Monoranjan Basu vs Rebecca Mukherjee

R.N. Dutt, J.—The Petitioner is the tenant under the opposite party from August 1964 in respect of the ground floor of premises No. 85 Bondel Road. From the inception of the tenancy the Petitioner used to get constant supply of filtered water from an overhead tank through a distribution system from the tank. But the opposite party with a view to eject the Petitioner stopped the supply of water from May 30, 1960. The Petitioner, thereafter, made an application to the Rent Controller u/s 31 of the West Bengal Premises Tenancy Act, 1956. The opposite party opposed the application and contended that the Petitioner had never got supply of water from the overhead tank, but the Petitioner''s source of supply as part of his tenancy was the Corporation''s tap water in the ground floor. The Rent Controller by his order dated February 10, 1969, found that the Petitioner used to get constant supply of filtered water from the overhead tank, but the opposite party had stopped it from May 30, 1968. The Rent Controller, therefore, fined the opposite party Rs. 100 and also directed the opposite party to restore supply of water to the Petitioner within seven days. The opposite party preferred an appeal and obtained a stay of the operation of the Rent Controller''s order till the disposal of the appeal. The appeal was subsequently dismissed by an Additional District Judge at Alipore on June 5, 1969, who affirmed the order of the Rent Controller.

The Petitioner filed this application on August 4, 1969, alleging that the opposite party had failed to restore supply of water from the overhead tank to the Petitioner till then and had thus willfully disobeyed the order of the Rent Controller as merged in the order of the Additional District Judge. It was said that she had thereby rendered herself liable to be dealt with under the Contempt of Courts Act. The opposite party has opposed this application and in her affidavit she has said that in compliance with the order of the Additional District Judge she restored supply of water from the overhead tank to the Petitioner on June 8, 1969.

From the affidavits there is no doubt that the opposite party had failed to comply with the order of the Rent Controller as merged in the order of the Additional District Judge. The Petitioner''s case before the Rent Controller was that constant supply of filtered water from the overhead tank was a part of his tenancy-Opposite party''s case was that the Petitioner had never used to get supply of filtered water from the overhead tank. Both the Rent Controller and the Additional District Judge have found that supply of filtered water from the overhead tank was part of the Petitioner''s tenancy. May be, there is no ''constant'' supply in the strict sense of the term because at times the overhead tank may fall empty or at times there may not be sufficient water in the underground tank. But what was meant and understood was that there should be normal supply of filtered water from the overhead tank. It appears that on June 19, 1969, the Petitioner wrote a letter to the opposite party saying that since June 16, 1969, the opposite party had deliberately and in order to frustrate the order of the Rent Controller, adopted devices of supplying water for a very limited period for a few minutes in the morning which could not fill up two buckets.

Obviously, this indicates that after the order of the Additional District Judge the opposite party had partially supplied water from the overhead tank to the Petitioner. It is common case that after May 30, 1968, no water was supplied from the overhead tank. But, either from June 8, 1969, as the opposite party contends, or from June 16, 1969, as is admitted by the Petitioner, there was some supply of water at least for some days. But the Petitioner''s affidavit says that after a few days this little supply was again stopped. The opposite party has contended that she has restored normal supply of filtered water from June 8, 1969, but the Petitioner has, in support of his application, annexed several statements recorded by several respectable persons who happened to come to the Petitioner''s premises on some days after the alleged restoration of normal supply (annexes. A to K). These show that those respectable persons found no supply of water from the overhead tank to the Petitioner''s premises on different dates after June 16, 1969. Some of the persons have even filed affidavits saying that on some dates after June 16, 1969, they found no water supplied through the overhead tank. On the materials on record, therefore, I am not prepared to accept the contention of the opposite party that she had restored normal supply of water from the overhead tank on June 8, 1969, or thereafter, in compliance with the order of the Rent Controller as merged in the order of the Additional District Judge. On the other hand, I feel that the opposite party had made a show of compliant with the said order just to frustrate the order. Thus, I find that the opposite party had willfully disobeyed the order of the Rent Controller as merged in the order of the Additional District Judge directing her to restore normal supply of water from the overhead tank.

Mr. Banerjee has argued that the Rent Controller is not a ''court'' within the meaning of the Contempt of Courts Act, 1952. The word ''court'' is not defined in the Contempt of Courts Act, but the meaning of the word ''court'' under the said Act came to be considered by the Supreme Court in several cases. Since there is now some authoritative pronouncements from the Supreme Court, it is no use considering the decisions of the several High Courts in this respect. Obviously, the word ''court'' in the Contempt of Courts Act does include the ordinary civil and criminal courts of the country. The Rent Controller under the West Bengal Premises Tenancy Act is not such an ordinary civil or criminal court. But the word ''court'' in the Contempt of Courts Act is not limited to only the ordinary civil and criminal courts of the country. The Supreme Court has in Brajnandan Sinha Vs. Jyoti Narain, said that the word ''court'' in the Contempt of Courts Act includes apart from the ordinary civil and criminal Courts of the country, Tribunals which have apart from having some of the trappings of a judicial Tribunal power to give a decision or a definitative judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

