Mahadeolal Kanodia v. the Administrator General of West Bengal

DAS GUPTA, J.-In Calcutta and its suburb Howrah there have existed for many years precarious tenan­ cies popularly known as Thika tenancies, the characteristic feature of which is that the tenant Mahadeolal Kanodia v. Administrator­ Genetal of West Bengal Das Gupta], r960 Mahadeolol Kanodia v. Administralor­ General of West Bengal Das Gupta]. 580 SUPREME COURT REPORTS [1960) 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 struc· tures 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 eject­ ment 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 pay­ ment 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 pro­ vided 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 new 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 ma.tter a.nd -· '>-. -J 3 S.C.R. SUPREME COl)RT REPOl\'{S 581 if the decree or order 'is not in conforn1ity ~yith: tl~~ 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 concern.ed in this· appeal is in these words:-- ''vVhere anv 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 ~f s1ich holding has not been recovered from 1 the Thika tenant by the execution of such decree or order, the court bv 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 th is Act other than sub-section (i) of section 5 or section 27, rescind or vary the decree or order in such manner as the Court niay think fit for the purpose of giving effect to such provision , an~l 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 lqw however failed to achiev~ its object for some years as rhe Cot!rts interpreted the defini­ tion of Thika tenant in the Act in such a manner that speaking ge~erally no t~nant. was able to establish its reqt!irement. 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 . sp~cial 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 ex­ tended 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 th~ date of the Act and before the date 13f the Ordinance but possession had not been o])tµ.ined. In 1953 the West Bengal Legislature enacted the C~lc~tta Thika Tenancy Amendment Act, 195q, revising r.ermanently the definition of Thika tenant ancl II1aking sqme other 12-6 SCI/ND/82 1960 Mahadeo(al 'Kaiiodia "V.· Administrator­ ' General of West B~ngal Das Gupta]. 1960 Afahndeolnl llanodia V, Adminislralor­ Ge11eral of JV'est Bengal D11s (,'11/ila ]. 582 SUPREME COUR:T REPORTS [1960] amendments. One of the amendments was that ss. 28 aml 29 of the Original Act were omitted. The princi­ pal 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 hacl been made b;· a tenant for relief under that section anrl such appli­ cation was pending for disposal on the date the 01nission becan1e effective. l)y reason of the f\n1cnd­ mcnt Act coming into force. The clecree for possession with which we are con­ cerned in this case was made as far back as August 8, I 94 l, by a Munsif in Howrah. The tenant's appeal was dismissed on· April 9, 194~. On February 28, 1949, on which rlate the Calcutta Thika Tenancy Act of 1949 came into force, proceedings for the exe­ cution of the decree of ejectment 11·ere pending· in the 1\hmsif's Comt. On March J<l, 19:'\2, when these pro­ ceedings were still pending the tenant made an appli­ cation to the Court which had passed the decree prav­ ing 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, l!l'i'!. In the meantime the Amenclment Act of l 'li\.~ had come into force anrl the omission of s. 28 of the Act harl become effective. The learner! Munsif held that s. 28 of the Act being no longer in force he harl no power to give the tenant a1iy relief in accordance with the provisions thereof. Jn that view he dismisser! the application. The tenant's appeal to the District Judge, Howrah, having been rejected, he preferred a secoml appeal to the High Comt. The Jeanice! judges of the J-lir;·h Court who heard the appeal agreed with the courts below on a construc­ tion of s. 1 (2) of the Amendment Act tlut s. 28 was not applicable to the proceedings commenced by the tcna!ll by his application for relief and dismissed the appeal. Against that decision the tenant has filed the present appeal befor_c us on a certificate of fitness granted by the High Comt_. The decision -of. the question raised in this appeal, viz .. whether this tena'nt who had applier! for relief ·- I ' 3 S.C.R. SUPREME COURT RE.PORTS 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 un­ disposed 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 pruvi~jons 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 Cal­ cutta 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 applicatian 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 inter­ pretation of statutory provisions of this nature are well.established. The first of these is that statutory pro­ visions creating substantive rights or taking away sub­ stantive rights are ordinarily prospective; they are re­ trospective only if by express words or by necessary implication the Legislature has made them rPtrnspec­ tive; and the retrospective operation will be limited M ahadeolal Kanodia v. Admitiistrator~ General of Wist Bengal Das Gupta]. 