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2002 DIGILAW 297 (CAL)

SAKTI BANERJEE v. SWADESH ANGRISH

2002-05-03

GORACHAND DE

body2002
GORACHAND DE, J. ( 1 ) THE landlords Mr. Sakti Banerjee and sachindra Nath Banerjee have fifed the instant criminal revisional application under Section 397/482 of the Code of Criminal Procedure against their tenant Smt. Swadesh Angrfsh praying for setting aside the order dated 8th July 1997 passed in premises tenancy case No. 42 of 1997 passed by the learned Additional Rent Conteroller ,howrah along with the order dated 26th November, 1997 passed in Misc. Appeal No. 167 of 1997 by the learned District Judge, Howrah. ( 2 ) THE tenant filed a complaint case against the landlords under section 31 of the West Bengal Premises Tenancy Act, 1956 alleging that the landlords committed an offence within the meaning of that Section by disrupting and /or stopping regular supply of water in the tenanted premise. The Sub-Divisional Magistrate at Howrah, who was also entrusted with the power of Rent Controller at Howrah, look evidence of the complainant and thereafter, took congnizance of the offence under section 1901 (a) (1) of the Code of Criminal Procedure, directed immediate restoration of the water supply in the tenanted premises and thereafter, issued summons upon the landlords/o. P. s. ( 3 ) THE landlords challenged the said order in appeal before the learned district Judge, Howrah in Misc. Appeal No. 167 of 1997 and the learned district Judge by order dated 26. 11. 97 dismissed the Misc. Appeal after coming to the conclusion that the impugned order was not a final order and accordingly, no appeal is maintainable under the provision of Section 29 of the Act. By "the present revisional application the landlords have challenged both the orders as stated above. ( 4 ) MR. Haradhan Banerjee, learned counsel appearing on behalf of the landlords was fair enough to point out that the instant application under section 397/482 of the Code of Criminal Procedure should be treated as an application under Article 227 of the Constitution of India inasmuch as the learned Rent Controller whose order has been challenged in this proceeding is not a court and not an inferior Criminal Court within the meaning of the Code of Criminal Procedure. ( 5 ) SO the first point for consideration is whether the instant application should be treated as an application under Article 227 of the Constitution of India. ( 6 ) MR. ( 5 ) SO the first point for consideration is whether the instant application should be treated as an application under Article 227 of the Constitution of India. ( 6 ) MR. Banerjee, learned counsel for the petitioners referring to the decision of the Apex Court in Pepsi Foods Ltd. and Anr. vs. Special Judicial magistrate and Ors. , reported in 1997 (9) Supreme 279 , contended that if in a case the court finds that the appellant could not invoke its jurisdiction under Article 226 of the Constitution of India the Court can certainly treat the petition as one under Article 227 of the Constitution or under section 482 of the Code of Criminal Procedure. In the said decision a writ petition was filed under Article 226 of the Constitution praying for quashing of the complaint filed against the accused persons under Section 7/16 of the Prevention of Food Adulteration Act, 1954. In paragraph 20 of the said decision their Lordships took the view that nomenclature under which petition is filed is not quite relevant and that does not debar the 'court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. Their Lordships also viewed that though provisions exist in the Code as regards revision and appeal but sometimes for immediate relief Section 482 of the Code or Article 227 of the Constitution may have to be restored to for correcting some grave errors that might be committed by the Subordinate Courts. ( 7 ) OF course, the learned Rent Controller was not a Subordinate Court, not to speak of an inferior Criminal Court. In the case of B. Haider vs. P. M. Chakraborty, reported in AIR 1967 Calcutta 6, this court took the view that though the Rent Controller is not an inferior Criminal Court, but exercises criminal jurisdiction while dealing with the application under Section 31 of the West Bengal Premises Tenancy Act and hence, the order passed by the learned Rent, Controller is subject to the superintendence of the High Court under Article 227 of the Constitution of India. Accordingly, Mr. Accordingly, Mr. Banerjee submits that the instant application is to be treated as an application under Article 227 of the Constitution inasmuch as there is no other procedure in the West Bengal Premises tenancy Act to challenge the order passed by the learned Rent Controller before the Hon'ble High Court. ( 8 ) IN the case of Mathura Prosad Rqjgharia vs. Kanai Lal Mullick, reported in AIR 1968 Calcutta 170, an appeal was preferred under Section 417{3j of the Code of Civil Procedure against an order of the appellate authority under Section 29 of the West Bengal Premises Tenancy Act but this Court treated the said petition of appeal as one under Article 227 of the constitution of India and viewed that the learned Rent Controller was not a Court under the Code of Criminal Procedure. Actually in the matter of enquiry or trial in respect of an offence under the West Bengal Premises tenancy Art the Rent Controller does not convict or acquit the landlord or other persons acting under the landlords. Similar view was taken by this Court in K. Singh Deo vs. K. Sridharan. reported in 89 CWN 359. In this case as well as in Mat 1" urn Prosad