Judgment:
Kanwaljit Singh Ahluwalia, J.
1. Krishan Lal tenant, preferred a petition under Section 9 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act') in which he prayed that He is tenant in the building owned by Nirmal Kumar. Details and description of the building were given in the head note of the petition. It was stated therein that the premises have been taken on rent at a monthly rent of Rs. 155/- along with taxes. It was stated in the application that the house lack civil amenities and public hygiene, therefore, a flush with water facility be provided as petitioner was having open latrine on the roof which is not cleaned daily. It was further stated therein that potable water is not available and the drinking water is to be brought from outside. It was further stated that on the eastern side of the house in question, a sewerage line and water pipe has already been laid and all the nearby houses are having facilities. Registered notice was issued to the landlord calling upon him to provide the above said amenities. When the landlord had not responded then the petition was filed in the court seeking the above said relief.
2. Landlord appeared. He filed reply and took a preliminary objection that the application is not maintainable. However, relationship of landlord and tenant was admitted. It was stated that house in question was an old construction and the same was required to be re-built and no facility as stated by the tenant have been provided by the Municipal Corporation and the house was required by him for the use and occupation of his brother.
3. Learned Rent Controller had framed the following issues:
1. Whether the petitioner is entitled to the facilities as claimed by him? OPP
2. Whether the petitioner has no locus standi to file the present petition? OPR
3. Whether the petition of the petitioner is not maintainable in the present form? OPR
4. Relief.
4. Tenant had examined PW2-Amir Chand Taneja who proved site plan Ex.P-1 to show that the sewerage and water pipe line are passing in the street in front of the house in question. He further stated that these amenities have not been provided in the demised premises.
5. Landlord himself appeared as R.W.1. He stated that when the tenancy was created these facilities were not available in the locality and now the petitioner has no right to claim the same and the construction of the house is very old and the same requires reconstruction.
6. Learned Rent Controller believed the evidence led by the tenant there is open latrine on the roof and the amenities have reached near the house in question. Learned Rent Controller further held that sewerage and tap water facilities are essential amenities which are required by every person. Therefore, tenant is entitled to the same at the expenses to be incurred by him for providing such amenities and such expenses incurred by the tenant would be deducted from the rent payable by him to the respondent. In the relief clause, the following conclusion was drawn by learned Rent Controller:
14. In view of my findings given herein above on issue No. 1 since the respondent has already refused to provide the sewerage and tap water facilities to the petitioner, the petitioner is entitled to have the said amenities in the demised premises at the expenses to be incurred by him for providing amenities and the expenses incurred by him would be deducted from the rent payable by him to the respondent. Soon after the amenities have been provided the petitioner shall immediately send the details of the expenses incurred by him to the respondent/landlord, so that said amount is deducted from rent as per Section 9 of Haryana Urban Control of Rent and Eviction Act. Present petition is allowed accordingly. Memo of costs be prepared and file be consigned to the record room after due compliance.
7. Aggrieved against the same, landlord filed an appeal. Learned Appellate Authority held that the tenant appearing as PW1 has not specified as to when he occupied the premises. It took into consideration a reference in the cross-examination that the tenant started residing in the premises about 25 years ago and at that time also water and sewerage lines were existing in the locality. Taking this fact into consideration, learned Appellate Court held that since at the time of inception of tenancy, these amenities were available, and were not provided now the tenant is precluded from the. prayer that such amenities ought to be provided. Learned Appellate Authority also relied upon the cross-examination of PW-2 Amir Chand Taneja to hold that if on the ground floor latrine is to be constructed then Chabutra and enclosure is to be demolished as there is no place for construction of latrine on the ground floor and also main hole of the sewerage line is about 25' to 30' away from the house in question. It also took into consideration that tenant has not obtained any estimate of expenses likely to be incurred on the construction of latrine. It also took into consideration that the rent is only Rs. 155/- per month and if the order of learned Rent Controller is upheld then for times to come, landlord will be deprived of the rent.
