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Aswini Kumar Chatterjee Vs. Sukhendu Nath Guin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3763 of 1975
Judge
Reported inAIR1977Cal243,81CWN523
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 1 and 13; ;Transfer of Property Act
AppellantAswini Kumar Chatterjee
RespondentSukhendu Nath Guin
Appellant AdvocateRebati Nath Sarkar and ;Jagadish Ch. Das, Advs.
Respondent AdvocateAmulya Chandra Mukherjee, Adv.
Cases ReferredV. K. Varma v. Mohan Kumar Mukherjee
Excerpt:
- .....calendar month. the tenancy was determined by notice calling upon the defendant to vacate the suit premises with the expiry of the month of agrahayan 1381 b, s. when this suit was instituted, the provisions of the said act had no operation in respect of the town of dubralpur in which the suit premises are situate. as the suit was pending, the provisions ofthe said act became applicable to the town of dubrajpur on its declaration as municipality as aforesaid.3. the defendant in course of proceeding filed an application stating that in view of the area being declared as the municipal area, the suit was to be governed under the provision of the west bengal premises tenancy act instead of the t. p. act. this application was rejected by the learned munsif on the view that the west bengal.....
Judgment:

Salil Kumar Datta, J.

1. ThisRule has been referred to a Division Bench by Janah, J. in view of the conflict of decisions of the two single Benches of this court on the point as to the applicability of the West Bengal Premises Tenancy Act, 1956 to a pending proceeding. Under Sub-section (3) of Section 1 of the said Act, the Act extends to the whole of Calcutta and to all areas which have been or may hereafter be constituted municipalities under the provisions of the Bengal Municipal Act, 1932. It is also further provided that the State Government may extend the operation of the Act to any other area by Notification. By Notification dated July 23. 1975 published in the Calcutta Gazette (Extraordinary) on July 24, 1975 the town of Dubra.ipur was declared as muni-cipa] area. In consequence, under the provisions of the said Act referred to above, the operation of the Act extended to the said town constituted as municipality as aforesaid.

2. The petitioner instituted a suit on January 16, 1'975 for recovery of possession as also arrears of rents and damages in respect of a premises held by the defendant as a monthly tenant at a monthly rent of Rs. 31/- according to Bengali calendar month. The tenancy was determined by notice calling upon the defendant to vacate the suit premises with the expiry of the month of Agrahayan 1381 B, S. When this suit was instituted, the provisions of the said Act had no operation in respect of the town of Dubralpur in which the suit premises are situate. As the suit was pending, the provisions ofthe said Act became applicable to the town of Dubrajpur on its declaration as municipality as aforesaid.

3. The defendant in course of proceeding filed an application stating that in view of the area being declared as the municipal area, the suit was to be governed under the provision of the West Bengal Premises Tenancy Act instead of the T. P. Act. This application was rejected by the learned Munsif on the view that the West Bengal Premises Tenancy Act would not apply to pending cases. When the Rule challenging the aforesaid order came up for hearing before Janah, J. it was noted in the order that in case of Niranjan Modak v. Lakshminarayan Guin, reported in : AIR1976Cal322 R. Bhattacharya, J. was of opinion that Section 13 of the West Bengal Premises Tenancy Act would retrospectively apply'to such suits. A contrary view was taken by Chittatosh Mooker-jee, J. in Gurdial Singh v. Animesh Ch. Roy Gupta, reported in (1976) 3 Cal HC (N.) 301. The Rule in the circumstances has come up before us on reference by Janah, J.

4. It is well settled that the court will take into consideration even in appeal a change of law or facts that may have taken place during the pendency of the proceeding. Bhattacharya, J. has referred to several decisions of the Supreme Court in support of the above proposition. As was observed in Lachmes-hwar Prasad Shukul v. Keshwar Lal Chowdhury, reported in AIR 1941 FC 5, it was held that the court is bound to consider ,any change either on fact or in law, which has supervened since the judgment was entered as was the position in that case. Bhattacharya, J. strongly relied on the decision in S. B. K. Oil Mills v. Subhas Chandra, reported in : [1962]2SCR159 where the Supreme Court was considering the provisions of Section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 which becomes applicable on its extension to particular area by notification. In this case the suit by the landlord for possession was filed on April 25, 1957 and while the suit was pending by notification of August 16. 1958. Part II of the said Act which included Section 12 was extended to the area where the premises are situated. The tenant lost in the trial court as it was held that the Act was prospective which the Supreme Court considered erroneous. It was observed :--

'But a section may be prospective in some parts and retrospective in otherparts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the Legislature is apparent. This is more so, when acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn. p. 365). The Sub-section (Section 12(1)) says that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc. and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned.'

The Court further observed :--

'The point of time when the sub-section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the subsection applies equally to the suits pending when Part II comes into force and those to be filed subsequently. The contention of the respondent that the operation of Section 12(1) is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The con-clusion must follow that the present suit cannot be decreed in favour of the respondent.'

