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Mathura Prosad Rajgharia Vs. Kanailal Mullick and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Criminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 653 of 1965
Judge
Reported inAIR1968Cal170
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 1(2), 5(2), 6, 404 and 417; ;West Bengal Premises Tenancy Act, 1956 - Sections 29, 30 and 31; ;Constitution of India - Article 227; ;Code of Civil Procedure (CPC) , 1908 - Sections 4 and 108; ;West Bengal Premises Tenancy Rules, 1956 - Rule 10
AppellantMathura Prosad Rajgharia
RespondentKanailal Mullick and ors.
Appellant AdvocateKrishna Benode Roy, Adv.
Respondent AdvocateBejoy Kumar Bhose, Adv.
Cases ReferredTriloknath Lall v. Malati Bibi
Excerpt:
- .....the west bengal premises tenancy act 1956. the appellant is a tenant who made a complaint to the rent controller against the landlords - the present respondents - to the effect that they had wilfully stopped the supply of filtered and unfilter-ed water to his premises, that the supply was comprised in the tenancy and is essential thereto.2. the rent controller acting under 8. 31 of the west bengal premises tenancy act 1956 (hereinafter to be referred to as the act) found that the allegation regarding interference with the supply of filtered water had been proved and on this finding he imposed a fine of rs. 200 on the landlords and directed them to deposit the amount in court within seven days. they were further directed to restore the supply of filtered water within 72 hours.3. the.....
Judgment:

T.P. Mukherji, J.

1. This is an appeal filed with the leave of the court under Section 417(3) of the Criminal Procedure Code against the order of a Judge, Small Causes Court, Calcutta functioning as the appellate authority under Section 29 of the West Bengal Premises Tenancy Act 1956. The appellant is a tenant who made a complaint to the Rent Controller against the landlords - the present respondents - to the effect that they had wilfully stopped the supply of filtered and unfilter-ed water to his premises, that the supply was comprised in the tenancy and is essential thereto.

2. The Rent Controller acting under 8. 31 of the West Bengal Premises Tenancy Act 1956 (hereinafter to be referred to as the Act) found that the allegation regarding Interference with the supply of filtered water had been proved and on this finding he imposed a fine of Rs. 200 on the landlords and directed them to deposit the amount in court within seven days. They were further directed to restore the supply of filtered water within 72 hours.

3. The landlords took an appeal to the Chief Judge of the Court of Small Causes at Calcutta. The appeal was transferred to another Judge of the Court and the transferee judge found that although there was stoppage of supply of filtered water to the premises of the tenant there was no evidence in the case that the same was due to direct interference with the supply by the landlords. On 'this finding he allowed the appeal and set aside the order of the Rent Controller. It is against this order that the tenant filed this appeal with the leave af the court.

4. Mr. Bejoy Kumar Bhose appearing for the respondent landlords took a preliminary objection that the appeal is not maintainable. According to him no appeal lies to the High Court from the order of the appellate authority under Section 29 of the Act inasmuch as the said authority is not a court as contemplated by Section 6 of the Criminal Procedure Code and further in view of the fact that the order made by him in the case is not an order of acquittal.

5. To this Mr. Krishna Benode Roy appearing for the appellant contends that the appellate authority under Section 29 of the Act is a court and that the proceeding before the Rent Controller being of a criminal nature to which the Criminal Procedure Code applies, there is no reason why the order of the appellate authority setting aside the Rent Controller's order in this case should not be treated as an order of acquittal. He also argued that if no appeal lies in this case against the order made by the appellate authority, the petition of appeal may be treated as one under Article 227 of the Constitution.

6. On the merits of the case Mr. Roy contended that the Chief Judge, Small Causes Court, Calcutta, or for the matter of that the transferee judge of the court is not competent to hear appeals from orders af the Rent Controller made under Section 30 or 31 of the Act which are passed in proceedings of a quasi criminal nature to which the provi-tions of the Criminal Procedure Code are attracted, that as such the order appealed against is without jurisdiction and is liable to be set aside.

