Skip to content


Kanailal Ghosal and ors. Vs. Ena Dutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3157 of 1972
Judge
Reported inAIR1974Cal24,77CWN572
ActsWest Bengal Premises Tenancy Act, 1956 - Section 17E; ;West Bengal Premises Tenancy (Amendment) Act, 1970; ;Constitution of India - Article 19
AppellantKanailal Ghosal and ors.
RespondentEna Dutta
Appellant AdvocateSachindra Chandra Dasgupta and ;Himadri Sankar Mazumdar, Advs.
Respondent AdvocateRadhakanta Bhattacharya and ;Madan Mohan Ghosh, Advs.
Cases ReferredShri Subimal Kr. Bose v. Sm. Renubala Dutta
Excerpt:
- .....petitioners' application under sections 17-e and 3 (a) of section 4 of the second amendment of the west bengal premises tenancy act on 10-6-72. a written objection to the same was filed by the petitioners on 3-8-72, denying the allegations and as such the petitioners had knowledge of the order dated 10-6-72. the learned government pleader submitted that from the mere signature of the learned lawyer receiving the noticeor the objection filed by him, it should not be presumed that the defendant had the requisite knowledge and in any event these averments were not made in the affidavit-in-opposition to enable the defendants-petitioners to controvert the same in the affidavit-in-reply. on a consideration of all the materials, i hold ultimately that there is sufficient cause within the ambit.....
Judgment:
ORDER

N.C. Talukdar, J.

1. These are two Rules at the instance of the defendants-petitioners, the first one being under Section 5 of the Indian Limitation Act for condonation of delay in filing the substantive application under' Section 115 of the Code of Civil Procedure and the other one under Section 115 of the Code of Civil Procedure, calling upon the plaintiff-opposite party to show cause, as to why, upon such condonation, the order dated 10-6-72 passed by Shri N.R. Sanyal, learned Munsif, Additional Court at Sealdah, District 24-Parganas in Title Suit No. 8 of 1964, should not be set aside.

2. Having heard Mr. S.C. Dasgupta, Senior Government Pleader (with Mr. Himadri Sankar Mazumdar, Advocate), appearing on behalf of the defendants-petitioners, and Mr. Radhakanta Bhattacharya, Advocate (with Mr. Madan Mohan Ghosh, Advocate), appearing on behalf of the plaintiff-opposite party: and on going through the averments made in the petition as also the affidavits filed on behalf of the respective parties, I hold that there is a considerable force behind the submission of Mr. Dasgupta for condonation of delay. The application under Section 115, Civil Procedure Code is out of time by about eleven days and the reasons for the same are incorporated in paragraphs 13 and 14 of the petition on which the Rule under Section 5 of the Indian Limitation Act was issued, namely that the petitioners had no knowledge about the order dated 10-6-72 passed by the learned Munsif at Sealdah until they came to know about the same for the first time on 9-9-72 from their learned Advocate in the Sealdah Court, whereafter they obtained the relevant certified copies on 14-9-72 and handed over the papers to their learned Advocate at Sealdah for filing the appeal there. On 18-9-72 the said learned lawyer informed the petitioner No. 2 that no appeal lies against the order, and accordingly the said petitioner No. 2, without any unnecessary delay, handed over the papers to the learned Advocate in High Court for moving the application under Section 115 of the Code of Civil Procedure. The revisional application was ultimately filed on 19-9-72, after a delay of about eleven days. It was submitted that this was bona fide and may be condoned as otherwise the petitioners will suffer irreparable loss. The opposite party in Paragraphs 8 and 9 of her affidavit-in-opposition denied the petitioners' statements. In their affidavit-in-reply, the petitioners denied the allegations. At the time of the hearing of the Rule, it was further contended on behalf of the plaintiff-opposite party that from Paragraph 4 of the application filed by the opposite party in Title Execution Case No. 45 of 1969 in the Court of the Additional Munsif, Sealdah, a copy whereof was served on the petitioners' lawyer on 18-7-72, it appears that there is a reference to the rejection of the petitioners' application under Sections 17-E and 3 (A) of Section 4 of the second amendment of the West Bengal Premises Tenancy Act on 10-6-72. A written objection to the same was filed by the petitioners on 3-8-72, denying the allegations and as such the petitioners had knowledge of the order dated 10-6-72. The learned Government Pleader submitted that from the mere signature of the learned lawyer receiving the noticeor the objection filed by him, it should not be presumed that the defendant had the requisite knowledge and in any event these averments were not made in the affidavit-in-opposition to enable the defendants-petitioners to controvert the same in the affidavit-in-reply. On a consideration of all the materials, I hold ultimately that there is sufficient cause within the ambit of Section 5 of the Indian Limitation Act and the resultant delay of eleven days in filing the connected revisional application should ex debito justitiae be condoned. The Rule under Section 5 is accordingly made absolute without costs and the delay in filing the connected application under Section 115, C. P. C. is hereby condoned.