4-A. Relying on this decision, Bhattacharya, J. referred to Section 13 (1) of the Act which states as follows :

'Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds.....'

5. There are several grounds for which the landlord may evict the tenant. It was noted that the Act was not in force when the suit was filed and the landlord wanted to evict the tenant under the provisions of the T. P. Act. According to Bhattacharya, J. in view of the clear language of Section 13 (1) of the Act there can be no doubt whatsoever that in spite of any other law being in force no court can pass-any order or decree for recovery of possession of the suit premises evicting a tenant except on one or more of the grounds mentioned in Sub-section (1) of Section 13. Accordingly, the court even in pending cases is to see whether any order or de-cree for recovery of possession can be passed according to the provisions of the Act and it does not matter whether the suit was originally filed under a different statute.

6. Chittatosh Mookerjee, J., on the other hand, referred to a Bench decision of this court in the case of Madho Prasad Sukul v. Gangaram Saraogi reported in ILR (1968) 2 Cal 183 where the provisions of the Act had been extended to Purulia during the pendency of the ejectment suit against the tenant. P. N. Mookherjee. J. speaking for the court observed as follows :

'It is an accepted rule of interpretation of statutes that in the absence of anything in the statute itself, either express Or implied, giving it retrospective effect or operation in the case of a statute, which affect substantive or vested right, it should be construed as prospective and should not be applied to pending actions. The rule is different in procedural statutes. .

The clear indication in Section 13, of which Sub-section '(6) is also a part, is to point out and emphasise that the decree or order for eviction mentioned in Sub-section (1) of Section 13 obviously refers to a decree or order to be passed in a suit which is otherwise governed by the Act. A suit, which is governed by this Act, must be a suit contemplated in Section 13 (6) and must accordingly, comply with the requirements of the said sub-section. To a pending action, however, it will be impossible to apply the said sub-section. Vide in this connection, V. K. Varma v. Mohan Kumar Mukherjee, : AIR1962Cal563 (SB) where a similar view of Section 13 (6) was taken. Indeed, if this statute is to be given a retrospective operation in the sense that it would apply to pending actions, it would really impose upon the landlord an impossible and absurd condition of complying with a provision, which was not in existence at the date of the suit, but compliance with which would be necessary to enable him to have a decree. We do not think that the Legislature even intended or contemplated such a consequence.'

7. As has been held in the judicial decisions application of provisions of an Act to a pending proceeding may be made by a competent Legislature. Such application however can be made by express provision or by clear intendment. In the case before us, there is no express provision providing that on extension ofthe operation of the West Bengal Premises Tenancy Act all pending suits should be governed by the provision of the said Act. The question of intendment will have to be considered with reference to other provisions of the Act so that all the provisions of the Act can be given a harmonious working by such retrospective operation. In other words as all the provi-sions of the Act are to have and to be deemed to have effective and harmonious operation, if by retrospective operation some sections of the Act are incapable of application and rendered nugatory, such retrospective operation shall not be considered to be the intendment of the legislature. If the provisions of the West Bengal Premises Tenancy Act are made applicable to a pending proceeding, the application of the provisions of Section 17, Sub-sections (1) and (2) and following sections will be rendered completely nugatory. As has been held by the Division Bench, it would be impossible for the landlord to comply with the provision of Sub-section (6) of Section 13 of the Act which provides for a notice of one month from the institution of the suit. We therefore find it difficult to hold that there was any intendment of the Legislature that the provision of the said Act would be applicable to a pending action on extension of the operation of the Act to the area in which the suit premises are situate. This position was also noted by Mookherjee, J. when he came to the conclusion for reasons indicated that there was no ground for holding that Legislature intended that the provision of the said Act would be applicable to pending action where it did not originally apply. As noted by the Division Bench, the suit contemplated in Section 13 (1) is a suit in respect of which a notice is given under the provisions of Section 13 (6) and read in that light the suit contemplated under Sub-section (1) of Section 13 must be one which is otherwise governed by the said Act. This position did not arise in the decision of the Supreme Court we have cited above and there was no such conflict in respect of the operation of the different sections of the Act and whatever incongruity might arise had been saved by Explanation to Section 12 of the Bombay Act which was also noticed by the said court. Accordingly, the case is distinguishable with reference to the facts as also of the provisions of the law of the case before us. In this view of the matter, we are in agreement with the decision of Mookerjee, J. that the provisions of the West Bengal Premises Tenancy Act have no application to pend-ing proceedings in respect of suits for recovery of possession of the premises situate in an area to which the Act is extended when the suit was pending.

8. The impugned order accordingly is sustained and the connected Rule is discharged. There will be no order as to costs.

G.N. Ray, J.

9. I agree.


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