7. The argument in support of the contention is that the appellate authority underSection 29 of the Act is not competent to hear appeals (sic from orders?) passed by the Rent Controller under Section 30 or 31 inasmuch as under Section 29(3) of the Act, the appeals are to be filed and disposed of in the manner prescribed by the Civil Procedure Code and if so, the provision relating to appeals against the Rent Controller's order cannot apply to appeals against such orders as are made under the Criminal Procedure Code and which as such must attract the provisions of that Code in matters of appeals, an appeal being merely a continuation of the original proceeding. If, therefore, no appeal lay to the Chief Judge in this case the order made in appeal is without jurisdiction and must be set aside and the order of the Rent Controller must be restored.

8. I take up first the preliminary objection that is taken to the maintainability of the appeal.

9. The present appeal was filed under Section 417(3) of the Code of Criminal Procedure. Under Sub-section (1) of the section an appeal lies to the High Court at the instance of the Government against an order of acquittal passed by any court. Under sub-section (3) of the section if such an order of acquittal is passed in a case instituted on a complaint, the complainant may file an appeal with the leave of the Court. The words, 'such an order of acquittal' in sub-section (3) obviously refer to 'order of acquittal' mentioned in Sub-section (1) and that order of acquittal has to be an order passed by 'any court' competent to pass an order of acquittal under the Criminal Procedure Code. Neither the Rent Controller acting under Section 30 or 31 nor the appellate authority acting under Section 29 is a court under the Criminal Procedure Code. The Rent Controller functioning under the Act does not convict the landlord under Section 30 or 31. On certain allegations being proved, he simply imposes a fine and directs restoration of the supply that has been interfered with. The appellate authority on appeal does not uphold a conviction in affirming the Rent Controller's order nor does he acquit the landlord in setting aside that order The appellate authority in affirming the findings of the Rent Controller simply maintains or alters the fine and in deciding to the contrary on the facts involved, sets aside the order imposing the fine No question of conviction or acquittal is involved in the proceeding under Sections 30 or 31 of the Act or in the appellate order passed under Section 29 and the appellate authority which does not function under the Criminal Procedure Code is not a court under Section 6 of that Code. Any order made by him cannot be appealed against under the provisions of the Code The Act has also not provided for any appeals against orders made by the appellate authority under Section 29.

10. As, however, the Rent Controller under the Act exercises a quasi criminaljurisdiction enquiring into a complaint entailing imposition of a fine if the same is proved, he functions as a tribunal under the superintendence of the High Court. The authority exercising power to hear appeals against orders of the Rent Controller is also a judicial tribunal functioning under the superintendence of this court. Any appellate order made by the appellate authority under Section 29 is, therefore, revisable by the High Court under Article 227 of the Constitution.

11. I find that the present appeal filed under Section 417(3) Criminal Procedure Code is not maintainable, but at the same time I treat the petition of appeal as one under Article 227 of the Constitution and I proceed to consider whether there are reasons for interference with the impugned order.

12. The order passed by the Judge. Small Causes Court, Calcutta, is challenged as being without jurisdiction and as such liable to be set aside. The argument in support of the contention is as follows:

13. Section 29(1) of the Act provides for an appeal from a final order of the Rent Controller to the Chief Judge, Small Causes Court, Calcutta, if the premises in question lies within the ordinary civil jurisdiction of the High Court or to the District Judge of the district where the premises is situated. Section 29(3) of the Act requires that such appeals are to be filed and disposed of according to the procedure in the Civil Procedure Code.

14. If the Rent Controller is required to deal with complaints under Section 31 in accordance with the provisions of the Criminal Procedure Code as he is required to do under Rule 10 of the Rules framed under the Act, the matter in dispute lies within the criminal jurisdiction and the order of fine that is passed is one in a criminal proceeding and as such the Chief Judge or the District Judge who exercises civil jurisdiction and who is required to dispose of the appeal in accordance with the procedure laid down in the Civil Procedure Code cannot entertain appeals against such orders and the impugned order of the Judge, Small Causes Court, which is virtually an order of acquittal being without jurisdiction is liable to be struck down and the order of the Rent Controller would be liable to be restored. The soundness of this contention requires to be tested.

