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Triloknath Lall and anr. Vs. Malati Bibi Khetry and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3150 of 1960
Judge
Reported inAIR1967Cal145,1967CriLJ342
ActsWest Bengal Premises Tenancy Act, 1956 - Section 21(2), 21(8) and 42; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 4(O) and 5(2); ;Premises Tenancy Rules, 1956 - Rule 10; ;Premises Tenancy (Amendment) Rules, 1961
AppellantTriloknath Lall and anr.
RespondentMalati Bibi Khetry and ors.
Appellant AdvocateRabindra Narayan Chakravarti, Advs.
Respondent AdvocateLala Hemanta Kumar and ;Mohan Lal De, Advs.
DispositionApplication allowed
Cases ReferredUdit Prasad Singh v. Supru Kisan
Excerpt:
- .....out the purposes of the act, must go down, being ultra vires section 42. as the corresponding rule, rule 9, of the west bengal premises rent control rules 1950, made by the state government under section 47, sub-section 2, clause (g), of the 1950 act, enabling the state government to provide by rules, for the procedure to be followed in inquiries under the act, went down before a special bench of this court in sethia properties v. t. r. bhavnani, : air1961cal199 , ultra vires section 47, sub-section 2, clause (g), as it was, in so far as it made the civil procedure code applicable to inquiries into offences created by the act. mr. lala hemanta kumar. the learned advocate for the opposite party, contends, on the other hand, that section 21, sub-section 8, creates no offence. if it.....
Judgment:

B. Mukherji, J.

1. The two petitioners before me, Trilok Nath Lall and Kedar Nath Lall, are the tenants of 73 Tarak Pramanik Road on a rent of Rs. 140 a month. For November and December 1958, they deposited Rs. 280 with the controller on the allegation that their landlord, then one Radhakrishna Khattray, had not accepted the rent, though tendered. An allegation as this was accompanied by an application and supported by an affidavit, as it had to be under Section 21, Sub-section 8, of the Premises Tenancy Act, 12 of 1956. Such deposit was made and affidavit sworn on or about January 17, 1959. The landlord received the notice of the deposit on February 9, 1959, and applied under Sub-section 5 of Section 21 for withdrawal of the same. He did a little more too. At the time of so applying for withdrawal, he complained to the controller as under:

'The petitioners have been in arrears of rent from March 1958. Their tenancy was, therefore, determined by a notice dated November 17, 1958, asking them to quit by the following December's end. More, an action in ejectment was raised against them in the City Civil Court, being suit No. 169 of 1959. The allegation made in the petitioners' application and the supporting affidavit dated January 17, 1959, that rent was tendered to him and was refused is 'entirely false', and false to their knowledge. In fact, no rent was tendered to him ever.'

So, levy of a fine upon them and a suitable compensation to him out of the fine realized were prayed for under Section 21, Sub-section 8.

2. By an order dated August 5, 1959, the learned controller found as a fact that the statement of the petitioners in their application and affidavit about the tender and refusal of rent for November and December 1958 was untrue, levied a fine of Rs. 30 upon them and directed payment to the landlord of Rupees 15 as compensation out of the fine realized. The tenants, the petitioners before me, appealed. On July 30, 1960, a learned judge, Calcutta Small Cause Court, upheld the finding of the controller and dismissed the appeal. The tenants moved this Court on August 9, 1960, and obtained a rule in which I am rendering judgment now.

3. During the carriage of this revisional petition, Radha Krishna Khattry, the landlord and the sole opposite party, died and has since been substituted by his heirs.

4. The only point on which I have been addressed by Mr. Rabindra Narayan Chakra-vartti for the petitioners and Mr Lala Hemanta Kumar for the opposite parties is if levy of a fine as the result of an inquiry, following the procedure laid down in the Code of Civil Procedure, 5 of 1908, just what the then Rule 10 of the Premises Tenancy Rules 1956 prescribed, is sustainable at law.

5. On no other point have I been addressed The findings of fact come to by the two tribunals of facts have not been challenged either.

6. Rule 10, as is to be seen now (vide notification No. 5806L. Ref. dated April 22, 1961, published in the Calcutta Gazette, Extraordinary, of that date), makes a dichotomy of the procedure of inquiries--those relating to offences under the Code of Criminal Procedure, 5 of 1898, and the rest under the Code of Civil Procedure, 5 of 1908. But when the controller was holding his inquiry in 1959 into the allegation of the landlord, such rule was not there. There was instead the old rule 10 providing that the controller in the course of his inquiries under the Act--no matter whether of offences or of 'non-offences' - was to follow, 'as nearly as may be,' the procedure under the Code of Civil Procedure.

