CR No.1858 of 2011 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1858 of 2011 Date of decision:31.05.2011. Rajinder Singh ...Petitioner Versus Jatinder Kumar and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Ravi Kant Sharma, Advocate, for the petitioner. Mr. Anil Kshetarpal, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. The question involved in this case is that as to “whether the back door of the demised premises, which is claimed by the tenant to be an amenity which has been ordered to be closed by a decree of the Civil Court which has been upheld up to the High Court, can be ordered to be opened by the learned Rent Controller in exercise of his jurisdiction under Section 10 of the Act or in other words whether such application would be maintainable?” The tenant is in revision against the orders of the Courts below by which his application filed under Section 10 of the Haryana Urban (Control of Rent & Eviction Act, 1973 [for short “the Act”] for seeking a direction to the landlord not to interfere in the amenities provided in the demised premises (shop) has been dismissed on the ground of its maintainability. In brief, the case set up by the petitioner is that he is a tenant since 1961 in the demised premises which had a door on the backside of the northern corner towards West. The house of the petitioner is at the back of the demised premises who enjoyed all the facilities such as air and light coming from the CR No.1858 of 2011 (O&M) -2- ****** said backdoor which was also used for his ingress and egress to his house, but the landlord had filed a Civil Suit for closing the said door which has been decreed, however, the said decree is without jurisdiction and is not binding on the rights of the petitioner as the amenities provided to the tenant cannot be interfered with by the landlord in terms of Section 10 of the Act. In reply, it was alleged that the application is not maintainable. The door in question was in existence on the rear portion of the demised premises, but the rear portion of the demised premises was sold by the landlord to the petitioner/tenant vide registered sale deed dated 26.02.1981 in which it was categorically recited that the door of the western side of the demised premises shall be closed as and when directed by the landlord. It was alleged that the judgment and decree of the Civil Court has attained finality between the parties and the door does not come within the purview of the amenities, as alleged. Both the Courts below dismissed the application of the tenant on the ground of its maintainability. Hence, the present revision petition has been filed in which learned counsel for the petitioner has vehemently argued that the landlord cannot interfere with the amenities without just and sufficient cause and the learned Rent Controller has the jurisdiction to order the restoration of such amenities if he is satisfied that they were cut off or withheld by the landlord without any sufficient cause. In support of his submission, he has relied upon a decision of the Supreme Court in the case of M/s. East India Corporation Ltd. V. Shree Meenakshi Mills Ltd., AIR 1991 Supreme Court 1094 and a Single Bench judgment of the Madhya Pradesh High Court in the case of Smt. Sudesh Mehta V. Bhagchand and another, 1989(1) R.C.R. (Rent) 116. In reply, learned counsel for the respondents has submitted that when the rear portion was sold by the landlord to the tenant vide registered sale deed dated 26.02.1981, it was specifically mentioned that the said door shall be closed by the tenant and if he does not do it, then the landlord would be entitled to close it at his own expenses. Besides this, it is submitted that the landlord filed Civil Suit No.1088/2/95 on 16.11.1995 against the tenant for mandatory injunction directing him to close the door in existence which was decreed by CR No.1858 of 2011 (O&M) -3- ****** the learned Civil Court on 19.03.2004 and a direction was given to the tenant to close the door within two months. The said judgment and decree was challenged by the tenant by way of Civil Appeal No.68 of 2004 in which a specific argument was raised by the tenant that “the said door marked with letter EF in the site plan Ex.P2 is an amenity to his tenancy and cannot be closed at the whims of respondent No.1/landlord”. However, this argument was dealt with in detail by the learned Additional District Judge, Yamuna Nagar while dismissing the appeal of the tenant on 09.01.2006. Thereafter, the tenant filed RSA No.1278 of 2006 before this Court which was also dismissed on 06.04.2006 with the following order: - “The Courts below on appreciation of documentary evidence have come to the conclusion that there was no recital or term and condition as alleged by the appellant that the said door would only be closed on the termination of tenancy and therefore, the learned lower Appellate Court refused to interfere in the directions issued by the learned Trial Court to close the door. A reading of the condition of the sale deed shows that the finding recorded by both the Courts below is as per the terms of the sale deed which does not call for any interference. Dismissed.” It is further argued that the word “amenities” is not defined in the Act which has only got a reference in Section 9(1) of the Act which pertains to electricity, sewerage or tap water supply but it does not pertain to the back door of the shop. I have