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Bhagat Ram Baika Vs. Prabirendra Mohan Tagore and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rules Nos. 388 and 389 of 1954
Judge
Reported inAIR1956Cal357,60CWN1
ActsTenancy Laws; ;West Bengal Non-Agricultural Tenancy Act, 1949 - Sections 1(2) and 72(1); ;Constitution of India - Articles 226 and 227; ;Bengal General Clauses Act, 1899 - Section 10; ;General Clauses Act, 1897 - Section 8; ;Code of Civil Procedure (CPC) , 1908
AppellantBhagat Ram Baika
RespondentPrabirendra Mohan Tagore and ors.
Appellant AdvocateChandidas Roy Chowdhury and ;A.N. Banerjee, Advs.
Respondent AdvocateJitendra Kumar Sen Gupta and ;Manindra Nath Ghose, Advs.
Cases ReferredNational. Sewing Thread Co. Ltd. v. James Chadwick and Bros Ltd.
Excerpt:
- .....act. the attention of the learned advocate for the petitioner having been, drawn to section 10, bengal general clauses act, he contended that the section would not apply to the instant case, because it) was limited to cases where a later act repealed and re-enacted some provisions of a former enactment and did not cover a case where a later act repealed and re-enacted the whole of a former act. the learned advocate also contended that, in any event, section 10 carried a qualification which was that a different intention should not appear in the incorporating act. according to him, an intention that future changes in the definition of 'calcutta', as given by the calcutta municipal act, were not to be adopted, appeared from clause (b) of section 1 (2), west bengal non-agricultural.....
Judgment:

Chakravartti, C.J.

1. This Rule raises a point which was decided by S. R. Das Gupta J. and myself in the case of-- 'Khuda Bux v. Manager, Caledonian Press' : (1954)IILLJ13Cal but there has been a further argument before us which has enabled us to examine the matter afresh and look more closely into the relevant statutory provisions and authorities. I must, however, say at once that towards the end of the argument, we discovered a section in the Calcutta Municipal Act, 1951, which settles the controversy between the parties, but inasmuch as the point was argued at great length on general principles as well, we consider it right to record our opinion on that aspect of the matter also.

2. The facts are these: The petitioner holds a plot of land appertaining to Khatian No. 168 of mouza Dhakuria, situated in the suburbs of Calcutta. He holds it as a tenant under the opposite party. His case is that the land was originally let for agricultural purposes, but is now being used as a building site. Accordingly, on 18-9-1953, he made an application under Section 72, West Bengal Non-Agricultural Tenancy Act, 1949, for the conversion of the land into a tenancy to winch the provisions of the Aqt would apply.

That application was dismissed by the Collector on the ground that the land concerned was situated within the limits of Calcutta which was excluded from the operation of the Act. On appeal, the Collector's decision was upheld by the Commissioner of the Presidency Division. Thereafter, the petitioner moved this Court and obtained the present rule.

3. On behalf of the petitioner two points were urged before us. It was contended that his appeal to the Commissioner should not have been dismissed summarily without giving him a hearing and that by such dismissal, the principles of natural justice had been violated. It was contended in the second place that the decision of the authorities below was also wrong on the merits, inasmuch as, in view of the definition of 'Calcutta' as contained in Section 1(9) (a) of the Act, it could not be said that the petitioner's land was situated in the excepted area.

4. I may dispose of the shorter and the simpler ground first. It is true that the West Bengal Non-Agricultural Tenancy Act, while providing for an appeal to the Commissioner of the Division from an order passed by the Collector under Section 72(1), does not say in what manner the appeal should be dealt with or heard. It certainly does not say that the appeal shall not be dismissed without giving an opportunity to the appellant to be heard. No rule also appears to have been framed with regard to the procedure to be followed in disposing of such appeals.

Nevertheless, we feel bound to hold that the petitioner's appeal ought not to have been dismissed summarily without giving him a hearing, although the Act does not specifically require that a hearing shall be given. On the principles laid down by the Supreme Court, it must be held that where an appeal has been provided for, natural justice demands that the appellant should be given a hearing before the appeal is dismissed, whether or not there be any statutory direction in that behalf. 'But that a law of natural justice exists' observed their Lordships in the case --'Sangram Singh v. Election Tribunal Kotah' : [1955]2SCR1

'in the sense that a party must be heard in a Court of law. or at any rate, must be allowed to appear and defend himself, unless there is an express provision to the contrary, is, we think, beyond dispute'.

Mr. Sen Gupta who appears for the opposite party referred to what he called the Practice Manual under which the Board of Revenue or the Commissioner of the Division was entitled to dismiss summarily appeals preferred to them. The Practice Manual may authorise such procedure and it may be that such disposal of appeals could not be successfully impugned before the commencement of the present Constitution.

