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Dhanrajmal Gobindram and Co. (P.) Ltd. and ors. Vs. the State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1973CriLJ1848
AppellantDhanrajmal Gobindram and Co. (P.) Ltd. and ors.
RespondentThe State of Maharashtra and anr.
Excerpt:
- - 3. validity of their conviction in the present case depends upon the true interpretation of sub-section (1) of section 24 of the rent act, which is as follows :no landlord either himself or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him. and secondly, (2) that essential supply or service was enjoyed by such tenant; he, therefore, contends that even if in this case the operation of the lift is not alleged or proved to have been stopped by the landlord himself by any act or omission of his, he still ought to be held as having withheld the said supply on account of his omission to repair or replace the worn out lift, which.....deshpande, j.1. this appeal raises a short question to the true interpretation of section 24 of the bombay rents, hotel and lodging house rates, control act, 1947, hereinafter referred to as 'the rent act'. there is practically no dispute about the facts. building known as 'calcot house' belonged once upon a time to sir cavasji jahangir. it is a three storied building. the respondents hereinafter referred to as the 'complainant' have been occupying the whole of the third floor as tenant from the year 1936 on payment of monthly rent of rs. 188.71. a lift had been installed in the building even before the complainant became the tenant. this lift stopped working with effect from 13-12-1965 by which time sir cavasji jahangir had ceased to be the owner and messrs, onkar investment and.....
Judgment:

Deshpande, J.

1. This appeal raises a short question to the true interpretation of Section 24 of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947, hereinafter referred to as 'the Rent Act'. There is practically no dispute about the facts. Building known as 'Calcot House' belonged once upon a time to Sir Cavasji Jahangir. It is a three storied building. The respondents hereinafter referred to as the 'complainant' have been occupying the whole of the third floor as tenant from the year 1936 on payment of monthly rent of Rs. 188.71. A lift had been installed in the building even before the complainant became the tenant. This lift stopped working with effect from 13-12-1965 by which time Sir Cavasji Jahangir had ceased to be the owner and Messrs, Onkar Investment and Properties Limited had become owners instead. The complainant called upon the said owners-Landlords to repair the lift and get the operation of the same restored. Owners seem to have pleaded their inability to comply with the requisition, as it involved an estimated expenditure of about Rupees 10,000/-, and wanted the complainant to share the burden- The complainant, however, was not agreeable to the same and insisted that the lift being an essential service, he was entitled to get it restored under the provisions of the Rent Act. In the meanwhile, accused No. 1 purchased the property under a registered sale deed on 1-6-1968. Accused Nos. 2 to 5 are admittedly the Directors of accused No. 1 Limited Company. The complainant called upon the accused also to restore the services of the lift. Ultimately on 29th April 1969 a complaint was lodged by the tenant before the Presidency Magistrate for offence under Section 24 (1) read with Sub-section (4) of the said Act. On that very day the complainant also filed an application before the Small Causes Court under Section 24 (2) and (3) of the said Act for restoration of the said service of lift, which is still pending.

2. Amongst other defences, the accused contended that they had neither cut off nor withheld the said services and that the operation of the lift was stopped due to mechanical defect, as also due to change of D. C. current and substitution of A. C. current therefor by the B. E. S. T. since 1965- Accused No. 4 pleaded that the services of the lift cannot be restored without replacement of the new lift involving the expenditure of about Rs. 50,000/-. They also contended that the complainant was not enjoying these services on the date, when they purchased the property. By his order dated 31st August 1970 the learned Magistrate found the accused guilty and convicted them for offences under Section 24 (4) of the Rent Act and sentenced accused No. 1 to pay a fine of Rs. 201/- and accused Nos. 2 to 5 to pay a fine of Re. l/-. in default simple imprisonment for two days. Legality of this conviction and sentence is challenged in this appeal.