1960 Ma.h'.l:leolal 'KawJdia V, Adniillistratbr­ Ge11eial .of West Bengal Das Gupta J. 584 SUPRE:ME COURT REPORTS [1960] c'n1lv 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 ah1·ays to b'e gathered from the words used by it, giving to the \Vords 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 per- sons, ·any provision is ambiguous so t.h::it it is capable of tw0 1ileanings, one which would preserve the bene- fit 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 inter­ pretation should he 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 ncc:essar\', even bv modification o[ the languag·e used. ' ' In applying these principles to the interpretation of s. l (2), it is necessary first to consider a contention that has been raised by l\fr. Pathak on behalf of the appellant that the phrase "as amended by this Act" qualifies the word "provisions". lf this be correct, the meaning of the proviw 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 meaning-Jess, 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 am- endment by omissim1s. The result of the proviso, the appellant's counsel contends, is to make applicable to pending proceedings the altered provisions in place of olcl provisions but to Say nothing as regards such pro- visions which have' been omitted. vVe are ·1111;ible to see how it is possible, unless rules of grammar arc i:otally disregarded to read the words .. .; - ... "as ·amended ·by ·1.his Act" as to qualify the word "~- "provisions:' If ordinary grammatical rules arc applied there is ·no escape from the conclusion th~t 3 S.C.R. SUPREME COURT REPORTS 585 the ~djectival phrase "as amended by this Act " quali­ fies \!-_he proximate substantive,)iz., the Calcutta Thika Tenancy Act, 1949. There is no escape from the con­ clusion therefore that what the Legislature was saying by this was nothing more or less than that the provi­ sions of the amended Thika Tenancy Act shall apply. Mr. Pathak argued that if that was what the Legis­ lature 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 he 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 proviso. Even so the learned counsel contends, there is no reason to read "amendments " so as to include omis­ sions. The word" amendment '', he has submitted is sometimes used in the restricted sense of "addition" or "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 omissions. It is unnecessary for us in the present case to express any opinion on the general question whether in certain context the word" amend­ ed" should be interpreted so as to exclude omissions. What is clear however is that the present is not one of such case8. The amendment Act itself was being called the Calcutta Thika Tenancy (Amendment) Act, 1953. 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 cl. (5) of s. 2; s. 3 adds some words to cl. (1) ands·. 3(b) omit8 some words in cl. (4) and Mahadeolal Kanodia v. Administrator­ General of West Hengal Das Gupta .J. Mahadeolal Kanodia v. Administrator .. General of West Bengal Das Gupta]. 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 cer. tain 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. 11 ; 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 addi­ tions, 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 appel­ lant 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) Ordin­ ance, 1952, the position which cannot be escaped is that the Thika Tenancy Act of 1949 without the pro­ visions as regards relief to tenants against whom decrees had been obtained on the date of the commence­ ment of the original Act but possession had not been actually recovered would be applied to pending appli· cations. 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 -- . L 3 S.C.R. StJPREME· COURT1REPORTS 587 the beneficent provisions of the new Act were avail­ able to them during the disposal of the suits the man- . ner 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 power. 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 exer­ cised, was bound to dismiss the applications. There can be no doubt that this is an unfortunate result. . It may \•ery 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 Amendrne1~t Act came into force and not for any default on ·their' 11art. Mr. Pathak has repeatedly stressed this and has ask.eel us to construe· s. 1(2) ii1 a way that would retain the benefits of s. 28 to tenants whose applications remained .to be disposed of 0~1 • the crucial elate. 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, S and 9 all extend to tenants benefits to which they would not have been entitled under the original Act. Ti1is exten­ sion of further benefits to tenants, he says, is a guiding principle of the amending legislation. He points out also that. exc~l~~ 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 procee0ings .. It will be incongruous, he argued, that while all tenants stand to benefit by the amending. legi~h1 tioh . only those whose applications under s. 28 have,· for no fault of theirs, remained pending "''otild' 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 1960 Mahadeolal Kanodia v. At!ministrator­ General qf West Bengal Das Gujila J. 1960 1'falwdeola{ J[mndi;1 "- /I ilmitJ>lrator­ (;e11cral qf TVest Bcn.!Ial J)ns G11/1!a