Gopi Kanta Sen Vs. Abdul Gaffur &
Ors  INSC 171 (11 August 1967)
Calcutta Thika Tenancy Act, 1949 , as amended
by Calcutta Thika Tenancy Act 1953-S. 3 of the Act whether applicable to
pre-Act suits--Deletion of ss. 28 and 29 of original Act by 1953
amendment--Effect of deletion on jurisdiction of civil courts.
In June 1948 the appellant instituted a suit
against the first respondent and others for their ejectment from the property
in suit, On February 28, 1949 the Calcutta Thika Tenancy Act came into force.
The first respondent was not a thika tenant
within the definition therefore of given in the Act. The suit was decreed by
the Munsif in March 1949. In November 1949 the appeal filed by the first
respondent was ,dismissed by the first appellate court. He then filed a second
,,appeal in the High Court which was heard in 1954. Before that the Calcutta
Thika Tenancy (Amendment) Act, 1953 was passed.
Under this Act the first respondent came
within the definition of thika tenant. The High Court remanded the case to the
Subordinate Judge for trying the case in the light of the amended Act. The
Subordinate Judge held that the first respondent was a thika tenant and could
not be ejected as none of the grounds mentioned in s. 3 of the Act had been
established by the appellant. The latter appealed to the High Court and urged
that with the omission of s. 29 in the 1953 Act Civil Courts became, unable to
remit ejectment suits to the Rent Controller with the result that the Act as amended
could not apply to pre-Act suits. The High Court however took the view that
after the omission of ss. 28 and 29 from the Act suits for eviction before
civil courts became infructuous and, accordingly, dismissed the appeal. The
appellant with certificate came to this Court.
The questions that fell for consideration
were: (i) whether the tenant could take the benefit of s. 3 in a pre-Act suit,
(ii) whether in view of the omission of ss. 28 and 29 from the Act the civil
courts had jurisdiction to try such a suit.
HELD:Per Wanchoo C.J. & Mitter J. (i)
While it is a general principle of law that statutes are not to operate
retrospectively so as to defeat vested interests; such operation may be given
by express enactment or by necessary implication from the language employed.
The language of s.
3 leaves no room for doubt that it is
retrospective since it expressly states that notwithstanding anything contained
in any other law for the time being in force or in any contract, a thika tenant
will be liable to ejectment on grounds specified therein and not otherwise.
[179 D-E; 180 F-G].
Knight v. Lee,  1 Q.B. 41 and Beadling
v. Goll, 39 Times Law Reporter 31, referred to.
Section 3 does not purport to lay down that
the grounds mentioned therein have got to be stated in the notice of ejectment.
All that the section lays down is that ejectment could not be had unless the
,existence of one of the grounds was proved. Such proof could have been adduced
at the trial even if no mention of the grounds had been made before. The
appellant not having given such proof the case was rightly decided against him.
171 (ii) However In a pre-Act suit no notice
under s. 4 could be insisted on as that section , clearly prospective.
Section 5 which required proceedings to be
filed before the Controller was also clearly prospective. [180 H; 181 A; B- H].
(iii) The High Court was wrong in holding,
that suits for the eviction of thika tenants became infructious before civil
courts after the omission of ss. 28 and 29. There being no longer any provision
for transfer of pending suits and appeals, the court hearing the appeal would
have to pass a decree for ejectment even if the defendant was a thika tenant
after taking into account s. 3. [183 D-F].
Per Bhargava, J.-This appeal must be
dismissed because the respondent was entitled to the benefit of s. 3. It was
not necessary to express any opinion whether compliance With s.
4 was also required or whether it being
prospective only no such compliance by the appellant was needed. [184 B].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 787 of 1964.
Appeal from the judgment and decree dated
January 5, 1961 of the Calcutta High Court in Appeal from Appellate Decree No.
1012 of 1955.
A.K. Sen and D. N. Mukherjee, for the appellant.
Sukumar Ghose, for respondent No. 1.
The Judgment of WANCHOO, C. J. and MITTER, J.
was delivered by MITTER, J. BHAGAVA, J. delivered a separate Opinion.