3. Validity of their conviction in the present case depends upon the true interpretation of Sub-section (1) of Section 24 of the Rent Act, which is as follows :

No landlord either himself or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

Thus before any offence can be said to have been committed by the landlord it shall have to be established, firstly, (1) that there are premises let out by the landlord to the tenant; and secondly, (2) that essential supply or service was enjoyed by such tenant; and thirdly. (3) that any such essential service was cut off or withheld, and fourthly, (4) that the landlord has done so himself or through any person acting or purporting to act on his behalf; and fifthly. (5) that this was done without just or sufficient cause. It is not in dispute' in the present case that the lift stopped operating because of some mechanical defect therein developed due to its wear and tear in ordinary course and also because of the substitution of the A. C. current in place of D. C current by the Bombay Electric Supply and Transport undertaking, the supplier of electrical energy in Bombay. On these admitted facts it should be difficult to hold that the landlord cut off or withheld the essential service of lift and deprived the tenant of such service by any act or omission on his or their part. The lift stopped working due to none of their acts or omissions. Some act of volition is implicit in the phraseology of the words 'cut off' or 'withhold'. Without any conscious, deliberate and voluntary act or omission on the part of the landlord, essential service of lift cannot be said to have been 'cut off' or 'withheld' by the accused. He cannot be held liable, where stoppage of lift is due to the mechanical defect or to wear and tear of the machinery in the ordinary course or to the change of policy of the B. E. S. T. with regard to the supply of electrical energy. Tenant, no doubt, stands deprived of the service of lift. But such deprivation by itself is not made penal under this section. Before the landlord is held guilty, some act or omission of his own volition must be found to have taken place which can be said to have caused the stoppage of the lift. Third and fourth ingredients of the offence are totally absent in this case. This by itself was sufficient to acquit the accused and hold that the accused had not either cut off or withheld the essential service with regard to the lift and the question of conviction of the accused on these admitted facts and the plain wording of Section 24 (1) of the Act should not have arisen.

4. Mr. Andhyaruina. the learned Counsel appearing for the respondent, however, contends that the word 'withhold' should not be so narrowly construed and it also connotes the deliberate and conscious omission on the part of the landlord to (1) repair the lift and put the same in working order by securing A. C. current from the B. E.S. T. or (2) to replace the new lift in place of the old one. even when its operation is found to have been stopped due to the wear and tear of the machinery. The word 'withhold' is not defined in the Act. However, he drew my attention to the dictionary meaning of the word 'withhold' by Murry quoted in 'Andhya-ruiina's Principles of Rent Control', 1952 Edition, at page 403. According to the learned author:

The literal meaning of the word to 'withhold' is to keep back; to keep in one's possession what belongs to or is due to others; to hinder; to prevent; to defer; to postpone; to detain; to keep under control; to retain; to keep from doing something to refrain from doing something.

He, therefore, contends that even if in this case the operation of the lift is not alleged or proved to have been stopped by the landlord himself by any act or omission of his, he still ought to be held as having withheld the said supply on account of his omission to repair or replace the worn out lift, which essential service was enjoyed by the tenant from 1936 till 1965.

5. Now, ordinarily dictionary meaning of a word must prevail where the Act by itself does not choose to restrict or expand its meaning by furnishing any definition. However, the true import of any word shall have to be ultimately ascertained by reference to the context the setting and the collocation of words in which, such word finds its place. It is all the more so, when dictionary meaning itself is pregnant with variety of shades. The word 'withhold' in this Sub-section (11 of Section 24 is preceded by the word 'cut off', and the word 'withhold' necessarily must get its colour therefrom. It is difficult to conceive of any process of cutting off without the volition of the person so cutting. The same must be said to be true of the word 'withhold'. One can withhold only that which one was holding out or giving out or supplying. The very expression connotes voluntarily stopping of something which was being supplied voluntarily. But where, as here, operation of the lift gets blocked or stopped independently of any act or omission on the part of the landlord, due to the operation of some extraneous factor or factors, the landlord cannot be said to have withheld the lift. His mere omission to repair the same or replace the same or ensure its continuance cannot be brought within the scope of its ordinary and natural connotation in the present context.

6. In fact, the word 'withhold' is not susceptible of such wide connotation in view of the setting in which this word has been employed. Third and fourth ingredients of the offence enumerated above require close examination. The section, speaks of (1) either the landlord himself cutting off or withholding such service or (2) cutting off or withholding such service 'through any person acting or purporting to act on his behalf'. Deprivation of such service due to any third factor or extraneous reason is plainly excluded from the sweep of this section; in view of its peculiar phraseology. If the word 'withhold' is to be broadly interpreted in the manner in which Mr. Andhyaruina suggests, it is not understandable how the phraseology (1) 'landlord either himself' and (2) 'or through any person acting or purporting to act on his behalf' would fit in with such interpretation. This entire phraseology would be rendered redundant and meaningless. The contention of the learned Counsel cannot be accepted without re-writing the section.

7. The learned Counsel drew by attention to pages 166 and 170 of Craies on Statute Law. 5th Edition, wherein some caution is administered before the application of the rule of ejusdem generis and words of limitation are read in any statutory provision. I, however, find tint at pages 168 and 169, the learned author has referred to several cases where the words employed in a statute by Legislature have been interpreted with reference to the context and the collocation in which the same are found. It will be sufficient to refer in this context to the following observations of Hidaya-tullah. J., as he then was. in the case of State of Assam v. Ranga Muhammad : (1968)ILLJ282SC . The Court was called upon to construe the word 'posting' in Articles 233 and 235 of the Constitution.

That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised canon of construction.

8. In this context, it is worthwhile to compare the phraseology of Section 23 with Section 24 of the Act. Sum and substance of Section 23 of the Act is to impose a positive obligation on the landlord to keep the premises in good and tenantable repair. As against this, [positive obligation, phraseology of Section 24 (1) of the Act contemplates imposing a negative obligation. The manner in which Sub-section (1) of Section 24 is couched, does riot admit of imposing a positive obligation on the landlord to continue essential supply and services in any building, the operation of which is found to have been stopped due to some factor not attributable to any act or omission of the landlord.

9. This apart, it cannot be forgotten that Section 24 of the Rent Act is a penal provision. The section enjoins the landlord not to cut off or withhold any essential supply or service at the pain of imprisonment and fine. Several cases were cited at the Bar to show how penal provision should be construed. To my mind, it would be enough if I refer to the dicta of Lord Macmillan in the case of North Eastern Rly Co. v. Berriman 1946 AC 278, The following passage from the said speech is quoted with approval by Hegde J.. in the case of the Union of India v. Shreeram Durga Prasad : [1969]2SCR727 :

Where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language.

The learned Judge has also referred to the oft quoted passage from the earlier judgment of the Supreme Court in Tola-ram's case : [1955]1SCR158 . My attention was drawn to two passages at pages 13 and 417 from 'The Rent Acts' by Megarry, Tenth Edition. I have not been able to see how the passages support the contention of Mr- Andhvarujima. Rather these run counter to his proposition. I do not think it worthwhile to quote the same.

