- (1.) In these two cases arising out of two petitions under Art.227 of the Constitution filed by the same landlord as petitioner a common question of law has arisen for decision. The question is : whether or not in cases of entertaining complaints of interference with supply of water in a tenanted premises contemplated under S.31, West Bengal Premises Tenancy Act, 1956, (hereinafter to be referred to for the sake of brevity as the Act) the Rent Controller is obliged to strictly follow the procedure laid down in Ss.200 to 204, Cr.P.C. (hereinafter to be referred to as the Code for the sake of brevity). The question has arisen in the facts and circumstances stated below :- Messrs Jenson and Nicholson India Ltd. a Company incorporated under the Companies Act hired two flats in premises No.3E, Camac Street under the petitioner landlord for occupation by two of its Officers. The detailed description of the flats and the officers who were allowed to occupy the flats on behalf of the company have been given in the two petitions. It was alleged that the landlord had interfered with supply of water to the flats. Two applications under S.31 of the Act were accordingly filed. The first one was filed on 20-5-77 giving rise to Rent Control Case No.252 of 1977 before the Rent Controller, Calcutta and the second was filed on 31-5-77 giving rise to R.C. Case No.269 of 1977. At the time of entertainment of the application in the first mentioned case the officer in occupation of the flat made a statement on solemn affirmation and the Rent Controller by his order dt. 20-5-77 ordered issue of summons. Similarly in the second case the Officer in occupation of the flat named in the petition made a statement on solemn affirmation and the learned Rent Controller made a similar order for issue of summons on 2-6-77. Notice of the cases having been served on the landlord he took objection to the proceedings on the ground that the officers legally competent to represent the company did not sign and verify the petitions, and did not execute Vakalatnama : the officers making statements on solemn oath were incompetent to depose in support of the complaints made and the Rent Controller did not follow strictly the procedure prescribed by Ss.200 to 204 Cr P.C., and that subsequent to entertainment of the petitions Rent Controller wrongly took into consideration Inspector's report contrary to S. 202, Cr.P.C. The Rent Controller by his similar orders passed on 10-4-80 overruled the objections raised. In the aforesaid premises the landlord has come up before this Court calling in question the correctness of the learned Rent Controller's orders and also praying for quashing the proceedings pending before him.
(2.) Mr. Sumit Moitra, the learned Advocate for the landlord petitioner draws my attention to the case of Sethia Property reported in AIR 1961 Cal 199 and contends that it was clearly held that rules under the Act in so far as they required inquiries into offences under the Act by the Rent Controller according to Civil Procedure Code were ultra vires. Thereafter R.10 of the Rules framed under the Act has been amended. The relevant portion of R.10 reads as follows :- "10. In making enquiries under the Act, the Controller shall follow, as nearly as may be, the procedure laid down - (a) in the case of enquiries relating to offences, in the Cr.P.C., 1898, for the trial of cases, and........." Relying on the case of Durga Dutta v. State reported in 54 Cal WN 916 : (AIR 1951 Cal 2) he contends that a complaint referred to in S.30(1) of the Act means a complaint as contemplated in the Code. On the basis of the above assumption he relies on some observations made in para 21 of the judgment in the case of Mathura Prasad v. Kanailal Mullick reported in AIR 1968 Cal 170 at p.173 (1968 Cri LJ 478 at p.481) to the effect that a proceeding under the Act is a criminal proceeding governed by the Cr.P.C. In the above premises Mr. Moitra contends that the learned Rent Controller not having strictly followed the procedure prescribed for entertainment of complaints as prescribed by Ss.200-204 of the Code, his order must be struck down as wrong and the entire proceedings should be quashed. To fortify his arguments, Mr. Moitra draws my attention to the observations recorded under the heading "procedure to be followed" under S.31 of the Act in Susanta Kumar Sen's Commentary on the Act.
(3.) The arguments of Mr. Moitra, to my mind are totally unacceptable. First of all, I will note that although the word "complaint" has been used in S.31 of the Act yet the Rent Controller has not been invested with the powers of a Magistrate. There is nothing in the Act to indicate that the Rent Controller has been deemed to be a Magistrate, except under S.32 and that at a very late stage in connection with recovery of fine imposed as penalty. The conclusion is therefore inescapable that the Rent Controller does not and cannot exercise powers of a Magistrate. If the Rent Controller does not function as a Magistrate it follows necessarily that he is not obliged to comply with provisions of Ss.200, 201, 202 and 204 of the Code which prescribe various duties for Magistrates exclusively in connection with entertainment of complaints. The Rent Controller, it should not be forgotten is neither a Court nor a Magistrate, he is simply a persona designata.;