heard both the learned counsel for the parties and perused the available record with their able assistance. Before adverting to the respective submissions of the learned counsel for the parties, it would be relevant to refer to Sections 9 & 10 of the Act, which are reproduced as under: - CR No.1858 of 2011 (O&M) -4- ****** “9. Landlord to provide certain amenities. -- (1) If the amenities of electricity, sewerage or tap water supply have been made available in any locality by the State Government or a local authority, the tenant of the building or rented land of such locality shall be entitled to the enjoyment thereof subject to the provisions hereinafter contained. (2) If the landlord at the written request of the tenant fails to agree in writing to provide all or any of the amenities within a period of thirty days or fails to provide the same within a period of ninety days of such request, the tenant may apply to the Controller for that purpose. The Controller may, on such application by the tenant and after such enquiry as he may deem fit, permit the tenant to have such amenity at the costs of the landlord on such conditions as he may deem proper. The tenant shall be entitled to deduct the expenses incurred by him in providing the amenity from the rent payable to the landlord till the full amount is realised. Provided that the rate of deduction of such expenses shall not exceed fifty per centum of the amount of rent. Provided further that the Controller may reject the application if he is satisfied that such an order will cause undue hardship to the landlord, keeping in view his source of income, or would involve expenditure incommensurate with the benefit sought to be achieved. (3) The Controller may fix the extent and specifications of the amenity as far as possible keeping in view the circumstances of the case and CR No.1858 of 2011 (O&M) -5- ****** also the estimated cost thereof. (4) After the amenity has been provided, the tenant shall immediately thereafter send the details of the expenses incurred by him to the landlord. (5) In case of dispute as regards the quantum of the amount spent for providing the amenity, the same shall be decided by the Controller after enquiry on an application made to him. (6) The landlord shall be entitled to enhance the rent of the building or the rented land to the extent of eight per centum per annum of the amount spent for providing such amenity from the date the amenity is provided. Provided that where the tenant has initially incurred the expenses for providing such amenity, the enhancement of rent shall not be allowed till the amount spent by the tenant has been realized. 10. Landlord not to interfere with amenities. -- (1) No landlord shall, without just and sufficient cause, cut off or withhold any of the amenities enjoyed by the tenant. (2) A tenant in occupation of a building or rented land may, if the landlord has contravened the provisions of this section, make an application to the Controller complaining of such contravention. (3) If the Controller 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 directing the landlord to restore such amenities. Provided that if the Controller is satisfied from affidavit or otherwise that immediate enjoyment of the CR No.1858 of 2011 (O&M) -6- ****** amenities is essential, he may by order in writing, allow the tenant to get such amenities restored on such terms and conditions as may be imposed by the Controller subject to his final decision as regards the expenses on the restoration of amenities.” A bare perusal of the aforesaid provisions shows that the landlord is bound to provide amenities to the tenant and is not supposed to interfere with it without any just and sufficient cause. In both the situations, power has been given to the Rent Controller to issue mandatory directions to the landlord to provide amenities and prohibitory directions for not interfering in the facilities already enjoyed by the tenant. In the case of M/s. East India Corporation Ltd. (supra), it was a suit for recovery of possession on the ground of arrears of rent against M/s. East India Corporation Limited who was the appellant before the Supreme Court. The suit was decreed by the Trial Court which was upheld in appeal by the First Appellate Authority as well as by the High Court. The special leave was granted by the Supreme Court on 24.09.1984. It was noticed that at the time of institution of the suit or the grant of leave by the Supreme Court, the building in question did not come within the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [for short “the Act of 1960”] for the agreed rent, as alleged by the plaintiff in that suit and was found by the Courts below to be let out @ `900/- per month and as such was outside the limit prescribed under Section 30(ii) of the Act of 1960 which provided that any residential building or part thereof occupied by any tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees, then the provisions of the Act of 1960 would not apply. The said Clause 30(ii) of the Act of 1960 was struck down as unconstitutional in the case of Rattan Arya V. State of Tamil Nadu, AIR 1986 SC 1444. It was, thus, argued before the Supreme Court that as per Section 10 of the Act of 1960, a tenant cannot be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that Section or Sections 14 to 16 of the Act of 1960 and since the second proviso to Section 10(1) of the Act of 