D.K. Kapur, J.
(1) Be referring order dated 8th October 1982, this second appeal directed against the order of the Rent Control Tribunal dated 4th March 1982 has been referred to a Division Bench. The question before the court is the meaning to be given to section 45 of the Delhi Rent Control Act, 1958 for the purpose of the restoring certain amenities which have been taken away from the tenant.
(2) The tenant had applied under Section 45(1) of the Act staling that he had been deprived of the use of a water closet, bath room and kitchen which formed part of this tenancy and the same should be restored. An application for interim relief was moved under section 45(3) of the Act pending the enquiry.
(3) The learned Additional Rent Controller found that the tenant had been let out a shop along with a bath room, W.C. and a small room at the back and hence he passed an interim order under Section 45(3). The landlady's appeal to the Tribunal failed. The decision of the Tribunal was based on the decision of this court in Smt. Naresh Rani v. Hari Dutt, 1972 RCR 407. It was there held by B.C. Misra, J. that a bathroom was an essential supply within the meaning of Section 45(1) of the Act. Before the learned single judge, in appeal, the learned counsel relief upon the decision of Mysore High Court in Savithramma v. Ramdas 1973 RCR 839, wherein it was held that under the Mysore Rent Control Act, section 43 of that Act was not available for restoring possession of a kitchen, bath and latrine to a tenant from whom forcible possession has been taken by the landlord. Various other decisions were brought to the notice of the learned single judge. As there was some conflict between the decisions, this case has been placed before us.
(4) We may now turn to Section 45(1) of the Act. It reads :
'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.'
(5) We can also now refer to sub-section (3) which states :
'(3)If the Controller is satisfied that the essential supply or service was cut offer withheld by the landlord with a view to compel the tenant to vacate the premises or to pay an enhance rent, the Controller may pass an order directing the landlord to restore the amenities immediately, pending the inquiry referred to in subsection (4).'
'EXPLANATION-A Ninterim order may be pasted under this sub-section without giving notices to the landlord.'
(6) The real point in this case is the meaning to be given to the terms, 'essential supply' and 'service' occurring in the Section. There can be two approaches to this point, An essential supply or service may be something additional to the premises themselves, such as electricity or water or light or passage. The essential supply or service may also include part of the tenancy premises.
(7) There can be no doubt that if electricity or water is supplied via the connection of the landlord i.e. the electric connection is common or the water connection is common, then the tenant has right to immediate relief if such electricity or water is cut off. But what happens if the access to the premises is cut off. Suppose a landlord locks the outer door and does not permit the tenant to enter. Suppose the landlord closes the passage through which the tenant has to enter the portion of the house. A hundred and one problems can be faced by a tenant if the landlord chooses to cause inconvenience to the tenant so as to deprive him of the proper utilisation of the tenanted premises. It is only in the choice of the narrower or broader concept that conflict exists.
(8) Ln the case of Smt. Naresh Rani v. Hari Dutt 1972 RCR 407, decided by B.C. Misra, J. In the judgment the learned judge referred to Regis Property Company Ltd. v. Dudley (1959) 1 Qbd 346, where it was held that the term 'essential service' is a term of very wide amplitude. Any useful provisions made by the landlord for a more comfortable living of the tenants in the premises is treated as service. The learned judge then gave his own decision as follows.
'MY conclusion is that the phrase 'essential supply or service' occurring in the Delhi Rent Act would legitimately include use of the bathroom as well as of the courtyard. I am of the view that the definition given in the statute under consideration is inclusive and whether a particular amenity comes within the definition or not depends on the facts and circumstances of each case and should a landlord, without any just and sufficient cause cut off or withhold any such supply or service which is important or necessary for the reasonably comfortable enjoyment of the tenanted premises by the tenant, the landlord would be guilty of infraction of the provision of Section 45 of the Act and he would be liable to be dealt with in accordance with law.'
