High Court
Case Details
CRP 263/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) Heard Mr. K. Agarwal, learned counsel for the petitioner and Mr. G.N. Sahewala, learned senior counsel appearing for the opposite party. [2] he revision petition is taken up for disposal at the motion stage itself.
Legal Reasoning
As agreed to by the learned counsel appearing for the parties, t [3] The petitioner, who is the landlord, by the present petition has challenged the order dated 10th December, 2012 and 24th June, 2013 passed by th e learned Munsiff No.1, Tinsukia in Misc. (J) Case No.30/2003 and by the learned Civil Judge, Tinsukia in Misc. Appeal No.2/2013, respectively, whereby and wher eunder the present petitioner has been directed to restore the tube well on the ground floor of the building, i.e. Bansal Mansion and also to connect the water facility to the bathroom and latrine within 15(fifteen) days from the date of co mmunication of the order. [4] The opposite party as applicant has filed an application under S ection 7 of the Assam Urban Areas Rent Control Act, 1972 (in short, (cid:28)1972 Act (cid:29)) praying for a direction to the petitioner to restore the water supply facility t o the washroom of the tented premises contending inter alia that though there wa s running water facility in the washroom of the tenanted premises from the overh ead tank, the same has been illegally discontinued by the landlord. The said pe tition was objected to by the petitioner/landlord. [5] The learned Munsiff No.1 vide order dated 28th June, 2006 allowe d the said application directing restoration of the water supply to the washroom of the tenanted premises within a period of 2(two) months from the date of pass ing the said order. The same was challenged by the petitioner in Miscellaneous Appeal No.8/2006, which was allowed by the appellate Court vide judgment and ord er dated 21st December, 2006, setting aside the direction issued by the learned Munsiff by holding that the evidence adduced by the parties do not reflect exist ence of the running water facility in the washroom of the tenanted premises. Rev ision Petition No.98/2007, thereafter, was filed by the present opposite party, which was allowed vide order dated 28th May, 2009 by setting aside the aforesaid order passed by the appellate Court and remitting the matter to the appellate C ourt for giving a fresh decision addressing itself to the core issue as noticed in the said order and on the basis of the evidence already on record. [6] The appellate Court vide judgment and order dated 16th June, 201 1 has held that the present petitioner/landlord is bound to restore the faciliti es of latrine, bathroom and water supply by installing/maintaining the tube well , which existed at the time of inception of the tenancy and directed the present petitioner to maintain the same as the present opposite party is entitled to us e the facilities of latrine, bathroom and water supply from the tube-well as the same were existing since the time of inception of the tenancy. The said order has not been challenged by any of the parties before the higher forum and hence it attains finality in so far as it relates to the prayer of the present opposit e party made under Section 7 of the 1972 Act. [7] The present opposite party, filed an application on 20th Septemb er, 2011 before the learned Munsiff No.1 at Tinsukia in Misc. (J) Case No.30/200 3 praying for an order to direct the present petitioner/landlord to comply with the aforesaid direction issued vide judgment passed by the appellate Court conte nding that despite the order passed, the same has not been complied with. The p resent petitioner filed written objection thereto. The learned Munsiff vide orde r dated 20th June, 2012 has observed that when the latrine, bathroom and water s upply facilities by maintaining the tube-well has been restored, no further dire ction is required to be given to the petitioner/landlord. It has also been held that the present opposite party cannot be allowed to make provision on his own as restoration has been done. Liberty was also given to the present opposite par ty to report to the Court in respect of the present status of the tube well, so installed in the suit premises. [8] Armed with the aforesaid liberty given, the present opposite par ty filed an application on 4th August, 2012 praying for a direction to the prese nt petitioner/landlord to restore the water supply in the suit premises contendi ng that there is no tube well at present for providing water supply to the suit premises due to which the petitioner is deprived from enjoying facility of washr oom. [9] Based on the said application, the learned Munsiff No.1 passed a n order on 7th August, 2012 directing an enquiry by the Circle Officer on the fo llowing issues:- (cid:28)(a) Whether any such tube well is in existence? (b) Whether the petitioner/person residing in the premises known and described in the para No.2 of the petition are able to use the tube well, if any? (cid:29) [10] ircle on 6th October, 2012 with the following finding:- A report was submitted by the Circle Officer, Tinsukia Revenue C (cid:28)1. There is no tube well in the ground floor of the building where the shop of Om Prakash Gupta is situated. 2. There is water facility in the latrine and the bathroom. But at present there is no water. Meaning thereby there is no water. (cid:29)
Legal Reasoning
