Civil Appeal No 303 of 1956
Appeal from the judgment and decree dated February 7 1955 of the Calcutta High Court in Appeal from Appellate Order No 102 of 1953 arising out of the judgment and decree dated August 6 1953 of the Subordinate Judge Second Court of Zillah Howrah in Misc
Appeal No 231 of 1953
G section Pathak P K Chakravarty and B C Misrafor the appellant
B Sen section N Mukherjee and P K Bose for the respondent
April 20
The Judgment of the Court was delivered by DAS GUPTA J
In Calcutta and its suburb Howrah there have existed for many years precarious tenancies popularly known as Thika tenancies the characteristic feature of which is that the tenant 580 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 structures 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 ejectment could be had only on one or more of the six grounds specified in section 3 of the Act special provisions as regards notice for ejectment were made in section 4 in the same section provision was also made about payment 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 provided 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 now law will be applicable except the provisions as regards notice in section 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 matter and 581 if the decree or order is not in conformity with the 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 concerned in this appeal is in these words  Where any 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 of such holding has not been recovered from the Thika tenant by the execution of such decree or order the court by 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 this Act other than sub section 1 of section 5 or section 27 rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to such provision and 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 law however failed to achieve its object for some years as the Courts interpreted the definition of Thika tenant in the Act in such a manner that speaking generally no tenant was able to establish its requirement
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 special protection given under sections 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 section 5 extended 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 the date of the Act and before the date of the Ordinance but possession had not been obtained
In 1953 the West Bengal Legislature enacted the Calcutta Thika Tenancy Amendment Act 1953 revising permanently the definition of Thika tenant and making some other 76 582 and 29 of the Original Act were omitted
The principal question before us in this appeal is whether the provisions of section 28 could be applied by a Court in a case where an application had been made by a tenant for relief under that section and such application was pending for disposal on the date the omission became effective by reason of the Amend ment Act coming into force
The decree for possession with which we are concerned in this case was made as far back as August 8 1941 by a Munsif in Howrah
The tenant s appeal was dismissed on April 9 1943
On February 28 1949 on which date the Calcutta Thika Tenancy Act of 1949 came into force proceedings for the execution of the decree of ejectment were pending in the Munsif s Court
On March 19 1952 when these proceedings were still pending the tenant made an application to the Court which had passed the decree praying that the decree may be rescinded or varied in accordance with the provisions of section 28 of the Act
This application came up for hearing before the Munsif on July 7 1953
In the meantime the Amendment Act of 1953 had come into force and the omission of section 28 of the Act had become effective
The learned Munsif held that section 28 of the Act being no longer in force he had no power to give the tenant any relief in accordance with the provisions thereof
In that view he dismissed the application
The tenant s appeal to the District Judge Howrah having been rejected he preferred a second appeal to the High Court
The learned judges of the High Court who heard the appeal agreed with the courts below on a construction of section 12 of the Amendment Act that section 28 was not applicable to the proceedings commenced by the tenant by his application for relief and dismissed the Against that decision the tenant has filed the present appeal before us on a certificate of fitness granted by the High Court
The decision of the question raised in this appeal viz whether this tenant who had applied for relief 583 under section 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 undisposed of on the date the Amendment Act came into force depends on the interpretation of section 1 sub section
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 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 under section 27 of the said Act on the date of the commencement of the Calcutta 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 section 8 of the Bengal General Clauses Act be entitled to have his application for relief under section 28 of the original Act disposed of as if section 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 section 1 sub section
2 the Legislature has clearly expressed an intention that no relief under section 28 of the original Act shall be given in cases like these
The principles that have to be applied for interpretation of statutory provisions of this nature are well established
The first of these is that statutory pro
visions creating substantive rights or taking away substantive rights are ordinarily prospective they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective and the retrospective operation will be limited 584 only 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 always to be gathered from the words used by it giving to the words 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 persons any provision is ambiguous so that it is capable of two meanings one which would preserve the benefit 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 interpretation should be 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 necessary even by modification of the language used
In applying these principles to the interpretation of section 12 it is necessary first to consider a contention that has been raised by Mr Pathak on behalf of the appellant that the phrase  as amended by this Act  qualifies the word  provisions 
If this be correct the meaning of the proviso 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 meaningless 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 amendment by omissions
The result of the proviso the appellant s counsel contends is to make applicable to pendinn proceedings the altered provisions in place of old provisions but to say nothing as regards such provisions which have been omitted
We are unable to see how it is possible unless rules of grammar are totally disregarded to read the words as amended by this Act  as to qualify the word provisions
 If ordinary grammatical rules are applied there is no escape from the conclusion that 585 the adjectival phrase  as amended by this Act  qualifies the proximate substantive viz the Calcutta Thika Tenancy Act 1949
There is no escape from the conclusion therefore that what the Legislature was saying by this was nothing more or less than that the provisions of the amended Thika Tenancy Act shall apply
Mr Pathak argued that if that was what the Legislature 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 be 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 omissions
The word  amendment  he has submitted is sometimes used in the restricted sense of addition or  a 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  amended  should be interpreted so as to exclude omissions
What is clear however is that the present is not one of such cases
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 el
5 of section 2 section 3 adds some words to el
1 and section 3b omits some words in cl
4 and 586 again adds some words to cl
5 of section 3 of the Act
Section 4 omits certain words of sub section
1 of section 5
Section 5 substitutes some new words in place of certain words in the original sub sections
1 and 2 of section 10 of the Act
Section 6 omits one section of the original Act viz section 1 1  section 7 inserts some words in the original section 27  section 8 omits two sections viz sections 28 and 29  the last section section 9 provides for the continuance of proceedings under section 5 sub section
2 of the Amendment Ordinance if sub sections
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 section
2 of section 1 sought to make no distinction between amendment by additions 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 section 27 on the date of the commencement of the Thika Tenancy Amendment Ordinance 1952
As the application which the appellant had made for relief under section 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 Ordinance 1952 the position which cannot be escaped is that the Thika Tenancy Act of 1949 without the provisions as regards relief to tenants against whom decrees had been obtained on the date of the commencement of the original Act but possession had not been actually recovered would be applied to pending applications
In other words though the application originally was for relief under section 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 section 28 of the original Act was giving certain tenants a right to relief which they would have had if 587 the beneficent provisions of the new Act were available to them during the disposal of the suits the manner 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 section 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 exercised was bound to dismiss the applications
There can be no doubt that this is an unfortunate result
It may very well be true that if as a result of the Amendment Act many tenants are deprived of the benefit of section 28 this will be mainly because of the Court s inability to dispose of the applications before the Amendment Act came into force and not for any default on their part
Mr Pathak has repeatedly stressed this and has asked us to construe section 1 2 in a way that would retain the benefits of section 28 to tenants whose applications remained to be disposed of on the crucial date
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 sections 23 5 and 9 all extend to tenants benefits to which they would not have been entitled under the original Act
This extension of further benefits to tenants he says is a guiding principle of the amending legislation
He points out also that except as regards such pending applications under section 28 the effect of section 12 of the amending Act will be to give the extended benefits to tenants in pending proceedings
It will be incongruous he argued that while all tenants stand to benefit by the amending legislation only those whose applications under section 28 have for no fault of theirs remained pending would be deprived of the benefit they would have had but for the omission in the amending Act of section 28
It is difficult not to feel sympathy for these tenants
