Calcutta High Court (Appellete Side)
M/S. Bharat Commercial Enterprises vs 3 Adilina Investments Pvt. Ltd on 18 April, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 Ct-31 18.4.2017 CO 2403 of 2016 M/s. Bharat Commercial Enterprises Vs. 03 Adilina Investments Pvt. Ltd.
Mr. Aniruddha Chatterjee Mr. Shib Sankar Das ... For the Petitioner ar Mr. Sourav Sen Mr. Partha Chakraborty Mr. C. Debnath ... For the Opposite Party The application under Article 227 of the Constitution of India has been directed assailing order dated 12th April, 2016 passed by the Rent Controller at Kolkata in R.C Case no. 88 of 2010 which is set out hereunder:-
"Petitioner files a petition praying police assistance.
Perused the petition and found that the case is pending before the Ld. LRTT (Salt Lake City, Kol) in case no. O.A(P) No. 916 of 2015. Hence this case is pending for final disposal awaiting further order from LRTT."
The backdrop of the matter is as follows:-
There was an application filed by the petitioner before the Rent Controller under 2 Section 27 of the West Bengal Premises Tenancy Act, 1997 with the prayer of restoration of water supply to the tenanted premises lying under occupation of the petitioner.
Upon hearing both sides and examining the evidence adduced before the Rent Controller and also the Inspector's report the Rent Controller passed the order on 30th January, 2015 in R.C Case no. 88/27/2010 which is set out hereunder:-
"That the O.P/Landlord M/s. Adelina Investment (P) Ltd. is directed to restore the water supply to the tenanted premises within 15 days from passing of this order.
To 3.3.15 Compliance or order."
Aggrieved by such order the landlord of the premises in question preferred appeal before the West Bengal Land Reforms and Tenancy Tribunal being Case no. O.A(P)-916 of 2015 M/s. Adilina Investments Pvt. Ltd. Vs. M/s. Bharat Commercial Enterprises.
For non-compliance of the order of the Rent Controller the petitioner moved with the Rent Controller with a separate application for execution of the order dated 30th January, 2015 with the help of police.
3The Rent Controller in turn passed the above order dated 12.4.2016, quoted above.
Since the Rent Controller did not record necessary order directing police to lend assistance for execution its own order, the petitioner/tenant has come up with an application under Article 227 of the Constitution of India seeking intervention of this Court.
Mr. Aniruddha Chatterjee, learned advocate, being assisted by Mr. Shib Sankar Das, learned advocate, for the petitioner argued that when there was no stay order passed by the LRTT before whom the landlord instead of complying with the order of the Rent Controller has preferred appeal, Order 41 Rule 5 of the Code of Civil Procedure provides ample scope for recording appropriate order by the Rent Controller for implementation.
Mr. Sourav Sen, learned counsel for the opposite party vehemently opposed as against the argument advanced by Mr. Chatterjee. Per contra submitted that since his client has filed the appeal before the LRTT being aggrieved by the order passed by the Rent Controller and if 4 this Court interferes with by giving any direction to the Police authority for implementation of the order passed by Rent Controller then the appeal would be infructuous. Upon such submission, learned counsel for the opposite party prayed for dismissal of CO.
During course of hearing this Court is apprised of the fact that the suit premises is owned by the opposite party as its landlord and the petitioner like some other tenants is also a statutory tenant since by this time the landlord has brought a regular eviction suit before the Small Causes Court, Calcutta for his eviction.
It is obvious that so long a tenant or a statutory tenant would remain in occupation of the tenanted premises he would have the lawful right to get all essential services like electric supply, water supply which were prevalent in the suit premises. Though, the Rent Controller upon considering the evidence adduced before him and also giving emphasis upon the report of the inspector has laid down his observations, I refrained from repeating the same or to lay any further observation taking note of pendency of the appeal against the said order of the Rent 5 Controller before the LRTT. But the submission as advanced by the learned counsel for the opposite party has no substance that if the water supply as directed by the learned Rent Controller be allowed to be implemented the appeal before the LRTT would be infructuous. Because the exercise of jurisdiction of the legal institution like Rent Controller to stretch restoration of the essential services like supply of water in the suit premises and since uptill now the opposite party would not be able to obtain any stay order staying all further proceedings connected with the order of the Rent Controller this Court within the ambit of Article 227 of the Constitution of India does not feel it wise to accept the contention of learned counsel for the opposite party. If it is accepted it would indicate denial of essential services which has been directed. The parameters of eviction suit itself and the same in case of restoration of essential services are not identical to each other. Because the implementation of any order restoring essential services is to be connected on emergent basis. Whereas, the eviction in due course of law may wait for some period but essential services like water supply, electric supply etc. can not be kept awaited specially when the Rent Controller upon 6 consideration of all the materials including the inspector's report has decided to restore the water supply to the tenanted premises.
It is needless to mention that while there is a regular suit for eviction in the event of success had there been even restoration of water supply at the cost of the petitioner the entire premises with its fixtures shall come to the occupation of the landlord. Therefore, from that angle of vision there cannot be any cause of prejudice to be suffered by the opposite party.
In view of above discussion and specially when the opposite party so far as failed to obtain order of stay, the execution of the order impugned cannot be halted on the ground that the appeal itself would be infructuous. Therefore, the Rent Controller instead of passing the formal order shall hear out the application filed by the petitioner proposing police help on merit within 15 days after communication of this order by fixing a specific date within that period and shall record appropriate order disposing of that application provided till that date of hearing the opposite party fails to produce certified copy of stay order.
However, it is made clear that while the learned Rent Controller will dispose of the 7 application of the petitioner bearing the prayer for police help shall not be swayed or influenced with any observation passed by this Court as made above.
The revisional application is thus disposed of.
The parties are given liberty to inform the learned Rent Controller by producing a server copy of this order for compliance.
No order as to costs.
Department is directed to communicate a copy of this order immediately to the learned Trial Court for information.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Mir Dara Sheko, J.) 8