Mitter, J.-This is an appeal by a certificate
granted by the High Court at Calcutta from a judgment and decree in Second
Appeal passed by that court in January, 1961. The question before us is,
whether the respondent No. 1 was entitled. to the benefit of the Calcutta Thika
Tenancy Act, 1949, as amended finally by an Act of 1953.
The facts necessary for the disposal. of this
appeal are as follows. On the 18th June 1948, the plaintiff, the appellant
before us, instituted Suit No. 292 of 1948 for ejectment of three Persons,
namely, Abdul Rahim, Abdul Hamid and Abdul Gaffur, from the property in suit (a
parcel of land about 1 cottah 8 chittaks being part of premises No. 6 / 1,
Shibtola Lane, Entally, Calcutta). In the notice to quit served on the 7th May,
1948 the first two persons were described as tenants under the plaintiff and
the third as a person who had purported to purchase the structures on the land
and the tenancy right therein. In the plaint itself, the first two defendants
were described as thika tenants.
No claim was made for rents or taxes although
it was alleged that the same were in arrears. The suit was contested only by
the third defendant who filed a written statement in September 1948 contending
that the suit was bad for non- joinder of parties. The suit was decreed by a
Munsif of Sealdah court, 24-Parganas on March 18, 1949 after the Calcutta Thika
Tenancy Act of 1949 had come into force on February 28, 1949. The appeal filed
therefrom by the third defendant was dismissed by the Subordinate Judge. Fifth
Additional 172 Court, Alipore on November 23, 1949. The decree-holder put the decree
in execution and recovered possession of the land on December 18, 1949. The
Calcutta Thika Tenancy (Amendment Ordinance), 1952 was passed on October 21,
1952 introducing various changes in the Act and substituting a new definition
of a thika tenant. On March 14, 1953 the Calcutta Thika Tenancy (Amendment
Act), 1953 was passed amending the definition of thika tenant still further and
introducing important changes in the Act of 1949. The effect of these
provisions will be considered later on.
Before the Subordinate Judge, a point was
taken that after the coming into force of the Act of 1949, the Rent Controller
alone had jurisdiction in respect of ejectment suits as the defendant appellant
was a thika tenant. The Subordinate Judge dismissed the plea on the ground that
the defendant-appellant had not erected the structures on the land and was not
a successor-in-interest of the tenant but only a transferee. Abdul Gaffur
preferred a Second Appeal to the High Court and this was heard and disposed of
by a single Judge of that court on July 21, 1954, long after the Thika Tenancy
Ordinance of 1952 and the Amending Act of 1953 had come into force. The learned
Judge held that at the time when the appeal of the defendant was disposed of by
the Subordinate Judge, the rights of the parties were governed by the Thika
Tenancy Act of 1949 and the definition of a thika tenant in that Act was not
such as to afford any protection to the appellant. In view of the amendment of
the Act in 1953 however. the learned Judge felt that the question whether the
appellant was entitled to the benefit of that Act had to be re-examined and
consequently he remanded the matter to the lower appellate court with a
direction that there should be a fresh decision of the case after considering the
law applicable and taking further evidence if necessary. On remand, the
Subordinate Judge, Seventh Court, Alipore rejected the plea of the landlord
that the appellant Gaffur could not be regarded as a thika tenant inter alia on
the ground that he had sold his interest by a registered sale deed dated April
12, 1949 to one Subasini. On a consideration of the provisions of the Act and
the Ordinance, the Subordinate Judge held that the appellant, Gaffur, was not
liable to ejectment in the absence of any grounds therefor in the notice to
quit in accordance with S. 3 of the Act as he was a thika tenant within the
meaning of the Act as it was finally amended. He also observed that S. 4 of the
Act would be applicable. The landlord went up in appeal once more to the High
Court. On this occasion, the main plank of the argument on behalf of the
landlord was that with the omission of S. 29 civil courts became unable to
remit ejectment suits to the controller with the result that the Act as finally
amended could not apply to pre Act suits and thika tenants could get no relief
under the Act. The learned Judges of the Division Bench of the High Court found
themselves unable to accept this argument and held that the only power vested
in civil courts in respect of ejectment suits against 173 thika tenants like
the present one was to be found in ss. 28 and 29 of the original Act and by
their omission from the statute "suits for eviction became infructuous
before civil courts". In the result, they dismissed the appeal. We have now
to trace the relevant changes in the law made from time to time and see whether
the landlord was entitled to eject Abdul Gaffur notwithstanding the Act as
amended from time to time.
