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K. Singh Deo Vs. Jenson and Nicholson India Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ464
AppellantK. Singh Deo
RespondentJenson and Nicholson India Ltd. and anr.
Cases ReferredMathura Prosad Rajgharia v. Kanailal Mullick
Excerpt:
- .....premises tenancy act, 1956, (hereinafter to be referred to for the sake of brevity as the act) the rent controller is obliged to strictly follow the procedure laid down in sections 200 to 204, cr.p.c. (hereinafter to be referred to as the code for the sake of brevity). the question has arisen in the facts and circumstances stated below :messrs jenson and nichoson india ltd. a company incorporated under the companies act hired two flats in premises no. 3e, camac street under the petitioner landlord for occupation by two of its officers. the detailed description of the flats and the officers who were allowed to occupy the flats on behalf of the company have been given in the two petitions. it was alleged that the landlord had interfered with supply of water to the flats. two applications.....
Judgment:
ORDER

N.G. Chaudhuri, J.

1. In these two cases arising out of two petitions under Article 227 of the Constitution filed by the same landlord as petitioner a common question of law has arisen for decision. The question is : whether or not in cases of entertaining complaints of interference with supply of water in a tenanted premises contemplated under Section 31, West Bengal Premises Tenancy Act, 1956, (hereinafter to be referred to for the sake of brevity as the Act) the Rent Controller is obliged to strictly follow the procedure laid down in Sections 200 to 204, Cr.P.C. (hereinafter to be referred to as the Code for the sake of brevity). The question has arisen in the facts and circumstances stated below :

Messrs Jenson and Nichoson India Ltd. a Company incorporated under the Companies Act hired two flats in premises No. 3E, Camac Street under the petitioner landlord for occupation by two of its Officers. The detailed description of the flats and the officers who were allowed to occupy the flats on behalf of the company have been given in the two petitions. It was alleged that the landlord had interfered with supply of water to the flats. Two applications under Section 31 of the Act were accordingly filed. The first one was filed on 20-5-77 giving rise to Rent Control Case N6. 252 of 1977 before the Rent Controller, Calcutta I and the second was filed on 31-5-77 giving rise to R.C. Case No. 269 of 1977. At the time of entertainment of the application in the first mentioned case the officer in occupation of the flat made a statement on solemn affirmation and the Rent Controller by his order dt. 20-5-77 ordered issue of summons. Similarly in the second case the Officer in occupation of the flat named in the petition made a statement on solemn affirmation the learned Rent Controller made a similar order for issue of summons on 2-6-77. Notice of the cases having been served on the landlord he took objection to the proceedings on the ground that the officers legally competent to represent the company did not sign and verify the petitions, and did not execute Vakalatnama : the officers making statements on solemn oath were incompetent to depose in support of the complaints made and the Rent Controller did not follow strictly the procedure prescribed by Sections 200 to 204 Cr P.C, and that subsequent to entertainment of the petitions Rent Controller wrongly took into consideration Inspector's report contrary to Section 202, Cr.P.C. The Rent Controller by his similar orders passed on 10-4-80 overruled the objections raised. In the aforesaid premises the landlord has come up before this Court calling in question the correctness of the learned Rent Controller's orders and also praying for quashing the proceedings pending before him.

2. Mr. Sumit Moitra, the learned Advocate for the landlord petitioner draws my attention to the case of Sethia Property reported in : AIR1961Cal199 and contends that it was clearly held that rules under the Act in so far as they required inquiries into offences under the Act by the Rent Controller according to Civil Procedure Code were ultra vires. Thereafter Rule 10 of the Rules framed under the Act has been amended 1 The relevant portion of Rule 10 reads as follows :

10. In making enquiries under the Act, the Controller shall follow, as nearly as may be, the procedure laid down -(a) in the case of enquiries relating to offences, in the Cr.P.C. 1898, for the trial of cases, and.

Relying on the case of Durga Dutta v. State reported in : AIR1951Cal2 he contends that a complaint referred to in Section 30(1) of the Act means a complaint as contemplated in the Code. On the basis of the above assumption he relies on some observations made in para 21 of the judgment in the case of Mathura Prasad v. Kanailal Mullick reported in : AIR1968Cal170 to the effect that a proceeding under the Act is a criminal proceeding governed by the Cr.P.C. In the above premises Mr. Moitra Contends that the learned Rent Controller not having strictly followed the procedure prescribed for entertainment of complaints as prescribed by Sections 200-204 of the Code, his order must be struck down as wrong and the entire proceedings should be quashed to fortify his arguments, Mr. Moitra draws my attention to the observations recorded under the heading 'procedure to be followed' under Section 31 of the Act in Susanta Kumar Sen's Commentary on the Act.

3. The arguments of Mr. Moitra, to my mind are totally unacceptable. First of all, I will note that although the word 'complaint' has been used in Section 31 of the Act yet the Rent Controller has not been invested with the powers of a Magistrate. There is nothing in the Act to indicate that the Rent Controller has been deemed to be a Magistrate, except under Section 32 and that at a very late stage in connection with recovery of fine imposed as penalty. The conclusion is therefore inescapable that the Rent Controller does not and cannot exercise powers of a Magistrate. If the Rent Controller does not function as a Magistrate it follows necessarily that he is not obliged to comply with provisions of Sections 200, 201,202 and 204 of the Code which prescribe various duties for Magistrates exclusively in connection with entertainment of complaints. The Rent Controller, it should not be forgotten is neither a Court nor a Magistrate, he is simply a persona designata.

