Full Judgment Text
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PETITIONER:
KANAIYALAL CHANDULAL MONIM
Vs.
RESPONDENT:
INDUMATI T. POTDAR AND ANOTHER
DATE OF JUDGMENT:
20/02/1958
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
SUBBARAO, K.
CITATION:
1958 AIR 444 1958 SCR 1394
ACT:
Municipal Law-Water Supply-Landlord withholding essential
supply-Tenant not in enjoyment after enactment-Conviction of
landlord-Legality-Bombay Rents Hotel and Lodging House Rates
Control Act (Bom. LVII of 1947), S. 24.
HEADNOTE:
Section 24(1) of the Bombay Rents Hotel and Lodging House
Rates Control Act, 1947, provides: " No landlord either
himself or through any person acting or purporting to act on
his behalf shall without just or sufficient cause cut off or
withhold any essential supply or service enjoyed by the
tenant in respect of the premises let to him." By
Explanation 11 : " For the purposes of this section,
withholding any essential supply or service shall include
acts or omissions attributable to the landlord on account of
which the essential supply or service is cut off by the
local authority or any other competent authority."
The appellant was prosecuted under S. 24 of the Bombay Rents
Hotel and Lodging House Rates Control Act, 1947, on a
complaint by the tenant, the first respondent, on June 14,
1954, for having refused or neglected to have water
connection made for the premises. The water supply to the
premises was cut off by the Municipality in 1947 due to the
default in payment of the municipal taxes by the
predecessor-in-title of the appellant, but the tenants,
including the first respondent, continued in occupation of
the premises without having the use of municipal water
supply. It was contended for the appellant that his
conviction was invalid because (1) he was not liable for the
default made by his predecessor-in-title, and (2) in any
case, s. 24 was not applicable inasmuch as the supply of
municipal water was not enjoyed by the first respondent when
the Act came into force:
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Held: (1) that though the appellant might not have been
directly responsible for the cutting off of the supply of
municipal water, it was within his power to get the supply
restored by the Municipality on payment of the prescribed
fee and in so far as he omitted to do so, such an omission
was attributable to him within Explanation 11 of s. 24 of
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the Act, and therefore he was withholding an essential
supply within the meaning of S. 24(1) Of the Act;
(2) that under S. 24 Of the Act the essential supply should
have been available for the use of the tenant at some time
when the Act was in force, and as, in the instant case, the
first respondent was not in enjoyment of the supply of
municipal water at any time after the coming into effect of
Act, the appellant could not be convicted under that
section.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 65 of
1956.
Appeal by special leave from the judgment and order dated
April 22, 1955, of the Bombay High Court in Criminal
Revision Application No. 449 of 1955, arising out of the
judgment and order dated March 24, 1955, of the Court of the
Presidency Magistrate, Seventh Court, Dadar, Bombay in Case
No. 215/S of 1955.
Rameshwar Nath, S. N. Andley and J. B. Dadachanji, for the
appellant.
T. Satyanarayan, for respondent No. 1.
N. S. Bindra and R. H. Dhebar, for respondent No. 2.
1958. February 20. The Judgment of the Court was delivered
by
SINHA J.-The only question for determination in this appeal,
is whether an offence punishable under s. 24(1)(4) of the
Bombay Rents Hotel and Lodging House Rates Control Act LVII
of 1947 (hereinafter referred to as the Act), has been
brought home to the appellant.
The facts of this case are short and simple. The appellant
is the owner, by purchase in 1945, of certain premises
situate in Vile Parle, Bombay. Under the predecessor-in-
title of the appellant, was a tenant, named Thirumal Rao
Potdar, in respect of a room in
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those premises, at a monthly rent of Rs. 20 including water
rate of Rs. 2. After the, appellaiit’s purchase, the tenant
aforesaid continued to hold the tenancy on those very terms.
The said premises used to enjoy the amenity of water supply
from a municipal tap. As the appellant’s predecessor-in
-title had made default in payment of municipal taxes, the
water supply had been cut off by the Municipality early in
May, 1947. Since after that, the tenants including the said
Thirumal Rao, had the use of well water only from a neigh-
bouring tenant. Thirumal Rao died in or about the year
1950, and his widow, the first respondent, continued in
occupation of the premises, without having the use of
municipal water supply though she continued to pay the
original rent plus annas 10 more by way of ’permitted
increase’. Thus, the landlord the appellant-went on
receiving the monthly rent of Rs. 20-10-0 from the first
respondent without giving her the benefit of water supply
from the municipal tap. The Act came into force on February
13, 1948. The tenancy appears to have been recorded in her
name some time in 1951. Nothing appears to have happened
until April, 1954, when the first respondent brought it to
the notice of the Municipal authorities that the supply of
water from the municipal tap had been stopped since 1947.