Rajgharia (supra) it was found by this Court that the Rent Controller being a persona designate is not competent to take cognizance of the alleged offence as is done by a magistrate under the Code of Criminal Procedure. ( 9 ) MR. Banerjee, learned counsel for the petitioners has also placed reliance on another judgment of this court in the case of Gour Kishore das vs. Krishna Kumar Bose, reported in 1991 (2} Cal. L. T. 267, High Court in support of his contention that the Rent Controller's power of imposition of fine and the order of restoration of any supply or service depends upon the condition of his finding of wilful interference with supply or service by the landlords, and the learned Rent Controller can eome to such a finding only after regular enquiry on merits. So, Mr. Banerjee contends that wilful interference with the supply of service is a condition precedent for the purpose of imposition of fine. An order of restoration of supply of water as was done by the impugned order by the learned Rent Controller can only be passed after proper enquiry as regards wilful interference, by the landlords. So, Mr. Banerjee contends that wilful interference with the supply of service is a condition precedent for the purpose of imposition of fine. An order of restoration of supply of water as was done by the impugned order by the learned Rent Controller can only be passed after proper enquiry as regards wilful interference, by the landlords. ( 10 ) MR. Banerjee further argued that the word 'and* appearing before the words 'controller may order immediate restoration of any supply or service which has been interfered with' is conjunctive and not disjunctive. Hence, Mr. Banerjee concluded that without full fledged enquiry and without a full trial in respect of the alleged offence under Section 31 of the Act an ex parte interim order of immediate restoration of supply is not only irregular but also illegal. ( 11 ) MR. R. S. Chattopadhyay. learned counsel appearing on behalf of the opposite party-, however, placing reliance on the decisions in the ease of Mrinalini Ghosh and Ore. vs. Shibnath Bhadra, reported in 1980 (1) CLJ 86 and in the case of Gobinda Chandra Monded vs. Samarendra Nath Kundu. reported in 1988 (1) CHN 288 , argued that the Controller can take cognizance of an offence under Section 190 (l) (a) of the Code and can proceed in accordance with the provisions of the Code of Criminal procedure in view of Rule 10 (a) of the West Bengal Premises Tenancy rules, 1956. I deem it proper to reproduce the Rule 10 as hereunder: "procedure far enquiries. In making enquiries under the Act, the controller shall follow, as nearly as may be, the procedure laid down, (a) in the case of enquiries relating to offences, in the Code of criminal Procedure. 1908, for the trial of cases, and (b) in the case of all other enquiries, in the Code of Civil Procedure, 1908 for the trial of suits, recording a memorandum of the substance only of the evidence and the reasons for his findings as in the cases in which no appeal lies. ( 12 ) IT is clear from the said Rule that in making enquiries under the west Bengal Premises Tenancy Act the Rent. Controller shall follow "as nearly as may be" the procedure laid down in (he case of enquiry relating to offence, in the Code of Criminal Procedure, 1908 for the trial of the case. ( 12 ) IT is clear from the said Rule that in making enquiries under the west Bengal Premises Tenancy Act the Rent. Controller shall follow "as nearly as may be" the procedure laid down in (he case of enquiry relating to offence, in the Code of Criminal Procedure, 1908 for the trial of the case. The above mentioned two decisions cited by Mr. Chattopadhyay practically took into consideration the decision taken in the case of jhavermal Dudhwala vs. Gobind Ram, reported in AIR 1952 Calcutta 121. in which the question of quashing of proceeding initiated under Section 41 of the West Bengal Rent Control Act. 1950 was taken care of. In paragraph 5 of the said decision it was held that proceeding under Section 34 of the Act of 1950 cannot stand in the way of the proceeding of the criminal Cases and Section 403 of the Code has got no manner of application. But it has to be noted that Section 31 of the Act of 1950 is almost equivalent to Section 31 of 1956 Act excepting the last portion. ( 13 ) IN Section 34 of the Act of 1950 there was no provision of immediate restoration of any supply or service which was found to be interferred with. But in Section 31 of the 1956 Act the said provision has been included. It is also to be noted that under Section 44 of 1950 Act, the Rent Controller was authorised to award punishment with imprisonment for a term which may extend upto six months or with fine or with both. So the decision in jhavermal Dudhuwala (supra) considered that the Rent Controller had the power to pass sentence of imprisonment like a Magistrate. ( 14 ) IN Pulin Krishna Pal vs. Sishupati Chakrabarty, reported in AIR 1953 cal 85 , a Division Bench of this Court also duly considered the constitutionality of the double punishment vis-a-vis interpretation of article 20 (2) of the Constitution. In that case also it was viewed that the Controller was empowered under Section 41 of the Act of 1950 to award punishment by putting landlord into the jail. ( 15 ) BUT in the 1956 Act there is no provision like Section 41 of the act of 1950. In that case also it was viewed that the Controller was empowered under Section 41 of the Act of 1950 to award punishment by putting landlord into the jail. ( 15 ) BUT in the 1956 Act there is no provision like Section 41 of the