J. 588 SUPREME GOUR T REPORTS [1960] rule of interpretation of beneficent legislation that in 'Cases of ambig·uity the construction which advances the beneficent purpose should be accepted in preference to the one which <lefeats that purpose. In their anxiety to advance the beneficent: purpose of legisla­ tion courts mnst not however yield to the temptation of seeking· ambignity when there is none. On a careful consideration of. the language used by the Legislature in s. I('.!) we are unable Lo see that there is any such ambiguity. The bnguage 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 prO\·isions in s. 28 ha~ to be applier! to all pending proceedings, including execution proceedings and the proceedings pending under s. 28 of the original Act on October 21, I !Ei2. There is therefore no scope for applying in this case the principles of interpreta­ tion which are applicable in cases of ambiguity. Nor is it possible to agree with Mr. Pathak's last contention that the strict grammatical interpretation \rould result in an absurdity or inconsistency. It is urgecl that it is unthinkable that the Legislature when undenaking a legislation to help tenants would do anything to deprive them of the existing benefits under s. ~8. 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 hacl ,dready been deprived of the fruits of the decrees they had obtained for a long periorl from the date when the original Act came into force up to the time when 'llw Amendment Act came into force, it \rnuld not be right to continue that deprivation. But whatever the reasons may be the fact remains that the Legislature has used won ls which in their normal grammatical meaning· show that they intentionally deprived this class of. tenants, Yiz., those whose applications under s. 28 of the Act were undisposed of on the elate the Ordinance came into force, and remained unclisposed of, even when the Amendment Act came into force. vVe have therefore come to the eonclusion that the view taken bv the Hic:h Court in this case that the ' " - ' ' I '·· .. .. \ 3S.C.R. SUPREME COURT REPORTS 539 effect: of s. 1(2) of the Calcutta Thika Tenancy (Amend­ ment) Act, 1903, 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 De/Ji v. Satyadhan Ghosal (') and other cases is not correct. Before we part with this appeal, however, it· is our duty to refer to one incidental matter. vVe 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 follow­ ing the usual pro,cedure in case of difference of opinion with an earlier cleci~ion, 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 juris­ ,d iction in a High ·court start overruling one another's decisiqns. If one Division Ben~h 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 i1piform practice in all the High Courts in India tha't 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 (!) [1953] 58 C.W.N: 64. 13-6 SCI/ND/82 1960 Maliadeolal Kanodia V, Admlnistralor­ General of West Bl!ngal Das Gupta]. 1960 lvfa/wdeo!nl J(anodia v. Adminislra lor • Geut'ral of Wes! Rrngal Dns G11/1!a J. 1960 A/1ril 20. ------... ~ that the attention of the learned judges was not dra"·n in the presenr case to that rule. But quite apart from any rule, considerations of . judicial proprietv and decorum ought never 10 be ignored by courts in such matters. On the merits, as \\'C have Found that the view of l:nr taken by the High Conrt in this case 1s correct, the appeal is dismissed. In view however of the uncertainty that was in the law as regards the applicability of s. ~8 to proceedings pending on the commencement of the Thika Tenancy ·Ordinance, I 'l:i~. we order that the parties "·ill hear their own costs. A jijJeal dismissed. SATYADHYAN GHOSAL AND OTHERS v. Sl\I. DEORAJIN DEBI AND ANOTHER. (P. H. GA.JEN!lRAGADKAR, K N. ,\T,1xcHoo and K. C. DAS Gl'l'TA, JJ.) Remand order-Interlocutory-Whether can be challenged in Tenancy Act (W.B. Act 11 of 1949), s. 28, The Calcutta Thika appeal from final or order-Res judicata-The Calcutta Thika Tenancy (Amendment) Act, 1953 (W.B. Act VI of 1953), s. 1(2) The Calcutta Thika Tenancy (Amendment) Ordinance, 1952 (West Beniial Ordinance No. XV of 1952). ·The Calcutta Thika Tenancy Act, 1949, came into force before the appellant-landlords could obtain possession in execution of their decree for ejectment against the respondent-tenants. Failing to get the decree set aside under 0. 9, r. 13 of the Code of Civil Procedure the tenants made an application under s. 28 of the said Act praying that the decree against them be set aside on the ground that they were Thika tenants, but the Munsif holding that they were not Thika tenants dismissed their application. While an application by the tenants under s. llS of the Code o[ Civil Procedure against the Munsif's order was pending in the High Court the Calcutta Thika Tenancy Ordinance, 1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, came into force. The 1953 Amendment Act omitted s. 28 of the Original Act. The High Court after considering the effect of s. 1(2) of the Amendment Act held that it did not affect the operation of s. 28 of the Original Act which was applicable· to these proceedings. The High Court also found that the tenants were Thika Tenants - •.