Calcutta High Court
Gour Kishore Das vs Krishna Kumar Bose on 25 June, 1991
Equivalent citations: (1991)2CALLT267(HC)
JUDGMENT Jyotirindra Nath Hore, J.
1. This revisional application under Article 227 of the Constitution of India is directed against the order dated 3.9.90 passed by the Rent Controller, Calcutta in A.R.C. Case No. 5 of 1989 (Fine) directing the petitioner-landlord to cause restoration of normal supply of filtered water in the tenanted premises within one month from the date of the order.
2. The opposite party is a tenant in respect of two rooms, kitchen and privy in the first floor of premises No. 140A, Harish Mukherjee Road under the petitioner at a monthly rental of Rs. 200/- payable according to English calendar months. The tenant-opposite party filed an application Under Section 31 of the West Bengal Premises Tenancy Act, 1956 against the petitioner before the Rent Controller, Calcutta alleging wilful obstruction in the supply line of filtered water by operation of stop cock. On receipt of summons the petitioner appeared on 12.2.90 but the tenant-opposite party who was the petitioner in the impugned proceeding was found absent on repeated calls and the learned Rent Controller dismissed the case for default. On 9.3.90 the tenant-petitioner filed an application for restoration of the said A.R.C. Case No. 5 of 1989 under Order 9 Rule 9, C.P. Code which was allowed by the learned Rent Controller. Thereafter, summons was served Under Section 68 of the Code of Criminal Procedure by hanging by the bailiff and 22.8.90 was fixed for appearance. On 22.8.90 the present petitioner did not, however, appear and the learned Rent Controller heard the case ex parte. By an order dated 3.9.90 he disposed of the petition Under Section 31 of the West Bengal Premises Tenancy Act holding the landlord not guilty of the offence Under Section 31 and acquitting him of the charge, but nevertheless directing the landlord to cause restoration of the normal supply of filtered water in the tenanted premises from the date of the order. Being aggrieved by the said order the O.P.-landlord has. moved this court in revision under Article 227 of the Constitution of India.
3. Mr. Sengupta, learned Advocate for the petitioner has contended that the procedure adopted by the learned Rent Controller is entirely illegal. It has been urged that the order of dismissal was passed in total disregard to the provisions of Section 256 Criminal Procedure Code and that the learned Rent Controller had no jurisdiction to restore the case under Order 9 Rule 9, C.P. Code which is not applicable. The further contention of Mr. Sengupta is that the trial being held ex parte in the absence of the present petitioner is entirely illegal and void and consequently the impugned order for restoration of supply of water is also illegal and without jurisdiction. The last contention of Mr. Sengupta is that the order for restoration of supply of water is a consequential order which can be passed only after finding the landlord guilty of the offence Under Section 31 and imposing fine on him. It has been contended that as the petitioner was found not guilty of the offence Under Section 31, the order for restoration of supply of water is illegal and without jurisdiction.
Mr. Banerjee, learned Advocate for the opposite party has raised a preliminary objection that the present application under Article 227 of the Constitution is not maintainable in view of the alternative remedy by way of appeal Under Section 29 of the West Bengal Premises Tenancy Act being available to the petitioner.
