Lall Krishna Mundra vs Fatick Chandra Hazra and Others

In all these Civil Revision cases a common question of law has arisen. The contention on behalf of the Petitioners is that chap. VIII of the Presidency Small Cause Courts Act of 1882 violates the provisions of Article 14 of the Constitution. This is the chapter on "Distresses". We shall deal with the relevant provisions of this chapter at the appropriate time. It is common case that a landlord within the limits of the Ordinary Original Civil Jurisdiction of this Court can either levy ''distress'' or proceed by way of a suit in the Presidency Small Cause Court provided that the rent sought to be recovered is not for more than twelve months. The argument on behalf of the Petitioners is that the two choices available to a landlord are discriminatory. The landlord at his sole discretion may proceed under chap. VIII against one tenant and may file a suit against another tenant. In other words, the selection lies wholly with the landlord as to whether he would file a suit or levy a ''distress''. Secondly, the Act does not prescribe or give any guidance as to how and when the option or selection is to be exercised. Thirdly, the procedure for ''distress'' is more onerous than the procedure in a suit. And if there is an ordinary remedy by virture of the ordinary law of the land and also a more drastic remedy, e.g. by way of ''distress'', the latter should be struck down. Learned Advocates for the Petitioners elaborating their arguments further submit that, so far as arrears of rent for one year or less than one year are concerned, a suit lies in the Small Cause Court under Sections 17 and 18 of the Act. In a suit a tenant has ample time to pay up his dues. He can file a written statement. He has also the right to a new trial u/s 38 which is more or less by way of appeal. He can ask for payment by installments by reason of Rule 7 in chap, XX of the Rules of Practice of the Calcutta Small Cause Court. But these facilities are not available to him in the procedure of ''distress''. On the contrary, under chap. VIII of the Presidency Small Cause Courts Act the opposite party can defend only by depositing the bailiff''s costs. He has no say in the matter before attachment and seizure of goods. That procedure being onerous should, therefore, be struck down.

In support of these contentions reliance was placed on a Special Bench''s judgment in S.M. Nawab Ariff Vs. Corporation of Calcutta and Others, The Special Bench was invited, inter alia, to test the validity of some of the section of the Calcutta Municipal Act. In Section 251 of this Act it was provided:

Instead of the Commissioner proceeding against a defaulter under the foregoing provisions of this chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success, it shall be competent for the Corporation to recover from him by suit in any Court of competent jurisdiction, any sum due or the balance of any sum due, as the case may be, on account of the consolidated rate, together with all costs.

''The foregoing provisions'' referred to in Section 251 were provisions relating to ''distress'' which the Commissioner could levy for arrears of consolidated rates. The position, therefore, was that under the Municipal Act for recovery of consolidated rates, either the Corntuissioner himself could levy a ''distress'' or the Corporation could institute a suit in a Court of competent jurisdiction. The Special Bench was of opinion that there was no scope for reading in Section 251 any principle or pojicy for guidance of the exercise of the discretion by the authorities in the matter of selection or classification in view of the very clear words used by the Legislature in the phrase Instead of the Commissioner proceeding against a defaulter under the provisions of this chapter, or after a defaulter has been so proceeded against unsuccessfully or with only partial success.

It was further observed that the Act did not contain any reasonable classification of cases wherethe procedure by issue of ''distress'' warrant was to be followed and cases where the procedure by way of suit was to be adopted.

This case does not assist us in deciding the matter in issue in the present application. The provisions of the Presidency Small Cause Courts Act are different. No doubt, the landlord can either proceed under chap. VIII or institute a suit. But the landlord himself lias no right or authority to levy the ''distress''. His application for ''distress'', as we shall see later, is to be placed either before a Judge or before the Registrar of the Court who has the discretion either to allow or refuse the application.

Incidentally, after this Special Bench''s judgment cited above, by Section 2(1) of the Calcutta Municipal (Amendment) Act, 1960, the clause in Section 251 to which the Special Bench took objection was amended. It has been substituted by the words

after a defaulter has been proceeded against under the foregoing provisions of this chapter.

The next case cited on behalf of the Petitioners is the case of Rajendra Prosad Singh Vs. Union of India (UOI) and Others, . This is also a Special Bench judgment. Sections 4 and 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, were challangcd before the Special Bench. The scheme of the Act was that an estate officer who was to be a gazetted officer had to be appointed by Gover-ment and

if after considering the cause shown the estate officer was of opinion that the public premises was in unauthorised occupation, the estate officer may make an order for eviction. (Vide Section 5)

It was found that in addition to this remedy Government had also the power to institute suits. The Special Bench struck down the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, as violative of Article 14 of the Constitution.

This case is also distinguishable from the case we are dealing with. In the Act which the Special Bench was considering, the estate officer himself was the authority to make the order for eviction. In our case, the Judge or the Registrar is the final authority and the landlord can only invite them to issue a ''distress'' warrant.

It would be relevant at this stage to consider some of the provisions of the Presidency Small Cause Courts Act, 1882. Section 18 provides for the suits in which the Court has jurisdiction. The provisions are more ''or less the same as in el. 12 of the Letters Patent or Section 20 of the CPC except that suit is of a civil nature when the amount or value of a subject-matter does not exceed Rs. 5,000 can be tried by this Court. Section 24 provides that the Defendant would have no right to file a written statement except in the case of a set-off. This shows that the Court of Small Causes was not meant to be a Court for regular trials of suits. Subsequently, however, the provisions of the CPC have been made applicable to it.

Now, we come to Section 50 of chap. VIII which is the first section in this chapter. It says that--

This chapter extends to every place within the local limits of the Ordinary Original Civil Jurisdictions of the High Courts of Judicature at Fort William, Madras and Bombay. But nothing contained in this chapter applies

(a) to any rent due to Government;

(b) to any rent which has been due for more than twelve months before the application mentioned in Section 53.

