S.K. Sen, J.
1. This is a revision application under Section 32(4) of the West Bengal Premises Rent Control Act of 1950 from an order of Sri D. N. Das Gupta, Second Subordinate Judge, Alipore. dismissing an appeal from an order of the Rent Controller, Calcutta, in case No. 191A of 1951 imposing a fine of Rs. 100/- on the petitioner landlord for cutting off supply of electricity to the premises of the tenant opposite party.
2. The opposite party Panchugopal Das took lease of a portion of the first floor of the house at 43 Sasthitala Road, Beliaghata Calcutta, at the rent of Rs. 12/- per month in 1942. The rent was thereafter increased and it was standardised at Rs. 24/- per month in case no. 2272B of 1947. On 24-1-1951, the tenant opposite party Panchu Gopal Das filed, an application under Section 34 of the Rent Control Act 1950, before the Rent Controller alleging that the supply of electricity was included within the terms of the tenancy and that on 19-1-51 owing to failure of the landlord to pay the electric charges the Electric Corporation had discontinued the supply and that thereby the landlord had committed an offence under Section 34 of the Rent Control Act. The landlord took the defence that the supply of electricity was not included within the terms of the tenancy. The Rent Controller held that the supply of electricity was included within the terms of tenancy and imposed a fine of Rs-100 as already stated. On appeal the learned Subordinate Judge upheld the order of the Rent Controller.
3. In this revisional application it is urged that the learned Judge committed an error of law inasmuch as he did not consider the necessary ingredients of the offence under Section 34 of the Rent Control Act, 1950, and that he made a mistake of law in throwing the burden of proof on the petitioner who was in the position of an accused in a criminal case.
4. The supply of electricity is not an easement annexed to a premises; it is a supply or service and accordingly Section 34 can apply only when supply of electricity is comprised in the tenancy of the premises. Accordingly the observation of the learned Subordinate Judge that even if rent was exclusive of the electric charges, the landlord could not be instrumental in cutting off the electric supply without incurring the liability under Section 34 of the Rent Act, 1950 must be held to be clearly unreasonable; if the rent was exclusive of the electric charges the supply could not be comprised in the tenancy, and Section 34 could not at all apply.
5. In respect of the finding that the supply of electricity . was comprised in the tenancy, the Court below relied on the fact that the order of the Rent Controller standardising rent at Rs. 24/- had been withheld by the petitioner and that accordingly a presumption against him could be made. But I must agree with the learned Advocate for the petitioner that the petitioner was in the position of an accused in a criminal case and the burden of proof could never be on him but was on the complainant opposite party who was in the position of a complainant. No adverse inference could be drawn against the petitioner landlord for not producing the certified copy of the order of the Rent Controller fixing the standard rent.
6. As regards the oral evidence there was only one witness examined on behalf of the tenant opposite party, as against three witnesses on the side of the petitioner landlord stating that the supply of electricity was not included within the terms of the tenancy. The learned Subordinate Judge's observation that the statement of P. W. 1 Probodh Kumar Rana that he acted as an agent of the landlord in settling the terms of the tenancy was not denied by the landlord opposite party (now petitioner) cannot be regarded as strictly correct, because the petitioner's son Debiprasad Mitra who deposed as O. P. W. 1 stated that the terms of the tenancy were settled by him with the opposite party and that P. W. 1 Probodh Kumar Rana was not then present. This amounted to denial of the claim of Probodh Kumar Rana that he had as agent of the landlord settled the terms of the tenancy. In respect of the admission of the landlord petitioner that he had actually paid the electric charges for the period of 2 1/2 years up to 19-1-51 when the supply was cut off, the further statement of the landlord has to be considered that from 1942 to 1948 when the landlord and his family were at Deoghar, the opposite party tenant was paying the electric charges all along. Accordingly this 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. The order passed under Section 34 of the Rent Control Act is therefore unsustainable and must be set aside.
7. The Rule is therefore made absolute and the order imposing the fine of Rs. 100/-on the petitioner under Section 34 of the Rent Control Act is set aside.
8. There will be no order as to costs in thisRule.