3. The facts leading on to the substantive Rule under Section 115, Civil Procedure Code can be put in a short compass. The plaintiff-opposite party filed on 24-7-61, in the First Court of the learned Munsif at Sealdah, a Title Suit, being Title Suit No. 480 of 1961, which was transferred to the Additional Court of the Munsif at Sealdah and renumbered as Title Suit No. 8 of 1964, against one Sailendra Nath Ghoshal, who was the predecessor-in-interest of the present defendants-petitioners, for khas possession of the suit premises on eviction therefrom and mesne profits. It was averred inter alia that by a registered deed dated the 16th January, 1961, the plaintiff purchased the suit premises No. 89-A Gar-par Road, in the ground floor whereof the said Sailendra Nath Ghoshal was a tenant at a monthly rent of Rs. 28/-. As the plaintiff required the same for her own use, the said tenant was asked to quit and vacate the suit premises. The suit was contested and the learned Munsif. Additional Court at Sealdah ultimately decreed in favour of the plaintiff on 21-7-64. On appeal by the predecessor-in-interest of the defendants, it was allowed on 13-5-65, wherefrom a second appeal being S. A. No. 1502 of 1965, was filed in the High Court by the plaintiff. Mr. Justice S.K. Dutt, who heard the second appeal sent down the records to the Court of Appeal to decide the issue raised as to whether the plaintiff was the Benamidar of her father in respect of the suit premises. The learned Subordinate' Judge on remand found in favour of the plaintiff and the appeal came up for hearing before the High Court. Mr. Justice S.K. Dutt, by his order dated 16-6-69 ultimately allowed the appeal and restored the decree. An appeal under clause 15 of the Letters Patent, being L. P. A. No. 14 of 1969, was preferred by the defendants therefrom.

During the pendency of the said appeal, the defendant-appellant died andhis heirs and legal representatives, who are the present defendants-petitioners, were substituted. On 17-4-70, the petitioners filed an application under Section 17-E of the West Bengal Premises Tenancy Act, as amended by the Amending Act XVIII of 1970, in the trial Court and by way of abundant precaution also filed another application under Section 17-E in L. P, A. No. 14 of 1069 for setting aside the decree on the ground that the decree-holder had not yet taken khas possession of the suit premises. The plaintiff had in the meanwhile started the execution case, being Title Execution Case No. 45 of 1969, for taking khas possession of the suit premises. The Letters Patent Appeal ultimately was dismissed on 3-2-72 by Mr. Justice Arun Kumar Mukherjea and Mr. Justice M. M. Dutt and while dismissing the appeal their Lordships also dismissed the application under Section 17-E filed in the High Court without granting any leave or direction with regard to the application in the trial Court. On 10-6-72 the application filed under Section 17-E of the West Bengal Premises Tenancy Act came up for hearing before the learned Munsif, who dismissed it holding that 'in view of the Jt. passed by the Hon'ble Court, Calcutta the petition under Section 17-E be rejected without costs'. The 'said order has been impugned and forms the subject-matter of the present Rule. An affidavit-in-opposition was filed on behalf of the plaintiff-opposite party challenging the various statements made in the body of both the petitions filed on behalf of the defendants-petitioners and an affidavit-in-reply thereto was filed by the plaintiff-opposite party.

4. The contentions raised in the substantive Rule, on behalf of the defendants-petitioners, by the learned Senior Government Pleader, are of two dimensions. The first one is that the order of dismissal of the application under Section 17-E passed on 10-6-72 is not a proper order inasmuch as the same was disposed of not on merits but on the purported basis of the judgment passed on 3-2-72 by the High Court, which according to him did not however pass any order on the application while dismissing the Letters Patent Appeal. The second dimension of Mr. Dasgupta's arguments is that on merits, the prayer of the defendants-petitioners should have been allowed inasmuch as the essential ingredients of the provisions contained in Section 17-E of the West Bengal Premises Tenancy Act, 1956. as amended by the West Bengal Premises Tenancy (Amending) Act 18 of 1970, were clearly satisfied. Mr. Bhattacharya. appearing on behalf of the plaintiff-opposite party, joined issue. In reply to the first dimension of Mr. Dasgupta's contention, Mr. Bhattacharyasubmitted that the High Court not merely referred to the application filed under Section 17-E in its judgment dated 3-2-72 but dismissed it in specific terms, refusing to pass any direction on the learned Additional Munsif at Sealdah as prayed for or even not qualifying the order passed in any way. Mr. Bhattacharya next contended that Section 17-E of the West Bengal Premises Tenancy Act cannot be given any retrospective operation on the ground of reasonableness and as such the application filed in that behalf, seeking to give a retrospective effect is not maintainable. In support of his contention, he referred to several cases which will be considered in the proper context.