7. Mr. Chakrabarti, the learned advocate for the petitioners, therefore, contends that this rule, that is, old Rule 10, made by the State Government under Section 42 of 1956 Act, for carrying out the purposes of the Act, must go down, being ultra vires section 42. as the corresponding rule, Rule 9, of the West Bengal Premises Rent Control Rules 1950, made by the State Government under Section 47, Sub-section 2, Clause (g), of the 1950 Act, enabling the State Government to provide by rules, for the procedure to be followed in inquiries under the Act, went down before a Special Bench of this Court in Sethia Properties v. T. R. Bhavnani, : AIR1961Cal199 , ultra vires Section 47, Sub-section 2, Clause (g), as it was, in so far as it made the Civil Procedure Code applicable to inquiries into offences created by the Act. Mr. Lala Hemanta Kumar. the learned advocate for the opposite party, contends, on the other hand, that Section 21, Sub-section 8, creates no offence. If it does not, he concludes, the Special Bench decision is not attracted. Stands, therefore, the inquiry under old Rule 10 of the Premises Tenancy Rules, the vires of which does not arise.

8. Let the contention of Mr. Lala Hemanta Kumar be examined first. The plain mean-Ing of offence is an infraction of law. The legal meaning does not appear to be any the different either. Here is Section 3, Clause 30, of the Bengal General Clauses Act, 1 of 1899: 'Offence' shall mean any act or omission made punishable by any law for the time being in force. Section 3 ibid, opens with the words:

'In this Act, and in all Bengal Acts made after the commencement of this Act, and in all West Bengal Acts, unless there is anything repugnant in the subject or context.....'. The Premises Tenancy Act, 12 of 1956, is certainly a law for the time being in force. The making of an untrue statement by the petitioners in their application before the controller about the tender of rent to the landlord and refusal by him is certainly a positive and deliberate act on their part. For such transgression--Subsection 2, Clause (d), of Section 21 enjoins him nol to make an untrue statement--Sub-section 8, part of the law for the time being in force, prescribes a punishment the transgressors, here the petitioners, are to be visited with. The punishment prescribed is the levy of a fine up to two months' rent or Rs. 100, which ever is more. What remains then to make it fhort of an offence? None, for all I see. On the contrary, the whole proceedings are initiated on the complaint of the landlord, complaining that the reasons and circumstances for the application for deposit of rent, as stated bythe tenants, the petitioners, under Sub-section 2, Clause (d), are untrue. So, all the indicia are there of an offence which is transgressionof Sub-section 2 followed by provision forpunishment under Sub-section 8.

9. So many overwhelming indicia of an offence do not, however, deter Mr. Lala from arguing that what section 21, Sub-section 8. provides for does not constitute an offence. In the background of the definition of offence in Section 4, Clause (o), of the Code of Criminal Procedure, which is practically the same as in Section 3, Clause 30, of the Bengal General Clauses Act I have already reproduced, what Mr. Lala seeks to impress upon me is that imposition of fine, say, by the collector upon the landlord under Section 58, Sub-section 3, of the Bengal Tenancy Act, 8 of 1885, or by an officer of the Customs under the Sea Customs Act, 8 of 1878, is not an offence. There I do not agree. An offence each of such trans gressions of the law--be it the Bengal Tenancy Act or the Sea Customs Act--undoubtedly is. But it is a statutory offence, not an offence in the sense of a crime, not a criminal offence. As Banerjee J. puts it in the Special Bench decision, 'while all crimes are offences, all offences are not crimes.' P. N. Mookerjee J. also emphasizes in his short judgment that whether statutory offences, punishable with fines, are crimes or of a criminal nature need not be answered--and has not been answered either--for the limited purpose of the reference to the Special Bench. Once this distinction between a statutory offence and a crime, also called criminal offence perhaps a little loosely, because every crime is a statutory offence too, is borne in mind, Mr. Lala's contention that section 21, Sub-section 8, read with Sub-section 2. does not create an offence, though a statutory offence is plain to be seen, cannot receive effect. ,