Under the Constitution, however, as interpreted by the Supreme Court, a suitor who has a 'lis' before an authority who has to pronounce on it is entitled to a hearing before he is non-suited. We must, therefore, hold that the petitioner'^ appeal was not properly disposed of and had we thought that any prejudice had thereby been caused to him, we would have remanded the case for a re-hearing of the appeal.

We do not, however, consider it necessary to do so, because the application before us is an application under Article 227 of the Constitution and we are not called upon to interfere unless we find that the irregularity which occurred was such as had caused a failure of justice. In our opinion, the actual order made by the authorities below was correct.

5. The above takes us to the second ground urged on behalf of the petitioner. It arises out of the following facts and provisions of law.

6. The extent of the West Bengal Non-Agricultural Tenancy Act, 1949, is given in Section 1 of the Act. Section 1(2), to quote only the material portion, provides as follows:

'(2) It extends to the whole of West Bengal, except

(a). Calcutta, as defined in Clause (11) of Section 3, Calcutta Municipal Act, 1923 (Bengal Act 3 of 1923).

(b) such suburbs of Calcutta as may have been or may hereafter be notified under Section 1, Calcutta Suburban Police Act 1866 (Bengal Act 2 of 1866), and are not included within Calcutta as so defined',

I need not quote the rest of the section. It will be seen that the section, in defining the territorial limits of the area within which the Act will operate, excepts 'Calcutta', as denned in the Calcutta Municipal Act of 1923. It is not disputed that 'Calcutta' as so defined, did not include the petitioner's land, nor had the area wherein it is situated been notified subsequently under the Calcutta Suburban Police Act, as contemplated by Clause (b) of the sub-section.

In 1951, however, the West Bengal Legislature passed West Bengal Act No. 33 of 1951, by which the whole of the Calcutta Municipal Act of 1923 was repealed and a new Calcutta Municipal Act enacted. The new Act gave a new definition of 'Calcutta' in Section 5(11). It defines 'Calcutta' as the area described in Schedule I and Sen. I gives a rather wordy definition of a geographical character in the form of an area enclosed within boundaries defined by line drawn along certain directions and routes.

It is not disputed that even this definition, namely the definition given in Section 5 (11) of the Act read with Schedule I, does not include the petitioner's land. There is, however, a provision in Section 594 of the Act for enlarging the area of Calcutta and including further lands within it. That section reads as follows:

'The State Government may at any time by notification in the Official Gazette, declare that the area comprised within the Municipality of ToIIygunge shall be included within Calcutta andshall be administered under this Act and thereupon Sen. I to this Act shall be deemed to be amended accordingly.'

7. The petitioner's land is situated within the limits of what was formerly the Municipality of Tollygunge. On 31-3-1953, the State Government issued a notification by which the area comprised within the Municipality of Tollygunge was directed to be included within Calcutta. The result of that notification was that the area, formerly constituting the jurisdiction of the Municipality of Tollygunge and including therein the petitioner's land, became incorporated in Schedule I to the Act and thus came to form a part of 'Calcutta', as defined in Section 5(11) of the Act.

As the petitioner's application under Section 72, West Bengal Non-Agricultural Tenancy Act, 1949, was not made till 18-9-1953, it is clear that when he made the application, his land had already become a part of 'Calcutta', as defined in the Calcutta Municipal Act of 1951.

8. The petitioner's contention is that Section 1(2) 'West Bengal Non-Agricultural Tenancy Act defines 'Calcutta' by reference to the definition given in Section 3(11), Calcutta Municipal Act of 1923 and not by reference to Section 5(11), Calcutta Municipal Act ot 1951. According to him, the definition of 'Calcutta', as given in Section 3(11) of the Act of 1923, having been incorporated in the West Bengal Non-Agricultural Tenancy Act by reference thereto In Section 1(2) (a) of the incorporating Act, the subsequent repeal of the Calcutta Municipal Act, 1923, could not affect or enlarge the definition eo incorporated.

In his submission whatever might happen to the Calcutta Municipal Act, 1923, as such, after Section 3 (11) of that Act had been incorporated by reference in the West Bengal Non-Agricultural Tenancy Act, the section so incorporated would remain valid and unchanged and would continue - to provide the definition of 'Calcutta' for the purposes of the incorporating Act.

The attention of the learned Advocate for the petitioner having been, drawn to Section 10, Bengal General Clauses Act, he contended that the section would not apply to the instant case, because it) was limited to cases where a later Act repealed and re-enacted some provisions of a former enactment and did not cover a case where a later Act repealed and re-enacted the whole of a former Act.

