# KANAIYALAL CHANDULAL MONIM v. INDUMATI T. POTDAR AND ANOTHER

- **Citation:** [1958] 1 S.C.R. 1394
- **Court:** Supreme Court of India
- **Decided:** 1955-04-22
- **Case number:** Criminal Appeal No. 65 of 1956
- **Bench:** B. P. Sinha, Jafer Imam Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanaiyalal-chandulal-monim-v-indumati-t-potdar-and-another-1425
- **Pages:** 8

## Headnote

Municipal Law-Water Supply-Landlord withholding essential supply-Tenant not in enjoyment after enactment-Conviction
of landlord-Legality-Bombay Rents Hotel and Lodging House
Rates Control Act (Bom. LVll of 1947), s. 24.
Section 24( 1) of the Bombay Rents Hotel and Lodging House
Rates Control Act, 1947, provides: "No landlord either himse![
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."
By Explanation II : "For the purposes of
this section, 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 autliority."
The appeallant was prosecuted under s. 24 of the Bombay
Rents Hotel and Lodging House Rates Control Act, 1947, on J
complaint by the tenant, the first respondent, on June 14, 1954,
for having refused or neglected to have water connection made
for the premises.
The water supply to the premises was cut off
by the Municipality in 1947 due to the default in payment of the
municipal taxes by the predecessor-in~title of the appellant, but
the tenants, including the first -respondent, continued in occupation of the premises without having the use of municipal wator
s11pply.
It was contended for the appellant that his conviction
was invalid because ( 1) he was not liable for the default made
by his predecessor-in-title, and (2) in any case, s. 24 was not
applicable inasmuch as the supply of municipal water was not
en joyed by the first respondent when the Act came into force :
S.C.R.
SUPREME COURT REPORTS
1395
·
Held: (1) that though the appellant might not have been
1958
directly responsible for the cutting off of the supply of municipal
water, it was within his power to get the supply r~stored by the
Kanaiyalal
Municipality on payment of the prescribed fee and m so far as he' Chand11lal Monim
omitted to do so, such an omission was attributable to him within
v.
Explanation II of s. 24 of the Act, and therefore he was with- Indumati T. Potdar
holding iln essential supply within the meaning of s. 24 ( 1 ) of the
and Another
Act;
(2) that under s. 24 of the Act the essential supply shoui<l
have been available for the use of the tenant at some time when
the Act was in force, and as, in the instant case, the first respon·
dent was not in enjoyment of the supply of municipal water at
any time after the coming into effect of Act, the appellant could
not be convicted under that section.
CRIMINAL
APPELLATE
JURISDICTION : Criminal
Appeal No. 65 of 1956.
Appeal by special leave from the judgment and
order dated April 22, 1955, of the Bombay High Court
in Criminal Revision Application No. 449 of 1955,
arising out of the judgment and order dated March 24,
1955, of the Court of the Presidency Magistrate,
Seventh Court, Dadar, Bombay in Case No. 215/S of
1955.
Rameshwar Nath, S. N. Andley and J. B. Dadachanji, for the appellant.
T. Satyanarayan, for respondent No. L
N .. S. Bindra and R. H. Dhebar,
for respondent
No .. 2.
1958. February 20. The Judgment of the Court was
delivered by
·
SINHA J.-The only question for determination in
this appeal, is whether an offence punishable under
s. 24(1)(4) of the Bombay Rents Hotel and Lodging
House Rates Control Act L VII of 1947 (hereinafter
referred to as the Act), has been brought home to the
appellant.
The facts of this case are short and simple. The appellant is the owner, by purchase in 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
Sinha J.
1396
SUPREME COURT REPORTS
[1958]
19ss
those premises, at a monthly rent of Rs. 20 including
.
water rate of Rs. 2.
After the appellant's purchase,
C' Kdanla1y1 ~~
1 • the tenant aforesaid continued to hold the tenancy

## Text

1958
Bui Hfra Devi
and Others
"·
The Official
Assignee of Bt'1nbay
Gajendragadkar J.
