ORDER
Anand Prasad Sinha, J.
1. This is an application for quashing of the order dated 16-1-1982, taking cognizance, under Section 25. Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as the Act) in case No. 18 (M) 82/Tr. No. 1952/82 by the learned Chief Judicial Magistrate, Patna.
2. The facts, leading to the present prosecution, are briefly stated here-under :
The petitioner was a tenant occupying the ground floor of house No. 207, situate at Patliputra Colony, Patna, belonging to Dr. S. M. Hussain, who is opposite party No. 2 (hereinafter referred to as the landlord). The relationship of landlord and tenant is an admitted fact.
3. The landlord had filed an application for the fixation of fair rent of the concerned portion of the building occupied by the tenant, under S . 5 and 8 (b) of the Act, which was registered as B. B. C. Case No. 426 of 1980. The learned House Controller by his order dated 28-11-1980, had fixed the fair rent at Rs. 970/- per month with effect from 20-5-1980, which was the date of filing of the application.
4. The petitioner preferred an appeal before the learned Collector against that order of fixation of fair rent and it appears that the operation of the order fixing the fair rent by the learned House Controller was stayed by the learned Collector. However, the aforesaid stay order was ultimately vacated by the Collector on 6-7-1981. It appears that the appeal is still pending.
5. Even after the fixation of the fair rent, the petitioner had remitted the house rent at the rate of Rs. 600/- per month only and that was refused by the landlord as being not the valid and legal rent as determined by the House Controller.
6. Thereafter, the landlord had filed an application before the House Controller on 10-11-1981 for the prosecution of the petitioner under Section 25 of the Act. That application was registered as BBC Case no. 285 of 1981. The learned House Controller had issued notice to the petitioner and had asked for show cause. The petitioner did not file any such show cause.
7. That being so the House Controller had filed a complaint against the petitioner for taking cognizance for the offence under Section 25 of the Act, which is annexed and marked as annexure-1 to this application. The relevant portion of the complaint, which can be said to be the basis for the prosecution mentioned in paras 6 and 7 of the complaint petition (annexure-1) is as follows :–
“6. As the aforesaid accused violated and defied the order dated 28-11-1980 passed by the House Controller, by not paying the fair rent to the landlord, Dr. S. M. Hussain filed an application on 10-11-1981 before the House Controller which was numbered as Bihar Building Control Case No. 285/81 for taking action under Section 25 of the Act. Show cause notice was accordingly issued to the accused on 4-12-1981 by me but, in spite of service of the notice the aforesaid accused did not care to appear before me nor showed any cause on the date fixed i. e. 29-12-1981.
7. That the accused by violating the provisions of this Act and defying the order passed on 28-11-1980 by the House Controller has rendered himself liable to be punished under Section 25, Bihar Building Control Act.”
On the complaint, as stated above, cognizance has been taken, which is under challenge in the case in hand.
8. One relevant fact deserves mentioning is that the petitioner had also filed a revision application before the learned Sessions Judge, which was registered as Criminal Revision. No. 238 of 1982. That revision application had been disposed of on 7-7-1982 by the learned Additional Sessions Judge VI, Patna, and the revision application had been dismissed and thus the order of cognizance remained unaltered.
9. Mr. B. K. Prasad, learned counsel appearing on behalf of the petitioner, has submitted that the fixation of fair rent, neither being a direction nor nonpayment of the rent on the basis of the fair rent fixed, can be said to be a contravention of any of the provisions of the Act and therefore, the impugned order of cognizance is bad in law
10. Mr. S. S. Hussain, learned counsel appearing on behalf of opposite party 2, has urged that the order of the fixation of fair rent and thereafter electing a date will amount to giving a direction and that being so, non-payment of the rent after fixation of the fair rent will fall under the ambit of the offences for non-observance of the direction and thus punishable under Section 25 of the Act.
11. It will be relevant to quote Section 25 of the Act, which is as follows :–
“25. Penalties :– (1) If any person contravenes any of the provisions of this Act, he shall, except as otherwise provided in Section 17 be punishable with imprisonment for a term which may extend to two years or fine or with both.
