Case: Gopi Kanta Sen Vs. Abdul Gaffur &amp; Ors

2. 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, Abdual Rahim. Abdual Hamid and Abdual 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 diffident who filed a written statement in September 1948 contending that the suit was bad forr of parties. The suit was decreed by a Munsif of Sealdah court,s 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 demised by the Subordinate Judge. Fifth Additional Court, Alipore on November 23, 1949. Ther 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 thet was a thika tenant. The subordinate Judge dismissed the plea on the ground that thet had not erected the structures on the land was not at of the tenant but only a transferee. Abdual 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 they 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 bed 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 s. 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 s. 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 the with the omission of s. 29 civil courts became unable to remit ejectment suits to the controller with the result that the Act as finally amended could not apply tot 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 thika tenants like the present one was to be found in ss. 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.

Court's reasoning:
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 mentioned or any other like systemIt is however clear that the benefit of s. 28 was available only if the decree or order for the recovery of possession had been made before the date of commencement of the Act but 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 s. 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 not disposed of by that date, the landlord had to establish that he was entitled to possession because of the existence of any of the grounds mentioned in s. 3. He was however not to be bound by the provision as to giving a notice under s. 4 which obviously 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 objectIt 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. The section shows clearly that when a landlord wishes to eject a thika tenant after the Act had come into force, he had to consider whether any of the grounds in s. 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 behalf10. The language of ss. 4 and 5 leave nor 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 s. 5 after giving notice under s. 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 whether 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 allt suits on the basis that no notice under s. 4 was necessary. If the legislature did not want to impose that bar of s. 4 to11. The effect of omission of s. 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 Guffur 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 s. 4 of the Act. As already noted, ss. 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 s. 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 of 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 s. 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 s. 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 question as to whether thet was entitled to press into service the provisions of ss. 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 s. 3 on the basis of which the landlord wanted to eject the tenant12. He was not right in his view that the grounds specified in s. 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 s. 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 s. 29 is not correct. The correct view is that ss. 4 and 5 being prospective and as such inapplicable tot suits, the landlord had to establish the existence of one of the grounds specified in s. 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 s. 3. The tenant could not however ask for any compensation for the structures but could only remove them in terms of s. 108(h) of the Transfer of Property 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 on 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 allt suits by the circuitous process of ss. 4 and 5 of the Act. It could then have said in clear terms that allt suits shall be stayed. Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates.