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PETITIONER: MAHADEOLAL KANODIA

       Vs.

RESPONDENT: THE ADMINISTRATOR-GENERAL OFWEST BENGAL.

DATE OF JUDGMENT: 20/04/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1960 AIR  936            1960 SCR  (3) 578  CITATOR INFO :  F          1960 SC 941  (5,22)  RF         1980 SC 214  (20)  F          1982 SC1302  (14)  D          1989 SC1834  (16)  R          1990 SC 261  (18)  RF         1990 SC 981  (17)  RF         1991 SC1893  (18)

ACT:        Thika Tenancy-Decree for Possession against  tenant-Applica-        tion   for   relief   by  tenant-Amendment   of   Act   with        retrospective  operation-Effect-Interpretation  of  Statute-        Principles  of  construction-Thika Tenancy Act  (W.B.  2  of        1949),  S. 28-Thika Tenancy Amendment Act (W.B. 6 of  1953),        s. 1(2).

HEADNOTE: With  a  view to give protection to  Thika  tenants  against eviction  and  in  certain other matters,  the  West  Bengal Legislature  enacted the Calcutta Thika Tenancy  Act,  1949. That Act was amended by the Calcutta Thika Tenancy Amendment Act, 1953, which omitted s. 28 of the Act.  The question for decision  in  the appeal was whether the  appellant  against whom proceedings for execution of a decree for ejectment was pending,  who had applied for relief under s. 28  when  that section  was in force, was entitled to have his  application disposed  of  in accordance with the provisions  of  s.  28, which had ceased to exist retrospectively though it remained undisposed of on the date the Amendment Act came into force: Held,  that s. 1, sub-s. (2) of the Calcutta  Thika  Tenancy Act 1953, clearly intended that no relief under s. 28 of the original 579 Act  should  be given in cases pending for disposal  on  the date  the  amendment became effective and s.  28  ceased  to exist retrospectively. The principles applicable to interpretation of statutes are four-fold in nature,- (1)such  statutory  provisions  as  create  or  take  away substantive rights are ordinarily prospective ; they can  be retrospective   if  made  so  expressly  or   by   necessary

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implication and the retrospective operation must be  limited only  to  the  extent to which it has been  so  made  either expressly or by necessary implication, (2)the  intention  of the legislature has to  be  gathered from the words used by it, giving them their plain,  normal, grammatical meaning, (3)if any provision of a legislation the purpose of  which is to benefit a particular class of persons is ambiguous  so that  it  is  capable  of two  meanings  the  meaning  which preserves the benefit should be adopted., (4)If the strict grammatical interpretation gives rise to an absurdity  or inconsistency, such interpretation  should  be discarded  and an interpretation which will give  effect  to the purpose will be put on the words, if necessary, even  by modification of the language used: Held, also, that judicial decorum ought never to be ignored. Where  one  Division  Bench or a judge of a  High  Court  is unable  to  distinguish  a  previous  decision  of   another Division  Bench or another Single judge and holds  the  view that  the earlier decision was wrong, the matter  should  be referred to a larger Bench to avoid utter confusion. Deorajan  Devi  v. Satyadhan Ghosal, [1953]  58  C.W.N.  64, overruled.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 303 of 1956.        Appeal from the judgment and decree dated February 7,  1955,        of  the Calcutta High Court in Appeal from  Appellate  Order        No.  102  of 1953, arising out of the  judgment  and  decree        dated August 6, 1953, of the Subordinate Judge, Second Court        of Zillah, Howrah, in Misc.  Appeal No. 231 of 1953.        G.,  S.  Pathak, P. K. Chakravarty and B. C.  Misra,for  the        appellant.        B. Sen, S. N. Mukherjee and P. K. Bose, for the respondent.        1960.  April 20.  The Judgment of the Court was delivered by        DAS  GUPTA, J.-In Calcutta and its suburb Howrah there  have        existed for many years precarious tenancies popularly  known        as  Thika tenancies, the characteristic feature of which  is        that the tenant        580        takes  lease of the land only and erects structures  thereon        at  his own expense; where there is already a  structure  on        the land the tenant acquires these structures by purchase or        gift  but  takes the land on which the  structure  stood  in        tenancy.   With  the influx of population into  these  areas        that  followed the partition of India the position of  these        Thika  tenants became even more insecure than before.   With        the  sharply rising demand for accommodation  the  landlords        found  it possible and profitable to put pressure  on  these        Thika  tenants to increase their rents or to evict  them  so        that  other  tenants  who would give  more  rents  and  high        premiums  might  be brought in.  With a view  to  give  some        protection  to these Thika tenants against eviction  and  in        certain  other matters, the West Bengal Legislature  enacted        in  1949  an  Act  called the  Calcutta  Thika  Tenancy  Act        (hereinafter referred to as " the Act ").  Some features  of        the  protection afforded by this legislation  which  deserve        mention are that ejectment could be had only on one or  more        of  the  six grounds specified in s. 3 of the  Act;  special        provisions  as regards notice for ejectment were made in  s.        4; in the same section provision was also made about payment        of  compensation as a necessary pre-requisite for  ejectment        in  certain  cases.  Section 6 provides that no  orders  for

