Sakti Banerjee and Another vs Swadesh Angrish

Gorachand De, J.—The landlords Mr. Sakti Banerjee and Sachindra Nath Banerjee have filed the instant criminal revisional application u/s 397/482 of the Code of Criminal Procedure against their tenant Smt. Swadesh Angrish praying for setting aside the order dated 8th July. 1997 passed in premises tenancy case No. 42 of 1997 passed by the learned Additional Rent Controller. Howrah along with the order dated 26th November. 1997 passed in Misc. Appeal No. 167 of 1997 by the learned District Judge, Howrah. The tenant filed a complaint case against the landlords u/s 31 of the West Bengal Premises Tenancy Act. 1956 alleging that the landlords committed an offence within the meaning of that Section by disrupting and/or stopping regular supply of water in the tenanted premises. The Sub-Divisional Magistrate at Howrah, who was also entrusted with the power of Rent Controller at Howrah, took evidence of the complainant and thereafter, took cognizance of the offence u/s 190(a)(1) of the Code of Criminal Procedure, directed immediate restoration of the water supply in the tenanted premises and thereafter, issued summons upon the landlords/O.P.s.

The landlords challenged the said order in appeal before the learned District Judge. Howrah in Misc. Appeal No. 167 of 1997 and the learned District Judge by order dated 26.11.97 dismissed the Misc. Appeal after coming to the conclusion that the impugned order was not a final order and accordingly, no appeal is maintainable under the provision of Section 29 of the Act. By the present revisional application the landlords have challenged both the orders as stated above.

Mr. Haradhan Banerjee, learned counsel appearing on behalf of the landlords was fair enough to point out that the instant application u/s 397/482 of the Code of Criminal Procedure should be treated as an application under Article 227 of the Constitution of India inasmuch as the learned Rent Controller whose order has been challenged in this proceeding is not a court and not an inferior Criminal Court within the meaning of the Code of Criminal Procedure.

So the first point for consideration is whether the instant application should be treated as an application under Article 227 of the Constitution of India.

Mr. Banerjee, learned counsel for the petitioners referring to the decision of the Apex Court in Pepsi Foods Ltd. & Anr. us. Special Judicial Magistrate & Ors., reported in 1997(9) Supreme 279, contended that if in a case the court finds that the appellant could not invoke its jurisdiction under Article 226 of the Constitution of India the Court can certainly treat the petition as one under Article 227 of the Constitution or u/s 482 of the Code of Criminal Procedure. In the said decision a writ petition was filed under Article 226 of the Constitution praying for quashing of the complaint filed against the accused persons u/s 7/16 of the Prevention of Food Adulteration Act, 1954. In paragraph 20 of the said decision their Lordships took the view that nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. Their Lordships also viewed that though provisions exist in the Code as regards revision and appeal but sometimes for immediate relief Section 482 of the Code or Article 227 of the Constitution may have to be restored to for correcting some grave errors that might be committed by the Subordinate Courts.

Of course, the learned Rent Controller was not a Subordinate Court, not to speak of an inferior Criminal Court. In the case of B. Halder vs. P.M. Chakraborty, reported in AIR 1967 Calcutta 6, this court took the view that though the Rent Controller is not an inferior Criminal Court, but exercises criminal jurisdiction while dealing with the application u/s 31 of the West Bengal Premises Tenancy Act and hence, the order passed by the learned Rent Controller is subject to the superintendence of the High Court under Article 227 of the Constitution of India. Accordingly, Mr. Banerjee submits that the instant application is to be treated as an application under Article 227 of the Constitution inasmuch as there is no other procedure in the West Bengal Premises Tenancy Act to challenge the order passed by the learned Rent Controller before the Hon''ble High Court.