(2) Whoever fails to comply with any direction made or deemed to have been made under this Act shall be punishable with imprisonment for a term which may extend to one year or with fine or with both :
Provided that the Court trying any offence under this section may order the whole or any part of the fine recovered to be applied to the payment to any person of compensation for any loss caused by the offence.”
Therefore, from reading of Section 25 of the Act, there appears to be only two situations under which this penal clause is attracted and they are (i) contravention of any of the provisions of this Act and (ii) in case of failure to comply with any direction made or deemed to have been made under this ‘Act’.
12. That being so. it will be essential to examine as to whether any order passed fixed a fair rent and non-payment bv the tenant thereafter can be said to be a contravention of the provisions of the Act or disobedience of any direction.
13. While examining this aspect, it may be clearly stated that absolutely there is no provision in this Act compelling any tenant to pay the rent or a fair rent even. Rent has not been defined in the Act. The fair rent has been defined under Section 2 (e) of the Act which is as follows ;–
” ‘fair rent’ means the rent of a building determined or redetermined under Sections 5, 6 or 7.”
Therefore, from the definition it is apparent that determination of the fail rent is simply a declaration of the fair rent. This is also apparent from the provisions of Sections 5, 6 , and 7 of the Act which are relevant in the subject matter of determination of fair rent.
14. In continuation of the provisions for determination of fair rent, the 4th proviso to Section 8 of the Act lays down that in any case in which the fair rent is determined under Section 5 or 6, the fair rent shall not take effect from any date earlier than three months prior to the date on which the application was made or, as the case may be, the proceedings were started by the Controller on his own motion.
15. Accordingly, the date fixed by the learned House Controller to which the fair rent is to be effective is also simply a declaration, which appears to be a necessary order as a part and parcel of the main order determining the fair rent or declaring the fair rent.
16. It will be necessary to illustrate as to what actually is meant by contravention of any of the provisions of this Act or disobedience of the directions warranting a penal action as contemplated under Section 25 of the Act.
17. Section 3 of the Act puts a legal bar on certain conduct of the landlord or any person in the category of the landlord. Section 3 of the Act reads as follows :–
“‘3. Premium. Salami, fine or advance of more than one month’s rent not to be claimed or received — It shall not be lawful for any person to claim or receive, in consideration of the grant, renewal or continuance of a tenancy of any building, the payment of any premium ‘salami’, fine or any other like sum in addition to the rent, or the payment of any sum exceeding one month’s rent of such building as rent in advance.”
18. Therefore, it will appear that the law has prohibited for claiming or receiving any premium, salami, fine or any other like sum in addition to the rent or payment of any sum exceeding one month’s rent of the building as rent in advance.
19. This prohibition is a legal prohibition and in case any act is done contrary to the forbidden act, in the provision of Section 3 of the Act, it shall not be lawful, meaning thereby that, that will amount to contravention of the provisions of Section 3 of the Act. Thus, this comes under the ambit of Section 25 of the Act.
19A. Section 10 of the Act also deserves mentioning, while examining this aspect, which runs as follows :–
“10. Direction for repairs to buildings — (1) Every landlord shall carry out the repairs which he is bound, under any law, contract or custom, to make to a building in the possession of a tenant.
Explanation :– In the sub-section, ‘repairs’ include annual whitewashing recolouring and periodical repairs.
(2) If the landlord fails to carry out annual whitewashing, recolouring and periodical repairs, which he is bound to make, the tenant may by notice require him to carry out same within one month from the date of service of the notice and, oh the landlord’s failure to do so within the said period, the tenant may himself carry out the same at a cost not exceeding one month’s rent for the building and deduct such cost from the rent.
(3) If the landlord neglects to carry out any repairs, other than those referred to in Sub-section (2), which he is bound to make, the Controller shall, on application by the tenant, which shall specify approximate cost of such repairs, cause a notice to be served on the landlord to appear and show cause, within such time as may be fixed, against the application.