10. Now, it is true that, while construing even the penal provisions, the Court has to bear in mind the intention of the Legislature with which any such penal provision is incorporated, and an attempt must be made, as far as possible, to give effect to it, to the extent to which language of any such Statute is so susceptible. The question that really arises for consideration is whether : could the Legislature have intended to impose under Section 24 of the Act an absolute obligation on the landlord to continue the amenities pertaining to essential supply or service enjoyed by the tenant without regard to whether the same were lost to the tenant due to his own act or omission To my mind, the answer to this question must be firmly in the negative. It is, pertinent to note that under the Contract Act or Transfer of Property Act the landlord does not owe any liability to effect even the ordinary repairs to the leased premises in the absence of a contract to the contrary. However, Section 23 of the Rent Act records a slight departure and imposes an obligation on the landlord, in the absence of contract to the contrary, to keep the premises in good and tenant-able repair. But even this section does not cast any obligation on the landlord to reconstruct the premises or effect any structural alterations, where the premises leased become incapable of habitation in its ordinary course due to natural wear or tear or decay or where structural alterations are required to enable the tenant to enjoy the leased premises in terms of the contract of lease. Subject-matter of Section 24 obviously is, not the premises let. but is, the essential supply or service in respect of the premises so let. This more or less covers rights under the Easements Act or the rights of a licensee coupled with the grant of interest in the immovable property. These rights are dealt with under Sections 2, 13. 55 and 60 of the Easements Act of 1882. It is inconceivable that the Legislature could have intended to make it obligatory on the part of the landlord to restore such essential supplies or services in respect of the premises let. in the event of the machinery or apparatus pertaining thereto getting worn out in the ordinary course, at the pain of penalty and imprisonment, when it has not cast any obligation on him to reconstruct the worn cut premises let and has chosen to restrict his liability to keep it in tenant-able repairs alone. At any rate, there is no such clear indication in the Statute itself and. as discussed above, several factors strongly militate against any such construction of Section 24. Section 24 seems to have been aimed at ensuring that the landlord does not render the protection afforded to the tenant illusory by compelling him to vacate by deliberately depriving; him of any essential supply of services or by some positive acts of omission and commission to that effect. Ensuring the continuance of such essential supplies and services to the tenant appears to be beyond the scope of the section. It will, therefore, not be permissible to import into Section 24 an obligation on the landlord, in the absence of any clearer language to that effect, to restore the essential supplies or services enjoyed by the tenant in respect of' the premises, even when the same are lost to the tenant due to no fault of his.

11. Some assistance can also be found for the precise interpretation of Sub-section (1) of Section 24 by reference to Explanation II to this section, which was added by Bombay Act No. 61 of 1952. The Explanation II is as follows :-

For the purposes of this section, withholding any essential supply or service shall include acts or omissions attributable to the landlord on account of which the essential supply or service is cut off by the local authority or any other competent authority.

The Explanation obviously appears to have been intended to expand the import of the word 'withhold' in Sub-section (1) of Section 24. In the judgment of the Supreme Court in Kanaiyalal Chandulal Monim v. Indumati T. Potdar : 1958CriLJ814 Sinha, J.. as he then was. made the following observations at page 931 with regard to the effect of this amendment:

It may also be pointed out that it is doubtful whether, before the second explanation was inserted into the section, as aforesaid, in 1953, the cutting off of the water supply by the municipality, or the omission of the landlord to take steps to have the connection restored, would have come within the mischief of the penal section.

The learned Judge then posed a question in the following words :-

Supposing the second explanation was not there, could the prosecution attribute the cutting off the connection by the municipality and the subsequent refusal of the landlord to get the connection restored, as an act or omission of the landlord within the meaning of Section 24 (1) ?

In my opinion, these observations unmistakably indicate that but for the expanded connotation of the word 'withhold' incorporated in Explanation II, such act or omission on the part of the landlord could not have attracted the penal consequences provided under Sub-section (4) of Section 24, Mr. Andhya-ruiina, however, drew any attention to the statement of objects and reasons with regard to the said amending Act at pages 408 to 410 of the Bombay Government Gazette dated 17-8-1963 (page V). It indicates that Explanation II was added only to clarify what was intended by the Legislature while inserting Section 24 itself in the Act. It is possible, therefore, to contend that Explanation II is only a clarificatory piece of legislation. That, however, to my mind, does not, in any manner, detract from the above observations of the Supreme Court. Explanation II only seeks to specify the acts or omissions of the landlord, which can be said to have been implicit in the section itself in view of this clarificatory amendment. True import and implication of the above observations, is that natural connotation of the word 'withhold' in .the context is a restricted one and is intended to cover only some positive acts or omissions resulting in the loss of amenities to the tenant.

12. Mr. Andhyarujina strongly relied on the judgment of this Court reported in the Bombay Bullion Association Ltd. v. Jivatlal Pratapsi : (1960)62BOMLR380 . It shall have to be conceded that the facts of the said case and the present case are identical. An argument based on the implication of addition of Explanation II was advanced and the above passage from the judgment of the Supreme Court in Kaniyalal Chadulal Monim's case : 1958CriLJ814 was specifically brought to the notice of the learned Judge. Notwithstanding this, the learned Judge rejected the landlord's contention saying :-

As I have already stated, the Explanation only refers to certain acts or omissions and does not mean that acts or omissions which themselves result in the withholding of an essential supply or service are not to be included in the word 'withhold'. In fact even in the passage from the judgment of the Supreme Court quoted above, their Lordships have described the expressions 'cutting off' or 'withhold' (paraphrased as refusal to get the connection restored) as an act or omission of' the landlord within the meaning of Section 24 (1).

With great respect to the learned Judge, I do not think that his judgment adequately explains or even attempts to explain the ratio of the Supreme Court passage quoted by me above. It is. however, to be noted that learned Judge was not dealing in that case with any prosecution for offence under Sub-section (1) read with Sub-section (4) of Section 24. He was dealing with civil proceedings instituted by the tenant under Sub-section (2) of Section 24. Attention of the learned Judge does not seem to have been drawn to the fact that the provisions are penal and require to be construed accordingly. I will presently show that the approach of the learned Judge has not been approved by the Supreme Court. Mr. Andhyarujina's reliance on the judgment of the Gujarat High Court in (1971) 12 Guj LR 272, (Heirs of deceased Darji Mohanlal Layji v. Muktabai Shamji) is thoroughly misconceived.

13. Mr. Andhyarujina drew my attention to passages from certain authorities and certain English cases and contended that ratio of these judgments show that the landlord is under an obligation to continue the supply of such essential services during the period of the lease and absence of creation of specific liability under Sub-section (1) by itself cannot save the landlord from the penal consequences of this section. He drew my attention to para 143 at page 243 of the 'Law of Landlord and Tenant' by Hill and Redman, Fifteenth Edition dealing with the obligation under a covenant to rebuild the premises in the event of injury from Act of King or God etc. To the same effect is para 1259 page 582 from Halsbury's Laws of England Vol. 23, Third Edition, which was brought to my notice. Judgment of Cozens - Hardy M. R. (1911) 1 KB 905, (Kurcott v. Wakely & Wheeler) and that of Darilng J. in (1920) 2 K. B. 256, (Redmond v. Dainton) and judgment of Lord Denman. C. J.. in Green v. Eales (1841) 57 R 660 go to elucidate the same proposition. Judgment of Lord Denning in (1955) 3 W. L. 497 (Federick E. Rose (London) Ltd. v. William H. Pim Jnr. & Co.) explains what alterations in a structure of a building constitute repairs and disentitle the landlord to claim increment in rent under Rent Restriction Act. Judgment reported in 31 Bom LR 461 : AIR 1929 Bom 230 (Sidrarnappa Baswantrao Vibhute v. Shidappa Virappa Umbarje) lays down that replacement of staircase in an old building constitutes merely repairs. My attention was then drawn to para 1343 at page 577 of the 'Law of Landlord and Tenant' by Wood-full, Twenty-Seventh Edition, dealing with an implied obligation of the landlord to keep the stair-case repaired where the building consists of flats and control of stair-case for common use is retained by him. Judgment of Lord Esher, M. R. in (1893) 2 Q. B. 177 (Miller v. Hancock) supports the above proposition of the author.

