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Nathmal Kajaria and ors. Vs. Ram NaraIn Rathi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1962CriLJ809
AppellantNathmal Kajaria and ors.
RespondentRam NaraIn Rathi
Cases ReferredPulin Krishna Paul v. Sishupati Chakravarty
Excerpt:
- .....am dealing is a composite application under article 227 of the constitution and section 439 of the code of criminal procedure. i agree that this bench, constituted as it is, will not be competent to deal with an order made under section 31 in the exercise of its revisional powers given to it by the code of criminal procedure, section 439 defines the court's power of revision but that section has to be read along with section 435 which recites that the power to revise must relate only to orders of inferior criminal courts. there can be no question that neither the controller nor a judge of the calcutta court of small causes is an inferior criminal court, the question then arises whether this bench can deal with the matter in exercise of its powers under article 227. the power to be.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This is a composite application under Article 227 of the Constitution and Section 439 of the Code of Criminal Procedure challenging a conviction under Sec, 31 of the West Bengal Premises Tenancy Act, 1956 and an order of restoration of electric connection to tile opposite party's premises.

2. The opposite party Ram Narain Rathi is a monthly tenant in respect of a room in premises No. 15/1 Sovaram Basak Street, Calcutta under the petitioner Nathmal Kajaria who is said to be a partner of the petitioner, the firm of Nathmal Dwarkadasi, Petitioner Ram Kishore Dubey is a durwan looking after the properties of his employers, the other two petitioners.

3. The allegation 1st that on a stated elate the electric supply to the opposite party's premises was disconnected by the petitioners Nathmal Kajaria and Ram Kishore.

4. An application under Section 31 of the West Bengal Premises Tenancy Act, 1956 was made before the Controller complaining of disconnection of electric supply. The learned Controller took evidence and held that the petitioners had caused the disconnection; he imposed a fine of Rs. 100/- on each of the petitioners and directed them to restore electric connection within 15 days of the date of the order.

5. The petitioners being dissatisfied with this order took an appeal which was dealt with by a Bench of the Calcutta Court of Small Causes. The learned Judge affirmed the order of the Controller and upheld the order of restoration of electric connection. It is against this order that the present Rule has been obtained.

6. At the hearing of this Rule a preliminary objection on behalf of the opposite party has been taken to the competence of this Bench, constituted as it is, to hear and determine the matter. The objection is that neither the Controller nor die Bench of the Calcutta Court of Small Causes can be said to be a Court inferior ,to this Bench exercising criminal jurisdiction. It has been argued that the order made by the Small Causes Court Judge may be revisable by a Bench taking civil matters. The argument is obviously based on the status of the Controller and of the Judge of the Small Causes Court both of whom deal with matters of a civil nature, and that being so, the present Bench hearing Criminal cases is not competent to deal with an order made under Section 31 of the Act.

7. As I have indicated the application with which I am dealing is a composite application under Article 227 of the Constitution and Section 439 of the Code of Criminal Procedure. I agree that this Bench, constituted as it is, will not be competent to deal with an Order made under Section 31 in the exercise of its revisional powers given to it by the Code of Criminal Procedure, Section 439 defines the court's power of revision but that section has to be read along with Section 435 which recites that the power to revise must relate only to orders of inferior criminal courts. There can be no question that neither the Controller nor a Judge of the Calcutta court of Small Causes is an inferior criminal court, The question then arises whether this Bench can deal with the matter in exercise of its powers under Article 227. The power to be exercised under this Article must again relate to a criminal matter. It is therefore, necessary to determine whether an order of imposition of fine and the further order directing restoration of electric supply could be dealt with on the footing of orders made in a criminal matter.

8. A cognate question was decided by a Special Bench of this Court in the case of Sethia Properties v. T.R. Bhavnani : AIR1961Cal199 . The question there raised related to violation of the provision under Section 33 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 read with Rule 9 of the Rules framed under that Act. It was held that the infringement of Section 33 of the Act was an offence. An opinion was expressed that an offence did not necessarily mean a crime; consequently when an offence entailed a penalty, the offence did not become a criminal offence only because of that reason. Banerjee J., who delivered the leading judgment made it clear that it was not necessary for that Bench to decide the question one way or the other, although it was held that Rule 9 was ultra vires and the penalty having been imposed by following a procedure different from the one prescribed in Section 5(2) of the Code of Criminal Procedure, could not be upheld. The actual words used by the learned Judge may usefully be set out:

Had it been necessary for me to find whether an offence under Section 33 of the Act was a crime, I might have found in the negative. But it is not necessary for me to do so because whether a crime or a mere statutory offence I do not approve of the trial of such an offence under the procedure laid down in the Civil Procedure Code for regular trial of suits.

9. In my view it is not correct to say that the Special Bench decided that an offence under Section 33 of the Act of 1950 was not a crime. That question did not fall to be decided and was accordingly left open. But there was just an expression of opinion by one of the learned Judges who dealt with the matter that if it was necessary for him. to express his views he might have thought that such offence v. as not a crime.

10. The question came directly for consideration in the case of Pulin Krishna Paul v. Sishupati Chakravarty : AIR1953Cal85 , where Harries C.J., held 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.

In that case the petitioner had already been fined by the Rent Controller under Section 34 of the Rent Act of 1950. Thereafter fresh proceedings were taken under Section 41 of the Act and he was convicted this time by a Magistrate and sent to prison as well as fined. It was held that the petitioner having once been sentenced could not be sentenced again - a course forbidden by Article 23 of the Constitution.

11. As far as I can see the decision of Harries C.J., in the case just cited still holds the field and is not affected by the decision of the Special Bench.

12. Before I proceed further it would be useful at this stage to set out Section 31 of the West Bengal Premises Tenancy Act, 1956:

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 or 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 and the Controller may order immediate restoration of any supply or service which has been interfered with.

13. The procedure followed in the present case by the learned Controller in awarding penalty and directing restoration of electric connection wag the procedure prescribed by Rule 10 of the West Bengal Premises Tenancy Rules. That Rule is in these words:

In making inquiries under the Act, the Controller, the Chief Judge of the Court of Small Causes of Calcutta, the District Judge or the Judge of the Court of Small Couses of Calcutta, or the Additional District Judge or the Subordinate Judge, to whom the case may be transferred under the provisions of Sub-section (4) of Section 29, shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the trial of suits, recording a memorandum of the substance only of the evidence as in cases in which, an appeal is not allowed and shall record in brief the reasons for his findings.

14. Section 34 of the Act 1950 reads as follows:

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 die 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 enquiry, by the Controller.

15. A comparison of the Acts and the Rules of 1950 and 1956 will show that the main provisions relating to imposition of penalty for disturbance of easement have remained unaltered just as the procedure prescribed in the Rules under the two Acts has remained practically unchanged. The Special Bench decision, to which I have referred, clearly held that Rule 9 of the 1950 Rules in so far as it made the Civil Procedure Code applicable to inquiries into offences created by the Act was ultra vires Section 47(2)(g) of the Act of 1950 which gave to the State Gov, eminent the power to make rules for carrying out the purposes of the Act. Sub-section (2) of the section says that the rules may provide for all or any of the other matters enumerated thereunder including the procedure to be followed in inquiries under the Act by the Controller, the Chief Judge of the Court of Small Causes of Calcutta and the District Judge. The corresponding provision in the Act of 1956 is contained in Section 42 which says that the State Government may make rules for carrying out the purposes of the Act and such rules may provide for all or any of the matters which, under any provision of this Act, are required to be prescribed or to be provided for.

