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Braham Dutt Sharma Vs. S. Bishan Singh Rangwala - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 589 of 1973
Judge
Reported in(1976)78BOMLR462
AppellantBraham Dutt Sharma
RespondentS. Bishan Singh Rangwala
DispositionAppeal allowed
Excerpt:
.....creates an absolute liability upon the landlord to furnish the full particulars of the amount of standard rent of the premises and of the permitted increases, when he is called upon to do so by a notice served upon him by the tenant.;whenever the legislature thought that an element of mens rea is a necessary ingredient for proving the guilt of the accused the legislature has used the expression such as 'reasonable excuse' or 'intentionally fails. such a phraseology has not been used by the legislature so far as sub-section (2) of section 21 is concerned.;the offence contemplated by section 21 of the bombay rents, hotel and lodging house rates control act, is not a criminal offence, though the proceedings contemplated by section 21(2) of the act, are criminal in form, it is really only..........under these circumstances was to take recourse to the provisions of the act for getting the standard rent fixed and it was not open for him to serve any notice upon the landlord under section 21 of the act calling upon him to furnish the particulars.5. for properly appreciating the controversy involved in this appeal, it will be useful if section 212121 is reproduced at this stage. section 21 of the bombay rents, hotel and lodging house rates control act, 1947, reads as under:(1) every landlord shall, upon a notice served upon him by the tenant by post or in any other manner, furnish to such tenant within one month of the receipt of such notice a statement giving full particulars of the amount of standard rent of the premises or part thereof let to such tenant and of the permitted.....
Judgment:

Dharmadhikari, J.

1. Complainant Braham Dutt Sharma is occupying room No. 4A, Satwant Villa, Aarey Road, Near Railway Crossing, Goregaon (West), Bombay, which is owned by the accused. According to the complainant, he is occupying the said premises as a tenant since 1954. In the beginning, when he came to occupy the said premises, he was paying Rs. 10 per month as rent and he continued to pay the same rent till 1956. Between 1956 and 1959, the landlord started charging Rs. 12.50 p. as monthly rent for the said premises. According to the complainant, the landlord thereafter went on gradually increasing the rent and on the date of filing of the complaint, he was paying Rs. 18.40 p. per month as rent. He further contended that he had asked the landlord verbally to furnish with the data on the basis of which the present rent has been charged by him, but the accused has not furnished him with the said data. Therefore, he served a notice dated October 6, 1971, upon the landlord, calling upon him to furnish the particulars of the permitted increases and the rent which he was charging him. Obviously this notice was served by the complainant-tenant upon the accused-landlord under Section 21 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The accused gave a reply to the said notice through his advocate on October 14, 1971. He did not furnish the particulars as according to him, the complainant was only a statutory tenant. Then it was contended by the complainant that the landlord has not furnished the particulars asked for by him and hence he has committed an offence under Section 21(2) of the said Act.

2. The accused pleaded not guilty to the said charge levelled against him under Section 21 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. According to the accused, he had already terminated the tenancy of the complainant and at present the complainant was occupying the premises as a statutory tenant. He further contended that he had also filed a suit against the complainant for ejectment. Accused admitted that originally he was charging Rs. 10 as monthly rent and now he is charging Rs. 18.40 p. per month, According to him, however, he has renovated the entire structure and also had supplied additional amenities like water and electricity to the premises occupied by the complainant. He further contended that the Municipality is also levying many taxes, which he is entitled to recover from the tenant and there-fore, he has increased the rent, According to him, he did not furnish the particulars asked for by the tenant because he was not a contractual tenant, but was merely a statutory tenant and hence was not entitled to the said particulars. In substance therefore, he denied having committed any offence.

