Prompt:
il Appeal Nos. 931 and 1149 of 1965.
Appeals from the judgment and decree dated July 31, 1964 of the Calcutta High Court in Appeal from Original Decree No. 613 of 1962.
N. C. Chatterjee, Janaradan Sharma, K. B. Rohtagi and section Balakrishnan, for the appellant (in C.A. No. 931 of 1965) and the respondent (in C. A. No. 1149 of 1965).
D.N. Mukherjee, for the respondent (in C.A. No. 931 of 1965) and the appellant (in C.A. No. 1149 of 1965).
The Judgment of the Court was delivered by Sarkar, C.J.
These appeals arise out of an election to a seat in the West Bengal Legislative Assembly from the Khargram Murshidabad constitutency reserved for members of the Scheduled Castes.
The contestants at this election were Abhoy Pada Saha and Sudhir Kumar Mondal.
Sudhir is admittedly a member of a Scheduled Caste.
Abhoy Pada described himself in the nomination paper as "a member of the Sunri caste which is a Scheduled Caste".
Sudhir objected to this nomination contending that Abhoy Pada did not belong to any Scheduled Caste.
The objection was rejected by the Returning Officer.
At the election which 388 ensued, Abhoy Pada secured 16,730 votes and Sudhir, 15,523 and the former was consequently declared elected.
Sudhir then filed a petition challenging the validity of Abhoy Pada 's election on various grounds.
At the hearing of the petition by the Election Tribunal, however, he challenged the election only on the ground that Abhoy Pada was a member of the Saha caste and not a member of a Scheduled Caste.
The Election Tribunal rejected this contention and dismissed the petition.
Sudhir then appealed to the High Court at Calcutta which reversed the decision of the Tribunal and declared the election of Abhoy Pada invalid and set it aside on the ground that he did not belong to a Scheduled Caste.
In his petition Sudhir had further claimed that he should be declared elected in the place of the appellant if the latter 's election was found to be invalid.
This prayer, however, was rejected by the High Court.
These two appeals are from the judgment of the High Court.
Appeal No. 931 of 1965 is by Abhoy Pada.
He challenges the validity of the order of the High Court setting aside his election.
Appeal No. 1149 of 1965 is by Sudhir and he challenges the validity of the order of the High Court rejecting his prayer to be declared elected.
We shall first deal with Appeal No. 931 of 1965 filed by Abhoy Pada and shall hereafter refer to him as the appellant and Sudhir as the respondent.
article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes in the Legislative Assembly of every State.
article 341 gives power to the President to specify by public notification the castes or parts of or groups within castes which shall for the purpose of the Constitution be deemed to be Scheduled Castes.
The President, on August 10, 1950, passed the Constitution (Scheduled Castes) Order, 1950 under article 341 setting out in its schedule the various castes which were declared Sche duled Castes.
This Order was amended from time to time by statutes passed by Parliament and it is agreed that at the relevant time Item 40 of Part 13 of the schedule to the Order which set out which were Scheduled Castes in West Bengal stood as follows: "Sunri excluding Saha".
Item 40 and some other items of the schedule were made applicable to the State of West Bengal except the Purulia District and the territories transferred from Purnea District of Bihar and it is with this item that we are concerned.
The question is, whether the appellant was a member of the Scheduled Caste specified in this item.
In the election petition, the respondent had stated that the appellant, was a member of the Saha caste and not a member of any Schedule Caste.
It was said that this showed that the respondent 's case was that the appellant belonged to an independent caste which had nothing to do with Sunri caste and that it was, therefore, not c open to him at the trial to contend, as he appears to have done.
389 that the appellant was a Sunri by caste but was excluded from the Scheduled Caste group because he belonged to a smaller caste group of Sunirs known as Sahas.
We are unable to take this strict view of the pleading.
The petition may, in our opinion, be reasonably read as stating that the appellant was a member of the Saha caste, a smaller caste group within the bigger caste group of Sunirs and was for that reason not a member of the Scheduled Caste specified in item 40.
We also observe that this reading of the petition which was accepted by the Election Tribunal, did not cause any surprise to the appellant at the trial or result in any injustice.
The High Court also read the petition in the same way.
In our view, it was open to the respondent to show that the appellant belonged to the Saha caste group within the Sunri caste group and did not, therefore, belong to the Schedule Caste specified in item 40 as he claimed.
The Tribunal rejected the respondent 's case that the Sunri caste was divided into certain groups of which the Sahas formed one.
It came to the conclusion that the Sahas originally belonged to the Sunri caste but for a long time past they had formed themselves into a different caste which had no connection with the Sunris.
It is not very clear whether the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste group or were only distinguished from the other Sunris by their surname.
We are, however, inclined to think that the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste because it rejected a contention advanced by the respondent that item 40 excluded from Sunirs those who bore the surname Saha observing that the names given in the schedule to the Order all referred to castes, subcaliber or groups.
It found that the evidence clearly established that the appellant belonged to the Sunri caste a fact which appears to have been admitted by the respondent and, therefore, did not belong to the independent caste which according to the Tribunal, the Sahas have formed for a long time past.
In that view of the matter, the Tribunal held the appellant to be a Sunri and a person belonging to the Schedule Caste specified in item 40 and, therefore, dismissed the election petition.
It took the view that item 40 had excluded Sahas from Sunirs by way of abundant caution, so that the Sahas who had originally belonged to the Sunri caste but had long 'ago severed all connections with it and developed into a distinct and independent caste, might not claim, by virtue of their origin, to belong to the Sunri caste stated in the item.
In the High Court P. N. Mookerjee, J. observed that the Tribunal had gone wrong in considering the Sahas as an independent caste.
He said that the expression "excluding" denoted that the Sahas contemplated would, but for this word, have come within the Sunri caste.
He held that the Sahas formed "a group within the Sunri caste be it a sub caste strictly so called or other 390 wise".
He also held that the evidence did not establish that the Sahas formed a sub caste strictly so called within the Sunri caste of a caste wholly independent of the Sunri caste.
His conclusion was that the expression "excluding Saba" referred to those Sunris who bore the surname Saha irrespective of whether they belonged to a sub caste strictly so called, of Sunris or not.
The learned Judge, therefore, held that as the appellant bore the surname Saha, he did not belong to the Scheduled Caste specified in item 40 though he was a Sunri.
The other learned Judge, Basu, J. held that the words "parts or groups within castes" in article 341 were wide enough to refer to any determinate part of a caste distinguished by a surname or otherwise and it was not necessary that such part must necessarily form a sub caste.
He also held that the evidence broadly supported "the conclusion that the respondent 's family belongs to the Saba sub caste or group within the Sunri caste".
The learned Judge however, appears to have set aside the decision of the Tribunal and directed the election of the appellant to be set aside on the ground that the appellant bore the surname Saha and was thereby excluded from the Scheduled Caste specified in item 40 for he said "these Saha families, within the fold of Sunri caste, distinguished themselves by their surname, whatever might be their other characteristics" and have come to form a class apart from the rest of the Sunris.
Now, the point in issue is, whether the appellant satisfied the description "Sunri excluding Saha" in item 40 of the President 's Order.
To decide that point, the description has first to be properly interpreted and understood.
As we have said, the Tribunal thought that the Sahas formed a distinct caste wholly outside the Sunri caste and they had been specifically excluded in item 40 for greater safety o prevent them from claiming to be Sunris by reason of their origin.
The learned Judges of the High Court thought that the effect of the item was to exclude from the Sunri caste those who belonged to that caste but bore the surname Saha.
We are unable to agree with either of these interpretations.
There is no doubt that Sunri is a caste.
Nobody disputes that.
That also follows from the fact that the Constitution (Scheduled Castes) Order, 1950 was promulgated to indicate those castes who are to be considered as Scheduled Castes for the purpose of the Constitution.
"Sunri" in item 40, therefore.
refers to a caste.
If Sunri is a caste, the word 'Saha ' in the expression "excluding Saha" in the item must, without more.
also refer to a caste group within the Sunri caste.
It is legitimate to think that when a statute says that a thing is to be excluded from another, both things are of the same kind; if one is a caste.
the other must be a caste.
It follows that when the item excluded Sahas from Sunris, since Sunri is a caste group, Saha must equally be another caste group.
The Tribunal appears to have taken the same view.
Now a thing can be 391 excluded from another only if it was otherwise within it.
Therefore, the correct interpretation of the item is that it indicates men of the Sunri caste but not those within that caste who formed the smaller caste group of Sahas.
This is where the Tribunal went wrong.
The Tribunal came to its conclusion that "Saha" in the item referred to a caste distinct from the Sunri caste because the evidence before it did not show that there was within the Sunri caste, a smaller caste group called Sahas.
The error of the Tribunal lay in interpreting the Order in the light of the evidence before it.
There was no justification for doing that.
After all, the evidence led in a case may be imperfect.
Suppose the evidence in another case led to the conclusion, as it might conceivably do, that there was a smaller caste group within the Sunri caste, called Sahas.
In that case, if the reasoning applied by the Tribunal is right, it has to be held that the expression "excluding Saha" meant excluding a smaller caste group called Sahas.