The learned Advocate also contended that, in any event, Section 10 carried a qualification which was that a different intention should not appear in the incorporating Act. According to him, an intention that future changes in the definition of 'Calcutta', as given by the Calcutta Municipal Act, were not to be adopted, appeared from Clause (b) of Section 1 (2), West Bengal Non-Agricultural Tenancy Act, 1949.

9. The question is one of extreme interest and not free from difficulty. The orders passed by the authorities below provide no assistance. Indeed, the orders do not show any comprehension of the point, not to speak of any decision on it. The bareness and the superficial character of the orders passed emphasise to my mind the basic reason for the rule that an appeal ought not to be disposed of without hearing the appellant and understanding from him what his point really is.

10. The argument advanced by the learned Advocate for the petitioner on the basis of the rule that where a later Act has incorporated by reference some provision of a former Act, repealof the incorporated Act or of the relevant, provision of it would not affect the incorporating Actmay be easily disposed of.

The present case is not one where the incorporated Act was merely repealed. It is a case where that Act was repealed and re-enacted with modifications. The case, therefore, comes directly under Section 10, Bengal General Clauses Act Which corresponds to Section 8, Indian General Clauses Act.

11. I may point out here that the rule relied upon by the learned Advocate for the petitioner was referred to by the Judicial Committee in the well-known case of -- 'Secy. of State v. Hindus-than Co-operative Insurance Society, Ltd.' and stated to be a rule valid in England as well as in India. Their Lord-ships stated the rule as based on general principles and observed that there was no specific provision in the General Clauses Act in which the rule had been incorporated.

Since that decision, however, the Indian General Clauses Act at least has been amended by the addition of Section 6-A, which covers a part of the rule and provides that where a Central Act repeals an enactment by which the text of another Central Act was amended, such repeal shall not affect the continuance of any such amendment made by the enactment so repealed. It is, however, not necessary for us to dwell on that rule further because, as I have already pointed out, the present case is one of not mere repeal, but of repeal and re-enactment.

12. The effect of Section 8, Indian General Clauses Act which corresponds to Section 10 of the Bengal Act was considered by S. R. Das Gupta, J. and myself in the case to which I have already referred. The question before us was whether, after the repeal of the Factories Act of 1934 and its re-enactment as the Factories Act of 1948, the reference in the Workmen's Compensation Act to 'manufacturing process as defined in Clause (g) of Section 2, Factories Act, 1934' would have to be read as a reference to 'manufacturing process', as defined in the Act of 1948.

We held on the basis of Section 8, Indian General Clauses Act that, after the enactment of the Factories Act of 1948, the definition of 'manufacturing process', as given in the Workmen's Compensation Act by reference to the definition in the Factories Act of 1934, would have to be read as a definition by reference to that given in the Factories Act of 1948.

The learned Advocate for the petitioner contended that we had applied Section 8, General Clauses Act too readily and overlooked the limited character of the language in which the section was expressed. He pointed out that Section 8 of the Indian Act spoke of that Act or any Central Act or Regulation repealing and re-enacting with or without modification 'any provision' of a former enactment and not repealing and re-enacting a former enactment as a whole.

According to him Section 8 of the Indian Act, and necessarily Section 10 of the Bengal Act Which was similarly expressed, would apply only to a cfiSG where one or more of the provisions of an earlier Act were repealed and re-enacted and not where the whole of the Act had suffered such transformation.

13. On behalf of the opposite party Mr. Sen Gupta contended that, even textuaily, Section 10 of the Act could not lend itself to the limited construction contended for by the learned Advocate for the petitioner. According to him, 'any provision of a former enactment' would include all provisions, the singular including the plural.

The construction proposed on behalf of the petitioner according to Mr. Sen Gupta, would create an absurdity when all the provisions of a former enactment except one were repealed and re-enacted, in which case Section 10 would apply even according to the petitioner's contention, but it would not apply if the remaining section was also repealed and re-enacted.

14. Had the question been res integra, I would have found it necessary to examine the matter more closely. It is true that we have now modified rules, for the construction of statutes given in the two General Clauses Acts, but it is not yet irrelevant to search for the reason upon which the Rules were founded. When the Legislature enacted these sections of the General Clauses Acts, it must have applied itself to thinking out what legislatures could be reasonably supposed to have in mind when they enacted provisions of a certain character or enacted them in a certain way.

Where the exact meaning of a canon of construction embodied, in one or the other of the General Clauses Acts does not lie on the surface, it is pertinent to enquire what the reason of the rule might be and then construe it in accordance with such reason, if it can be discovered.

