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DeorajIn Debi and anr. Vs. Satyadhyan Ghosal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 230 of 1952
Judge
Reported inAIR1954Cal119,58CWN64
ActsTenancy Law; ;Calcutta Thika Tenancy Act, 1949 - Section 28; ;Bengal General Clauses Act, 1899 - Section 8; ;Calcutta Thika Tenancy (Amendment) Act, 1953 - Section 1(2), 2(5) and 9
AppellantDeorajIn Debi and anr.;satyadhyan Ghosal and ors.
RespondentSatyadhyan Ghosal and ors.;deorajIn Debi and anr.
Appellant AdvocateJitendra Kumar Sen Gupta and ;Sudhanshu Bhusan Sen, Advs.
Respondent AdvocateNalini Ranjan Bhattacharjee, Adv.
Cases ReferredMagor and St. Mellons Rural Dist. Council v. Newport Corporation
Excerpt:
- .....against an order of munsif, 2nd court, alipore, rejecting an application under section 28 of the thika tenancy act, 1949.2. the opposite parties satya dhan ghosal and others as plaintiffs instituted title suit no. 40 of 1947 against the petitioners deorajin debi and another for their ejectment from some busteeland at no, 49/5, circular garden beach road. there was also a claim for arrears of rent and mesne profits, in the plaint which was filed on february 8, 1947, the petitioners were described as monthly bharatia tenants. the defendant petitioners filed a written statement on may 22, 1947, and the suit was still pending on october 26, 1948, when the calcutta thika tenancy ordinance, 1948, came into force.3. the defendant petitioners did not ultimately contest the suit which was.....
Judgment:

Sen, J.

1. This revisional application is directed against an order of Munsif, 2nd Court, Alipore, rejecting an application under Section 28 of the Thika Tenancy Act, 1949.

2. The opposite parties Satya Dhan Ghosal and others as plaintiffs instituted Title Suit No. 40 of 1947 against the petitioners Deorajin Debi and another for their ejectment from some Busteeland at No, 49/5, Circular Garden Beach Road. There was also a claim for arrears of rent and mesne profits, in the plaint which was filed on February 8, 1947, the petitioners were described as monthly Bharatia tenants. The defendant petitioners filed a written statement on May 22, 1947, and the suit was still pending on October 26, 1948, when the Calcutta Thika Tenancy Ordinance, 1948, came into force.

3. The defendant petitioners did not ultimately contest the suit which was decreed ex parte on February 10, 1949. But though the suit was decreed ex parte and no issue was raised as to the nature of the tenancy, the learned Munsif made an observation that the defendants were thika tenants and that the decree would be subject to the provisions of the Thaka Tenancy Ordinance. It may be mentioned here that the Thika Tenancy Ordinance,1948, did not stay any pending suit but stayed the execution of decrees and orders for ejectment of thika tenants, provided that within 30 days from the date of the decree or order the tenant deposited into court the arrears of rent decreed together with costs.

4. The Calcutta Thika Tenancy Act, 1949, came into force on February 28, 1949, and Section 28 thereof provided for rescinding or varying of decrees or orders passed for ejectment of thika tenants in certain circumstances.

5. The defendant petitioners deposited on March 9, 1949, the amount of rent and costs decreed by the Munsif ex parte on February 10,1949, and at the same time filed an application under Section 28 of the Calcutta Thika Tenancy Act for rescinding the decree for ejectment. This application was contested by the plaintiff opposite-parties on the allegation that the petitioners were not in fact thika tenants within the meaning of the Thika Tenancy Act, 1949, and that the observation made to that effect in the ex parte decree passed on February 10, 1949, was uncalled for and not binding on them and that they were entitled to agitate the matter on proper materials.

6. The learned Munsif, then in charge of the court, held that the observation as to the nature of the tenancy made in passing the ex parte decree on February 10, 1949, was uncalled for and was not binding on the parties. The learned Munsif allowed the parties to adduce evidence as to the nature of the tenancy and held that the petitioners were not thika tenants within the meaning of the Act and so dismissed the application by his order dated November 12, 1951. Against that order this revisional application has been filed.