A method of interpreting a statutory provision which might lead to such uncertainty cannot be correct.
If the correct interpretation of item 40 was, as we think it was, that Sahas were a caste group within the Sunri caste, no question of Sahas being a distinct class independent of Sunris ,could arise.
The finding that Sahas were a wholly independent caste was altogether irrelevant to the point in issue.
Evidence cannot alter the natural interpretation of the words in the Order.
For the same reason, we are unable to agree with the interpretation of the High Court that the Sahas excluded were those Sunris who bore the surname Saha.
We think the learned Judges of the High Court also interpreted item 40 in the light of the evidence in the case.
If the intention was to exclude from Sunris those members of that caste who bore the surname Saha, the item would have said so; it would then have read "Sunri excluding those who bore the surname Saha".
In the absence of such words "Saha" must, in the context, be understood as referring to a smaller caste group within the bigger caste group of Sunris.
Surname is irrelevant as a test for applying item 40 unless it is shown that it indicated a smaller caste group of Sunris.
It is nobody 's case that there is evidence to show that.
It is of interest to remind in the connection that the Order provides that the Sunris in the Purulia District and those parts of the Purnea District which had been transferred to West Bengal were not to be considered as belonging to a Scheduled Caste.
That would show that where the exclusion is by a test other than a caste group, the Order expressly says so.
It is natural to think that if the excluded Sahas were those Sunris who bore the surname Saha, the Order would have made that clear.
In our opinion, the learned Judges of the High Court were in error in interpreting the item on the evidence in the case as they appear to have done.
L/S5SCI 27 392 If we are right in our interpretation of item 40, then the only question that has to be decided in this case is, whether the respondent has established that the appellant belonged to a smaller caste group called Sahas within the Sunri caste.
This question presents no difficulty.
The respondent called witnesses to establish that the appellant belonged to the smaller caste group of Sahas.
These witnesses were disbelieved by the Tribunal which described them as unreliable.
P.N. Mookerjee, J. said, "it has not been proved that the respondent (appellant here) belonged to any separate Saha caste or to any Saha Sunri sub caste of the Sunri caste".
Though Basu, J. said that the appellant belonged to the Saha group of Sunris, it would appear that 'he was thinking of that group as consisting of those Sunris who bore the surname Saha.
All the courts in West 'Bengal, therefore, came to the conclusion that it had not been prov ed in this case that the appellant belonged to the smaller caste group of Sahas.
We have no reason to take a different view of the evidence.
The result then is, that the appellant is a Sunri by caste and has not been proved to belong to the smaller caste group of Sahas.
He must be held to belong to the Scheduled Caste specified in item 40.
That being so, the election petition must fail.
Accordingly, we allow Appeal No. 931 of 1965 and set aside the judgment of the High Court and restore that of the Election Tribunal dismissing the petition.
The appellant will get the costs throughout.
In the view that we have taken in Appeal No. 931 of 1965, the other appeal must necessarily be dismissed and we, therefore, dismiss it with costs.
One set of hearing fees only.
Appeal No. 931 of 1965 allowed.
Appeal No. 1149 of 1965 dismissed.

Response:
When item 40 of Part 13 of the Schedule to the Constitution (Scheduled Castes) Order, 1950, declared "Sunris excluding Sahas" as a Schduled Caste, it indicates that men of Sunri caste but not those within that caste who formed the smaller caste group of Sahas, are members of a Scheduled Caste.
It does not indicate that Sahas are a caste distinct from the Sunri caste, nor was it intended to exclude from Sunris those members of that caste who bore the surname Saha.
[391 A, D].
Therefore, when the respondent challenged the election to the West Bengal Legislative Assembly, of the appellant who described himself as a member of the Sunri caste, on the ground that he was a member of the Saha caste group but failed to prove the allegation, it must be held that the appellant was a Sunri by caste and belonged to the Scheduled caste specified in the item, even though he bore the surname Saha.
[392 D].


Prompt:
Appeal No. 696 of 1966.
Appeal by special leave from the judgment and order dated September 13, 1963 of the Madras High Court in Writ Appeal No. IO of 1962.
P. Ram Reddy and A. V. Rangam, for the appellant.
R. Ganapathy Iyer, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
The question of law involved in this appeal is whether the purchaser of business carried on by a dealer as defined in the Madras General Sales Tax Act, 1939 (Madras Act No. IX of 1939), hereinafter called the 'Act ', can be made liable for arrears of sales tax due from the dealer in respect of transactions of sale which took place before the, transfer of the business under Rule 21 A of the Rules framed in exercise of the powers conferred on the State Government by section 19 of the Act.
The respondent purchased, by a registered instrument dated October 5, 1956, the business carried on by one Purushottam Raju under the name All India Trading Company.
Purushottam Raju was the sole proprietor of the business and had been assessed to sales tax in respect of his turnover for the years 1948 49 and 1949 50.
The assessee paid some amounts towards sales tax thus determined, but there remained some arrears of sales tax i.e., Rs. 3836 4 0 for 1948 49 and Rs. 1218 1 9 for 1949 50.
The Sales tax authorities attempted to recover the arrears of tax from the respondent as the purchaser of the business.
The respondent 6 63 denied liability to pay sales tax but his contention was over ruled by the Deputy Commercial Tax Officer.
The respondent appealed to the Commercial Tax Officer as well as to the Board of Revenue, but the appeals were dismissed.
The respondent thereafter moved the Madras High Court under article 226 of the Constitution for the issue of a writ in the nature of certiorari to quash the orders of the Commercial Tax Officer and the Board of Revenue.
Ganapatia Pillai, J. who heard the petition dismissed it.
The respondent took the matter in appeal under the Letters Patent.
The Division Bench consisting of section Ramachandra Iyer, C.J. and Ramakrishnan, J. reversed the judgment of the Single Judge, holding that Rule 21 A of the Sales Tax Rules was illegal and ultra vires and the respondent was not liable to pay the sales tax due from his predecessor in title, Purushottam Raju.
This appeal is brought, by special leave, from the judgment of the Division Bench of the Madras High Court dated September 13, 1963 in Writ Appeal No. 10 of 1962.
Rule 21 A was framed by the State Government under the rule making power granted to it under section 19(1) and (2) of the Act.
Rule 21 A reads as follows : "When the ownership of the business of a dealer liable to pay the tax under the Act is entirely transferred, any tax payable in respect of such business and remaining unpaid at the time of the transfer shall be recoverable from the transferor or the transferee as if they were the dealers liable to pay such tax, provided that the recovery from the transferee of the arrears of taxes due prior to the date of the transfer shall be only to the extent of the value of the business he obtained by transfer.
The trans feree shall also be liable to pay tax under the Act on the sales of goods effected by him with effect from the date of such transfer and shall within thirty days of the transfer apply for registration or licence, as the case may be, unless he already holds a certificate of registration or licence, as the case may be.
" Section 19 ( 1 ) and 1 9 (2) (c) are to the following effect "19.
(1) The State Government may make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for (c) the assessment to tax under this Act of businesses which are discontinued or the ownership of which has changed;" 664 The first question to be considered in this appeal is whether Rule 21 A is intra vires of the power of the State Government under sections 19(1) and (2) of the Act.
Section 3(1) of the Act is the charging section.
It imposes a liability to pay sales tax on every dealer for each year, and the tax is to be calculated on his total turnover for that year.
Section 2(b) of the Act defines a "dealer" as "a person who carries on the business of buying, selling .
goods".
The word "turnover" is defined in section 2(i) of the Act to mean "the aggregate amount for which goods are either bought or sold by a dealer, whether for cash or for deferred payment or other valuable consideration. ".
It is manifest that a person who purchases a business as a 'dealer ' can be assessed to sales tax only in respect of his turnover and under the scheme of the charging provision of the Act the purchaser of the business has nothing to do with the sales effected by the seller of the business.
The turnover in respect of such sales remains therefore the turnover of the transferor and not of the transferee.
By the amending Act of 1959 (Act 1 of 1959) an express provision was inserted by which the transferee of the business was made liable for the arrears of sales tax due from the transferor.
But there is no such provision in the Act for the period with which we are concerned in the present case.
The question is whether the State Government has authority under its rule making power under section 19 of the Act to create a legal fiction by which the transferee of the business is constituted as the dealer liable to pay the tax in respect of the turnover of the transferor.
On behalf of the appellants Mr. Ram Reddy suggested that the State Government has power under section 19(1) and 19(2) (c) of the Act to frame the impugned rule.
We are unable to accept this argument as correct.
Section 19(1) of the Act empowers the State Government to make rules to carry out the purposes of the Act, but the section cannot be utilised to enlarge the scope of section 10 regarding recovery and payment of tax from some other person other than a "dealer" under the Act.
We also consider that the State Government has no authority under section 19(2)(c) of the Act to enact the rule.
Section 19(2)(c) deals with the assessment to tax of businesses which are discontinued or the ownership of which has changed.
It is true that the word "assessment" in the scheme of sales tax and income tax legislation is a term of varying import.
The word is used sometimes to mean the computation of income, sometimes the determination of the amount of tax payable, and sometimes the whole procedure laid down in the Income tax Act for imposing liability on the tax payer.
As the Judicial Committee, however, said in Badridas Daga vs C.I.T (1), the words 'assess ' and 'assessment ' refer primarily to the computation of the amount.
of income.
In Chatturam vs C.I.T. Bihar(1), the Federal Court pointed out, relying upon the decision of the House of Lords in (1) , 21 1.
(2) , 665 Whitney vs Commissioners of Inland Revenue("), that the liability to tax does not depend upon assessment.
The liability is definitely created by sections 3 and 4 of the Income tax Act which are the charging sections and the assessment order under section 23 only quantifies the liability which has already been definitely and finally created by the charging sections and the provision in regard to assessment relates only to the machinery of taxation.
In our opinion, the principle of these decisions applies to the interpretation of the Act in the present case.
We consider that, in the context and background of other sections of the Act, the word 'assessment ' used in section 19(2)(c) does not include the power of recovering tax assessed from a person other than the assessee.
It follows therefore that Rule 21 A is beyond the rule making power of the State Government either under section 19(1) or section 19(2)(c) of the Act.
It was then submitted by Mr. Ram Reddy that Rule 21 A may be supported by the language of section 10(1) of the Act which states "10.
Payment and recovery of tax. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice.
If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act.
" It was contended that under this section the whole of the amount outstanding on the date of default is charged on the property of the person liable to pay the tax.
In the present case, the business which was transferred to the respondent was hence charged with the payment of sales tax and it was open to sales tax authorities to proceed against the assets of the business for realising the amount of sales tax due.
In our opinion, there is no justification for this argument.
Section 10 of the Act as it stood before the Madras General Sales tax (3rd amendment) Act, 1956 (Act No. XV of 1956) read as follows "The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice.
In default of such payment, the whole of the amount then remaining due may be recovered as if it were an arrear of land revenue.
" This section was amended by section 8 of the Madras General Sales tax (3rd amendment) Act, 1956 which reads as follows (1) 666 "Substitution of new section for section 10 in Madras Act IX of 1939.
For section 10 of the principal Act, the following section shall be substituted, namely "10.
Payment and recovery of tax. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, as may be specified in the notice of assessment, not being less than fifteen days from the date of service of the notice.
If default is made in paying according to the notice of assessment, the whole of the amount outstanding on the date of default shall become immediately due and shall be a charge on the properties of the person or persons liable to pay the tax under this Act. . .
The 3rd Amendment Act, 1956 received the assent of the President on October 1, 1956 but it was published in the Madras Gazette on October 8. 1956.
Section 5 of the Madras General Clauses Act (Madras Act No. 1 of 1891) provides as follows "5.
(1) Where any Act to which this Chapter applies is not expressed to come into operation, on a particular day, then, it shall come into operation on the day on which the assent thereto of the Governor, the Gover nor General or the President, as the case may require, is first published in the Official Gazette.
" In the present case, the Act is not expressed to come into operation on any particular date, but as it was published in the Madras Gazette on October 8, 1956, the Act came into operation on that date and not before.
In the present case, the registered instrument by which the business was transferred to the respondent is dated October 5, 1956 and the amending Act has therefore no application.
We accordingly reject the argument of the appellants on this aspect of the case and hold that Rule 21 A is ultra vires of the rule making power of the State Government under the, Act.
It was next argued on behalf of the appellants that upon a true construction of the registered instrument dated October 5, 1956 the respondent undertook to pay not only Sch.
I liabilities but also other liabilities like sales tax imposed in regard to the business.
It was, however, disputed by Mr. Ganapathy Iyer on behalf of the respondent that there was any undertaking on the part of the respondent to discharge the liabilities in regard to arrears of sales tax.
But even on the assumption that the respondent undertook to pay the arrears of sales tax due by the transferor, it does not follow 66 7 that there is a liability created inter se between the State Government on the one hand and the transferee on the other hand.
To put it differently, it is not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there is any contractual obligation between the transferee and the State Government who is not a party to the instrument.
We accordingly reject the argument of the appellants on this aspect of the case also.
For these reasons we hold that the judgment of the Division Bench of the High Court dated September 13, 1963 is correct and this appeal must be dismissed with costs.
R.K.P.S. Appeal dismissed.

Response:
By a registered instrument dated October 5, 1956, the respondent purchased the business carried on by a dealer as defined in the Madras General Sales Tax Act IX of 1939.
The dealer had been assessed to sales tax in respect of his turnover for the years 1948 49 and 1949 50 and had paid a part of the sales tax determined as due from him with the balance amount remaining in arrears.
The sales tax authorities attempted to recover the arrears from the respondent as the purchaser of the business and although he denied liability, his contention was overruled by the Deputy Commercial Tax Officer.
His appeal to the Board of Revenue was also dismissed and he thereafter filed a Writ Petition under article 226 of the Constitution, challenging the orders of the C.T.O. and the Board.
A Single Bench of the High Court dismissed the appeal but a Division Bench allowed a Letters Patent Appeal holding that Rule 21 A of the Sales Tax Rules under which the arrears were sought to be recovered from the respondent, was illegal and ultra vires the Act.
In the appeal to the Supreme Court it was contended, Inter alia, on behalf of the department (i) that Rule 21 A was valid having been made in exercise of the rule making power granted to the State Government under sections 19(1) and 19(2) (c) of the Act whereby it could make rules for the assessment to tax under the Act of businesses which were discontinued or the ownership of which had changed; (ii) that further more under section 10, the whole of the amount outstanding on the date of the default was charged on the property of the person liable to pay the tax; therefore, in the present case, the business which was transferred to the respondent was charged with the payment of sales tax and it was open to the sales tax authorities to proceed against the assets of the business for realising the amount of sales tax due; and (iii) that upon a true construction of the registered instrument dated October 5, 1956, the respondent undertook to pay all liabilities like sales tax imposed in regard to the business.
HELD: dismissing the appeal: (i) Rule 21 A was beyond the rule making power of the State Government either under section 19(1) or section 19(2)(c) and was therefore ultra vires the Act.
[666 E F] Although by the amending Act 1 of 1959, an express provision was inserted by which the transferee of the business was made liable for the arrears of sales tax due from the transferor, there was no Such provision in the Act during the period covered by the present case.
[664 D] it is manifest that the person who purchases a business as a 'dealer ' can be assessed to sales tax onlY in respect of his turnover and under the scheme of the charging provision of the Act, the purchaser of the busi 662 ness has nothing to do with the sales effected by the seller of the business, The turnover in respect of such sales remains.
therefore, the turnover of the transferor and not of the transferee.
[664 C] Although section 19(2)(c) deals with the assessment to tax of businesses which are discontinued or the ownership of which has changed, in the context and background of other sections of the Act, the word "assessment" used in para 19(2)(c) does not include the.
power of recovering tax assessed from a person other than the assessee.
[664 F G; 665 B C] Badridas Daga vs C.I.T., , 211; Chatturam vs C.I.7.
Bihar.
; and Whitney vs Commissioners of Inland Revenue, , relied on.
(ii) section 10 of the Act as amended and sought to be relied upon had not come into force until October 8, 1956; in the present case the registered instrument by which the business was transferred to the respondent was dated October 5, 1956 and the amended section therefore had no Application.
[666 F] (iii) It was not open to the State Government to rely on the instrument inter vivos between the transferor and the transferee and to contend that there was any contractual obligation between the transferee and the State Government who was not a party to the instrument.
[667 BC]


Prompt:
Appeal No. 1375 of 1966.
Appeal from the judgment and order dated October 22, 1965 of the Bombay High Court Nagpur Bench in Special Civil Application No. 355 of 1964.
M. N. Phadke and Naunit Lal, for the appellant.
B. R. Agarwala and section B. Nerkar, for respondent No. 1.
A. K. Sen, A. section Bobde, G. L. Sanghi, and O. C. Mathur, for respondent No. 2.
M. section K. Sastri, R. N. Sachthey, section P. Nayar for R. H. Dhebar, for respondent No. 3.
The appellant had in this petition prayed for the issue of a writ quashing the resolution dated April 6, 1964, passed by the Standing Committee, Zila Parishad, Nagpur, and for a writ of mandamus directing the Standing Committee not to interfere with the right of the appellant to impose and collect the octroi duty pursuant to its resolution dated February 25, 1963.
In order to appreciate the points raised before us it is necessary to give the relevant facts and statutory provisions.
The Village Panchayat of Kanhan Pipri, hereinafter referred to as the Panchayat, was originally constituted under the C.P. & Berar Panchayat Act, 1946 (C.P. & Berar Act No. 1 of 1947).
On June 1, 1959, the Bombay Village Panchayat Act, 1958 (Bombay Act III of 1959) hereinafter referred to as the Act came into effect in Vidharba region, and by virtue of this Act the appellant was deemed to be a Panchayat under the Act.
On July 14, 1961, the Panchayat passed resolution No. 2 with a view to levy octroi duty.
The resolution, after reciting the need 215 for levying octroi duty and the relevant statutory provisions, concludes: ". . it passes the resolution to levy minimum octroi tax on the goods coming within its local limits as per the Schedule No. 1 of the Rules." On November 17, 1962, resolution No. 5 was passed which reads as follows: "5.
