1. This is a petition for revision of an order of a learned Presidency Magistrate convicting the petitioner under Section 41 of the. West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and sentencing him to one month's rigorous imprisonment and to pay a fine of Rs. 200/-. In default of payment he was to undergo a further period of six weeks' rigorous imprisonment.
2. The complainant was the tenant of a room used as a shop which he held from the petitioner. The case for the complainant was that as the tenant of the shop he had a right to use a certain privy and water from a tap. It is said that the petitioner had not for about six months allowed him access to the privy or allowed him to take water from the tap. Therefore, it is said, an offence under Section 41 of the Rent Control Act, 1950 had been committed.
3. It is clear that proceedings had been taken earlier in the court of the Rent Controller under Section 34 of the Rent Control Act, 1950 and the petitioner had been fined by the Rent Controller.
4. Before the learned Magistrate it was contended that the offence with which he was charged in the criminal court was the same as that with which he was charged before the Rent Controller and that he could not be punished twice for the same offence. The learned magistrate rejected the plea and convicted the petitioner and sentenced him as I have indicated.
5. Section 34 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 provides for penalties for the disturbance of easements. The section in so far as it is material reads:
'Whoever, in any case in which an order or decree for the recovery of possession of any premises is prohibited under Section 12, without the previous written consent of the Controller, or save for the purpose of effecting repairs or complying with any municipal requisition, wilfully disturbs any easement annexed to such premises, or removes, destroys, or renders unserviceable, anything provided for permanent use therewith, or discontinues any supply or service comprised in the tenancy of such premises, shall on the complaint of the party aggrieved, be liable, on the first occasion, to a fine which may extend to five hundred rupees, and on a second or subsequent occasion in regard to the same or any other premises, to a fine which may extend to one thousand rupees to be imposed, after inquiry by the Controller.'
6. Section 41 of the Act is as follows: '1. No landlord either himself or through any person 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. 2. Any landlord who contravenes the provisions of Sub-section (1) shall, on conviction in a Criminal Court, be punished with imprisonment for a term which may extend to six months or with fine or with both.'
7. To this section there is an explanation: '...essential supply or service includes supply of water, electricity, lights in passages and on stair cases, lifts and conservancy or sanitary service.'
8. Mr. Sudhansu Mukherjee in the first place has argued that there really was no evidence that the right to use this privy and water tap was included in the tenancy; and that would appear to be so. There was no attempt to prove an easement by long user and it is somewhat difficult to appreciate how the tenant had a right. He may have been allowed for some years but that would only make him a licensee. Of course if by the terms of the tenancy he was entitled to use the privy and the water tap different considerations would apply. But there does not seem to be any definite evidence of that. At most the evidence is that he used them. Mere user for a period less than the statutory period would not amount to acquisition of an easement. This aspect of the case does not appear to have been enquired into with any care. It seems to have been accepted that because the tenant used this tap and privy for some years it was part of his tenancy or it was an essential supply or service, which of course must be included in the tenancy.
9. The other point taken by Mr. Mukherjee is that his client has been punished twice for precisely the same offence. He was fined Rs. 250 by the Rent Controller for preventing the tenant using the privy and the water tap and he now has been imprisoned and fined for the same thing.
10. It would appear from the judgment of the learned Magistrate that the prosecution was brought on the very same facts as were placed before the Rent Controller and that being so, it appears to me that he cannot be punished twice for precisely the same offence. Quite apart from any difficulties which arise from the definition of the word 'offence' in the Code of Criminal Procedure, it is provided in the Constitution by Article 20(2) that no person shall be prosecuted and punished for the same offence more than once. If the allegations in both the courts were the same as the learned Magistrate's judgment suggests, then I think he has been prosecuted and punished twice for the same offence.
11. Section 31 of the Rent Control Act, 1950 entitles a Rent Controller to impose a fine, and a fine is a punishment for a criminal offence. Whether it be an offence within the Code of Criminal Procedure or not is immaterial. The word fine is defined by Littleton in these words:
' 'Fine' signifieth a pecuniarie punishment of an offence or a contempt committed against the King, and regularly to it imprisonment appertaineth. And it is called 'finis', because it is an end for that offence.'
12. It appears to me beyond all question that when a statute gives the Rent Controller power to impose a penalty, that is fine a person, it gives him a right to deal with the prosecution of an offence and to punish the commission of such offence. What else can these proceedings before the Rent Controller be? They are not civil proceedings. They are proceedings of a criminal nature resulting in a well known form of punishment for a crime, namely, the imposition of a fine.
13. It is true that Section 41 allows proceedings to be taken for the very same sort of offence in the criminal court. But I find it impossible to hold that with regard to the very same facts a man can be dealt with and punished by the Rent Controller and the criminal court. If so, A could be punished by both the courts for cutting off the supply of water on March 1 of any year. If on March 2 and succeeding days the water still remains cut off, he could for each day be prosecuted and punished in both courts and that could go on until he saw fit to restore the connection. Surely that cannot be right. If the prosecution in the criminal court is upon the same facts as the proceedings in the Rent Controller's court, then a previous conviction and fine by the Rent Controller would bar any punishment being given by the criminal court by reason of the plain words !of Article 20(2) of the Constitution of India.
14. On the other hand, if the proceedings in the court of the Controller related, for example to cutting off the supply of water in the month of March and the proceedings in the criminal court for keeping the supply cut off in the month of April, then quite obviously the criminal court could punish because one punishment only would be imposed for the particular offence charged. But if, as the learned magistrate says, the charge made before him was based on precisely the same facts upon which the Controller found the petitioner guilty and fined him, then it appears to me that the criminal court could not possibly inflict any further punishment.
15. Reliance was placed upon a Bench decision of this Court in the case of -- 'Jhabermal Sudhwalla v. Govindram', : AIR1952Cal121 , in which it was held that the fact that certain proceedings under Section 34 were taken before the Rent Controller and have been concluded cannot stand in the way of the proceedings started under Section 41 in the criminal court. Section 403 of the Code of Criminal Procedure has no application to such a case.
16. It does not appear that in this case the proceedings in the criminal court related to the very same fact and period of time as the proceedings before the Rent Controller. In fact it seems clear from the facts that the proceedings in the criminal court related to some period after the proceedings before the Rent Controller had concluded. In such a case quite clearly the criminal court could proceed. Whether Section 403 of the Code of Criminal Procedure applies to a case of this kind is, I think not material because the Constitution makes two punishments impossible. It is to be observed that the words 'prosecution' and 'offence' as used in the Constitution are not defined and they must be given their ordinary meaning. Going to the Rent Controller and asking him to fine a man for an act is really a prosecution of that man and the act is an offence against the statute and is a criminal offence because it is punishable by a fine which is a punishment of a criminal nature.
17. For these reasons this petition must be allowed, the order of the learned magistrate set aside and the petitioner acquitted. He need not surrender to his bail and his bail bond is cancelled. The fine if paid must be refunded.
18. I agree.