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Sm. Kanchanmala Dassi Vs. Sm. Lilabati Debi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSuit No. 2871 of 1949
Judge
Reported inAIR1951Cal164
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 11 and 11(1) ;Bengal Suppression of Immoral Traffic Act.
AppellantSm. Kanchanmala Dassi
RespondentSm. Lilabati Debi
Appellant AdvocateBinayak Banerjee, Adv.
Respondent AdvocateRobi Roy, Adv.
Cases ReferredRex v. Munck
Excerpt:
- .....meant the same thing as 'nuisance,' it would not have been put in. it means something different from nuisance.........'annoyance' is a wider term than nuisance & if you find a thing which reasonably troubles the mind & pleasure, not of a fanciful person or of a skilled person but of the ordinary sensible english inhabitant of a house--if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment to comfort.'13. applying that test & substituting an indian for the english inhabitant & which would still then in my opinion be good law, i find certainly on the facts & evidence of this case that the test of annoyance has been satisfied.14. on what is prostitution & what is.....
Judgment:

P.B. Mukharji, J.

1. This is a suit for the recovery of premises No. 8 Latu Mullick Lane, Calcutta. The ground on which the ejectment is asked is, first, that the deft. has been using or allowing the premises to be used as a brothel & thereby has been guilty of conduct which is a nuisance or annoyance to the occupiers of the neighbouring premises, & secondly, service of notice dated 9-7-1949 by the Commissioner of Police, Calcutta under the Bengal Suppression of Immoral Traffic Act. The notice to quit is pleaded as having been served on the deft. & is dated 13-7-1949, asking the deft. to vacate on the expiry of July 1949. The written statement of the deft. denies that the premises are being used as brothel or that it is a nuisance or annoyance to occupiers of the adjoining or neighbouring premises. There is also denial of the service of notice by the Commissioner of police.

2. Mr. Banerjee appeared for the pltf. & Mr. Robi Roy for the deft. On behalf of the deft., the following issues were raised:

1. Has the deft. been using or allowing the premises to be used as a brothel as alleged in para. 2 of the amended plaint?

2. Has the deft. been guilty of conduct which is a nuisance or annoyance to the occupiers of adjoining or neighbouring premises?

3. Has the deft. been served with the Police notice dated 9-7-1949?

4. Is the notice to quit dated 13-7-1949 valid in law & binding on the deft?

5. To what relief or reliefs, if any, is the pltf. entitled? Mr. Banerjee appearing for the pltf. has accepted these issues.

3. A large number of witnesses hare been examined in this case & there is also an admitted brief of documents marked Ex. A in these proceedings.

4. Issues I & 2. -- I have no hesitation in coming to the conclusion that the premises have been & are being used by the deft. as a brothel. Apart from the evidence of witnesses called on behalf of the pltf. it appears to me to be admitted even by the deft.'s witnesses, Kanai Lal Das, Aswini Kumar Das & Govinda Charan Laha. (After discussion of the evidence the judgment proceeds:) On this evidence I am satisfied that-the house is used as a brothel & that the deft. is guilty of conduct which is a nuisance or annoyance to the occupiers of adjoining or neighbouring premises. I am not prepared to accept as against this evidence the testimony of Kanailal Das, Aswini Kumar Dutt & Govinda Charan Laha who have tried to say that this is very peaceful brothel having only teetotallers & individuals who neither smoke nor drink & upholding the new morality where men & women live together without being married. (After discussion of the evidence of these witnesses the judgment proceeds:) I am not prepared to accept the credit of testimony of these witnesses as against the credit of the testimony of the pltf.'s witnesses for reason which I have indicated above.

5. The only point made by the learned counsel for the deft. is that Latu Mullick Lane is more or less a brothel quarter in the sense that there are two other houses which are brothels & that Rambagan area is close by, which is also a brothel area, & therefore these citizens are not entitled to object to this house being used as a brothel. I do not accept that argument, first, on the point of fact; and secondly, on the point of law. As regards the fact, it is quite true that there are two other houses in this Lane which are brothels & which may or may not create a nuisance. A brothel may or may not create nuisance but if it does cause nuisance it is certainly objectionable in law. The fact is that, in this particular case, respectable people of the locality did complain to the Police repeatedly A have come here before me to complain that it is a nuisance with drunken brawls, pimps, shouts, disturbances, people under the influence of liquor coming at all odd hours during the night & going away in the early hours of the morning. That to my mind, is a state of affairs which is not only a nuisance to the people who lire in that locality but also a cause of annoyance to the occupiers of adjoining or neighbouring premises sufficient enough to exclude the deft. from the benefit of the Rent Control Act. In my judgment it is a clear case of nuisance in fact & in law.