The first attempt to give relief to persons
described as thika tenants was made by West Bengal Ordinance No. XI of 1948
promulgated on October 26, 1948. The Ordinance had only six sections. Section 2
defined a thika tenant' as meaning any person who under the system commonly
known as "thika" "thika masik utbandi", "thika masik",
"thika bastu", or under and other like system held land under another
person whether under a written lease or otherwise and was, or but for a special
contract would be, liable to pay rent at a monthly or any other periodical
rate, for that land to such other person and had erected any structure on such
land and was entitled to use it for residential purposes or for manufacturing
or business purposes and included the suc- cessors in interest of such person.
Section 3 Provided that notwithstanding anything contained in any other law for
the time being in force, no decree or order for the ejectment of a thika tenant
shall be executed during the continuance in operation of the Ordinance. We need
not consider the proviso to the section as we are not concerned with the
condition mentioned therein. It is to be noted that by the definition of thika
tenant, a person could only get the protection of the Ordinance if he could
establish that he was holding land under any of the systems expressly mention-
ed or any other like system.
A comprehensive Act was later passed i.e.,
West Bengal Act II of 1949 which, as already noted, came into force on Feb-
ruary 28, 1949. The definition of a thika tenant was modified slightly but the
change affected thereby need not be taken account of because the respondent
Gaffur's position was not improved thereby. The incidents of thika tenancy were
mentioned in various sections from s. 3 to s. II contained in Chapter 11 of the
Act. S. 3 provided that notwithstanding anything contained in any other law for
the time being in force or in any contract, a thika tenant shall, subject to
the provisions of the Act, be liable to ejectment from his holding on one or
more of the specified grounds and not otherwise. The six grounds mentioned are:
(i) failure to pay an arrear of rent due to
the landlord in respect of the holding; (ii) user of the land comprised in the
holding in a manner when rendered it unfit for any of the purposes mentioned in
cl. (5) of s. 2 (the definition of a thika tenant) or violation of a condition
consistent with the Act by a breach of which he was under the terms of a
contract between himself and his landlord liable to be ejected; (iii) refusal
to agree to pay rent at such enhanced rate as might be determined under s. 25; (iv)
requirement 174 of the land by the landlord for his own occupation or for the
purpose of building on the land or otherwise developing the land except during
any period limited by a registered lease under which the tenant might be
holding; (v) failure on the part of the holding for his own residential,
manufacturing or business purpose for more than six consecutive months
(omitting the priviso); and (vi) on the expiry of a registered lease in favour
of the tenant. S 4 provided:
"It shall not be competent for a
landlord to eject any thika tenant from his holding unless the landlord has
given the thika tenant notice in the manner provided in section 106 of the
Transfer of Property Act, 1882:- (a) in the case where he wishes to eject the
thika tenant on any of the grounds specified in clauses (i), (ii), (iii) and
(iv) of section .1 at least one month's notice in writing expiring with the end
of a month of the tenancy; and (b) in the case where he wishes to eject the
thika tenant on the ground specified in clause (iv) of section 3 at least three
months' notice in writing expiring with the end of a month of the
tenancy." The section has two provisos one of which laid down that no
thika tenant Shall be ejected from his holding on any of the grounds specified
in cls. '(iv) and (v) of _. 3 except on payment to him or 0 deposit with the
Controller for payment to him such compensations might be agreed upon'or might
be determined in' 'the manner prescribed by"the Controller.
