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Gobordhone Das Deora Vs. Doolichand Sethia and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.210
AppellantGobordhone Das Deora
RespondentDoolichand Sethia and ors.
Cases ReferredIn Toronto Railway v. Reg.
Excerpt:
calcutta rent act (iii of 1920, b.c.), section 20 - rules under the act, rule 4--criminal procedure code (act v of 1898), sections 4 to 52--section 20, whether ultra vires, and whether creates new criminal offence--rule 4, whether an enactment and ultra vires. - lancelot sanderson, c.j.1. the rule in this case was obtained by one gobordhone das deora, who alleged in his petition that he is the son of hari bux daora, the proprietor of the firm of hari bux gobordhan das.2. the proceedings, in respect of which the rule was granted, were begun by a complaint by several tenants of certain premises, no. 46, strand road, calcutta, against their (landlord or landlords hari bux-gobordhan) das under section 20 of the calcutta rent act, 1920, on the ground that the landlords i had wilfully discontinued the supply of unfiltered water to the urinals and privies in the premises by disconnecting the inlet and outlet pipes of the reserve tanks and by removing a force pump which was attached to the vertical inlet pipe and had thereby disturbed the easements.....
Judgment:

Lancelot Sanderson, C.J.

1. The Rule in this case was obtained by one Gobordhone Das Deora, who alleged in his petition that he is the son of Hari Bux Daora, the proprietor of the firm of Hari Bux Gobordhan Das.

2. The proceedings, in respect of which the Rule was granted, were begun by a complaint by several tenants of certain premises, No. 46, Strand Road, calcutta, against their (landlord or landlords Hari Bux-Gobordhan) Das under Section 20 of the calcutta Rent Act, 1920, on the ground that the landlords I had wilfully discontinued the supply of unfiltered water to the urinals and privies in the premises by disconnecting the inlet and outlet pipes of the reserve tanks and by removing a force pump which was attached to the vertical inlet pipe and had thereby disturbed the easements annexed to the premises.

3. The Rant Controller accorded 'sanction to the prosecution of the defendant landlord Hari Bax Gobordhan under Section 20 of the calcutta Rent Act.'

4. The President of the Tribunal appointed under Section 72 of the Calcutta Improvement Act, 1911, held an enquiry into the complain, and came to the conclusion that the act complained of were done in the presence and under the order of the opposite party, Gobordhan, and that they were done wilfully with the object of rendering the pipes and the pump unserviceable and of disconnecting the supply of the unfiltered water to the premises.'

5. He further held that 'the actcs which the opposite party, Gobordhan, had been proved to have committed are punishable under Section 20 of the Calcutta Rent Act' and he directed that the petitioner should pay a fine of Rs. 250, and that he should pry to the complainants Doolichand and Ratanchand Rs. 205 for costs.

6. The Rule was granted on two grounds:

1. For that the provision of Section 20 of the Rent Act of Calcutta, 1920, so far as it has invested the President of the Tribunal, created for a different purpose under Sections 70, 71 and 72 of the Calcutta Improvement Act, (V of 1911, B.C.), with power to try a criminal case, and thereby has arrested a new criminal Court, is ultra vires of the Legislature of the Governor-in council of Bengal.

2. For that Rule 4 framed under Section 23 of the Rent Act for regulating the procedure in enquiries by the President of the Tribunal, in so far as it has provided that the procedure laid down in the Code of Civil Procedure, 1908, should apply, is ultra vires, being repugnant to the fundamental principles and the procedure to be adopted in trials of offences as prescribed by the Criminal Procedure Code.

7. The learned Advocate-General for the Crown, Mr. Gregory for some of the tenants and Mr. M.N. Roy for Doolichand and Ratanchand showed cause and the main grounds of their argument were that the provisions of Section 20 of the Rent Act did not create a criminal offence, that the proceeding in question were not criminal proceeding, that even if the acts in question constituted a criminal offence the previous sanction of the Governer-General had been obtained under Section 79, Sub-section (2) of the Government of India Act, 1915, to the passing of the Rent Act, and consequently the Local Legislature of Bengal had power to alter the provisions of the Code of Criminal Procedure, and could apply a new procedure to a new offence, that the 'President of the Tribunal' was constituted under the Rent Act a Civil Court with power to ii filet a fine which could only be realised by distrait upon the moveable property of the person fined, that the Rent Act did not contravene the provisions of the Code of Criminal Procedure, and that Rule 4 was not repugnant to the Rent Act.

8. On the other hand, Mr. Sanyal and Mr. M.N. Mukherjee appeared in support of the Rule, and, amongst other arguments, urged that the Local Legislature had no power to create a new Criminal Court, or to create a Court which would affect the jurisdiction given to the High Court by the Letters Patent, that Section 20 of the Rent Act, created a criminal offence within the meaning of the Code of Criminal Procedure, and, therefore, that such offence should be tried under the procedure provided by the Code of Criminal Procedure 'subject to any enactment for the time being in force regulating the manner or place for investigating, enquiring into, trying or otherwise dealing with such offences' as provided by Section 5(2) of the Code of Criminal Procedure: that Rule 4 of the 'Galoufcta Rent Rules, 1920,' was not an' Catmint' within the meaning of the above mentioned section.

