MD. USMAN KHAN Vs. HARI SAHU AND ANOTHER
LAWS(ORI)-1973-3-28
HIGH COURT OF ORISSA
Decided on March 15,1973

Md. Usman Khan Appellant
VERSUS
Hari Sahu And Another Respondents

JUDGEMENT

R.N. Misra, J. - (1.) The petitioner is the owner of a shop house in the town of Balasore, and opposite party No. 1 is the tenant. The opposite party No. 1 applied to the House Controller Rent under Section of the Orissa House Rent Control Act (hereinafter referred to as the Act) for a direction to the petitioner-landlord to effect repairs of the premises occupied by him on the allegation that on account of non-repair the shop premises was no more habitable. The petitioner-landlord resisted the claim before the Controller and contended that the house was more than 100 years old and it did require pulling down and reconstruction. The tenant was asked to vacate the possession to enable such reconstruction, but he has not done so. The municipality has already issued notice declaring the construction to be dangerous.
(2.) The Controller raised two questions for determination: (1) Whether the landlord was the competent person to be directed to make necessary repairs to the house. This was on the footing that the house belonged to many others along with the petitioner; (2) Whether the repairs could be possible without the tenant vacating possession. The tenant examined two witnesses including himself and the landlord examined the municipal engineer and himself. The notice issued by the municipality as referred to above was exhibited on behalf of the landlord. The House Rent Controller made a local inspection. she was of the view that what was necessary was to haze a complete reconstruction and not effecting normal repairs, Section 10 of the Act was not applicable and the petition was, therefore, rejected. The tenant appealed. The appellate authority came to hold that it was not a case of reconstruction and all that was necessary was some major repair work. Normal repair to the house had not been done as a result whereof the premises had come to be uninhabitable. He relied on the stand of of the landlord that repairs could be undertaken provided the tenant vacated the premises and passed the following direction : "It is hereby ordered that the appeal be allowed and the order of the Controller is bet aside. It is hereby directed that the opposite party shall Effect repair of the house within October 3, 1969, failing which the petitioner shall effect the repairs at his own costs, and adjust the amount so spent against the rent payable to the landlord in 24 monthly instalments." This is an application for a writ of certiorari to quash the aforesaid appellate order.
(3.) Under the Transfer of Property Act which is the general law on the subject it is ordinarily the duty of the the tenant to keep the accommodation in good repairs and to hand over the possession of the accommodation in the very condition in which it was taken Steuart & Co. Ltd. v. Mackertich, AIR 1963 Calcutta 198. The Rent Control Acts have reversed this obligation and have imposed a statutory obligation on the landlord to maintain the accommodation in good condition by effecting necessary repairs. Several rent control legislations have provisions for the same (See Section 37 of the Madhya Pradesh Accommodation Control Act, 1965, Section 22 of the Madras Rent Control Act, 1960, and Section 20 of the Rajasthan Premises Rent Control Act, 1950). In the Delhi Rent Control Act of 1958 provision has been made for eviction of the tenant where the landlord satisfies the Controller that for the purpose of repairs such eviction is necessary. In Orissa the provision for effecting of repairs has for the first time been incorporated in Section 10 of the Orissa House Rent Control Act of 1967. The relevant provision is as follows: "(1) If the landlord fails to effect normal repairs to the house and thereby renders the house uninhabitable, the tenant may make an application to the Controller, who may, after making such inquiry as he deem fit, direct the landlord to effect such repairs as may be necessary in the opinion of the Controller within a reasonable period to be fixed to him. (2) In case the landlord fails to comply with the directions issued under sub-section (1), the Controller may authorise the tenant to effect the repairs at his own cost and to adjust the amount so spent against the rent payable to the landlord in such number of instalments as may be fixed by the Controller : Provided that the tenant shall not be entitled to adjust any amount spent in excess of the amount which, in the opinion of the Controller, would have been reasonably necessary for effecting the said repairs.";


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