction only at a stage where the complaint is filed when there is no litigation already pending between the same parties before the Civil Judge but, in all cases when a litigation is already pending before the Civil Judge, the Controller will have no jurisdiction. This is how this court interprets Section 44 of the 1997 Act. ( 25 ) THERE is no dispute that the ejectment case is now pending before the 6th Court, Civil Judge (Jr. Division), Alipore. ( 26 ) FOR the foregoing reasons, this Court comes to the inevitable conclusion that the Civil Judge has the jurisdiction to deal with an application under Section 27 in addition to his powers conferred upon him under Section 6 in a case where he is already in seisin of a matter pertaining to an application for recovery of possession. The impugned order therefore, cannot be sustained and it is held that in the facts and cirqumstances involved in this case, the opinion of the learned Civil Judge to the effect that it was only the Controller who could have dealt with an application under Section 27, was totally misconceived. ( 27 ) CONSEQUENTLY, the impugned Order dated 13. 2. The impugned order therefore, cannot be sustained and it is held that in the facts and cirqumstances involved in this case, the opinion of the learned Civil Judge to the effect that it was only the Controller who could have dealt with an application under Section 27, was totally misconceived. ( 27 ) CONSEQUENTLY, the impugned Order dated 13. 2. 2006 is set aside and the matter remanded to the Vlth Civil Judge (Junior Division), Alipore for passing a fresh order in accordance with law, after hearing all the parties concerned. ( 28 ) THE civil revision application is accordingly allowed. There shall be no order as to costs.