14. To my mind, the passages from these books and ratios of the several judgments relied on by Mr. Andhyarujina can have no bearing on the precise question that arises for consideration before me. In the first instance, these are the oases in regard to the liability of the lessees or the lessors based on the specific covenants excepting in the case where Lord Esher M. R.. was dealing with the implied liability of the landlord to keep the stair-case in good repairs. Secondly, these observations are based on the common law principles of England and may or may not have any bearing on the statutory provisions, such as the Contract Act or Transfer of Property Act or the Rent Act which go to govern the relations between the landlord and tenant in this country. Thirdly, before the obligations of the landlord are spelt out from Section 24 or any provision of the Rent Act, it shall have to be borne in mind that the landlords' ordinary rights to put an end to the lease as also enhancing rent have been extensively curtailed and restricted by the provisions of the Rent Act. The precise extent of liability of the landlord under any such implied obligation, to keep the machinery and apparatus, from which essential supplies and services are made available to the tenant during the currency of contractual or statutory tenancy, shall have to be worked out in a properly instituted action in a competent Civil Court. Section 28 of the Rent Act is wide enough to deal with any such claim or question arising out of this Act or any of its provisions. I do not find it possible to spell out any such absolute liability of the landlord in this penal provision of Section 24 to continue the essential supplies and services to the tenant in respect of the premises let out to him, even when the tenant stands deprived thereof as a result of some extraneous factor with which the landlord had nothing to do either directly or indirectly. The judgments and the authorities on which so much reliance is placed by the learned Counsel appearing for the respondent, to my mind, cannot be of any assistance to determine any such liability of the landlord is this criminal case.

15. On my above construction of Section 24. the question of the statute having created any absolute offence or liability as contemplated in the Supreme Court case in : 1971CriLJ760 - (The State of Gujarat v. Acharya Shri Devendraprasadji Pande) really does not arise.

16. As stated earlier, Mr. Andhyarujina placed strong reliance on the judgment of this Court in : (1960)62BOMLR380 . The ratio of the said judgment undoubtedly supports his contention. To my mind, the said ratio runs counter to the specific observations of the Supreme Court quoted by me above from the judgment in : 1958CriLJ814 in spite of learned Judge's comments to the contrary. If the matter were to rest there, it would have been necessary for me to consider referring this case to the Division Bench. I. however, find that the approach adopted by the learned Judge is not approved by the Supreme Court which is clear from its another judgment dated 1-5-1968 in Criminal Appeal No. 123 of 1966 (SC). As Vaidialingam, J. speaking for the Supreme Court has not directly referred to the said judgment of the Bombay Bullion Association Ltd.. : (1960)62BOMLR380 it is necessary to state few facts to elucidate the point. Estate known as Morbaug belonged to one Morwala. One open plot out of this estate was leased by Morwala to one Parab, who had constructed a chawl on the said plot and let out to different tenants. Parab had his own another property in which electricity meter was installed and during the period Parab was the tenant of this plot and landlord of his tenants in the chawl with effect from 23rd December 1949 to 20th December 1963 he supplied electricity to all his tenants from his said meter. It appears that on or about 10th October 1963 Parab surrendered his leasehold rights and the chawl constructed by him was purchased by a third person. One effect of this was that with effect from 20th December 1963 the supply of electricity to all the tenants stood cut off and withheld. All the tenants of the chawl attorned to the new purchaser- One of the tenants filed a complaint against the purchaser for cutting off and withholding the electricity supply within the meaning of Sub-sections (1) and (4) of Section 24. The learned Magistrate convicted her and the said conviction was upheld by this Court. While confirming the conviction of the purchaser in Criminal Appeal No. 116g of 1964 by its judgment dated 20th April 1965 for offence under Section 24 (1) read with Sub-section (4) this High Court made the following observations :-

In my opinion, the complainant had also proved that he was enjoying the supply of electricity in his capacity as tenant till 20th December 1963, when it had been cut oft. The complainant thus as a tenant is entitled to enjoyment of the supply of electricity which has been cut off on 20th December 1963. The complainant has further established on evidence that he had made a request to the landlady to supply him with electricity to which he was. under the tenancy agreement, entitled. The landlady has not supplied electricity to him. These (proved facts would amount to withholding of electricity supply.

