Mahadeolal Kanodia Vs. The
Administrator-General of West Bengal  INSC 82 (20 April 1960)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
CITATION: 1960 AIR 936 1960 SCR (3) 578
CITATOR INFO :
F 1960 SC 941 (5,22) RF 1980 SC 214 (20) F
1982 SC1302 (14) D 1989 SC1834 (16) R 1990 SC 261 (18) RF 1990 SC 981 (17) RF
1991 SC1893 (18)
Thika Tenancy-Decree for Possession against
tenant-Application for relief by tenant-Amendment of Act with retrospective
operation-Effect-Interpretation of Statute Principles of construction-Thika
Tenancy Act (W.B. 2 of 1949), S. 28-Thika Tenancy Amendment Act (W.B. 6 of
1953), s. 1(2).
With a view to give protection to Thika
tenants against eviction and in certain other matters, the West Bengal
Legislature enacted the Calcutta Thika Tenancy Act, 1949.
That Act was amended by the Calcutta Thika
Tenancy Amendment Act, 1953, which omitted s. 28 of the Act. The question for
decision in the appeal was whether the appellant against whom proceedings for
execution of a decree for ejectment was pending, who had applied for relief
under s. 28 when that section was in force, was entitled to have his
application disposed of in accordance with the provisions of s. 28, which had
ceased to exist retrospectively though it remained un-disposed of on the date
the Amendment Act came into force:
Held, that s. 1, sub-s. (2) of the Calcutta
Thika Tenancy Act 1953, clearly intended that no relief under s. 28 of the
original 579 Act should be given in cases pending for disposal on the date the
amendment became effective and s. 28 ceased to exist retrospectively.
The principles applicable to interpretation
of statutes are four-fold in nature,(1)such statutory provisions as create or
take away substantive rights are ordinarily prospective ; they can be
retrospective if made so expressly or by necessary implication and the
retrospective operation must be limited only to the extent to which it has been
so made either expressly or by necessary implication, (2)the intention of the
legislature has to be gathered from the words used by it, giving them their
plain, normal, grammatical meaning, (3)if any provision of a legislation the
purpose of which is to benefit a particular class of persons is ambiguous so
that it is capable of two meanings the meaning which preserves the benefit
should be adopted., (4)If the strict grammatical interpretation gives rise to
an absurdity or inconsistency, such interpretation should be discarded and an
interpretation which will give effect to the purpose will be put on the words,
if necessary, even by modification of the language used:
Held, also, that judicial decorum ought never
to be ignored.
Where one Division Bench or a judge of a High
Court is unable to distinguish a previous decision of another Division Bench or
another Single judge and holds the view that the earlier decision was wrong,
the matter should be referred to a larger Bench to avoid utter confusion.
Deorajan Devi v. Satyadhan Ghosal,  58
C.W.N. 64, overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 303 of 1956.
Appeal from the judgment and decree dated
February 7, 1955, of the Calcutta High Court in Appeal from Appellate Order No.
102 of 1953, arising out of the judgment and decree dated August 6, 1953, of
the Subordinate Judge, Second Court of Zillah, Howrah, in Misc. Appeal No. 231
G., S. Pathak, P. K. Chakravarty and B. C.
Misra,for the appellant.
B. Sen, S. N. Mukherjee and P. K. Bose, for
1960. April 20. The Judgment of the Court was
delivered by DAS GUPTA, J.-In Calcutta and its suburb Howrah there have existed
for many years precarious tenancies popularly known as Thika tenancies, the
characteristic feature of which is that the tenant 580 takes lease of the land
only and erects structures thereon at his own expense; where there is already a
structure on the land the tenant acquires these structures by purchase or gift
but takes the land on which the structure stood in tenancy. With the influx of
population into these areas that followed the partition of India the position
of these Thika tenants became even more insecure than before. With the sharply
rising demand for accommodation the landlords found it possible and profitable
to put pressure on these Thika tenants to increase their rents or to evict them
so that other tenants who would give more rents and high premiums might be
brought in. With a view to give some protection to these Thika tenants against
eviction and in certain other matters, the West Bengal Legislature enacted in
1949 an Act called the Calcutta Thika Tenancy Act (hereinafter referred to as
" the Act "). Some features of the protection afforded by this
legislation which deserve mention are that ejectment could be had only on one
or more of the six grounds specified in s. 3 of the Act; special provisions as
regards notice for ejectment were made in s. 4; in the same section provision
was also made about payment of compensation as a necessary pre-requisite for
ejectment in certain cases. Section 6 provides that no orders for ejectment on
the grounds of arrears of rent shall be executed if the amount of arrears
together with costs of proceedings and damages that may be allowed were
deposited within 30 days from the date of the order. Not content with giving
such protection only in suits and proceedings for eviction that might be
instituted by the landlord in future the Legislature in the 29th section of
this Act provided that even in suits and proceedings which had already been
instituted and were pending for disposal on the, date when the new law came
into force, this now law will be applicable, except the provisions as regards
notice in s. 4.
