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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: 1395 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 177 1396 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 1397 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 1398 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, 1399 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 1400 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 1401 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. 1402