10. Mr. Lala seeks to negate an offence in four other ways. One, Section 21, with its nine sub-sections including Sub-sections 2 and 8, is in the Act's chapter 4 captioned: 'Deposit of Rent' whereas chapter 7 captioned: 'Penalties and Miscellaneous', provides for contraventions of several provisions of the Act as well as the consequential punishment therefor. So, Mr. Lala submits, if you have to look for offences, it is right here in chapter 7, not in chapter 4. But in spotting out an offence in the Act, I shall go not by where a particular provision is. I shall go instead by what it contains. Contents of a section, and not its location, should be the test to go by. The rele-vant provisions in chapter 7 are no doubt provisions providing for offences--statutory offences all. None the less, the provision in Section 21. Sub-section 8 read with Sub-section 2, is also a provision providing for a statutory offence, all the indicia of which are very much present, as noticed in paragraph 8 ante, even though it occurs in chapter 4 captioned: Deposit of Rent. Law, it has been said, is not logic. It is true that a chapter is essentially a unit of thought and runs subject-wise. But, if the drafter has thought it fit to disburden himself of all he had to say on deposit of rent, including what would make a statutory offence, it becomes impossible to say, on the basis of such an arrangement of chapters, that no statutory offence is there. Two, the limitation of thirty days, from receiving the notice of deposit, as provided for in subsection 8, for the landlord to initiate proceedings thereunder goes ill with an offence. I am unable to agree may go ill with a crime which knows no limitation, and for good reasons too. But it goes so well with a statutory offence. Even for the offences under chapter 7, which Mr. Lala concedes to be offences, the bar of six months' limitation is there under Section 33. Three, Sec-lion 32 of the 1956 Act converts the controller to be a magistrate, but only for the purpose of realization of the fine. Who has ever denied it? A magistrate deals with a crime. A controller deals with a statutory offence. So, reference to section 32 cannot help matters forward for Mr. Lala. Four, in Udit Prasad Singh v. Supru Kisan AIR 1947 Pat 381, Meredith and Ray JJ. did not equate transgressions of certain forest rules with an offence within the meaning of Section 4, Clause (o), of the Code of Criminal Procedure, because a different intention appeared from the subject or context. Can I say here, upon all I see, that a different intention appears? Here is a tenant who makes an untrue statement while inducing the controller to accept his deposit of rent. Section 21, subsection 8, does provide that when such is the case, a tenant who makes an untrue statement shall be liable to fine. Plainly, it is an offence. If any intention is to be seen here, that intention makes it an offence all the more. More, what the Patna case found was absence of criminal offence: vide the concluding portion of paragraph 13 at p. 384 of the report. I do not find that either: paragraph 9 ante.

11. I am, therefore, unable to uphold Mr. Lala's contention that Section 21, Sub-section 8, creates no offence. I hold, it does: a statutory offence only. Once the conclusion is so, the vires of old Rule 10 of the Premises Tenancy Rules 1956 does arise. In view of the Special Bench decision which is binding on me, this rule must be struck down as ultra vires Section 42 of the 1956 Act, as its predecessor, Rule 9 of the Premises Rent Control Rules 1950, substantially the same as old Rule 10 of the Premises Tenancy Rules 1956, was struck down as ultra vires section 47. Sub-section 2, Clause (g), of the 1950 Act True it is that nothing like Clause (g) empowering the State Government to make rules to provide for the procedure in inquiries under the Act, is in Section 42 of the 1956 Act. Sub-sections 1 and 3 in both--section 47 of the 1950 Act and section 42 of the 1956 Act are the same. But whereas Sub-section 2 of Section 47 has twelve clauses : (a) to(1), Sub-section 2 of Section 42 has none. But that does not matter. Old Rule 10 was made for carrying out the purpose of the Act. One such purpose was to provide for the procedure in inquiries under the Act. So, going by the Special Bench decision, it becomes ultra vires Section 42 and can, therefore, receive no effect.

12. Old Rule 10 thus going down, what happens to the inquiry the controller held just under this condemned rule--an inquiry as the result of which the petitioners before me have been fined? Instead of returning my own answere let me pursue the Special Bench decision. In the penultimate paragraph of Banerjee J.'s judgment with which Guha and P. N. Mookerjee JJ. agree, the following occurs:

'Let the matter be now placed before the learned Chief Justice, with the conclusion and answer, for necessary direction.'

I have had the original record brought before me. On perusal thereof, I find that the Chief Justice directed the matter to be placed for final disposal before the Bench presided over by Banerjee J. Thereafter Banerjee J., with whom Amaresh Roy J. agreed, set aside the fine of Rs. 1,200 imposed upon the landlord, on the ground that conviction under a procedure which was declared by the Special Bench to be ultra vires could not be sustained. By parity of reasoning, therefore, the fine levied upon the petitioners as the result of an inquiry under old Rule 10, which is ultra vires Section 42, deserves to be set aside too. The Bench decision of Banerjee and Amaresh Roy JJ. is equally binding on me.

