1. [His Lordship after stating the facts and dealing with points not material to this report, proceeded.] Lastly, Mr. Gokhale argued that Section 24 was not at all attracted as there was no withholding of any essential supply or service by the landlords within the meaning of that section. This point had not been taken in the Courts below. His contention is that mere omission on the part of the landlord to repair the lift which was worn-out and had fallen into disuse would not amount to withholding of any essential amenity enjoyed by the tenant. He has drawn my attention to Explanation IT to the section in support of his contention and says that it is only such omissions as are described in that Explanation that may amount to the withholding of an essential supply or service. The Explanation says:
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.
2. It is not quite clear how this Explanation at all supports his contention. The Explanation is only an inclusive Explanation and far from supporting Mr. Gokhale's contention, it seems to me that the section and the Explanation clearly indicate that withholding any essential supply or service includes not merely those acts or omissions which are expressly described in the Explanation but also all other acts or omissions which themselves result in such supply or service being withheld. If the landlord locks the lift and makes it unavailable to his tenant, he has withheld an essential supply or service to him within the meaning of Section 24. If the landlord omits to effect necessary repairs to his lift or otherwise fails to keep it in working order and thus makes the lift unavailable, even then the result is the same; he has in fact withheld an essential supply or service to his tenant within the meaning of that section.
3. Mr. Gokhale referred to a decision of the Supreme Court reported inKanaiyalal Chandulal v. Indumati : 1958CriLJ814 , and submitted that certain observations of their Lordships of the Supreme Court in that case supported his contention. In that case, as the landlord's predecessor-in-title had made default in payment of municipal taxes the water supply had been cut off by the municipality early in May 1947. The landlord was called upon by the tenant to get the water connection restored, and if he failed to do so, prosecution under Section 24 of the Act was threatened. As the landlord had refused or neglected to have the water connection restored the tenant filed a complaint on June 14, 1954, for the prosecution of the landlord under Section 24 of the Act. Their Lordships of the Supreme Court held that Section 24 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, makes it essential that the particular essential supply should have been available for the use of the tenant at some time when the Act was in force. In the case before their Lordships the tenant had not shown that she had enjoyed the amenity of the supply of the tap-water from the municipality at any time after the Act came into force and, accordingly, it was held that the offence under Section 24(7) of the Act had not been brought home to the landlord. The decision itself is of no assistance to Mr. Gokhale in his present contention. He, however, relies upon the following observations of their Lordships (p. 931) :
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. Supposing the second explanation was not there, could the prosecution attribute the cutting off of 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)?
4. The argument is that it is only by reason of the Explanation certain omissions as described therein were included in the word 'with-hold' and the omission to effect repairs and put the lift in working conditions being not any such omission as is mentioned in the Explanation cannot amount to withholding any essential supply or service within the meaning of Section 24. I do not think there is any substance whatever in this argument. 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 'with-hold'. In fact, even in the passage from the judgment of the Supreme Court quoted above, their Lordships have described the expressions 'cutting off' or 'with-hold' (paraphrased as refusal to get the connection restored) as an act or omission of the landlord within the meaning of Section 24(1).
5. For the reasons stated above, I confirm the order of the lower Court and discharge the rule with costs.