4. Secondly, from the relevant portion of Rule 10, West Bengal Premises Rules, 1956, quoted earlier it is abundantly clear that in making enquiries under the Act the Controller is to follow as nearly as may be the procedure laid down in the case of enquiries relating to offences, in the Code of Criminal Procedure for the trial of cases. I lay emphasis on two expressions, namely, 'as nearly as may be' and 'for the trial of cases'. From the use of the aforesaid two expressions in the Rule the conclusion is inescapable that the Rent Controller is not obliged to follow strictly and rigidly the provisions of the Code in making enquiries. Rather he will as far as practicable follow the procedure for the trial of cases in relation to any offence disclosed. The Code draws a sharp distinction between 'inquiry' and 'trial'. According to Section 2(g) of the Code enquiry means every enquiry other than a trial, conducted under the. Code by a Magistrate or Court. It is common knowledge that enquiry precedes a trial. Rule 10 requires the Rent Controller to follow the procedure prescribed by the Code for trial of cases but not for inquiry into any offence. Provisions of the Code contained in Sections 200 to 204 relate to a stage preceding the trial of a case. The conclusion is therefore unavoidable that provision of the said sections need not be followed by the Rent Controller at the stage of inquiry. In view of the penalty prescribed under Section 31 the cases could be equated with summons cases contemplated under the Code and trial of summons cases commences under Chapter XX of the Code after the accused has taken his plea. So by no stretch of imagination can it be said that the Rent Controller was obliged to follow strictly the procedure prescribed for Magistrate in Sections 200 to 204 of the Code. No one knows it better than the Rent Controller himself. In the two cases under consideration, I find the Rent Controller ordered issue of summons, although he could not issue such orders. Summons under the Code are to be served by the Police Officers under Section 62 of the Code. But Police Officers are not bound to carry out the orders of the Rent Controller. Placed in the above position the Rent Controller in the cases under consideration ordered service of summons through registered post as prescribed by Rule 12, West Bengal.Premises Tenancy Rules, 1956. From what I have discussed above it is clear that the contention of Mr. Moitra is totally unworthy of acceptance.

5. I have additional reasons to overrule Mr. Moitra's contention. Rule 10(a) West Bengal Premises Tenancy Rules, lays down that in making enquiries under the Act relating to offences the Rent Controller shall follow as nearly as may be the procedure laid down in the Cr.P.C. for the trial of cases. The word 'offence' according to Section 3(38) General Clauses Act, 1897 means act or omission made punishable by law for the time being in force. Section 31 of the Act, it is worthy of note, has , not made any act or omission punishable : it has made amongst other things interference with supply of water in a tenanted premises liable to penalty. Such an act was already an offence covered by Section 430 of the I.P.C. Section 31 of the Act seems to have removed the stigma from the Act and has made the same less malodorous than an offence, otherwise there was no necessity for bringing the above act-within the mischief of Section 31. Further Section 31 has not prescribed any punishment for the act, it has only prescribed penalty. We have already seen that an offence is an act or omission made punishable by law as distinguished from made liable to penalty. There is a gulf of difference between 'punishment' and 'penalty'. In Section 53,I.P.C., various types of punishments have been described of which fine is one. It is doubtful if liability to pay fine makes an act or omission an offence. Imposition of fine may be treated as a penalty. Because penalty generally means payment of a fine for breach of law, rule or contract ; and in sports it means a disadvantage imposed on a competitor for breaking a rule ; the essence of penalty is payment of money interrorem by the party at fault. Such observation cannot be made with regard to punishment the effect of which is not preventive in so far as the offender is concerned The attitude of the legislator with regard to penalties prescribed under the Act is also very soft. It will be seen that under Section 32 of the Act a fine imposed or ordered to be , paid is required to be paid by the person fined or ordered to pay the same within such time ; as may be allowed by the Controller ; and the Controller may for good and sufficient reason extend the time allowed by him. When law prescribes fine as a punishment for any infraction it does not require a date to be mentioned for payment of the fine or does not authorise the Court or Magistrate expressly to extend the time for payment. So it seems the legislators did not treat interference with supply of water in tenanted premises as an offence. In this connection I may recall the decision of this Court in Mathura Prosad Rajgharia v. Kanailal Mullick reported in : AIR1968Cal170 wherein it has been laid down that no question of conviction or acquittal is involved in the proceeding under Section 30 or 31 of the Act. If contravention of the provisions of the Act was an offence and treated as such it would have been made punishable and the trial would have ended either in conviction or in acquittal, but I have pointed out that the Act has not made violation punishable, and judicial decision has made it clear that the proceeding contemplated under Sections 30 and 31 unlike trial for an offence does not involve a question of acquittal and conviction.

6. So I reach the conclusion that Clause (a) of Rule 10 has no meaning and applicability in so I far as it mentions 'offence' which is not at all contemplated under the Act. It will be sufficient, however, for the Rent Controller to give the party complained against notice of the proceedings, an opportunity to take his plea ; and further opportunity to participate in the proceeding with evidence at his option.

7. I hold accordingly that there is no merit in the petitions under Article 227 of the Constitution of India now under my consideration. The petitions are therefore dismissed on contest. The records of the case be sent down to the Rent Controller with direction to dispose them of expeditiously.


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