- (1.) The only question for determination in this appeal, is whether an offence punishable under S. 24 (2) (4), 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.
(2.) The facts of this case are short and simple. The appellant is the owner, by purchase is 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 those premises, at a monthly rent of Rs. 20 including water rate of Rs. 2. After the appellant'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 neighbouring tenant. Thirumal Rao died in or about the year 1950, and his widow, respondent 1, 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/- from respondent 1 without giving her the benefit of water supply from the municipal tap. The Act came into force on 13th February 1948. The tenancy appears to have been recorded in her name some time in 1951. Nothing appears to have happened until April, 1954, when respondent 1 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 respondent 1's complaint by a letter dated 24th May 1954, saying that the water connection could be restored on payment of Rs. 11/4/- only, 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 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 14th June 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 24th March 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 imprisonment. 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 22nd April 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 16th May 1955. Thereafter, the appellant moved this Court for special leave which was granted on 10th October 1955. Hence, this appeal.
(3.) 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 sub-s. (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 service and that it was cut off or withhold 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 thereafter 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 sub-s. (1) shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both. Explanation I. - In this section essential supply or service includes supply of water, electricity, lights in passages and on stair cases, lifts and conservancy or sanitary service. Explanation II. - For the purposes of this section, withholding any essential supply or service shall include acts or omission 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 I, 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 I. 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, 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.;