Delhi High Court
Akesh Kumar Jain & Ors. vs Shri Harmeet Singh Bakshi & Anr. on 12 February, 1999
Equivalent citations: 1999IIAD(DELHI)192, 78(1999)DLT364, ILR1999DELHI182, AIR 1999 DELHI 191, (1999) 1 RENCR 435, (1999) 2 RENTLR 28, (1999) 78 DLT 364
ORDER Mohd. Shamim, J.
1. An application by the plaintiffs under Section 151 of the Code of Civil Procedure for permission to dig up a tubewell/borewell of sufficient depth in the backyard of the suit premises at their own expense for their exclusive use and enjoyment. They further want through the present application to allow the plaintiffs to put their exclusive use two overhead water tanks out of the four overhead water tanks for their own exclusive use and enjoyment and for supplying the water on the first floor i.e. the tenanted accommodation in occupation of the plaintiffs.
2. A few facts for the proper appreciation of the points in controversy before this Court are as under: that the plaintiffs are the tenants of defendant No.1 on the first floor of property bearing No. D 1059, New Friends Colony, New Delhi since 1980 on a monthly rent of Rs. 2530/. Defendant No.1 in collusion with defendant No. 2 are bringing pressure on the plaintiffs in different ways in order to compel them to vacate the tenanted accommodation. Hence, the plaintiffs are compelled to institute the present suit. The water supply to the tenanted accommodation in occupation of the plaintiffs is through a tubewell installed in the backyard of the building. A jet pump is installed on the tube well which pumps the water to the overhead water tank on the terrace floor. There is no MCD supply of water in the said premises and the tubewell is the only source of feeding. There is not enough supply of water through the municipal line even to the first floor. The plaintiffs as such are wholly dependent on the tubewell for the supply of water to their premises for all their needs. The plaintiffs are experiencing acute shortage of water since the jet pump quite often fails to pump water to the overhead tanks due to the decrease in water level. Defendant No.2, who is in occupation of the ground floor wants to oust the plaintiffs by intimidating and harassing them. The plaintiffs thus pray that they should be allowed to install a tubewell in the backyard of the suit premises at their own expense and for their own exclusive use. The application is supported by an affidavit.
3. The above application has been opposed by defendant No. 2 inter alia on the following grounds: that the present application is not maintainable inasmuch as the premises in suit are governed by the provisions of the Delhi Rent Control Act. Thus, the reliefs sought through the present application could only be sought through a petition under Section 45 of the Delhi Rent Control Act i.e. from the Rent Controller. Thus the present application could have been moved only before the Rent Controller, provisions of Section 151 C.P.C. whereunder the present application has been moved, could not come to the rescue of the plaintiffs inasmuch as there is a specific provision under Section 45 of the Delhi Rent Control Act whereunder the present application could have been presented to the Rent Controller. It is false and preposterous that there is no adequate water supply to the tenanted accommodation of the plaintiffs. The plaintiffs cannot be permitted to install a tubewell on the ground floor which is in occupation of defendant No. 2. The plaintiffs should confine themselves to their own tenanted premises. They cannot be permitted to utilise a part of the accommodation which does not form part of their tenanted accommodation. The application is thus liable to be dismissed.
4. Learned counsel for defendant No.1 has opposed the application orally. According to the learned counsel for defendant No.1, the defendant has assured adequate water supply to the tenanted accommodation of the plaintiffs. The application is thus liable to be dismissed.
5. I have heard the learned counsel for both the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thought thereto.
6. Mr. Sanghi, learned counsel for the plaintiffs has contended that relief in question could not be made available to the plaintiffs by the Rent Controller inasmuch as the relief which is being claimed is against defendant No. 2 also who is not the landlord of the plaintiffs. Hence, according to the learned counsel, the provisions of Section 45 of the Delhi Rent Control Act would not come into operation in the instant case.
7. Since we are concerned with the construction of Section 45 of the Delhi Rent Control Act, it would be just and proper to examine the said Section before proceeding any further in the matter. It is in the following words:
45. Cutting off or withholding essential supply or service: (1) No landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him. (2) If a landlord contravenes the provisions of subsection (1) the tenant may make an application to the Controller complaining of such contravention.
(3) If the Controller is satisfied that the essential supply or service was cut off or withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in sub section (4).
Explanation ..............
(4) ..................
(5)................."
8. A close scrutiny of the relevant provisions of law adverted to above reveals that the above Section is applicable to those discerning few cases whereas the landlord has deprived the tenant of the essential supply or service enjoyed by the tenant in respect of the tenanted accommodation.
9. The plaintiffs herein, admittedly, are complaining of the shortage of the water supply. The said supply admittedly relates to their own tenanted accommodation. Their grievance is also against the landlord. According to them, defendant No.1, admittedly who is the landlord, in collusion with defendant No. 2 is not allowing the sufficient water supply to the tenanted accommodation of the plaintiff with a view to bringing pressure on them to vacate the premises in suit. Thus it is crystal clear that the grievance is against defendant No.1 in collusion with defendant No. 2 as is fully manifest from para 2 of the application. The provisions of Section 45 of the Delhi Rent Control Act are quite explicit and amply clear on this point. It lays down that no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply. According to para 2 of the application under disposal, defendant No.1 is doing so in collusion with defendant No. 2.
10. Hence, the provisions of Section 45 of the Delhi Rent Control Act are fully applicable to the facts of the present case. Hence, the present application is not maintainable.
11. The ground floor is admittedly in occupation of defendant No. 2. Thus I feel the plaintiffs cannot be permitted to use any other portion of the building which does not fall within the domain of their tenanted accommodation without express consent or permission of the person who is in occupation thereof. So far as the ground floor is concerned, the plaintiffs are strangers to the said part of the building. They cannot be permitted to use any portion thereof without the permission of defendant No.2 who is in occupation thereof.
12. Furthermore, the order with regard to the installation of the tubewell cannot be secured by the plaintiffs in their favour simply on the bare allegations in their application which have been denied and controverted by the defendants in their reply. The plaintiffs have not placed on record even tiny piece of paper to show that they are entitled to do so such as agreement in between them and the defendants.
13. There is another side of the picture. The plaintiffs have moved the present application under Section 151 CPC. The provisions of the said Section can be made use of only in exceptional cases where there is no clear cut provision of law on the point. It has been held above that Section 45 of the Delhi Rent Control Act is specifically applicable to the facts of the present case. Hence, the present application is not maintainable on this score also.
14. There is yet another aspect of the matter. Defendant No.1 vide para 15 of his amended written statement has stated that he has assured the plaintiffs through his letter dated 2nd February, 1996 that there would be no shortage of water and adequate water supply would be maintained. In view of the above assurance, there should be no grievance from the side of the plaintiffs . In the above circumstances, I do not see any force in the present application . It is hereby dismissed.