13. There is an additional reason why the fine levied on the petitioner Kedar Nath Lal cannot stand. Trilok Nath Lal, the other petitioner, had alone filed the petition and sworn the affidavit on January 17, 1959. So, imposition of a fine upon Kedar Nath Lal cannot stand in any event. In my judgment, he cannot be made vicariously liable for what Trilok Nath has done, when a statutory offence of his type is at issue Mr. Lala has taken pains to convince me that no question of vicarious liability arises here. With respect, I do not agree. What would be the position in regard to a several liability when one joint tenant does one act is a different matter outright. Since it is a staluion offence I am seized of. I shall not be justified in introducing the doctrine of vicarious liability in the realm of an offence, in absence of law's clear mandate to that end.

14. Thus, on the basis of authorities binding on me, the rule will succeed But before I part with the rule, with great respect and in greater humility maY I give vent to my feelings that the Special Bench decision perhaps merits reconsideration, in so far as Section 5, Sub-section 2, of the Code of Criminal Procedure lies at its root? Does not Section 5, Sub-section 2, on its own force exclude mosf of the provisions of the Code of Criminal Pro-cedure from a statutory offence to be tried or inquired into by the controller who is obviously not a magistrate? I submit, it deos. It will be noticed that Sub-section 2 of Section 5 con-sists of two parts. By the first part it is provided that all offences under the Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. By the second part is provided an exception for offences under any law other than the Penal Code, the exception being that the provisions of the Code will be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Now, translate the Code's provisions to Section 33 of the 1950 Act under which a complaint could he made to, and a fine could be imposed by, the controller, not a magistrate; and under which the controller in Sethia Properties' case, : AIR1961Cal199 giving rise to the Special Bench decision did impose a fine of Rs. 1,200 upon the landlord. Receipt by the landlord of rent in excess of the standard rent is surely an act punishable with fine by Section 33, a law for the time being in force, and, therefore, an offence within Section 4, Clause (o), of the Criminal Procedure Code. So what? To stop here is to stop noticing how the concept of offence spreads throughout the Code. The first division the Code makes of offence is bailable and non-bailable : Section 4, Clause (h)-

'bailable offence means an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and 'non-bailable offence'means any other offence'

Turn to the last entry in the second schedule under the heading: Offences against other laws, only to find that the offence under Section 33 of the 1950 Act, an offence punishable with fine only, would be bailable: vide columns 2 and 5. So far I have encountered no difficulty in applying section 4, Clauses (o) and (b), of the Code to the facts of Sethia Properties' case, : AIR1961Cal199 under Section 33 of the 1950 Act. But who will the bail be granted by? Surely not by the controller, but by the court before whom the person complained against the landlord in Sethia Properties' case : AIR1961Cal199 is brought or appears: Section 496. Court here means five classes of criminal courts, besides the High Courts and the courts constituted under any law other than the Code for the time being in force: Section 6, The Special Court, with which we are now so familiar, is one such criminal court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act 21 of 1949. And there are many others too. But the controller's is not a criminal court. The Code does not make it so; nor the 1950 Act. Again, Section 496 contemplates a case where the accused is brought before a court Let it be assumed that the landlord is in the position of an accused. But who will he he brought by before the criminal court which the controller's is not? This brings me to another division of offence in the Code cognizable and non cognizable Section 4, Clauses (f) and (n). Let me confine myself to non-cognizable offence only which means

'an offence for which a police-officer may not arrest without warrant.

To the last entry in schedule 2 again of the Code. Under column 3, the offence under Section 33 of the 1950 Act would be non-cognizable. Who will then a warrant be issued by to gel a recalcitrant landlord charged thereunder and defying the summons of the controller to appear before him? The controller, though he is not a magistrate? But only a criminal court within Section 6 or within any other law can issue a warrant of arrest: Section 75 read with Section 6. The controller is not such a court. Incidentally, the Code of Civil Procedure, the mention of which in rule 9 led to its downfall, and the powers under which were conferred upon the controller (Section 31 of the 1960 Act), looks so apt there. Under section 32 read with section 30 of the Code of Civil Procedure, the controller could issue a warrant of arrest for the production of a refractory landlord. Then, the legislature was fully aware of this fundamental difference between a statutory offence with a magistrate --a criminal court, nowhere near (e.g. Section 33), and a crime, a criminal offence, with a criminal court at the helm, as in Section 40, the marginal heading of which opens with criminal liability, Sub-section 1 of which provides for conviction in a criminal court, and Subsection 2 of which places an offence under Sub-section 1 as cognizable and bailable. (Cf. the definition supra of bailable offence also including an offence which is made bailable by any other law for the time being in force). For such a statutory offence as Section 40 enacts, Section 5. Sub-section 2, of the Code of Criminal Procedure is there to attract the provisions thereof. And all that goes before leads Mr. Lala Hemanta Kumar to submit that the new Rule 10 may as well be regarded ultra vires Section 42 of the 1956 Act: a matter on which I do not feel called upon to express any opinion, in view of the limited scope of the inquiry before me.