As we have already mentioned it is a sound 588 rule of interpretation of beneficent legislation that in cases of ambiguity the construction which advances the beneficent purpose should be accepted in preference to the one which defeats that purpose
In their anxiety to advance the beneficent purpose of legislation courts must not however yield to the temptation of seeking ambiguity when there is none
On a careful consideration of the language used by the Legislature in section 12 we are unable to see that there is any such ambiguity
The language 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 provisions in section 28 has to be applied to all pending proceedings including execution proceedings and the proceedings pending under section 28 of the original Act on October 21 1952
There is therefore no scope for applying in this case the principles of interpretation which are applicable in cases of ambiguity
Nor is it possible to agree with Mr Pathak s last contention that the strict grammatical interpretation would result in an absurdity or inconsistency
It is urged that it is unthinkable that the Legislature when undertaking a legislation to help tenants would do anything to deprive them of the existing benefits under section 28
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 had already been deprived of the fruits of the decrees they had obtained for a long period from the date when the original Act came into force up to the time when the Amendment Act came into force it would not be right to continue that deprivation
But whatever the reasons may be the fact remains that the Legislature has used words which in their normal grammatical meaning show that they intentionally deprived this class of tenants viz those whose applications under section 28 of the Act were undisposed of on the date the Ordinance came into force and remained undisposed of even when the Amendment Act came into force
We have therefore come to the conclusion that the view taken by the High Court in this case that the 589 effect of section 12 of the Calcutta Thika Tenancy Amendment Act 1953 is that all pending applications under section 28 of the original Act must be dismissed is correct
The contrary view taken by the same High Court in Deorajan Debi vs Satyadhan Ghosal 1 and other cases is not correct
Before we part with this appeal however it is our duty to refer to one incidental matter
We 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 following the usual procedure in case of difference of opinion with an earlier decision 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 jurisdiction in a High Court start overruling one another s decisions
If one Division Bench 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 uniform practice in all the High Courts in India that 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 1 77 590 that the attention of the learned judges was not drawn in the present case to that rule
But quite apart from any rule considerations of judicial propriety and decorum ought never to be ignored by courts in such matters
On the merits as we have found that the view of law taken by the High Court in this case is correct the appeal is dismissed
In view however of the uncertainty that was in the law as regards the applicability of section 28 to proceedings pending on the commencement of the Thika Tenancy Ordinance 1952 we order that the parties will bear their own costs
Appeal dismissed


Summary:
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 section 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 section 115 of the Code of 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 1053 Amendment Act omitted section 28 of the Original Act
The High Court after considering the effect of section 12 of the Amendment Act held that it did not affect the operation of section 28 of the Original Act which was applicable to these proceedings
The High Court also found that the tenants were Thika Tenants 591 and remanded the case to the Munsif for disposal according to law whereupon the Munsif rescinded the decree
On an application by the landlord under section 115 of the Code of Civil Procedure against the order of the Munsif rescinding the decree the High Court held that the question of applicability of section 28 was res judicata between the parties and could not be raised again before the High Court and dismissed the landlord s application
On appeal by the landlord by special leave the respondent contended that the appellant was barred by the principle of res judicata from raising before this Court the question whether on the enact ment of the Thika Tenancy Amendment Act 1953 section 28 of the Original Act survives or not in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance 1952  Held that the appellants were not precluded from raising before this Court the question that section 28 of the Original Thika Tenancy Act was not available to the tenants after the Thika Tenancy Amendment Act came into force merely because they had not appealed from the High Court s order of remand
An interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order
Maharaja Mohesur Singh vs The Bengal Government 1859 7 MIA 283 Forbes vs Amecroonissa Begum 1865 10 MIA 340 and Sheonath vs Ramnath 1865 10 MIA 413 followed
Ramkripal Shukul vs Mst
Rup Kuari 1883 LR 11 IA 37 Bani Ram and Any
vs Nanhu Mal 1884 LR 11 IA 181 and Hook vs Administrator General of Bengal and Oys 1921 LR 48 IA 187 distinguished
Section 28 of the Calcutta Thika Tenancy Act 1949 after its omission by the amending Act was not available in respect of proceedings pending on the date of the commencement of the Thika Tenancy Ordinance of 1952
Mahadeolal Kanodia vs The Administrator General of West Bengal 196O 3 SCR 578 followed