This section, therefore, lays down that the procedure of ''distress'' cannot be availed of by the Government. Secondly, not more than twelve months'' rent can be claimed in a ''distress'' proceeding. If rent is allowed to be in arrears for more than twelve months a landlord cannot take the advantage of chap. VIII. Broadly speaking, therefore, the object of chap. VIII is to provide for a short, simple and summary procedure for rent claims for a maximum period of one year within the Ordinary Original Civil Jurisdiction of this Court. And simply because a ''distress'' warrant is issued ex parte, it cannot be said that the proceedings are onerous. Ex parte prohibitory orders can be obtained in all suits and proceedings. The scheme of chap. VIII is a combination of a suit and an execution proceeding. It aims at shortening of litigation in cases of undisputed claims. From this point Of view it may be said to be less expensive and less onerous. There are similar provisions in chap. XIII of our Original Side Rules, It provides for a summary procedure in suits to recover debts or other liquidated demands or for immoveable property. Here also no written statement can be filed unless a triable issue is raised. The Defendant does not get the opportunity of prolonging litigation where the claim cannot be disputed.

The CPC prescribes a similar procedure in Order 37. In this order also there is no scope for filing a written statement without the, leave of Court. It has now been extended to many of the High Courts in India. There is no right to cross-examine, no right to fight upto the trial or to prolong litigation.

It is well-settled that no citizen can claim that the same procedure should be applicable to him in respect of all disputes in Courts of law. In other words, there is no vested right in any procedure except that the same procedure must be made available to all who come within its ambit. Looking at chap. VIII of the Presidency Small Cause Courts Act it seems to us that it was meant for, generally speaking,. small claims when there can be no dispute as to their quantum.

We now come to Section 53 in chap. VIII. It runs thus:

Any person claiming to be entitled to arrears of rent of any house or premises to which this chapter extends, or his duly constituted Attorney may apply to any Judge of the Small Cause Court or to the Registrar of the Small Cause Court for such warrant as is hereinafter mentioned.

The application shall be supported by an affidavit or affirmation to the effect of the form (marked ''A'') in the third schedule hereto annexed.

The form in the third schedule marked ''A'' is as follows:

Forms ''A'' (See Section 53) In the Small Cause Court for A.B. (Plaintiff) versus C.D. (Defendant)

A. B. of_________________in the town of______________maketh oath (or affirms) and saith that C.D.__________________of_____________________is justly indebted to____________________in the sum of Rs._________for arrears of rent, of the house and premises No. ___________situated at_____________in the town of________________due for_____________ months, to wit, from-___________to_________at the rate of Rs.__________per mensem.

Sworn (or affirmed) before me--them day of 188.

judge (or Registrar)

These provisions show that the Applicant has to pledge his'' oath on an affidavit before Judge of Registrar. Such a procedure is not indicative of an arbitrary exercise of power. In a plaint there is no sworn testimony or solemn affirmation. But the application for ''distress'' being a sworn statement constitutes written evidence in support of the Plaintiff''s claim.

Next we come to Section 54 which is as follows:

The Judge or Registrar may thereupon issue a warrant under his hand and seal and returnable within six days to the effect of the form (marked ''B'') contained in the same schedule, addressed to any one of such bailiffs.

The Judge or Registrar may at his discretion, upon personal examination of the person applying for such warrant, decline to issue the same.

The form marked ''B'' in the third schedule reads thus:

B (See Section 54) In the Small Cause Court for Form of warrant

(Signed and sealed)

To E.F. Bailiff and Appraiser.

These are important provisions. The Judge has to be satisfied as to whether a case for ''distress'' has been made out. He is empowered even to examine the Applicant personally for such satisfaction. If he is not satisfied, he may refuse to issue a, warrant. In other words, he is required to apply his mind judicially, and once power is given to the judiciary it goes outside the realm of arbitrary power. Reference, incidentally, may be made to. the Superme Court''s decision in Budhan Choudhry and Others Vs. The State of Bihar, . It has been observed:

...the discretion of judicial officers is not arbitrary and the law provides for revision by superior Courts of orders passed by the Subordinate Courts. In such circumstances, there is hardly any ground for apprehending any capricious discretion of judicial tribunals.

We also refer to the Supreme Court''s decision in Sahibzada Saiyed Muhammed Amirabbas Abbasi and Others Vs. The State of Madhya Bharat and Others, . Shah J. speaking for the Supreme Court, has observed that denial of equality before the law or equal protection of laws can be claimed against executive or legislative process but not against the decrsion of a competent Tribunal., The remedy of a person aggrieved by the decision of a competent judicial Tribunal is to approach for redress the superior Tribunal if there, is one.

The relevance of these two decisions for our purposes is that since Section 54 authorises the Judge or Registrar to issue the warrant at his discretion, the provisions in chap. VIII are not violative of Article 14. They do not confer arbitrary or naked powers to any executive authority or to any individual as such. The order that is passed is a judicial order and the Judge or Registrar has power cither to make it or to refuse it.

We now come to Section 60. It is as follows:

The debtor or any other person alleging himself to be the owner of any property seized under this chapter, or the duly constituted Attorney of such debtor or other person, may at any time within five days from such seizure apply to any Judge of the said Court to discharge or suspend the warrant, or to release a distrained article, and such Judge may discharge or suspend such warrant or release such article, accordingly, upon such terms as he thinks just,

and any of the Judges of the said Court may in his discretion give reasonable time to the debtor to pay the rent due from him.

Upon any such application, the costs attending it and attending the issue and execution of the warrant shall be in the discretion of the Judge and shall be paid as he directs.

This is another important section which requires careful consideration. The debtor may apply for discharge or suspension of the warrant or for release of the distrained article and the Judge has the discretion to make any of these orders upon such terms as he thinks just. He may also give him reasonable time to make payment. These provisions, therefore, show that, firstly, the ''distress'' proceeding is not ex parte upto the end ; secondly, if a person is really aggrieved he gets the protection of Section 60; thirdly, if nothing is due as rent or if the person concerned is not a tenant at all, he can put forward his entire defence; and fourthly, the Judge is again required to apply his judicial mind. He has to go into the entire defence and come to a final decision.

Moreover, a Judge u/s 60 enjoys practically the same power as a Judge dealing with an ordinary rent suit. The Judge hearing an application u/s 60 may at his discretion give to the debtor reasonable time to pay the rent due from him. A Judge trying a rent suit has also similar powers under Order 20, Rule 11 of the CPC which provides as follows:

Where and insofar as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree, order that payment of the amount decreed shall be postponed....notwithstanding contained in the contract under which the money is payable.