In the 28th section of the Act the
Legislature went further and provided that even where the decree or order for
recovery of possession had been obtained by the landlord against a Thika tenant
but possession had not been actually recovered, courts will have the power to
re-open the matter and 581 if the decree or order is not in conformity with the
beneficent provisions of the Act either to rescind the decree or order
altogether or to vary it to bring it into such conformity. Section 28 with
which we are specially concerned in this appeal is in these words:-" Where
any decree or order for the recovery of possession of any holding from a Thika
tenant has been made before the date of commencement of this Act but the
possession of such holding has not been recovered from the Thika tenant by the
execution of such decree or order, the court by which the decree or order was
made may, if it is of opinion that the decree or order is not in conformity
with any provision of this Act other than sub-section (1) of section 5 or
section 27, rescind or vary the decree or order in such manner as the Court may
think fit for the purpose of giving effect to such provision and a decree or
order so varied by any Court shall be transferred to such Court to the
Controller for execution under this Act as if it were an order made under and
in accordance with the provisions of this Act." The new law however failed
to achieve its object for some years as the Courts interpreted the definition
of Thika tenant in the Act in such a manner that speaking generally no tenant
was able to establish its requirement. To remedy this the Governor of West
Bengal enacted on October 21, 1952, an Ordinance by which the definition of
Thika tenant was revised and a few other amendments of the Act were made.
The special protection given under ss. 28 and
29 of the Act to tenants against whom decrees or orders had been obtained or
against whom cases were pending was however kept intact.
The Ordinance by its s. 5 extended such
special protection also to tenants whose cases were pending before a court on
the date of the commencement of the Ordinance and those against whom decrees or
orders had been made after the date of the Act and before the date of the
Ordinance but possession had not been obtained. In 1953 the West Bengal
Legislature enacted the Calcutta Thika Tenancy Amendment Act, 1953, revising
permanently the definition of Thika tenant and making some, other 76 582 and 29
of the Original Act were omitted. The principal question before us in this
appeal is whether the provisions of s. 28 could be applied by a Court in a case
where an application had been made by a tenant for relief under that section
and such application was pending for disposal on the date the omission became
effective, by reason of the Amendment Act coming into force.
The decree for possession with which we are
concerned in this case was made as far back as August 8, 1941, by a Munsif in
Howrah. The tenant's appeal was dismissed on April 9, 1943. On February 28,
1949, on which date the Calcutta Thika Tenancy Act of 1949 came into force,
proceedings for the execution of the decree of ejectment were pending in the
Munsif's Court. On March 19, 1952, when these proceedings were still pending
the tenant made an application to the Court which had passed the decree praying
that the decree may be rescinded or varied in accordance with the provisions of
s. 28 of the Act. This application came up for hearing before the Munsif on
July 7, 1953. In the meantime the Amendment Act of 1953 had come into force and
the omission of s. 28 of the Act had become effective.
The learned Munsif held that s. 28 of the Act
being no longer in force he had no power to give the tenant any relief in
accordance with the provisions thereof. In that view he dismissed the
application. The tenant's appeal to the District Judge, Howrah, having been
rejected, he preferred a second appeal to the High Court.
The learned judges of the High Court who
heard the appeal agreed with the courts below on a construction of s. 1(2) of
the Amendment Act that s. 28 was not applicable to the proceedings commenced by
the tenant by his application for relief and dismissed the Against that
decision the tenant has filed the present appeal before us on a certificate of
fitness granted by the High Court.
The decision of the question raised in this
appeal, viz., whether this tenant who had applied for relief 583 under s. 28
when that section was in force is entitled to have his application disposed of
in accordance with the provisions of that section though it remained undisposed
of on the date the Amendment Act came into force, depends on the interpretation
of s. 1, sub-s. (2) of the Amendment Act.
This section is in these words:
"It shall come into force immediately on
the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, ceasing to operate:
Provided that the provisions of the Calcutta
Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the
provisions of s. 9, also apply and be deemed to have always applied to all
suits, appeals and proceedings pending(a) before any Court, or (b) before the
Controller or (c) before a person deciding an appeal under section 27 of the
said Act, on the date of the commencement of the Calcutta Thika Tenancy
(Amendment) Ordinance, 1952." It is obvious and indeed undisputed that but
for any difficulty that may be placed in the tenant's way by these provisions
the tenant would in view of the provisions of s. 8 of the Bengal General
Clauses Act be entitled to have his application for relief under s. 28 of the
original Act disposed of as if s. 28 still continued. If however a contrary
intention has been expressed by the Legislature in its amending Act the
contrary intention would prevail. What we have to decide is whether in s. 1,
sub-s. (2), the Legislature has clearly expressed an intention that no relief
under s. 28 of the original Act shall be given in cases like these.
The principles that have to be applied for
interpretation of statutory provisions of this nature are well-established.
The first of these is that statutory pro.
visions creating substantive rights or taking away substantive rights are ordinarily
prospective; they are retrospective only if by express words or by necessary
implication the Legislature has made them retrospective; and the retrospective
operation will be limited 584 only to the extent to which it has been so made
by express words, or by necessary implication. The second rule is that the
intention of the Legislature has always to be gathered from the words used by
it, giving to ,the words their plain, normal, grammatical meaning. The third
rule is that if in any legislation, the general object of which is to benefit a
particular class of persons, any provision is ambiguous so that it is capable
of two meanings, one which would preserve the benefit and another which would
take it away, the meaning which preserves it should be adopted. The fourth rule
is that if the strict grammatical interpretation gives rise to an absurdity or
inconsistency such interpretation should be discarded and an interpretation
which will give effect to the purpose the Legislature may reasonably be considered
to have had will be put on the words, if necessary, even by modification of the
In applying these principles to the
interpretation of S. 1(2), it is necessary first to consider a contention that
has been raised by Mr. Pathak on behalf of the appellant that the phrase "
as amended by this Act " qualifies the word " provisions ". If
this be correct, the meaning of the proviso will be that only those provisions
of the Act which have been amended by the Act shall apply and be deemed to have
applied always to pending proceedings. This will become meaningless, the
argument continues, if the word " amended " is interpreted to include
omissions. For it makes no sense to say that a provision which has been omitted
shall apply. So, it is argued, the word " amended " should be
interpreted to mean only amendment by additions or alterations and not an
amendment by omissions. The result of the proviso, the appellant's counsel
contends, is to make applicable to spend inn proceedings the altered provisions
in place of old provisions but to say nothing as regards such provisions which
have been omitted.
We are unable to see how it is possible,
unless rules of grammar are totally disregarded to read the words as amended by
this Act " as to qualify the word provisions." If ordinary
grammatical rules are applied there is no escape from the conclusion that 585
the adjectival phrase " as amended by this Act " qualifies the
proximate substantive, viz., the Calcutta, Thika Tenancy Act, 1949. There is no
escape from the conclusion therefore that what the Legislature was saying by
this was nothing more or less than that the provisions of the amended Thika
Tenancy Act shall apply.
Mr. Pathak argued that if that was what the
Legislature wanted to say, it was reasonable to expect it to use the words
" The Thika Tenancy Act, 1949, as amended by this Act," in the
proviso; and there was no reason for the use of the words " the provisions
of the Thika Tenancy Act ". We are not impressed by this argument. The
Legislature might certainly have used the language as suggested by the learned
counsel, and as be says, that would have meant an economy of words. But where
there are two ways of saying the same thing it is useless to speculate why one
way was adopted in preference to the other. It is not unusual to find draftsmen
using the words " provisions of the Act " in many statutes where the
words " the Act " would have been adequate; and it would be unreason.
able to try to read too much in the use of the words " the provisions of the
Thika Tenancy Act " instead of " The Thika Tenancy Act " in the
Even so the learned counsel contends, there
is no reason to read " amendments "' so as to include omissions. The
word " amendment ", he has submitted is sometimes used in the restricted
sense of "addition" or " a alteration" as distinct from
omission; and he asks us to read the word " amended " in the proviso,
to mean only alterations or additions in the statute, and as not including
It is unnecessary for us in the present case
to express any opinion on the general question whether in certain context the
word " amended " should be interpreted so as to exclude omissions.
What is clear however is that the present is not one of such cases. The
amendment Act itself was being called the Calcutta Thika Tenancy (Amendment)
The preamble says " whereas it is
expedient to amend the Calcutta Thika Tenancy Act, 1949 ". Section 2 of
this amendment Act substitutes a new clause for the old el. (5) of s. 2; s. 3
adds some words to el. (1) and s. 3(b) omits some words in cl. (4) and 586
again adds some words to cl. (5) of s. 3 of the Act.
Section 4 omits certain words of sub-s. (1)
of s. 5. Section 5 substitutes some new words in place of certain words in the
original sub-ss. (1) and (2) of s. 10 of the Act.
Section 6 omits one section of the original
Act, viz., s. 1 1 ; s. 7 inserts some words in the original s. 27 ; section 8
omits two sections, viz., ss. 28 and 29 ; the last section, s. 9 provides for
the continuance of proceedings under s. 5, sub-s. (2) of the Amendment
Ordinance if sub-ss.
(2), (3) and (4) thereof were in force.
Reading the Amendment Act as a whole there
can be no doubt that the Legislature in. using the word " amended "
in the proviso to sub-s. (2) of s. 1 sought to make no distinction between
amendment by additions, alterations or omissions.
It is clear when certain words or sections
have been added, altered or omitted by the Amendment Act, the Calcutta Thika
Tenancy Act, 1949, took on a new shape with some added features, some altered
features and minus those features which have been omitted. What the proviso
says is that the Calcutta Thika Tenancy Act in its new shape shall apply and
shall be always deemed to have applied to proceedings pending before a Court, a
Controller or an appellate authority under s. 27 on the date of the
commencement of the Thika Tenancy Amendment Ordinance, 1952. As the application
which the appellant had made for relief under s. 28 of the Tenancy Act was
pending for disposal before the Munsif's court on October 21, 1952, the date of
the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952, the
position which cannot be escaped is that the Thika Tenancy Act of 1949 without
the provisions as regards relief to tenants against whom decrees had been
obtained on the date of the commencement of the original Act but possession had
not been actually recovered would be applied to pending applications. In other
words, though the application originally was for relief under s. 28 no such
relief could be granted, the section having ceased to exist retrospectively.
It is helpful to remember in this connection
the fact that while s. 28 of the original Act was giving certain tenants a
right to relief which they would have had if 587 the beneficent provisions of
the new Act were available to them during the disposal of the suits the manner
in which the right is given is by conferring on courts a power to rescind or
vary decrees or orders to bring them into conformity with the provisions of
the, Act. As soon as s. 28 was omitted the courts ceased to have any such
The effect of the proviso in its strict
grammatical meaning is that the courts shall be deemed never to have had this
power in respect of applications which were still pending.
The inevitable result is that the Court
having been deprived of the power to give relief even in respect of
applications made at a time when the power could have been exercised, was bound
to dismiss the applications.
There can be no doubt that this is an
It may very well be true that if as a result
of the Amendment Act, many tenants are deprived of the benefit of s. 28, this
will be mainly because of the Court's inability to dispose of the applications
before the Amendment Act came into force and not for any default on their part.
Mr. Pathak has repeatedly stressed this and
has asked us to construe s. 1 (2) in a way that would retain the benefits of s.
28 to tenants whose applications remained to be disposed of on the crucial
date. He has in this connection emphasized the fact that the Amendment Act
itself is a piece of beneficent legislation and that the amendments made by ss.
2,3, 5 and 9 all extend to tenants benefits to which they would not have been
entitled under the original Act.