7. The ground taken in the application was that the learned Munsif had acted illegally and with material irregularity in allowing fresh evidence to be adduced concerning the nature of the tenancy in the face of the observations made in the ex parte decree.

8. The Calcutta Thika Tenancy Act, 1949, has now been amended by the Calcutta Thika Tenancy Amendment Act, 1953, which has substituted a new definition for the term 'thika tenant' and which has inter alia omitted Section 28 from the Act. The questions that now arise are firstly whether in view of the omission of Section 28 from the Act, the present revisional application which is a continuation of the petitioners' application under Section 28 of the Calcutta Thika Tenancy Act, 1949, is now competent; and secondly, whether the petitioners can get relief in view of the amended definition of the term 'thika tenant' introduced by the Amendment Act of 1953.

9. On the first point, there is a decision of Chunder, J. in the case of -- 'Jogiai Chamarin v.Atul Krishna', : AIR1953Cal770 (A). Chunder, J. held that the result of the amendment was that it had to be deemed, in view of Section 1 of the Thika Tenancy Amendment Act, 1953, that Sections 28 and 29 had never existed and that, therefore, the proceedings under Section 28 of the Calcutta Thika Tenancy Act were no longer competent. The learned Advocate for the petitioners has submitted that the point was not correctly decided by Chunder, J. and has asked us to interpret the terms of the amending Act of 1953, and come to our own conclusion on the point. He has sought to rely upon Section 8 of Bengal General Clauses Act, 1899, and has urged that in view of Section 8, the repeal of Section 28 cannot affect the right which the petitioners acquired thereunder and cannot also affect the legal proceedings in respect of such right. Section 8, however, makes the proviso that this shall be the effect of a repeal unless a different intention appears from the terms of the new Act or amending Act. Section 1(2) of the Calcutta Thika Tenancy Amendment Act, 1953, contains the following provisions: 'Provided that the provisions of the Calcutta. Thika Tenancy Act, 1949, as amended by this Act, shall, subject to the provisions of Section 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 underSection 27 of the said Act,on the date of commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952.'

10. Section 9 of the Amending Act of 1953 refers to proceedings started under Section 5(2) of the Calcutta Thika Tenancy Ordinance, 1952. The present proceedings under Section 28 of the Calcutta Thika Tenancy Act 1949 are admittedly not proceedings to which Section 9 of the 1953 Act applies. The position therefore is that the provisions of the Calcutta Thika Tenancy Act as amended by the 1953 Act shall apply and shall be deemed always to have applied to all pending proceedings. In other words, the amended Thika Tenancy Act which does not contain Section 28 of the original Act shall apply and shall be deemed always to have applied to pending proceedings under Section 28. We have to consider the result of this: the question being whether the right which the petitioners acquired under Section 28 and the proceedings in respect of such right are saved by Section 8 of the Bengal General Clauses Act in spite of the amended Act applying from the beginning to proceedings under Section 28, or whether from the terms of Section 1(2) of the Calcutta Thika Tenancy Amendment Act, 1953, the intention appears of excluding the operation of Section 8 of the Bengal General Clauses Act.

11. If Section 28 is deemed to be non-existent from the beginning, i.e., from the date when the Calcutta Thika Tenancy Act 1949 came into force, it would be logical to hold that there can be no further existence of proceedings under that section. To avoid this result, the learned Advocate for the petitioners has urged that in the clause 'the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act,' the word 'amended' does not include 'omitted', and therefore for the purpose of applying to pending proceedings, we should not take note of the fact that Section 28 of the original Act has been omitted by the amending Act of 1953, but we should only take into consideration the other amendments, particularly the amendment as to the definition of the term 'thika tenant', andwe should apply such amended provisions even to pending proceedings under Section 28 of the original Act even though Section 28 is now omitted.

