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B. Narayana Kamath Vs. S. Sanjiva Naika - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 749 of 1975
Judge
Reported inAIR1983Kant162
ActsKarnataka Rent Control Act, 1961 - Sections 43
AppellantB. Narayana Kamath
RespondentS. Sanjiva Naika
Appellant AdvocateB.V. Acharya, Adv.
Respondent AdvocateB.P. Holla, Adv.
Excerpt:
.....was justified and has sufficient cause, even assuming for the sake of argument that the said water supply was enjoyed by the tenant in respect of the building let to him, to disconnect the same as the same was being done clandestinely and in violation of the relevant provisions under the electricity act. 8. what follows from the aforesaid discussion is that the amenity that was being enjoyed by the tenant from 1970 for some period cannot be construed as an essential service or supply enjoyed by the tenant in respect of the building let out to him as the said amenity was not connected in any way with the leasehold rights as evidence by the lease deed executed between the parties on 23-8-1958. if that is so, there is no illegality in the impugned order calling for interference by..........was justified and has sufficient cause, even assuming for the sake of argument that the said water supply was enjoyed by the tenant in respect of the building let to him, to disconnect the same as the same was being done clandestinely and in violation of the relevant provisions under the electricity act. the landlord might be liable for being proceeded with under the electricity act for violation of any of the conditions laid down and imposed on him. but that does not mean that the same could attract the provisions of sub-sec (1) of section 43 of the act.8. what follows from the aforesaid discussion is that the amenity that was being enjoyed by the tenant from 1970 for some period cannot be construed as an essential service or supply enjoyed by the tenant in respect of the building.....
Judgment:
ORDER

1. This petition by the tenant is directed against the order, dated 7-11-1974, passed by the learned Principal Munsiff, Karkal, in H. R. C. No. 22/1973, dismissing the said petition which was filed by the tenant under Section 43 of the Karnataka Rent Control Act.

2. Brief facts of the case are that the tenant filed an application on 9-10-1973, under Section 43 of the Act for a direction to the landlord-respondent here in, to restore supply of water to the leased property from the pipeline fitted to overhead tank situate in the landlord's property and to direct the landlord to pay damages at the rate of Rs. 50/- per cent until restoration and to pay Rs. 100/- towards compensation to the tenant and also to award costs of the proceedings.

3. The allegations in the petition are to the effect that the petitioner is a tenant of door No. 3-546 of Karkala Town Municipality under the landlord, on a monthly rent of Rs. 25/- since 1958 under a lease deed executed between the parties. The water of the well situate in the hotel 'Ranganatha Cafe' is contaminated by dirt and fifth because of the percolation of impure and unhygienic water from the adjoining lake and the water cannot be used even for cleaning and washing purposes. The tenant also stated that the landlord was supplying water throughout 24 hours through a pipe fitted for a furlong to a concrete tank, which is filled with well water through a motor engine, and connected to the overhead tank. The landlord was also collecting Rs. 30/- since 3 1/2 years. He also stated that it is an essential service and the landlord disconnected the supply of water from 7-9-1973 without any cause and has contravened Section 43 of the Act and therefore prayed for the aforesaid reliefs which are fully adverted to above.

4. The said petition was resisted by the landlord on various grounds including the one that the supply of water did not form part and parcel of the lease hold rights as evidenced by the lease deed dated 23-8-1958. He also contended that because of the good will and amity that was existing between the parties concerned, the landlord till about 1970 accommodated the tenant with supply of water from his well and laid water pipes for the said purpose. He also contended that the electricity was obtained by him for a very specific purpose, namely, for irrigation purpose. If that is so, he was not justified in accommodating the tenants in the supply of water through the said pump and well in question as he was almost transgressing and violating the relevant provisions of law under the Electricity Act. He also contended that clandestinely just to accommodate and to keep good harmony with his tenant he was supplying the water. That does not mean that it formed an essential supply or service as contemplated under Section 43 of the Act.

5. As could be seen from the records, both landlord and tenant have examined themselves. In addition to this a commissioner - an officer of the Court - a practising advocate - was also deputed to inspect and to report and his report has been marked, as Ex. P. 2.

