SURESH KUMAR RUNGTA Vs. MAHADEO PRASAD AGARWALA

JUDGEMENT

(1.) THIS application is in respect of an order being order No.9 dt, 27th August, 1981 passed by the learned Mum sif, First Court at Sealdah in Title Suit No. 290 of 1981, The opposite party Mahadeo Prasad Agarwala landlord of 30/5, Kankurgachi Road, C.I.T, Schema No, VLM, P.S. Fulbagan, Calcutta instituted a title suit No, 290 of 1981 against the applicant, petitioner in the first court of the learned Munsif in respect of the suit property for eviction on several grounds, namely, default, subletting etc, In the suit the applicant petitioner filed an application under Section 151 of the Code of Civil Procedure for restoration of his electricity which was enjoyed from the metre of one Shri Newrang Rai Fatehpuria and he claimed that he enjoyed electricity exclusively from that metre consumer No, being 47088040106J since the inception of his tenancy. The petitioner applicant alleged that his supply had been cut off by the landlord opposite party on 4th August, 1981 at 4 p.m. and hence the application under Section 151, C.P.C. for restoration, An objection was raised by the opposite party (to) this application on the ground that the consumer number which is quoted above does not belong to the tenant and in fact although the tenant had a righ4- to enjoy electricity as a tenant and that as the metre stood in the name of another tenant the same cannot be restored without offending the provision of the Calcutta Electricity Act. The learned Munsif dismissed the application of the applicant observing that the petitioner applicant had been enjoying electricity in the suit premises illegally. The court cannot place the seal of legality upon such illegal use by allowing the petition under Section 151, C.P.C. The learned Munsif observed that the defendant had a right to get electricity supplied at the suit premises at his own cost by submitting a proper application before the Calcutta Electricity Supply Corporation. Against this order of the learned Munsif the petitioner applicant has come up in revision, On behalf of the petitioner it is submitted that the order is illegal and rejection of the application under Section 151, C.P.C. of the applicant petitioner is illegal and not justified in law. Mr. Mukherjee appearing for the applicant submits that a tenant had been enjoying electricity in the suit premises from the said metre as the same had been allotted to the tenant by the landlord himself and that this has been enjoyed for a considerable period without any hindrance and, therefore, it did not lie in the mouth of the landlord to say that the tenant was enjoying electricity illegally and hence the supply had been stopped and cannot be restored. Moreover, it has been argued by Mr. Mukherjee that enjoyment of electricity forms part of the tenancy and disconnection of the electric supply gives a right to the tenant to pray for restoration not only under the general law but also under the West Bengal Premises Tenancy Act, The applicant petitioner is a statutory tenant inasmuch as a suit is going on against him for eviction after, his tenancy had been determined by a legal notice to quit. Nevertheless so long as he is not evicted from the suit premises he has a right to enjoy all the amenities which he had enjoyed as a tenant. It has been argued further by Mr. Mukherjee that the enjoyment of the electricity by the tenant applicant is not merely for a temporary period but forms a part and parcel of his tenancy rights and, therefore, until evicted from the suit premises, he is entitled to pray for restoration of the same. Accordingly, the learned Munsif should have allowed the application under Section 151, C.P.C. by giving an order for restoration of electric supply from the metre from which he was getting his electricity so long, instead of directing him to take a separate metre in his own name directly from the Calcutta Electric Supply Corporation. Mr. Roy Chowdhury appearing for the opposite party has strenuously argued that the order of the learned Munsif in rejecting the application under Section 151 is valid and that the applicant petitioner can make an application for getting electricity from the Corporation directly without taking the consent of the landlord instead of insisting upon restoration of the same from the old metre which was in the name of an ex-tenant. Further, Mr. Roy Chowdhury argued that the provisions of Section 34 or any other section of the West Bengal Premises Tenancy Act providing for amenities to a tenant are not available to a statutory tenant. He can only claim protection from eviction from the suit premises so long as a decree has not been passed against him by a competent court. In this connection, Mr. Roy Chowdhury has referred to two cases of this Court and also a decision of the Supreme Court. The cases referred to by him are. The former is by M.M. Dutt, J. and the latter is by G. N. Ray, J. It may ba pointed out that so far as the judgment of G. N, Ray, J. is concerned, his Lordship's attention has not been drawn to the earlier decision. In that case M. M. Dutt, J. held that when an application for restoration of electric supply is made by a tenant under Order 39, Rules 1 and 2, C.P.C. his application should not be rejected on the ground that a special remedy is provided under Section 34 of the West Bengal Premises Tenancy Act and there cannot be any curtailment of any general right by Section 34 of the West Bengal Premises Tenancy Act, That application was rejected on the ground that it was not maintainable In view of the provision of Section 34 of the West Bengal Premises Tenancy Act, THIS was held to be illegal and accordingly set aside. Mr. Roy Chowdhury has conceded that even if the general law is available to the statutory tenant under Order 39, Rules 1 and 2, in any event no such application was made before the learned Munsif and the relief under Section 151, .C.P.C. cannot be availed of under the circumstances. Now referring to the decision. His Lordship has elaborately dealt with the rights of a statutory tenant and Mr. Roy Chowdhury placed reliance upon this decision particularly the observation made in the said judgment that a statutory tenant does not enjoy the same position as that of a contractual tenant, The Legislature does not intend that the statutory tenant will he treated at par with a contractual tenant under the West Bengal Premises Tenancy Act, Accordingly, after the determination of tenancy, the statutory tenant cannot make an application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent by the Rent Controller. In this decision however the question of enjoyment of amenities such as meter and electricity by a statutory tenant did not come up for discussion, Furthermore one of the considerations which weighed (with) his Lordship in holding and very rightly too that a statutory tenant cannot be equated with the contractual tenant is that the defence of that tenant was struck out under Section 17 (3) of the West Bengal Premises Tenancy Act. However, his Lordship for the general proposition relied upon several decisions of the Supreme Court which are. On a consideration of the arguments of Mr. Roy Chowdhury, I am in agreement with him that a statutory tenant cannot be put in the same position as that of a contractual tenant but nevertheless, I have not come across a decision wherein it has been held that as soon as the tenancy of a contractual tenant is determined by notice to quit and a suit is instituted against him and he is relegated to the position of a statutory tenant he ceases to have any right to the enjoyment of electricity and water supply which are the essential services available to all tenants. Until a tenant is evicted from the suit premises he is entitled to enjoy the same and if the landlord discontinues with these services he may apply for restoration by making a proper application before the court. In this case, as pointed out by Mr. Mukherjee, he made an application for restoration for supply of electricity from the metre from which he was enjoying but when it was brought to the notice of court that that metre was in the name of a person who was an ex-tenant, the learned Munsif refused to restore connection in respect of that metre but he gave leave to the tenant applicant to make an independent application for getting a separate metre from the Calcutta Electric Supply Corporation and it is stated before me that his application has been granted by the Calcutta Electric Supply Corporation. But inasmuch as the main metre board is within the control of the landlord and in view of his previous experience of obstraction by the landlord, the tenant is apprehensive that unless he is given some sort of protection he will not be able to instal a new metre in the suit premises. In view of this and for the end of justice, I think I may add a direction upon the landlord not to interfere or obstruct the installation of the new metre by the Calcutta Electric Supply Corporation to the premises of the tenant. I, specifically put a question to Mr. Roy Chowdhury to be answered by him on behalf of his client who has been attending Court all along whether he has any objection to the installation of a new metre for the tenant. Mr. Roy Chowdhury said that there has been no obstruction by his client previously and there should be no apprehension of any obstruction in the future but he did not specifically under-lake on behalf of his client to place no obstruction at the time the new metre (is) to be set up by the Calcutta Electric Supply Corporation. In such a state of affairs, I think that it is necessary to give a direction that the landlord will not put any obstruction to the setting up of the new metre by the Calcutta Electric Supply Corporation and that those who will come from the Electric Supply Corporation will be given access to the metre board. Until the Calcutta Electric Supply Corporation sets up a new metre for the tenant, the landlord may give temporary connection from the old metre from which electricity was so long enjoyed by the tenant if by doing so there is no contravention of any provision of the Act. THIS arrangement will stand until a new metre is installed. With this observation I dispose of the application upholding the orders passed by the learned Munsiff.

(2.) LET two plain copies of the order, countersigned by the Assistant Registrar (Court), be given to the learned advocates for both sides, as prayed for.