5 enacted that: - "(1) Notwithstanding
anything contained in any other law for the time being in force, a landlord
wishing to eject a thika tenant on one or more of the grounds specified in
section 3 shall apply in the prescribedmanner to the Controller for an order in
that behalf and,on receipt of such application, the Controller shall after
giving the thika tenant a notice to show cause within thirty days from the date
of service of the notice why the application shall not be allowed and after
making an inquiry in the prescribed manner either allow the application or
reject it after recording the reasons for making such order...." The
section further provided that no' order allowing an application was to be made
unless compensation payable to the tenant was either deposited with the
Controller or paid to the tenant Chapter IV of the Act, by several sections,
provided for appeals, reviews etc. Under s. 27 any person aggrieved by an order
of the Controller might present an appeal in writing either to the Chief Judge
of the Court of Small Causes in the Presidency town or to 175 the District
Judge of a district in which the holding was situate. Sub-s. (5) of the section
provided for reviews.
Section 28 enactect that:
"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 by 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
Section 29 ran as follows: - "The
provisions of this Act shall apply to all suits and proceedings, including
'proceedings _ in execution, for ejectment of a thika tenant which are pending
at the date of commencement of this Act, and if any such suit or proceeding
relates to any matter in respect of which the Controller is competent after the
date of such commendment to pass orders under this Act, such suit or proceeding
shall be transferred to the Controller who shall on, suit transfer 'deal with
it in accordance with the provisions of this Act as if this Act had been in
operation on, the date of institution of the suit or proceeding:
Provided that in applying the provisions of
the Act to any suit or proceeding instituted for the ejectment of a thika
tenant so transferred, the provisions regarding notice in section 4 of this Act
shall not apply".
Section 33 provided that on the expiry of the
Calcutta Thika Tenancy Ordinance, 1948, the provisions of s. 8 of the Bengal
General Clauses Act, 1899 would apply as if it were an enactment then repealed
by a, West Bengal Act. It will be noted from the provisions of the Act that it
was intended to benefit all thika tenants expressly covered thereby.
Unfortunately, the Act did not afford any
real protection to persons for whom it Was meant because of the peculiar
definition of thika tenant in it. A series of decisions of the Calcutta High
Court shows that the tenants failed to get any relief because they could not
prove any system either of the kind specifically mentioned in s. 2 sub-s. (5)
or another like system. It is however 'clear that the benefit of s. 28 was
available only if the decree or order for the recovery of possession had been
made before the date of the commencement of the Act but 176 possession of such
holding had not been recovered from him.
Section 29 on the other hand was made
applicable to all proceedings including proceedings in execution which were
pending at the date of the commencement of the Act. No exception was made under
s. 29 to cases where possession of the holding had been recovered from the
thika tenant. The consequence was that even if the tenant had lost possession
but any proceeding even arising from an execution proceeding was pending, the
provisions of the Act would be attracted.
If any such pending suit or proceeding
related to any matter in respect of which the Controller was competent to pass
orders, the suit or proceeding would be transferred to the Controller who would
deal with it in accordance with the provisions of the Act just as if the Act
had been in operation on the date of the commencement of the suit or
proceeding. The only qualification was that even if the suit had been filed
before the Act but was riot disposed of by that date, the landlord had to
establish that be was entitled to possession because of the existence of any of
the grounds mentioned in S. 3. He was however not to be bound he could not have
done because of the passing of the Act after the filing of his suit. As already
stated, the Act failed to achieve its object-see Murari v.
Prokash(1) and Mohammad Mateen v. Baijnath
Bajoria.(2) To get over this difficulty, an Ordinance, namely, the Calcutta
Thika Tenancy (Amendment) Ordinance, XV of 1952 was promulgated on October 21,
1952. By s. 2 of this Ordinance, the definition of thika tenant in the Calcutta
Thika 'Tenancy Act, 1949 was substituted by a new one, namely:
"(5) thika tenant' means any person who
holds, whether under a written lease or otherwise, land under another person,
and is but for a special contract would be liable to pay rent, at a monthly or
at any other periodical rate, for that land to that another person and has
erected any structure on such land for a residential, manufacturing or business
purpose and includes the successor in interest .of such person, but does not include
a, person:- (a) who holds such land under that another person in perpetuity; or
(b) who holds such land under that another person under a registered lease, in
which the duration of the lease is expressly stated to be for a period of not
less than twelve years;
or (c) who holds such land under that another
person and uses or occupies such land as a khattal".
(1)A.I.R. 1950 Calcutta 230.
(2)A.T.R. 1951 Calcutta 358.