Then we come to Section 61 which runs thus:

If any claim is made to, or in respect of, any property seized under this chapter, or in respect of the proceeds or value thereof, any person not being the debtor, the Registrar of the Small Cause Court, upon the application of the bailiff, who seized the property, may issue a summons calling before the Court the claimant and the person who obtained the warrant.

And thereupon any suit which may have been brought in the High Court in respect of such claim shall be stayed; and any Judge of the High Court on the proof of the issue of such summons and that the property was so distrained, may order the Plaintiff to pay the costs of all proceedings in such suit after the issue of such summons,

And a Judge of the Small Cause Court shall adjudicate upon such claim and make such order between the parties in respect thereof and of the costs of the proceedings as he thinks fit,

and such order shall be enforced as if is were an order made in a suit brought in such Court.

The procedure in Small Cause Courts in cases under this section shall conform, as far as may be, to the procedure in an ordinary suit in such Courts.

This section enables the strangers whose goods have been distrained to come to the Court and establish their claim to the goods. It is a kind of pro interso suo proceeding which eliminates the possibilities of goods of third parties being subjected to ''distress''.

Then Section 62 provides thus:

In any case u/s 60 or Section 61 the Judge, by whom the case is heard may award such compensation by way of damages'' to the Applicant or claimant (as the case may be) as the Judge thinks fit,

and may for that purpose make any enquiry he thinks necessary,, and the order of the Judge awarding or refusing such compensation shall bar any suit for the recovery of compensation for any damage caused by the distress.

The provision for compensation in this section is a safeguard against landlords who may be inclined to launch harassing proceedings in ''distress''. The landlord in such cases may have to pay compensation for the damage caused to the tenant. In other words, this is a safeguard against a landlord wrongfully obtaining an ex parte order for ''distress''.

Let us now take up Section 63 which provides for transfer to the High Court of cases involving more than one thousand rupees. The section runs thus:

In any case u/s 60 or Section 61, if the value of the subject-matter in dispute exceeds one thousand rupees, the Applicant or the claimant may apply to the High Court to transfer the case to itself and the High Court, on being satisfied that it is expedient that the case should be disposed of by itself, may direct the case to be transferred accordingly, arid may thereupon alter or set aside any order passed in the case by a Judge of the Small Cause Court and may make such order therein as the High Court thinks fit.

Every application under this section shall be made within seven days from the date of the seizure of the subject-matter in dispute.

In granting applications under this section, the High Court may impose such terms as to payment of, or giving security for, costs or otherwise as it thinks fit.

The procedure in cases transferred under this section shall conform, as far as may be, to the procedure in suits before the High Court in the exercise of its Ordinary Original Civil Jurisdiction, and orders made under this section may be executed as if they were made in the exercise of such jurisdiction,

and every such order awarding or refusing compensation shall bar any suit for the. recovery of compensation for any damage caused by the distress which gave'' rise to the case wherein such order was made.

This section, however, has been altered after the jurisdiction of the Original Side of this Court was taken over, to a great extent by the City Civil Court.

The powers under this section are now enjoyed by a Judge of the City Civil Court. But, it shows that claims involving large amounts and other complexities may be transferred to a higher Court for being dealt with in accordance with the ordinary procedure for suits.

We have, in the foregoing paragraphs, analysed some of the relevant provisions of chap. VIII of'' the Presidency Small Cause Courts Act principally with a view to see whether there is any scope for naked and arbitrary use of power without any guidelines. Our conclusion is that under this chapter, far from any arbitrary exercise of power, the landlord is not even permitted to act mala fide as he would be liable for compensation for damage caused to his tenant by the ''distress''.

The Calcutta High Court in Bhola Singh and Others Vs. Gosto Behari Sarkar, reviewed some of the provisions of the Act including those of chap. VIII and deduced therefrom three broad propositions. These propositions are: (i) that the Court is essentially a summary Court trying ''small causes'', (ii) that no regular suit for the recovery of immovable property which raises primarily questions of disputed title can be entertained by the Small Cause Court, and (iii) that the ''distress'' procedure in chap. VIII cannot deal with complicated questions of title when regular suits for the same cannot be entertained. this Court has observed further that-

The Small Cause Court procedure for ''distress'' under Chapter VIII of the Presidency Small Cause Courts Act is a summary remedy by which a person seeks an instantaneous redress to take into his possession the moveables of any person to be held as almost a pledge to compel the performance of the satisfaction of a debt, but the debt must be a debt and not a mere pretence to cover controversial questions of title. This distress warrant or, its procedure is not a suit. It is a summary procedure because it starts ex parte on a mere sworn affidavit on a form which only asserts as its foundation a debt. Because it is ex parte in the first instance, it is all the more essential for the Court to examine the objections when they are made.

The summary procedure, says the learned Judge, is not, however, open when the matter involves highly complex questions of title etc.

To sum up, therefore, chap. VIII of the Presidency Small Cause Courts Act provides for a short and simple procedure for small and undisputed cases which need not be subjected to a prolonged trial. The remedy is available to a landlord who is prepared to pledge his oath to state (a) that the opposite party is his tenant, (b) that the opposite party is indebted to him in a specified sum, ((.) that this sum is due for arrears of rent in respect of the premises which the opposite party occupies under him, and (d) the period during which the arrears have accumulated does not exceed twelve months. ''

On these facts, we are not inclined to agree with the counsel for the Petitioners that chap. VIII confers arbitrary powers without any guidelines. We have, further, to observe that the entire exercise of power under chap. VIII is liable to be tested either u/s 115 of the CPC or under Article 227 of the Constitution.

There is, however, no doubt that chap. VIII introduces a classification. By reason of chap. VIII tenants who are in arrears for one year or less can be proceeded against either by way of ''distress'' or by a regular suit. But tenants whose arrears are of more than a year can be proceeded against only by a suit. The point whether such classification is justifiable in Article 14 of the Constitution.