4. Let me take up the preliminary objection raised by Mr. Banerjee as to the maintainability of the present application Under Section 227 of the Constitution for consideration first. Under Section 29 of the West Bengal Premises Tenancy Act, 1956 an appeal lies against the impugned order before the District Judge, 24-Parganas (South) but the petitioner did not prefer the appeal. The question is whether the existence of such an alternative remedy of appeal is a bar to the exercise of jurisdiction under Article 227 of the Constitution. The power of 'superintendence' conferred upon the High Court by Article 227 involves a duty on the High Court to keep the inferior courts and tribunals 'within bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner'. Since the power under Article 227 is an extraordinary power, it is to be used most sparingly and the High Court ordinarily does not interfere when there is an adequate alternative relief. The Rule of 'alternative remedy' is only a consideration for exercise of discretion and does not exclude the jurisdiction of the High Court in exceptional cases. In Miss Maneck Gustedji Burjarji v. Sarafazali Nawabali Mirza, the Supreme Court has held that the rule of 'alternative remedy' is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant but the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. Similar view, was taken in the case of K.K. Shrivastava v. Bhupendra Kumar Jain, AIR 1979 SC 1703. Though it was a Writ petition under Article 226, the same principle would apply to a petition under Article 227. In Pareshnath Cloth Stores v. Nitya Nanda Paul, 64 CWN 663 a Division Bench of this Court while dealing with an order made by the Rent Controller Under Section 16 of the West Bengal Premises Tenancy Act held as follows : "Assuming that an appeal lay from the order the existence of the alternative remedy by way of appeal is not a bar to the exercise of our power of superintendence under Article 227 of the Constitution. In this case the absence of jurisdiction of the Controller to entertain the proceedings and to make the declaration asked for is patent on the face of the record. We are satisfied that in a case of this kind we should interfere with the impugned order under Article 227 of the Constitution." In Re : Satish Chandra Banik reported in 87 CWN 221 it has similarly been held that in exceptional cases the jurisdiction under Article 227 can be invoked inspite of the existence of a specific alternative remedy. In a recent case of Bimal Sahoo, Secretary, Basudevpur Girls' High School v. Gouri Rani Pahari, it has been held that a provision of appeal does not bar to the exercise of power under Article 227 and the High Court will strike down a patently illegal exercise of jurisdiction in exercise of power of the superintendence, even if an alternative remedy is available.
5. It is clear that the power under Article 227 may be exercised by the High Court in exceptional circumstances such as want of jurisdiction or patent illegal exercise of jurisdiction even where there is an alternative remedy by way of appeal but which has not been availed of.
6. Mr. Banerjee has contended that the Rent Controller is not a 'court' but a persona designate and as such the order of Rent Controller is not revisable under Article 227 of the Constitution. In support of this contention he has relied upon the decision in the case of Baidyanath Roy and Ors. v. Anej Bibi reported in 1978(2) CLJ 182 in which it has been held that the Rent Controller is not a 'Court', but a persona designate and the appeal to the District Judge as per Section 29(1) of the West Bengal Premises Tenancy Act does not make the judgment of the District Judge the judgment of the 'Court' within the meaning of Article 227(6). The District Judge is, therefore, an Appellate Authority Under Section 29(3) of the West Bengal Premises Tenancy Act and that being the position an application under Article 227 is not maintainable. This decision is based on the amended Article 227 after the 42nd Amendment Act, 1976 abolishing the supervisory jurisdiction of the High Court over all administrative tribunals. The pre-1976 position has, however, been restored by the 44th Amendment Act, 1978, so that all statutory or quasi-judicial tribunals other than military tribunals are again brought under the supervision of the High Court. Hence the decision in the case referred to above is no longer good law. The Rent Controller under the West Bengal Premises Tenancy Act exercise quasi criminal jurisdiction Under Section 31 enquiring into a complaint entailing imposition of a fine if the same is proved. He, therefore, functions as a tribunal under the superintendence of the High Court. The impugned order is, therefore, revisable by the High Court under Article 227 of the Constitution and the prelimary objection raised by Mr. Banerjee fails.