177 Other amendments were made in different
sections of the Act.
The most important one was however that
contained in s. 5 sub-s. (1) of this section which enatced that- "Save as
provided in sub-section (2), the provisions of the said Act as amended by this
Ordinance, shall apply to all cases pending before a Court or Controller on the
date of the commencement of this Ordinance".
Sub-s. (2) of s. 5 provided as follows:-
"If, at any time between the commencement of the said ,'Act and of this
Ordinance, a decree or order has been passed for the recovery of possession of
any land and for other relief, if any, and delivery of possession has not been
given, then on application made in this behalf by the person against whom the
decree or order was passed, within three months of the commencement of this
Ordinance, the Court which or the Controller who passed the decree or the order
shall decide (after hearing the parties and after taking fresh evidence if
necessary) whether the person is a thika tenant within the meaning of the said
Act as amended by this Ordinance. If the Court or Controller holds that the
person is not such a thika tenant. it or he shall dismiss the application. If
the Court or Controller holds that the person is such a thika tenant. it or he
shall set aside the decree or the order and annul the execution proceedings, if
any, and (ii) where the proceedings are before a Court-it shall remit the case
to the Controller to be dealt with by him according to law.
(iii)where the proceedings are before the
Controller he shall reopen the case and pass a new order".
Sub-s. (4) provided that the provisions of
this section would have effect notwithstanding anything to the contrary in any
other law or elsewhere in the said Act as amended by the Ordinance. The second
Explanation to the section provided that the expression " court"
would include a court exercising appellate or revisional jurisdiction and the
expression 'controller' meant the controller referred to in sub-s. (2) of s. 2
of the Calcutta Thika Tenancy Act, 1949 for the time being in force or the
person deciding an appeal under s. 27 of the Calcutta Thika Tenancy Act, 1949
for the time being in force as the case may be.
The effect of this was that a person who
before the Ordinance would not come within the pale of the Act because he could
not prove a system came within its protection because of the amendment of the
definition of a thika tenant. Sub-s. (1) of s. 5 made the Act, as amended by
the Ordinance, applicable to all cases pending before a court or a controller.
This was irrespective of the question whether the suit had been filed before
the Act or 178 after the Act, or whether a decree had been passed before the
Act or thereafter. Sub-s. (2) of S. 5 made a special provision for cases where
a decree or order for possession had been made between the commencement of the
Act and of the Ordinance and delivery of possession had not been given to the
decree-holder. In such a case it became open to a person covered by the new
definition of a thika tenant to make an application within three months of the
commencement of the Ordinance either to the court or to the Controller as the
case may be for relief on the basis that the applicant was a thika tenant. Such
an application could be made even if, the decree for ejectment had become final
and order, for recovery of possession made but actual delivery of possession
had not been given. In such a case, if it was found that the person applying
was a thika tenant, the court before whom the proceedings were pending had to
remit the case to the controller and if the authority before whom the application
was made was a controller, he had to re-open the case and pass a new order. If
the matter was in appeal, the appellate court had to exercise jurisdiction
under this sub- section, determine whether the tenant was a thika tenant and
send the matter to the controller 'if it was found that the tenant was entitled
to the benefit of the Act'. Even if no proceedings were pending in any court,
it was open to the thika tenant to apply for relief provided delivery of
possession had not been given.
Finally came the Thika Tenancy (Amendment)
Act (VI of 1953).
It made important changes in the Act itself.
It came into force on March 14, 1953 on which date the Calcutta Thika Tenancy
(Amendment) Ordinance, 1952 ceased to operate. Sub- s. (2) of s. 1 provided
that the Act was to 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 were subject to the
provisions of S. 9 to apply and be deemed to have always applied to all suits,
appeals and proceedings-(a) before any court, or (b) before the Controller, or
(c) before a person deciding an appeal under s. 27 of the said Act, on the date
of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952
i.e., 21st October, 1952. Section 2 of the Act amended the definition of 'thika
tenant' still further by giving the benefit of the Act to persons who had
erected or acquired by purchase or gift any structure on the land for a
residential, manufacturing or business purpose and was to include the
successors in interest of such person.