6. The main contention of the learned counsel for the tenant, Sir Mohan Raj, is that the trial Court was not justified in rejecting his petition accepting the contention of the landlord. He pointedly drew the attention of the Court to the report Ex. P. 2 submitted by the Commissioner and also the evidence of the tenant himself to the effect that the landlord was in fact supplying water through one of his wells by laying water pipes to the hotel in the occupation of the tenant. This was done by pumping the water from the well by means of an engine operated by electricity and lifting the water to the overhead tank and allowing the same to pass through the pipelines to the hotel in question. But the fact remains whether this service comes within the ambit of Section 43(1) of the Act. which reads thus:

'No landlord either himself or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the building let to him.'

On this point the evidence adduced by the parties is to the following effect : The tenant occupied the premises in question for running his hotel business on 23-8-1958 under a lease dead. This is not disputed by either of the parties. It is also not disputed by the tenant himself that from 3 1/2 years prior to the filing of the petition in question, namely, 9-10-1973 the date of the filing of the petition , the landlord was supplying water to the tenant and he was collecting Rs. 30/- per month for such supply of water. This is also not disputed by the parties. On the other hand, there is specific averment to the said effect in the petition itself and the same is corroborated by the evidence of tenant as also that of the landlord. If that is so, it cannot be said that the said supply of water from 3 1/2 years prior to 9-10-1973 would come within the purview of Section 43 (1) of the Act, namely, that it is an essential supply or service enjoyed by the tenant in respect of the building let out to him. At the time when the premises was leased out to the tenant on 23-8-1958 the landlord was not supplying the water and the tenant was making use of the water from the well situated within the leasehold premises and therefore the supply or service in question was not being enjoyed by the tenant under the lease deed in question. It is also in evidence of the landlord that to accommodate and due to the good relationship that existed between the parties that he laid pipes to a distant of nearly one furlong from his house and connected the leasehold premises and was supplying water from overhead tank which was being filled up with the help of an engine which was run by electricity for which he had taken licence bearing R. R. No. 514. This is also evidenced by Ex. P-2. The Commissioner, in his report has also adverted to this aspect of the matter and said that the installation number of pump is R. R. 514. The landlord also has spoken to this endorsement issued by the electricity department to the effect that R. R. 514 stands for irrigation purposes and the same in marked as Ex. P.2. If that is so, it is clear that the say of the landlord is probalished and also proved that the electricity that was being used for lifting the water to the overhead tank which in turn was being supplied to the premises in question was lifted out of the motor bearing R. R. 514, which in turn was specifically allotted to the landlord for being used for irrigation purpose. The oral and documentary evidence coupled with the recitals in the petition as also the evidence of the tenant make it crystal clear that the water that was being given from the pipes by the landlord to the schedule premises by round about 1970 onwards was not part and parcel of the essential supply or service enjoyed by the tenant in respect of the building let out to him. On the other hand, it is clear that the landlord was supplying the water in question from 1970 onwards out of some consideration and that he was also receiving Rs. 30/- per month towards the same and if that is so the tenant would both be justified in terming the same as an essential supply or service enjoyed by him in respect of the building leased out to him.

7. The evidence of the landlord coupled with the report Ex. P. 2 clearly indicates that the landlord was justified and has sufficient cause, even assuming for the sake of argument that the said water supply was enjoyed by the tenant in respect of the building let to him, to disconnect the same as the same was being done clandestinely and in violation of the relevant provisions under the Electricity Act. The landlord might be liable for being proceeded with under the Electricity Act for violation of any of the conditions laid down and imposed on him. But that does not mean that the same could attract the provisions of sub-sec (1) of Section 43 of the Act.

8. What follows from the aforesaid discussion is that the amenity that was being enjoyed by the tenant from 1970 for some period cannot be construed as an essential service or supply enjoyed by the tenant in respect of the building let out to him as the said amenity was not connected in any way with the leasehold rights as evidence by the lease deed executed between the parties on 23-8-1958. If that is so, there is no illegality in the impugned order calling for interference by this Court.

9. In view of the above finding the further question namely, question of payment of compensation or damages prayed for by the tenant does not arise for consideration.

10. In the result, for the reason stated, above, this petition is dismissed. No costs.

11. Petition dismissed.


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