The Municipality answered the first respondent’s complaint
by a letter dated May 24, 1954, saying that the water
connection could be restored on payment of Rs. 11-4-0 only,
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being the fee for doing so, if the owner’s consent was
produced. Before receiving this answer from the
Municipality, the tenant got a letter written to the
appellant, through a pleader, asking him to refund Rs. 72
being the amount charged for water supply at Rs. 2 per
month, which was included in the total rent aforesaid for
three years after the tenancy had been mutated in her name.
The letter also stated that the supply of water had been
withheld by the landlord by allowing the Municipality to
disconnect the water connection for non-payment of municipal
dues. The landlord was also called upon to get the water
connection restored, and if he failed to do so, prosecution
under
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s.24 of the Act, was threatened. As the appellant had
refused or neglected to have the water connection restored,
the tenant filed a petition of complaint on June 14, 1954,
for the prosecution of the appellant under s. 24 of the Act.
The appellant was convicted. after a trial by the 7th
Presidency Magistrate, Dadar, by his judgment and order
dated March 24, 1955. He was sentenced to undergo one day’s
simple imprisonment, and to pay a fine of Rs. 150, and in
default of payment, to undergo one month’s simple imprison-
ment. The appellant moved the High Court of Bombay in
revision against the order of conviction and sentence
aforesaid. The matter was heard by a judge sitting singly,
who summarily rejected the application by an order dated
April 22, 1955. The appellant moved the High Court for a
certificate that this was a fit case for appeal to this
Court, which was refused by a Division Bench on May 16,
1955. Thereafter, the appellant moved this Court for
special leave’ which was granted on October 10, 1955.
Hence, this appeal.
The learned counsel for the appellant raised a number of
contentions against the conviction and sentence imposed upon
the appellant, but in the view we take of the provisions of
s. 24 of the Act, it is not necessary to pronounce upon all
those contentions. The most important question which we
have to determine in this appeal, is whether the constituent
elements of an offence under s. 24(1), have been made out on
the facts found in this case. Section 24 is in these terms
" 24. (1) No landlord either himself or through any person
acting or purporting to act on his behalf shall without just
or sufficient cause cut off or withhold any essential supply
or service enjoyed by the tenant in respect of the premises
let to him.
(2) A tenant in occupation of the premises may, if the
landlord has contravened the provisions of subsection (1),
make an application to the Court for a direction to restore
such supply or service.
(3) If the Court on inquiry finds that the tenant has been
in enjoyment of the essential supply or
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service and that it was cut off or withheld by the landlord
without just or sufficient cause, the Court shall make an
order directing the landlord to restore such supply or
service before a date to be specified in the order. Any
landlord who fails to restore the supply or service before
the date so specified shall for each day during which the
default continues there,after be liable upon a further
direction by the Court to that effect to fine which may
extend to one hundred rupees.
(4) Any landlord, who contravenes the provisions of
subsection (1) shall, on conviction, be punishable with
imprisonment for a term which may extend to three months or
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with fine or with both.
Explanation I.-In this section essential supply or service
includes supply of water, electricity, lights in passages
and on staircases, lifts and conservancy or sanitary
service.
Explanation II.-For the purposes of this section,
withholding any essential supply ’or service shall include
acts or omissions attributable to the landlord on account of
which the essential supply or service is cut off by the
local authority or any other competent authority."
The explanation II was inserted by s. 16 (2) of the Amending
Act, namely, Bombay Act 61 of 1953, and the explanation 1,
as it now stands, was the only explanation before the
amending Act was passed. It has not been denied before us
that the supply of tap water is an essential supply, and
that is beyond controversy in view of explanation 1. What
has been argued, is that the supply of municipal water had
been cut off by the Municipality as a result of the default
in payment of municipal dues, by the appellant’s
predecessor-in-title. It may be that the appellant was not
to blame for the default in payment of municipal dues, but
it was open to him to pay Rs. 11-4-0 and have the water
connection restored. He may not have been directly
responsible for the .cutting off of the supply of municipal
water, but it was within his power to get the supply
restored by the Municipality on payment of the prescribed
fee. Hence,
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in so far as the appellant omitted to do so, such an
omission is attributable to him within the meaning of
explanation II which was inserted into the Act in 1953.
There can, therefore, be no doubt that the appellant was
continuing to withhold an essential supply within the
meaning of s. 24, as it stood in 1953.
