Kanaiyalal Chandulal Monim vs Indumati T. Potdar and Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 65 of 1956

Decision Date: 20 February, 1958

Coram: Bhuvneshwar P. Sinha, Syed Jaffer Imam

In the matter titled Kanaiyalal Chandulal Monim versus Indumati T. Potdar and Another, judgment was delivered on 20 February 1958 by a Bench of the Supreme Court of India comprising Justice Bhuvneshwar P. Sinha, Justice Syed Jaffer Imam and Justice Subbarao K. The petition was filed by the appellant, Kanaiyalal Chandulal Monim, and the respondents were Indumati T. Potdar and another individual. The case was reported in the law reports as 1958 AIR 444 and 1958 SCR 1394. The legal issue arose under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (Bombay LVII of 1947), specifically Section 24, which deals with the prohibition on landlords withholding essential supplies or services to tenants without just cause. The provision reads: “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.” Explanation 11 further clarifies that “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 Section 24 of the aforesaid Act following a complaint lodged on 14 June 1954 by the first respondent, who was a tenant in the premises owned by the appellant. The complaint alleged that the appellant had refused or failed to arrange for a water connection to the premises. The municipal water supply to the premises had been discontinued in 1947 because the predecessor-in-title of the appellant had defaulted on payment of municipal taxes. Despite this disconnection, the tenants, including the first respondent, continued to occupy the premises without access to municipal water. In defending the conviction, the appellant argued that he could not be held liable for the default committed by his predecessor-in-title, and moreover contended that Section 24 was inapplicable because the first respondent was not enjoying municipal water supply at the time the Act came into force. The Court held that, although the appellant was not directly responsible for the original cessation of water supply, he possessed the authority to have the supply reinstated by paying the prescribed municipal fee. By failing to take that step, his omission fell within the scope of Explanation 11 to Section 24, rendering him liable for withholding an essential supply as defined in Section 24(1). The Court further observed that Section 24 requires that the essential supply be made available to the tenant at some point while the Act is in force; since the first respondent never enjoyed municipal water after the enactment, the appellant could be convicted under the statutory provision.

The appeal was filed in the criminal appellate jurisdiction under special leave from a judgment and order dated 22 April 1955 of the Bombay High Court in Criminal Revision Application No 449 of 1955. The revision arose from a judgment and order dated 24 March 1955 of the Presidency Magistrate, Seventh Court, Dadar, Bombay, in Case No 215/S of 1955. Counsel for the appellant represented the appellant, while counsel for the first respondent and counsel for the second respondent appeared for the respective respondents. The judgment was delivered on 20 February 1958 by Justice Sinha. The sole issue for determination was whether an offence punishable under section 24(1)(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947 had been established against the appellant.

The factual background was concise. The appellant had purchased, in 1945, certain premises located in Vile Parle, Bombay. Under the appellant’s predecessor-in-title, a tenant named Thirumal Rao Potdar occupied a room in those premises at a monthly rent of Rs 20, which included a water rate of Rs 2. After the appellant acquired the property, the same tenant continued to occupy the room on the identical terms. The premises formerly benefitted from a municipal water supply. However, the predecessor-in-title had defaulted on municipal taxes, resulting in the municipality disconnecting the water supply in early May 1947. Consequently, the tenants, including Thirumal Rao, were forced to obtain water from a well belonging to a neighbouring tenant. Thirumal Rao died around 1950, and his widow, identified as the first respondent, remained in occupation of the premises. She continued to pay the original rent plus an additional ten annas as a permitted increase, despite not receiving municipal water. The appellant thus received a monthly rent of Rs 20-10-0 from the first respondent while withholding the municipal water supply. The Act became operative on 13 February 1948, and the tenancy appeared to have been recorded in the widow’s name sometime in 1951. No further action occurred until April 1954, when the first respondent complained to municipal authorities that the municipal water had been discontinued since 1947. The municipality replied on 24 May 1954, stating that the water connection could be restored upon payment of Rs 11-4-0, provided the landlord’s consent was produced. Before the municipal response was received, the tenant obtained a letter, sent through a pleader, addressed to the appellant and requesting him to…

