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Calcutta High Court · body

1991 DIGILAW 206 (CAL)

Gobinda Chandra Mondal v. Samarendra Nath Kundu

1991-04-19

J.N.HORE

body1991
Judgment 1. THE petitioner is the landlord and the opposite party is the tenant in respect of the first floor of the premises ho. 35, Paikpara Row at a monthly rent of Rs.275/ -. The petitioner instituted an ejectment suit against the O. P. tenant being T. S. No. 681 of 1976 in the 1st Court of Munsif at Sealdah. The tenant made an application under Section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act, 1956 and relying upon a decision of this court in P. K. Roy vs. Smt. Bimala Mukharjee, reportedin 1976 CHN 666, the learned Munsif held that because of deliberate stopage supply of water by the landlord the tenant was entitled to abatement of rent to the extent of rs. 60/- per month from November 1974 out of the monthly rent of Rs. 2 75/- and that the said abatements of monthly rent was to continue until restoration of the supply of water. The tenant opposite party made an application under section 31 of the West Bengal Premises Tenancy Act, 1956 before the learned Rent Controller Calcutta being R. C. Case No. 622 of 1974. During the pendency of the said proceeding the tenant opposite party also lodged a complaint against the petitioner-landlord under Section 430 I. P. C. before the learned Sub-Divisional Judicial Magistrate, Seal being Case No. C 730 of 1980 alleging the self-same offence of deliberate cutting off supply of stater. The petitioner was found not guilty and acquitted of the charge under Section 430 of the Indian Penal Code in the said complaint Case No. C-730 of 1980 under Section 430 I. P.C. In the R.C. Case NO. 622 of 1374 under Section 31 of the west Bengal Premises Tenancy Act, the petitioner was found not guilty and acquitted but the learned Rent Controller was pleased to direct the landlord to restore normal supply of water to the disputed premises within 15 days from the date of the order. In an execution proceeding of the order of the learned Rent Controller dated 27. 4. 87, the learned rent Controller by an order dated 12. 10. In an execution proceeding of the order of the learned Rent Controller dated 27. 4. 87, the learned rent Controller by an order dated 12. 10. 90 allowed the prayer of the presented O.P. for arrest and detention of the present petitioner in Civil prison and directed that Warrant of arrest would be issued upon deposit of subsistence allowance amounting to Rs.100/- by the present opposite party for detaining the present petitioner in Civil prison with the undertaking ho deposit further amount towards subs is intence allowance, if necessary., The orders dated 27. 4. 87 and 12. 10. 90 are subject matter of challenge in this revisional application. 2. MR. Ghosh, learned Advocate. for the petitioner has strongly contended that the landlord petitioner having been prosecuted and acquitted by the learned Magistrate of the charge under Section 430 I. P. C. by his order dated 9. 3. 85 in the complaint case No. C-730 of 1980 filed by the tenant opposite party, the subsequent trial of the petitioner under section 31 of the West Bengal [premises Tenancy Act is null and void being in violation of Article 20 (2) of the Constitution of India and consquently the direction for restoration of the water supply cannot be given effect to and, therefore, the impugned order dated 12. 10. 90 Mr. Bhattacharjee, the learned Advocate for the opposite party has raised a preliminary objection as to the maintainability of the present revisional application inasmuch as the present petitioner preferred a similar revisional application against the in putted orders being Criminal Revisional Case No. 1 753 of 1987 which was dismissed by this court and the present application amounts to review of the order passed in that case which is not permissible in view of the provisions of Section 352 of the Criminal Procedure code. He has further contended that the plea of "atrefois convict" or the plea of double jeopardy as incorporated in Article 20 (1) of the Constitution is not available to the petitioner inasmuch as he was acquitted and not punished in the previous criminal case; 3. LET me first consider the maintainabi1ity of the present revisional application. It appears that the petitioner challenged the order 27. 4. 87 passed by the Rent Controller in R. C. Case No. 662 of 1974 in previous revisional application being Criminal Revisional Case No. 1753 of 1987 which was dismissed by this court. LET me first consider the maintainabi1ity of the present revisional application. It appears that the petitioner challenged the order 27. 4. 87 passed by the Rent Controller in R. C. Case No. 662 of 1974 in previous revisional application being Criminal Revisional Case No. 1753 of 1987 which was dismissed by this court. The certified copy of the order has been filed. The decision has also been, reported in 1988 (1 CHN 288. In that case the main ground on which the impugned order was challenged is that unless the Rent Controller finds the landlord guilty for having caused interference with the supply or service been not pass an appropriate direction on the landlord in this regard. Repelling this contention the learned Judge has held as follows : "law is specifically clear on the point, Not only can the learned Rent Controller find the landlord guilty on account of causing interference with the supply of water or electricity but he can also direct restoration of supply of water or supply of electricity. Even if the learned Rent Controller has chosen to give a benefit of doubt to the present petitioner who is in the position of an accused in the enquiry, he had example powers under the law to direct restoration of supply of filtered water in favour of the tenant in the premises". It is true that the plea that the impugned