In the case of Mathura Prosad Rajgharia Vs. Kanailal Mullick and Others, , an appeal was preferred u/s 417(3) of the CPC against an order of the appellate authority u/s 29 of the West Bengal Premises Tenancy Act but this Court treated the said petition of appeal as one under Article 227 of the Constitution of India and viewed that the learned Rent Controller was not a Court under the Code of Criminal Procedure. Actually in the matter of enquiry or trial in respect of an offence under the West Bengal Premises Tenancy Act the Rent Controller does not convict or acquit the landlord or other persons acting under the landlords. Similar view was taken by this Court in K. Singh Deo vs. K.. Sridharan, reported in 89 CWN 359. In this case as well as in Mathura Prosad Rajgharia (supra) it was found by this Court that the Rent Controller being a persona designata is not competent to take cognizance of the alleged offence as is done by a Magistrate under the Code of Criminal Procedure.

Mr. Banerjee, learned counsel for the petitioners has also placed reliance on another judgment of this court in the case of Gour Kishore Das vs. Krishna Kumar Bose, reported in 1991(2) Cal. L.T. 267. High Court in support of his contention that the Rent Controller''s power of imposition of fine and the order of restoration of any supply or service depends upon the condition of his finding of willful interference with supply or service by the landlords, and the learned Rent Controller can come to such a finding only after regular enquiry on merits. So. Mr. Banerjee contends that willful interference with the supply of service is a condition precedent for the purpose of imposition of fine. An order of restoration of supply of water as was done by the impugned order by the learned Rent Controller can only be passed after proper enquiry as regards willful interference by the landlords.

Mr. Banerjee further argued that the word ''And'' appearing before the words ''Controller may order immediate restoration of any supply or service which has been interfered with'' is conjunctive and not disjunctive. Hence. Mr. Banerjee concluded that without full fledged enquiry and without a full trial in respect of the alleged offence u/s 31 of the Act an ex parte interim order of immediate restoration of supply is not only irregular but also illegal.

Mr. R.S. Chattopadhyay. learned counsel appearing on behalf of the opposite party, however, placing reliance on the decisions in the case of Mrinalini Ghosh & Ors. vs. Shibnath Bhadra. reported in 1980(1) CLJ 86 and in the case of Gobinda Chandra Mondal vs. Samarendra Nath Kundu, reported in 1988(1) CHN 288. argued that the Controller can take cognizance of an offence u/s 190(1)(a) of the Code and can proceed in accordance with the provisions of the Code of Criminal Procedure in view of Rule 10(a) of the West Bengal Premises Tenancy Rules, 1956. I deem it proper to reproduce the Rule 10 as hereunder:

"Procedure far enquiries.-In making enquiries under the Act, the Controller shall follow, as nearly as may be. the procedure laid down.-

(a) in the case of enquiries relating to offences, in the Code of Criminal Procedure. 1908, for the trial of cases, and

(b) in the case of all other enquiries, in the Code of Civil Procedure, 1908 for the trial of suits, recording a memorandum of the substance only of the evidence and the reasons for his findings as in the cases in which no appeal lies.

It is clear from the said Rule that in making enquiries under the West Bengal Premises Tenancy Act the Rent Controller shall follow "as nearly as may be" the procedure laid down in the case of enquiry relating to offence, in the Code of Criminal Procedure, 1908 for the trial of the case. The above mentioned two decisions cited by Mr. Chattopadhyay practically took into consideration the decision taken in the case of Jhabermal Dudhwalla and Others Vs. Govindram, , in which the question of quashing of proceeding initiated u/s 41 of the West Bengal Rent Control Act, 1950 was taken care of. In paragraph 5 of the said decision it was held that proceeding u/s 34 of the Act of 1950 cannot stand in the way of the proceeding of the Criminal Cases and Section 403 of the Code has got no manner of application. But it has to be noted that Section 31 of the Act of 1950 is almost equivalent to Section 31 of 1956 Act excepting the last portion.

In Section 34 of the Act of 1950 there was no provision of immediate restoration of any supply or service which was found to be interfered with. But in Section 31 of the 1956 Act the said provision has been included. It is also to be noted that u/s 41 of 1950 Act, the Rent Controller was authorised to award punishment with imprisonment for a term which may extend upto six months or with fine or with both. So the decision in Jhavermal Dudhuwala (supra) considered that the Rent Controller had the power to pass sentence of imprisonment like a Magistrate.