The meeting considered the question of imposition of octroi duty.
It has been unanimously resolved that by virtue of Grampanchayat Resolution No. 2, dated 14 7 61, that octroi duty shall be imposed on the goods coming into its local limits, the committee accepts the same.
The matter of levying octroi duty shall be undertaken in accordance with the Panchayat Act and its rules.
There fore matter of Octroi Rules, calling for objections for the tax and taking of decisions thereon after the consideration, number of the octroi posts and place etc.
should be got decided by the appropriate authority.
This matter may be taken into hand very urgently.
It is so decided, by the majority.
" On January 26, 1963, a public notice was issued under r. 3(b) of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 hereinafter referred to as the Fees Rules.
On February 19, 1963, M/s Brooke Bond of India (Pr.) Ltd. hereinafter referred to as the Company respondent before us, preferred objections against the proposed levy of octroi.
On February 25, 1963, resolution No.3 was passed.
After setting out the previous resolutions and the publication of the notice by beat of drum, and the various objections received, it concludes: "Having considered all these above objections and suggestions and having given a satisfactory explanation for the same, this Committee unanimously resolves that as per the above resolution octroi should be levied on all the goods coming into the limits of the Panchayat,as per schedule I item 1,and levy the minimum octroi as per the rules in Schedule I item 2.
This levy should come into fo rce from 1 4 1963 and its final publication be done on 1 3 1963 as per rules and by public notice and by announcement by beat of drums (through loudspeakers.)" On March 17, 1963, resolution No. 3 was passed fixing octroi limits and number of octroi nakas and their places.
On March 18, 1963, the Panchayat wrote to the Collector, Nagpur, seeking his approval to the octroi limits, number of octroi nakas and their places.
It appears that the Panchayat started collecting octroi from April 1, 1963.
On May 29, 1963, the Company filed an appeal 216 under section 124(5) of the Act before the Panchayat Samiti, Parseoni.
The Panchayat Samiti, however, rejected the appeal by its resolution dated September 4, 1963.
This decision was communicated to the Company by letter dated September 19, 1963, stating that the appeal "has been rejected by the Samiti as per its resolution dated 4th September, 1963, because the same was not filed within limitation as per the provisions of Bombay Village Panchayat Act and Rule 5 of Taxes and Fees Rules of 1960.
" The Company thereupon filed an appeal before the Standing Committee, Zila Parishad, Nagpur hereinafter, referred to as the Standing Committee on October 22, 1963.
While the appeal was pending, the Tehsildar Ramtek on January 14, 1964, approved the octroi limits and the number and location of octroi nakas within the limits of the jurisdiction of the Panchayat under r. 21 of the Fees Rules.
On April 6, 1964, the Standing Committee allowed the appeal of the Company on two grounds; first, that it was necessary for the Panchayat to have the octroi limits fixed with the approval of the Collector before levying octroi under r. 21; and secondly, that the Company was not importing tea within the limits of the Panchayat for consumption, use or sale.
Thereupon, the Panchayat, as already stated, filed an application under article 226 of the Constitution before the High Court.
The High Court held that the Panchayat Samiti could not dismiss the appeal of the Company as being barred by limitation because r. 5 of the Fees Rules was ultra vires the powers of the rule making authority.
The High Court further held that the octroi duty was not validly levied by the Panchayat as it had failed to fix the octroi limits in accordance with law.
The High Court did not deal with the question whether the company 's tea was imported into the limits of the Panchayat for consumption, use or sale because it felt that sufficient facts had not been found by the Standing Committee.
The High Court felt that it would not be proper to determine facts for itself.
The learned counsel for the appellant contends before us (1) that r. 5 of the Fees Rules was intraviress (2) that the Standing Committee had no jurisdiction to decide the appeal on merits as the appeal to the Panchayat Samiti was barred by limitation; (3) that the octroi duty has been levied in accordance with law; (4) that, at any rate, the levy was good after the octroi limits were fixed on January 14, 1964; (5) that the approval of the octroi limits on January 14, 1964, relates back to April 1, 1963; and (6) that the tea was imported into the Panchayat limits for consumption, use or sale.
Before we deal with these points it is necessary to set out the relevant statutory provisions.
Section 3(13) of the Bombay Village Panchayat Act, 1958 (Bombay Act III of 1959) defines "octroi" or "octroi duty" to mean "a tax on the 'entry of goods into a village 217 for consumption, use or sale therein".
Section 124(1) empowers Panchayats to levy all or any of the taxes and fees mentioned therein, and reads as follows: "124(1).
It shall be competent to a panchayat to levy all or any of the following taxes and, fees at such rates as may be decided by it (but subject to the minimum and maximum rates which may be fixed by the State Government) and in such manner and subject to such exemptions as may be prescribed, namely: . . . . . . . . . (ii) octroi. . . " Section 124(5) provides for appeals in these terms: "Any person aggrieved by the assessment, levy or imposition of any tax or fee may appeal to the Panchayat Samiti.
A further appeal against the order of the Panchayat Samiti shall lie to the Standing Committee, whose decision shall be final." Section 176(1) enables the State Government to make rules for carrying into effect the purposes of the Act.
Section 176(2)(xxvi) provides: "176(2) In particular but without prejudice to the generality of the foregoing provision, the State Government may make rules (xxvi)under section 124 laying down the maximum and the minimum rates and the manner in which and the exemption subject to which taxes and fees specified in the section shall be leviable;. . ." In exercise of the powers under s.176 of the Act, the State Government made the rules called the Maharashtra Village Panchayat Taxes and Fees Rules, 1960.
Part I of the Fees Rules is headed "General", and apart from definitions it consists of three rules, which read as follows: "3.
Procedure for levying tax or fee.
Every panchayat before deciding to levy a tax or fee shall observe the following procedure, namely: (a) The Panchayat shall, by resolution passed at its meeting, select a tax or fee which it proposes to levy and in such resolution shall specify the rate at which it is to be levied.
(b) The Panchayat shall then notify to the public the proposal together with that Part of these rules 218 which relates to that tax or fee by beat of drum in the village and by means of a notice affixed in the office of the panchayat and, at the village chavdi or chora, specifying a date, not earlier than one month after the date of such publication, on or after which the panchayat shall take the proposal into consideration.
(c) Any inhabitant of the village objecting to the levy of the tax or fee proposed by the panchayat may send his objection or suggestion in writing on or before the date specified in the notice, published under clause (b).
(d) On or after the date fixed under clause (b), the panchayat shall consider all objections and suggestions made under clause (c) and may finally select a tax or a fee and decide the rate at which it is to be levied.
Final publication of rules relating to tax or fee to be levied.
Where a panchayat finally decides to levy any tax or fee the rules in that Part, of these rules which relate to such tax or fee, together with a notice stating the tax or fee to be levied and the rate thereof, shall be published by the panchayat by affixing a copy thereof in the office of the panchayat.
It shall also announce by beat of drum in the village the fact of such publication.
The tax or fee shall accordingly be levied from.
the date which shall be specified in the notice and which shall not be earlier than one month after the date of publication of the notice.
Appeal against levy of any tax or fee A person desiring to make an appeal under sub section (5) of section 124, shall do so within sixty days from the date of publication of the notice under rule 4.
The scheme of the Fees Rules is first to prescribe general rules and then to deal individually with various taxes.
Part II deals with tax on Buildings and Lands; Part III with Octroi; Part IV with Pilgrim Tax; Part V with tax on Fairs, Festivals and Entertainments; Part VI with taxes on Bicycles and on Vehicles drawn by Animals; and so on.
We are concerned with Part ITT.
This Part consists of rules 21 to 35, and two Schedules.
The important rules are rules 21, 22 and 23, and may be set out in full: "21.
Fixing of octroi limits and nakas.
A Panchayat shall, with the approval of the Collector or of any officer authorised by the Collector not below the rank of Mamlatdar Tehsildar, Naib Tehsildar or Mahalkari, fix octroi limits and the number and location of octroi Nakas within 219 the limits of its jurisdiction.
Rate of octroi Octroi may be levied by a panchayat, after following the procedure prescribed in rules 3 and 4, on all or any of the goods specified in column 1 of Schedule 1, annexed, to this Part, which are imported into the octroi limits for consumption, use or sale therein and at such rates as may be decided by it but not below the minimum and not exceeding the maximum rates specified in columns 2 and 3, respectively, of that Schedule.
Payment of octroi on introduction of goods, etc.
The octroi shall be paid at the octroi Naka at the time when the articles in respect of which it is leviable are imported into the octroi limits of a panchayat.
" Rules 30, 31, 32 and 33 deal with refund of octroi.
We may first deal with the question of the validity of the levy of octroi duty.
It seems to us that the octroi duty has been levied in accordance with law.
It would be noticed that the rule which authorises the levy is r.22, but it enjoins that the procedure prescribed in rr.3 and 4 should be followed before the octroi duty can be levied.
When we turn to rr.3 and 4, it would be noticed that these rules prescribe the procedure for levying tax or fee and are not confined to octroi duty only.
Rule 7 which deals with tax on buildings and lands also prescribes that the panchayat shall follow the procedure prescribed in rr.3 and 4 before levying a tax on buildings and lands.