5. The first dimension of Mr. Dasgupta's argument is not strictly correct. A reference to the order passed by the High Court in the Letters Patent Appeal on 3-2-72 would make it abundantly clear that there is not only a reference to the application, but also a dismissal thereof. It is undoubtedly true that Mr. Dasgupta, who had appeared in that case on behalf of the defendants-appellants, had fairly conceded that the application under Section 17-E was not maintainable in the High Court, and that his clients having made a similar application in the trial Court, the High Court may be pleased to direct the said court to dispose it of on merits. Mr. Justice Arun Kumar Mukherjea and Mr. Justice Murari Mohan Dutt while dismissing the Letters Patent Appeal with costs, also dismissed the defendants-appellants' application under Section 17-E without any costs and without giving any direction, as prayed for, or making any observations qualifying the said order. It is difficult however to agree with Mr. Bhattacharya's submission that the order of dismissal being an unqualified one, amounts to a dismissal on merits. In the facts and circumstances of the case, there is much force behind Mr. Dasgupta's submission that there has been no dismissal of the application under Section 17-E of the West Bengal Premises Tenancy Act on merits in the order dated 10-6-72 passed by the learned Munsif, Additional Court, Sealdah. For a proper disposal however of this dimension of Mr. Dasgupta's argument, a consideration of the second dimension is also necessary. It is only when the latter fails, that it can be found with regard to the first dimension that although there has been no disposal on merits, the ultimate conclusions arrived at by the learned Munsif, Additional Court at Sealdah, - should be upheld. I will therefore proceed to consider the second dimension of the arguments.

6. The second dimension of Mr. Dasgupta's contention is one of law andof some importance. The steps of Mr. Dasgupta's reasoning in this behalf are three-fold, viz., (a) that the provisions of Section 17-E of the West Bengal Premises Tenancy Act are neither retrospective nor prospective but are complete by themselves, whereunder the tenant concerned is entitled to relief, if and when the conditions precedent are satisfied; (b) that even if the said provisions be considered to be retrospective in nature, the same should not be held to be ultra vires the Constitution, as it would result in rendering the entire provisions nugatory and frustrate thereby the intention of the legislature; (c) and that in any event, in the present case the question involved is not ultimately of a retrospective operation of the provisions inasmuch as the decree for recovery of possession of the premises in question passed in the suit has not become final because of the pendency of the Letters Patent Appeal No. 14 of 1969 on the date of the commencement of the West Bengal Premises Tenancy (Second Amendment) Act, 1969. Mr. Bhattacharya in reply submitted that the provisions of Section 17-E are essentially retrospective in nature and accordingly, as held in a series of decisions of this Court, smack of unreasonableness and as such are ultra vires the Constitution, Mr. Bhattacharya further submitted that even assuming but not admitting Mr. Dasgupta's contention, that the decree passed In the suit had not become final on the material date because of the pendency of the Letters Patent Appeal, the application under Section 17-E of the West Bengal Premises Tenancy Act would in any event be still not maintainable on that footing, inasmuch as the provisions of the said section clearly enjoin that relief may be granted only in those cases where the decree has become final on the material date but no appeal is pending and the possession also was not recovered.