3. On the evidence on record, the learned Presidency Magistrate, came to the conclusion that it is an admitted fact that a notice was served by the tenant upon the landlord and the landlord has failed to furnish the statement giving full particulars. However, according to the learned Magistrate, the landlord has already served a notice upon the tenant terminating his tenancy and a suit in that behalf was also pending in the Court of Small Causes. The said suit was filed in November, 1971, He further found that it is admitted by the tenant himself that the premises, which he Is occupying today is in a better condition than in the year 1954, when he first came to occupy the said room. He further found that there is no dispute between the parties that there has been renovation and improvements made to the premises by the accused and thereafter the tenant started paying Rs. 2.50 p. more. According to the learned Magistrate, the complainant further admitted that in the year 1956, the limits of Greater Bombay were extended upto Dahisar and after this extention, facility of electricity and tap water was also provided to the tenant and hence the present rent of Rs. 18.40 p. includes water charges. In view of those admissions-of the complainant, the learned Magistrate has recorded a finding that the premises were renovated and the landlord has further sup. plied electricity and water tap facilities to the said room occupied by the tenant. He further found that the increase in the rent has been gradually made and the said increase was within the knowledge of the complainant and hence according to the learned Magistrate, the demand made by the complainant asking for the particulars from the landlord was not bona fide. According to the learned Magistrate, there was no element of mens rea or mala fides on the part of the landlord. In this view of the matter, the learned Magistrate came to the conclusion that the landlord has not intentionally committed any crime and hence he is not liable to be convicted under Section 21(2) of the said Act. In consequence of this finding therefore, he passed an order of acquittal acquitting the accused of the offence with which he was charged.

4. Against this order of acquittal, the present appeal has been filed by the original complainant under Section 417(5) of the Criminal Procedure Code. Shri Vilas V. Kamat, the learned Counsel for the appellant contended before me that the Presidency Magistrate committed an error in importing the element of mens-rea and then holding that there were no mala fides on the part of the landlord in not furnishing the particulars asked for by the tenant. According to Shri Kamat, the liability created by Section 21(2) of the Act is an absolute one and therefore no question of 'mens-rea' can arise once the contravention of the provision is established. Therefore, according to the learned Counsel, the order of acquittal passed by the learned Presidency Magistrate is illegal. The Assistant Government Pleader Shri Solkar supported the argument advanced on behalf of the appellant before me. On the other hand, Shri Vohra, the learned Counsel for the accused-landlord has contended before me that normally an element of mens-rea is an necessary ingredient for all criminal offences. The said ingredient has not been excluded either expressly or by necessary implications in Section 21 of the present Act. The notice given by the tenant asking for the particulars was itself not bona fide and therefore, according to him, the landlord has not committed any offence when he did not furnish the necessary particulars. Further according to the learned Counsel, as the contractual tenancy of the complainant was already terminated, there was no obligation upon the landlord to furnish the particulars. In any case, according to him, as the learned Presidency Magistrate has come to the conclusion that the accused has not intentionally failed to supply the said particulars and has therefore, found him not guilty of the said offence, this is not a fit case, wherein this Court should exercise its jurisdiction under Sub-section (3) of Section 417 of the Code of Criminal Procedure. He further contended that, the only course, which was open to the complainant under these circumstances was to take recourse to the provisions of the Act for getting the standard rent fixed and it was not open for him to serve any notice upon the landlord under Section 21 of the Act calling upon him to furnish the particulars.

5. For properly appreciating the controversy involved in this appeal, it will be useful if Section 212121 is reproduced at this stage. Section 21 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, reads as under:

(1) Every landlord shall, upon a notice served upon him by the tenant by post or in any other manner, furnish to such tenant within one month of the receipt of such notice a statement giving full particulars of the amount of standard rent of the premises or part thereof let to such tenant and of the permitted increases.

(2) Any landlord who fails to furnish such statement or any landlord or his agent who intentionally furnishes a statement which is false in any material particular shall, on conviction, be punished with fine which may extend to one thousand rupees.

From the bare reading of this section, it is quite clear that a right has been conferred upon a tenant, consequent to which by serving a notice upon the landlord, he can ask for full particulars about the amount of standard rent of the premises and a corresponding obligation is cast upon the landlord to furnish these full particulars to the tenant within thirty days from the receipt of such a notice. From the relevant provisions of this Act, it is further clear that a further right is being conferred upon a tenant to get the standard rent fixed by the Court. The said standard rent is payable by him according to the provisions of the Act and Section 5, Sub-section (10) defines the term 'standard rent'. Sub-section (10) of Section 5 reads as under:?

'Standard rent'' in relation to any premises means-

(a) where the standard rent is fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel Bates and Lodging House Rates (Control) Act, 1944, such standard rent; or

(b) where the standard rent is not so fixed-subject to the provisions of Section 11.

(i) the rent at which the premises were let on the first day of September 1940, or

(ii) where they were not let on the first day of September 1940, the rent at which they were last let before that day, or

(iii) where they were first let after the first day of September 1940, the rent at which they were first let, or

(iv) in any of the cases specified in Section 11, the rent fixed by the Court.

