Calcutta High Court (Appellete Side)
Md. Aminuddin vs Md. Anwar Ali & Ors on 15 September, 2010
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
15.9. 2010 kb C. O. No. 3452 of 2006 Md. Aminuddin versus Md. Anwar Ali & Ors.
Mr. J. Abedin .. .. .. For the petitioner Sk. Abu Sufian .. .. For the opposite party Affidavit in reply filed on behalf of the petitioner be kept with the record.
Heard Mr. Abedin as well as Mr. Abu Sufian appearing for the parties.
This revisional application has been filed by Md. Aminuddin, the defendant in Title Suit No. 22 of 1994 challenging the legality, validity and propriety of the order passed therein on 28.6.2006 by the learned Civil Judge, Junior Division, 2nd Court, Alipore thereby rejecting his prayer under Section 17(2), 17(2A) & (b) of the West Bengal Premises Tenancy Act.
The short question raised before the learned Court was whether the rate of rent in respect of the subject tenancy was Rs.125/- per month or Rs.500/- per month. Another question was also raised before the learned Court whether the opposite party herein i.e., the plaintiff/landlord, with ulterior motive, stopped supplying water to the petitioner/tenant since 1987 and thereby put him in unbearable hardship.
I have carefully gone through the petition under Section 17(2), (2A), & (b) filed by the petitioner and objection thereto filed by the opposite party in the learned trial Court. I have also carefully gone through the report of the learned Commissioner appointed by the learned trial Court who held local inspection of the suit premises. A proceeding under Section 144 of the Code of Criminal Procedure was initiated by the 2 petitioner and pursuant to the order of the learned Magistrate, the Officer-in-Charge of the local Police Station held an enquiry and submitted a report in the Court of the Executive Magistrate. The said report is also perused.
Upon perusal of the materials placed before me as well as having heard the learned counsel for the parties, I find that there is no denial as to relationship of landlord and tenant between the parties and also to the nature and extent of the suit premises. The petitioner herein filed an application under Sections 17(2), (2A) & (b) of the W. B.P.T. Act challenging the rate of rent as claimed by the landlord opposite party. It appears from the materials placed before me that the learned trial Court examined the parties and recorded their evidence. The learned Court also considered the documentary evidence and admitted those in evidence and marked Exhibit on behalf of the parties. It is found from the order impugned that the petitioner failed to substantiate his claim that the rent of the premises was Rs.125/- per month as claimed by him. He filed two rent receipts for the month of April, 1975 and May, 1975. According to the case of the opposite party/plaintiff, initially the petitioner was inducted as tenant in the year 1975 at a rental of Rs.125/- per month. He surrendered the tenancy soon thereafter and again was inducted in respect of two rooms on the first floor in the year 1983 at a rental of Rs.425/- per month. He enjoyed that tenancy till December 1986. Thereafter, he shifted to the third floor at a monthly rental of Rs.500/-. On the other hand, in support of the claim, I find that the opposite party could produce several counterfoils bearing signatures of the petitioner which collectively indicates that the rent of the suit premises from Rs.500/- per month. I find that the learned trial Court came to a definite finding on facts in this regard. That being so, this Court sitting in revisional jurisdiction is not at all inclined to interfere into that findings on fact.
3
The main thrust of the contention of Mr. Abedin, learned counsel for the petitioner is that his client is suffering a lot and facing real hardship because of non supplying of water since 1987. Initially, according to him, the petitioner had been enjoying water supply from the reservoir situated on the ground floor through water pipe line. But, the opposite party, with ulterior motive, disconnected and stopped water supply and thereby putting him in real hardship. He made a prayer in the learned trial Court for suspension of rent for that purpose and the learned Court, refused to allow his prayer.
Mr, Abedin has taken me to the report of the learned Commissioner who held an inspection of the suit property as per direction of the learned trial Court. I have gone through the report and it appears that there was one overhead water tank on the third floor where the petitioner is residing as a tenant. The learned Commissioner did not find existence of any tap line on the third floor. He also found on spot verification that no tap water was available on the third floor although there is one tap water line in the bath room and the latrine.
Mr. Abedin has also taken me to the report of the Officer-in- Charge of the local Police Station who, pursuant to the order of the Executive Magistrate, held an inspection of the property. It appears from that report that the water problem of the petitioner was solved almost. That report was filed on 18.4.2006. The Officer-in-charge ascertained that the dispute between the parties at that time was only over installation of a portable small pump on the ground floor. The opposite party did not allow the present petitioner to install such a pump and, as a result, the petitioner, being a heart patient was not in a position to fetch water from the ground floor as there was no tap water connection in the suit property.
I have carefully gone through the oral statement made by the petitioner as PW 2 in the learned Trial Court in course of hearing of the 4 petition under Section 17(2), (2A) and (b). It has been admitted by him in course of his cross examination that at the time of induction as a tenant in the suit premises, neither the opposite party agreed to supply tap water from the overhead tank nor the petitioner claimed regular tap water supply from the landlord. It is found also that he admitted that till 1986 he enjoyed supply of tap water although there was no such agreement in respect of supply of tap water.
Learned Trial Court has taken that evidence into consideration and found that the petitioner was not entitled to suspension of rent for non-supply of tap water by the landlord.
I find from the materials on record that the learned trial Court has come to such a conclusion also on facts and evidence. It was admitted by the petitioner in the learned trial Court that there was no agreement at the time of induction as to supply of tap water. That being the fact, he cannot claim supply of tap water also as a matter of right. He enjoyed supply of tap water till 1986. It can be said that his landlord was generous enough to give him such support. So, I find no infirmity or incorrectness in the order passed by the learned trial Court in this regard necessitating interference.
In view of the discussion above, I find no reason for upsetting the order impugned.
Accordingly, the revisional application fails and is disposed of. However, supply of water is an essential service. A man who is living on the third floor, needs regular water supply very badly. It is not denied that the petitioner is a patient of heart ailments. It is, accordingly, not possible for him to fetch water regularly from the ground floor or purchase water which, no doubt, is very expensive. However, it appears from the report of the Officer-in-charge of the Police Station, Alipur that the water problem of the petitioner has been solved to some extent. But, it has not been solved absolutely. Therefore, I gave liberty to the petitioner 5 to file an application before the learned trial Court enabling him to have sufficient water from the water resource of the building, at his own cost, without installing any separate water pump by the tenant himself.
In case such an application is filed, learned trial Court should consider the entire aspect thoroughly and pass suitable order in accordance with law.
The interim stay,if any, stands vacated.
No costs.
Urgent Photostat certified copy of this order, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kanchan Chakraborty, J. )