7. The first step of Mr. Dasgupta's reasoning is difficult to follow as on an interpretation of the relevant provisions under Section 17-E of the West Bengal Act XII of 1956, it is abundantly clear that the same is retrospective in nature. Mr. Dasgupta's contentions overlook the specific words used in the section. As was observed by Maxwell in 'The Interpretation of Statutes', 'A Statute is the will of the legislature and the fundamental rule of interpretation to which all others are subordinate, is that a Statute Is to be expounded according to the intent of them that made it'. A reference may also be made in this connection to the observations of Lord Simond in the Case of Magor and St. Mellons Rural District Council v. New Port Corporation reported in (1952) AC 189 at p. 191 that 'The power and duty of the Court totravel outside them (the words used by the legislature) on a voyage of discovery are strictly limited'. I respectfully agree with the said observations and I hold that both by 'principles of intent and that of meaning', the interpretation given to the provisions of Section 17-E by Mr. Dasgupta is not tenable. To give effect to Mr. Dasgupta's contentions would be to legislate and embark 'on a voyage of discovery', beyond the bounds of the West Bengal Premises Tenancy Act, 1956, as amended by Act 18 of 1970. The second step of Mr. Dasgupta's reasoning also does not stand on a firmer footing inasmuch as the provisions of a section when held ultra vires would necessarily render the same nugatory. The third step of the learned Senior Government Pleader's reasoning in support of the second dimension of his arguments would again land him in difficulties, as the same rims off at a tangent from the factum of a final decree, ruling out thereby the sine qua non of the provisions contained In Section 17-E. It is only when the decree has become final on the material date but no appeal is pending and the possession also has not been recovered that the relief under Section 17-E can be given.

8. The point at issue, on ultimate analysis, is whether the provisions of Section 17-E of the West Bengal Premises Tenancy Act do not satisfy the test of reasonableness under Article 19 of the Constitution and are arbitrary or excessive and as such ultra vires the Constitution to the extent of its retrospectivity. The answer to the question is necessarily twofold--firstly the test of the principles of interpretation of statutes and secondly the imprimatur of judicial decisions on the point.

9. As to the retrospective operation of statutes, it has been observed in Maxwell's 'On the Interpretation of Statutes (12th Edn.)' that 'upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain Statutes a retrospective operation'. The underlying principle is based on the well-known maxim 'Nova Constitutio futuris formam imponere debet non praeteritis' (A new law ought to affect the future and not the past). One of the most well-known observations on the point is by Lord Wright In re Athlumney; Ex parte Wilson reported in (1898) 2 QB 547 at pp. 551 and 552 that 'perhaps no rule of construction is more firmly established than this--that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.' A statute therefore is not to be construed to have a greater retrospective operation than its language renders necessary. In the case of the Colonial Sugar Refining Co. Ltd. v. Irving reported in (1905) AC 369 at p. 372, Lord Macnaghten deprecated 'an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.' I respectfully agree with the observations made above and I hold that the principles laid down therein constitute the proper yardstick for interpreting the provisions of Section 17-E of the West Bengal Act XII of 1956.

10. The second test is the imprimatur of judicial decisions on the point at issue. A reference in the first instance may be made to the case of Iswari Pro-sad v. N. R. Sen reported in : AIR1952Cal273 decided by Harries C. J., G. N. Das and Banerjee, JJ. Chief Justice Harries delivering the judgment of the Full Bench observed at p. 277 that 'The Courts have always regarded giving a statute retrospective effect as unreasonable, because giving a statute such effect means interfering with accrued rights.' He proceeded to observe at p. 275 that 'Whether a restriction on a fundamental right by a piece of legislation is reasonable or not must depend upon the circumstances existing when that piece of legislation was enacted......... The Rent Acts in this Statewere enacted to meet the grave housing shortage caused by the last Great War and the congestion particularly in the cities and towns of West Bengal caused by the War and the partition of the province in the year 1947'. It was ultimately held that 'it cannot possibly be said that in the circumstances existing when these Acts were passed, the restrictions imposed by the Acts generally were unreasonable and more than were necessary in the interests of the general public.' The Full Bench case is in the context of Section 18 (1) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950, set against the background of a political upheaval, and highlighted by a population explosion but the principle laid down therein provides the correct guideline for testing the maintainability of retrospective legislation viz. the overriding consideration of reasonableness. The test of reasonableness is on ultimate analysis a relative one, changing with time and circumstances. It is neither expedient nor proper to overlook 'the wind of change'. As was aptly observed by Mr. Justice Mc-Cardie in the case of Ronald True in Notable British Trials, Vol. on Ronald True at p. 246 that 'all law must progress or it must perish in the esteem of man'. The Full Bench heldthat the circumstances prevailing in West Bengal at the relevant time were such as to make it quite reasonable to give Section 18 (1) of the Act a retrospective operation, as otherwise a large number of tenants would have been thrown on the street, giving rise to grave discontent and a consequent disturbance of law and order.