This decision was quoted with approval in the subsequent decision of the Supreme Court in Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd. and Another, . Mr. Banerjee, however, refers to the later Supreme Court decision in Rama Rao and Another Vs. Narayan and Another, . But the Supreme Court in this last case was considering when a tribunal would be a ''court'' within the meaning of Section 195(2) of the Code of Criminal Procedure and not under the Contempt of Courts Act. Moreover, in this case also the Supreme Court has quoted with approval its previous decision in Brajnandan Sinha v. Jyoti Narain. There is, therefore, no doubt that the word ''court'' under the Contempt of Courts Act includes not only the ordinary civil and criminal courts of the country but also tribunals which apart from having some of the trappings of a judicial tribunal, have the power to give a decision or a definitative judgment which has finality and authoritativeness. Let us now examine the position of the Rent Controller under the West Bengal Premises Tenancy Act. u/s 26(5) of the Act the Rent Controller has the power to ''trapping of a judicial tribunal''. u/s 28 of the Act the Rent Controller shall have all the powers of a civil court under the CPC for the purpose of summoning and enforcing the attendance of witnesses and for compelling the production of documents, again an essential trapping of a judicial tribunal. Under s 29 of the Act an appeal lies from an order of the Rent Controller. u/s 38 of the Act an order passed by a Rent Controller shall be executable as a decree of a civil court and for this purpose the Rent Controller shall have all the powers of a civil court. These indicate that the Rent Controller has the power under the Premises Tenancy Act to give a decision or a definitative judgment which has finality and authoritativeness. Finally, under Rule 10 of the Rules framed under the Premises Tenancy Act, the Rent Controller is to follow the procedure laid down (a) in the case of enquiries relating to offences in the Code of Criminal Procedure, 1898, 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. There is, therefore, no doubt that the Rent Controller has not only several important trappings of a judicial tribunal but has the power to give a decision or a definitative judgment which has finality and authoritativeness. Thus, following the decision of the Supreme Court in Brajnandan''s case (supra), I have no hesitation in finding that the Rent Controller is a, court within the meaning of the Contempt of Courts Act.

Here, in this case, the order of the Rent Controlled has merged in the order of the Appellate Authority and Mr. Banerjee has contended that the Appellate Authority is again not a court but a persona designata. Mr. Banerjee has in this connection referred to the Division Bench decision of this Court in Kiron Chandra Bose v. Kalidas Chatterjee (1943) 47 C.W.N. 460. But that was a decision under the Bengal House Rent Control Order, 1942. We have the recent decision of a Division Bench of this Court Nandalal Das Vs. Monmatha Nath Ghose and Others, . There, in that case, the Court was required to consider if the Appellate Authority under the Premises Tenancy Act of 1956 with which we are presently concerned is a court or merely persona designata and the Division Bench has held that the Appellate Authority is a ''court''. I am bound by this decision and I see no reason not to agree with the reasoning or the conclusion in that case. Thus, the Appellate Authority is also a court within the meaning of -the Contempt of Courts Act.

Mr. Banerjee has then contended that even if the Rent Controller or the Appellate Authority is a court, it is not a court ''subordinate to the High Court'' under the Contempt of Courts Act. Here again I cannot accept this contention. The Supreme Court has again made it clear in Thakur Jugal Kishore Sinha''s case (Supra) that ''subordination'' contemplated by Section 3 of the Contempt of Courts Act is judicial subordination. Courts or tribunals which are judicially subordinate to the High Court under Article 227 of the Constitution are Courts subordinate to the High Court within the meaning of the Contempt of Courts Act. There is no doubt that the Rent Controller and the Appellate Authority are subject to the jurisdiction of the High Court under Article 227 of the Constitution and, as such, the Rent Controller and the Appellate Authority are judicially subordinate to the High Court. I find, therefore, that the Rent Controller and the Appellate Authority in the present case are Courts subordinate to the High Court within the meaning of the Contempt of Courts Act.

Let us assume that the Rent Controller or the Appellate Authority is not a court but is a persona designata. But even then there may be contempt of such persons under the Contempt of Courts Act: Lakhama Pesha Vs. Venkatrao Swamirao Nazare, .

Mr. Banerjee has then argued that the alleged disobedience is punishable u/s 188 of the Indian Penal Code and, as such, the High Court cannot take cognizance of such a contempt because of Sub-section (2) of Section 3 of the Contempt of Courts Act. Here again, the contempt ion cannot be sustained. True, Sub-section (2) of Section 3 states that no High Court shall take cognizance of a contempt where such contempt is an offence punishable under the Indian Penal Code.

Here Mr. Banerjee''s contention is that the alleged disobedience of the order of the Rent Controller is punishable u/s 188 of the Indian Penal Code. Section 188 states that whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from certain acts or to take certain order with certain property in his possession or under his management, disobeys such direction shall be punishable.

