Back
GAUHATI HIGH COURT
K.N.Saikia, J.
Ram Chandra Bhagwan Das Represented By Shri Fhagwan Das Agarwalla -Appellant
Versus
Pawan Kumar Agarwalla -Respondent
Civil Revision No. 1 of 1982
Decided On : 21-05-1982
ASSAM URBAN AREAS RENT CONTROL ACT, 1972 - SECTION 7 - JURISDICTION OF CIVIL COURTS - MANDATORY INJUNCTION - ELECTRICITY SUPPLY - SPECIFIC RELIEF ACT, 1963 - SECTION 39 - INTERPRETATION AND APPLICATION.
Fact of the Case:
A tenant filed a suit for declaration of his right to uninterrupted electricity supply and for a mandatory injunction directing the landlord to restore the supply. The landlord contended that the suit was barred under Section 7 of the Assam Urban Areas Rent Control Act, 1972, and that the mandatory injunction was not justified under Section 39 of the Specific Relief Act, 1963.
Finding of the Court:
The court held that the suit was not barred under Section 7 of the Act, as the Act did not expressly or impliedly oust the jurisdiction of the Civil Courts. The court also held that the mandatory injunction was justified under Section 39 of the Specific Relief Act, as the supply of electricity was an essential service and the tenant had a prima facie case for specific performance of the lease agreement.
Issues: 1. Whether the suit was barred under Section 7 of the Assam Urban Areas Rent Control Act, 1972? 2. Whether the mandatory injunction was justified under Section 39 of the Specific Relief Act, 1963?
Ratio Decidendi: 1. Section 7 of the Act provides a remedy by an application and Section 6 creates a duty on the part of the landlord to maintain the supply of electricity, but the question whether under the particular lease agreement there was such an obligation, has to be decided with reference to the lease agreement itself. In other words, whether supply of electricity formed a stipulated condition of the lease, if disputed, to decide that point no forum has been created under the Act. It would depend on construction of the lease. A civil suit, therefore, would not be barred by implication. 2. Section 39 of the Specific Relief Act provides that to prevent the breach of an obligation, the court in its discretion may grant an injunction to prevent the breach and also to compel performance of the requisite acts. An obligation may arise from different sources, including contract and statute. In this case, the obligation to supply electricity may arise from the contract between the parties or from Section 6 of the Act. Whether a mandatory injunction would be justified would depend on the facts and circumstances of the case.
Final Decision: The court dismissed the petition challenging the mandatory injunction, holding that the suit was not barred under the Act and that the injunction was justified under the Specific Relief Act.
2. Mr. K.P. Sen, the learned counsel for the petitioner, submits that the impugned order of mandatory injunction dated 10.11.81. is without jurisdiction inasmuch as Section 7 of the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as 'the Act') excludes civil Court's jurisdiction and that the order of mandatory injunction was passed in violation of the provisions of Section 39 of the Specific Relief Act, as the conditions prescribed therein were absent.
3. Dr. M.K. Sarma, the learned counsel appearing for the opposite party, submits that the suit of the plaintiff-opposite party for declaration being not barred under the provisions of the Act, the petition for injunction in that suit is also not barred and the supply of electricity being essential supply, the learned courts below rightly issued the mandatory injunction, which the defendant-petitioner has not yet complied with.
4. Taking the first question first we may read Section 7 of the Act:
"7. Notice on landlord to perform duties; (1) If the landlord neglects to make such repairs or to maintain such existing essential supplies and services as he is bound to do under the provisions of Section 6, the Court may, on the application of the tenant, direct the landlord by notice to appear before it and to show cause against the application of the tenant.
(2) If the landlord fails to show sufficient cause, the court may direct him to make such repairs or as the case may be, to take such measures for the restoration of the essential supplies and services as contemplated in section 6 within a period fixed by the Court.
(3) If the landlord fails or neglects to make such repairs or take such measures within the period fixed by the Court, the Court may on application of the tenant permit him to make such repairs or take such measures, as the case may be, at a cost not exceeding the amount determined by the court after taking such evidence as it may consider necessary and it shall thereafter be lawful for the tenant to make such repairs or take such measures and to deduct the cost thereof from the rent or to recover the amount from the landlord through the Court by execution, and for the purpose of this sub-section the order of the Court shall be deemed to be decree under the Code of civil Procedure, 1908 and to be capable of execution as such under the provisions of that Code."
5. Section 6 of the Act prescribing the duties of the landlord, provides that every landlord shall be bound to 'maintain the existing essential supplies and service such as sanitary arrangement, water supply, supply of electricity or drainage service in respect of the house." There can, therefore, be no doubt that under the provision of Section 7 read with Section 6 of the Act the tenant may fi
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