12. It is however difficult to accept this interpretation. The amendment of the Calcutta Thika Tenancy Act 1949 by the Amendment Act of 1953 includes not only the substitution of a new definition of the term 'thika tenant' for the original definition and other substitutions contained in Sections 3, 4, 5 and 7 of the Act of 1953, but it also includes the omission of some sections of the original Act made by Sections 6 and 8 of the amending Act. In this connection, it may be pointed out that the preamble of the Amendment Act of 1953 runs as follows:

'Whereas it is expedient to amend the Calcutta Thika Tenancy Act, 1949, for the purposes and in the manner hereinafter appearing:'

In this preamble the term 'to amend' necessarily includes the omissions made by Sections 6 and 8 of the amending Act. The learned Advocate for the petitioners has urged that we should not look to the preamble for interpreting words used in the body of the Act. If however there is some obscurity in the words in the body of the Act, the terms of the preamble may be looked into. Moreover, even apart from the preamble, we must give to the term 'amended' its natural meaning as altered by additions, substitutions and omissions' when the term is used in connection with a bill or enactment.

13. It has to be considered in view of the above meaning of the term 'amended' whether it necessarily follows the proceedings under Section 23 are incompetent since 14-3-53 when the Amendment Act came into force, or in view of the terms of Section 1(2) of the same, since 21-10-52 when the Thika Tenancy Amendment Ordinance 1962 was promulgated. It is to be observed that the proviso to Section 1(2) of the Amendment Act does not say that the amended Act shall be deemed to have been the law from the commencement of the original Act; it only says that the provisions of the amended Act shall apply and shall be deemed to have always applied to pending proceedings. If the amended provisions were to be deemed to have been the law always, pending proceedings under an omitted, and therefore deemed to have been non-existent, section would necessarily become incompetent. But to say that the amended provisions of the Act from which Section 28 has been omitted shall be held to have always applied to pending proceedings even under Section 28 is not the same thing as to say that the proceedings under Section 28 become incompetent.

In the terms of Section 1(2) of the Amendment Act no clear intention appears of excluding the operation of Section 8 of the Bengal General Clauses Act, i.e., of nullifying the rights accrued under the repealed provisions and the proceedings in respect of such rights. It must be held therefore that the present proceedings are competent. Chunder J. in the case cited above no doubt took the opposite view, but it appears that he did not draw the distinction between the amended provisions being deemed to have been the law always and the amended provisions being deemed to have applied always to pending proceedings. The purpose of the Thika Tenancy Amendment Act 1953 was to give relief to Thika tenants; and even if it were held that the terms of Section 1(2) admit of both the interpretations, the interpretation adopted above being more in consonance with the purpose of the Act must be preferred. In this connection the following extract from the proceedings of the West Bengal Legislative Assembly is relevant as showingthe intention of the legislature. The extract is from the speech of the Government member steering the Bill, in reply to the criticisms made by various members to the provisions of the Bill.

'With regard to the discussion about the rights of thika tenants under Section 28, Sir, if my friends will carefully read the Bill, I have no doubt that they will be convinced that all cases are protected except the cases in which decrees were made prior to the commencement of the Act and in which appeals or proceedings are not pending. ............ Clause 1, Sub-clause (2) ofthe Bill will protect all pending suits, appeals and proceedings. So that you will see that if any proceeding was started or any appeal was filed from a decree which was passed before the Act, those are protected.' (Official Report, West Bengal Legislative Assembly, 2nd March 1953).

14. It is no doubt true that proceedings of the Legislature cannot ordinarily be looked into in making judicial construction of a statute, and the plain meaning of the language used must be adopted. When, however, there is any difficulty or ambiguity as to the interpretation of any section, there is no reason why assistance should not be obtained from discussions in the legislature as to the scope and intention of the legislation. It has been held that that the words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute is not denied to the class intended to be relieved. -- 'Raghuraj Singh v. Harkishan' . The discussions in the legislature may assist in ascertaining what is the relief contemplated by the statute and what is the class intended to be relieved.