7. Let me next consider the first point raised by Mr. Sengupta. The wilful disturbance in water supply creates an offence punishable Under Section 31 of the West Bengal Premises Tenancy Act. The proceeding Under Section 31 is a proceeding of criminal nature. In the case of Pulin Krishna Paul v. Sishupati Chakravarty (D.B.), Harris, C.J. speaking for the court observed as follows : "It appears to me beyond all questions that when a statute gives the Rent Controller power to impose a penalty, that is, fine a person, it gives him a right to deal with prosecution of an offence and to punish the commission of such offence. What else can these proceedings before the Rent Controller be? They are not civil proceedings. They are proceedings of a criminal nature resulting in a well known form of punishment for a crime, namely, the imposition of a fine". After distinguishing an earlier Division Bench decision of this court in the case of Jhavermal Dudhwala v. Govlnd Ram, which seemingly took a different view His Lordships observed as follows: going to the Rent Controller and asking him to fine a man for an act is really a prosecution of that man and the act is an offence against the statute and is a criminal offence because it is punishable by a fine which is a punishment of a criminal nature. This decision was followed in the case of Smt. Mrinalini Ghosh and Ors. v. Shibnath Bhadra reported in 1980(1) CLJ 86. Reference may be made to another Division Bench decision of this court in the case of Mayabati Haider v. Rent Controller, Calcutta reported in 1981(1) CLJ 133 in which it has been held that in view of Rule 10(a) of the West Bengal Premises Tenancy Rule 1956, the Controller has to follow, as nearly as may be, the procedure laid down in the Code of Criminal Procedure for trial of the cases. The procedure laid down under Chapter XX of the Code relating to the trial of summons cases by the Magistrate will apply to cases Under Section 31 of the West Bengal Premises Tenancy Act 1956 as nearly as may be. Similarly, it has been held in Kalabat Devi v. K.K. Kutty, 81 CWN 1032 that the procedure as provided in the Criminal Procedure Code applies to a proceeding Under Section 31 of the West Bengal Premises Tenancy Act, 1956.
8. Mr. Banerjee, has contended that in view of the provisions of Sub-section (3) of Section 29 of the West Bengal Premises Tenancy Act, 1956r the provisions of the Code of Civil Procedure would also apply to an enquiry Under Section 31. This contention has no substance. Sub-section (3) of Section 29 provides that the procedure for filing an appeal; and the power to be exercised and the procedure to be followed by an appellate? officer in admitting and dealing with an appeal shall be the same as in the case of appeals from orders under the Code of Civil Procedure, 1908. But we have already seen that in view of the fact that the proceeding Under Section 31 is of a criminal nature and in view of this specific provisions in Rule 10(a) that the Criminal Procedure Code would apply in such a proceeding. There is no scope for contention that the Civil Procedure Code would apply in an enquiry Under Section 31. Sub-section (3) of Section 29 deals with the appeal against the order of the Rent Controller and not the procedure to be followed in an enquiry into a complain of an offence specifically created by the Act. In Mathura Prosad v. Kanailal, , it was pointed out that although the Rent Controller in holding the trial has to proceed in accordance with the Code of Criminal Procedure, the appeal against his order has to be dealt with under the provisions of the Code of Civil Procedure. This may appear to be somewhat incongruous but it does not affect the substance of the matter. The legislature having provided for two different procedures at two different stages of the proceeding. No exception could be taken to such incongruity as no prejudice is caused thereby.
9. It is clear from the above that the procedure laid down under Chapter XX of the Criminal Procedure Code relating to trial of summons cases by the Magistrate will apply to cases Under Section 31 of the West Bengal Premises Tenancy Act, 1956 as nearly as may be, though the Rent Controller is not a 'Court' or Magistrate. That being so once a proceeding Under Section 31 was dismissed by the Controller, he had no power to restore the same upon a subsequent application for' restoration. Criminal Procedure Code does not provide for any such restoration. The learned Rent Controller purported to act under Order 9 Rule 9 C.P, Code which is not at all applicable in a proceeding Under Section 31. There is no specific provision in the West Bengal Premises Tenancy Act for such restoration. The Rent Controller has also no inherent power for restoration. It may be pointed out here that the order of dismissal for default was not also a proper order. The proper order ought to have been acquittal of the opposite party in the proceeding in accordance with the provisions of Section 256 of the Criminal Procedure Code. Be that as it may the Rent Controller has no power of restoration of the proceeding Under Section 31. The order of restoration purportedly made under Order 9, Rule 9 C.P. Code was entirely illegal and without jurisdiction and consequently all the subsequent orders passed in the proceeding including the impugned order for restoration of supply of water were illegal and without jurisdiction.