True, the Rent Controller is a public servant, but Section 188 of the Indian Penal Code does not cover cases where the Rent Controller makes an order in a proceeding between two private persons and directs compliance with that order. Here, there is no question of any promulgation of such-an order. Promulgation implies promulgation in public. But here, there is a proceeding between the landlord and the tenant, and by virtue of the power given to the Rent Controller under the statute, he directs the landlord to restore supply of water. From the very nature of the order it will appear that there is no scope for promulgation of such an order in public. The landlord appeared before the Rent Controller and that order was made in his presence. He made an appeal but the appeal was dismissed. The appellate order was also made in his presence and within his knowledge, and such an order is not to be promulgated in public. This view has been taken by a Single Bench of this Court in Nandalal Mitra Vs. State, . There, after the Rent Controller had directed restoration of water supply a notice was served on the landlord for restoration of the water supply, but even then the order was not complied with. Thereafter, the landlord was convicted u/s 188 of the Indian Penal Code for disobeying the Rent Controller''s direction. A. K. Das J. held that when a person or a party is asked to do something, it is merely a direction on the party. But Section 188 of the Indian Penal Code applies to orders made by public functionaries for public purpose and not to an order made in a proceeding of a civil nature between party and party. The learned Judge, thereafter, set aside the conviction of the landlord and acquitted him. I entirely agree with the reasoning of A. K. Das J. and I hold that the alleged disobedience of the Rent Controller''s order is not an offence u/s 188 of the Indian Penal Code and, as such, Sub-section (2) of Section 3 of the Contempt of Courts Act is not attracted.

Moreover, here in this case, the order of the Rent Controller has merged in the order of the Appellate Authority and Section 188 of the Indian Penal Code can never be attracted to disobedience of the order of the Appellate Authority.

Even after making these findings I think that this is not a case which should come under the purview of the Contempt of Courts Act. u/s 38 of the Premises Tenancy Act the order made by the Rent Controller u/s 81 of the Act or the order of the Appellate Authority has the force of a decree of a civil court and is executable as a decree of a civil court. The Petitioner could execute this order as a decree and the Rent Controller could restore supply of water in execution of that order, as if the Rent Controller was executing the decree of a civil court as a civil court. The Petitioner has not moved the Rent Controller for restoration of supply of water by executing the order. Mr. Sengupta has argued that the Petitioner could not do this because in the Rules framed under the Act there is no provision laying down the procedure for such execution. There is no substance in this argument. Section 38 of the Act makes it clear that the order is to be executed as a civil court decree and for this purpose the Rent Controller shall have all the powers of a civil court. This shows that the procedure for executing a civil court decree as laid down in the CPC will be applicable. Thus, since the order of the Rent Controller has the force of a decree of a civil court and is executable, as such, and since a procedure has been laid down for executing the decree, namely, in this case for restoration of supply of water by the Rent Controller, I do not think that the disobedience of this order by the opposite party is a matter which should be dealt with under the Contempt of Courts Act and in that view of the matter I think that this application should fail.

In the result, the Rule is discharged. No order is made as to costs. The Petitioner will be free, if so advised, to move the Rent Controller for execution of the order u/s 31 of the Act.

Sarma Sarker, J.

I respectfully agree with my Lord to the proposed order, but I like to add a few words particularly on the points of law involved.

On an application filed by the Petitioner-tenant alleging willful disobedience of the order of the Rent Controller for restoration of the water supply from the overhead tank, the proceeding under the Contempt of Courts Act was started against the opposite party landlord who denied that there was any willful disobedience of the order of the Rent Controller or the Appellate Authority as supply was restored on and from June 8, 1969. In the circumstances, it is necessary to consider the following points�(i) whether the opposite party landlord willfully disobeyed or violated the orders of the Rent Controller dated February 10, 1969, affirmed by the Appellate Officer on June 5, 1969 ; (ii) whether the Rent Controller or the Appellate Authority is a Court subordinate to the High Court under the Contempt of Courts Act; (iii) what is the nature and character of the alleged contempt; (iv) whether the necessary procedure for assumption of the jurisdiction in contempt proceeding has been taken ; (v) whether opposite party is guilty under the Contempt of Courts Act and if so, what punishment, if any, should be inflicted in the facts and circumstances of the present case.

I propose to take up these points one by one. As regards the first point, there can be no room for doubt that on February 10, 1969, the Rent Controller passed an order directing the opposite party to pay a fine of Rs. 100 u/s 31 of the Premises Tenancy Act of 1956 (hereinafter referred to as the Act) and also to restore the supply of water to the disputed premises within seven days from the date of the order.

This� was affirmed by the Additional District Judge in these words Accordingly, the Rent Control appeal be dismissed on contest with cost. The order of the Rent Controller be affirmed.

But no separate order was-passed directing the time within which order was to be complied with. It is the case of the Petitioner in the application before this Court that he was never supplied with any water from May 30, 1968, till August 4, 1969, when the Rule was issued. On the affidavits and on the admission of the parties including the letter of the Petitioner dated June 19, 1969, it is clear that there was at least some supply of water between June 8 to June 16, 1969, after the disposal of the appeal though according to the Petitioner the supply was not adequate. On the evidence and materials on record and in the background of the present case, it can be held without difficulty that there was no full or sufficient compliance of the order of the Rent Controller in restoration of water from the overhead tank. It is not, however, fully clear from the materials on record whether the shortage of supply of water is due to manipulation of stop-cock or any other reason like the defect in the pipe system or the insufficiency of water in the overhead tank. It may be mentioned here that there is no dispute that fine of Rs. 100 was paid by the opposite party within the time.