15. It appears that in the case of the Judicial Committee had occasion to consider the effect of additions made to an incorporated Act. They were considering additions to the Land Acquisition Act which had been incorporated by the reference in the Calcutta Improvement Act and it is certainly true that their observations must be understood as primarily limited to the two statutes they were considering.

But the reason given by them for holding that subsequent additions made to the incorporated Act could not be imported in the incorporating Act in the absence of any indication that they, were intended to be so imported proceeds on general principles and seems to be founded on good reason. They pointed cut that the section, newly added to the Land Acquisition Act, was no part of that Act when the Calcutta Improvement Act had been passed and they observed that there was nothing to suggest that, the Bengal Legislature, in adopting the provisions of the Land Acquisition Act for the purposes of the Calcutta Improvement Act, intended to bind themselves to any future additions which might be made to the adopted Act.

New previsions, their Lordships observed^ might be added to the Land Acquisition Act which would be wholly unsuitable to the local Act. It was, therefore, held that the local Act was to be regarded as doing nothing more than incorporating certain provisions from an existing Act, as they stood then, and not to have committed itself to adopting automatically whatever changes in those provisions in the incorporated Act might occur in future.

16. If such be the reason for excluding subsequent additions to the incorporated Act, from the ambit of the incorporating Act, it seems difficult to reconcile it with the rule laid down in Section 8, Indian Genera! Clauses Act and Section 10 of the Bengal Act. If subsequent additions are not to be regarded as automatically incorporated, it is not easy to see how subsequent reenactments, even re-enactments with modifications, could properly be regarded as adopted and incorporated.

The rule embodied in the sections is, however, there and the sections themselves are not original enactments but only copies of Section 38 (1), English Interpretation Act of 1889. That section of the English Act has been construed by the English courts and the section in the Indian Act has been construed by the Supreme Court of India. The construction given by the Courts gives full effect to the language used in the sections and, therefore, irrespective of whether any good reason for distinguishing a case of repeal and re-enactment from a case of additions can be found, effect must be given to the sections as they stand.

17. Only two decisions need be referred to. Section 38 (1) of the English Act was construed by the Court of Appeal in the case of -- 'Stevens v. The General Steam Navigation Co. Ltd.' (1903) 1 KB 890 (D) a decision to which we ourselves drew the attention of the Ear. It is somewhat curious that the position in that case should have been exactly the same as the position in the case of : (1954)IILLJ13Cal decided by S. R. Das Gupta, J. and myself. There, the Workmen's Compensation Act of 1897 defined 'factory' by reference to the definition contained in the Factory and Workshop Act, 1895.

That Act was subsequently repealed and re-enacted as the Factory and Workshop Act of 1901, and the definition of 'factory', contained in the repealed Act was re-enacted with certain additions particularly an addition so as to include a harbour and a place where machinery of a certain kind was kept.

The question was whether Section 38 (1) of the Interpretation Act, 1889, required that the definition given in the Workmen's Compensation Act, which still continued to refer to the Factory and Workshop Act of 1895, should be read as the definition contained in the re-enacted Act of 1901.

The decision was that it was to be so read. Collins M. R. with whom Stirling L. J. agreed, held that the word 'modifications' in Section 38 (1) of the Interpretation Act included additions and that, consequently, in the definition of a 'factory' in the Workmen's Compensation Act, 1897, the reference to the Factory and Workshop Act, 1895, was to be construed as if it were a reference to Section 104 of the Factory and the Workshop Act of 1901 so as to include in the definition the additions made by the re-enacted Act.

It will be noticed that the definition imported from the older Act and incorporated in the incorporating Act was subsequently expanded when the incorporated Act was repealed and re-enacted. The same is precisely the case before us. The definition of 'Calcutta', as given in the Calcutta Municipal Act of 1923, has been expanded in the definition given in the re-enacted Act of 1951.

18. Section 8, Indian General Clauses Act was construed by the Supreme Court of India in the case of -- 'National. Sewing Thread Co. Ltd. v. James Chadwick and Bros Ltd.' : [1953]4SCR1028 . The question there was whether, after the repeal of the Government of India Act of 1915 and its re-enactment as the Government of India Act of 1935 and the repeal of the Government of India Act of 1935 and the enactment of the Constitution of India, the reference in Clause 15 of the Letters Patent of the Bombay High Court to Section 108, Government of India Act of 1915 was to be read as a referenceto Section 223, Government of India Act of 1935 and later on to Article 225, Constitution of India. Their Lordships referred to Section 8, Indian General Clauses Act and observed as follows:

'We are further of the opinion that the High! Court was right in the view that reference in Clause 15 to Section 108 should be read as a reference to the corresponding provisions of the 1935 Act and the Constitution. The canon of construction of statutes enunciated in Section 38 of the Interpretation Act and reiterated with some modifications in Section 8, General Clauses Act is one of general application where statutes or Acts have to be construed'.