15. We therefore answer the first point in favour of the petitioners, holding that the present proceedings are competent.

16. As regards the second point, in view of the amended definition of the term 'thika tenant' and the evidence recorded by the learned Munsif when hearing the application under Section 28, the petitioners must be found to be thika tenants. The petitioners' predecessor, Saraju Choubey, took settlement of the land in question in a Bustee area for a residential purpose. The landlord adduced evidence to the effect that Saraju purchased the huts existing on the suit-land from the landlord and did not erect the huts himself; but under the amended definition such acquisition by purchase by the tenant of structures for residential purpose is sufficient and erection by the tenant himself is no longer necessary. The lease was by a registered deed; but the term recited therein is three years, and not twelve years or more, though the tenants have been holding over and are now in occupation for more than twelve years. Hence the requirements of the definition are satisfied and the petitioners must be held to be thika tenants.

17. Hence this application succeeds and the rule is made absolute. The order of the learned Munsif dismissing the application under Section 28 is set aside, and the case is remanded to the Court below for disposal of the same according to law. In view of the circumstances, it is ordered that the parties will bear their own costs up to this stage in respect of the application under Section 28 of the Act.

P.N. Mookerjee, J.

18. I entirely agree that this Rule should succeed but I would add a few words.

19. This is one of the oft-recurring instances of modern legislation almost failing to achieve its object. It emphasises once more the need of the utmost caution & care in drafting statutes -- particularly remedial -- & focusses attention to the evilsof imperfect & Immature legislation. Hasty legislation has been a notorious feature of modern times with the undesirable but inevitable consequence of successive amendments, & even when far-reaching social and economic measures affecting the age long concepts in popular life are sought to be introduced through legislative means, sufficientcare is not often taken by the framers of the particular statutes to foresee all their possible consequences or to give full, proper and clear expression to their underlying intention. The necessityof quick amendments of statute law is by itself sufficiently bad, but when such amendments againtend to fail in attaining their objectives and even tend to produce greater mischief than they suppress, the situation becomes confused, chaotic and almost hopeless. The result is a tremendous growthof unnecessary and ruinous litigation and the Court's time is largely wasted in struggling with ill-drawn legislative measures to give them a just and workable interpretation.

20. About three quarters of a century back, North, J. in the case of -- 'Wigram v. Fryer' (1887) 36 Ch. D. 87 (G), regretted that 'the intention of the Legislature' would not clearly appear on the face of the language, used in the statute, butwould have to be gleaned or deduced by interpretation.

'It is a very lamentable way of legislating', so remarked the learned Judge, 'that one should be driven to get at the meaning of these Acts by removing difficulties (as far as can be done) by construction rather than that the intention of the Legislature should be clearly expressed upon the face of the Act'.

(Vide page 99 of the Report). It is, indeed, strange that the same remarks need repetition even today after the lapse of several decades.

21. In the year 1948 the Thika Tenancy Ordinance was enacted to give relief particularly to the 'bustee dwellers' of this city. The need for such relief was very urgently felt and the Ordinance of 1948 quickly followed. Within a few months came the Act of 1949 which replaced the 1948 Ordinance. The Act, however, practically failed in its object, primarily because of bad draftsmanship. Then came the Amending Ordinance of 1952 to cure the defects of language and to carryout the intention of the framers of the Act and in the early part of this year the present amendments were made to give 'more effective protection to Thika tenants'. Section 1(2) of the Amending Act, however, was so worded as to leave sample scope for a perplexing controversy as to whether a large body of thika tenants who had protection under the Ordinance, immediately preceding, would continue to be so protected, and, in the present litigation, that controversy has arisen in an acute form.

22. Whoever was responsible for the drafting of this amending statute has, possibly quite unsuspectingly, created a difficulty which ought to have been -- and could also easily have been -- avoided by a more careful drafting. I am not saying this in any unfair spirit of criticism but only to draw attention to a growing evil which can be sufficiently checked at the root and should not, therefore, be allowed to thrive to the detriment of society.