The real enquiry therefore in this case is as to the impact of the circumstances prevailing at the time when the Amending Acts XXXIV of 1969 and XVIII of 1970 were passed, on this overriding test of reasonableness. The circumstances are undoubtedly different, contributing to a different legal attitude. Numerous appeals from suits brought by transferee landlords, within three years of the date of transfer, were pending at the time, although much more than three years had elapsed in the meanwhile, and such landlords were deprived of their 'accrued rights'. This test of reasonableness, vis-a-vis the prevailing circumstances has been considered in a number of recent decisions. A reference may be made to the case of S. N. Ghosal v. Sm. Ena Dutt reported in : AIR1971Cal331 decided by Mr. Justice P. N. Mookerji and Mr. Justice A. K. Mukherjee. The said case is against the backdrop of Section 13 (3A) of the West Bengal Premises Tenancy Act of 1956, as amended by Act XXXIV of 1969, and it was held therein at p. 341 that 'whether this retrospective operation makes the restriction, imposed by Sub-section (3) (a), unreasonable so as to be violative of Article 19 of the Constitution. On this part of the case, we are inclined to return an affirmative answer.' Their Lordships further proceeded to hold at p. 342 that 'Sub-section (3) (a), so far as it operates retrospectively under the terms of Section 13, would be ultra vires and invalid and should be struck down to that extent.' Although the provisions are different, the golden thread of the underlying principles is the same.

The next case viz. A. C. Chatterjee v. P. K. Banerjee reported in (1972) 76 Cal WN 743 is a more direct one, being under the provisions of Section 17-E of the West Bengal Premises Tenancy Act XII of 1956. Mr. Justice S.P. Mitra (as his Lordship then was) and Mr. Justice A. K. Janah, held therein at pages 745 and 746 that 'we hold that there is no nexus between the retrospectivity of Section 17-E of the West Bengal Premises Tenancy Act and the mischief sought to be remedied by that section and as such the application of the said section to decrees which have already been parsed cannot be said to be reasonable.' Their Lordships ultimately proceeded to hold that 'Section17-E in so far as it operates retrospectively is ultra vires and is invalid'. There is a more recent decision on the point viz. the unreported decision in the case of Shri Subimal Kr. Bose v. Sm. Renubala Dutta in C. R. No. 1521/71 decided on 29-3-1972 (Cal) by Mr. Justice S.P. Mitra (as his Lordship then was) and Mr. Justice A.K. Janah. It was observed therein that 'It does not appear to us that the reasons, which the Munsif has advanced, are correct But we agree with his conclusions. This Court by its judgment delivered on 20-1-71 in the case of : AIR1971Cal331 held that Section 13 (3A) is ultra vires Article 19(1)(f) of the Constitution so far as it operates retrospectively. The same principle, it has been held in C. R. 1943 of 1971 applies to Section 17-E as well. On this ground the, defendants-petitioners' application under Section 17-E was not maintainable', I, respectfully agree with the principles laid down above and on an anxious consideration of the facts of the present case, I ultimately find that any retrospective operation given to the provisions of Section 17-E of the West Bengal Act XII of 1956, as amended by Act 18 of 1970, offends the test of reasonableness and as such is violative of Article 19 of the Constitution of India. Such a retrospective operation is ultra vires and invalid. I accordingly hold that the application under Section 17-E of the West Bengal Premises Tenancy Act, filed by the defendants-petitioners before the learned Munsif, Additional Court at Sealdah is not maintainable and I uphold the ultimate order of dismissal passed by the Court below on 10-6-72.

11. An ancillary submission was made by the learned Senior Government Pleader viz. that the aforesaid decisions of this High Court, have raised a cloud, rendering the relevant provisions of the West Bengal Premises Tenancy Act nugatory and frustrating thereby the intention of the legislature. He accordingly submitted that ex debito justitiae a reference may be made to the Division Bench, for referring the case, in turn, to a Fuller Bench for an ultimate decision on the point, which is of considerable importance, affecting the interests of the general public. It is true that the various amendments of Section 17 of the West Bengal Premises Tenancy Act. retrospective or prospective, have laid out 'a mosaic of arguable points', but the ultimate point at issue in this case, viz. whether a retrospective effect, as sought to be given to the provisions of Section 17-E of the Act, is unreasonable and therefore violative of Article 19 of the Constitution of India, has received an imprimatur of judicial decisions and is accordingly answered in the affirmative. The doctrine of'stare decisis' lends assurance to such finding.

12. The Rule is accordingly discharged. There shall be no order as to costs. Let the records go down as early as possible.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //