Decided on September 12,1972



- (1.) THIS appeal raises a short question to the true interpretation of Section 24 of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947, hereinafter referred to as "the Rent Act". There is practically no dispute about the facts. Building known as 'calcot House' belonged once upon a time to Sir Cavasji Jahangir. It is a three storied building. The respondents hereinafter referred to as the "complainant" have been occupying the whole of the third floor as tenant from the year 1936 on payment of monthly rent of Rs. 188. 71. A lift had been installed in the building even before the complainant became the tenant. This lift stopped working with effect from 13-12-1965 by which time Sir Cavasji Jahangir had ceased to be the owner and Messrs, Onkar Investment and Properties Limited had become owners instead. The complainant called upon the said owners-Landlords to repair the lift and get the operation of the same restored. Owners seem to have pleaded their inability to comply with the requisition, as it involved an estimated expenditure of about Rupees 10,000/-, and wanted the complainant to share the burden- The complainant, however, was not agreeable to the same and insisted that the lift being an essential service, he was entitled to get it restored under the provisions of the Rent Act. In the meanwhile, accused No. 1 purchased the property under a registered sale deed on 1-6-1968. Accused Nos. 2 to 5 are admittedly the Directors of accused No. 1 Limited Company. The complainant called upon the accused also to restore the services of the lift. Ultimately on 29th April 1969 a complaint was lodged by the tenant before the Presidency Magistrate for offence under Section 24 (1) read with Sub-section (4) of the said Act. On that very day the complainant also filed an application before the Small Causes Court under Section 24 (2) and (3) of the said Act for restoration of the said service of lift, which is still pending.
(2.) AMONGST other defences, the accused contended that they had neither cut off nor withheld the said services and that the operation of the lift was stopped due to mechanical defect, as also due to change of D. C. current and substitution of A. C. current therefor by the B. E. S. T. since 1965- Accused No. 4 pleaded that the services of the lift cannot be restored without replacement of the new lift involving the expenditure of about Rs. 50,000/ -. They also contended that the complainant was not enjoying these services on the date, when they purchased the property. By his order dated 31st August 1970 the learned Magistrate found the accused guilty and convicted them for offences under Section 24 (4) of the Rent Act and sentenced accused No. 1 to pay a fine of Rs. 201/- and accused Nos. 2 to 5 to pay a fine of Re. l/ -. in default simple imprisonment for two days. Legality of this conviction and sentence is challenged in this appeal.
(3.) VALIDITY of their conviction in the present case depends upon the true interpretation of Sub-section (1) of Section 24 of the Rent Act, which is as follows : 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. Thus before any offence can be said to have been committed by the landlord it shall have to be established, firstly, (1) that there are premises let out by the landlord to the tenant; and secondly, (2) that essential supply or service was enjoyed by such tenant; and thirdly. (3) that any such essential service was cut off or withheld, and fourthly, (4) that the landlord has done so himself or through any person acting or purporting to act on his behalf; and fifthly. (5) that this was done without just or sufficient cause. It is not in dispute' in the present case that the lift stopped operating because of some mechanical defect therein developed due to its wear and tear in ordinary course and also because of the substitution of the A. C. current in place of D. C current by the Bombay Electric Supply and Transport undertaking, the supplier of electrical energy in Bombay. On these admitted facts it should be difficult to hold that the landlord cut off or withheld the essential service of lift and deprived the tenant of such service by any act or omission on his or their part. The lift stopped working due to none of their acts or omissions. Some act of volition is implicit in the phraseology of the words 'cut off' or "withhold". Without any conscious, deliberate and voluntary act or omission on the part of the landlord, essential service of lift cannot be said to have been "cut off' or "withheld" by the accused. He cannot be held liable, where stoppage of lift is due to the mechanical defect or to wear and tear of the machinery in the ordinary course or to the change of policy of the B. E. S. T. with regard to the supply of electrical energy. Tenant, no doubt, stands deprived of the service of lift. But such deprivation by itself is not made penal under this section. Before the landlord is held guilty, some act or omission of his own volition must be found to have taken place which can be said to have caused the stoppage of the lift. Third and fourth ingredients of the offence are totally absent in this case. This by itself was sufficient to acquit the accused and hold that the accused had not either cut off or withheld the essential service with regard to the lift and the question of conviction of the accused on these admitted facts and the plain wording of Section 24 (1) of the Act should not have arisen. ;

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