6. It has been contended before me that under the Rent Control Act, the tenant himself has to be guilty. Now, the relevant section is Section 11 (1) (c) & 11 (1) (e), Rent Control Act of 1948. The first provision is that, where the tenant has been using the premises or allowing the premises to be used for immoral or illegal purposes, such a tenant cannot obtain the protection granted by Section 11, Rent Act. In this case, on the facts that I have shown, I hare no hesitation in holding that the defendant as tenant had been using the premises or allowing the premises to be used for immoral purposes. The next provision is that, where the tenant has been guilty of conduct which is a nuisance or annoyance to occupiers of adjoining or neighbouring premises, such a tenant also cannot ask for the protection of Section 11, Rent Act of 1948. Here, again, on the facts as I have found, the deft. took this house on rent & has been using it as a brothel A that user is the cause of nuisance and annoyance to the occupiers of adjoining or neighbouring premises. I fail to see in this context how she could ask for protection of the Rent Act of 1948.

7. It has been argued before me that the disturbances & shouts of those who come to visit 8 Latu Mullick Lane, are not enough to be a nuisance within the meaning of this particular Sub-section (e), Rent Act of 1948 because it is not the shouts or the disturbances of the tenant herself, I am not disposed to accept this argument. The Statute says that the tenant should be guilty of a conduct which is nuisance or annoyance. I hold in this case that the tenant's conduct of running a brothel & inviting in that sense people to visit that house is a conduct which is the proximate cause of annoyance or nuisance.

8. It has also been argued that keeping a brothel must be within the meaning of the Bengal Suppression of Immoral Traffic Act; otherwise it is not immoral. I have come to the conclusion that this argument his no substance at all. The Bengal Suppression of Immoral Traffic Act defines a brothel for the purposes of that Act and provides certain penalties & consequences. But there-may be a brothel apart from the Bengal Suppression of Immoral Traffic Act. The question which I have to decide is under Sub-section (c) Section 11 (1), Rent Act. Is the tenant using or allowing the premises to be used for immoral purposes? On the facts as I have found & stated above, have no hesitation in holding that the premises are being used by the tenant & also allowed by the tenant to be used for immoral purposes, independently of any provisions of the Bengal Suppression of Immoral Traffic Act. I do not consider that the word 'immoral' in Sub-section (c) of Section 11 (1), Rent Act of 1948 is limited by the ideas and notions of brothel as expounded & defined in the Bengal Suppression of Immoral Traffic Act.

9. Before I conclude, I should like to notice the arguments & the authorities which have been cited before me in this connection. In the case of Upfill v. Wright, (1911) 1 K. B. 506, 'Darling J., observes at 610 as follows:

'Applying the law BO laid down to the present case one has to see whether the flat was let either for an illegal or for immoral purpose, for if so, the rent cannot be recovered. The flat so let to the deft. for the purpose of enabling her to receive the visits of the man whose mistress she was and to commit fornication with him there. I do not think that it makes any difference whether the defendant is a common prostitute or whether she is merely the mistress of one man if the house is let to her for the purpose of committing the gin of fornication.'

10. Then again at pp. 512-13 of the same, report, the other learned Judge Bucknill J. observes:

'It was urged that prostitution is one thing and Hiring as one man's mistress is quite a different thing. They may differ in degree but they both stand upon the same plane.'

11. The argument that is advanced on the basis of the evidence of the deft. & on the basis of the petition of deft. & others dated 23-11-1948, (Deft.'s document 4) appearing in the admitted brief of documents that no prostitution is permitted in the house & the occupants live there as husband & wife although not married is met by this authority. I accept the test of Bucknill J. that prostitution & living as only one man's mistress differ only in degree but stand on the same plane. In my judgment the latter is sufficiently immoral to come within the meaning of the Rent Control Act as I construe it so as to exclude such persons from obtaining the benefit and protection of the Rent Act. There, of course, in the case before Darling J., the pltf.'s action failed because the landlord knew from the beginning that he was letting out the house for immoral or illegal purpose & therefore, the Court did not lend its aid to recover such house or rent. But the fact here is entirely different and it has not even been suggested that the pltf. in this case knowingly let out the house to a brothel-keeper.

12. The word 'annoyance' has also been subject of judicial interpretation & its importance in this suit arises from the fact that it is used in sub-s. (e) of S. 11, Rent Act, 1948. The well-known decision of the Court of Appeal in Tod Heatley v. Benham, (1883) 40 Ch. D. 80 is on the point. Bowen L. J. at p. 97 observes:

'What is the meaning of the tern 'annoyance'? It implies more, as it stems to me, than 'nuisance' ......... If annoyance meant the same thing as 'nuisance,' it would not have been put in. It means something different from nuisance.........'Annoyance' is a wider term than nuisance & if you find a thing which reasonably troubles the mind & pleasure, not of a fanciful person or of a skilled person but of the ordinary sensible English inhabitant of a house--if you find there is anything which disturbs his reasonable peace of mind, that seems to me to be an annoyance, although it may not appear to amount to physical detriment to comfort.'

13. Applying that test & substituting an Indian for the English inhabitant & which would still then in my opinion be good law, I find certainly on the facts & evidence of this case that the test of annoyance has been satisfied.