(9) We can now refer to some of the cases decided by other courts, We must know here that though the sections of Rent Control Act in force in other states are somewhat similar, they are not exactly the same as under Delhi Rent Control Act. In Ullal Dinkar Rao v. M. Rama Bai Air 1958 Mys 77, a cow-shed and bath room had been destroyed by heavy rains in 1954 and the tenant applied for restoration of these amenities. The court came to the conclusion that both the cow-shed as well as the bath room were amenities which could not be cut off and hence had to be restored. In Hari Dutt v. M A. Jaleel, 1969 RCR 480, the tenant had been ejected unlawfully by the landlord by putting four locks on the premises. The. court held that the Rent Controller was not authorized to issue injure ion to restore the tenant to the possession of the tenanted premises. In Hafiz Mindy Manzoor Ali Shah v. Peer Bux 1971 RCR 833, it was a writ petition under U.P.(Temporary) Control of: Rent and Eviction Act. It was held that the District Magistrate did not have the jurisdiction to order restoration of the shop and the roof under Section 7-D of the Act which was denied on amenities, but the Munsif could restore the amenity under Section 7-E. To clarify, under the Delhi Rent Control Act, the Rent Controller has power under Section 44 regarding repairs and under Section 45 for restoration of essential supply or service. The case for repairs would properly fall within Section 44. This authority is not of much value for the present case.
(10) We now come to the judgment relied upon in the referring order, which is Savithramma v. Ramdas 1973 RCR 839. In that case, the landlord had taken forcible possession of the kitchen, bath and latrine. The court held that this was not an essential supply or service. The conclusion of the Court may be quoted here for convenience.
'THE expressions 'essential supply or service' in common parlance is not employed for describing the facility of kitchen, bath room and latrine which the tenant enjoys. The expression 'essential supply or service,' referred to in Sub-section (1) is in respect of the building let to the tenant. It is thereforee, obvious that the essential supply or service contemplated by Sub-section (1) of Section 43 of the Act is something other than the building let to the tenant. The first Explanationn to the section, though it does not given an exhaustive definition of the expression 'essential supply or service,' gives some guidance to decide as to what are the other matters that the said expression may comprehend within it. Having regard to the context in which the expression 'essential supply or service,' occurs in Sub-section (1) of Section 43 of the Act, it is clear that the same does not include within its ambit, the building or a portion of the building let to the tenant. The said expression only includes facilities other than the building leased to the tenant and not the building or a part of the building itself. Whatever may be the width or ambit of the expression 'essential supply or service', used in Sub-section (1) of Section 43 of the Act, one thing is very clear viz. that the same does not include the building or a portion of the building leased to the tenant.'
(11) Thus, the main reason for excluding the latrine, bathroom and kitchen etc. from the ambit of the expression 'essential supply or service' was the conclusion that 'essential supply or service' had to be something other than the leased premises. It this assumption is made at the beginning then naturally it would follow that no part of the tenancy can be included in the expression 'essential supply or service.' With great respect, the conclusion of the Court seems to follow from the assumption made initially. This is, thereforee, a tautology because the conclusion follows from the assumption. Reference was also made to the Supreme Court decision in Kanaiya Lal v. Indumati, : 1958CriLJ814 , where tap water was held to be an essential supply for the purpose of a criminal offence under the Bombay Act, but that is not of much help. We were referred to a judgment of Punjab & Haryana High Court in 1971 Rent Control Journal 30, M/s. Anant Ram & Sons v. Raghubar Dayal Bhargava, which was a case in which the roof had bee 'n demolished. We think, it is not of much use in the present case because that is a case covered by Section 44 of the Delhi Act and not of Section 45.
(12) In Subramaniam v. Rajaram, : AIR1966Mad355 , It was held that a spare room was amenity which could be restored.
(13) The reference to the case law is not of much real help in the present case for the simple reason that in most Rent Acts the word 'amenity is used and not 'essential supply or service'. So, we are left with the problem of supplying a proper meaning to the term 'essential supply or service,' given in Section 45. As view has been expressed in this Court as per the judgment reported as Smt. Naresh Rani v. Hari Dutt (supra) regarding the meaning of the term 'essential supply and service', and no different view seems to have been taken in this Court. We are hard pressed to lake a different view but if compelled to do so from the language of Section 45, we would not hesitate to take the view that the essential supply or service must be something extraneous to the tenancy itself. The judgment of the Mysore High Court from which a quotation has been set out at length above was delivered by Malimath J. sitting alone. He held that the meaning of 'essential supply or service' can be obtained from the Explanationn given at the end of the Section. These Explanationns are given in the Delhi Act, also :
'EXPLANATIONI-In this Section 'essential supply or service' includes supply of water, electricity, lights in passages and on staircases; conservancy and sanitary service. Explanationn II- For the purpose of this Section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply .is cut off by the local authority or any other competent authority.'