In the present dispute the tenant demanded that the landlord return Rs 72, which represented the amount charged for water supply at a rate of Rs 2 per month for three years after the tenancy had been recorded in her name. The tenant’s letter further alleged that the landlord had caused the municipal authorities to disconnect the water connection on the ground of unpaid municipal dues, thereby withholding the water supply. The tenant warned the landlord that, unless he restored the water connection, prosecution under section 24 of the Bombay Tenancy Act would be pursued. Because the landlord either refused or failed to have the water connection restored, the tenant lodged a petition of complaint on 14 June 1954 seeking the landlord’s prosecution under section 24. The magistrate of the Seventh Presidency Court at Dadar tried the case and, by judgment and order dated 24 March 1955, convicted the landlord. The conviction was accompanied by a sentence of one day’s simple imprisonment and a fine of Rs 150, with the provision that failure to pay the fine would result in an additional month of simple imprisonment. The landlord then appealed to the High Court of Bombay by filing a revision against the conviction and sentence. A single judge of that court dismissed the revision by order dated 22 April 1955. Subsequently the landlord applied to the High Court for a certificate authorising an appeal to this Court, but a Division Bench denied the certificate on 16 May 1955. Thereafter the landlord petitioned this Court for special leave to appeal, a request that was granted on 10 October 1955, bringing the present appeal before the Court. The counsel for the landlord advanced numerous arguments contesting both the conviction and the sentence, yet the Court considered it unnecessary to address each argument in detail. The principal issue for determination was whether the factual matrix satisfied the essential elements of the offence defined in section 24(1) of the Act. Section 24(1) reads: “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.” Subsection (2) provides that a tenant may apply to the Court for a direction to restore such supply or service if the landlord has contravened subsection (1). Subsection (3) states that, upon finding that the tenant has been enjoying the essential supply or service and that it was cut off or withheld by the landlord without just or sufficient cause, the Court shall order the landlord to restore the supply or service by a specified date. The provision further empowers the Court to impose a daily fine for continued non-compliance, and subsection (4) prescribes that any landlord who contravenes subsection (1) may be punished on conviction with imprisonment of up to three months, a fine, or both. The explanations to the section clarify that “essential supply or service” includes water, electricity, lighting in passages and staircases, lifts and sanitary services, and that withholding such a supply or service also encompasses acts or omissions by the landlord that lead a local authority or other competent authority to discontinue the supply.

The Court observed that the provision states that a landlord who fails to restore the essential supply or service by the date specified in the order shall, for each day that the default continues, be liable to a fine that may extend to one hundred rupees, upon a further direction of the Court. It further noted that subsection (4) provides that any landlord who contravenes subsection (1) shall, on conviction, be punishable with imprisonment for a term that may extend to three months, or with a fine, or with both. Explanation I to the section defines “essential supply or service” to include the supply of water, electricity, lighting in passages and staircases, lifts, and conservancy or sanitary service. Explanation II clarifies that, for the purposes of the section, the withholding of any essential supply or service also covers acts or omissions by the landlord that cause the essential supply or service to be cut off by the local authority or any other competent authority. The Court pointed out that Explanation II was inserted by section 16(2) of the Amending Act, namely Bombay Act 61 of 1953, while Explanation I, as it now stands, was the sole explanation before the amendment was enacted.

The Court noted that it had not been contested before it that the supply of tap water constitutes an essential supply, as clarified by Explanation I, and that this point was beyond dispute. The dispute, the Court explained, concerned the circumstance that municipal water had been cut off by the Municipality because of a default in the payment of municipal dues by the appellant’s predecessor in title. The Court acknowledged that the appellant might not have been directly responsible for the arrears in municipal dues; however, it held that the appellant had the power to pay the amount of Rs 11-4-0 and thereby obtain restoration of the water connection. Even if the appellant was not directly responsible for the actual cut-off, the Court reasoned that his failure to make the payment was an omission attributable to him within the meaning of Explanation II, which was inserted into the Act in 1953. Consequently, the Court concluded that there could be no doubt that the appellant continued to withhold an essential supply as defined by section 24 as it stood in 1953.