In Pulin Krishna Paul Vs. Sishupati Chakravarty and Another, , a Division Bench of this Court also duly considered the constitutionality of the double punishment vis-a-vis interpretation of Article 20(2) of the Constitution. In that case also it was viewed that the Controller was empowered u/s 41 of the Act of 1950 to award punishment by putting landlord into the jail.

But in the 1956 Act there is no provision like Section 41 of the Act of 1950. The Division Bench of this Court in the case of Mayabati Holder vs. Rent Controller, reported in 1981 (1) CLJ 133, however examined the question and came to the finding that proceeding u/s 31 of the Act of 1956 is not a criminal proceeding and the Rent Controller does not convict a person. If the Rent Controller is satisfied about the commission of an offence he merely imposes a fine. So the view was taken that proceeding before the Rent Controller was in the nature of criminal proceeding i.e. quasi criminal proceeding.

The said Division Bench judgment in Mayabati Halder''s case (supra) was duly considered in the case of Gour Kishore Das (supra), but finding in this case that acquittal of the opposite party in a proceeding u/s 31 of the West Bengal Premises Tenancy Act is to be given under the provision of Section 256 of the Code of Criminal Procedure runs counter to the judgment of the Division Bench in Mayabati Halder''s case (supra).

Mr. R.S. Chattopadhyay, learned counsel for the O. P. submits relying on the judgment of the Bijan Behari Bose & Ors., reported in 1996(2) CLT 460, that the order of giving immediate restoration of supply is not dependent on the enquiry as regards fine. It is also argued that the word And'' as appearing in Section 31 is to be construed as disjunctive. It appears from the said judgment that the learned Single Judge of this court while exercising power under Article 227 of the Constitution at the time of admission hearing, ordered restoration of water supply. But It is to be noted that in the said decision it was neither argued nor considered as to whether the word ''And'' u/s 31 of the Act was disjunctive or conjunctive, and accordingly the said decision cannot be treated as an authority on the question arising in this case. In the present case the principal question is whether the Rent Controller can take cognizance u/s 190(1)(a) of the Code of Criminal Procedure and whether he can order immediate restoration of supply or service without making any enquiry u/s 31. The decision in Gour Kishore Das (supra) squarely applies on the point and as such, the judgment passed in Bijan Behari Bose''s case (supra) is distinguishable not only on the proposition of law but also on facts.

Mr. Chattopadhyay learned counsel for the OP. also argued that u/s 31 of the Act of 1956 the Rent Controller at the time of issuing process was competent to order immediate restoration of any supply or service. In support of his argument he has contended that there is no provision in the Act which can give immediate relief to a tenant in respect of disruption of any essential supply or service and as such, legislatures in their wisdom added the portion "And the Controller may order immediate restoration of any supply or service which has been interfered with towards the end of Section 31 which is almost same of Section 34 of 1950 Act excepting the added portion. So it is argued that such inclusion in Section 31 was willful and with a purpose for giving immediate relief to the tenant. So the learned counsel contended that there is no reason to interfere with the order passed by the Rent Controller or by the learned District Judge sitting in appeal.

Mr. Banerjee, learned counsel for the petitioners rightly replied on this score pointing out that in Gour Kishore Das''s case this court has taken the view that the order of restoration of service is permissible only after proper enquiry u/s 31. If after enquiry the Rent Controller finds that there was necessity to impose fine, then and then only an order of restoration of service can be passed. It is also rightly pointed out that the word ''May'' in this portion indicates that it is not mandatory.

Mr. Banerjee further argued that for getting immediate relief there are other provisions in the Act. namely Sections 34 and 35.

