Case: Rafiquennessa  Vs. Lal Bahadur Chetri (Dead) Through His Representatives And After Him His Legal Representatives And Others

over-ride and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf no provision of a statue should be given retrospective operation if by such operation vested rights are likely to be affected. These principles are unexceptionable and as a matter of law, no objection can be taken to them. Mr. Chatterjee has relied upon the well known observations made by Wright J. in re Athlumney; Ex parte Wilson, 1898-2 QB 547 when the learned Judge said that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments, unless in express terms they apply to pending actions, do not affect them. He added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing right. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.11. Bearing in mind these principles, let us look at S. 5. Before doing so, it is necessary to consider S. 2 which provides that notwithstanding anything contained in any contract or in law for the time being in force the provisions of this Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force. This provision clearly indicates that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act. In other words leases which had been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act. That is one important fact which is material in determining the scope and effect of S. 5.12. Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made. That is another point which is significant in dealing with the controversy between the parties before us.13. There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.14. Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.15.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Now, S. 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective. What does S. 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it. Thus, the plain object of S. 5 is to protect the tenants who have built a permanent structure either for business or for residence provided it has been built within 5 years from the date of contract of tenancy. Therefore, cases where permanent structures had been built within 5 years of the terms of contract would fall within S. 5(1) (a), even though those constructions had been made before the date of the Act. Thus, the very scheme of S. 5(1)(a) clearly postulates the extension of its protection to constructions already made.There is yet another point which is relevant in this connection. Section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non-payment of rent provided of course the conditions prescribed by it are satisfied. If the legislature had intended that this protection should operate prospectively, it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force and that might have introduced the element of prospective operation; instead, what is prohibited by S. 5 (1) (a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by S. 5 (1) (a) though they may have been initially instituted before the Act came into force.Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by S. 5(1) (a) and in appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by S. 5(1) (a) provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of S. 5 (1) (a). It is common ground that if S. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.