Referring to the defence contention, the learned Judge observed:-

It is, however, the argument of Mr. Desai that in order to establish that the supply has been withheld, it must be proved by the complainant that it was within the power of the accused to supply electricity and yet she has not supplied the same. Here the facts on record indicate that it was not within the power of the accused to supply electricity inasmuch as the supply was coming from the meter located in the premises which belonged to Parab. The accused had no control over the meter of Parab.

The learned Judge of this Court answered this submission of Mr. Desai in the following words:

In my opinion, the argument is not well made. Section 24 casts an obligation on the landlord to see that essential supply or service enjoyed by the tenant in respect of the premises which had been let out to him are not cut off or withheld from him. Had Parab continued to be the landlord, there can hardly be any doubt that Parab was under an obligation to supply electricity. Merely because the accused has succeeded to the rights and obligations of Parab would not absolve the accused of his obligation to supply.

It will at once be seen that approach and these observations are somewhat akin to the approach and observations made by the learned Judge in : (1960)62BOMLR380 .

17. Vaidialingam. J.. speaking for the Supreme Court, however, does not appear to have been impressed with this approach of this Court. The Supreme Court made the following observations in this behalf :-

In our opinion, the findings, arrived at, by the trial Court as well as, by the High Court, are not based upon the evidence, in the case; and even the inferences, drawn by the Courts, do not follow from the established facts. We have already referred to the evidence of P. Ws. 1 and 2 who have both admitted that they were not personally_ aware of the appellant cutting off electricity supply.

(underlining supplied by me,)

It is thus clear from the above observations as well as the discussion in the earlier parts of the judgment that the question posed by the Supreme Court was: whether cutting off of the electricity supply or withholding was done by the accused himself and not: whether accused had exposed to penalty by not continuing to supply electricity by installing a fresh meter On behalf of the tenant reliance was placed on the Supreme Court judgment in : 1958CriLJ814 and it was argued that it was the duty of the landlord, after she became the owner of the property to arrange for continuance of supply of electricity in the same manner as it was done prior to her purchase. This contention was negatived by point- ing out that electricity was supplied from a property which still was in the possession of ex landlord Parab and there was no evidence of the new landlord having any rights in respect of that meter or any right to get the supply of electricity from that meter. The learned Judges then observed that the ratio of the earlier judgment of the Supreme Court was not applicable as in that case it was within the power of the landlord to get supply or water restored by payment of tax arrears to the Municipality. Their Lordships then observed :

In the case before us, it has not been established that it was within the power of the appellant, to get supply restored, from the meter which was in the premises owned by Parab.

18. Mr. Andhyarujina, the learned Counsel for the respondent, contends that it is not shown in this case that the landlords were financially incapable to replace the old worn out lift by a newly purchased lift and as such it cannot be said within the meaning of the observations of the Supreme Court in the above judgment that it was not within the power of the landlords to replace the lift in the building so as to absolve them of the criminal liability created '.rider Section 24 of the Act. To my mind this will not be proper or correct reading of the phraseology from the judgment of the Supreme Court when it speaks of the supply of electricity being 'within the power of the appellant.' In the context the words 'within the power' can have no reference whatsoever to the financial capacity of the landlord. These words have been employed by the learned Judges to repel the contention of the complainant that the landlord had withheld the supply of electricity and it was answered by saying that the landlord cannot be said to have withheld the supply inasmuch as the meter located in the premises of Parab, who had ceased to be the landlord, is not proved to have been at the disposal of the new purchaser of the property. In my opinion, the emphasis laid by the learned Judges of the Supreme Court, on the absence of evidence of the new landlord having cut off the electricity, time and again, in the course of the judgment, and observation that before the landlord can be held guilty of withholding the supply, it shall have to be established that it was within his power to do so, thoroughly negatives the contention of Mr. Andhyarujina that the word 'withhold' in Sub-section (1) of Section 24 should be so broadly construed as to mean even the conscious |omission of the landlord to effect repairs in the lift or restore the lift or to replace the lift even when it became unworkable due to no fault of his.