1958
February 20.
1394
SUPREME COURT REPORTS
[1958]
of this case, we think that the fair order as to
costs of this appeal would be that the costs should
abide the final result in the appeal before the High
Ccurt at Bombay.
Appeal allowed.
Case remanded.
KANAIYALAL CHANDULAL MONIM
v.
INDUMATI T. POTDAR AND ANOTHER
(B. P. SINHA, JAFER IMAM SUBBA RAO JJ.)
Municipal Law-Water Supply-Landlord withholding essential supply-Tenant not in enjoyment after enactment-Conviction
of landlord-Legality-Bombay Rents Hotel and Lodging House
Rates Control Act (Bom. LVll of 1947), s. 24.
Section 24( 1) of the Bombay Rents Hotel and Lodging House
Rates Control Act, 1947, provides: "No landlord either himse![
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."
By Explanation II : "For the purposes of
this section, 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 autliority."
The appeallant was prosecuted under s. 24 of the Bombay
Rents Hotel and Lodging House Rates Control Act, 1947, on J
complaint by the tenant, the first respondent, on June 14, 1954,
for having refused or neglected to have water connection made
for the premises.
The water supply to the premises was cut off
by the Municipality in 1947 due to the default in payment of the
municipal taxes by the predecessor-in~title of the appellant, but
the tenants, including the first -respondent, continued in occupation of the premises without having the use of municipal wator
s11pply.
It was contended for the appellant that his conviction
was invalid because ( 1) he was not liable for the default made
by his predecessor-in-title, and (2) in any case, s. 24 was not
applicable inasmuch as the supply of municipal water was not
en joyed by the first respondent when the Act came into force :
S.C.R.
SUPREME COURT REPORTS
1395
·
Held: (1) that though the appellant might not have been
1958
directly responsible for the cutting off of the supply of municipal
water, it was within his power to get the supply r~stored by the
Kanaiyalal
Municipality on payment of the prescribed fee and m so far as he' Chand11lal Monim
omitted to do so, such an omission was attributable to him within
v.
Explanation II of s. 24 of the Act, and therefore he was with- Indumati T. Potdar
holding iln essential supply within the meaning of s. 24 ( 1 ) of the
and Another
Act;
(2) that under s. 24 of the Act the essential supply shoui<l
have been available for the use of the tenant at some time when
the Act was in force, and as, in the instant case, the first respon·
dent was not in enjoyment of the supply of municipal water at
any time after the coming into effect of Act, the appellant could
not be convicted under that section.
CRIMINAL
APPELLATE
JURISDICTION : Criminal
Appeal No. 65 of 1956.
Appeal by special leave from the judgment and
order dated April 22, 1955, of the Bombay High Court
in Criminal Revision Application No. 449 of 1955,
arising out of the judgment and order dated March 24,
1955, of the Court of the Presidency Magistrate,
Seventh Court, Dadar, Bombay in Case No. 215/S of
1955.
Rameshwar Nath, S. N. Andley and J. B. Dadachanji, for the appellant.
T. Satyanarayan, for respondent No. L
N .. S. Bindra and R. H. Dhebar,
for respondent
No .. 2.
1958. February 20. The Judgment of the Court was
delivered by
·
SINHA J.-The only question for determination in
this appeal, is whether an offence punishable under
s. 24(1)(4) of the Bombay Rents Hotel and Lodging
House Rates Control Act L VII of 1947 (hereinafter
referred to as the Act), has been brought home to the
appellant.
The facts of this case are short and simple. The appellant is the owner, by purchase in 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
Sinha J.
1396
SUPREME COURT REPORTS
[1958]
19ss
those premises, at a monthly rent of Rs. 20 including
.
water rate of Rs. 2.
After the appellant's purchase,
C' Kdanla1y1 ~~
1 • the tenant aforesaid continued to hold the tenancy
''"" "" momm
h
Th
"d
.
d
.
v.
on t ose very terms.
e sat premises use to enjoy
f,,dumati r. Potdar the amenity of water supply from a municipal tap.
and Anorh.,
As the appellant's predecessor-in-title had made default
Si11/ia J.