9. The object of the Rant Act is stated in the preamble, viz., to restrict temporarily the increase of rent in calcutta.

10. Section 2 defines the 'Standard Rant.'

Section 3 gives power to the Local Government to appoint a Controller for any area in which the Act is in operation.

11. Section 4 provides that subject to the pro-visions of the Act, where the rent of the premises is increased to exceed the standard rent the amount of such excess shall, notwithstanding any agreement to the contrary, be irrecoverable.'

12. Section 11 provides that 'no order for e jectment is to be made if rent is paid at the allowable rate, and the conditions of the tenancy are performed.'

13. Section 15 deals with the duties and powers of the Controller:

14. Section 17 Sub-section (2) gives power to the Controller to compel the production of documents in the same manner as provided in the case of a Court by the Code of Civil Procedure, 1908.

15. By Section 18 provision is made for the revision of the Controller's decision fixing the standard rent by the 'President of the Tribunal' in respect of premises in Calcutta, and by the principal Civil Court of Original Jurisdiction in the District in the case of premises outside Calcutta.

16. By Section 19, provision is made for the imposition of a penalty for recovering rent in excess of the standard rent:

17. And by Section 20 provision is made for the imposition of a penalty for disturbance of easements, etc.

18. The section is as follows:

Whoever, in any case in which an order or decree for the recovery of any premises is prohibited under Section 11, 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 any premises, or removes, destroys, or renders unserviceable, anything provided for permanent use therewith, or discontinues any supply or service comprised in such rent, 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 evasion, in regard to the same, or any other premises, to a fine which may extend to one thousand rupees, to be imposed, after summary inquiry, by the President of the Tribunal or the principal Civil Court, as the case may be.

19. It, therefore, appears that the main provisions of the Act are to fix a standard rent, to provide that rent exceeding the standard rent shall be irrecoverable, subject to the provisions of the Act, and to provide that no order for ejectment should be made so long as the rent allowable by the Act is paid and the conditions of the tenancy are performed.

20. It is obvious that these provisions by themselves might not be sufficient to attain the object of the Act, and it might be possible for the landlord in certain cases, where he had control over the services to the premises, to discontinue such services and so render the premises uninhabitable, so that the tenants might be forced to leave the premises, and the object of the Act might be frustrated. Consequently, the provisions of Section 20 were necessary for the effective working of the Act,

21. With regard to the first point, viz., that Section 20 of the Rent Act, so far as it has invested the 'President of the Tribunal' with power to try a criminal case and thereby has created a new Criminal Court, is ultra vires of the Legislature of the Governor-in-Council of Bengal, assuming for this part of my judgment that the subject-matter of the complaint in this case constituted a criminal offence within the meaning of the Code of Criminal Procedure, and that the 'President of the Tribunal,' when Acting under the provisions of Section 20, may be said to be a criminal Court, in my judgment, the section (apart from the question of the Rule 4) is not ultra vires.

22. By Section 79(1) of the Government of India Act, 1915, the Local Legislature has power (subject to the provisions of that Act) to make laws for the peace and good Government of the territories for the time being constituting that province and by Section 79(2) the Loml Legislature of any province may, with the previous Sanction of the Governor General, but not otherwise, repeal or alter, as to that province, any law made either before or after the commencement of this Act by any authority in British India other than that Local Legislature.

23. By Sub-section (3) certain matters are set out with respect to whish the Local Legislature may not without the previous sanction of the Governor General, make or take into consideration any law--and by Sub-section (4) the Local Legislature of any province has not power to make any law affecting any Act of Parliament,

24. The Rent Act recites that the previous sanction of the Governor General has been obtained under Section 79, Sub-section (2), of the Government of India Act, 1915, to the passing of the Act, and, in so far as Section 20 of the Rent Act repeals or alters the provisions of the Code of Criminal Procedure, as to the Tribunal before which and the manner in which the offense referred to in the above-mentioned section is to be dealt with, in my judgment, the Local Legislature had power with such sanction to enact the provisions of that section in pursuance of the provisions of Section 79, Sub-section (2), of the Government of India Act, 1915.

25. The learned Vakils who supported the Rule have not satisfied me that the provisions of Section 20 of the Rent Act have affected any Act of Parliament or the Letters Patent and the learned Advocate General admitted the jurisdiction of this Court to revise the order of the 'President of the Tribunal.'

26. For these reasons, in my judgment, the first ground relied upon is not sufficient to justify us in holding that Section 20 of the Rent Act is ultra vires.

27. With regard to the second ground on which the Rule was obtained: Rule 4 was made by the Governor of Bengal in Council in pursuance of Section 23 of tie Rent Act, and the rule provides as follows:

In making enquiries under the Act, the Controller or the President of the Tribunal, should follow as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits, the Substance only of the evidence being recorded as in unappreciable cases.' It was agreed during the course of the argument that the rule applied to the matter now under consideration.

28. In my judgment, the subject-matter of the complaint in tins case constituted a criminal offence.

29. By Section 4(a) of the code of Criminal Procedure offence means any act or omission made punishable by any law for the time being in force,' These are very wide words and in my judgment are sufficient to cover the Acts referred to in Section 20 of the Rent Act. The fact that the words 'offence' and punishable' are not to be found in Section 20, in my judgment, does not affect the question. The real nature of the matter must be looked at; and when so looked at the section, in my judgment, does create a new criminal offence. The persons against whom the complaint is proved, is rendered liable for a fine of Rs. 500 on the first occasion, and on a subsequent occasion to a fine of Rs. 1,000, it is impossible, in my judgment, for us to say that such a fine is not 'punishment' in the ordinary meaning of the word.

30. The acts referred to in the section are made punishable by a law for the time being in force, via, the Rent Act, and consequently they are within the abovementioned definition.

31. Nor does the fact that the enquiry is to be made by the 'President of the Tribunal' in the one case, and by the principal Civil Court in the other case, prevent the proceedings being of a criminal nature. The 'President of the Tribunal' would be an appropriate Tribunal to deal with the question of standard rent, and the matters which would have to be considered in connection therewith; and, having appointed him as the Tribunal in respect of such matter, it would not be unreasonable for the Legislature to invest him with the powers contained in Section 20 of the Bent Act, which, as I have already pointed out, were necessary for makig the Act completely effective.

32. The question then arises, was it competent to the Local Legislature to provide by a Rule that the President of the Tribunal, when enquiring into a criminal offence punishable with a fine under Section 20 of the Rent Act, should follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure for the regular trial of civil suits. Without this rule the procedure to be followed in such a case, would be the procedure contained in the provisions of the code of Criminal Procedure, which would be a procedure natural to the matter in question.

33. Section 5 of that Code provides as follows:

(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise death with according to the provisions hereinafter contained,

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but 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.

34. Prima facie, therefore, the provisions of the Code of Criminal Procedure would apply unless it can be said that there is an enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with the offence.

35. It was argued that Rule 4 is such an enactment' within the meaning of Sub-section (2) of Section 5 of the Code of criminal Procedure,

36. The rule, in my judgment, is not an 'enactment' in the ordinary meaning of the word in its legislative sense. For the purpose of ascertaining the meaning of enactment' reference was made to the definition of the word in Section 3(17) of the General Clauses Act, 1897, which provides that enactment' shall include a Regulation (as thereinafter defined) and any regulation of the Bengal, Madras or Bombay Code, and should also include any provision contained in any Act or in any such Regulation as aforesaid. As to the power of the Local Legislature to make Regulations, Section 71 of the Government of India Act, 1915, is material. That section provides that a Regulation proposed by the Local Government must be submitted to the Governor-General in Council for approval. The above-mentioned definition, though not conclusive, throws light upon the meaning of 'enactment' and goes to show that the word would not ordinarily mean a 'Statutory Rule.' Consequently, in my judgment, Rule 4 is not an enactment' within the meaning of Section 5(2) of the Code of Criminal Procedure.

37. The Rule is not part of the Act and it is not directly emoted by the Legislature with the previous sanction of the Governor-General and yet the effect of the rule, if valid, is to repeal or alter the Code of Criminal Procedure and to provide that the new offence created by Section 20 of the Bent Act, shall be dealt with in accordance with the provisions of the Civil Procedure Code instead of in accordance with the provisions of the Criminal Procedure Code.

38. It was urged that the Bent Act itself contemplated the procedure of the Civil Procedure Code being used for the purpose of the Bent Act, and reference was made to Section 17: but that section dealt merely with an enquiry by the Controller and his power to enforce the attendance of witnesses and the production of documents to which matters the provisions of the Code of Civil Procedure might be appropriate.

39. This matter is one of substance and not one of form: for points of difficulty, such as questions as to the onus of proof and as to the examination of the defendant on oath, may arise when the provisions of the Civil Procedure Code are to be applied to proceeding of a criminal nature and, indeed, the President of the Tribunal' in his judgment in this case referred to the Act that the proceeding are governed by the Code of Civil Procedure and that both parties are competent witnesses, and that Gobordhan deliberately abstained from giving evidence. This is a matter which the 'President of the Tribunal' could not have taken into consideration if the proceeding had been in accordance with the Code of Criminal Procedure.

40. I am 10th to decide that a rule passed by the Local Government is ultra vires, but in this case, after giving full consideration to the arguments advanced by those who showed cause against the rule, I am driven to the conclusion, for the reasons above mentioned, that Rule 4 is ultra was and consequently, in my judgment, the Rule must be made absolute, and the order complained of, must be set aside. The one and the costs, if paid, rill be refunded.

41. I cannot part with this case without pointing out that, even if the provisions of Rule 4 lad been made part of the Bent Act, considerable difficulties might arise in their application: first, because the provisions of the Civil Procedure Code in themselves are not ordinarily applicable to proceeding in respect of criminal offences, and, secondly, because the direction contained in the rule that the Conciroller and President of the Tribunal shall follow are nearly is may be, the Code of Civil Procedure is of such a vague and general nature, that difficult and nice points of law might be involved, a contingency which, in proceeding of this nature, it is desirable to avoid.

Richardson, J.

42. To understand this case, some preliminary reference is desirable to the Calcutta Bent Act, 1920 (Bengal Act III of 1920), the Calcutta Improvement Act, 1911 (Bengal Act V of 1911) and the Calcutta Improvement Appeals Act, 1911 (Act XVIII of 1911, as amended by Act X of 1914.)

43. The Calcutta Bent Act, 1920, was passed as the preamble states, to restrict temporarily the increase of rents in Calcutta, the period of its continuance in force being three years from the date of its commencement (5th May 1920). Section 2 defines the expression 'Standard Rent.' Section 3 authorizes the Local Government to appoint a Controller, to whom certain powers are subsequently given. Under Section 18 an order of the Controller fixing the standard rent for any premises is subject, at the instance of landlord or tenant to revision by the President of the Tribunal appointed under Section 72 of the Calcutta Improvement Act, 1911, whose decision is to be final. Section 19 imposes a penalty for recovering rent in excel of the Standard Bent and Section 20 for disturbance of easements, and so forth. These two sections are in similar terms, Section 20, with which we are immediately concerned, runs as follows:

Whoever, in any case in which an order or decree for the recovery of any premises is prohibited under Section 11, 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 any premises or removes, destroys, or renders unserviceable, anything provided, for permanent use therewith, or discontinues any supply or service comprised in such rent, shall, or the complaint of the party aggrieved be liable on the first occasion, to a fine which extend to five hundred rupees, and on second or subsequent occasion, in regard to the same, or are other premises, to a fine which may extend to one thousand rupees, to imposed, after summary inquiry, by the President of the Tribunal or the principal civil Court, as the ease may be.

By Section 21 the fine imposed under Section 19 or Section 20 is to be levied by the Control ler by distraint and sale of a sufficient portion of the moveable property of the persor fined.

44. Section 22 provides that no complain under the Act shall be brought against and person without the previous sanction of the Controller or after three months from the date of the commission of the act penalized

45. Section 23 empowers the Local Government to make rules, including rules regulate the procedure to be followed in inquiries by the Controller and the President of the Tribunal...under this Act.'

46. Rule 4 of the rules made by they Local Government under this power is as follows:

Rule 4 in making inquiries under the Act the Controller or the President of the Tribunal shall follow, as nearly as may be the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits, the substance only of the evidence being recorded as in unappreciable case.

47. Rule 24 further lays down that 'in all proceedings be for them under the Act, the Controller and the President of the Tribunal shall have all the powers possessed by e Civil Court for the trial of suits.'

48. The Code of Civil Procedure is also referred to in the rules relating to the summoning of witnesses.

49. Rule 4 is modelled on Section 24 of the Act, which prescribes the procedure to be followed by the President of the Tribunal 'in revising the decisions of the Controller,' but is silent as to the procedure to be adopted under the penal sections.

50. As to the President of the Tribunal, the Calcutta Improvement Act, 1911, entrusts the duty of carrying out its provisions to a Board which has power to acquire land corapulsorily. The Tribunal appointed under negation 72 consist of a President and two assessors and performs the function of the Court in reference to the acquisition of land for the Board under the Land Acquisition Act, 1894. The Tribunal is 'deemed to be' the Court, and the President the Judge, under that Act. The President must possess certain local qualifications. The present holder of the office was, when appointed, a Vakil of the High Court of more than ten years standing, who had practiced in that Court. The President is empowered, with the previous sanction of the Local Government, to make rules not repugnant to the Code of Civil Procedure, for the conduct of business by the Tribunal. When the President and with the assessors the decision of questions of law and procedure rests solely with him otherwise, the opinion of the majority prevails. In some cases the President empowered to sit alone. The awards of the Tribunal and of the President sitting alone) are deemed to be awards under the Land Acquisition Act and are declared to be final. (See Sections 70, 71, 72, 76 and 77), The subsequent Appeals Act, however, which was passed by the Indian Legislature, provides in certain cases for an appeal to the High Court, in appeal lies in all cases where the decision is that of the President sitting alone.

51. The petitioner before us, at whose instance the Rule was issued, is a Calcutta landlord. He, or he and his father are the owners of premises, No. 46, Strand Road, in which there are a number of tenants. Complaint was made by thirty seven tenants under Section 20 of the Rent Act, with the sanction of the Controller that the landlord had wilfully discontinued the supply of unfiltered water to the urinals and privies contained in the said premises by disconnecting the inlet and outlet pipes of the reserve tanks and by removing a force pump which was attached to the vertical inlet pipe, The case was tried by the President of the Tribunal. It was admitted by the landlords or proved that they had, as alleged, disconnected the pipes and removed the force pump, Their defence was, that the acts were done bona tide with the object of improving the flashing arrangements. In the course of his judgment (dated the 11th December 1920) the learned President says this;

In the third place, the most direct evidence on the question of the intention with which these acts were done has not been given. The opposite party, landlords, are two person, father and son. The son, Gobordhan, was present here throughout the trial instructing his Counsel while witnesses for the complainants deposed that the acts complained of were done under his directions and in his presence. Gobordhan was the person most competent to say what was the intention with which those acts were done but he deliberately abstained from giving his evidence in this case. These proceedings are governed by the Code of Civil Procedure and both parties are competent witnesses.