order is violative of Article 20 (2) of the Constitution was not specifically taken in that case but the petitioner could have very well raised that plea in that revisional case. There should be finality to litigation. The plea which was available to the petitioner but was not taken in the earlier revisional application cannot be agitated in a subsequent revisional application. If the petitioner is allowed to file subsequent revisional application on a different ground available to him at the time of the hearing of the first revisional application in order to get rid of the order passed in the previous revisional case, there would be no end to litigation and the matter which was finally decided would be reopened on some pretext or another. In my opinion this would amount to review of the order passed in the previous revisional case which is strictly barred by Section 362 of the criminal Procedure Code. In my opinion this would amount to review of the order passed in the previous revisional case which is strictly barred by Section 362 of the criminal Procedure Code. It is true that in the context of changed circumstances a subsequent application for revision based on the changed circumstances may be maintainable. In that case it would not amount to review of the order passed in the first revisional application but in the instant case there is absolutely no change in the circumstances, the same impugned order remains. The execution proceeding is not a new circumstance. It is mere execution of the impugned order dated 27. 4. 87 directing the petitioner for restoration of normal supply of water. If that: order cannot be unchallenged the order in the execution proceeding which is a. consequential order cannot also be challenged. In the absence of any new circumstances the present revisional application is not maintainable. " 4. ASSUMING, however, that the present application is maintainable, I find no substance in the contention of Mr ghosh in order to invoke the protection of Article 20 (2)of the Constitution, there must have been a prosecution and punishment in respect of the same offence. In the case of Maqbool Hussain vs. State of Bombay, AIR 1953 SC 324 , the Supreme Court has held that Article 20 (2) of the Constitution incorporates within its scope the plea of "atrefoie convict" as known to the British jurisprudence or plea of double jeopardy known to the American Constitution but circumscribes it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. In the instant case the petitioner was acquitted and not punished in the criminal case under Section 430 I. P. C. Article 20 (2) has, therefore, no application in this case. Mr. Ghosh has referred to a decision of this court in Pulin Krishna Paul vs. Sishupati chakraborty and Anr., reported in AIR 1953 Cal. 85 . This decision is of no help to the petitioner inasmuch as it does not apply to the facts of the present case. Mr. Ghosh has referred to a decision of this court in Pulin Krishna Paul vs. Sishupati chakraborty and Anr., reported in AIR 1953 Cal. 85 . This decision is of no help to the petitioner inasmuch as it does not apply to the facts of the present case. In that case in a proceeding under Section 34 of the West Bengal Premises rent Control (Temporary provisions) Act, 1950, a landlord was fined by the Rent Controller for his illegal act of not allowing the tenant to use a privy and a water tap. Subsequently, the landlord was prosecuted in criminal court under Section 41 of the Act on the same facts and was convicted, it was held that Article 20 (2) of the Constitution of India was a bar to the [prosecution and punishment of the accused in the criminal court and, therefore, the conviction was illegal. In that case the landlord was prosecuted and punished under Section 34 of the West Bengal Premises Rent Control (Temporary provisions) Act, 1950 and, therefore, the subsequent prosecution and punishment of the accused under Section 41 on the same facts was violative of Article 20 (2) but as already stated, in the instant case there was no punishment of the petitioner in the case under section 430, Indian Penal Code. He has also been acquitted and not punished in the impugned proceeding under Section 31 of the West Bengal Premises Tenancy Act, 1956. The protection under Article 20 (2) is, therefore not available to the petitioner. Realising the difficulty, Mr. Ghosh has contended that the order of proportionate abatement of rent passed by the learned Munsif in the proceeding under Section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act, 1956 from November, 1974 till restoration of the supply of water is punishment within the scope of Article 20 (2) and as such the subsequent prosecution under Section 31 on the same facts is not maintainable. I find no substance in the contention. The order of abatement of rent was passed by the learned Munsif in a proceeding under Section 17 (2) and 17 (2a) in order to ascertain the actual arrear of rent. I find no substance in the contention. The order of abatement of rent was passed by the learned Munsif in a proceeding under Section 17 (2) and 17 (2a) in order to ascertain the actual arrear of rent. The proceeding under Section 17 (2) or 17 (2a) before the learned munsif can by no stretch of imagination be regarded as 'prosecution of the present petitioner of an offence and the order passed in that proceeding cannot be regarded as a 'punishment'. The order of proportionate abatement of rent as passed by the learned Munsif in a proceeding under Section 17 (2) and 17 (2a) for the purpose of determination of the arrear of rent to be deposited cannot be said to be a bar to the subsequent prosecution of the petitioner under section 31 of the West Bengal premises Tenancy Act. 5. THERE is thus no substance in the revisional application which is dismissed. Stay orders, if any, are vacated. Application rejected.