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, the first respondent, continued in occupation of the premises, without having
the use of municipal water supply though she continued to pay the orginal rent plus annas IO more by
way of 'permitted increase'. Thus, the landlordthe appellant-went on receiving the monthly rent
of Rs.
20-10-0 from the first
respondent without
giving her the benefit of water supply from the municipal tap. The Act came into force on February 13,
1948. The tenancy appears to have been recorded in
her name some time in 1951. Nothing appears to have
happened until April, 1954, when the first respondent
brought it to the notice of the Municipal authorities
that the supply of water from the municiapal tap had
been stopped since 1947. The Municipality answered
the first respondent's complaint by a letter dated
May 24, 1954, saying that the water connection could
be restored on payment of Rs. 11-4-0 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.C.R.
SUPREME COURT REPORTS
1397
s. 24 of the Act was threatened. As the appellant had
1958
refused or neglected to have the water connection
.
restored, the tenant filed petition of complaint on ch ~"';'ra;,
1 .
June 14, 1954, for the prosecution of the appe!lant
a
"~.
onim
undet s. 24 of the Act. The appellant was convicted Indumati r. Potdar
after a trial by the 7th Presidency Magistrate, Dadar'
and A11other
by.his judgment and order dated March 24, 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 April 22, 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 May 16,
1955. Thereafter, the appellant moved this Court
for special leave which was granted on October 10,
1955. Hence, this appeal.
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 ib 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 ~ub
section (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
Si11haJ.
1398
SUPREME COURT REPORTS
[1958)
I95s
service and that it was cut off or withheld by the
landlord without just or sufficient cause, the Court
K~"",;~·~
1 . shall ·make an order directing the landlord to restore
Chan "~
0"'"' such supply or service before a date to be specified in
Indumati r. Potdar the order.
Any landlord who fails to restore the
and Another
supply or service before the date so specified shall for
each day during which the default continues theres;11ha 1.
after 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-section (1) shall, on conviction, be punishaeJe
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 includ~s supply of water, electricity, lights
in passages and on staircases, lifts and conservancy
or sanitary service.
Explanation 11.-For the purposes of this section,
withholding any essential supply or service shall
include acts or omissions attributable to the landlord
on account of which the essential supply or services
cut off by the local authority or any other competeht
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 bee"
argued, is that the supply of municipal water had
been cut off by the Municipality as a result of the
dafault 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 payiμent
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,
S.C.R.
SUPREME <;OURT REPORTS
1399
in so far as the appellant omitted to do so, such an
1958
omission is attributable to him within the meaning of
explanation II which was inserted into the Act
in
h !~n~i~att1t .
1953. There can, therefore, be no doubt that the c a u a Momm
appellant was continuing to withhold an essential IndumativT. Potda
supply within the meaning of s. 24, as it stood in
and Anotlter
1953.
But that is not the only essential ingredient of the
Sinha J.
offence created by s. 24. In order to attract the provisions of that -section, it is also necessary that the
second ingredient of the offence, should be there,
namely, that that essential supply-tap water supply
by the Municipality-should have been enjoyed by
the tenant. Is it enough that this essential supply
should have been "enjoyed"
by the tenant at
any past time, however remote, or that it should
have been "enjoyed" at any time after the coming
into effect of the Act ?
We are assuming for
the purposes of this decision that the first respondent
was the tenant at all material times.
In our opinion,
the
section
makes it essential that the particular
essential supply should have been available for the
use of the tenant at some time when the Act was in
force.
If, on the other hand, the section were
construed in the sense that the supply should have
been "enjoyed" at some time in the remote past, that
is, before the Act was enforced, the act of the landlord, when it was committed, may .not have been
penal; but the same act would become penal on the
coming into effect of the Act. In that sense, it would
amount to ex post facto legislation, and we
c~nnot
accede to the argument that such was the intention
of the Legislature-an intention which would c~me
within the prohibition of Art. 20(1) of the Constitution.