The word 'successor-in-interest' had not been
defined in the Act or in the Ordinance but as words in the Act were under s. 2
sub-s. (6) to have the same meaning as those used in the Transfer of Property
Act, 1882 and the Bengal Tenancy Act, 1885 it would, but for the amendment of
the definition of a thika tenant, have meant only those persons who inherited
from tenants and 179 not those who acquired by purchase. Sections 3, 4 and 5
introduced changes with which we are not concerned, Section 8 laid down that
ss. 28 and 29 of the Act of 1949 shall be omitted. Under s. 9 any proceedings
commenced under sub-s.
(2) of s. 5 of the Calcutta Thika Tenancy
(Amendment) Ordinance were to be continued as if such sub-ss. (2), (3) and (4)
of that section and the Explanation to that section were in force.
The net result seems to be that after the
Amendment Act of 1953 came into force, the position of a tenant had to be
examined in the light of the Act as it finally emerged.
Sub-s. (2) of s. 1 made the provisions of the
Calcutta Thika Tenancy Act, 1949 as amended by the Act of 1953, applicable to
all suits, appeals and proceedings pending on 21st October before any court or
before the controller or before a person deciding an appeal under s. 27 of the
Act. No reference is made in this subsection to the date when the suit was
instituted. Only suits which were pending on 21st October 1952 were to be
decided in terms of the Act as finally amended. The question therefore arises,
whether a tenant could claim the benefit of the Act in a. pre-Act suit. It is a
general principle of law that statutes are not to operate retrospectively so as
to defeat vested rights, but such operation may be given by express enactment
or by necessary implication from the language employed.
According to Craies on Statute Law (Sixth
Edition) at p. 391:
"If it is a necessary implication from
the language employed that the legislature intended a particular section to
have a retrospective operation, the courts will give it such an
The learned author points out at p. 397:
"It is a well recognised rule that
statutes should be interpreted, if possible, so as to respect vested rights,
and such a construction should: never be adopted if the words are open to
another construction.................. For it is not to be presumed that
interference with existing rights is intended by the, legislature, and if a
statute be ambiguous the court should lean to the interpretation which would
support existing rights." Again at page 398, the learned author states:
"In the absence of anything in an Act to
show that it is to have a retrospective operation, it cannot be so construed as
to have the effect of altering the law applicable to a slaim in litigation at
the time when the Act is passed, ............ Where, however, the necessary
intendment of an Act is to affect pending causes of action, the Court will give
effect to the intention of the legislature even though there is no express
reference to pending actions".
180 Reference may be made to the case of
Knight v. Lee(1) where Parke B. in his judgment, said:- "It seems a strong
thing to hold that the legislature could have meant that a party who under a
contract made prior to the Act had as perfect title to recover a sum of money
as he had to any of his personal property, should be totally deprived of it
This was decided in terms of the Gaming Act,
1845, section 18 of which enacted that --- " no suit shall be brought or
maintained for recovering any such sum of money " and the question was
whether that enactment was retrospective so as to defeat an action already
The Gaming Act,1922 enacted that "no
action for the recovery of money under the said section (s. 2 of the Gaming
Act, 1835) shall be entertained by any court". In Headling v. Goll(1) it
was held that the section was not retrospective and that the Act did not
operate to put an end to pending actions.
According to Halsbury's Laws of England,
third edition, Vol. 36, page 413, Art. 627: - "Unless it is clearly and
unambiguously intended to do so, a statute should not be construed so as to
interfere with or prejudice established private rights under contracts or the
title to property or so as to deprive a man of his property without his having
an opportunity of being heard".
The provisions of the Act of 1949 as finally
amended by the Act of 1953 have to be examined to show how far they disturb the
rights of landlord to recover possession of the property from a person who
would be a thika tenant on 28th February, 1949. Section 3 of the Act which cuts
down the right of the landlord to recover possession except on the grounds
therein specified musi be held to apply to all suits even though filed before
28th February 1949. The language of the section leaves no room for doubt as to
this. It expressly states that notwithstanding anything contained in any other
law for the time being in force or in any contract, a thika tenant shall be
liable to ejectment on ground specified and not otherwise. Consequently, a
landlord who had filed a suit before the 28th October 1949 but was unable to
,establish any of the grounds mentioned in S. 3 could not claim to eject his
tenant. But the provisions of ss. 4 and 5 of the Act are not couched in the
same kind of language as S. 3. The legislature clearly meant s. 4 to be
prospective because according to its language "the landlord who wishes to
eject the thika tenant (1)  1 Q.B. 41. (2) 39 Times Law Reporter 31.
