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Haji Mahomed Haji Alli Mahomed Vs. State - Court Judgment

LegalCrystal Citation
SubjectTenancy;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1288 of 1951
Judge
Reported inAIR1952Bom399; (1952)54BOMLR426; ILR1953Bom12
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 24, 24(2), 24(3) and 24(4); Indian Penal Code (IPC), 1860 - Sections 114 and 426
AppellantHaji Mahomed Haji Alli Mahomed
RespondentState
Appellant AdvocateA.A. Peerbhoy and ;V.H. Kamat, Advs.
Respondent AdvocateB.G. Thakore, Asst. Govt. Pleader
Excerpt:
.....be expected that a criminal court would be called upon to consider whether a landlord has, without just or sufficient cause, cut off or withheld any essential supply or service enjoyed by the tenant in respect of the premises let to him'.the decision of that application was not based on this observation of their lordships, and moreover neither this observation nor section 24 of act lvii of 1947 ousts the jurisdiction of the criminal court in cases falling under section 24(4) of the act. sub-section (1) of section 24 of the bombay rents, hotel and lodging house rates control act, 1947, provides that no landlord shall, without just or sufficient cause, cut off or withhold any essential supply or service enjoyed by a tenant in respect of the premises let to him. thereafter, if the landlord..........conclusion that the complainant was a tenant of accused no. 1, and that accused no. 1 had, without just or sufficient cause, cut off the electric supply. he, therefore, convicted accused no. 1 under section 24(4) of the bombay rents, hotel and lodging house rates control act and section 426, indian penal code, and imposed on him a fine of rs. 201. in his judgment the trying magistrate observed as follows:'the defence counsel has then referred to another judgment of the bombay high court, in cri. revn. appln. no. 707 of 1949 in the case of petitioner v.g. sayadiant. the facts of that case were different - but my attention has been drawn to one passage in the judgment wherein their lordships after considering the scheme of section 24 of act lvii of 1947 observed 'excepting in very.....
Judgment:

FACTS

1. One Haji Mahomed Haji Alli Mahomed (accused No. 1) who was one of the trustees of a trust, which owned a building in Narayan Dhuru Street, put up an unauthorised construction on the ground floor of the building near the stair-case and let this portion to Kassam Ismail (complainant). The complainant's case was that the premises were let to him on his agreeing to pay Rs. 12 as rent and Rs. 7 for the consumption of electricity. It was also the complainant's case that when the premises were let to him, accused No. 1, gave him an electric connection from his own meter. The electric connection was cut off on or about March 1, 1951. The complainant then filed a complaint against the appellant and an electrician, who had actually cut off the connection under the instructions of accused No. 1, under Section 426 read with Section 114, Indian Penal Code.

After recording the evidence of the complainant and two other tenants of the same building, the trying Magistrate framed two charges against the accused. The first charge was under Section 24(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The second charge was under Section 426, Indian Penal Code. Accused No. 1 in his written statement did not deny that he had cut off the electric connection. He, however, raised various defences, some of which were that the complainant was not his tenant; that in any case the tenancy was unlawful, as no intimation about it had been given to the authorities concerned, as required by the Bombay Land Requisition Act, 1948, and that he could not be convicted under Section 24(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as the complainant had not first approached a civil Court for a direction for the restoration of the service under Sub-section (2) of Section 24 of this Act.

The Magistrate came to the conclusion that the complainant was a tenant of accused No. 1, and that accused No. 1 had, without just or sufficient cause, cut off the electric supply. He, therefore, convicted accused No. 1 under Section 24(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act and Section 426, Indian Penal Code, and imposed on him a fine of Rs. 201. In his judgment the trying Magistrate observed as follows:

'The defence counsel has then referred to another judgment of the Bombay High Court, in Cri. Revn. Appln. No. 707 of 1949 in the case of petitioner V.G. Sayadiant. The facts of that case were different - but my attention has been drawn to one passage in the judgment wherein their Lordships after considering the scheme of Section 24 of Act LVII of 1947 observed 'Excepting in very exceptional circumstances, it would not be expected that a criminal Court would be called upon to consider whether a landlord has, without just or sufficient cause, cut off or withheld any essential supply or service enjoyed by the tenant in respect of the premises let to him'.