It is thus clear that like the English Court of Appeal, the Supreme Court of India also construed the section before it, which was practically the same in language, as applying not merely to repeals and re-enactments of particular provisions of an Act but also to repeals and re-enactments of Acts as a whole. The distinction pressed for by the learned Advocate for the petitioner cannot, therefore, be accepted.

19. The next argument of the learned Advocate for the petitioner was founded on Section 10 itself. He argued that the expanded definition of 'Calcutta', as given in the Act of 1951, was excluded, because a different intention appeared from Clause (b) of Section 1(2), West Bengal Non-Agricultural Tenancy Act. I have already read the terms of Clause (b).

The argument was that Clause (b) expressly provided for future additions by means of notifications under the Suburban Police Act, but no such provision for future changes in the definition of 'Calcutta' had been made in Clause (a) of the sub-section. I am unable to agree with the learned Advocate that Clause (b) evinces the intention which he would read into it.

That clause was added obviously because even the Calcutta Municipal Act of 1923 provided for future additions to the area of Calcutta by means of notifications and the intention of the incorpprating Act obviously was to recognise the possibility of additions to the defined area which was inherent in the definition itself and the Act which contained the definition. I cannot see that the clause lends any countenance to the view that the Legislature intended to recognise future additions made by means of notifications under the old Act, but did not intend to recognise future additions by means of an enlargement of the definition itself.

The broad intention of the section is obvious. It is to exclude from the operation: of the Act the urban area within the municipal limits of Calcutta and also, if I may_now refer to Clause (c) of the said section, Howrah,' as they might stand from time to time. I do not find myself able to accede to the contention of the learned Advocate for the petitioner that an intention to exclude any future additions to the Calcutta area by means of changes in the definition or by repeal and re-enactment of the Act is disclosed by Clause (b) of Section 1(2).

20. On principle, therefore, on the provisions of the Bengal General Clauses Act and so far as authority exists, on authority, it must be held that now that the Calcutta Municipal Act of 1923 has been repealed and re-enacted as the Calcutta Municipal Act of 1951, reference to the definition of 'Calcutta', given in Section 1(2)(a), West Bengal Non-Agricultural Tenancy Act in terms of the definition given in the Calcutta Municipal Act of 1923, must now be construed as a definitionin terms of that given by the Calcutta Municipal Act of 1951.

It is not disputed that the petitioner's land, falls within the area of the Tollygunge Municipality which has now become a part of the area defined in the Schedule as the Calcutta area. The order passed by the authorities below was, therefore, correct on the merits.

21. All the above discussion, however, is rendered unnecessary by a specific section contained in the Calcutta Municipal Act of lybl which we discovered at the end of the arguments and, to which we drew the attention of the learned Advocates. The provision concerned is Section 608 which, so far as is material reads as follows:

'In every enactment in force at the commencement of this Act, unless a different intention appears * * * *

(d) all references to, or to any chapter or section of the Calcutta Municipal Act, 1899, or the Calcutta Municipal Act, 1923, shall, so far 34 is possible, be construed as references to this Act or to its corresponding chapter or section'.

There is thus a statutory direction in terms to construe references to provisions in the Calcutta Municipal Act of 1923 as references to corresponding provisions of the Act of 1951 in every enactment in force, at the commencement of that Act. The two limitations are that such construction is to be adopted unless a different intention appears and that it is to be adopted so far as it is possible.

I have already considered whether a different intention is exhibited anywhere by the West Bengal Non-Agricultural Tenancy Act. No such intention is discernible. Neither do I see that there-is any impossibility in reading the definition of 'Calcutta' as given in the West Bengal Non-Agricultural Tenancy Act by reference to the Calcutta Municipal Act of 1923 as a definition, given by reference to the Calcutta Municipal Act of 1951.

22. Section 608 is thus a complete answer to the petitioner's contention. If I have nevertheless referred at length to the position under general principles and The provisions of the General Clauses Acts, I have done so only out of deference to the arguments addressed to us.

23. For the reasons given above, this Rule is discharged, but in the circumstances of this case, there will be no order for costs.

Civil Rule No. 389 of 1954.

24. For the reasons given in the judgment delivered in Civil Rule No. 388 of 1954, this Rule is also discharged without any order for costs.

Mallick, J.

25. I agree.


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