181 must give at least one month's notice in
writing" or three months' notice as the case may be. A landlord who had
already filed the suit before the Act had evinced his intention and the
question of his wishing to eject the thika tenant afresh after the Act or
giving a notice for the purpose did not arise.
Again s. 5 lays down in clear terms that a
"landlord wishing to eject a thika tenant" on one or more of the
grounds specified in s. 3 "shall apply in the prescribed manner to the
controller". This is only consistent with the wish of a landlord after the
Act has come into force. Before the Act had come into force, the landlord could
not possibly know that his suit would be liable to be defeated unless he
applied to the controller because there was no such authority functioning then.
The section shows clearly that when a landlord wished to eject a thika tenant
after the Act had come into force, he had to consider whether any of the
grounds in s. 3 was available to him, and if so, he did not have to file a suit
but apply to the controller for an order in that behalf.
The language of ss. 4 and 5 leave no room for
doubt that after the coming into force of the Act it was not open to the
landlord to file a suit. He could only make an application under s. 5 after
giving notice under s. 4.
Sections 28 and 29 of the Act which were
omitted as a result of the enactment of the Act of 1953 bring this out in clear
terms. Section 28 was meant to give relief to a thika tenant in a case where a
decree or order for recovery of possession of any holding from a thika tenant
had been made before the date of commencement of the Act. It could not apply to
the facts of a case like the present where the decree was made after the Act
had come into force. Section 29, on the other hand, shows that it was to be
applicable to all suits and proceedings which were pending at the date of the
commencement of the Act of 1949. In other words, it was to apply to any suit or
appeal or any proceeding in execution which was pending on 28th February, 1949.
In any such case, the suit or proceeding wherever it was pending had to be
transferred to the controller. The controller in his turn had to deal with the
matter in accordance with the provisions of the Act of 1949 as if it had been
in operation on the date of the institution of the suit or proceeding which
might be before the commencement of the Act; but he was to deal with all
pre-Act suits on the basis that no notice under s. 4 was necessary. If the
legislature did not want to impose the bar of s. 4 to pre-Act suits in 1949 it
does not stand to reason that the legislature should seek to impose it in the
year 1953 to be operative in all suits pending not on February 28, 1949 but on
21st October, 1952.
The logical conclusion is that the
legislature always proceeded on the basis that s. 4 was prospective. The
language of s. 5 being closely similar to that used in s. 4 that section should
also be held to be prospective only.
182 We cannot speculate as to why the
legislature thought fit to omit ss. 28 and 29 from the Act of 1949. The effect
of omission of s. 28 has been considered by this Court in Mahadeolal Kanodia v.
Administrator-General of West Bengal(1) where it was held that a thika tenant
against whom proceedings for execution of the decree for eviction were pending
and who had applied for relief under s. 28 lost the protection of that section
as a result of the Amending Act of 1953.
The effect of omission of s. 29 is that we
must measure the rights of the parties in the appeal before us on the 'basis
that the section had never been on the statute book. The situation which arises
as a result thereof is that we must deal with the rights of the parties to a
suit filed before the Act of 1949 was enacted in terms of such provisions as
were clearly applicable thereto. As Abdul Gaffur came under the definition of a
thika tenant by the Amending Act of 1953 we have to proceed on the basis that he
was such a tenant in 1949 with the result that he could claim the benefit of s.
4 of the Act. As already noted, ss. 4 and 5 could not be made to apply to such
a suit which in the view expressed, were prospective and not retrospective.