Similarly, r.37 which deals with tax on pilgrims provides that the procedure prescribed in rr.3 and 4 should be followed.
Again, in r.53, which deals with tax on vehicles, a reference is made to rr.
3 and 4.
Rule 71 which deals with tax on professions also contains a reference to rr. 3 and 4.
Rule 84 which deals with fee on markets and weekly bazars has a reference to rr.3 and 4.
Rule 93 which deals with fee on cartstands and tonga stands makes the procedure in rr.3 and 4 appli cable.
The scheme of the Fees Rules accordingly seems to be that the general procedure for levying taxes or fees is laid down and then this procedure is made applicable to the levy of various taxes mentioned in the other parts of the Rules.
Viewed in this background, it seems to us that r.3(b) does not require the Panchayat to fix the octroi limits in the resolution passed under r.3(a).
It only deals with two items; (1) selection of the tax and the rate at which it is to be levied.
Rule 3(c) has to be similarly read.
The inhabitants of the village would be entitled to object only to these two matters, namely, (1) the tax or fee imposed and the rate at which it is levied.
Under r.3(d) what the panchayat does is to consider objections and suggestions and then finally make the choice as regards two things, i.e., the tax or fee to be imposed and the rate at which it is to be levied.
220 This interpretation is reinforced by a proper reading of r. 4.
Rule 4 requires a notice stating two things; (1) the tax or fee to be levied and (2) the rate.
But the learned counsel for the Company, Mr. Ashok Sen, argues that this interpretation is not correct because para 2 of r.4 says that the tax shall accordingly be levied from the date which shall be specified in the notice, and he says that if the octroi limits had not been approved of by the time the resolution is passed, how could the tax be levied from the date specified in the notice.
But r.4 has to be read alongwith r.21, and if so read, it would mean that before the octroi duty can start being levied, r.21 must be complied with.
In other words, para 2 of r.4.
must be read to mean that the octroi will be levied from that date provided r.21 had been complied with.
We are, however, unable to agree with the learned counsel for the appellant that before the octroi limits are approved octroi can be collected.
We consider that the fixing of the octroi limits with the approval of the Collector is an essential condition precedent to the levy of octroi duty.
The learned counsel for the appellant says that the approval of the Collector on January 14, 1964, relates back and, therefore, the levy of octroi from April 1, 1963, was regularised.
We are unable to agree with this submission.
Apart from the fact that it may in certain circumstances lead to illegal levies, there is nothing in the language of r.21 which indicates that the Collector can regularise an imposition made without the authority of law.
The Collector may in particular cases enlarge the octroi limits or reduce the octroi limits and it would lead to great confusion if either of the things happens after the Panchayat had been collecting octroi duty within the octroi limits submitted by it to collector for approval.
We may here deal with a minor point which was mentioned in the course of arguments.
The High Court held that "r.3(b) must therefore be interpreted as requiring the Panchayat to notify to the public not only the the proposal about the tax selected by it for levy, but also the rules relating to that tax which must mean the action taken under the Act and the rules.
" On the language of r.3(b) we are unable to appreciate how action taken under the Act and the rules is required to be notified to the public.
There is nothing in the language to warrant such a construction.
In conclusion we hold that the octroi duty was validly levied and that it could be imposed and collected with effect from January 14, 1964.
Mr. Sen raised another point not dealt with by the High Court.
He urges that there was no proper publication under r.4.
We are unable to allow him to raise this point at this stage.
He says that this point was raised before the High Court but it has not been 221 A dealt with by it.
He points out a passage in the judgment of the High Court but we are unable to agree with him that the High Court has implied that this point was raised before it.
He further says that this point was taken in the return filed on behalf of the Company.
Para 2 of the return only alleged: "This respondent says that at that time no copy of the Rules required to be published by Rule 4 of the Rules was exhibited along with the said Notice.
This respondent is not aware and, does not admit that the fact of publication of the Notice under Rule 4 was announced by beat of drum in the village.
" This allegation is reiterated in para 9 of the return.
No such specific point was taken in the grounds of appeal to the Panchayat Samiti.
It was broadly stated that the procedure required to be followed for imposing octroi had not been followed in imposing the same.
Similarly, in the grounds of appeal to the Standing Committee, vague allegations were made "that the village Panchayat has erred in law in not following the procedure contemplated by law in the matter of imposing the octroi and has acted contrary to the principles of natural justice on an assumption that the formalities contemplated by law were complied with." He relies on the notice which is on the record to show that as a matter of fact the publication was not in accordance with law.
In the circumstances noted above we are unable to allow him to raise this point at this stage.
Coming to the question of the vires of r.5, it seems to us that the High Court has placed a wrong interpretation on r.5.
The High Court has held that as r. 5 applies to all appeals under s.124(5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under r.4 for all appeals is arbitrary and destructive of the right of appeal.
But this interpretation, with respect is not correct, if r.5 is read in the setting in which it occurs.
Rule 5 follows imme diately rr.3 and 4 and is headed "Appeal against levy of any tax or fee", and the period of sixty days of limitation commences from the date of the publication of the notice under r.4, i.e., the notice following the decision of a Panchayat to levy any tax or fee.
This date shows that r.5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Simiti under section 124(5).
It is true that the opening sentence makes a reference to an appeal under sub section
(5) of section 124, and this opening sentence would cover all II appeals under sub section
(5) of section 124, but in the context and setting, the heading of r. 5 brings out the scope of the rule.
Accordingly.
the appeal of the Company to the Samiti was wrongly dismissed as time barred.
It follows from this that the Standing Committee was entitled to deal with the appeal on merits.
222 The only point that remains is whether the Company brought tea into the octroi limits of the Panchayat for consumption, use or sale, therein.
As we have pointed out, the High Court felt difficulty in dealing with the question because neither the Panchayat Samiti nor the Standing Committee had found sufficient facts to enable it to deal with the question.
Mr. Sen says that he is willing to take the facts as stated at the bar by the learned counsel for the appellant.
But we consider that it is an unsatisfactory way of dealing with questions of fact.
Before this question can be dealt with satisfactorily, all the relevant facts must be found by the Standing Committee, It is true that the Standing Committee inspected the premises of the Company but in their order they have given very scanty facts, They do not say whether the tea is crushed, processed or treated chemically to convert it into a marketable commodity.
The learned counsel for the Panchayat contends that these things are done and that the resultant product is completely different from the tea imported into octroi limits.
It is also not quite clear whether the tea which is imported by the Company is known in trade circles as a different commodity from the tea actually sent out in boxes.
In the circumstances we must also decline to deal with this point.
In the result the appeal is allowed, and it is declared that the Panchayat could validly impose octroi duty from January 14, 1964, in accordance with the resolutions dated February 25, 1963, and March 17, 1963.
The case is remanded to the High Court to deal with the question whether the Company imported tea for the purpose of consumption, use or sale within the octroi limits of the Panchayat.
The High Court may either remand the case to the Panchayat Samiti or deal with it as it may consider best in accordance with law.
Under the circumstances there will be no order as to costs in this appeal.
G.C. Appeal allowed.

Response:
The appellant Panchayat levied octroi duty on goods coming within its limits by following the procedure laid down in rr. 3 and 4 of the Maharashtra Village Panchayats Taxes and Fees Rules 1960.
Although the resolution finally levying octroi was passed on February 25, 1963 and the octroi limits were fixed by resolution dated March 17, 1963 the approval of the Collector to the octroi limits as required by r. 21 was not obtained till January 14, 1964.
When the Panchayat began collecting octroi on April 1, 1963 the respondent company appealed under section 124(5) of the Bombay Village Panchayat Act, 1958 to the Panchayat Samita.
The appeal was rejected as it was considered time barred under r. 5 of the Taxes & Fees Rules which required an appeal under section 124(5) of the Act to be filed within 60 days of the publication of the notice under r. 4.
On further appeal the Standing Committee, Zila Parishad, Nagpur decided in favour of the respondent company on the ground that the Panchayat had not complied with r. 21.
The Panchayat filed a writ petition under article 226 of the Constitution.
The High Court upheld the findIng of the Standing Committee as to the effect of non compliance with r. 21.
It however further held that r. 5 in requiring all appeals under a. 124(5) of the Act to be filed within 60 days of the publication of the notice under section 4 was arbitrary and destructive of the right of appeal and therefore ultra vires.
The Panchayat appealed to this Court.
Held: (i) Octroi can be validly levied under r. 22 after following the procedure in rr.
3 and 4 Rule 3 deals only with (i) selection of the tax and (ii) the rate at which it is to be levied.
Rule 4 deals with final publication of the notice levying octroi.
The levy of octroi under r. 22 read with rr. 3 and 4 does not require prior approval to the octroi limits by the Collector under r. 21.
[219D H; 220A C].
(ii) However the octroi cannnot be validly collected before the octroi limits are approved by the Collector under r. 21.
Collections made earlier cannot be regularised by subsequent approval.
The plea on behalf of the appellant that the approval of the Collector on January 14, 1964 should relate back to April 1, 1963 could not be accepted.
[220 D E].