14. On what is prostitution & what is immoral, I have heard very interesting arguments. Mr. Rabi Roy appearing for the deft. has argued that association of men & women outside the legal marriage is not immoral at all. I am disposed to accept that view generally & I would have been sorry were I to hold that all association between man & women outside legal marriage was immoral. I do not however need to embark on only advanced theory of morality or the doctrine of free love untrammelled by marriage. It is enough for me on the facts of this case to find that it is no mere association here such as Mr. Roy was contemplating, but it had the awful result in fact of open solicitation for customer, drunkenness, brawl, pimps, noise, shouts & distrubances. Equally interesting have been the arguments addressed to me on the theory of prostitution. Mr. Roy has relied on the decision of Jatindra v. Manindra, 54 C. W. N. 384 as to what is open prostitution & what is clandestine prostitution. I do not think it 13 relevant for me to decide this particular point that is raised in the argument. That case related to a case of public nuisance & where the fact was one of clandestine prostitution. Darling J. in Rex v. Munck, (1918) 1 K. B. 635 at p. 637 makes some relevant observations explaining & defining prostitution. Those observations made in interpreting the words 'common prostitute' that occurred in Section 2 (2), English Criminal Law Amendment Act of 1885 are :

'We have to decide what is a prostitute or what is prostitution. The agrument advanced on behalf of the appellant practically was that the offering by a woman of her body for the gratification of the sexual passions of men even if it is done as a regular trade, indiscriminately and for gain, is not prostitution, unless the men's passions are gratified by the act of sexual connection & otherwise. We have come to the conclusion that that contention is not well-founded............The Court is of opinion that the term 'common prostitute' in the statute is not limited so as to mean only one who permits of lewdness with all and sundry, or with such as hire her, when such acts are in the nature of ordinary sexual connection. We are of opinion that prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return.'

I do not propose to make any attempt to define prostitution because it is enough for me to find immorality which have done in this case.

15. Mr. Roy has argued that this Court is not a Court of morals, but a Court of law & that I am free to hold that prostitution & keeping of brothel such as are found on the evidence in this case are not immoral, but quite moral according to the standards of progressive society which he has advocated. He has further argued that immorality must be such that it must interfere with the legal rights of an individual or otherwise there is no immorality cognisable by the Court of law. I am unable to accept either of his contentions without qualifications. No doubt it is true that this Court is not a Court of morals but because it is a Court of law and because the law or statute requires this Court to come to a finding as to whether a house is being used for immoral purpose or not, this Court alone can finally decide whether in the facts of a particular case the purpose is moral or immoral. In deciding the question whether the purpose is moral or immoral, this Court does not act as a Court of morals, but acts as the Court of law deciding the question. It is not either the private morality of the Judge deciding it or the fanciful morality of persons who happen to be propounding the new sociology or advanced philosophy of morals that can be allowed to operate as the test of morality but in deciding this issue, the Court has to adopt & go by the ordinary normal standards of morality prevailing & accepted in the society. Immoral purpose under the Rent Control Act must be understood by the standards in the society where the question arises. Such as are the facts that have been proved in evidence, in my view, leave no room for doubt that the purpose is immoral in this case.

16. In these circumstances I hold that the deft. has been using or allowing the premises to be used as a brothel & for immoral purposes & is also guilty of conduct which is a nuisance or annoyance to the occupiers of adjoining or neighbouring premises. In that view of the matter, I answer both the first & the second issues in the affirmative.

17. Issue No. 3:--On this issue the pltf. cannot succeed. I do not think there has been any service of the notice of the Commissioner of Police dated 9-7-1949 on the deft. Mr. Banerjee gave up this point after the evidence of the Sub-Inspector of Police & of the keeper of Police records. I do not therefore need to elaborate this point. It is enough for me to say that there was no enquiry after 8-12-1948. The enquiry was on 26-10-1948, The reason why I mention this date, 8-12-1948, is that the order of permission of the Deputy Commissioner of Police, Detective Department bears the same date, 8-12-1948. That order runs in these terms & is addressed to the deft. & others:

'There is no objection to their staying at the above premises provided they have decent life & do not disobey the orders served on them.'

That being so, this notice of 9-7-1949 could no longer be of any importance or relevance.

18. I, therefore, answer this issue in the negative.

19. Issue No. 4:--The learned counsel for the deft. has not seriously questioned the validity of notice to quit dated 13-7-1949. Service of the notice is admitted but it was argued that the notice urged the grounds which have not been maintained on the evidence. I find on facts that it has been maintained in evidence by the pltf. & her witnesses. Besides, I do not think, that a notice to quit requires to state any ground at all.

20. I therefore answer this issue in the affirmative & hold that the notice dated 13-7-1949 is valid.

21. Issue No. 5:--In the circumstances, it follows that the deft. is not entitled to any protection under the Rent Control Act, 1948, by reason of the findings under issues 1 & 2.

22. There will, therefore, be a decree for ejectment & mesne profits at the rate of rent from 1-8-1949 until delivery of possession. The pltf. is entitled to the costs of this suit.


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