It is true that the portion as quoted hereinbefore was added to the last portion of Section 31 of the Act of 1956. but at the same time it is to be noted that provision of giving punishment of imprisonment as was permissible under the Act 1950 has been omitted and consistent view of this court is that the Rent Controller is neither an inferior criminal court nor a Magistrate nor a court. The Rent Controller is merely a persona designata. In the Act of 1950 the Rent Controller used to exercise Magisterial power and he was authorised to impose imprisonment, but at the risk of repetition. It is to be stated that in the Act of 1956 there is no such provision and as such while dealing with a complaint. u/s 31 of the Act the Rent Controller under Rule 10(a) is to follow the procedure laid down under the Criminal Procedure Code as nearly as may be. It appears from the impugned order that the Rent Controller like the Magistrate took cognizance u/s 190(1)(a) of the Code which he was not competent lo do. But being a persona designata the Rent Controller is competent to take cognizance in the case with regard to enquiry relating to an offence following the procedure as nearly as may be in the Code of Criminal Procedure. So taking of cognizance being permissible in law, I do not find any reason to interfere with the taking of cognizance in this case. But it is made clear that taking of the said cognizance is not u/s 190(1)(a) of the Code of Criminal Procedure. It is simply taking of cognizance following the procedure of the Code of Criminal Procedure as nearly as may be. So I do not find any reason to interfere with that part of the impugned order.

But as regards second part of the impugned order I am of the view that the Rent Controller was incompetent to make any order of immediate restoration of supply of water without making any enquiry as envisaged u/s 31 of the Act. If the argument of Mr. Chattopadhyay learned counsel for the O.P., is accepted then there will arise certain situation which is not contemplated in the Act itself. If the contention of Mr. Chattopadhyay is accepted then immediately after filing of the complaint the Rent Controller can pass an order of restoration of supply, and immediately on getting restoration of supply the complainant has a chance not to proceed with the case and in that event the Rent Controller at the time of dismissal of the complaint shall be precluded from ordering disconnection of the supply. To my mind such a situation is not contemplated in the scheme of the Act. For immediate restoration of supply the Legislatures in their wisdom codified Sections 35 and 34 of the Act and as such, the provision of Section 31 for immediate restoration of supply is not permissible under the Law.

This question can also be discussed from another angle. u/s 31 a proceeding can be started on the basis of a ''complaint''. But under Sections 34 and 35 such proceeding can be started on the basis of an ''application''. u/s 35 itself there is provision on the basis of which the Controller is competent to make "immediate enquiry" and thereafter, to direct the tenant to undertake proper steps within the time limit. It is a settled principle of law that without proper enquiry without giving the opposite party an opportunity of being heard an order like restoration of supply should not be passed. At least in the Act of 1956 there is no provision of passing an ex parte interim order restoration of supply without giving any notice and without giving an opportunity to the landlord of being heard.

The Rent Controller u/s 31 of the Act is competent to pass an order of immediate restoration of supply or service if after enquiry he finds that service has been interfered with, and the said order of restoration can only be passed as soon as the One is imposed on the basis of enquiry made u/s 31 of the Act. Section 31 of the Act is a penal provision for the purpose of imposition of fine and also for giving consequential relief by way of ordering restoration of supply or service and I respectfully agree with the decision taken by this Court in Gour Kishore Das''s case (supra).

So in view of the discussion hereinbefore made and keeping in view the circumstances, I come to the conclusion that the impugned order of restoration of water supply is bad in law and it is liable lo be set aside. in this connection it is also to be noted that the appellate court failed to consider that the order of restoration of supply was actually in the nature of final order and as such he was competent to interfere with the order treating the order to have been passed u/s 29 of the Act. The finding of the learned District Judge is accordingly bad in law and is also liable to be set aside.

So on the basis of the power envisaged under Article 227 of the Constitution. I deem it proper to allow the present application after setting aside the impugned order dated 26th November, 1987 passed by learned District-Judge, Howrah in Misc. Appeal No. 167/97 and the order dated 8th July, 1997 passed in Premises Tenancy Case No. 42/97 so far as those relate to the restoration of water supply in the tenanted portion as well as taking of cognizance u/s 190(A)(1) of the Code of Criminal Procedure. It is made clear that the Rent Controller shall be at liberty to proceed with the proceeding u/s 31 on the basis of cognizance taken in the manner indicated and clarified hereinabove. The interim order passed by this court is made absolute to this extent;

Since the matter is long pending and relates to a complaint as regards stoppage of essential service like water, the Rent Controller is directed to dispose of the matter expeditiously. Let a copy of this order be sent down to the learned Rent Controller forthwith.