Article 14 of the Constitution has been construed in numerous decisions of the High Courts as well as the Supreme Court. Before we refer to any of these decisions, we may recapitulate what Holmes J. said in Bain Peanut Company v. Pinsori 75 Law. Ed. 482 (489). The celebrated Judge observed:

... We must remember that a machinery of Government would not work if it were not allowed a little play in its joints.

This view was repeated in. Jack T. Skinner v. State of Oklahoma 86 Law. Ed. 1655. It lias been held that a statute need not, in order to meet the requirements of equal protection, provide for abstract symmetry in its legislation, but it may mark and set apart the classes and types of problems according to the needs as directed or suggested by experience.

Our Courts also have taken a similar view on the equal protection clause. The Courts do not insist on mathematical niceties or perfect equality for the purpose of equal treatment. The decisions of our Courts broadly lay down the following propositions:

(1) Article 14 applies both to substantive law and procedural law.

(2) Equal protection of law does not mean that the powers, jurisdiction and procedures of all Courts must be the same.

(3) The Legislature can make reasonable classification. In order, however, to pass the test of reasonable or permissible classification two conditions must be fulfilled, namely, (a) that the classifications must be founded on an intelligible diffierentia which distinguishes persons or things that are grouped together from others, things that are grouped together from others left out of the ground and "(b) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.

(4) The classification permissible under Article 14 may be founded on different bases, namely, geographical or, according to the jobs or occupations or the like.

(5) Article 14 means that persons similarly circumstanced or situated as amongst themselves must enjoy equal protection.

(6) The Legislature is the best judge of the needs of the. people in a given situation and other circumstances for making reasonable classifications.

(7) A law applying to even one person or one class of persons is constitutional if there is sufficient basis or reason for it.

We need not discuss individually the cases that lay down the above propositions, but reference may be made to the following decisions: Kathi Raning Rawat Vs. The State of Saurashtra, , Suraj Mall Mohta and Co. Vs. A.V. Visvanatha Sastri and Another, , Shree Meenakshi Mills Ltd., Madurai Vs. Sri A.V. Visvanatha Sastri and Another, , Amarendra Nath Roy Chowdhury Vs. Bikash Chandra Ghose and Another, , Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, , Lachhman Das on Behalf of Firm Tilak Ram Ram Bux Vs. State of Punjab and Others, , Prabitra Kumar Bannerji Vs. The State of West Bengal, , State of Madhya Pradesh Vs. Bhopal Sugar Industries Ltd., ,. Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, and Dantuluri Ram Raju and Others Vs. State of Andhra Pradesh and Another,

In the context of the well-settled principles governing Article 14 we find that the object of chap. VIII of the Presidency Small Cause Courts Act, 1882, is to provide, as we have said, a short, simple and summary procedure for rent claims of small amounts within the Ordinary Original Civil Jurisdiction of this Court, which is the - oldest part of the city and is essentially a commercial area humming with population and with a perpetual scarcity of accommodation for a fairly long time. It is not difficult, therefore, either to determine the intelligible differentia or the nexus between the differentia and the Object sought to be achieved. Small undisputed claims in the busiest pal of the city have been treated as a class by themselves and the object is. to provide for an expeditious procedure for recovery of such claims.

This leads us to the second objection on behalf of the Petitioners. The objection is that the area within the Ordinary Original Civil Jurisdiction of the High Court has been treated differently from the area outside this jurisdiction. It has been urged that when chap. VIII was introduced, there might have been a necessity for extending special treatment to the former area, but with the passage of time that necessity has disappeared. The area outside the original jurisdiction is now fully developed and the line of demarcation orginally drawn has outlived its utility. In support of these propositions three decisions were relied on. They are The State of Rajasthan Vs. Rao Manohar Singhji, , Jia Lal Vs. The Delhi Administration, and State of Madhya Pradesh v. Bhopal Sugar Industries Ltd. (Supra).

It is not disputed that if a geographical demarcation has outlived its utility, a legislation based on such demarcations would be hit by Article 14. But, .once it is conceded that, in 1882, there was some difference between Calcutta within the Ordinary Original Civil Jurisdiction of the High Court and Calcutta outside that jurisdiction, we cannot say that that difference has now altogether been obliterated. The change in the circumstances outside Calcutta does not mean that Calcutta has not changed. Broadly speaking, it is common knowledge that trade, commerce and business including foreign trade are more concentrated in the area within the Ordinary Original Civil Jurisdiction than in the area outside that jurisdiction. From this point of view, the geographical classification, in the instant case, appears to be permissible. Undisputed petty cases for rent within the Original Jurisdiction have been grouped together and an additional provision has been made for them for speedy recovery.

There are many decisions which have upheld geographical classification. We would discuss a few of them in details and refer to a few others.

In Bhaiyalal Shukla Vs. State of Madhya Pradesh, geographical classifications based on historical reasons have been upheld.

In Re: B.N. Ramakrishna Naidu and Another, the Madras City Police Act, 1888, particularly Section 65 thereof, was held to be intra vires Article 14. The Madras High Court says that the provisions of the Madras City Police Act, 1882, came into existence as a result of the factual background and trie Legislature had to make a distinction between the Police Act intended purely for an urban area like the city of Madras which was the only big town then and the mofussil. The town, while growing on the commercial side, was on account of its attracting adventures and a large floating population, developing fast in the criminal side also. The facilities for detection in small places where everyone is known to the other could not''exist in a cosmopolitan place. And the usefulness of the relevant provisions of the Act did not diminish with the passage of time and had not in any way become objectionable or discriminating.

In Mohamed Zackeria, firm Vs. V. Srinivas and Co. and Another, it was urged that under Clause (e) of Section 9 of the Presidency Towns Insolvency Act, it was sufficient cause for adjudicating a person insolvent if his property remained under attachment for a period of 21 days, whereas u/s 6(e) of the Provincial Insolvency Act the attached property of the debtor had to be sold in execution of a decree for the payment of money before the transaction could be considered to be an act of insolvency and that this would amount to discrimination and a denial of equality before the law and the benefit of equality before the law and the benefit of equal laws to persons residing in or carrying on business within the presidency towns.