[11] The learned Munsiff upon hearing the learned counsel appearing f or the present opposite party, who was the applicant before him, passed the impu gned order dated 10th December, 2012 directing to restore the tube well in the g round floor of the building, i.e. Bansal Mansion, and also to connect the water facility to the bathroom and latrine within 15(fifteen) days from the date of co mmunication of the order, which was put to challenge by the petitioner/landlord in Misc. Appeal No.2/2013, on the ground that- (i) before passing the said order , no opportunity of hearing was given, and (ii) that the directions contained in the said order is contrary to the order passed by the appellate Court on 16th J une, 2011 in Miscellaneous Application No.8/2006. [12] The said Misc. Appeal No.2/2013 has been dismissed vide order da ted 24th June, 2013 by the learned Civil Judge, Tinsukia. Both these orders are put to challenge in the present revision petition. [13] The contention of the learned counsel for the petitioner/ landlo rd is that since the tube well has been maintained as directed vide order dated 16th June, 2011 passed in the aforesaid miscellaneous appeal and the said order having not been violated by the present petitioner, the learned Munsiff ought no t to have passed the order, which is contrary to the aforesaid order dated 16th June, 2011 and is nothing but the earlier order passed by the learned Munsiff, w hich was set aside by the aforesaid order dated 16th June, 2011. It has also be en submitted that in any case, the said order ought not to have been passed with out hearing the present petitioner /landlord. [14] On the other hand, learned senior counsel appearing for the oppo site party/tenant submits that neither the learned Munsiff nor the appellate Cou rt travelled beyond the directions contained in the order dated 16th June, 2011 passed in Misc. Appeal No.8/2006 and what was done by the Courts below was to en sure maintenance of the tube well and supply of the water to the washroom of the tenanted premises. [15] To appreciate the rival contentions and also existence of the wa ter supply facility by means of the tube well, this Court, as agreed to by the l earned counsel appearing for the parties, vide order dated 1st August, 2013 appo inted an Advocate Commissioner to inspect the suit premises and to report on the following issues:- (a) Whether any such tube well is in existence? (b) the para No.2 of the petition are able to use the tube well, if any? Whether the petitioner and persons residing in the premises described in The learned Advocate Commissioner, upon conducting the local ins [16] pection in presence of both the parties, submitted his report dated 14th August, 2013, which was taken on record vide order dated 16th August, 2013. It appears from the said report that a tube well exist, which is in serviceable condition and is accessible by the present opposite party for collection of water for use in the washroom, which is required to be done manually and few steps away from t he tenanted premises. The learned Advocate Commissioner further observed that the wash room facilities in the tenanted premises is in a defunct condition and has not b een used at least for months together. The learned Advocate Commissioner has als o recorded the grievance of the present opposite party that the water of the sai d tube well is unhygienic. [17] It appears from the aforesaid report that the tube well has been maintained and is in serviceable condition. That apart, the washroom facility a vailable to the tenanted shop premises has not been used for months together. [18] As noticed above, the direction issued by the learned Munsiff fo r restoration of the water connection in the washroom of the tenanted premises t hrough pipes has been interfered with by the appellate Court vide judgment and o rder dated 21st December, 2006, which, however, was subsequently set aside by th e revisional Court and thereafter, the appellate Court on 16th June, 2011 has he ld that the tube well has been installed by the petitioner/landlord for drinking water facility and for supply of water for the latrine and bathroom. The appell ate Court, therefore, has held that the present petitioner/landlord is bound to restore the facilities of latrine, bathroom and water supply, by installing/main taining the tube well, which existed at the time of inception of the tenancy. T he said order has not been put to challenge by anyone and hence, attained finali ty. [19] It also appears from the application dated 4th August, 2012 file d by the present opposite party before the learned Munsiff that the allegation w as - there is no tube well for providing water supply to the washroom of the ten anted premises. The opposite party, therefore, has also accepted the position th at there was no running water facility in the washroom provided in the suit prem ises. [20] That being the position, the Courts below ought not to have issu ed the direction to provide running water to the washroom provided to the tenant ed premises from the tube well. At the same time, the landlord is bound to main tain the tube well, as such tube well was installed by the landlord for providin g the drinking water as well as the water to the washroom in the tenanted premis es, as held by the appellate Court vide order dated 16th June, 2011. [21] the following directions:-
Decision
In view of the above, the revision petition is disposed of with (i) The landlord shall maintain the tube well in a hygienic condition and sh all make available, by means of the said tube well, drinking water fit for human consumption. The landlord for that matter shall get the water in the tube well checked by the appropriate authority every month and submit the report in that regard in the Court of the learned Munsiff No.1, Tinsukia every month. (ii) No hindrance shall be put by the present petitioner/ landlord in collect ing water from the said tube well for use by the present opposite party either f or drinking or for use in the washroom made available to the tenanted premises. No pump, however, shall be install by the opposite party in the said tube well, which shall also allowed to be used by other tenants. [22] The revision petition is accordingly disposed of. No costs.