15. The W. B. Premises Tenancy Act of 1950 in Rule 9 of the Rules framed thereunder, had provided for the procedure in the Civil Procedure Code for all proceedings before the Rent Controller and this Rule was carried forward by Rule 10 of the Rules framed under the Act of 1956. A Special Bench of this Court, however, held in the case Sethia Properties, A Dissolved firm v T. R. Bhavanani, : AIR1961Cal199 that Rule 9 of the Act of 1950 in so far as it made applicable the provisions of theCivil Procedure Code to enquiries into offences created by the Act was ultra vire Section 47(2)(g) of the Act inasmuch as there was nothing in that section which would entitle the rule making authority to prescribe a procedure for trial of offences under the Act different from the trial of offences as provided for in Section 5(2) of the Criminal Procedure Code. Rule 10 of the Rules under the Act of 1956 was thereafter amended in conformity with this decision to provide for the procedure in the Criminal Procedure Code for enquiries into offences under the Act. The Rent Controller in the present case did follow that procedure in the matter of the enquiry before him.

16. Mr. Roy referred in this connection to the case Triloknath Lall v. Malati Bibi, : AIR1967Cal145 . The case of Sethia Properties (supra) came to be considered by the learned Judge in course of his judgment in this case. The discussion was academic in view of the amendment of the Rule regarding the procedure to be followed by the Rent Controller in enquiries into offences under the Act. But the learned Judge in the later case sounded a discordant note and observed that the decision in Sethia Properties case, : AIR1961Cal199 might possibly require reconsideration in view of certain incongruities which the procedure prescribed in the Criminal Procedure Code being followed by the Rent Controller will entail. With the greatest respect for the learned Judges who decided Sethia Properties case. : AIR1961Cal199 I myself entertain the same feeling of unhappiness expressed by Biia-yesh Mukherji. J. in Triloknath Lall's case : AIR1967Cal145 .

17. The Special Bench struck down Rule 9 of the Rules under the Act of 1950, as it was found to be ultra vires Section 47(2)(g) which did not authorise the rule making authority to frame a Rule providing for a procedure different from that provided for in Section 5(2) Criminal Procedure Code. But does Section 5(2) at all apply to offences which are not triable by the courts contemplated in Section 8 of the Criminal Procedure Code? Sub-section (2) of Section 5 provides for dealing with offences under any law other than the Indian Penal Code in the matter of investigation, enquiry or trial and says that these offences are to be investigated, enquired into tried and otherwise dealt with according to the provisions of the Criminal Procedure Code, but subject to any enactment regulating the manner or place of investigation, enquiry or trial thereof. This provision has relation to Schedule 2 of the Code according to which an offence under any law other than the Indian Penal Code and punishable with fine only are triable by 'any magistrate' (offences under the Premises Tenancy Act are punishable with fine only). Under Section 5(2), therefore, an offence under any law other than the Indian Penal Code would be liable to be investigated under Chapter XIV,enquired into under Chapter XVI and XVIII and tried under Chapters XX to XXIII obviously by any of the courts as contemplated in Section 6 and as mentioned in Schedule 2 of the Code, but subject to any enactment providing to the contrary in respect of the manner or place of investigation, enquiry or trial If there be any such enactment the provisions therein are to prevail over the provisions of the Criminal Procedure Code in respect of these matters only.

18. If an offence requires no investigation to bring the offender to trial, if it requires no enquiry before starting the trial and if the trial has to be held not by any of the courts contemplated by Section 6 of the Criminal Procedure Code and as mentioned in Schedule 2 thereof, but by a specified officer, who is not a Magistrate under that Code, it may very well be questioned how the first part of Section 5(2) of the Act is attracted to the matter at all. It may possibly be very well argued that the second part of Section 5(2) is attracted only to cases where the offence is triable in any event by a court as contemplated in Section 6 and mentioned in Schedule 2 because that part does not say that the enactment referred to may also regulate trie tribunal which may try the offence. The enactment may regulate the manner or the place of investigation, enquiry and trial for these offences under other laws but not the tribunal for trying them. Undoubtedly there is difference between regulating the manner and place of trial and regulating the tribunal which will hold the trial. If so when the enactment provides for a tribunal for such trials which is not a court under the Criminal Procedure Code as mentioneo in Schedule 2 that Code will not be attracted on its own force unless the enactment itself provides therefor. This is an aspect of the question which might require consideration in this connection.