The Madras High Court overruled this contention on the ground that persons outside the presidency towns live and trade and buy and sell under conditions very different. The distinction between the provisions, says the'' Madras High Court, is therefore one which can be traced to a rational and reasonable classification. To our mind, similar principles apply to the area within the Original Jurisdiction of the High Court.

In State of Nagaland Vs. Ratan Singh, etc., it has been observed:

It is not discrimination to administer different laws in different areas. The presidency towns have got special procedures which do not obtain in the other areas. We have known of trial by jury in one part of India for. an offence which was not so triable in another. Similarly, what is an offence in one part of India is not an offence in another. Regional differences do not necessarily connote discrimination and laws may be designed for effective justice in different ways in different parts of India if people are not similarly circumstanced. These backward tracts are not found suitable for the application of the Code of Criminal Procedure in all its rigour and technicality, and to say that they shall be governed, not by the technical rules of the Code; but by the substance of such rules is not to discriminate this area against the rest of India.

These decisions establish that geographical differentiations or clasaifications are permissible for historical reasons, for necessities of trade and commerce, on account of the tempo and complexities of life and various other reasons. References may be made in this connection, a part from the cases cited above, to Budhan Choudhry v. State of Bihar ( Supra), Shri Ram Prasad (Deceased) by his Legal Representative Vs. The State of Punjab, and Purshottam Govindji Halai v. Shree B.M. Desai AIR 1955 S.C. 20 There is also an observation in Natabar Jana Vs. State and Another, that the law recognizes reasonable classification and special laws may be made for special areas or for special classes. It is observed further that in the presidency town of Calcutta there is a special law not only in respect of investigation but also in respect of many other matters, for example, administration of civil law by the Original Side of the High Court and the administration of criminal law by the Presidency Magistrates and so on. Accordingly, says this Court, it cannot be said that special provisions for investigation applicable to the presidency town of Calcutta constituted a contravention of Article 14.

Applying these principles to chap: VIII of the Presidency Small Cause Courts Act, 1882, we are unable to hold that there is no justification for the special treatment accorded to the area within the Ordinary Original Civil Jurisdiction of the High Court. As we have already pointed out, the area outside this jurisdiction has no doubt, developed, but the area within has also grown''in course of years with the result that the difference that existed in 1882 still continues in some form or other. In our view chap. VIII cannot be struck down on the ground of geographical discrimination.

For all the reasons aforesaid, we are of opinion that chap.VIII of the Presidency Small Cause. Courts Act, 1882, is intra vires Article 14 of the Constitution. ;

In Re: C.R. 656 of 1971

(Lal Krishna Mundra alias Mundhara v. Fatik Chandra Hazra)

In this case the. first ''distress warrant'' in respect of the moneys for Rhadra, 1377 B.S. to Kartick, 1377 B.S. at premises No. 67/49 Strand Bank Road, Calcutta, was issued on December 21,1970: On ''the following day, namely, December 22, 1970, the amount was paid ..and the warrant was discharged. Thereafter, on January 8, 1971, the Snstant ''distress'' was levied for an earlier period, namely, from Baisakh, fl 377 B.S. lo Shraban, 1377 B.S. The tenant put in an objection mainly on (he ground that the first ''distress'' for subsequent months was issued prior to the second ''distress'' for the earlier months and, as such, the second ''distress'' is hit by principles analogous to Order 2, Rule 2 of the Code of Civil Procedure. We have looked into the records of the lower Court. In the first application for ''distress'' the landlord made the following statement: .

The Applicant craves leave and hereby reserves his right to recover further rents due from the aforesaid debtor for and from Baisakh, 1377 B.S. to Shraban, 1377 B.S.

It does hot appear from the records whether the leave prayed for was granted or refused. But, in the second application for ''distress'' the Applicant landlord has stated that he- obtained leave and reserved his right to recover rents for the earlier period, that is, from Baisakh, 1377 B.S. to Shraban, 1377 B.S. He says:

I have realised from the Defendant by ''distress'' No. 477 of 1970 the current rents due from Bhadra, 1377 B.S. to Kartick, 1377 B.S. with leave to recover the above dues (from Baisakh, 1377 B.S. to Shraban, 1377 B.S.) later.

The learned Judge dealing with the second application for ''distress'' in the opening paragraph of his judgment observes:

... In the previous application for ''distress'' the Plaintiff did not include the rents for Baisakh, 1377 B.S. to Shraban, 1377 B.s. The Plaintiff also took leave of the Court to sue for the rents" for the period from Baisakh, 1377 B.S. to Shraban, 1377 B.S. in future. Hence, this application.

Mr. Sett commenting on the above observations submitted that in this paragraph the learned Judge was merely setting out the Plaintiff''s case. The language used does not, however, support Mr. Sett. In any event, the Judge who was dealing with the matter has not said. in any portion of the judgment that the leave asked for was refused.

On these facts we are of opinion that the second application for ''distress'' is not hit by principles analogous to those enunciated in Order 2, Rule 2 of the Code of Civil Procedure.

The result, therefore, is that this Rule is discharged, there will be no order as to costs.

Re C,R. 2976 of 1971

(Lal Krishna Mundra alias Mundhara v. Fatick Chandra Hazra)

In view of our judgment in C.R. 656 of 1971 between the same same parties holding that chap. VIII of the Presidency Small Causes Courts Act, 1882, is intra virea Article 14 of the Constitution, this Rule is is discharged. There will be no order as to costs.

Mr. Sett appearing for the Applicant submits that in addition to deposits made by his client in the Small Cause Court he had made deposits also for the same period in the office of the Rent Controller, Calcutta. Mr. Sett wants to withdraw the moneys deposited in the office of the Rent Controller. Mr. Panda appearing for the opposite party has no objection. It is ordered that the Applicant will be at liberty to withdraw from the office of the Rent Controller amounts, if any, deposited by him in respect of the period which is the subject-matter of this Rule.