53. The President's judgment concludes with the following order:

I hold, therefore, that the acts which the opposite party, Gobordhan, has been proved to have committed, are punishable under Section 20 of the Calcutta Bent A at and I direct that he do pay a fine of Ra. 250, and I further direct that he do pay to the complainants, Doolichand and Ratan-cohand, the sum of Rs 205, as their costs including the hearing fee which I assess at Rs, 64.

54. The Rule sails upon the President and the tenants to show cause why the order so pronounced should not be set aside on the grounds, in effect:

(1) That Section 20 of the Rent Act is ultra vires of the Local Legislature, because it invests the President of the Tribunal with a summary power to try criminal offence and because it thereby constitutes a new Criminal Court, and

(2) That some of the rules framed under the Act, particularly Rule 4, are ultra vires of the rule-making power conferred on the Local Government, in so far as they apply the Code of Civil Procedure to the trial of the offenses created by the Act.

55. These grounds necessitate some advertence to the Legislative authority of the Local or Bengal Legislature. The Rent Act was passed by that Legislature under the power whish it possessed under the Government of India Acts, 1915 and 1916 (5 and 6 Geo. V, o. 61, and 6 and 7 Geo. V, c. 37), The Amending Act of 1916 (9 and 10, Geo. V,. 101), had not at the time some into opera-ion and we are not concerned with any further changes thereby made. It is convenient, lower, to borrow the term Indian Legislature from that Act in place if the term Governor General in-Legislative Council used in the Act of 1915. he term Local Legislature' is used in other Acts to denote the Legislature of a Province.

56. By Section 79, Sub-section (1), the Local legislature has a general power' to make and for the peace and good Government if the Province. That is a wide power, because it is not open to the Courts to auction judicially the motive or the policy of any Act passed by the Legislature; out the power, however, wide is subject to certain qualifications set out in the following clauses-inter alia, the Local Legislature

has not power to make any law affecting any Act of Parliament' Sub-section (4) and it may not without the previous sanction of the Governor-General repeal or literacy law made...by any authority in British India other than itself' Sub-section (2).

Sub-section (5) contains the proviso that an Act or a provision of an Act made by a Local Legislature, and subsequently assented to by Governor General in purchase of this Act, shall not he deemed invalid by reason only of its requiring that previous sanction of the Governor General under this Act.

57. In view of the dissuasion before us, something may also be said as to the use of the words 'Court' and 'Judge' by the Legislature. The words are not defined by the General Clauses Acts of 1897 and 1899 (Act X of 1897 and Bengal Act I of 1899), nor in the Criminal Procedure Code. According to the Civil Procedure Code Section 2(8) 'Judge' means 'the presiding officer of a Civil Court.' Both terms are extensively defined in sections 19 and 20 of the Penal Code and it would seem natural to say that the President of the Tribunal, whether he is sitting alone, or with assessors, under the Calcutta Improvement Act, or whether he is exercising his functions under the Bent Act, is performing judicial duties and is a Court, or the Presiding Officer of a Court.

58. It is also convenient to say here, in anticipation, that, if the penal sections of the Rant Act confer a new criminal jurisdiction on the President of the Tribunal, it does not follow that he is thereby constituted a new Criminal Court in the ordinary or proper sense of the term. The Courts in India are broadly classified, according to their main functions, as Civil, Revenue, or Criminal, and a Civil or Revenue Court exercising an incidental or auxiliary criminal jurisdiction would retain its usual decrepit ion. For instance, Section 480 of the Criminal Procedure Code confers on the Civil and Revenue, as well as the Criminal Courts, a power to punish summarily in certain cases of contempt of a criminal character. A Civil or Revenue Court, canting in the exercise of that power, would not become a Criminal Court, as the term is ordinarily used. Nonetheless, itself would be primarily a criminal proceeding.

59. As to the first ground on which the Rule was issued, it was contended for the petitioner that sections 19 and 20 of the Rent Act created a new Court, and that the creation of a new Court Sexed the prerogative of the Crown, but whether it does so or not it is expressly provided by Section 84 of the Government of India Act, 1915, as amended in 1916, that a law made by a Local Legislature shall not be deemed invalid solely because it affects the prerogative of the Crown. That observation applies whether the Rent Act in Act created a new Court, or whether, as would appear to be the case, it conferred a new jurisdiction on a Court already in existence.