act of 1950. The Division Bench of this Court in the case of Mayabati haider vs. Rent Controller, reported in 1981 (1) CLJ 133 , however examined the question and came to the finding that proceeding under Section 31 of the Act of 1956 is not a criminal proceeding and the Rent Controller does not convict a person. If the Rent Controller is satisfied about the commission of an offence he merely imposes a fine. So the view was taken that proceeding before the Rent Controller was in the nature of criminal proceeding i. e. quasi criminal proceeding. ( 16 ) THE said Division Bench judgment in Mayabati Haider's case (supra)was duly considered in the case of Gour Kishore Das (supra), but finding in this case that acquittal of the opposite party in a proceeding under section 31 of the West Bengal Premises Tenancy Act is to be given under the provision of Section 256 of the Code of Criminal Procedure runs counter to the judgment of the Division Bench in Mayabati Haider's case (supra ). ( 17 ) MR. R. S. Chattopadhyay, learned counsel for the O. P. submits relying on the judgment of the Byan Behari Bose and Ors. , reported in 1996 (2) CLT 460, that the order of giving immediate restoration of supply is not dependent on the enquiry as regards fine. It is also argued that the word 'and. as appearing in Section 31 is to be construed as disjunctive. It appears from the said judgment that the learned Single Judge of this court while exercising power under Article- 227 of the Constitution at the time of admission hearing, ordered restoration of water supply. But it is to be noted that in the said decision it was neither argued nor considered as to whether the word 'and under Section 31 of the Act was disjunctive or conjunctive, and accordingly the said decision cannot be treated as an authority on the question arising in this case. But it is to be noted that in the said decision it was neither argued nor considered as to whether the word 'and under Section 31 of the Act was disjunctive or conjunctive, and accordingly the said decision cannot be treated as an authority on the question arising in this case. In the present case the principal question is whether the Rent Controller can take cognizance under Section 190 (1) (a) of the Code of Criminal Procedure and whether he can order immediate restoration of supply or service without making any enquiry under Section 31. The decision in Gour kishore Das (supera) squarely applies on the point and a. s such, the judgment passed in Bijan Behari Boses case (supra) is distinguishable not only on the proposition of law but also on facts. ( 18 ) MR. Chattopadhyay, learned counsel for the O. P. also argued that under Section 31 of the Act of 1956 the Rent Controller at the time of issuing process was competent to order immediate restoration of any supply or service. In support of his argument he has contended that there is no provision in the Act which can give immediate relief to a tenant in respect of disruption of any essential supply or service and as such, legislatures in their wisdom added the portion "and the Controller may order immediate restoration of any supply or service which has been interfered with" towards the end off Section 31 which is almost same of section 34 of 1950 Act excepting the added portion. So it is argued that such inclusion in Section 31 was wilful and with a purpose for giving immediate relies to the tenant. So the learned counsel contended that there is no reason to interfere with the order parsed by the Rent controller or by the learned District Judge sitting in appeal. ' ( 19 ) MR. Banerjee, learned counsel for the petitioners rightly replied on this score pointing out that in Gour Kishore Das's case this court has taken the view that the order of restoration of service is permissible only after proper enquiry under Section 31. If after enquiry the Rent controller finds that there was necessity to impose fine, then and then only an order of restoration of service can be passed. It is also rightly pointed out that the word 'may' in this portion indicates that it is not mandatory. If after enquiry the Rent controller finds that there was necessity to impose fine, then and then only an order of restoration of service can be passed. It is also rightly pointed out that the word 'may' in this portion indicates that it is not mandatory. ( 20 ) MR. Banerjee further argued that for getting immediate relief there are other provisions in the Act, namely Sections 34 and 35. ( 21 ) IT is true that the portion as quoted: hereinbefore was added to the last portion of Section 31 of the Act of 1956, but at the same time it is to be noted that provision of giving punishment of imprisonment as was permissible under the Act 1950 has been omitted and consistent view of this court is that the Rent Controller is neither an inferior criminal court nor a Magistrate nor a court. The Rent Controller is merely a persona designate. In the Act of 1950 the Rent Controller used to exercise Magisterial power and he was authorised to impose imprisonment. but at the risk of repetition, it is to be stated that in (he Act of 1956 there is no such provision and is such while dealing with a complaint , under Section 31 of the Act the Rent' Controller under Rule 10 (a) is to follow the procedure laid down under the Criminal Procedure Code as nearly as may be. It appears from the impugned order that the Rent controller like the Magistrate took cognizance under Section 190{l){a) of the Code which he was riot competent to do. But being a persona designata the Rent Controller is competent to take cognizance in the case with regard to enquiry relating to an offence following the procedure as nearly as may be in the Code of Criminal Procedure. So taking of cognizance being permissible in law, I do nbt find any reason to interfere with the taking of cognizance in this case. But it is made clear that taking of the said cognizance is not under Section 190 (1) (a) of the Code of Criminal procedure. It is simply taking of cognizance following the procedure of the Code of Criminal Procedure as nearly as may be. So I do not find any reason to interfere with that part of the impugned order. But it is made clear that taking of the said cognizance is not under Section 190 (1) (a) of the Code of Criminal procedure. It is simply taking of cognizance following the procedure of the Code of Criminal Procedure as nearly as may be. So I do not find any reason to interfere with that part of the impugned order. ( 22 ) BUT as regards second part of the impugned order I am of the view that the Rent Controller was incompetent to make any order of immediate restoration of supply of water without making any enquiry as envisaged under Section 31 of the Act. If the argument of Mr. Chattopadhyay, learned counsel for the O. P. , is accepted then there will arise certain situation which is not contemplated in the Act itself. If the contention of Mr. Chattopadhyay is accepted then immediately after filing of the complaint the Rent Controller can pass an order of restoration of supply, and immediately on getting restoration of supply the complainant has a chance not to proceed with the case and in that event the Rent Controller at the time of dismissal of the complaint shall be precluded from ordering disconnection of the supply. To my mind such a situation is not contemplated in the scheme of the Act. For immediate restoration of supply the Legislatures in their wisdom codified Sections 35 and 34 of the Act and as such, the provision of Section 31 for immediate restoration of supply is not permissible under the Law. ( 23 ) THIS question can also be discussed from another angle. Under section 31 a proceeding can be started on the basis of a 'complaint'. But under Sections 34 and 35 such proceeding can be started on the basis of an 'application'. Under Section 35 itself there is provision on the basis of which the Controller is competent to make "immediate enquiry" and thereafter, to direct the tenant to undertake proper steps within the time. limit. it is a sedule principle of law that without proper enquiry and without giving the opposite party an opportunity of being heard an order like restoration of supply should not be passed. limit. it is a sedule principle of law that without proper enquiry and without giving the opposite party an opportunity of being heard an order like restoration of supply should not be passed. At least in the Act of 1956 there is no provision ,of passing an ex parte interim order for restoration of supply without giving any notice and without giving an opportunity to the landlord of being heard. ( 24 ) THE Rent Controller under Section 31 of the Act is competent to pass an order of immediate "restoration of supply or service if after enquiry he finds that service has been interfered with, and the said order of restoration can only be passed as soon as the fine is imposed on the basis of enquiry made under Section 31 of the Act. Section 31 of the act is a penal provision for the purpose of imposition of fine and also for giving consequential relief by way of ordering restoration of supply or service and I respectfully agree with, the decision taken by this Court in Gour Kishore Das's case (supra ). ( 25 ) SO in view of the" discussion hereinbefore made and keeping in view the circumstances, I come to the conclusion that the impugned order of restoration of water supply is bad in law and it is liable to be set aside. In this connection it is also to be noted that the appellate court failed to consider that the order of restoration of supply was actually in therefore of final order and as such he was competent to interfere with the order treating the order to have been passed under Section 29 of the Act. The finding of the learned District Judge is accordingly bad in law and is also liable to be set aside. ( 26 ) SO on the basis, of the power envisaged under Articale 227 of the constitution. I deem it proper to allow the present application after setting aside the impugened order dated 26tb November, 1997 passed by learned district-Judge, Howrah to Misc. Appeal No. 167/97 and the order dated 8th July, 1997 passed far Premises Tenancy Case No. 42/97 so Jar as those relate to the restoration of water supply to the tenanted portion as well as taking of cognizance under Section 190 (A) (1) of the Code of criminal Procedure. Appeal No. 167/97 and the order dated 8th July, 1997 passed far Premises Tenancy Case No. 42/97 so Jar as those relate to the restoration of water supply to the tenanted portion as well as taking of cognizance under Section 190 (A) (1) of the Code of criminal Procedure. It is made clear that the Rent Controller shall be at liberty to proceed with the proceeding under Section 31 on the basis of cognizance taken in the manner indicated and clarified hereinabove. The interim order passed by this court is made absolute to this extent. ( 27 ) SINCE the matter is "long pending and relates to a complaint as regards stoppage of essential service like water, the Rent Controller is directed to dispose of the matter expeditiously. ( 28 ) LET a copy of this order 'be sent down to the learned Rent Controller forthwith. Appeal alllowed with direction.