8. To controvert this part of the findings of learned Appellate Court, Mr. Mani Ram Verma, Advocate, appearing for the petitioner, states that he is ready to incur all expenses without any reimbursement from the landlord.
9. At this stage, Mr. A.K.Goel, Advocate, appearing for the landlord has made three fold submissions. He has stated that the building is very old and it has become unfit for human habitation. Secondly, it has been submitted that the premises are required for personal use and occupation. It has been submitted that tenant wanted to construct latrine on the ground floor and if same is permitted, it will change the character of the building.
10. Repelling these arguments, Mr. Verma, in his all eloquence, has submitted that on ground of personal necessity and building being unfit for human habitation, eviction petition has been earlier filed by the landlord and the landlord lost in that litigation before learned Rent Controller and Appellate Authority. He further submits that now again the landlord has filed another petition for eviction on the ground of personal necessity and for enhancement of rent. Mr. Verma has further stated that since the sewerage pipe is to be taken on first floor and in the modern time, sufficient technology is available he will make the bathroom on first floor and take sewerage line there, where there is a provision of latrine.
11. In view of the submissions made by Mr. Verma that he will incur the entire expenses at his own and will construct the latrine at first floor, there is nothing the learned Counsel for the landlord could say contrary to dislodge the submission made by Mr. Verma. Landlord will be within his rights to pursue his remedy to seek eviction of tenant on the ground of personal necessity or enhancement of rent for which he has already initiated the proceedings. Section 9 of the Act reads as under:
9. Landlord to provide certain amenities.- (1) If the amenities of electricity sewerage or tap water supply have been made available in any locality by the State government or a local authority, the tenant of the building or rented land of such locality shall be entitled to the enjoyment thereof subject to the provisions hereinafter contained.
(2) If the landlord at the written request of the tenant fails to agree in writing to provide all or any of the amenities within a period of thirty days or fails to provide the same within a period of ninety days of such request, the tenant may apply to the Controller for that purpose. The Controller may, on such application by the tenant and after such enquiry as he may deem fit permit the tenant to have such amenity at the cost of the landlord on such conditions as he may deem proper. The tenant shall be entitled to deduct the expenses incurred by him in providing the amenity from the rent payable to the landlord till the full amount is realized.
Provided that the rate of deduction of such expenses shall not exceed fifty per centum of the amount of rent.
Provided further that the Controller may reject the application if he is satisfied that such an order will cause undue hardship to the landlord, keeping in view his source of income, or would involve expenditure incommensurate with the benefit sought to be achieved.
(3) The Controller may fix the extent and specifications of the amenity as far as possible keeping in view the circumstances of the case and also the estimated cost thereof.
(4) After the amenity has been provided, the tenant shall immediately thereafter send the details of the expenses incurred by him to the landlord.
(5) In case of dispute as regards the quantum of the amount spent for providing the amenity the same shall be decided by the Controller after enquiry on an application made to him.
(6) The landlord shall be entitled to enhance the rent of the building or the rented land to the extent of eight per centum per annum of the amount spent for providing such amenity from the date the amenity is provided.
Provided that where the tenant has initially incurred the expenses for providing such amenity, the enhancement of rent shall not be allowed till the amount spent by the tenant has been realized.
12. The request made by the tenant is in consonance with the object of Section 9 for which the same was enacted. In the modern times, civic amenities and public hygiene cannot be denied to the tenant on the ground that he must yield to pressure and vacate the premises. Potable water is essential for day to day living so is the sewerage. Therefore, the findings of learned Rent Controller are justified and are in consonance with the modern days' needs. Therefore, the findings of learned Rent Controller are upheld. The judgment of learned Appellate Authority is set aside. Taking into consideration submissions and prayer made by Mr. Verma, counsel for tenant as noticed above, the judgment of learned Rent Controller is modified to the extent that the sewerage pipe shall be taken to the first floor where there is provision for the latrine and all expenses incurred by the tenant for laying the water pipe and sewerage pipe shall be borne by tenant himself and will not be reimbursed by the landlord.
With these observations, the present revision petition is disposed off.