C.R. 1424 of 1971 (Meena Bazar v. Hindusthah Housing and Land Development)

Apart from the question of vires of chap. VIII of the Presidency Small Cause Courts Act of 1882 two other points have been raised in this application. These points are: (i) as the rent of the premises is Rs. 300 per month and in addition thereto the tenant had to pay Rs. 100 as service charges per month, no distress could be levied in respect of the service charges ; (ii) some of the goods which were seized were seized illegally in view of the provisions of Section 57 of the Presidency Small Cause Courts Act, 1882.

We want to deal with these two points separately. So far as the first point is concerned, it is pleaded in para. 2 of the petition that theaPetitioner iri or about August 1967 was inducted as a tenant by the opposite party in respect of one room on the ground floor of the said Poddar Court on, inter alia, the following terms and conditions:

(1) Rent of the said room would be Rs. 300 per month plus Rs. 100 per month by way of service charges according to the English calendar month....

On this pleading the only conclusion is that the tenant undertook to pay Rs. 100 per month as service charges as part of rent. This being the position, distress, in our opinion, could be levied for the entire sum of Rs. 400. In support of this view we may refer to two decisions of the Supreme Court. In Karnani Properties Ltd. Vs. Augustin, the relevant provision of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, were considered. In para. 5 of the judgment it is stated:

The term ''rent'' has not been defined in the Act. Hence, it must be taken to have been used in its ordinary dictionary meaning. If, as already indicated, the term ''rent'' is comprehensive enough. to "include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlords the conclusion is irresistible that all that is included in the term ''rent'' is within the purview of the Act and the Rent controller and other authorities had the power to control the same.

This judgment is an authority for the proposition that when rent is not specifically defined in the statute it may include not only what the tenant pays for his use and occupation but also what he pays for other amenities that he derives from the landlord.

A more direct authority of the Supreme Court is in Khem Chand Dayal Ji and Co. Vs. Mohammad Bhai Chand Bhai, . One of the points raised in this case was that municipal taxes and electricity charges did not constitute rent which could be recovered by the issue of a ''distress'' warrant. The Supreme Court (in para. 4 of the judgment) has held that by the express term of the tenancy the Appellants had undertaken to pay municipal taxes and electricity charges as part of the rent. And it is not open to them to contend that they are- not rent recoverable by the issue of a ''distress'' warrant.

In our case, also having regard to the pleading in para. 2 of the petition, it is not open to the Petitioner to contend that no ''distress'' could be levied with respect to the service charges of Rs. 100 per month. Clearly this sum of Rs. 100 per month Was part of the rent. We, therefore, overrule the first objection noted above.

We now come to the Petitioner''s second point. The Petitioner did not file any objection in the Court of Small Causes as contemplated by Section 60 of the Presidency Small Cause Courts Act, 1882. The Petitioner has come directly to this Court under Article 227. On an application of this nature we are not inclined to go into the question of fact as to whether articles which could not be seized u/s 57 have in fact been seized. If the Petitioner was aggrieved on this issue, the Petitioner should have gone to the Small Cause Court for appropriate relief. In this application under Article 227 we should not adjudicate upon a dispute of this nature. In the result, this Rule is discharged. There will be no order as to costs.

C.R.3252 of 1970 (Princess and Rajya Luxrni Devi v. Asmfi Debi Rajgharid)

In this Rule, apart from the vires of chap. VHI various other contentions have been advanced. To appreciate these contentions we have to set out the relevant portions of the registered Deed of Lease dated December 15, 1964, between tne Petitioner and the opposite party. The relevant extracts are as follows:

... Whereas the tenant has approached the landlady to take on lease the suite being No. 8 at premises No. 5/1 Russel Street in the town of Calcutta for a period of 21 years certain with effect from the 15th day of December 1964 at a monthly rental of Rupees five hundred and seventyfive only and whereas the land-'' lady has agreed to let out the suite as per boundary given in the schedule to the tenant on her undertaking to observe during the subsistence of the lease hereby created certain terms and conditions of lease for a period of twentyone years on the above considerations, now this indenture witnesseth as follows: (1) Tae landlady hereby grants unto the tenant lease in respect of the suite No. 8-of the first floor of premises No. 5/1 Russel Street, Calcutta, being a self-contained suite consisting of four rooms one kitchen and two bath-rooms at a rental of Rs. 500 per month payable according to English calendar. (2) The lease shall be for a period of twentyone years commencing on and from the 15th day of December 1964. (3) The tenant shall pay to the landlady by way of rent the sum of Rs. 500 per month according to the English calendar. (4) The tenant shall pay to the landlady by way of rents and for service charges for the use and occupation of the suite in the following manner:

(i) Towards rent of suite Rs. 325. (ii) Towards service charges Rs. 175 which shall include facilities for passage, lights, supply of filtered water by electric pump and other advantages and amenities provided by the landlady from time to time for the common or the special comforts of the tenant and/or to keep or make the premises healthy and sanitary, (iii) Towards rent of garage Rs. 50 per month, (iv) Towards rent of servant''s quarter Rs. 25 per month, (v) The word ''rent'' where occurs in this instrument shall mean and include and shall be deemed always to have included charges for services hereinbefore reserved....(ix) The tenant shall use the suite let out to her for her residence and for the residence of the members of her family.... Schedule: One suite No. 8 being 4 rooms, one kitchen, two batb-rooms on the first floor of promises No. 5/1 Russel Street, Calcutta, and one garage on the ground floor and servants'' space at the top floor in presidency town of Calcutta.

Mr. Tagore appearing for the Petitioner has urged that u/s 53 of the Presidency Small Cause Courts Act, 1882, ''distress'' can be levied only for arrears of rent of any house or premises. In the instant agreement of lease, apart from rent, a sum of Rs. 175 was payable as service charges per month. This sum of Rs. 175 was not rent, according to Mr. Tagore, for any house or premises and no ''distress'' could be levied in respect thereof. Secondly, by this agreement three several tenancies were created--one for the suite, another for the garage and a third one for the servants'' quarter. These three several tenancies could not have been combined for the issue of a single ''distress'' warrant.