60. It was next argued that the enactment of sections 19 and 20 of the Rent Act, investing the President of the Tribunal with a summary jurisdiction to impose the penalties provided, was inconsistent with Section 106 of the Government of India Act, read with Clauses 27 and 28 of the Letters Patent. The argument seemed to be that this summary jurisdiction interfered in some way with the jurisdiction of the High Court, No doubt, flange 27 begins by declaring that the High Court 'shall be a Court of Appeal from the Criminal Courts' of the Province 'and from all other Courts subject to its superintend.' But the President of the Tribunal is not a 'Criminal Court' and the Courts subject to superintendence are not specified. Moreover, the terms 'appeal' and 'appellate jurisdiction,' as used in the Government of India Act and the Letters Patent, have generally been understood as including 'revision' and provisional jurisdiction 'Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 Sheo Nandan Prasad Singh v. Emperor 46 Ind. Cas. 977 : 3 P.L.J. 581 : 19 Cr. L.J. 833 : (1919) Pat, 1 : 5 P.L.W. 324 (F.B.) The fact that that construction makes Clause 23 to some extent redundant does not alter the meaning of the words. In the case of the subordinate Civil Courts there is only one Clause 16 corresponding to Clause 27 and if the terms 'appeal' and 'appellate jurisdiction' in Clause 16 coyer 'revision' and 'provisional jurisdiction,' as they have been held to do, the same terms can hardly have a different meaning in Clause 27--So much being clear, the first sentence of Clause 17 may mean no more than this, that the High Court is set up as a General Court of Criminal Appeal, on which appellate (including provisional) jurisdiction may by competent legislative authority be conferred in particular cases, the Actual exercise of such jurisdiction being defined by the concluding sentence. But, however that may be, there is nothing in the Rant Act to take away any provisional jurisdiction in repeat of the President's proceedings under sections 19 and 20, which the High Court may have, either under Clauses 27 and 28 of the Letters Patent or under the Government of India Act. Generally speaking, the provisional jurisdiction depends on Section 107 of the Government of India Act, as applied to competent legislation in India, and it is not necessary to say more, because the learned Advocate General one-sided that the President's order now in question was subject to revision under that section. I will add this, however, that, even if the Rent Act exceeded the power of the Local Legislature as purporting to take away any jurisdiction which the High Court would otherwise possess, the Act would be void to the extent; of such excess and no further, and the jurisdiction of the Sigh Court would remain unimpaired. Section 84 of the Government of India Act, 1915, as amended in 1916, expressly provides that ' a law made in British India and repugnant to any provision of this or any other Act of Parliament, shall, to the extent of that repugnancy, but not otherwise, be void.'

61. It was also suggested that the President's order fining the petitioner was removed by the rules made under the Bent Act from the purview of the Criminal to the purview of the Civil jurisdiction of the Court. But the Letters Patent contain provisions relating to both those jurisdictions; and neither the Letters Patent nor the Government of India Act afford any criterion for determining whether any particular proceeding in a subordinate Court is Civil or Criminal in its nature. The nature of the proceeding must depend on the effect of legislation in India.

62. I have dealt so far with the reasons assigned in support of the first ground on which this Rule was issued and, in my opinion, that ground is not established. It is not established that the Rent Act, or the rules made under it, are invalid because they affect the prerogative of the Crown or because they affect an Act of Parliament within the meaning of Sub-section (4) of Section 79 of the Government of India Act.

63. The second ground of the Rule depends on the powers of the Local Legislature in relation to the Code of Criminal Procedure passed by the Indian Legislature. Both grounds assume that the penal sections of the Bent Act create new criminal offences. The assumption is important with reference to the second ground and it is necessary next to consider whether it is well founded, and, if so, what result follows.

63. Prima facie, these are new offences. Certain Acts are prohibited by the Legislature and a penalty by way of fine is imposed for disobedience. That comes within the wide definition of 'offense' in Section 3(o) of the criminal Procedure Code: 'Offence' means any Act or omission made punishable by any law for the time being in force.' The mere Act to which the learned Advocate-General drew attention, that such words as 'offence' convict 'and' punish are not used or the mere fact that the forum selected is the president of the tahasildar and not a Magistrate is not sufficient to convert what, would otherwise be in essence a criminal proceeding into a civil proceeding. The remedy provided is not reparation for any injury suffered by the complainant, but punishment of the guilty or disobedient defendant for breach of a statutory prohibition. A fine when levied appears to go into the public treasure chest. In the judgment from which I have quoted the learned President falls very naturally into the language of the criminal law. He speaks of the Controller's sanction as a sanction to the ' prosecution'' and of the Acts proved against the defendants' or one of them as Acts 'punishable' under Section 20. I do not rely, of course, on any chance expressions used by the President, but on the construction of these penal sections it seems clear that, apart from Rule 4 of the rules, a prohibited Act is an offence and that the summary inquiry which the President is by those sections directed to make would naturally follow criminal rather this civil forms.

64. It is easy to see why, in the scheme, of the Bent Act, the President of the Tribunal was Chosen to supervise judicially the proceedings of the Controller. His legal attainments, which, if I may say so, are considerable, and the experience which be must have conquered in the exercise of his functions under the. Calcutta Improvement Act, of housing conditions and prevalent rates of rent, explain the choice. Then, in order to enforce the new law, penal sections were introduced, and the President, who was to administer the Act in other respects, was also given jurisdiction to hear complaints duly made under those sections and to impose the penalties for which they provide. There is nothing unusual or extraordinary in such legislation. As that Advocate-General pointed out, a power to fine was given to Collectors by the Bengal Survey Act, 1875 (Sections 51, 55 and 58) and the Bengal Tenancy Act, 1875 (Section 58, Clauses (3) to (8).) But it does not follow that proceedings before Collectors under these provisions are purely Civil or Revenue proceeding and not criminal proceedings, or that the Acts to which a fine is attached are not offences 'within the meaning of the Criminal Procedure Code. Section 53 of the Survey Act begins with words which savour of the Criminal Law:

Any person convicted before a Collector

65. So, in England, the authorities show that what counts is the proceeding and not the Court (See Grays Statute Law, 2nd Editor, pages 453, et seq). There are the cases turning on Section 47 of the Judicature Ant, 1973, which provides that no appeal shall lie to the Jour of Appeal from a judgment of the High court in any criminal cause or matter.' In Toronto Railway Co. v. Toronto city (1920) A.C. 446 at p. 452 : 89 L.J.P.C. 90 : 122 L.T. 641 their Lordships of the Privy On Mail referred to the series of cases smoking with learned v. Garlon (1859) 2 El. & El 66 : 28 L.J.M.C. 216 : 5 Jur. (N.S.) 648 : 7 W.R. 566 : 121 E.R. 26 : 33 L.T. (O.S.) 256 : 119 R.R. 624, and vending withschofield, Ex prate' (1891) 2 Q.B. 428 : 60 L.J.M.C. 157 : 64 L.T. 780 : 39 W.R. 580 : 17 Cox. C.C. 303 : 56 J.P. 4, in will it had been held that the imposition of a fins or penalty (not being by way of reimbursement) for the breach of an order of a public authority is matter of Criminal and not civil Procedure.' In Derby Corporation v. Derbyshire County Council (1897) A.C. 550 : 66 L.J.Q.B. 701 : 77 L.T. 107 : 46 W.R. 48 : 62 J.P. 4, where the question was, whether in certain proceedings before a County Court, discovery should be allowed against the defendant, Lard Haraahell said : When a proceeding is one to enforce a penalty, or where a proceeding is one not that must end in a penalty, because the decision may be in favour of the person against whom it is taken, but where the proceeding is of such a nature that it may result in a penalty it is a penal proceeding.' In Vernon v. Watson (1891) 2 Q.B. 288 : 60 L.J.Q.B. 472 : 64 L.T. 728 : 39 W.R. 520 : 56 J.P.85 Lord Halabury was of opinion that the proceeding there in question was partly of a civil and partly of a criminal character.

66. The view that the penal sections of the Rent Act create new criminal offences triable by the President is perfectly consistent with the validity of the Act itself, apart from the Rules made under it. The preamble recites that 'the previous sanction of the Governor-General has been obtained under Section 79, Sub-section (2) of the Government of India Act, 1915, to the passing of this Act,' With such sanction the Local Legislature may alter any law made in British India by any authority other than itself. The Criminal Procedure Code passed by the Indian Legislature is such a law. If, therefore, there is anything in the Rant Act (apart from the rules made under it) which alter the Criminal Procedure Code, the Act is not on that account ultra vires of the Local Legislature

67. But when we come, lastly, to such of the rules and Rule 4 and Rule 24 a difficultly undoubtedly arises. It will simplify the discussion to cone it to Rule 4 which was the principal object of attack. The rule purports to be made under a power to make rules regulating the procedure to be followed by the President in making inquiries under the Act. It was canceled on bath sides that it applies to summary inquiries under the penal section. The result is, that you have an Act creating new offences and a Rile directing that in trying these offanoes the President shall follow, as nearly as may be,' the procedure laid down in the Code of Civil Procedure for the recur trial of suits. The learned Advocate-General told us that in deference to public opinion the intention was that proceedings under the penal section should be, treated as civil proceeding with nothing criminal about them. No doubt, a supreme Legislature can do most things and I am not going to say that if Rule 4 had been put into the Act, and the intention ascribed to the Legislature had been made manifest by express words, the Local Legislature would have exceeded its powers. I assume for the present purpose that, subject to the requirement that before doing certain things the previous sanction of the Governor-General should be obtained, the Local Legislature, so far as the Courts other than the High Court are concerned, is supreme in the region of Criminal Law and Procedure.

68. In Toronto Railway v. Reg. (1917) A.C. 630 : 86 L.J.P.C. 195 : 34 T.L.R. 1, their Lordships of the Privy Council expressed the opinion that it was comet to the Parliament of Canada under powers enabling it solutively to legislate as to criminal law, including procedure in criminal matters, to declare that what might previously have constituted a criminal offense should no longer do so, although a procedure in form criminal was kept alive. The Canadian Act there in question expressly directed that any one convicted upon any indictment or information for any common nuisance other than those mentioned in the Act preceding section shall not be deemed to have committed a criminal offense.'

69. But whatever the powers of the Local Legislature in this connection may be, even if Rule 4 stood as a section in the Act itself, it would not necessarily be equivalent to an express direction that the remedies provided in the penal sections should be deemed to be Civil and not Criminal remedies. As a section is the Act, it would have to be construed with the penal section and tome meaning would have to be given to it. The result might, but would not necessary, be that for which the learned Advocate-General contends.

