GOBINDA CHANDRA MONDAL Vs. SAMARENDRA NATH KUNDU

JUDGEMENT

(1.) THE petitioner is the landlord and the opposite party is the tenant in respect of the first floor of the premises ho. 35, Paikpara Row at a monthly rent of Rs. 275/ -. The petitioner instituted an ejectment suit against the O. P. tenant being T. S. No. 681 of 1976 in the 1st Court of Munsif at Sealdah. The tenant made an application under Section 17 (2) and 17 (2a) of the West Bengal Premises Tenancy Act, 1956 and relying upon a decision of this court in P. K. Roy vs. Smt. Bimala Mukharjee, reportedin 1976 CHN 666, the learned Munsif held that because of deliberate stopage supply of water by the landlord the tenant was entitled to abatement of rent to the extent of rs. 60/- per month from November 1974 out of the monthly rent of Rs. 2 75/- and that the said abatements of monthly rent was to continue until restoration of the supply of water. The tenant opposite party made an application under section 31 of the West Bengal Premises Tenancy Act, 1956 before the learned Rent Controller Calcutta being R. C. Case No. 622 of 1974. During the pendency of the said proceeding the tenant opposite party also lodged a complaint against the petitioner-landlord under Section 430 I. P. C. before the learned Sub-Divisional Judicial Magistrate, Seal being Case No. C730 of 1980 alleging the self-same offence of deliberate cutting off supply of stater. The petitioner was found not guilty and acquitted of the charge under Section 430 of the Indian Penal Code in the said complaint Case No. C-730 of 1980 under Section 430 I. P. C. In the R. C. Case NO. 622 of 1374 under Section 31 of the west Bengal Premises Tenancy Act, the petitioner was found not guilty and acquitted but the learned Rent Controller was pleased to direct the landlord to restore normal supply of water to the disputed premises within 15 days from the date of the order. In an execution proceeding of the order of the learned Rent Controller dated 27. 4. 87, the learned rent Controller by an order dated 12. 10. 90 allowed the prayer of the presented O. P. for arrest and detention of the present petitioner in Civil prison and directed that Warrant of arrest would be issued upon deposit of subsistence allowance amounting to Rs. 100/- by the present opposite party for detaining the present petitioner in Civil prison with the undertaking ho deposit further amount towards subs is intence allowance, if necessary. , The orders dated 27. 4. 87 and 12. 10. 90 are subject matter of challenge in this revisional application.

(2.) MR. Ghosh, learned Advocate. for the petitioner has strongly contended that the landlord petitioner having been prosecuted and acquitted by the learned Magistrate of the charge under Section 430 I. P. C. by his order dated 9. 3. 85 in the complaint case No. C-730 of 1980 filed by the tenant opposite party, the subsequent trial of the petitioner under section 31 of the West Bengal [premises Tenancy Act is null and void being in violation of Article 20 (2) of the Constitution of India and consquently the direction for restoration of the water supply cannot be given effect to and, therefore, the impugned order dated 12. 10. 90

(3.) MR. Bhattacharjee, the learned Advocate for the opposite party has raised a preliminary objection as to the maintainability of the present revisional application inasmuch as the present petitioner preferred a similar revisional application against the in putted orders being Criminal Revisional Case No. 1 753 of 1987 which was dismissed by this court and the present application amounts to review of the order passed in that case which is not permissible in view of the provisions of Section 352 of the Criminal Procedure code. He has further contended that the plea of "atrefois convict" or the plea of double jeopardy as incorporated in Article 20 (1) of the Constitution is not available to the petitioner inasmuch as he was acquitted and not punished in the previous criminal case;