But that is not the only essential ingredient of the offence
created by s. 24. In order to attract the provisions of
that section, it is also necessary that the second
ingredient of the offence, should be there, namely, that
that essential supply-tap water supply by the Municipality-
should have been enjoyed by the tenant. Is it enough that
this essential supply should have been " enjoyed " by the
tenant at any past time, however remote, or that it should
have been " enjoyed " at any time after the coming into
effect of the Act? We are assuming for the purposes of this
decision that the first respondent was the tenant at all
material times. In our opinion, the section makes it
essential that the particular essential supply should -have
been available for the use of the tenant at some time when
the Act was in force. If, on the other hand, the section
were construed in the sense that the supply should have been
" enjoyed " at some time in the remote past, that is, before
the Act was enforced, the act of the landlord, when it was
committed, may not have been penal; but the same act would
become penal on the coming into effect of the Act. In that
sense, it would amount to ex post facto legislation, and we
cannot accede to the argument that such was the intention of
the Legislature-an intention which would come within the
prohibition of Art. 20 (1) of the Constitution.
But it has been said that the expression "enjoyed by the
tenant " in s. 24, does not necessarily mean that the tenant
should have physically made use of the essential supply, and
that the requirements of the section are satisfied if the
tenant had the right vested in him to call for such a
supply. In other words, the argument is that the word "
enjoyed " does not import physical use of the amenity in
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question, but
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the juridical aspect of it in the sense that the supply of
the water, was one of the rights vested in the tenant. On
this construction, if the tenant had, as in this case the
first respondent had, the right to enjoy the supply of
water, that would amount to her having " enjoyed the supply,
and, thus, both the requirements of s. 24 would be
fulfilled. In our opinion, it would be straining the
language of the section to say that" enjoyed" should mean "
had the right to enjoy ". If that was the intention of the
Legislature, those words would have been different. That
this was not the intention of the Legislature, becomes clear
on an examination of the terms of sub.s. (3) of that
section. It speaks of " the tenant has been in enjoyment of
the essential supply or service and that it was cut off or
withheld by the landlord " which imports recent " enjoyment"
until the supply was cut off, and not "enjoyment" in the
remote past. If the intention was that "enjoyment" should
have been at any time in the past, irrespective of the con-
sideration when the Act came into force, the Legislature
would have used some other words to indicate that intention,
even assuming that the Legislature could have done so. But
it was suggested that sub-s. (1) of s. 24, was self-
contained, and that it was not necessary to construe its
terms in the light of the provisions of sub-ss. (2) and (3)
which go together. But it is clear from the terms of sub-s.
(2) that it cannot come into operation without the landlord
having contravened the provisions of sub-s. (1). Therefore,
the provisions of s. 24 have to be construed as a whole, in
order to find out the true intention of the Legislature.
It, may also be pointed out that it is doubtful whether,
before the second explanation was inserted into the section,
as aforesaid, in 1953, the cutting off of the water supply
by the Municipality, or the omission of the landlord to take
steps to have the connection restored, would have come
within the mischief of the penal section. Supposing the
second explanation was not there, could the prosecution
attribute the cutting off of the connection by the Munici-
pality, and the subsequent refusal of the landlord
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to get the connection restored, as an act or omission of the
landlord within the meaning of s. 24 (1) ? It has got to be
remembered that the provisions of s. 24 are meant to be an
additional guarantee to the tenant, of his continued
enjoyment of the rights created in his favour by the
contract of tenancy apart from his rights under the general
law. The landlord could not only be penalized for having
interrupted the enjoyment of any one of these essential
rights, the tenant could approach the court under sub-ss.
(2) and (3) of the section, to issue a mandate to the
landlord to restore the supply or the service before a
specified date, the infringement of which would entail the
liability to recurring fines until the mandate had been
carried out by the landlord. These are provisions of an
exceptional character, meant to be in force for a specified
period during which the Legislature thought it advisable and
expedient to provide for such extraordinary remedies. Such
remedies which are inroads upon the landlord’s freedom of
action, have to be construed strictly in accordance with the
words actually used by the Legislature, and they cannot be
given an extended meaning.
In view of these considerations, it must be held that the
complainant-the first respondent-has not shown that she had
enjoyed the amenity of the supply of tap water from the
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Municipality at any time after the Act came into force, and
as that is one of the two essential conditions for the
application of the section, it must be held that the offence
under s. 24 (1) of the Act, has not been brought home to the
appellant. The appeal is, accordingly, allowed, and the
conviction and sentence are set aside.
Appeal allowed.
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