(iii) Rule 5 is not invalid as it does not apply to all appeals under, section 124(5).
The rule follows rr. 3 and 4 and is headed "appeal against levy of any tax or fee," and the period of sixty days of limitation commences from the date of the publication of the notice 214 under r. 4 i.e. the notice following the decision of a Panchayat to levy any tax or fee.
This date shows that r. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Samiti under section 124(5).
In its context and setting the heading of r. 5 brings out the scope of the rule, [220 F H].
Accordingly the appeal of the company to the Samiti was wrongly dismissed as time barred.
It followed from this that the Standing Committee was entitled to deal with the appeal on merits.
[220 H].


Prompt:
Appeal No. 787 of 1964.
Appeal from the judgment and decree dated January 5, 1961 of the Calcutta High Court in Appeal from Appellate Decree No. 1012 of 1955.
A.K. Sen and D. N. Mukherjee, for the appellant.
Sukumar Ghose, for respondent No. 1.
The Judgment of WANCHOO, C. J. and MITTER, J. was delivered by MITTER, J. BHAGAVA, J. delivered a separate Opinion.
Mitter, J. This is an appeal by a certificate granted by the High Court at Calcutta from a judgment and decree in Second Appeal passed by that court in January, 1961.
The question before us is, whether the respondent No. 1 was entitled.
to the benefit of the Calcutta Thika Tenancy Act, 1949, as amended finally by an Act of 1953.
The facts necessary for the disposal.
of this appeal are as follows.
On the 18th June 1948, the plaintiff, the appellant before us, instituted Suit No. 292 of 1948 for ejectment of three Persons, namely, Abdul Rahim, Abdul Hamid and Abdul Gaffur, from the property in suit (a parcel of land about 1 cottah 8 chittaks being part of premises No. 6 / 1, Shibtola Lane, Entally, Calcutta).
In the notice to quit served on the 7th May, 1948 the first two persons were described as tenants under the plaintiff and the third as a person who had purported to purchase the structures on the land and the tenancy right therein.
In the plaint itself, the first two defendants were described as thika tenants.
No claim was made for rents or taxes although it was alleged that the same were in arrears.
The suit was contested only by the third defendant who filed a written statement in September 1948 contending that the suit was bad for non joinder of parties.
The suit was decreed by a Munsif of Sealdah court, 24 Parganas on March 18, 1949 after the Calcutta Thika Tenancy Act of 1949 had come into force on February 28, 1949.
The appeal filed therefrom by the third defendant was dismissed by the Subordinate Judge.
Fifth Additional 172 Court, Alipore on November 23, 1949.
The decree holder put the decree in execution and recovered possession of the land on December 18, 1949.
The Calcutta Thika Tenancy (Amendment Ordinance), 1952 was passed on October 21, 1952 introducing various changes in the Act and substituting a new definition of a thika tenant.
On March 14, 1953 the Calcutta Thika Tenancy (Amendment Act), 1953 was passed amending the definition of thika tenant still further and introducing important changes in the Act of 1949.
The effect of these provisions will be considered later on.
Before the Subordinate Judge, a point was taken that after the coming into force of the Act of 1949, the Rent Controller alone had jurisdiction in respect of ejectment suits as the defendant appellant was a thika tenant.
The Subordinate Judge dismissed the plea on the ground that the defendant appellant had not erected the structures on the land and was not a successor in interest of the tenant but only a transferee.
Abdul Gaffur preferred a Second Appeal to the High Court and this was heard and disposed of by a single Judge of that court on July 21, 1954, long after the Thika Tenancy Ordinance of 1952 and the Amending Act of 1953 had come into force.
The learned Judge held that at the time when the appeal of the defendant was disposed of by the Subordinate Judge, the rights of the parties were governed by the Thika Tenancy Act of 1949 and the definition of a thika tenant in that Act was not such as to afford any protection to the appellant.
In view of the amendment of the Act in 1953 however.
the learned Judge felt that the question whether the appellant was entitled to the benefit of that Act had to be re examined and consequently he remanded the matter to the lower appellate court with a direction that there should be a fresh decision of the case after considering the law applicable and taking further evidence if necessary.
On remand, the Subordinate Judge, Seventh Court, Alipore rejected the plea of the landlord that the appellant Gaffur could not be regarded as a thika tenant inter alia on the ground that he had sold his interest by a registered sale deed dated April 12, 1949 to one Subasini.
On a consideration of the provisions of the Act and the Ordinance, the Subordinate Judge held that the appellant, Gaffur, was not liable to ejectment in the absence of any grounds therefor in the notice to quit in accordance with section 3 of the Act as he was a thika tenant within the meaning of the Act as it was finally amended.
He also observed that section 4 of the Act would be applicable.
The landlord went up in appeal once more to the High Court.
On this occasion, the main plank of the argument on behalf of the landlord was that with the omission of section 29 civil courts became unable to remit ejectment suits to the controller with the result that the Act as finally amended could not apply to pre Act suits and thika tenants could get no relief under the Act.
The learned Judges of the Division Bench of the High Court found themselves unable to accept this argument and held that the only power vested in civil courts in respect of ejectment suits against 173 thika tenants like the present one was to be found in sections 28 and 29 of the original Act and by their omission from the statute "suits for eviction became infructuous before civil courts".
In the result, they dismissed the appeal.
We have now to trace the relevant changes in the law made from time to time and see whether the landlord was entitled to eject Abdul Gaffur notwithstanding the Act as amended from time to time.
The first attempt to give relief to persons described as thika tenants was made by West Bengal Ordinance No. XI of 1948 promulgated on October 26, 1948.
The Ordinance had only six sections.
Section 2 defined a thika tenant ' as meaning any person who under the system commonly known as "thika" "thika masik utbandi", "thika masik", "thika bastu", or under and other like system held land under another person whether under a written lease or otherwise and was, or but for a special contract would be, liable to pay rent at a monthly or any other periodical rate, for that land to such other person and had erected any structure on such land and was entitled to use it for residential purposes or for manufacturing or business purposes and included the suc cessors in interest of such person.
Section 3 Provided that notwithstanding anything contained in any other law for the time being in force, no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance.
We need not consider the proviso to the section as we are not concerned with the condition mentioned therein.
It is to be noted that by the definition of thika tenant, a person could only get the protection of the Ordinance if he could establish that he was holding land under any of the systems expressly mention ed or any other like system.
A comprehensive Act was later passed i.e., West Bengal Act II of 1949 which, as already noted, came into force on Feb ruary 28, 1949.
The definition of a thika tenant was modified slightly but the change affected thereby need not be taken account of because the respondent Gaffur 's position was not improved thereby.
The incidents of thika tenancy were mentioned in various sections from section 3 to section II contained in Chapter 11 of the Act.
section 3 provided that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall, subject to the provisions of the Act, be liable to ejectment from his holding on one or more of the specified grounds and not otherwise.
The six grounds mentioned are: (i) failure to pay an arrear of rent due to the landlord in respect of the holding; (ii) user of the land comprised in the holding in a manner when rendered it unfit for any of the purposes mentioned in cl.
(5) of section 2 (the definition of a thika tenant) or violation of a condition consistent with the Act by a breach of which he was under the terms of a contract between himself and his landlord liable to be ejected; (iii) refusal to agree to pay rent at such enhanced rate as might be determined under section 25; (iv) requirement 174 of the land by the landlord for his own occupation or for the purpose of building on the land or otherwise developing the land except during any period limited by a registered lease under which the tenant might be holding; (v) failure on the part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months (omitting the priviso); and (vi) on the expiry of a registered lease in favour of the tenant.
S 4 provided: "It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in section 106 of the : (a) in the case where he wishes to eject the thika tenant on any of the grounds specified in clauses (i), (ii), (iii) and (iv) of section .1 at least one month 's notice in writing expiring with the end of a month of the tenancy; and (b) in the case where he wishes to eject the thika tenant on the ground specified in clause (iv) of section 3 at least three months ' notice in writing expiring with the end of a month of the tenancy.
" The section has two provisos one of which laid down that no thika tenant Shall be ejected from his holding on any of the grounds specified in cls. '(iv) and (v) of _. 3 except on payment to him or 0 deposit with the Controller for payment to him such compensations might be agreed upon 'or might be determined in ' 'the manner prescribed by"the Controller.
5 enacted that: "(1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribedmanner to the Controller for an order in that behalf and,on receipt of such application, the Controller shall after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order. " The section further provided that no ' order allowing an application was to be made unlesscompensation payable to the tenant was either deposited with the Controller or paid to the tenant Chapter IV of the Act, by several sections, provided for appeals, reviews etc.
Under section 27 any person aggrieved by an order of the Controller might present an appeal in writing either to the Chief Judge of the Court of Small Causes in the Presidency town or to 175 the District Judge of a district in which the holding was situate.
Sub section
(5) of the section provided for reviews.
Section 28 enactect that: "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 by 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".
