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1980 DIGILAW 7 (CAL)

Mrinalini Ghosh v. Shibnath Bhadra

1980-01-15

M.K.MUKHERJEE

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JUDGMENT (1.) IN this application filed under Article 227 of the Constitution of India as also under section 482 of the Code of Criminal Procedure the three petitioners pray for quashing of the proceeding of R. C. Case No. 103 of 1976 initiated against them on a complaint filed by the opposite party under section 31 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) and now pending before the Additional Rent Controller Barrackpore. (2.) IN the complaint it has been stated that Mrinalini Ghose, the petitioner No. 1, is the owner of premises No. P-236,/ Lake town and the complainant is a tenant in respect of a flat on the first floor of the said premises. The other two petitioners are the sons of the petitioner No. 1. The petitioners stopped the water supply to the complainant flat no November 11, 1976 which was temporarily restored at the intervention of the Officer-in-Charge of Lake town Police Station. On December 11, 1976 there was a reduction in the supply of water and on December 13, 1976 the three petitioners completely stopped the water supply thereby causing great inconvenience to the complainant. The learned Rent Controller, barrackpore entertained the complaint on, December 24, 1976 and ultimately by an order dated July 27, 1977 transferred the case to the learned Additional Rent Controller for disposal. The Additional Rent Controller recorded the statement of the complainant on August 23, 1977 and issued summons upon the petitioners calling upon them to appear before him. The petitioners entered appearance and filed an application challenging the maintainability of the proceeding. Having failed there the petitioners moved this Court and obtained the present rule. (3.) MR. Biswaranjan Ghosal, the learned Advocate for the petitioners firstly contended that Sri D. P. Chatterjee, to whom the case was transferred on July 27, 1977 and who issued process against the petitioners, was not duly appointed to be an additional Rent Controller under section 26 (2) of the Act and as such the issuance of process against the petitioners and all subsequent proceedings are bad in law. To controvert the above contention of Mr. Ghosal Smt. Krishna Ghose, the learned advocate appearing for the State has produced a copy of the notification dated February 27, 1976 issued by the Government of West Bengal which shows the valid appointment of Mr. To controvert the above contention of Mr. Ghosal Smt. Krishna Ghose, the learned advocate appearing for the State has produced a copy of the notification dated February 27, 1976 issued by the Government of West Bengal which shows the valid appointment of Mr. D. P. Chatterjee as Additional Rent Controller for Barrackpore Sub-division of the District of 24-Paraganas. Another notification dated January 10, 1978 has also been produced to indicate that Sri S. Raha, who is now in seisin of the case, replaced Sri Chatterjee as Additional Rent Controller of Barrackpore. The above two notifications clearly show that at the material time Sri D. P. Chatterjee was the duly appointed Additional Rent Controller of Barrackpore and that there is no substance in the contention of Mr. Ghosal. (4.) MR. Ghosal next contended that the proceeding initiated against the petitioners is barred by limitation under section 468 (2) (a) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code). In elaborating his contention Mr. Ghosal submitted that the non-supply of water to a tenant is an offence under section 31 of the Act for which a person is liable to be prosecuted and consequently the provisions of the Code of Criminal Procedure, including section 468 thereof, would apply to a complaint filed under section 31 of the Act. Mr. Ghosal submitted that in the instant case though the complaint was filed on December 24, 1976, cognizance was taken long after the period of limitation on August 22, 1977. In support of his contention that willful disturbance in water supply creates an offence punishable under section 31, Mr. Ghosal relied upon a Bench Decision of this Court in the case of Pulin Krishna Paul v. Sishupati Chakraborty, reported in AIR 1953 Calcutta, Page 185. In that case, Harries, C. J. speaking for the Court observed as follows : "it appears to me beyond all questions that when a statute gives the Rent Controller power to impose a penalty, that is, fine a person, it gives him a right to deal with prosecution of an offence and to punish the commission of such offence. What: else can these proceedings before the Rent Controller be? They are not civil proceedings. They are proceedings of a criminal nature resulting in a well known form of punishment for a crime, namely, the imposition of a fine. What: else can these proceedings before the Rent Controller be? They are not civil proceedings. They are proceedings of a criminal nature resulting in a well known form of punishment for a crime, namely, the imposition of a fine. " After distinguishing an earlier Division bench decision of this Court in the case of Jhavermal Dudhwala -v- Govind Ram (A. I. R, 1952 Calcutta 121) which seemingly took a different view His Lordship observed as follows : "going to the Rent Controller and asking him to fine a man for an act is really a prosecution of that man and the act is an offence against the statute and is a criminal offence because it is punishable by a fine which is a punishment of a criminal nature. " (5.) THE above judgment undoubtedly supports the contention of Mr. Ghosal that the impugned proceeding is for prosecution of the petitioners for committing an offence and the Code of Criminal Procedure would apply. As I am bound by the above Division Bench Judgment of this Court the contention of Mr. Ghosal in this regard must be accepted. (6.) STILL then Mr. Ghosal cannot succeed on the question of limitation as I find that in the instant case cognizance was taken by the Rent Controller on December 24, 1976 when he received and entertained the Complaint of the opposite party. Mr. Ghosal however submitted that cognizance of an offence is taken when the complainant is examined under section 200 of the Code of Criminal Procedure and as in the instant case it is the Additional Rent Controller who examined the complainant on solemn affirmation on August 22, 1977 it must be held that the cognizance was taken on that date. In making this submission Mr. Ghosal relied upon the judgment of the Supreme Court in the case of Lakshminarayana Vs Narayana, reported in A. I. R. 1976 S. C. page 1672. I have carefully gone through the judgment and I find nothing therein which goes to support the contention of Mr. Ghosal that cognizance is taken when the complainant is examined under section 200 of the Code. I have carefully gone through the judgment and I find nothing therein which goes to support the contention of Mr. Ghosal that cognizance is taken when the complainant is examined under section 200 of the Code. On the contrary, the above decision reiterates the well settled principle of law that when on receiving a complaint the Magistrate applies his mind for the purpose of proceeding under section 200 and the succeeding sections in Chapter XV of the Code he is said to have been taken cognizance of the offence within the meaning of section 190 (1) (a) In other words, as soon as the learned Magistrate on receiving the complaint goes through the same and decides to proceed, in accordance with Chapter XV of the Code he takes cognizance of the offence. The cognizance therefore proceeds the examination of the complainant and his witnesses. An indicated earlier the Rent Controller received the complaint on December 24, 1976 and after perusing the same decided to proceed with the same. Subsequently, by his order dated July 27, 1977 he transferred the complaint to the Additional Rent Controller without examining the complainant or his witnesses under section 200 of the Code, which he was legally competent to do under section 192 (2) of the Code. As the cognizance was taken within time it is not required to be decided whether section 468 or the Code will have any application whatsoever in respect of a complaint under section 31 of the Act in view of the provisions of section 33 thereof. Mr. Ghosal next submitted that a complaint under section 31 of the Act can lie against the landlord only and not against any other person as the Act was brought on the statute book to regulate the relationship between the landlord and tenant only. While primarily the object of the statute is to protect the interest of the tenant vis-a-vis the landlord some of the provisions of the Act seek to protect the rights and privileges of a person, qua tenant, against the landlord or any other person who may intrude upon such rights and privileges. A cursory glance of the different provisions of the statute appearing in Chapter VII of the Act, which includes section 31, will make the position abundantly clear. A cursory glance of the different provisions of the statute appearing in Chapter VII of the Act, which includes section 31, will make the position abundantly clear. Section 31 envisages that whoever violates the provisions -thereof will be liable and does not confine the liability to the landlord alone. I am therefore unable to hold that section 31 does not provide for lodging a complaint Against any person other than the landlord. (7.) MR. Ghosal lastly contended that the complaint or the initial deposition of the complainant discloses only a bold allegation and that too against the petitioner No. 1 only and not against the other two. On perusal of the complaint and the deposition of the complainant I am unable to share the view of Mr. Ghosal. The complainant specifically alleges that all the three petitioners stopped the water supply on November 11, 1976 and that they were behaving in a most inhuman manner by keeping the open reservoir in the down stair dry so that the complainant could not get even a single drop of water. It has further been specifically alleged therein that on December 11, 1976 water supply was substantially reduced and on December 13 1976 water supply was completely stopped and since then there was no supply of water to the flat of the complainant. On going through the materials on record I am satisfied that there are sufficient materials for proceeding against the three petitioners. In view Of the above discussions, the application is rejected and the Rule is discharged. Rule discharged.