The decision of that application was not based on this observation of their Lordships, and moreover neither this observation nor Section 24 of Act LVII of 1947 ousts the jurisdiction of the criminal Court in cases falling under Section 24(4) of the Act. Therefore, when the complainant has actually come to the criminal Court, which has heard the case, I do not think it would be either proper or legal for the Court to throw out his case because he has not proceeded under Sub-sections (2) and (3) of Section 24 before coming to the criminal Court under Sub-section (4). There is no obligation on him to do so and I do not think this Court is acting without jurisdiction in entertaining the complaint or proceeding to decide it.'

Chainani, J.

2. Mr. Peerbhoy, who appears for the appellant, has raised three points in this appeal. The first point is that the conviction of the appellant under Section 24(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is wrong and cannot be maintained as the complainant had not approached acivil Court for the restoration of the service under Sub-section (2) of Section 24 of this Act. Sub-section (1) of Section 24 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, provides that no landlord shall, without just or sufficient cause, cut off or withhold any essential supply or service enjoyed by a tenant in respect of the premises let to him. Sub-section (2) states that a tenant may, if the landlord has contravened the provisions of Sub-section (1), make an application to the Court for a direction to restore such supply or service. Subsection (3) empowers the Court to make an order directing the landlord to restore such supply or service, if the Court finds that it was cut off or withheld by the landlord without just or sufficient cause. Sub-section (4) states that any landlord, who contravenes the provisions of Sub-section (1), shall, on conviction, be punishable with the punishmentspecified in this sub-section.

In 'V. G. SAYADIANTS v. STATE', Cri. Revn. Appln. No. 707 of 1949, D/- 29-9-1949 (Bom) Shah J. in the course of his judgment observed as follows:

'Under the scheme of Section 24, ordinarily a tenant,if he finds that an essential supply or service is either cut off or withheld by his landlord, is entitled to go to the Court of Small Causes and to make an application for restoration of the essential supply or service, and the Court of Small Causes would deal with the question whether there existed just or sufficient cause and pass the necessary orders. Thereafter, if the landlord fails to carry out the directions of the Court of Small Causes, there is a penalty provided in Sub-section (3) of Section 24, to which the landlord would render himself liable, and also he would be liable to be proceeded against under Sub-section (4) of Section 24. Excepting in very exceptional circumstances, it would not be expected that a criminal Court would be called upon to consider whether a landlord has, without just or sufficient cause, cut off or withheld any essential supply or service enjoyed by the tenant in respect of the premises let to him.'

These observations have been relied upon on behalf of the appellant and it has been urged that a tenant cannot file a complaint against his landlord under Sub-section (4) of Section 24 for cutting off or withholding any essential supply or service, unless he has first applied to the Small Causes Court for a direction for the restoration of such supply or service. There is no substance in this contention. Sub-sections (2) and (3) of Section 24 make provision for the restoration of the essential supply or, service, which has been wrongfully cut off or with held. But, in order to protect the tenants from harassment, the Legislature has gone further and has made it an offence to cut off or withhold any essential supply or service without just or sufficient cause.. Sub-section (4), therefore, provides for punishment for wrong done to a tenant, while Sub-sections (2) and (3) enable the tenant to have restored to him the essential supply or service, which he previously enjoyed. There is also nothing in the section which makes it obligatory on a tenant to approach a civil Court for the restoration of the essential supply or service before filing a criminal complaint. If the intention of the Legislature had been that a landlord should not be prosecuted, until a civil Court has first determined whether the essential supply or service has been cut off or withheld without just or sufficient cause, Sub-section (4) would have been worded differently.

Even in the judgment of Shah J., from which I have quoted a passage above, it was recognised that in some cases at least a criminal Court would have to decide whether the landlord had or had not, without just or sufficient cause, cut off or withheld the essential supply or service previously enjoyed by his tenant. We do not, therefore, think that Weston J. and Shah J. intended to lay down that a complaint under Sub-section (4) cannot lie, unless an application has first been made to a civil Court for the restoration of the essential supply or service under Sub-section (2) of Section 24. The argument that the learned Magistrate could not convict the appellant under Sub-section (4) of Section 24, Bombay Rents, Hotel and Lodging House Rates Control Act, because the complainant-tenant had not first approached the Small Causes Court for the restoration of the supply of electric energy, cannot, therefore, be accepted.

(The rest of the judgment is not essential to the report.)

3. Order accordingly.


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