(4) If the landlord does not appear in obedience to the notice or if he appears but fails to satisfy to Controller as to why he should not be directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Controller shall, after making such further inquiry as may be necessary, direct him to carry out the same within a time to be fixed: and on the landlords failure to comply with such direction, the Controller may permit the tenant to carry out such repairs at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord. It shall thereafter be lawful for the tenant t° make such repairs and to deduct the cost thereof from the rent or to recover it otherwise from the landlord, as if it were a debt due to him by the landlord :
Provided that no order for the carrying out of repairs under this sub-sec-tion shall be made, if the Controller is satisfied that the repairs involved were due to the negligence of the tenant.” Apart from the fact that under certain circumstances the tenant has been given a right to do the periodical repairs. In case of other repairs, there is a provision as laid down in Sub-section (4) of Section 10 of the Act that the Controller is competent to give a direction to carry out certain repairs. In case of failure on the part of the landlord to follow that direction, permission can be accorded to the tenant to carry out the repairs, but at the same time, that will also amount to disobedience of the direction of the House Controller thus punishable under Section 25 of the Act.
20. Another provision worth mentioning is Section 11 of the Act. It reads as follows :–
“11. Landlord not to interfere with amenities by the tenant — (1) No landlord shall, without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenant.
(2) A tenant in possession of building may, if the landlord has contravened the provisions of Sub-section (1) make an application to the Controller complaining of such contravention, pending consideration of his application by the Controller.
(3) If the Controller, on enquiry, is satisfied that the landlord has without just or sufficient cause cut off or withheld any of the amenities enjoyed by the tenant at the time of the commencement of the tenancy or at any time thereafter, he shall :–
“(i) in case such amenity has already been restored by the tenant, make an order directing the landlord to pay to the tenant the cost of such restoration as determined by him within such time as may be specified in the order; and
(ii) in any other case, direct the landlord to restore such amenity at such cost and within such time as may be determined by him and also that in case the landlord fails to do so, the amenity may be restored by the tenant at his own cost and such amount as may be specified in the order may be recovered by the tenant as the cost of the restoration either by adjustment towards the rent payable by him or as if the amount were a debt due to him by the landlord.
Explanation :– In this section ‘amenities’ include supply of water, electricity, lights in passages and on staircases, lifts and conservancy or sanitary service.”
It will appear that no landlord is permitted in law, as contemplated under the provisions of this Act, to cut off or withhold any of the amenities enjoyed by the tenant. Therefore, in case it is found that without just or sufficient cause, the amenities have been cut off, a landlord becomes liable for prosecution under Section 25 of the Act, because that will amount to contravention of the provisions of Section 11 of the Act.
21. Sub-clause (ii) of Section 11 (3), quoted above, lays down a provision by which the House Controller is competent to give a direction to the landlord to restore such amenities and even then, if restoration of the amenity is not effected, that will amount to disobedience of the direction of the House Controller punishable under Section 25 of the Act.
22. Therefore, on the basis of the discussions made above, a distinction is apparent between the orders passed for fixation of the fair rent and nonpayment of that rent by the tenant and contravention of any of the provisions of the Act and failure to follow the directions of the House Controller.
23. If a fair rent is fixed and there is non-payment of the same, under certain circumstances, the tenant becomes liable for eviction and also a landlord is entitled to recover the fair rent, not paid by the process of civil suit and, I am afraid, this conduct of the tenant shall not fall under the ambit of penal consequences as contemplated under Section 25 of the Act.
24. That being so, the impugned order of cognizance is patently without any basis whatsoever and cannot be supported in the eye of law.
25. With regard to the objection that a revision had already been filed before the learned Sessions Judge, the present application cannot be said to be maintainable, I am not inclined to agree with this contention because the impugned order of cognizance is misconceived and not based upon any offence having been committed giving rise to such an order of cognizance. The order of the learned Additional Sessions Judge is patently not correct at all.
26. Both the order of cognizance and the order of the learned Additional Sessions Judge have given rise to an extraordinary circumstance which is a compelling situation making it desirable for interference in the ends of justice.
27. In the result, the application is allowed. The impugned order of cognizance and the criminal prosecution subsequent thereto is hereby quashed.