(14) The first Explanationn above, to our mind, is not a definition of 'essential supply or service' but includes therein something which might otherwise not appear to be included, being extraneous to the tenancy. The most essential supply or service in a tenancy are the premises. If we understand the phrase 'essential supply or service' in the sense of 'amenity' rather than an external supply of something outside the tenancy. Seen this way, if a tenancy premises consists of a bedroom, living room, kitchen, etc., we can say that the bedroom and the living room are essential service or supply qua that tenancy. If the landlord takes away the bedroom or living room, there will be hardly anything left in the tenancy. Similarly to take away the bathroom, kitchen or latrine, completely deprives the tenant of the proper utilisation of the tenanted premises. We agree with Misra J. that these are essential supplies and services attached to the tenancy. It can also be said with equal accuracy that some parts of a tenancy like, attached garden or lawn or even a verandah or an outhouse may not be accurately, described as an 'essential supply or service'. So, the real question we have to resolve it whether the tenancy premises or any portion thereof can be .described as an 'essential supply or service'. If no part of the tenancy premises are included. in this term, then Section 45 will apply in a very limited field arid the relief would have to be refused to the tenant in the present case.
(15) It will now be useful to view this case from quite a different angle. According to the Explanationn, the cutting off of water and electricity is the Withholding of an essential service of supply. This water is to supplied in a bathroom. This Electricity is to be enjoyed in the premises leased out. If the entire bath room is taken away. the water is automatically cut off. So, it seems to be a more drastic deprivation of essential supply than cutting off of the water only. Similarly the electricity has to be enjoyed in the priemisles. If a small thing is included in 'essential service or supply', we do not see why the larger thing is not included.
(16) This brings us to the question, what is meant by 'essential supply or service' in this provision. Does it mean the entire premises or does it mean only the service or supplies extraneous to the tenancy, such as, electricity Or docs it mean electricity and water and other services such as conservancy, repairs security and so on, including providing a proper entrant plays something within the premises themselves.
(17) We are of the view that each case has to be viewed on its own facts, as observed by B.C. Misra, J. in the aforementioned case. If deprivation prevents the proper enjoyment of the premises, then it is a cutting off of an essential supply or service. Cutting off of an essential electricity and water is a much smaller instance of cutting off an essential supply then deprivation of the kitchen, bath and water closet. These three items are essential services without which the premises cannot be properly enjoyed by the tenant. We note that the premises in question are situated in the Connaught Place area. If there is no kitchen, bath and latrine, untold misery must result to the tenant. A tenant not getting water, cannot use the premises for quite ordinary purposes, which are essential for proper utilisation of the leased property. We, thereforee, agree with the view expressed by B.C. Misra, J. now turning to the facts of the case, it has been held by the Rent Control Tribunal as well as by the Additional Rent Controller who passed the initial order, that this was a case of cutting off an essential service or supply and hence the tenant was entitled to an immediate order.
(18) If we turn to Sub-section (3) of Section 45, the language can be used to illustrated the meaning of the phrase 'essential supply or service' with a little more accuracy. This sub-section states that if the supply or service was cut off or withhold with a view to compel the tenant to vacate the premises, the Controller may pass an order directing the landlord to restore the amenities immediately. It is noticeable that here the legislature has used the word 'amenities'. We have already referred to some cases where other rent control acts have used the word 'amenities' in place of 'essential supply or service' the word 'amenities' normally connotes something which may be included in the tenancy and is not something external to it. The use of the word 'amenities' in Sub-section (3) of Section 45 seems to indicate that the legislature was not making any distinction .between the phrase 'essential supply or service' and the word 'amenities' and was using the same manner indicating that the meaning was the same. This sub-section, thereforee, gives us a better indication of the real meaning of the phrase 'essential supply or service' as used in the Section. If the legislature had wanted to make a distinction between the phrase, 'essential supply of service' and Rent Controller directing the restoration of the, amenities taken away from the tenant. We accordingly dismiss the appeal with costs.