19. Mr. Mengde the learned advocate appearing for the appellant, also contends that even if tub-section (I) of Section 24 is construed so broadly, as contended by Mr. Andhyarujina, the accused in the present case had just and sufficient cause for not restoring the service of 1. ft. I find considerable substance in this contention It is pertinent to note that the lift had stopped operating from 13-12-1965, when the present landlords-accused were not in the picture. The present landlords purchased the property on 1-6-1968. i. e. two and half years after the lift had gone out of order. On the date of the purchase by the landlords, tenants certainly were not enjoying the amenity of the lift During the period of two and half years the complainants had not taken any effective steps against their previous landlords beyond carrying on correspondence. Even after the present landlord came into the picture, they do not appear to have been informed that there was any covenant between the tenant and the previous: landlords making it obligatory on the landlords to keep the lift working at a costs and during the entire subsistence of the lease. According to the accused, the present lift is incapable of being repaired and replacement involves the expenses of about Rs. 50 to 60 thousands. The complainant has admitted- that new lift shall have to be replaced and the costs would come to about Rs. 38,000/- and more. The learned trial Magistrate has estimated replacement cost at not less than Rs. 50.000/-. It is pertinent to note that the landlord is not entitled to claim any increment in rent on account of any such expenses, as expenditure incurred for supplying amenities contemplated under Section 24 cannot be the basis for claiming increment of rent under any enabling provision of the Rent Act. The expenditure, therefore, is almost bound to be unproductive. Prima facie it appears to be disproportionate to the rent that the tenants are paying to the landlords. Now. it is true, as contended by Mr. Andhyarujina, that there is no direct evidence in this case as to the total amount of rent collected from all the tenants of the premises and as to for what price the accused purchased the property. It is, however, common ground that the building is three storied and the tenants are all old- One can just get an idea as to what could be the total amount of rent of the permises, if the rent paid by the complainants-tenant of Rs. 188/- per month, is taken to be the rent of one floor. This apart, averment of the landlord in one of their letters, dated 25-2-1966 that the income from the rent is meagre is not disputed by the complainants in their reply, dated 12-4-1966. Thus the expenses incurred were bound to be unproductive and incapable of returning any yield to the landlord. Where, as here, costly machinery involves replacement, and kind of supply of current is changed by the B. E. S. T.. the very basis on which services were enjoyed by the tenant stood materially altered- The landlord was justified in insisting on the tenant to contribute to the costs involved. The complainant was never co-operative till the complaint was lodged. I think the landlord had just and sufficient cause to decline to restore the lift. In the circumstances discussed above, liabilities of the landlords for the continuance of such essential supplies and service to a statutory tenants under the limitations imposed on the landlord under the Rent Act can only be determined in a properly instituted action and not by recourse to penal provisions contemplated under Section 24 of the Act. I have not referred to the judgment of Chandrachud, J., dated 15-3-1962 in Criminal Appeal No. 11546 of 1961 (Bom) and the judgment of Chainsni, J., (with Rajadhaksha, J.) dated 16-3-1P49 in Criminal Revision Application No. 96 of 1949 (Bom) and judgment of S.bah, J., (with Weston, J.) dated 29-9-1949 in Criminal Revision Application No 707 of 1949 (Bom) referred to by Mr. Andhyarujina. as I did not find any-thing therein to support his contention.

20. The result is that the appeal (succeeds. Conviction and sentence is set aside. Fine, if paid, to be refunded.


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