This extension of further benefits to
tenants, he says, is a guiding principle of the amending legislation. He points
out also that except as regards such pending applications under s. 28 the
effect of s. 1(2) of the amending Act will be to give the extended benefits to
tenants in pending, proceedings. It will be incongruous, he argued, that while
all tenants stand to benefit by the amending legislation only those whose
applications under s. 28 have, for no fault of theirs, remained pending would
be deprived of the benefit they would have had but for the omission in the
amending Act, of s. 28. It is difficult not to feel sympathy for these tenants.
As we have already mentioned it is a sound 588 rule of interpretation of
beneficent legislation that in cases of ambiguity the construction which
advances the beneficent purpose should be accepted in preference to the one
which defeats that purpose. In their anxiety to advance the beneficent purpose
of legislation courts must not however yield to the temptation of seeking
ambiguity when there is none. On a careful consideration of the language used
by the Legislature in s. 1(2) we are unable to see that there is any such
ambiguity. The language used here has one meaning only and that is that the Act
in its new shape with the added benevolent provisions, and minus the former
benevolent provisions in s. 28 has to be applied to all pending proceedings,
including execution proceedings and the proceedings pending under s. 28 of the
original Act on October 21, 1952. There is therefore no scope for applying in
this case the principles of interpretation which are applicable in cases of
Nor is it possible to agree with Mr. Pathak's
last contention that the strict grammatical interpretation would result in an
absurdity or inconsistency. It is urged that it is unthinkable that the
Legislature when undertaking a legislation to help tenants would do anything to
deprive them of the existing benefits under s. 28. It is in our opinion useless
to speculate as to why the Legislature thought it right to take away the
benefit. One-reason that suggests itself is that the Legislature might have
thought that where landlords had already been deprived of the fruits of the
decrees they had obtained for a long period from the date when the original Act
came into force up to the time when the Amendment Act came into force, it would
not be right to continue that deprivation. But whatever the reasons may be the
fact remains that the Legislature has used words which in their normal
grammatical meaning show that they intentionally deprived this class of
tenants, viz., those whose applications under s. 28 of the Act were undisposed
of on the date the Ordinance came into force, and remained undisposed of, even
when the Amendment Act came into force.
We have therefore come to the conclusion that
the view taken by the High Court in this case that the 589 effect of s. 1(2) of
the Calcutta Thika Tenancy (Amendment) Act, 1953, is that all pending
applications under s. 28 of the original Act must be dismissed is correct. The
contrary view taken by the same High Court in Deorajan Debi v. Satyadhan Ghosal
(1) and other cases is not correct.
Before we part with this appeal, however, it
is our duty to refer to one incidental matter. We have noticed with some regret
that when the earlier decision of two judges of the same High Court in
Deorajan's Case was cited before the learned judges who heard the present
appeal they took on themselves to say that the previous decision was wrong, instead
of following the usual procedure in case of difference of opinion with an
earlier decision, of referring the question to a larger Bench. Judicial decorum
no less than legal propriety forms the basis of judicial procedure.
If one thing is more necessary in law than
any other thing, it is the quality of certainty. That quality would totally
disappear if judges of co-ordinate jurisdiction in a High Court start
overruling one another's decisions. If one Division Bench of a High Court is
unable to distinguish a previous decision of another Division Bench, and
holding the view that the earlier decision is wrong, itself gives effect to
that view the result would be utter confusion. The position would be equally
bad where a Judge sitting singly in the High Court is of opinion that the
previous decision of another single Judge on a question of law is wrong and
gives effect to that view instead of referring the matter to a larger Bench. In
such a case lawyers would not know how to advise their clients and all courts
subordinate to the High Court would find themselves in an embarrassing position
of having to choose between dissentient judgments of their own High Court.
As far as we are aware it is the uniform
practice in all the High Courts in India that if one Division Bench differs
from an earlier view on a question of law of another Division Bench, a
reference is made to a larger Bench. In the Calcutta High Court a rule to this
effect has been in existence since 1867. It is unfortunate (1) (1953) 58 C.W.N.
64. 77 590 that the attention of the learned judges was not drawn in the
present case to that rule. But quite apart from any rule, considerations of
judicial propriety and decorum ought never to be ignored by courts in such
On the merits, as we have found that the view
of law taken by the High Court in this case is correct, the appeal is
In view however of the uncertainty that was
in the law as regards the applicability of s. 28 to proceedings pending on the
commencement of the Thika Tenancy Ordinance, 1952, we order that the parties
will bear their own costs.