Consequently, the absence of a notice under S. 4 would not stand in the way of
the landlord nor could his suit be rejected on the ground that he had not
applied to the controller. There being no provision for transfer of the
proceedings of the suit to the controller, the court had to apply the Act as it
found applicable to the facts of the case. It is open to the legislature to
impose a bar or a qualification to the rights of the parties by the use of
suitable words such as "notwithstanding any law to the contrary or in any
agreement between the parties". In such a case, a litigant desiring to
have relief in a suit must show that the bar does not affect his case. For
instance, it is open to the legislature to enact that notwithstanding the
rights which a landlord may have against a tenant under the ordinary law of the
land, he shall not be entitled to eject the tenant unless he makes out a
special ground for eviction, as has been done by S. 3 in this case. Most of the
Rent Control Acts all over India contain similar provisions and courts have
always held such provisions applicable to pending proceedings. Whereas before
the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for
the landlord either to allege any of the grounds specified in s.
3 or to prove the existence thereof at the
hearing of the suit, he had to establish the existence of such a ground when
the suit was heard. The ground need not be specified in the plaint, but
nevertheless it had to be established in the suit. In this case, the learned
Subordinate Judge, Seventh Court, Alipore who was directed by the remand order
of the Calcutta High Court to take fresh evidence, if necessary, was not called
upon by any of the parties to hear or record fresh evidence. He however
directed his attention to the (1) 3 S.C.R. 578.
183 question as to whether the
tenant-appellant was entitled to press into service the provisions of ss. 3 and
4 of the Act.
According to him both these sections would
apply to the facts of this case. The learned Subordinate Judge seems to have
been of the opinion that it was necessary to state some ground under s. 3 on
the basis of which the landlord wanted to eject the tenant. Referring to the
notice of ejectment served in this case, he said:
"Not any one of the grounds as enumerated
in section 3 was called in aid or could be called in aid".
He was not right in his view that the grounds
specified in s. 3 could not be called in aid. Section 3 does not purport to lay
down that the grounds mentioned therein had got to be stated in the notice of
ejectment. All that the section lays down is that ejectment could not be had
unless the existence of one of the grounds was proved. Such proof could have
been adduced at the trial even if no mention of the grounds had been made
before. As section 4 of the Act was prospective only, it could not apply to
this case. The decision of the Subordinate Judge is however right inasmuch as
the landlord made no attempt to establish any of the grounds for eviction
mentioned in s. 3. The decision of the High Court, when the matter was heard
for the second time must be upheld on that ground. However, the. view expressed
by the Calcutta High Court finally hearing the appeal that suits for eviction
of thika tenants became infructuous before civil courts after the omission of
s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective
and as such inapplicable to pre-Act suits, the landlord had to establish the
existence of one of the grounds specified in s. 3 in order to succeed. There
being no provision for transfer of pending suits and appeals, the court hearing
the appeal would have to pass a decree for ejectment even if the defendant was
a thika tenant after taking into account s. 3. The tenant could not however ask
for any compensation for the structures but could only remove them in terms of
s. 108(h) of the Transfer of Proper- ty Act. For reasons we cannot speculate
upon, the legislature limited the applicability of the Act only to suits and
appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of
the commencement of the Act of 1949. It may be because before the Ordinance of
1952 no one could establish his rights as a thika tenant in view of the vague
definition of "thika tenant" in the Act of 1949 which led to the
decisions of the Calcutta High Court against persons who sought to establish
their rights as such. The legislature cannot be taken to have imposed a ban on
all pre-Act suits by the circuitous process of ss. 4 and 5 of the Act. It could
then have said in clear terms that all pre-Act suits shall be stayed. Clearly
that never was the intention of the legislature as section 29 of the Act of
1949 amply demonstrates.
In the result, as the landlord has not
established any of the grounds specified in s. 3 entitling him to ejectment,
the appeal 184 must be dismissed. On the special facts of the case, we make no
order as to costs.
Bhargava, J.-I agree with the judgment of my
brother, Mitter, J. with the exception that I would like to reserve my opinion
on the question whether section 4 of the Calcutta Thika Tenancy Act, 1949, as
amended up to 1953, is prospective or not. On the view that this appeal must be
dismissed because the respondent was entitled to the benefit of section 3, it
does not appear to me to be necessary to express any opinion on whether
compliance with section 4 was also required, or whether it being prospective
only no such compliance by the appellant was needed.
Appeal dismissed G.C.