70. Rule 4, however, does not stand as part of the Act, but as a rule made there under. That being so, to make it mean that the criminal remedies created by the Act are to be treated for all purposes a civil remedies, is to mike it amorist tent with and repugnant to the Act to which it is subordinate It cannot have that meaning. Construed as a rule, it cannot mean more than this that the new offences created should, without losing their criminal character, be tried in form civil. Upon that, difficulties would sour as to the precise boundary between substantive law and procedure, for instance, as to the burden of proof and the examination of the defendant on oath. But in spite of difficulties in its application, it is, perhaps, conceivable, that, with a liberal use of the qualifying phrase, so far as may be', the rule so interpreted, might prove workable. And I should hesitate before rejecting the rule merely on the ground of inconsistency with the Act. The Courts will approach a rule purporting to be made by the Local Government or by one of its principal administrative departments under statutory powers with respect and with the desire so to construe it res magis valet, qualm per eat,

71. But the validity of Rule 4 has to be considered not only in relation to the Bent Act, but also in relation to the Criminal Procedure Code. Two questions arise on this part of the casa, firstly, whether the rule is in fact in conflict with the code and, secondly, whether, if so, the Local Government still had power to make such a rule of procedure under an Act passed with the previous sanction of the Governor-General.

72. As to the first question, however benevolently the rule be interpreted, it certainly prescribes a procedure which is not the procedure of the Criminal Code. Now, Section 5(1) of the Criminal Procedure Code provides for the trial under that Code of offences under the Penal Code. Then Section 5(2) goes on to say that 'elf offences under any other law', that is, any law other than the Penal Code, shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions,' that is, the provisions of the Criminal Procedure Code. That states the general principle that the appropriate procedure for the trial of offenses is to be found in the Criminal Procedure Code. A saving clause, however, follows to this effect: 'but 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.' The following section, Section 6, appears to resign that, besides the High Court and the five aliases of Criminal Courts constituted by the Code, there may be other Courts constituted under other laws, meaning presumably other Courts having jurisdiction to try criminal offence,

73. No doubt, if the rule is covered by the saving clause in Section 5(2) then there is no inconsistency between the rule and the Code. The point turns on the meaning of the word enaefcment.' In my opinion, however, 'enactment' does not include a Statutory Rule, As the petitioner's learned Vakil reminded us, the word is defined in Section 3(17) of the General Clauses Act passed in 1897, the year before that in which the Criminal Procedure Code was passed, 'Enactment', it is there said, 'unless there is anything repugnant in the subject or context' shall 'include' certain Regulations, such as the Regulations of the Bengal Code, 'and any provision contained in any Act or in any such Regulation as aforesaid.' That definition suggests that 'enactment', in its legislative sense, in accordance with the common usage of the word, applies only to provisions directly enacted by the Legislature, and cannot be extended to include Statutory Rules,

74. The Advocate General referred to Sub-section (2) of Section 1, which extends the Code to the whole of British India but goes on to provide that, in the absence of any Beatifies provision to the contrary, nothing herein contained shall affect. any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. That provision carrier the case for the opposite parties no further, Either Sub-section (2) of Section 5 is a specific provisional to the contrary' or Rule 4 is not a 'Law.'

75. Rule 4, therefore, is not covered by any saving clause in the Code and is inconsistent, with the Code.

76. The second question is whether, that being sO, the Local Government still had power to make such a rule. In my opinion, the answer must be in the negative. Granted that the rule would have been valid if it had formed part of the Act, does not form part of the Act and it is not a provision directly enacted by the Legislature with the previous sanction of the Governor-General. It was said that the Act was passed with such sanction and that the Act so passed empowers the Local Government to make rules regulating procedure. So it does, but it by no means follows that such a power enables the Local Government to make a rule which could not have been put in the Act itself without the previous sanction of the Governor-General. It is clear that the proviso in Sub-section (5) of Section 79 of the Government of India Act, 1915, does not cover the case.

77. A mere power to regulate procedure, such as the Rent Act gives, certainly does not authorise, the Local Government to regulate, BO to speak, the offences created by the Act out of existence and to turn a remedy of a criminal character into a remedy of a civil character. Nor, in my opinion, does this power conferred without any reference at all to the Criminal Procedure Code authorise the Local Government to repeal or alter that Code and to direct, contrary to its provisions, that the offences aerated, while remaining criminal offences, shall be tried in form civil.

78. There are penal sections in the Calcutta Improvement Act (Section 169,174) and I observe that a provision modifying the criminal Procedure Code is contained in the Sub-section 151 under the heading Legal 'proceedings.'

79. The requirement that a modification of the code should be expressed in an 'enactment' not a question of mere form. It means hat the general principle that all offences re to be tried according to the procedure f the Code is not to be departed from except some deliberate Act of the Legislature itself. The omission to take this course in he present case was no doubt due to the regulation being emergency legislation, passed, perhaps necessarily, in haste, to meet pressing needs of the moment.

80. If I am right in my conclusion, Rule 4 and other rules made under the Bent Act are invalid, so far as they purport to apply the Code of Civil Procedure to summary inquiries under the penal sections of the Rent Act.

81. It is evident from the terms of the learned President's judgment that he tried the petitioner's case as if it were a civil and not a criminal case.

82. In the result, therefore, in my opinion, this Rule, issued at the petitioner's instance, should be discharged on the Brat ground on which it was granted but made absolute on the second. The order fining the petitioner must be set aside, and the fine and costs, if paid, must be refunded.


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