16. It seems clear that Rule 10 which is the relevant rule made in pursuance of power given to the State Government under Section 42 of the Act of 1956 is almost identical with Rule 9 of the earlier Act. If that is so I am bound to hold that Rule 10 regulating the procedure of inquiries is ultra vires Section 42 of the Ac1 of 1956. If that is the true result of the Special Bench decision which I think it is, then I must hold that the procedure adopted by the Controller in hearing and determining the application under Section 31 of the Act was illegal with the consequence that the imposition of fine en the petitioners and the order directing restoration of electric connection are unsustainable.

17. There is no dispute that the procedure followed by the Controller was the procedure laid down in the Code of Civil Procedure. The Special Bench held that in such a case the procedure for trial of offences should be regulated by the Code of Criminal Procedure in terms of Section 5(2) of that Code.

18. On behalf of the opposite party a distinction has been sought to be made between Section 31 of the Act of 1956 and Section 34 of the Act of 1950. It has been argued that while the provision under the former section is composite in the sense that it speaks of imposition of fine as well as of restoration of any supply or service disturbed, the provision under the latter section speaks only of imposition of a penalty. The distinction has been stressed with a view to reinforce another argument that even if the Criminal Procedure Code was applicable to a complaint for disturbance of easements or interference with essential supplies the order directing restoration of supply or service can well be made by following the procedure prescribed in Rule 10 of the Rules which means that the provision of the Code of Civil Procedure may still be applicable to such order. I am wholly unable to view the section piecemeal. The provision contained in Section 31 has to be read as a whole. It speaks of two things: first, it deals with the question of interference with essential service or supply or disturbance of easement and prescribes a penalty for the person responsible for such interference or disturbance! Secondly, there is the provision relating to restoration of Supply or service which must be deemed to be consequential upon the infliction of penalty on the person charged with such interference or disturbance. The two parts must be viewed as one whole, and in my opinion it would be artificial in the extreme to suggest that imposition of penalty is separable from the consequential relief provided for in the section itself, I cannot quite conceive how an order of restoration of supply or service can be made without the person charged being found responsible for interference or disturbance. It is, therefore, only reasonable to think that when a person has been found liable for disturbance of easement or interference with an essential supply or service, he should be called upon to restore the supply or the service which he ban wrongfully interfered with. To me it seems extravagant that in the course of one inquiry envisaged under Section 31 of the Act, a part of it is required to be conducted in accordance with the Code of Criminal Procedure while the other part is allowed, or even required, to be regulated by the Code of Civil Procedure. I have no hesitation to reject this contention raised on behalf of the opposite party.

19. I accordingly hold that the Controller having regulated his proceedings in accordance with Rule 10, acted illegally and the resultant order made by him must, therefore, be set aside, I do so in the exercise of power which this Bench possesses under Article 227 of the Constitution, holding that the Controller exercised a Criminal jurisdiction when he dealt with the application under Section 31 of the Act. This seems to be the inescapable position in view of the Bench decision in Pulin Krishna Paul's case : AIR1953Cal85 , to which I have referred. It is not a mere question of irregularity or impropriety of a finding of the Controller that I am. dealing with under Article 227; the objection to the whole procedure of inquiry goes to the root of the matter and I am bound to hold that he acted in a manner which was unauthorised by law.

20. The result is that the petition succeeds. The order of the Controller imposing fines upon the petitioners is set aside as well as the consequential order directing restoration of electric connection. The matter is remitted to the Controller with the direction that he will deal with the opposite party's application under Section 31 in accordance with law and hold the inquiry by following the rules of Criminal Procedure.

21. I was invited on behalf of the petitioners to consider whether in view of certain materials appearing on the record, it would be right to send the matter on remand. I decline to enter into the question of sufficiency or insufficiency of materials. I could have entertained that argument if I had been dealing with this application under Section 439 of the Code of Criminal Procedure. I have made it plain that I have dealt with it under Article 227 of the Constitution; that being so, the question of impropriety or even of inadequacy of materials would not be ,a relevant consideration. As is well known interference under Article 227 can be justified only to keep courts and tribunals within the bounds of their authority; such bounds were in this case plainly exceeded; hence the interference.

22. The Rule is made absolute.


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