Section 29 ran as follows: "The provisions of this Act shall apply to all suits and proceedings, including 'proceedings _ in execution, for ejectment of a thika tenant which are pending at the date of commencement of this Act, and if any such suit or proceeding relates to any matter in respect of which the Controller is competent after the date of such commendment to pass orders under this Act, such suit or proceeding shall be transferred to the Controller who shall on, suit transfer 'deal with it in accordance with the provisions of this Act as if this Act had been in operation on, the date of institution of the suit or proceeding: Provided that in applying the provisions of the Act to any suit or proceeding instituted for the ejectment of a thika tenant so transferred, the provisions regarding notice in section 4 of this Act shall not apply".
Section 33 provided that on the expiry of the Calcutta Thika Tenancy Ordinance, 1948, the provisions of section 8 of the Bengal General Clauses Act, 1899 would apply as if it were an enactment then repealed by a, West Bengal Act.
It will be noted from the provisions of the Act that it was intended to benefit all thika tenants expressly covered thereby.
Unfortunately, the Act did not afford any real protection to persons for whom it Was meant because of the peculiar definition of thika tenant in it.
A series of decisions of the Calcutta High Court shows that the tenants failed to get any relief because they could not prove any system either of the kind specifically mentioned in section 2 sub section
(5) or an other like system.
It is however 'clear that the benefit of section 28 was available only if the decree or order for the recovery of possession had been made before the date of the commencement of the Act but 176 possession of such holding had not been recovered from him.
Section 29 on the other hand was made applicable to all proceedings including proceedings in execution which were pending at the date of the commencement of the Act.
No exception was made under section 29 to cases where possession of the holding had been recovered from the thika tenant.
The consequence was that even if the tenant had lost possession but any proceeding even arising from an execution proceeding was pending, the provisions of the Act would be attracted.
If any such pending suit or proceeding related to any matter in respect of which the Controller was competent to pass orders, the suit or proceeding would be transferred to the Controller who would deal with it in accordance with the provisions of the Act just as if the Act had been in operation on the date of the commencement of the suit or proceeding.
The only qualification was that even if the suit had been filed before the Act but was riot disposed of by that date, the landlord had to establish that be was entitled to possession because of the existence of any of the grounds mentioned in section 3.
He was however not to be bound he could not have done because of the passing of the Act after the filing of his suit.
As already stated, the Act failed to achieve its object see Murari vs Prokash(1) and Mohammad Mateen vs Baijnath Bajoria.(2) To get over this difficulty, an Ordinance, namely, the Calcutta Thika Tenancy (Amendment) Ordinance, XV of 1952 was promulgated on October 21, 1952.
By section 2 of this Ordinance, the definition of thika tenant in the Calcutta Thika 'Tenancy Act, 1949 was substituted by a new one, namely: "(5) thika tenant ' means any person who holds, whether under a written lease or otherwise, land under another person, and is but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successor in interest .of such person, but does not include a, person: (a) who holds such land under that another person in perpetuity; or (b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or (c) who holds such land under that another person and uses or occupies such land as a khattal".
(1)A.I.R. 1950 Calcutta 230.
(2)A.T.R. 1951 Calcutta 358.
177 Other amendments were made in different sections of the Act.
The most important one was however that contained in section 5 sub section
(1) of this section which enatced that "Save as provided in sub section (2), the provisions of the said Act as amended by this Ordinance, shall apply to all cases pending before a Court or Controller on the date of the commencement of this Ordinance".
Sub section
(2) of section 5 provided as follows: "If, at any time between the commencement of the said , 'Act and of this Ordinance, a decree or order has been passed for the recovery of possession of any land and for other relief, if any, and delivery of possession has not been given, then on application made in this behalf by the person against whom the decree or order was passed, within three months of the commencement of this Ordinance, the Court which or the Controller who passed the decree or the order shall decide (after hearing the parties and after taking fresh evidence if necessary) whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance.
If the Court or Controller holds that the person is not such a thika tenant.
it or he shall dismiss the application.
If the Court or Controller holds that the person is such a thika tenant.
it or he shall set aside the decree or the order and annul the execution proceedings, if any, and (ii) where the proceedings are before a Court it shall remit the case to the Controller to be dealt with by him according to law.
(iii)where the proceedings are before the Controller he shall reopen the case and pass a new order".
Sub section
(4) provided that the provisions of this section would have effect notwithstanding anything to the contrary in any other law or elsewhere in the said Act as amended by the Ordinance.
The second Explanation to the section provided that the expression " court" would include a court exercising appellate or revisional jurisdiction and the expression 'controller ' meant the controller referred to in sub section
(2) of section 2 of the Calcutta Thika Tenancy Act, 1949 for the time being in force or the person deciding an appeal under section 27 of the Calcutta Thika Tenancy Act, 1949 for the time being in force as the case may be.
The effect of this was that a person who before the Ordinance would not come within the pale of the Act because he could not prove a system came within its protection because of the amendment of the definition of a thika tenant.
Sub section
(1) of section 5 made the Act, as amended by the Ordinance, applicable to all cases pending before a court or a controller.
This was irrespective of the question whether the suit had been filed before the Act or 178 after the Act, or whether a decree had been passed before the Act or thereafter.
Sub section
(2) of section 5 made a special provision for cases where a decree or order for possession had been made between the commencement of the Act and of the Ordinance and delivery of possession had not been given to the decree holder.
In such a case it became open to a person covered by the new definition of a thika tenant to make an application within three months of the commencement of the Ordinance either to the court or to the Controller as the case may be for relief on the basis that the applicant was a thika tenant.
Such an application could be made even if, the decree for ejectment had become final and order, for recovery of possession made but actual delivery of possession had not been given.
In such a case, if it was found that the person applying was a thika tenant, the court before whom the proceedings were pending had to remit the case to the controller and if the authority before whom the application was made was a controller, he had to re open the case and pass a new order.
If the matter was in appeal, the appellate court had to exercise jurisdiction under this sub section, determine whether the tenant was a thika tenant and send the matter to the controller 'if it was found that the tenant was entitled to the benefit of the Act '.
Even if no proceedings were pending in any court, it was open to the thika tenant to apply for relief provided delivery of possession had not been given.
Finally came the Thika Tenancy (Amendment) Act (VI of 1953).
It made important changes in the Act itself.
It came into force on March 14, 1953 on which date the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 ceased to operate.
Sub section (2) of section 1 provided that the Act was to 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 were subject to the provisions of section 9 to apply and be deemed to have always applied to all suits, appeals and proceedings (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 i.e., 21st October, 1952.
Section 2 of the Act amended the definition of 'thika tenant ' still further by giving the benefit of the Act to persons who had erected or acquired by pur chase or gift any structure on the land for a residential, manufacturing or business purpose and was to include the successors in interest of such person.
The word 'successor in interest ' had not been defined in the Act or in the Ordinance but as words in the Act were under section 2 sub section
(6) to have the same meaning as those used in the and the Bengal Tenancy Act, 1885 it would, but for the amendment of the definition of a thika tenant, have meant only those persons who inherited from tenants and 179 not those who acquired by purchase.
Sections 3, 4 and 5 introduced changes with which we are not concerned, Section 8 laid down that sections 28 and 29 of the Act of 1949 shall be omitted.
Under section 9 any proceedings commenced under sub section
(2) of section 5 of the Calcutta Thika Tenancy (Amendment) Ordinance were to be continued as if such sub sections
(2), (3) and (4) of that section and the Explanation to that section were in force.
The net result seems to be that after the Amendment Act of 1953 came into force, the position of a tenant had to be examined in the light of the Act as it finally emerged.
Sub section
(2) of section 1 made the provisions of the Calcutta Thika Tenancy Act, 1949 as amended by the Act of 1953, applicable to all suits, appeals and proceedings pending on 21st October before any court or before the controller or before a person deciding an appeal under section 27 of the Act.
No reference is made in this subsection to the date when the suit was instituted.
Only suits which were pending on 21st October 1952 were to be decided in terms of the Act as finally amended.
The question therefore arises, whether a tenant could claim the benefit of the Act in a. pre Act suit.
It is a general principle of law that statutes are not to operate retrospectively so as to defeat vested rights, but such operation may be given by express enactment or by necessary implication from the language employed.
According to Craies on Statute Law (Sixth Edition) at p. 391: "If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation".
The learned author points out at p. 397: "It is a well recognised rule that statutes should be interpreted, if possible, so as to respect vested rights, and such a construction should: never be adopted if the words are open to another construction. . .
For it is not to be presumed that interference with existing rights is intended by the, legislature, and if a statute be ambiguous the court should lean to the interpretation which would support existing rights.
" Again at page 398, the learned author states: "In the absence of anything in an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a slaim in litigation at the time when the Act is passed, . .
Where, however, the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to the intention of the legislature even though there is no express reference to pending actions".
180 Reference may be made to the case of Knight vs Lee(1) where Parke B. in his judgment, said: "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation".
This was decided in terms of the Gaming Act, 1845, section 18 of which enacted that " no suit shall be brought or maintained for recovering any such sum of money " and the question was whether that enactment was retrospective so as to defeat an action already commenced.
The Gaming Act,1922 enacted that "no action for the recovery of money under the said section (section 2 of the Gaming Act, 1835) shall be entertained by any court".
In Headling vs Goll(1) it was held that the section was not retrospective and that the Act did not operate to put an end to pending actions.