Mr. Tagore placed before us various authorities in support of his argument. In Halsbury''s Laws of England (3rd ed., vol.12, Article 208, p. 123) it has been stated that there cannot be a joint ''distress'' for several rents reserved under separate demises of different properties to the same tenant even though the demises are contained in one document. The Learned Counsel''s contention is that, in the instant case, several demises have been granted in one document. There are separate rents for each of the demises and a joint ''distress'' for all of them is not sustainable. There are similar observations also in Woodfall.on Landlord and Tenant (26th ed., Article 1018, p. 418). Secondly, says Mr. Tagore, a conveyance may be divided into sevaral heads. These heads are: (a) commencement'' and date, (b) parties, (c) recitals, (d) testatum, (e) consideration, (f) operative words, (g) parcels, (h) habendum, (i) testimonium, and (j) the attestation clause:. Vide Megarry on The Law of Real Property (3rd ed., p. 606). It is true that in the recital of the instant deed of lease the rent of suite No. 8 has been stated to be Rs. 575. It is also true that in the schedule to which the recital has referred the ''boundary'' of suite No. 8 includes the garage and the servants'' quarters, but the counsel for the Petitioner contends that, in the operative parts of the deed, the three several tenancies have been separated and the result has been that several demises have been created by one instrument.

Mr. Tagore has also contended that the service charge of Rs. 175 mentioned in the agreement, of lease is not distrainable. It is payable in respect of incorporeal hereditaments. He says that u/s 53 of the Presidency Small Cause Courts Act, 1882, distress lies for arrears of rent of ''any house or premises''. Since service charges are not paid for ''any house or premises'' they are not, submits Mr. Tagore for the Petitioner, distrainable. Reliance has been placed on Article 776 of Woodfall on Landlord and Tenant (26th ed., p. 326). This Article says:,

In contemplation of law the whole amount reserved as rent issues out of the realty and is distrainable as rent although the amount "agreed to be paid may be an advance rental on account of the provisions of furniture or services or the payment of rates by the landlord, while rates paid by the tenant to the local authority are not rent, an equivalant sum paid by the tenant to the landlord for transmission to the apporpriate authority is rent for the purposes of the Rent Acts. But payments made by a tenant in consequence of his landlords'' statutory right to reimbursement in respect of rates which the landlord has been directed to pay are not rent.

This passage, arguss Mr. Tagore, gives an indication of what is rent and what is not rent. And in the light of the principles discussed therein the service charges, in the istant case, are not rents.

The Learned Counsel for the Petitioner also draws our attention to Clause 10 of the Deed of Lease which says that the suite shall be used by the lessee ''for her residence and for the residence of the members of her family''.It is pointed out that the proviso to Section 56 of the Presidency Small Cause Courts Act, 1882, forbids the bailiff to

enter or break open the door of any room appropriated for the by the said proviso. This contention of Mr. Tagore is, therefore, is considered private.

We shall take the last point of Mr. Tagore first. No doubt the suite has been taken by the Petitioner for her residence. But there is" no evidence on record that any room in the suite was appropriated for the zenana or residence of women nor is there any evidence of usage which makes such room a ''private'' room as envisaged by the said proviso. This contention of Mr. Tagore is, therefore, overruled.

We now proceed to examine his other contention. He has said that the service charges are not rents and they are not distrainable. In Khemchand Dayalji and Company v. Mohammadbhai Chandbhai Supra (103) the learned Judges were considering some of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act (LVII of 1947) and of the Small Cause Court Rules at Ahmedabad. In para. 4 of this judgment, as we have alerady observed, the Supreme Court says:

By the express terms of the tenancy the Appellants had undertaken to pay the municipal taxes and electricity charges as part of the rent; it is not open to them to contend that they are not rent recoverable by the issue of a distress warrant.

If, therefore, there is an express agreement between the parties that service charges would be part of rent, these charges, on the authority of the Supreme Court, would be distrainable. In our case tl. 5 of the Deed of Lease expressly stipulates that the word ''rent'' where it occurs in this instrument shall mean and include and shall be deemed always to have included charges for service reserved by the lease. This express agreement between the parties makes the service charges in our view distrainable.

The next contention on behalf of the Petitioner has been that service charges are not payable-for any ''house- or premises'' within the meaning of Section 53 of the Act. To deal with this contention we have first to refer to a few English decisions.

In Somershield v. Robin (1946) 1 All E.R. 218 an action was brought by the Respondent in the County Court for possession of a furnished house let at a rent of � 272 a year. The Judge, having deducted a sum of � 150 in respect of the use of the furniture and a further sum of � 45 in, respect of rates which were payable by the landlord, held that the action being one in which neither the value of the land in question nor the rent payable in respect thereof exceeded � 100 a year was within the jurisdiction of the Court under the County Courts Act, 1934, Section 48(1), and made an order for possession. The Court of Appeal has held that the County Courts Act, 1934, Section 48(1) should be interpreted in its obvious and prima facie meaning and the contractual sum of � 272 being rent issuing out of the land for nonpayment of which there was a right to distrain was ''payable in respect of the land in question''. The County Court Judge had, therefore, no jurisdiction to try the action and make an order for possession.

To appreciate the effect of this judgment we may consider the provisions of Section 48(1) of the County Courts Act, 1934. The jurisdiction of the County Court is defined in-this Sub-section as follows:

a County Court shall have jurisdiction to hear and determine any action for the recovery of land where neither the value of the land in question nor the rent payable in respect thereof exceeds the the sum of � 100 by the year.

Before the County Court as also the Court of Appeal it was argued that in proceedings for possession of a furnished" house, the Judge, in order to ascertain the ''rent payable in respect thereof, is entitled to deduct from the contractual payment a sum attributable to use of the furniture on analogy with the apportionment made in " cases under the Rent Restrictions Acts. The Court of Appeal is of the view that ''rent'' means a sum issuing out of land for which distraint may be levied. And the apportionment which'' takes place under the Rent Restrictions Acts is necessary to make the Acts work, but that principles cannot be applied to a different statute, namely the County Courts Act. In other words, it is not possible to lay down a general proposition that wherever a tenant obtained additional or collateral benefit, such as the use of furniture, or. the giving of a restrictive covenant by the landlord, the contractual sum could not be regarded as ''payable in respect of land''.

