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1997 Supreme(Bom) 655
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Mohd. Ismail Mohd. Qasim ..... Petitioner.
Versus
Khurshid Ahmed Khan s/o Sattar Khan .... Respondent.
Civil Revision Application No. 983 of 1989, decided on 3-12-1997.
Advocates appeared :
P.F. Patni, for the petitioner.
S.V. Gangapurwala, for the respondent.
Headnote:Order XXXIX, Rules 1 and 2 See-Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, Section 17.
Section 17-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-Interim orders-Proprietary of-Landlord not giving connection-Tenant ordered to have new connection by controller of rent-Order passed by controller after more than a year-Held-Such practice of interim orders, even if, both parties are available has to be discharged.-When no ex-parte orders are passed and both the parties are before the Rent Controller, there is no propriety for passing interim orders and keeping original application pending. Proceedings under Section 17 themselves are matters involving some urgency and require early disposal when both parties are before the Rent Controller, it is his bounden duty to dispose of the application itself under Section 17 forthwith. Inquiry under Section 17 is of summary nature. When the matter was adjourned and was kept pending for more than a year, parties could have been directed to give full evidence and the matter could be dealt summary proceedings pending despite the fact that all the parties are before the Tribunals will have to be deprecated.
Sections 17 and 26-Rent Controllers-Powers of-New connection-Application by tenant for restoration of electricity-Controller ordering tenant to have independent connection-Contention-Controller is not authorised for issue of new connection-Held- The Controller is empowered to pass order as per relief-When landlord is not renewing connection, it is proper to have an independent connection.-In the present case objection was raised by the learned counsel appearing for the respondent that the Rent Controller has no jurisdiction to permit a tenant to get separate metero and electricity connection. He can only direct the landlord to restore the amenity. The provision giving power to Rent Controller to give directions under Section 17 has to be read as a meaningful provision. It is true that firstly, direction have to be given to the landlord but, if, it is found that landlord cannot restore amenity for one reason or the other. Rent Controller will not be powerless to give such permission as is necessary to the tenant to take further steps to that amenities could be restored. Intention of the Legislature is quite evident from the sub-section (5) of Section 17. If, the amenities enjoyed by the tenant are stopped by any other person other than the landlord for failure of payment of tax, etc. then the tenant can pay those taxes or charges and get amenities restored. Therefore, any direction which is necessary for the restoration of the amenities in real sense is well within the powers of the Rent Controller and too technical a view would certainly defeat the very purpose of the provision.
Sections 17, 17(3) and 26Tenants application under Section 17 of Act for restoration of electricity supply which was withdrawn by landlord-Rent Controller permitted tenant to take separate electricity matter at his own cost-Validity-In appeal this order reversed being beyond powers of Rent Controller-Hence present revision under Section 26 of Act-Impugned order of Rent Controller passed after one year of said application in presence of both parties and application kept pending for further enquiry-Held, such passing of interim order not valid-Matter remitted back to Rent Controller to dispose of application under Section 17 of Act at once.
"Tenant Shri Mohd. Ismail Mohd. Kasam r/o Railway Station H.No. 5/9/65, Aurangabad is permitted to take seperate Electricity meter from Ex. Engineer (M.S.E.B.), Urban Division, Aurangabad, at his own cost".
This order was challenged in Rent Appeal No. 10 of 1989 before the District Judge, Aurangabad, and the learned District Judge, Aurangabad, held that it was beyond the powers of the Rent Controller to issue orders directing defendant to obtain an independent electric meter and connection. Therefore, he allowed the appeal and quashed the order of the Rent Controller. This order of the learned District Judge, Aurangabad, dated 28-9-1989, has been challenged in this Revision Application.
2. Shri Patni contended that under the inherent powers, the tribunal has passed the orders which were necessary if the true meaning of section 17 is to be given effect to. If the landlord has cut electricity and it is apprehended that he is likely to cut it again, then there is no other go rather than to permit tenant to have seperate electric connection and meter if the electric supply which the tenant was herebefore enjoying is to be restored effectively.
3. Shri S.V. Gangapurwala, learned Counsel for the respondent, contended that what can be ordered by the Rent Controller is that the landlord should restore the amenity. No further directions are contemplated under section 17. Firstly, it will have to be established that the amenity was there and it was enjoyed by the tenant and, secondly, if it is proved, that it was withdrawn, then the landlord can be directed to restore it. Any such order is executable under section 34 of the Act, and it was not within the powers of the Rent Controller to permit the tenant to have a seperate meter connection. He defended the order of the learned District Judge. Shri Gangapurwala contended that section 17 of the Act does not authorise specifically Rent Controller to give permissions to have amenities from seperate sources other than those which were previously in existence and are in control of the landlord. To support his submission that powers to give such directions cannot be presumed in the absence of specific provision in the statute, he relied on the judgments of this Court in the case of (Sahebrao v. Smt. Indubai)1, 1974 Mh.L.J. Note 71 and (Sanjay v. Shankarappa)2, 1976 Mh.L.J. Note 12 laying down that though Mamlatdar has jurisdiction to grant permanent injunction, he does not have jurisdiction to grant temporary one during the pendency of the proceeding. Shri Gangapurwala, relying on the judgment of the learned Judge of this Court in (Mrs. Ramaben Bhagubhai Patel v. The Hindustan Electric Co. Ltd.)3, A.I.R. 1963 Bombay 85 contended that inherent powers under section 151 cannot be exercised to fill in the vacuum in the statute because of absence of certain powers.
4. Shri Gangapurwala is right in contending that unless it is found that the tenant was enjoying certain amenities and it is also established that those were withdrawn by the landlord, no orders can be passed under section 17 of the Act except, however, interim orders, which are to be passed in emergency under sub-section (3) of section 17 read with the explanation.
5. I am surprised to see that the tenant applied under section 17 on 19-2-1988, Commissioner came to be appointed sometime in March, 1
