GOPALJI SHARMA Vs. STATE

JUDGEMENT

(1.) The petitioner is a tenant of a house under one Raghunandan Prasad which is situated in Terhi Ghat, police station Khaje-kalan, Patna City. On 21-1-1948, Raghunandan Prasad filed an application before the House Controller for the eviction of the petitioner from that house in the circumstances stated in the petition. The House Controller rejected the petition on 21-7-1948, and the landlord Raghunandan Prasad filed an appeal before the Commissioner against the order of the House Controller. In the meantime the landlord had also filed a money suit on 20-6-1948, for realisation of arrears of rent and obtained a decree. The appeal filed before the Commissioner, came to be heard by the Additional Commissioner who by his order dated 15-2-1949, allowed the appeal; and further made a direction against the petitioner to vacate the house by 25-5-1949. This direction has been disobeyed by the petitioner and he has not yet vacated the house as ordered by the Additional Commissioner. On 31-5-1949, that is, about a week after the expiry of the period allowed to the petitioner for vacating the house, the landlord filed a petition by way of a complaint before the Sub-divisional Officer, Patna City, for the prosecution of the petitioner under Section 20, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. Ultimately, the petitioner was put on trial for an offence under that section and was convicted by a Magistrate and sentenced to six months' rigorous imprisonment as also to pay a fine of Rs. 25, and, in default, to suffer further rigorous imprisonment for two weeks. As against that judgment and order of conviction, the petitioner filed an appeal before the Sessions Judge of Patna, who, while upholding the conviction under Section 20 (2), Bihar Buildings Control Act, 1947, reduced the sentence of imprisonment to-two months and maintained the fine. The petitioner has now come up to this Court in its re-visional jurisdiction.

(2.) Mr. Akbar Hussain for the petitioner has contended that the conviction of the petitioner is entirely illegal for the reason that in the circumstances of the case no prosecution could be under Section 20, Bihar Buildings Control Act, at all. His contention was that Sub-section (2) of Section 20 of the Act makes the non-compliance of a direction made or deemed to have been made under the' Act punishable, and the order of the Additional Commissioner made against the petitioner to vacate the house by a certain date did not amount to a direction within the meaning of Sub-section (2) of Section 20 of the Act. He argued that under Section 17 of the Act every order made by the-House Controller or by the Commissioner on appeal under Section 18 of the Act has been made executable by the Court having jurisdiction to entertain a suit for the recovery of arrears of rent in respect of the building in relation to which the order to be executed is passed, as if such order were a decree passed by such Court, so that the order passed by the Additional Commissioner to vacate the house was an order which could be executed by the civil Court under Section 17 of the Act, therefore the non-compliance of that order which amounts to a decree would not be punishable under Sub-section (2) of Section 20 of the Act. I am unable to accede to this contention. There is nothing in the Act to indicate that a non-compliance of the order which is executable under Section 17 of Act cannot be a subject-matter of prosecution under Sub-section (2) of Section 20. Section 11 (2) of the Act provides that a landlord who seeks to evict his tenant under Sub-section (1), shall apply to the Controller for a direction in that behalf, and if the Controller is satisfied that the tenant is liable to be evicted under the provisions of Sub-section (1), be shall make an order directing the tenant to put the landlord in possession of the building, and if the Controller is not so satisfied, he shall make an order rejecting the application. In my opinion, the order passed by a Controller or by a Commissioner on appeal against a tenant to vacate a house within a certain time is clearly a direction for the non-compliance of which the tenant is liable to be punished under Sub-section (2) of Section 20. Under the provisions of the Act there is no bar, in my opinion, for the landlord to apply to the civil Court for execution of that order or direction under Section 17 of the Act, and yet he may apply for the prosecution of the tenant for the non-compliance of the direction under Sub-section (2) of Section 20 of the Act. In these circumstances it is impossible to interfere with the conviction of the petitioner. I think, however, that there is room for interference with the sentence which has been imposed upon him. In the particular circumstances of this case I do not think that there is any necessity for sending the petitioner to jail. I would, therefore, set aside the sentence of imprisonment imposed upon the petitioner, but I would enhance the amount of fine to Rs. 100, and in default to suffer . two weeks' rigorous imprisonment.

(3.) With these modifications in the sentence imposed upon the petitioner, the application is dismissed.