But it has
been said that the expression "enjoyed
by the tenant"
in s. 24, does not necessarily mean
that the tenant should have physically made use of
the essential supply, and that the requirements of the
section are satisfied if the tenant had the right vested
in him to call for such a supply. In other words, the
argument is that the word "enjoyed" does not
import physical use of the amenity in question, but
1400
SUPREME COURT REPORTS
[1958]
t958
the juridical aspect of it in the sense that the supply
.
of the water, was one of the rights vested in the tenant.
ch!:t"~'f"};
1 . On this construction, if the tenant had, as in this case
• ~.
omm the first respondent had, the right to enjoy the supply
ln4urruzti T. Potdar of water, that would amount to her having "enjoyed"
an4 Another
the supply, and, thus, both the requirements of s. 24
Sinha J.
would be fulfilled. In our opinion, it would be straining
the language of the ~ection to say that
"enjoyed"
should mean "had the right to enjoy". If that was
the intention of the Legislature, those words would
have been different. That this was not the intention
of the Legislature, becomes clear on an examination
of the terms of sub-s. (3) of that section. It speaks of
"the tenant has been in enjoyment of the essential
supply or service and that it was cut off
or
withheld by the landlord"
which imports recent
"enjoyment" until the supply was cut off, /and
not "enjoyment" in the remote past. If the intention was that "enjoyment"
should have been
at any time in the past, irrespective of the consideration when the Act came into force, the Legislature
would have used some other words to indicate that
intention, even assuming that the Legislature could
have done so. But it was suggested that sub-s. (1) of
s. 24, was self-contained, and that it was not necessary to construe its terms in the light of the provisions
of sub-ss. (2) and (3) which go together.
Bl!lt it is
clear from the terms of sub-s. (2) that it cannot come
into operation without the landlord having contravened the provisions of sub-s. (1). Therefore, the provisions
Qf s. 24 have to be construed as a whole, in order to
find out the true•intention of the Legislature.
It may also be pointed out that it is doubtful
whether, before the second explanation was inserted
into the section, as aforesaid, in 1953, the cutting off
of the water supply by the Municipality, or the
omission of the landlord to take steps to have the
connection restored, would have come within the mischief of the penal section. Supposing the second
explanation was not there, could the prosecution attribute the cutting off of the connection oy the Municipality,
and the subsequent refusal of the landlord
S.C.R.
SUPREME COURT REPORTS
1401
to get the connection restored, as an act or omis- ·
1958
sion of the landlord within the meaning of&. 24(1) ?
.
It has got to be remembered that the provisior.s of Ch ~~nal.~>;~~
1 ..
24
b
dd. .
l
h
anuu"' monm.
s.
are me~nt to .e an a
1_hona guarantee tC? t e
v.
tenant, of his contmued enjoyment of the rights Jndumati r. Potdar
created in his favour by the contract of tenancy apart
a;d Another
from his rights under the general law. The landlord
could not only be penalized for having interrupted
the enj e>yment of any one of these essential rights, the
tenant could approach the court under sub-ss. (2) and
(3) of the section, to issue a mandate to the landlord
to restore the supply or the service before a specified
date, the infringement of wh'ich
would entail the
liability to recurring fines until the mandate had been
carried out by the landlord. These are provisions of
an exceptional character, meant to be in force for a
specified period during which the Legislature thought
it advisable and expedient to provide for such extraordinary remedies. Such remedies which are inroads
upon the landlord's freedom of action,
have to be
construed strictly in accordance with . the words
actually used by the Legislature, and they cannot be ·
given an extended meaning.
In view of these considerations, it must be held that
the complainant-the first respondent-has not shown.
that she had enjoyed the amenity of the supply of tap
water from the Municipality at any time after the Act
came into force, and as that is one of the two essential
conditions for the application of the section, it must
be held that the offence under s. 24(1) of the Act, has
not been brought home to the appellant. The appeal
is, accordingly, allowed, and the conviction and
sentence are set aside ..
Appeal
allowed.
M2SC61 X-4