Salil Kumar Datta, J.
1. These two Rules arise out of two appellate orders dismissing the petitioners' applications under Section 31 of the West Bengal Premises Tenancy Act, 1956 in reversal of the order passed by the Rent Controller. The petitioners in the Rules are tenants under the same landlady, the opposite party No. 1 in the Rules, in respect of two portions of premises No. 10-A, Harm Sankar Lane, Calcutta. According to their case the monthly rent was inclusive of electric charges. The opposite parties disconnected the supply of electricity sometime in or about January, 1967 thereby committing an offence under Section 31 of the Act. The opposite parties pleaded not guilty to the charges and denied the allegations against them. On a trial on evidence the Rent Controller found that rent was inclusive of electric charges and electric line was disconnected deliberately without any order from the authority or notice to the tenants. The opposite parties were accordingly found guilty and were convicted under Section 31 of the Act and sentenced to pay a fine of Rs. 100/- each. They were further directed to restore the electricity within period specified.
2. On appeal the learned Chief Judge, Court of Small Causes, Calcutta, found in agreement with the Rent Controller that electric supply had been interfered with and discontinued by the opposite parties by cutting off the electric connection to the disputed premises. It was found that in the security receipt and the rent receipts the monthly rent and electric charges were separately mentioned and thus separately realised. On this basis it was held that it could not thus be said that the right to get supply of electricity was comprised in the tenancies. The withdrawal of the deposits lying with the Rent Controller by the landlord, which comprised both rent and electric charges, by themselves, could not lead to the inference that supply of electricity was comprised in the tenancies. The opposite parties, it was held, were not accordingly guilty of any offence under Section 31. The appeals were accordingly allowed, the orders of the Rent Controller were set aside and the applications under Section 31 were dismissed. The Rules before me are directed against these appellate orders.
3. Mr. Gopal Chandra Mukherjee appearing for the petitioners submitted that the appellate Court was wrong incoming to the decision that supply of electricity was not comprised in the tenancies. It was further submitted that in any view, the opposite parties had committed offence under Section 31 of the Act and were liable to penalty and also for restoration of supply as found by the Rent Controller. Mr. Sukumar Sen appearing for the opposite parties contended on the other hand that, in view of the finding that supply of electricity did not form any part of the tenancies, the appellate Court was justified in holding that the applications under Section 31 were not maintainable. He further submitted that the fact that supply of electricity did not form part of the tenancies had already been decided in previous case between the parties and such finding was binding. He further referred to the decision in the case of Satya Prasad Mitra v. Panchugopal Das, reported in : AIR1953Cal686 in which Sen, J. held that the supply of electricity could not be an easement annexed to a premises and it was supply of service. Section 34 of the West Bengal Premises Rent Control (Temporary Provisions) Act. 1950 would apply only when supply of electricity was comprised in the tenancy of the premises. It was further held that if rent was exclusive of electric charges, the supply could not be comprised in the tenancy and Section 34 of the said Act, 1950 could not at all apply. In that case it may be noted that supply was disconnected by the Electric Supply Corporation on failure of the landlord to pay the electric charges. The Court further observed that circumstance that the landlord paid the electric charges for 2 1/2 years could not be regarded as a conclusive circumstance showing that the supply of electricity was included in the terms of the tenancy.
4. The provisions of Section 31 of the 1956 Act appear to be in pari materia with those of Section 34 of the 1950 Act, Section 31 provides as follows:
'Whoever, 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 interferes with 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 (then five hundred) one thousand rupees, and on a second or subsequent occasion in regard to the same or any other premises, to a fine which may extend to (then one) two thousand rupees, to be imposed, after inquiry, by the Controller and the Controller may order immediate restoration of any supply or service which has been interfered with.'
5. It will appear therefrom that a penalty has been prescribed on whosoever committing the following offences:
(a) Wilfully disturbing any easement annexed to such premises;
(b) removing, destroying or rendering unserviceable anything provided for permanent use therewith; or
(c) interfering with any supply or service comprised in the tenancy of such premises,
6. It is not the case that there has been any disturbance of easement as referred to in Clause (a) above. The Court of appeal has found also that supply of electricity was not comprised in the tenancies of such premises. Even assuming such finding to be correct and warranted by evidence or binding by reason of any principle analogous to res judicata as contended by the petitioners, it is to be decided if Clause (b) as stated above is attracted in the facts and circumstances of the case. There is no dispute that provisions for supply of electricity were always there in the disputed premises for permanent use therewith and it is also the case that for supply of electricity electric charges were also being realised from the petitioners, That being the position, in my opinion, the provisions of Clause (b) as set out above is directly attracted and any action rendering unserviceable the electric installations for permanent use therewith would be actionable under the said section. This aspect of the case was not for consideration before Sen J. when he decided the case referred to above. On the evidence as has been found by the appellate Court the opposite parties rendered unserviceable the provisions for supply of electricity in the tenanted premises without either any written consent of the Controller or for the purpose of effecting repairs or complying with any municipal requisition. They, therefore, committed acts for which they are answerable under the said section.
7. Accordingly I make these Rules absolute and set aside the appellate orders impeached in these Rules and affirm the orders passed by the Rent Controller though for different reasons. The time for restoration of the supply is extended by two months from date.
8. There will be no order for costs in these Rules. Let the records be sent down at once.