Nevertheless, the Court emphasized that this was not the sole element required to establish the offence under section 24. In addition to the landlord’s omission, the offence required that the essential supply—here, the tap water supplied by the Municipality—must have been enjoyed by the tenant. The Court posed the question whether it was sufficient that the tenant had enjoyed the essential supply at any remote past time, or whether the enjoyment must have occurred at any time after the Act came into force. Assuming for the purposes of its decision that the first respondent was the tenant at all material times, the Court held that the statutory language makes it essential that the particular essential supply must have been available for the tenant’s use at some time while the Act was in force. This requirement, the Court explained, precludes an interpretation that would render the landlord’s act penal only because of a later legislative enactment, which would amount to ex post facto legislation and would contravene the prohibition in Article 20(1) of the Constitution.

In this case the Court observed that the statutory requirement was that the essential supply must have been available for the tenant’s use at some time when the Act was in force. If the provision were interpreted to mean that the supply need only have been enjoyed at some remote time before the Act came into effect, then the landlord’s omission would not have been punishable at the time it was committed, but would become punishable only after the Act became operative. Such an approach would amount to ex post facto legislation, which the Court could not accept as the intention of the Legislature, because it would fall within the prohibition of Article 20(1) of the Constitution. The counsel for the respondent argued that the term “enjoyed by the tenant” in section 24 does not necessarily require the tenant to have physically used the water supply; rather, it is satisfied if the tenant possessed a vested right to call for that supply. According to that construction, because the first respondent held the right to obtain water, the requirement of “enjoyment” would be deemed fulfilled and both ingredients of section 24 would be satisfied. The Court found that stretching the language of the section to treat “enjoyed” as meaning merely “had the right to enjoy” was not consonant with the wording chosen by the Legislature. If the Legislature had intended such a meaning it would have expressed it differently. This conclusion is reinforced by the language of sub-section (3) of the same section, which speaks of a tenant who “has been in enjoyment of the essential supply or service and that it was cut off or withheld by the landlord.” The phrasing clearly refers to a recent enjoyment that was interrupted by the landlord, not to an enjoyment that occurred in the remote past. Had the Legislature intended the enjoyment to be any past occurrence regardless of when the Act commenced, it would have used alternative words. The argument that sub-section (1) stands alone and need not be read in conjunction with sub-sections (2) and (3) was also raised. However, the Court noted that sub-section (2) cannot operate unless the landlord has first contravened the condition laid down in sub-section (1). Consequently, the provisions of section 24 must be read together as a whole to ascertain the Legislature’s true intention.

In determining the Legislature’s true intention, the Court observed that it was uncertain whether, before the insertion of the second explanatory clause in 1953, the interruption of water supply by the Municipality or the landlord’s failure to restore that supply would have fallen within the scope of the penal provision. The Court questioned whether, in the absence of that explanatory clause, the prosecution could treat the municipal disconnection and the landlord’s subsequent refusal to re-establish the connection as an act or omission attributable to the landlord under section 24(1). It was emphasized that the purpose of section 24 was to provide an additional safeguard for tenants, ensuring the continued enjoyment of rights that arose from the tenancy agreement in addition to those granted by general law. The provision was intended not only to penalise a landlord for interrupting any essential service but also to empower a tenant, under subsections (2) and (3), to obtain a court order compelling the landlord to restore the service by a specified date, with failure to comply attracting recurring fines. The Court characterised these measures as exceptional, designed to operate for a limited period during which the Legislature deemed such extraordinary remedies necessary and appropriate. Because these remedies limited the landlord’s freedom of action, the Court held that they must be interpreted strictly according to the exact language used by the Legislature, without expanding their meaning. Applying this strict construction, the Court found that the complainant – the first respondent – had not demonstrated that she had enjoyed the municipal tap-water supply at any time after the Act became effective. Since one of the two essential conditions for invoking section 24 was not satisfied, the Court concluded that the offence under section 24(1) had not been established against the appellant. Accordingly, the appeal was allowed, and both the conviction and the sentence were set aside.