1960 had been made applicable after the CR No.1858 of 2011 (O&M) -7- ****** striking off Section 30(ii) of the Act of 1960, the decree passed by the Civil Court for eviction would not have any effect. It was held that the Civil Court acting without the aid of the exclusionary provision in Clause (ii) of Section 30 of the Act of 1960, during the period of invalidity, has become coram non judice and its proceedings resulted in the decree a nullity. Hence, the decree of the Courts below were set aside by the Supreme Court. To my mind, the ratio of law laid down in the case of M/s. East India Corporation Ltd. (supra) is not applicable to the facts and circumstances of the present case in which the Civil Court decree, which has been maintained up to the High Court, is still subsisting and has not been set aside by any competent Court of law. In Smt. Sudesh Mehta's case (supra), an application was filed by the tenant under Section 38 of the Madhya Pradesh Accommodation Control Act, 1961 for taking suitable action against the landlady who had closed the door at the backside of the demised premises. The Rent Controlling Authority as well as the Appellate Authority found the landlady guilty of withholding the essential supply or service and had directed her to make arrangement for keeping the back door open failing which the tenant shall get the door opened with the police help and ordered the costs incurred in that behalf be deducted from the rent amount. The landlady was in Misc. Appeal in the Madhya Pradesh High Court where the Court had held that the words “essential supply or service” would not only include use of electricity, water, bath room or latrine, but also includes the use of entire suit premises inclusive of widows and doors; windows for ventilation and doors for ingress and egress and as such it comes within the meaning of 'essential service' which could not be closed by the landlady without sufficient cause and if it is so done, then the landlady was guilty within the meaning of Section 38 of the said Act. On this premise, the appeal filed by the landlord was dismissed. This judgment is not again applicable to the facts and circumstances of the present case because here a Civil Court decree has been passed against the tenant who had categorically pleaded the use of the back door of the demised premises as an amenity which has not been accepted even CR No.1858 of 2011 (O&M) -8- ****** up to the High Court and the order of the High Court became final between the parties as it has not been challenged further by the tenant. Moreover, the back door has not been closed without sufficient cause rather it was closed as per agreement between the parties which was arrived at when the sale deed was executed. In the case of Punjab State Electricity Board V. Amar Nath, 1988(1) R.C.R. (Rent) 63, there was a shopping centre in the complex of Guru Nanak Dev Thermal Plant, Bhatinda which was owned by the Punjab State Electricity Board. The tenant made an application under Section 10 of the East Punjab Urban Rent Restriction Act, 1949 alleging that there is a door-way between the residential colony and the shopping centre to approach his shop which was locked by the landlord without any just and sufficient reason and has thus, obstructed the passage, natural light and air towards his shop and it also resulted into the closure of the passage for the inhabitants of the residential colony to approach his shop. It was alleged by the landlord that there were two main gates for approach to the shopping centre and the inhabitants of the residential colony approach the shopping centre including the shop of the tenant through the same. It was admitted that there is a door near the shop of the tenant which was closed to curtail entry of undesirable persons and if it is allowed to be opened, it will entail extra expenditure for the landlord as they had to post additional permanent security guard to check the entry of people through this door. It was also averred that by closing the said door, no amenity available to the tenant has been taken away. In this background, this Court had held that when the landlord satisfies the Rent Controller that the amenity enjoyed by the tenant has been withheld for just and sufficient cause, the Rent Controller shall not make an order directing the landlord to restore such amenity to the tenant. Thus, the sina qua non is the presence of sufficient cause in case of denial of amenity by the landlord to the tenant. Looking at this case from all the angles, I have come to the conclusion that the door at the back of the demised premises was an amenity which could not have been closed otherwise than a sufficient cause, but the said amenity was closed in terms of the recital in CR No.1858 of 2011 (O&M) -9- ****** the sale deed wherein it was agreed between the parties that the tenant, who had purchased the property, himself would close the door and if he would not do it, then the landlord would do it and when it was not done so by the tenant, a Civil Suit had to be filed by the landlord which was decreed up to the High Court. Accordingly, the question posed in the beginning of the judgment is answered in favour of the landlord and against the tenant. Consequently, the present revision petition is found to be without any merit and the same is hereby dismissed, however, without any order as to costs. May 31, 2011 (Rakesh Kumar Jain) vinod* Judge