I now take up, the second point whether the Rent Controller or the Appellate Authority is a ''court subordinate to the High Court'' under the Contempt of Courts Act. Mr. Sengupta, the learned Advocate for the Petitioner, argued that the Rent Controller is a Court as he has been given in Section 32 of the Act the powers of a Magistrate under the Code of Criminal Procedure and also the powers of civil Court for purpose of Sections 38, 28(2) and 29(5) of the Act. But, it is clear from these sections that these powers were conferred only for a limited purpose as provided in those sections. This does not convert a Rent Controller into a Court. Mr. Sengupta then referred to the decision in Banwarilal Agarwalla v. Sudhamoy Basu (1953) 59 C.W.N. 481 (490-91) that the Controller is a Court in the wider sense of the term, if not a Court strictly so called and is a judicial or at least a quasi-judicial Tribunal possessing many of the attributes of strict Court of law and that he is at least a quasi-judicial Tribunal having strong affinities to a Court strictly so called and in proceedings before him, the rule requiring leave to proceed against a Receiver will apply.

That was a case not under the Contempt of Courts Act and the scope of decision was whether the permission of the Rent Controller is necessary to sue the Receiver appointed by it. For this purpose it is not necessary that the Rent Controller should be a Court in the strict sense, but it is sufficient if he is at least a quasi-judicial Tribunal having strong affinities to a Court. On the other hand, Mr. Banerjee appearing for the opposite party has contended that the Rent Controller is not a Court but a public servant in terms of Section 37 of the Act. It is, however, clear from the preamble, Sections 2(b), 26 and 37 of the Act that the Controller is a public servant within the meaning of Section 21 of the Indian Penal Code. In this connection we may also refer to Section 20 of the Act which prescribes a schedule of Courts to which suits for recovery of possession by a landlord against tenant has to be filed. This also clearly indicates by necessary implication that the Rent Controller is not a Court. Even the Petitioner describes the Controller in para. 23 as a public servant. I, therefore, find that the Rent Controller is a public servant in terms of Section 37 of the Act and not a Court. In this connection reference may be made to Nandatal Mitra v. State (Supra) where the Rent Controller was held to be a public servant and not a Court.

I now pass on to consider whether the District Judge as the Appellate Authority u/s 29 of the Act is a Court. In this connection Mr. Sengupta relied particularly on Sub-section (4) of Section 29 which empowers the Chief Judge or the District Judge to transfer an appeal to another Judge and referred to a decision of this Court in Nandalal v. Manmatha (Supra, p. 599). In Naranarayan Mandal v. Aghore Chandra Ganguli (1935) 39 C.W.N. 971 it was held that the use of the expression ''District Judge'' in the Act of the Bengal Legislature is not necessarily an indication that the District Judge is to be regarded as a persona designata, and for this purpose the power to transfer to any officer subordinate to the District Judge was conclusive to show that the intention of the Legislature was that the election petition under the Bengal Municipal Act would be heard in the Court of the District Judge subject to the powers of the District Judge to transfer them to certain subordinate Courts. But both these decisions are not under the Contempt of Courts Act but relate to the question whether it is a Court subordinate to the High Court for the purpose of exercising jurisdiction either u/s 115 of- the CPC or u/s 107 of the then Government of India Act. Even in the case referred to above (9) it was observed, though not finally decided, that Section 115 of the CPC is not applicable to the Court of the District Judge exercising functions as election Court under the then provisions of the Bengal Municipal Act though they were under the supervision of the High Court u/s 107 of the then Government of India Act. It is no doubt true that the provisions for transfer is one of the important criterion for consideration whether the appeal was to be heard by the District Judge as a Court or the District Judge as a persona designata. But, at the same time it is not the sole criterion to decide it. In the Bengal Municipal Act there was no other provision apart from Sections 36 to 43 to find out the intention of the Legislature. But, in Section 29 of the Premises Tenancy Act in Sub-sections (3) to (5) the Legislature clearly expressed its intention that the District Judge should act not as a Court but as a persona designata though empowered to transfer the appeal to specified classes of Judges as laid down by the Legislature. Even in Nandalal Das v. Manmatha Nath (Supra), referred to above, the Judges could not deny the force of the reason that the Appellate Officer is not a Court outside Section 29(5) of the Act. There is another distinction which is of vital importance in a case of this description. Now, this special power under the special Acts may be considered either as extension of the power of the District Judge under other Acts or may be treated as limitation of the powers of the District Judge under the particular Act in question. If it is a mere extension without any corresponding restriction in the exercise of that power then whether the District Judge acts as a Court or persona designata, it remains a Court in the strict sense of the term, because in the exercise of the power the Court concerned is not restricted or limited by the particular Act concerned but where, as in the present case, the District Judge exercised the '' power not as a Court under the general law of the land but in'' terms of the restrictions imposed or conferred by the special Acts, such as Premises Tenancy Act, then whether the District Judge is considered as Court or a persona designata, it cannot function as a Court in the strict sense of the term under the general law of the land. From this standpoint also the District Judge functioning u/s 29 of the Act is not a Court but an Appellate Officer and this point was emphasized by statute in Sub-sections (3) and (5) of Section 29 of the Premises Tenancy Act. It is well-settled that in interpreting the statute effect must; be given to the plain and express enactment which cannot be lightly explained away on the ground of incompetence in draftsmanship. Reading Section 29 of the Act as a whole, it only emphasizes that whether the District Judge may be deemed to be a Court or ''persona designata the functions discharged by it are that of Appellate Officers in terms of and under the conditions of the Premises Tenancy Act and not as a Court. This was also the effect of Single Bench decision of this Court, Mathura Prosad Rajgharia Vs. Kanailal Mullick and Others, where it was held:

No question of conviction or acquittal is involved in the proceeding u/s 30/31 of the Act or in the Appellate order passed u/s 29 and the Appellate authority, which does not function under the Criminal Procedure Code, is not a Court u/s 6 of that Code.