15. A little more may be noticed of these difficulties and incongruities. Section 33 of the 1950 Act does create a non-cognizable offence, as noticed. Now translate Section 155 of the Code of Criminal Procedure here. Who will the investigation be ordered by of such offence? Surely not by the controller, but by a magistrate of the first or second class or a Presidency Magistrate. The controller is not either. Again, try to apply Section 29. By Sub-section 1 thereof, it is provided that, subject to the other provisions of the Code, any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such court Court means any one of the criminal courts specified in Section 6. The controller's is not such a court What when the special law mentions no court but does create an offence? Sections 81 and 82 of the Registration Act, 16 of 1908 furnish a case in point. And there are many other such provisions. An offence is there (Sections 81 and 82) punish-able with 7 years' imprisonment or with fine or with both. But no court is mentioned. Inthe circumstances Section 29, Sub-section 2, of the Code of Criminal Procedure provides inter alia that such offence may be tried by any court by which such offence is shown in the eighth column of the second schedule of the Code to be triable. And the first entry in the said schedule shows it to be triable by the court of session: the court mentioned in column eight.

16. In sum, the position then appears to be this:

'A. When a statute other than the Penal Code creates an offence and specifices the criminal court to try it or to inquire into it, Sec-tion 5, Sub-section 2, of the Code of Criminal Procedure is attracted, and the offence shall he so tried or inquired into, notwithstanding what is contained in the Code of Criminal Procedure.

B. When a statute other than the Penaf Code creates an offence, but mentions no criminal court to try it or to inquire into it, Section 5, Sub-section 2, of the Code of Criminal Proce-dure is attracted too, and the offence shall be tried or inquired into according to the provisions of the said Code, the trial being held by the criminal court mentioned in the eighth column of the second schedule thereto.

C. When, however, a statute other than the Penal Code creates an offence and specifies a person whose is not a criminal court and who is not a magistrate, such as the controller under the Rent Control Acts, the officer of the customs under the Sea Customs Act etc., to try such offence or to inquire into it, sec-tion 5, Sub-section 2, of the Code of Criminal Procedure is attracted too, but only to keep away the Code's provisions to the contrary, because of the exception in the second part of Section 5, Sub-section 2.

17. In support of the last proposition, I can do no better than quote the following from Banerjee, J.'s judgment after it refers to fine leviable by an officer of the customs under the Sea Customs Act:

'Therefore, the use of the word 'fine' as a method of penalty to be imposed for a statutory offence is not always a sure indication that the statutory offence must be a crime. If it were so, a customs officer not invested with criminal jurisdiction could not impose a line as a punishment for a criminal offence.'

I say just that of the controller dealing with statutory offences under the Rent Control Acts. It is no doubt galling to a judicial personage to find a rule by virtue of which the Code of Civil Procedure, enacted for trial of suits, is pressed into service for trial of a statutory offence. But the second part of Section 5, Subsection 2, of the Code of Criminal Procedure, keeping away the Code's provisions to the contrary, can such a rule be struck down, as it was struck down in fact by the Special Bench just on that basis--the basis of Section 5 Subsection 2? That is the question I have ventured to raise in all humility, and not without some diffidence too.

18. At the same time, in spite of what I feel, I see little necessity of referring the caseto a larger Bench, because old Rule 10 has since been replaced by new Rule 10, providing for the procedure of an inquiry into an offence to be the procedure under the Code of Criminal Procedure (paragraph 6 ante) thereby reducing the matter to be one of academic interest only. Hence, 1 must bow tn the authority of the Special Bench in Sethia Properties' case : AIR1961Cal199 , no less of the Division Bench thereafter in the same case, (paragraph 12 ante), and make the rule absolute. The levy of fine be set aside. Fine, if realized, be refunded.

19. Each party will bear its costs throughout.


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