23. In the view which I am taking, it is not necessary to express any opinion on the petitioner's argument that the words 'the provisionsof the Calcutta Thika Tenancy Act, 1949, as amended by this Act,' refer only to those of the provisions which are 'amended' or charged butnot wholly omitted. Prima facie at least as pointed out by my learned brother, there is considerable difficulty in accepting that submission in view of the dictionary meaning of the word 'amend' and in view also of the wide sense in which the said term has clearly been used in the preamble of the Amending Act, namely, to include 'omissions' as well.

24. It is however, unnecessary as already indicated above, to say more on this argument.

25. Prom the judgment of my learned brother, it is fairly clear that the language used in the relevant part of the statute is distinctly unhappy. Its meaning is not plain on the face of it and it is prima facie, at least, susceptible of an easy construction which does not convey its real import. The section, properly construed, affects pending proceedings not adversely against the thika tenant but to his advantage and sufficient reasons for this view have already been given by my learned brother. With those reasons I am in complete agreement.

26. It is true that the section -- or, rather, the relevant proviso, -- is not happily worked but, taking it at the worst against the petitioner, it is ambiguous or capable of two interpretations, one extending the benefits of the Amending Act to pending proceedings under Section 28 of the old or the original Act and the other totally uprooting the same and 'killing' them altogether. There can be no dispute also that the statute under consideration is a remedial statute.

27. The basis is thus laid for the application of the well-known rule of statutory interpretation that

'the words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved.'

Starting from antiquity that rule has often been invoked by Courts, though within well-defined limits, to prevent statutes from becoming nullities or failing to achieve their purpose on account of unskilful or inartistic drafting. Recent instances of the application of the rule are to be found in the case of -- , before the Judicial Committee, in the case of -- 'Ram Taran Banerjee v. Mrs. D. J. Hill' AIR 1949 PC 135 (D), before the Federal Court & in the case of -- 'Amulya Chandra Roy v. Pashupati Nath', : AIR1951Cal48 (FB) (E), before a Full Bench of this Court. The true application of this rule Involves no conflict with the other rule of strict grammatical construction recently re-affirmed by the Supreme Court in the case of -- 'Nalinakhya Bysack v. Shyam Sunder Halder' : [1953]4SCR533 (F) and no unwarranted excursion or 'voyage of discovery' against which a broad warning was lately sounded by the English House of Lords in the case of -- 'Magor and St. Mellons Rural Dist. Council v. Newport Corporation' (1951) 2 All ER 839 (G).

28. The two rules have their own separate fields and, although, at some points, the boundaries may tend to overlap and the demarcation may become indistinct and extreme caution is needed to avoid straying into the unwarranted region, the present case is far removed from such uncertain dividing lines. The ambiguity in the statutory language, with which we are here concerned, appears to be such as to bring it readily under the former rule of interpretation, and, as the intention of the statute in question and its scope and object definitely point to a liberal construction in favour of the thika tenant (vide, inparticular, the Statement of Objects and Reasons of the Amending Act -- West Bengal Act VI of 1953), the section -- or rather the proviso, -- under consideration should be construed, as far, of course, as language permits, so as to give effect to that intention.

29. It should not be forgotten further that, as, in such cases too, the limit is set by the statutory language, the construction which is more in consonance with the legislative intent is also a 'literal' construction, although it may not always be strictly grammatical. It is only one amongst two or more 'literal' constructions, and, as it gives effect to the object and purpose of the statute, reason dictates that it should be preferred and ought to be allowed to prevail.

30. I agree, therefore, in the view of the law, taken by my learned brother, and, with the utmost respect to Chunder, J. who held the opposite in -- ' : AIR1953Cal770 (A)', I express my respectful dissent from his said decision.

31. This Rule, accordingly, succeeds and it is made absolute without costs.


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