The District Judge whether persona designata or not u/s 29 of the Premises Tenancy Act is not a Court but an Appellate Officer whose powers and functions are limited, prescribed and confined by the provisions of the Premises Tenancy Act itself. The result is that the Rent Controller and the District Judge acting as the Appellate Officer u/s 29 of the Act are not Courts but Tribunals exercising judicial or quasi-judicial functions.

It has now to be considered whether the Rent Controller or the Appellate Officer as Tribunals exercising judicial or quasi-judicial functions can be deemed to be Courts subordinate to the High Court u/s 3 of the Contempt of Courts Act (hereinafter referred to as the Contempt Act). This matter came to be decided by the Supreme Court in Brajanandan v. Jyoti Narain (Supra) in the case of a Commissioner appointed under the Public Servants (Enquiry) Act, and it was held that such a Commissioner is not Court principally for two reasons:

(1) the expression ''Courts subordinate to the High Court'' would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union and (2) in terms to Sections 19 and 20 of the Indian Penal Code and pronouncement of a definitive judgment is considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced it is not a Court. In this connection reference was made to the definition of ''judicial power'' by Griffith, C.J. quoted with approval by Privy Council in Shell Company of Australia v. Federal Commissioner of Taxation (1931) A.C. 275 as the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty and property. It was further held that a Tribunal is not necessarily a Court in the strict; sense of the terms because it gives final decision, hears witnesses on oath or makes decision which affects the rights of the subjects. As observed in Rex v. Electricity Commissioners (1924) 1 K.B. 171:

An administrative Tribunal may act judicially, but still remains an administrative Tribunal as distinguished from a Court strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoc Tribunal an exercise by a Court of judicial power. The Supreme Court thereafter referred with approval to its previous decision in The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, ; Maqbool Hussain Vs. The State of Bombay, and S.A. Venkataraman Vs. The Union of India (UOI) and Another, . The Supreme Court then considered some of the decisions relating to Tribunals which were not Courts in the strict sense of the term and held that those cases do not relate to Courts as contemplated under the Contempt of Courts Act but were concerned with the extension of the principles of immunity of members of a Tribunal or witnesses in a judicial proceeding and the Courts logically extended the principle of immunity beyond the Courts of justice to Tribunals or bodies of persons functioning in a manner and according to the procedure which was assimilated to a judicial enquiry. The extension of immunity to such Tribunals or bodies would not, however, constitute them Courts of justice or Courts of law.

Supreme Court thereafter fell back upon the tests laid down by it for determining what is a Court strictly so called, within the connection of the term as used in the Contempt of Courts Act.

On this view, it is clear that though the Rent Controller or the Appellate Officer under the Premises Tenancy Act may have the authority to pass definite and binding order in accordance with the law laid down in the Act itself still they are not Courts within the meaning of Contempt of Courts Act, because they are not within the hierarchy of Courts of justice or Courts of law, exercising original, inherent sovereign authority of the State. They are not Courts under Bengal, Agra and Assam Civil Courts Act or u/s 6 of the Code of Criminal Procedure or under any other provisions of that Act or under the CPC Code. Where special Courts are constituted, such as under the Prevention of Corruption Act in the exercise of the sovereign authority in accordance with the general law of the land with certain modifications in the procedure or in punishment or where a regular Court is given special power under a special Act, say, Calcutta Municipal Act or Bengal Municipal Act, then, if they can exercise their sovereign authority in accordance with the general law of the land, though the power is conferred under a special statute, they may be termed as judicial Tribunals to which also Section 3 of the Contempt of Courts Act might be attracted. But in the case of the Rent Controller or Appellate Officer they do not function as sovereign authority in the exercise of the power granted to them by law, but as mere creatures of special statutes under a special provision overriding the general law of the land or the agreement between the parties. In such a case, though they may be Tribunals -exercising judicial or quasi-judicial functions, they cannot be treated as Courts subordinate to the High Court under Contempt of Courts Act. In this connection particular reference may be made to the observation of Mukherjee J. in Bharat Bank Ltd. (Supra, pp. 206-209). The first fundamental test is this:

the decision itself irrespective of the facts decided, must create rights and impose obligations; and it should be enforceable as such under the ordinary law of the land The other fundamental test which distinguishes a judicial from a quash-judicial or an administrative body is that the former decides controversies according to law while the latter is not bound strictly to follow the law for its decision. It was held that the Industrial Tribunals under Industrial Disputes Act were not Courts not only because they could not give binding or authoritative decision but also because the process employed is not judicial process at all. It can confer rights and privileges on either party which it considers reasonable and proper though they may not be within the terms of a existing agreement.... It can create new rights and obligations between them which it considers essential for keeping industrial peace.... The tribunal is not bound by the rigid rules of law. Similar observation will apply in the case of the Rent Controller and Appellate Authority and we may particularly refer to Sections 4, 5, 6, 8 to 11 of the West Bengal Premises Tenancy Act.

In this connection we may refer to the decision in Lakhama Pesha v. Venkata Swamirao (Supra) where Chagla C.J. held that ''Chief Judge'', Small Cause Court, although he is a persona designate in passing an order u/s 507 of the City of Bombay Municipal Act, is a Tribunal which would fall within the ambit and purview of Article 227. As he is undoubtedly an authority exercising judicial functions and is also judicially subordinate to the High Court, it is open to the High Court to take cognizance of the contempt committed in respect of such Chief Judge ordering as persona designata u/s 507 of the City of Bombay Municipal Act and it was also held that it was unnecessary to restrict the meaning of the expression ''Courts subordinate to the High Court used in Section 3 of the Contempt Act''. But this decision was made prior to the" decision of the Supreme Court hi Brajnandan''s case (Supra) which supersedes the Bombay decision if there is a conflict between the two. Besides, the view of Chagla C.J. may be justified and reconciled on the facts of that case because the Chief Judge, though a persona designata, was exercising the functions of a judicial Tribunal in accordance with the general \\aw of the land and not simply under a special law provided under the Municipal Act of Bombay though the power of the Chief Judge was extended to such a case u/s 507 of that Act. There are no restrictions in the exercise of the sovereign power of the Chief Judge, but these are extensions of the special power to the Chief Judge itself though in his personal capacity. But the Rent Controller or the Appellate Authority under the Premises Tenancy Act does not employ judicial process in the exercise of the power granted to them under a special statute in violation of the general law of the land and agreement between the parties. In such cases, there can be no contempt under the Contempt of Courts Act in respect of such Tribunals and the remedy lies elsewhere. Moreover, the facts are also different. In the Bombay case, special and repeated orders were passed by the Chief Judge for compliance within a specified date in effecting repairs of the building and re-admitting the old tenant into the tenancy. But both these orders were flouted and the building was demolished and even when the new building was constructed the old tenants were not re-admitted in the tenancy. Civil contempt merged into criminal contempt.

In this connection reference may be made to the decision in Thakur Jugal Kishore v. The Sitamarhi Central Co-operative Bank Ltd. (Supra) where a Registrar or an Assistant Registrar -exercising the powers u/s 48 of the Bihar and Orissa Co-operative Societies Act was held to be a Court as they discharge the duties which would otherwise have fallen on the ordinary civil and revenue Courts of the land.

The ratio of that decision was the finding that they oust the jurisdiction of the civil Courts and they themselves exercised judicial power. The Supreme Court, however, observed at the end of their judgment that their decision in that case is expressly limited to the Registrar and the Assistant Registrar like the one before us governed by the Bihar and Orissa Cooperative Societies Act.

But there are no similar provisions in the West Bengal Premises Tenancy Act. In spite of the fine imposed u/s 31 of the Act by. the Rent Controller the opposite party may file a suit for a declaration that there is no such easement annexed to the tenancy as has been found in a proceeding u/s 31 of the Act. If that be so, then it cannot be said that the order of the Rent Controller u/s 31 of the Act ousts the jurisdiction of the civil Court to decide the question of easement being or not being annexed to the tenancy. Merely because they can pronounce definitive judgment after hearing the parties in accordance with law they do not become Courts as in that case all statutory Arbitrators will become Courts, but the Judicial Committee of the, Privy Council will not be a Court as it cannot itself pronounce judgment or order but only humbly advises His Majesty what is to be done. These are, if I may say so with respect, only superficial tests applicable to the facts and circumstances of a particular case for defining what is a Court under the Contempt of Courts Act.

In the next case, Ramrao v. Narayan (Supra), it was held that a nominee of the Registrar appointed u/s 95 of the Maharastra Co-operative Societies Act is not a ''Court'' within the meaning of Section 195 of the Criminal Procedure Code. Same or similar provision as in the case cited above is to be found in both the Acts. The connotation of the word ''court'' is wider in Section 195 of the Code of Criminal Procedure and includes not only civil, criminal and revenue Courts but also Tribunals having such power and what is not a ''court'' u/s 195 of the Code of Criminal Procedure can hardly be a court u/s 3 of the Contempt of Courts Act. The word ''court'' has different meaning under different circumstances and under different laws. The definition of ''court'' in Section 3 of the Evidence Act is too wide and does not apply to Section 3 of the Contempt of Courts Act as decided in Brajnandan''s case (Supra). The- word ''court'' in Section 115 of the CPC or Section 6 of the Code of Criminal Procedure are narrower than the word ''court� in the Contempt of Courts Act. The word ''court'' is also distinguished from ''tribunal'' as mentioned in Articles 227 and 136 of the Constitution, but there is no mention of the word ''tribunal'' in Section 3 of the Contempt of Courts Act passed in 1952. It is neither desirable nor proper to give an extended meaning to the word ''court'' to include ''tribunal'' which is mentioned in Article 227 of the Constitution passed before 1950 but are omitted in the Contempt of Courts Act passed in 1952. It would-be wrong in principle and dangerous to hold that merely because a Tribunal is subordinate to High Court under Article 227 of the Constitution, the Tribunal must be held to be a Court. There are many quasi-judicial bodies like Universities, Industrial Tribunals, Commissions of Enquiry, which are under Article 227, subordinate to the High Court, but which are held to be not Courts under the Contempt of Courts Act. The reasonable inference is obvious and clear that Tribunals which are not Courts in the strict sense of the term are not Courts subordinate to the High Court as contemplated in Section 3 of the Contempt of Courts Act. It is well-settled in the interpretation of the statutes, a penal provision should be construed strictly in favour of the accused and when two views are possible in respect of the interpretation that view is to be preferred which is favorable to the accused. Judged by this standard also the extra-ordinary jurisdiction should not be extended to Tribunals which are not mentioned in Section 3 of the Contempt of Courts Act, unless such Tribunals are ''Courts'' in the strict sense of the term.

Whether a Tribunal is a Court or not within the meaning of the Contempt of Courts Act cannot rest on ad hoc decisions by mechanical application of hair-splitting discussions in each individual case as to the ''attributes of a Court'' or ''judicial power''. Court''s decision must rest on a surer foundation of broad and bold judicial principle or policy. First, it must not only be a mere creature of statute but also have original inherent sovereign authority. Secondly, it must exercise judicial power on the well-recognised principle of deciding finally questions of fact and law on evidence after hearing the parties. Thirdly, in the exercise of that power, it must employ judicial process by applying the general law of the land, though the power is conferred by a special statute. These conditions must coexist and are to be treated as cumulative to make a Tribunal a Court within the meaning of the Contempt of Courts Act. Judged by this standard, the Rent Controller or the Appellate Authority is not a Court, though they fulfill condition (2), they do not fulfill conditions (1) and (3).

That the summary power of punishment by committal and attachment under the Contempt of Courts Act should not be extended to the Tribunals exercising judicial or quasi-judicial function was emphasized by Oswald On Contempt (3rd ed.) In its origin, all legal contempt will be found to consist in an offence more or less direct against the sovereign himself as the fountain-head of law and justice or against his palace where justice is administered. (Page 1) and The proceeding by attachment or committal is supplemental to that by criminal information or indictment. The summary jurisdiction of the Court is a jurisdiction to be exercised only when the case is clear and beyond reasonable doubt, the Courts will and ought to leave the Attorney-General to proceed by criminal information. (Page 7) It is clear, therefore, that in origin the contempt is directed against sovereign authority administering justice for enforcement of its order and protection of Judges in the interest of the public in general in the administration of justice at a time when other civil and criminal remedies were not adequately denned or developed in the common law of England which is the source and inspiration of the Contempt of Courts Act in India. But adequate remedies for the protection of the Judicial Officers under the Judicial Officers Protection Act and for enforcement of the order of the Civil and Code of Criminal Procedure have since been developed in India. There is thus no scope and no necessity for extension of the- doctrine of Contempt of Court which should be restricted to its original purposes and confined to the well-established procedure as far as practicable. That judicial decisions must change with the charge of circumstances may be found from the general observation of the Privy Council in Ram Lal v. Dhirendra Nath Roy (Supra) which held that the doctrine of suspension of rent should be replaced by the doctrine of abatement of rent in Bengal on account of the conditions of the subject-matter and the growth of adequate relief�s by way of specific performance, damages and abatement of rent. The same considerations are applicable to the Contempt of Courts Act which should not be extended as adequate remedies for protection of Judicial Officer, and enforcement of orders have since been developed in India.

Judged by these considerations stated above, the Rent Controller or the Appellate Authority though Tribunals exercising judicial or quasi-judicial powers is not a Court within the meaning of Section 3 of the Contempt of Courts Act.

As to the third point, the alleged contempt is in the nature of civil contempt as distinct from criminal contempt. It is now well-settled that non-compliance or even willful failure to comply with the mandatory order of any Court passed in the interest of a private party is a civil contempt and reference may in this connection be made to Halsbury''s Laws of England, (3rd ed., vol. 8, pp. 2, 20 and 25), Oswald On Contempt (3rd ed., chaps. II, III and IV), Hem Bala Dassi Vs. Sundar Shaw and Others, and Dulal Chandra Bhar and Others Vs. Sukumar Banerjee and Others, .

The next and the fourth point for consideration is whether the application has been properly framed and the procedure necessary for assumption of jurisdiction has been taken. In affidavit-in-reply it was stated that the application was not in proper form and mala fide inasmuch as punishment by imprisonment was prayed for without taking any step according to law for restoration of water supply. It was held in N. Baksi Vs. O.K. Ghosh, :

It is but inherent in the situation that a person charged with an obligation under the judgment or order of a Court should not be held up for the disobedience thereof unless a copy of the order commended therein has been validly served upon him, barring no doubt those cases where any delay in the service instead of promoting the cause of justice is likely to frustrate the very object underlying the proceeding in contempt.

The same view was held in Dwijendra Krishna Dutta Vs. Surendra Nath Nag Choudhury and Others, willful disobedience to a judgment or order requiring a person to do any act other than the payment of money or abstain from doing anything is a Contempt of Court punishable by attachment or committal.

But, In order to found an application for attachment or committal for disobedience of an order, service of the order alleged to have been disobeyed has to be proved as a sine qua non.

It is immaterial whether the breach of the mandatory order complained of was passed in the presence of the opposite party or even on consent. Even then this order has to be served or promulgated and a date has to be fixed for compliance after which a proceeding for contempt can be started. In the present case, however, though a letter was sent by the Petitioner to the opposite party on June 19, 1939, complaining of short supply of water on June 16, 1969, in violation of the order of the Rent Controller, this private notice is no substitute for the service of the order of the Court on the opposite party before proceedings are taken out under the Contempt of Courts Act, 1952. Some exceptions have been considered both by Oswald and Halsbury. But the present case does not come within any of these exceptions. In this connection reference may be made to Oswald On Contempt (3rd ed., p. 199) and Halsbury''s Laws of England (3rd ed., vol. 8, p. 36).

The fifth and the last point for consideration is, if the opposite party is guilty under the Contempt of Courts Act and if he should be punished under the same. Even assuming that the Rent Controller or the Appellate Authority is a Court subordinate to the High Court, cognizance of such contempt is barred under Sub-section (2) of Section 3 of the Contempt of Courts Act, if such contempt is punishable u/s 188 or Section 228 of the Indian Penal Code. If in spite of the order of the Rent Controller to restore water from the overhead tank being duly promulgated, there is defiance or disobedience of such order, action may be taken u/s 188, Indian Penal Code. In Nandalal v. State (Supra), a notice was served u/s 34(1) of the Premises Tenancy Act for which cause can be shown u/s 34(2) of the Act. There was no order passed by the Rent Controller nor was such order promulgated and, accordingly, the proceeding u/s 188, Indian Penal Code, was quashed. When a mandatory order is passed in the interest of a private person, such order is to be served and a date fixed for compliance as held in N. Bakshi v. O.K. Ghosh (Supra) and Dwijendra v. Surendra (Supra). If it is held in Nandalal''s case (Supra), stated before, that Section 188, Indian Penal Code, is not at all attracted to an order in the interest of a private person, then it would be a dangerous and untenable proposition unwarranted by the wordings of the section, and I respectfully dissent from it as the people may then flout such order with impunity. As I read it, I respectfully agree with the conclusion in Nandalal''s case (Supra) that as no order of the Rent Controller was promulgated, the proceeding is to be quashed. Jurisdiction under the Contempt of Courts Act cannot be assumed merely because the necessary step by promulgation of the order was not taken for an action u/s 188, Indian Penal Code. Proceeding in contempt is, therefore, barred.

If, in spite of all that has been observed before, it is held that contempt has been committed under Contempt of Courts Act, this is not a fit case for punishment. It has been held in Dulal v. Sukumar (Supra), that while it is necessary to exercise jurisdiction in contempt on proper occasions it is of equal importance that the integrity of proceedings in contempt ought to be applied and maintained by taking the utmost care that it is not used on occasions or in cases to which it is not appropriate. It is not the law that the High Court cannot exercise jurisdiction under the Contempt of Courts Act merely because alternative remedy is held available, but at the same time it has been repeatedly held that the greater the power the Court should be more careful in exercising that power with restraint and restrictions, in the instant case, proceeding or punishment under the Contempt of Courts Act is not proper for the following reasons:

(1) Out of two directions for payment of fine and for restoration of water supply the opposite party complied with the order of the payment of fine and admittedly restored water though insufficiently between June 8 to June 16, 1969.

(2) u/s 38 of the Premises Tenancy Act read with Order 21, Rule 32, Sub-rule(1) and (Supra) there is provision for restoration of water supply by execution and, if necessary, to get restoration of water supply through the Rent Controller at the cost of the opposite party. The Petitioner can get speedy remedy under or on the analogy of Sections 34/35 of the Act. This procedure will also bring to. the notice of the Controller of the relevant facts as to (i) the supply of water available, (ii) the defect, if any, in the system of plumbing or in the water pipe, or (iii) the manipulation, if any, of the stopcock and proper orders can be passed after being appraised of these facts.

(3) The order passed by the Rent Controller directing the water connection to be restored may be enforced by other proceedings for non-compliance including Section 188, Indian Penal Code, after promulgation of the order, when the Petitioner has not been disturbed or obstructed in exercising his rights of the existing possession: Dulal v. Sukumar (Supra).

(4) If every case of non-compliance of the order of the Court attracts Contempt of Courts Act, then there would be perhaps as many Contempt of Court proceedings as there are decrees in ejectment against tenants for vacating the suit premises within a fixed time which are not complied with even after the disposal of the last appeal or when a judgment-debtor or Defendant fails to make payment of money or to execute any document in terms of an order of the Court. Similarly, there will be as many proceedings in contempt for mere non-compliance of the directions against landlord or creditors either under the Premises Tenancy Act or under other Acts. There will be also proceedings under the Contempt of Courts Act when fines are not paid by the accused within the time fixed by the Court particularly in those cases where there is no provision for imprisonment in default of fine. It is immaterial whether the order itself lays down the remedy for non-compliance when the Act itself prescribes the procedure for enforcement in default of compliance. In either case, the remedy is available Under the ''order'' or the Act, as the case may be. Even in case of a breach of an undertaking to Court, where alternate remedy was available, the discretionary power of the High Court to order committal for contempt was not held to be justified: Sukumar Mitra Vs. Tarasankar Ghosh, . The Contempt of Courts Act are not meant for such cases of non-compliance though in extreme cases where non-compliance may amount to disobedience or even defiance of the order of the Court and the civil contempt merges into criminal contempt, the question of proceeding under the Contempt of Courts Act may arise.

I am satisfied that in this and similar case of civil contempt arising from non-compliance of the order of the Court, the jurisdiction under the Contempt of Court should rarely be invoked and the dignity and authority of the Court will be better maintained by not exercising such special power rather than by wanton and indiscriminate exercise of this power which itself may tend to bring the Court to ridicule.