From the scrutiny of Sub-section (10) of Section 5, it is quite clear that the standard rent is payable or is liable to be fixed with reference to certain dates enumerated therein. The tenant in most of these cases is not aware of the facts on the basis of which the standard rent is payable. It is no doubt true that if the tenant approaches the Court for fixation of the standard rent, then the burden will be upon him to establish prima facie that the rent which he is. paying is in excess of the standard rent. However, the facts, on the basis of which standard rent can be fixed or ascertained are within the exclusive knowledge of the landlord. In my opinion, in view of these circumstances, the Legislature thought it expedient to make it obligatory on the part of the landlord to furnish the full particulars of the amount of the standard rent and of the permitted increases on receiving a notice from the tenant. Not only this, the Legislature has further prescribed specific period for furnishing these particulars and the Legislature further in its wisdom had provided a penalty for the failure of furnishing the said particulars within the stipulated time. Sub-section (2) of Section 21 contemplates two contingencies for which a penalty can be imposed upon the landlord. If a landlord fails to furnish the particulars asked for by a tenant, he is liable to a penalty under the said section. At the same time, if a landlord intentionally furnishes a statement which is false in any material particular, then also the landlord is liable to a penalty as provided by Sub-section (2) of Section 21 of the said Act.

6. For properly understanding the true import of this provision, it will be useful to note the historical., background of Rent legislation. On account of the conditions which World War TI had created, there was a great demand for accommodation, particularly in big' cities like Bombay. The low level of constructional activity and the absence of proper maintenance of repairs also contributed to a large extent to the inadequacy of residential accommodation. It became apparent that the landlords were exploiting the situation to their advantage. Not only rent racketing was in vogue, but several mal-practices were employed to enhance the rent and to evict the tenants, if they are not amen, able to their pressure. In order to check such exploitation and to bring the situation under control the provisions were made in the Rent Act. The Act provided for fixation of fair rent and prevented the unreasonable eviction of tenants. The Act read as a whole would clearly disclose a well knit composite policy of regulating lease, controlling the rent and preventing unreasonable eviction. To some extent the present legislation is a beneficial legislation en. acted for public good. To check this exploitation by the landlords, the provision has been made under Section 21, of the Act whereby a tenant is authorised to seek information regarding the rent from the landlord.

7. From the preamble of the present legislation, it is quite clear that the pre-sent enactment was also brought on statute book by the Legislature with an intention to control the rents of the various premises. In this context, if the provisions of Section 21 are construed, in my opinion, it will have to be held that the said section creates an absolute liability upon the landlord to furnish the full particulars of the amount of standard rent of the premises and of the permitted increases, when he is called upon to do so by a notice served upon him by the tenant.

8. This intention of the Legislature is further clear from Section 22 of the present legislation. Section 22 confers a right upon the landlord and a corresponding obligation upon the tenant to furnish the particulars regarding sub-letting, assignment or transfer of the premises including the rent charged or paid by him.

9. The learned Counsel for the appellant as well as the Government pleader brought to my notice various provisions of this enactment and particularly Section 16(4), Section 17(2), Section 17A(3), Section 17C (b), Section 18(4) and Section 19 of the Act. From the bare perusal of these various provisions, it is quite clear that whenever the Legislature thought that an element of mens rea is a necessary ingredient for proving the guilt of the accused, the Legislature has used the expression-such as 'reasonable excuse' or 'intentionally fails. Such a phraseology hag not been used by the Legislature so far as the first part of Sub-section (2) of Section 21 is concerned. Therefore, in my opinion, the question as to whether the element of mens rea has been excluded by necessary implication or not will have to be decided having regard to these various provisions of the Act as well as the right and obligation created by the said provision.

10. It is not necessary for me to deal with this aspect of the matter in detail in view of the decisions of the Supreme Court in State of Gujarat v. D. Pande : 1971CriLJ760 'While considering the provisions of Section 35 of the Bombay Public Trusts Act and the question as to whether the requirement of mens rea is a necessary ingredient of the said section, the Supreme Court laid down certain principles. After analysing the provisions of Section 35 of the Bombay Public Trusts Act, the Supreme Court found that the language of the provision clearly shows that the liability imposed on the trustee is an absolute one. The Supreme Court further observed that for the contravention of g. 35(1) only a fine can be imposed and the punishment does not carry with it any stigma. Then in para. 10 of the said judgment, the Supreme Court observed (p. 868):

The question whether a crime can be said to have been committed without the necessary mens rea has led to considerable controversy. The broad principles accepted Courts in this country as well as in England are: Where an offence is created by a statute, however comprehensive and unqualified the language of the statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of the crime, unless a contrary intention is expressed or implied. In other words, the plain words of the Statute are read subject to a presumption, which may be rebutted, that the general rule of law that no crime can be committed unless there is mens rea has not been ousted by the particular enactment. The mens rea means some blameworthy mental condition whether constituted by knowledge or intention or otherwise. But this rule has several exceptions, as observed by Lord Evershed in Lim Chin Aik v. The Queen [1963] A.C. 160

Where the subject-matter of the statute is the regulation for the public welfare of a particular activity-statutes regulating the sale of food and drink are to be found among the earliest examples-it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea.