19. Then again under Section 32 of the Act of 1956 the Rent Controller is a magistrate only for a limited purpose, implying thereby that he is not so for the purpose of trial of offence under the Act and he is of course not a court under Section 6 of the Code. He is required to try a statutory offence constituted by a breach of a contract which is made an offence only in the area where the West Bengal Premises Tenancy Act operates: it is not an offence elsewhere. It may well be questioned whether the offence is a Crime and if not a crime whether the Criminal Procedure Code will apply of its own force to trials of these statutory offences, which are not triable by courts as contemplated in Section 6 of the Code.

20. The above are some relevant aspects of the question involved in the matter over and above those mentioned in the judgment of Bijayesh Mukherji, J., according to whom in the case of offences under laws other than Indian Penal Code where the special enactment provides for the tri-bunal to try the offence which is not a court, Section 5(2) is attracted, but only to keep away the provisions of the Code. It may be possible to argue that Section 5(2) of the Code is not attracted to those cases at all.

21. In making the above observations on the cases : AIR1961Cal199 (supra) and : AIR1967Cal145 (supra) I have madt a digression but a permissible digression because of the reference by Mr. Roy to Triloknath's case, : AIR1967Cal145 . As the law, however, stands on the strength of the decision in Sethia Properties case, : AIR1961Cal199 which is binding on me and also in view of the present Rule 10 of the Rules under the Act, which is an offshoot of that decision, there is no question that a proceeding before the Rent Controller under Section 31 of the Act is a criminal proceeding governed by the Criminal Procedure Code. The question that is raised by Mr. Roy is whether an appeal against an order of the Rent Controller passed under Section 30 or 31 of the Act would lie to the appellate authority as prescribed in Section 29 of the Act or whether the Criminal Procedure Code would govern such appeals or whether it should be held that no appeal lies against such an order.

22. An appeal is a creature of the Statute. There is no right of appeal apart from what is given by the Statute. The Criminal Procedure Code may apply to a proceeding before the Rent Controller, but that does not necessarily mean that the order that is passed by him must be one under any provision of the Code. As I have pointed out the Rent Controller is not a court under the Criminal Procedure Code. In the matter of trial of offences under the Act he does not convict or acquit the landlord. The order that is made by him is an order under the Act. That Act in Section 29 provides that an appeal will lie to a particular authority against all final orders passed by the Rant Controller and if any appeal against the Rent Controller's order lies it can only lie on the strength of this provision. If Section 29 would not apply to a particular case, no appeal will lie against the relevant order. The Criminal Procedure Code will not apply on its own force to provide for such appeals.

23. All final orders of the Rent Controller have been made appealable by Section 29 of the Act. They have been made appealable to specified authorities and Section 29(3) provides that such appeals will be dealt with according to the procedure applicable to anpeals from orders under the Code of Civil Procedure When the trial is held in accordance with the procedure prescribed in the Criminal Procedure Code hearing of appeal under the provisions of the Civil Procedure Code may appear somewhat incongruous. But considering the fact that in the matter of the procedure for appeals there is hardly any difference between the provisions of the Civil Procedure Code and the Criminal Procedure Code, the apparent incongruity ismore in form than in content. If the law says that an appeal has to be dealt with in accordance with a particular procedure it must have effect unless it can be said that that law is ultra vires or is otherwise liable to be struck down. On behalf of the appellant it could not be pointed out why section 29(3) of the Act should not operate in the matter of appeals against orders made by the Rent Controller under Ss. 30 and 31 of the Act The only argument that the order being made in a Criminal Proceeding, the appeal against it cannot be heard in the Civil Jurisdiction of the appellate authority is not convincing. If the Legislature says that an appeal arising out of a trial for a statutory offence should be heard in accordance with the provisions of the Civil Procedure Code there is nothing inherently objectionable in the legislation. I must hold that the appeal before the Judge, Small Causes Court in the case was competent.

24. Mr. Roy concedes that this application as one under Article 227 of the Constitution must fail if the appellate authority in the case is found to have jurisdiction to hear the appeal. As the appeal was competent and as the appellate authority has not exceeded its jurisdiction in the matter of disposing of the appeal the application must be dismissed.

25. The application stands dismissed.


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