10. The second contention raised by Mr. Sengupta, also merit acceptance. The enquiry in the proceeding Under Section 31 behind the back of the present petitioner is also bad in law. After the restoration of the proceeding the present petitioner did not appear either personally or through an advocate and the enquiry proceeded ex pane in his absence. He was not apprised of the substance of accusation and was not given an opportunity to take his plea and further to participate in the proceeding with evidence at his option. The procedure adopted by the learned Rent Controller does not even remotely comply with the provision's of Chapter-XX of the Criminal Procedure Code. The procedure adopted is also against the principle of natural justice. It is inconceivable that the trial in respect of an offence Under Section 31 of the West Bengal Premises Tenancy Act would take place in the absence of the accused. This is not a mere irregularity but illegality vitiating the trial.
11. This brings us to the last point raised by Mr. Sengupta Section 31 empowers the controller to impose a fine after an enquiry if there has been a wilful disturbance of easement etc. Besides imposing fine the Controller may also order for immediate restoration of any supply or service which has been interfered with. The Rent controller's powers of imposition of fine and the order for restoration of any supply or service depends upon the condition of his finding of wilful interference with supply or service. If the Rent controller upon enquiry comes to the conclusion, as he has done here, that there has been no wilful interference with the supply of water as alleged, the condition for exercise of his jurisdiction Under Section 31 will not be fulfilled. In that event the Rent Controller will not have the power to make an order for restoration Under Section 31 of the Act. The order for restoration of any supply or service which has been wilfully interfered with is a consequential order depending upon imposition of fine for wilful interference with any supply or service. The word /and' before the words "the Controller may order immediate restoration of any supply or service which has been interfered with" in the context is conjunctive and not disjunctive. If after enquiry the Controller comes to the finding that there has been wilful disturbance of any easement etc. or wilful interference with any supply or service, he is to impose fine and in addition he may also order for restoration of any supply or service which has been interfered with. So where there is no imposition of fine by the Rent Controller in view of the finding that the opposite party was not guilty of wilful interference with any supply or service, the Rent Controller cannot make an order for restoration of any supply or service. The aggrieved party may, however, seek an appropriate order from the Rent Controller Under Section 34 for restoration of essential service. Mr. Ban-erjee, has, however, referred to a Single Bench decision of this Court in Gobinda Chandra Mondal v. Samarendra Nath Kundu, 1988(1) CHN 288 wherein it has been held that even if the learned Rent Controller has chosen to give a benefit of doubt to the present petitioner who is in the position of an accused in enquiry, he had ample power under the law to direct restoration of supply of filtered water in favour of the tenant in the premises. The question whether the order for restoration is in the nature of a consequential order depending upon the imposition of fine for wilful disturbance of any supply or service or the question whether the word 'and' is conjunctive or disjunctive or the question whether the exercise of jurisdiction to pass an order for restoration of any supply or service depends upon the condition of the finding of wilful disturbance of any supply or service has not been considered in the decision referred to above. "There is only cryptic observation that the Rent Controller has ample powers under the Act to order for restoration. It is true that Under Section 34 of the Act the Rent Controller has ample powers for restoration of essential services but he cannot convert proceeding Under Section 31 into one Under Section 34 after finding the opposite party not guilty of the offence Under Section 31. There cannot be any dispute that the Rent Controller has power for restoration of essential services Under Section 34. In my opinion once the complaint Under Section 31 fails, the proper course for the aggrieved party is to make an application before the Rent Controller Under Section 34.
12. From the above, it is clear that the impugned order is illegal and without jurisdiction and this is a fit case for interference under Article 227 of the Constitution even though the petitioner has not availed himself of the alternative remedy by way of appeal.
In the result, the revisional application is allowed and the impugned order is set aside. I make no order as to costs.