According to Halsbury 's Laws of England, third edition, Vol. 36, page 413, article 627: "Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property or so as to deprive a man of his property without his having an opportunity of being heard".
The provisions of the Act of 1949 as finally amended by the Act of 1953 have to be examined to show how far they disturb the rights of landlord to recover possession of the property from a person who would be a thika tenant on 28th February, 1949.
Section 3 of the Act which cuts down the right of the landlord to recover possession except on the grounds therein specified musi be held to apply to all suits even though filed before 28th February 1949.
The language of the section leaves no room for doubt as to this.
It expressly states that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall be liable to ejectment on ground specified and not otherwise.
Consequently, a landlord who had filed a suit before the 28th October 1949 but was unable to ,establish any of the grounds mentioned in section 3 could not claim to eject his tenant.
But the provisions of sections 4 and 5 of the Act are not couched in the same kind of language as section 3.
The legislature clearly meant section 4 to be prospective because according to its language "the landlord who wishes to eject the thika tenant (1) (2) 39 Times Law Reporter 31. 181 must give at least one month 's notice in writing" or three months ' notice as the case may be.
A landlord who had already filed the suit before the Act had evinced his intention and the question of his wishing to eject the thika tenant afresh after the Act or giving a notice for the purpose did not arise.
Again section 5 lays down in clear terms that a "landlord wishing to eject a thika tenant" on one or more of the grounds specified in section 3 "shall apply in the prescribed manner to the controller".
This is only consistent with the wish of a landlord after the Act has come into force.
Before the Act had come into force, the landlord could not possibly know that his suit would be liable to be defeated unless he applied to the controller because there was no such authority functioning then.
The section shows clearly that when a landlord wished to eject a thika tenant after the Act had come into force, he had to consider whether any of the grounds in section 3 was available to him, and if so, he did not have to file a suit but apply to the controller for an order in that behalf.
The language of sections 4 and 5 leave no room for doubt that after the coming into force of the Act it was not open to the landlord to file a suit.
He could only make an application under section 5 after giving notice under section 4.
Sections 28 and 29 of the Act which were omitted as a result of the enactment of the Act of 1953 bring this out in clear terms.
Section 28 was meant to give relief to a thika tenant in a case where a decree or order for recovery of possession of any holding from a thika tenant had been made before the date of commencement of the Act.
It could not apply to the facts of a case like the present where the decree was made after the Act had come into force.
Section 29, on the other hand, shows that it was to be applicable to all suits and proceedings which were pending at the date of the commencement of the Act of 1949.
In other words, it was to apply to any suit or appeal or any proceeding in execution which was pending on 28th February, 1949.
In any such case, the suit or proceeding wherever it was pending had to be transferred to the controller.
The controller in his turn had to deal with the matter in accordance with the provisions of the Act of 1949 as if it had been in operation on the date of the institution of the suit or proceeding which might be before the commencement of the Act; but he was to deal with all pre Act suits on the basis that no notice under section 4 was necessary.
If the legislature did not want to impose the bar of section 4 to pre Act suits in 1949 it does not stand to reason that the legislature should seek to impose it in the year 1953 to be operative in all suits pending not on February 28, 1949 but on 21st October, 1952.
The logical conclusion is that the legislature always proceeded on the basis that section 4 was prospective.
The language of section 5 being closely similar to that used in section 4 that section should also be held to be prospective only.
182 We cannot speculate as to why the legislature thought fit to omit sections 28 and 29 from the Act of 1949.
The effect of omission of section 28 has been considered by this Court in Mahadeolal Kanodia vs Administrator General of West Bengal(1) where it was held that a thika tenant against whom proceedings for execution of the decree for eviction were pending and who had applied for relief under section 28 lost the protection of that section as a result of the Amending Act of 1953.
The effect of omission of section 29 is that we must measure the rights of the parties in the appeal before us on the 'basis that the section had never been on the statute book.
The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto.
As Abdul Gaffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of section 4 of the Act.
As already noted, sections 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective.
Consequently, the absence of a notice under section 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller.
There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case.
It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as "notwithstanding any law to the contrary or in any agreement between the parties".
In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case.
For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by section 3 in this case.
Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings.
Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in section 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard.
The ground need not be specified in the plaint, but nevertheless it had to be established in the suit.
In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence.
He however directed his attention to the (1) [1960]3 S.C.R. 578.
183 question as to whether the tenant appellant was entitled to press into service the provisions of sections 3 and 4 of the Act.
According to him both these sections would apply to the facts of this case.
The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under section 3 on the basis of which the landlord wanted to eject the tenant.
Referring to the notice of ejectment served in this case, he said: "Not any one of the grounds as enumerated in section 3 was called in aid or could be called in aid".
He was not right in his view that the grounds specified in section 3 could not be called in aid.
Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment.
All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved.
Such proof could have been adduced at the trial even if no mention of the grounds had been made before.
As section 4 of the Act was prospective only, it could not apply to this case.
The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in section 3.
The decision of the High Court, when the matter was heard for the second time must be upheld on that ground.
However, the. view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of section 29 is not correct.
The correct view is that sections 4 and 5 being prospective and as such inapplicable to pre Act suits, the landlord had to establish the existence of one of the grounds specified in section 3 in order to succeed.
There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account section 3.
The tenant could not however ask for any compensation for the structures but could only remove them in terms of section 108(h) of the Transfer of Proper ty Act.
For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949.
It may be because before the Ordinance of 1952 no one could establish his rights as a thika tenant in view of the vague definition of "thika tenant" in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such.
The legislature cannot be taken to have imposed a ban on all pre Act suits by the circuitous process of sections 4 and 5 of the Act.
It could then have said in clear terms that all pre Act suits shall be stayed.
Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates.
In the result, as the landlord has not established any of the grounds specified in section 3 entitling him to ejectment, the appeal 184 must be dismissed.
On the special facts of the case, we make no order as to costs.
Bhargava, J. I agree with the judgment of my brother, Mitter, J. with the exception that I would like to reserve my opinion on the question whether section 4 of the Calcutta Thika Tenancy Act, 1949, as amended up to 1953, is prospective or not.
On the view that this appeal must be dismissed because the respondent was entitled to the benefit of section 3, it does not appear to me to be necessary to express any opinion on whether compliance with section 4 was also required, or whether it being prospective only no such compliance by the appellant was needed.

Response:
In June 1948 the appellant instituted a suit against the first respondent and others for their ejectment from the property in suit, On February 28, 1949 the Calcutta Thika Tenancy Act came into force.
The first respondent was not a thika tenant within the definition therefore of given in the Act.
The suit was decreed by the Munsif in March 1949.
In November 1949 the appeal filed by the first respondent was ,dismissed by the first appellate court.
He then filed a second ,,appeal in the High Court which was heard in 1954.
Before that the Calcutta Thika Tenancy (Amendment) Act, 1953 was passed.
Under this Act the first respondent came within the definition of thika tenant.
The High Court remanded the case to the Subordinate Judge for trying the case in the light of the amended Act.
The Subordinate Judge held that the first respondent was a thika tenant and could not be ejected as none of the grounds mentioned in section 3 of the Act had been established by the appellant.
The latter appealed to the High Court and urged that with the omission of section 29 in the 1953 Act Civil Courts became, unable to remit ejectment suits to the Rent Controller with the result that the Act as amended could not apply to pre Act suits.
The High Court however took the view that after the omission of sections 28 and 29 from the Act suits for eviction before civil courts became infructuous and, accordingly, dismissed the appeal.
The appellant with certificate came to this Court.
The questions that fell for consideration were: (i) whether the tenant could take the benefit of section 3 in a pre Act suit, (ii) whether in view of the omission of sections 28 and 29 from the Act the civil courts had jurisdiction to try such a suit.
HELD:Per Wanchoo C.J. & Mitter J. (i) While it is a general principle of law that statutes are not to operate retrospectively so as to defeat vested interests; such operation may be given by express enactment or by necessary implication from the language employed.
The language of section 3 leaves no room for doubt that it is retrospective since it expressly states that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant will be liable to ejectment on grounds specified therein and not otherwise.
[179 D E; 180 F G].
Knight vs Lee, and Beadling vs Goll, 39 Times Law Reporter 31, referred to.
Section 3 does not purport to lay down that the grounds mentioned therein have got to be stated in the notice of ejectment.
All that the section lays down is that ejectment could not be had unless the ,existence of one of the grounds was proved.
Such proof could have been adduced at the trial even if no mention of the grounds had been made before.
The appellant not having given such proof the case was rightly decided against him.
[183 C D].
171 (ii) However In a pre Act suit no notice under section 4 could be insisted on as that section , clearly prospective.
Section 5 which required proceedings to be filed before the Controller was also clearly prospective.
[180 H; 181 A; B H].
(iii) The High Court was wrong in holding, that suits for the eviction of thika tenants became infructious before civil courts after the omission of sections 28 and 29.
There being no longer any provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account section 3.
[183 D F].
Per Bhargava, J. This appeal must be dismissed because the respondent was entitled to the benefit of section 3.
It was not necessary to express any opinion whether compliance With section 4 was also required or whether it being prospective only no such compliance by the appellant was needed.
[184 B].