As long back as 1895 Wright J. observed in Sherras v. De Rutzen [1895] 1 Q.B. 918;

There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.

It is further observed therein that the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which are not criminal in any real sense, but are acts which in the public interest are prohibited tinder a penalty. Another class comprehends some, and perhaps all, public nuisances. Lastly, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right. But, except in such cases as these, there must in general be guilty knowledge on the part of the defendant, or of some one whom he has put in his place to act for him, generally, or in the particular matter, in order to constitute an offence. The present case, in our opinion, falls within the first category mentioned above-Section 35(1) deals with a quasi-criminal act.

11. If these principles are applied to Section 21 of the Act, it is obvious that the requirement of mens rea cannot be read into it so far as the first part of Section 21(2) is concerned. The language of the provision appears to make its contravention an absolute liability. In the real sense of the term, the offence contemplated by Section 21 of the Act, is not a criminal offence. For the contravention or breach only fine can be imposed and the punishment does not carry with it any stigma. The provision is regulatory provision enacted in public interest.

12. Furnishing of these particulars is necessary not only for deciding the standard rent, or permitted increases but for carrying out the very purpose of the legislation. One of the object of the Legislature is to control rents. A specific provision has been made in the Act, whereby a prohibition has been imposed upon the landlord from recovering an amount in excess of the standard rent. Therefore, in my opinion, though the proceedings contemplated by Section 21(2) of the Act, are criminal in form, it is really only a summary mode of enforcing a civil right conferred upon the tenant. The landlord is expected to furnish the particulars relating to facts which are within his special knowledge. These rights and corresponding obligations are part and parcel of the same scheme. The requirement of Section 22 merely emphasises an obvious duty of the landlord. If the principles laid down by the Supreme Court in the aforesaid decision are applied to this case, then it is not possible to read into the said provision the requirement of mens rea. As the penal liability created by the said provision is absolute, no question of mens rea can arise. Consequently we cannot read into the first part of Section 21(2) the requirement of mens rea.

13. However, it is contended by Shri Vohra that as the contractual tenancy of the complainant is terminated, he is not entitled to ask for particulars under b. 21(7). It is not possible for me to accept this contention. The term 'tenant' has been denned in the Act in Section 5, Sub-section (11), which reads as under:

'tenant' means any person by whom or on whose account rent is payable for any premises and includes-

(a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959;

(aa) any person to whom interest in premises has been assigned or transferred as permitted, or deemed to be permitted, under Section 15;

(b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959;

(bb) such licensees as are deemed to be tenants for the purposes of this Act by Section 15A;

(c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the' Court.

14. This definition is not exhaustive, but is illustrative. It is clear from the bare reading of this definition that a statutory tenant is a tenant within the meaning of the said definition. Even a statutory tenant is a person by whom and on whose account the rent is payable. The protection, which is sought to be conferred upon the tenants by the said legislation is, intended to be extended to the statutory tenants also. There is no dispute between the parties that in view of the provisions of the said Act, the complainant still continues to be a statutory tenant. As the complainant is a statutory tenant, he is entitled to ask for particulars under Section 21 of the Act.

15. So far as the facts of the present case are concerned, there is no dispute between the parties. It is an admitted fact that a notice dated October 6, 1971 was served upon the landlord as contemplated by Section 21 of the Act by the complainant-tenant. The said notice was duly received by the landlord. It is also not in dispute that the landlord has failed to furnish the particulars as contemplated by Section 21(7) of the Act. Therefore, in view of the evidence on record as well as the admission of the accused, in my opinion, the accused has committed an offence under Section 21(2) of the Act and is therefore, guilty of the said offence.

16. In the result, therefore, the appeal is allowed. The respondent-accused is convicted for an offence punishable under Section 21(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and is sentenced to pay a fine of Rs. 100 or in default of payment of the said fine, to undergo simple imprisonment for one month.

17. The accused is granted throe months time to pay the fine.


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