We may next refer to Alliance Property Company Ltd. v. Shaffer (1948) 2 All E.R. 224. A flat, before the coming into operation of the Rent and Mortgage Interest Restrictions Act, 1939, was let on a yearly tenancy at a rent of � 175, but contemporaneously with the lease the parties executed a deed, described in the endorsement as a supplemental agreement, under which the tenant and any person inx whom the lease at any time might be vested covenanted to pay an additional �40 a year in consideration of decoration and other alterations carried out by the landlords and further �60 a year towards the cost of the management of the building in which the flat was situated, the'' second agreement to run concurrently with the lease and to determine with it and the sum payable thereunder to be paid together with the rent and to be recoverable ''by distress or otherwise as for rent in arrear''." The flat came within the protection of the Rent Restrictions Acts on the coming into operation of the Act of 1939. Slade J. has held that the intention of the parties was that the premises should be enjoyed on the terms of and subject to the liabilities specified in both the documents, and the additional sums, being part of the price paid for the beneficial occupation of the premises, were part of the rent, and, therefore, the standard rent within Section 12(l)(a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (as amended by Section 3(1) and sch. I of the Act of 1939) was �275.

This case, from our point of view, is an authority for the proposition that the agreement between the parties may be such that any sum that is payable for better and more beneficial enjoyment of a property would be treated as ''rent''.

There is a Division Bench judgment of our Court in Residence Ltd. Vs. Surendra Mohan Banerjee and Others, which is of assistance to us in deciding the point under consideration. The Division Bench was considering some of the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. It is stated that the word ''rent'' is not defined in the Act and, therefore, it must be given its ordinary grammatical meaning. Thus, when a flat is let, with the landlord agreeing to provide certain free services, what is let is the flat and what is paid is paid for the flat with the landlord providing certain amenities or performing certain obligations. What is paid is rent, for the flat and no part of it can be truly regarded as payment for the services. If the landlord has undertaken obligations by the tenancy agreement the monthly payment or the yearly payment, as the case may be, would be suitably adjusted.

Now; the dictionary meaning of ''rent'' is "periodical payment for use of another''s property, esp. bouses and lands" See Chambers Dictionary, p. 934. If this dictionary meaning is applied to the purposes for which the service charge was payable in the instant case, it would appear that the service charge was meant for proper use of the suite which was let out and, as such, was part of the ''rent'' of the suite itself. The Calcutta High Court''s judgment referred to above was considered by the Supreme Court along with a: few other English cases including Alliance" Property Company Ltd. v. Shaffer ( Supra) and Karnani Properties Ltd. v. Miss Augustine (Supra (312, para. 5)). Their Lordships of the Supreme Court have observed:

The term ''rent'' has not been defined in the Act, West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. Hence, it must be taken to have been used in ordinary dictionary meaning. If, as already indicated, the term ''rent'' is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the buil-. ding and its appurtenances but also of furnishing, electric installations and other amentities agreed between the parties to be provided by and at the cost of the landlord, the conclusion is irresistible that all that is included in the term ''rent'' is within the purview of the Act and the Rent Controller and other authorities had the power to control the same....

Here again, we find that if one has to go by the ordinary dictionary meaning of the word ''rent'' it would include all payments for use and occupation of the building. In our case also the service charges appear to be payable for the use and occupation of the building and cannot be treated as anything other than rent.

We, therefore, hold that in the instant case the sum of Rs. 175 payable as service charge was part of ''rent'' for two reasons. Firstly, the express agreement between the parties is that''this sum would be part of rent. Secondly, the sum of Rs. 175 is payable for beneficial use and occupation of the building--for amenities required for the enjoyment of the corporeal hereditaments, and the ordinary dictionary meaning of the word ''rent'' is comprehensive enough to include such payments.

We now deal with the remaining contention of the counsel for the Petitioner, namely, that the subject-matter of the Deed of Lease is not one tenancy but by this document several tenancies have been created. Scuh an argument may be possible if we read only cls. 1 and 2 of the Deed without taking into consideration the other parts of the document. But according to well-known rules of construction, in a case of this nature, the intention of the parties may be gathered by reading the document as a whole. That intention seems to be that one tenancy was created consisting of the suite No, 8 having four rooms, one kitchen and two bath-rooms on the first floor, a garage on the ground floor and. servant''s space at the top floor of premises No. 5/1 Russell Street, Calcutta!. We reach this conclusion particularly in view of what is stated in Clause 3 of the Deed which is in its operative portion along with the recital and the schedule to which the recital refers. The Deed of Lease, therefore, being in respect of one tenancy in our opinion distress warrant could be issued for all the items of property mentioned in the Deed.

In the result, this rule is discharged. There will be no orders as to costs.

C.R. 3253 of 1970 (Princess Gita Rajya Luxmi Devi v. Asrafi Debi Rajgharia).

The facts here are similar to the facts in Civil Revision Case No. 3252 of 1970. Suite No. 7 at premises No. 5/1 Russell Street, Calcutta, was let out in the instant case. The rent was Rs. 430 per month for the use and occupation of the suite in the following manner:

(i) Towards rent of the suite Rs. 250

(ii) Towards service charges Rs. 150

which shall include facilities for passage, lights, supply of filtered water by electric pump and other advantages and amenties to be provided by the landlady from time to time for the common or special comforts of the tenant and/or to keep or make the premises healthy and sanitary.

(iii) Towards rent of garage Rs. 30 per month.

There is an express agreement, as in the previous case, that rent where occurs in this instrument shall mean and include and shall be deemed always to have included charges for services. There is also the schedule which describes the flat and the garage as well as servant''s space. In the recital too the entire rent of Rs. 430 has been mentioned.

In these circumstances, for reasons stated in the Civil Revision Case No. 3252 of 1970, we are of opinion that the service charge was a part of rent and the instrument was executed in respect of one tenancy only.

In the result, the rule is discharged. There will be no orders as to costs.

It is ordered in both the Civil Revision Cases Nos. 3252 of 1970 and 3253 of 1970 that the status quo is to be maintained for three weeks from date.

In conclusion, we express our gratitude to Mr. Nirmal Chandra Chakravorty who appeared in these cases as amicus curiae.