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      ejectment  on  the  grounds  of arrears  of  rent  shall  be        executed  if  the amount of arrears together with  costs  of        proceedings  and damages that may be allowed were  deposited        within 30 days from the date of the order.  Not content with        giving  such  protection only in suits and  proceedings  for        eviction that might be instituted by the landlord in  future        the  Legislature  in the 29th section of this  Act  provided        that  even in suits and proceedings which had  already  been        instituted  and were pending for disposal on the, date  when        the  new  law  came  into  force,  this  now  law  will   be        applicable, except the provisions as regards notice in s. 4.        In the 28th section of the Act the Legislature went  further        and  provided  that  even  where the  decree  or  order  for        recovery  of  possession had been obtained by  the  landlord        against a Thika tenant but possession had not been  actually        recovered, courts will have the power to re-open the  matter        and        581        if  the  decree  or  order is not  in  conformity  with  the        beneficent  provisions  of  the Act either  to  rescind  the        decree  or order altogether or to vary it to bring  it  into        such  conformity.   Section 28 with which we  are  specially        concerned  in  this appeal is in these words:--        " Where any  decree or order for the recovery of  possession        of any holding from a Thika tenant has been made before  the        date of commencement of this Act but the possession of  such        holding has not been recovered from the Thika tenant by  the        execution  of such decree or order, the court by  which  the        decree  or order was made may, if it is of opinion that  the        decree  or order is not in conformity with any provision  of        this Act other than sub-section (1) of section 5 or  section        27,  rescind or vary the decree or order in such  manner  as        the Court may think fit for the purpose of giving effect  to        such provision and a decree or order so varied by any  Court        shall  be  transferred to such Court to the  Controller  for        execution  under this Act as if it were an order made  under        and in accordance with the provisions of this Act."        The  new law however failed to achieve its object  for  some        years  as  the Courts interpreted the  definition  of  Thika        tenant  in the Act in such a manner that speaking  generally        no tenant was able to establish its requirement.  To  remedy        this  the  Governor of West Bengal enacted  on  October  21,        1952,  an Ordinance by which the definition of Thika  tenant        was revised and a few other amendments of the Act were made.        The special protection given under ss. 28 and 29 of the  Act        to tenants against whom decrees or orders had been  obtained        or against whom cases were pending was however kept  intact.        The  Ordinance by its s. 5 extended such special  protection        also  to tenants whose cases were pending before a court  on        the  date  of the commencement of the  Ordinance  and  those        against whom decrees or orders had been made after the  date        of  the  Act  and  before the  date  of  the  Ordinance  but        possession  had not been obtained.  In 1953 the West  Bengal        Legislature  enacted  the Calcutta Thika  Tenancy  Amendment        Act,  1953,  revising permanently the  definition  of  Thika        tenant and making some, other        76        582        and  29  of the Original Act were  omitted.   The  principal        question before us in this appeal is whether the  provisions        of  s.  28 could be applied by a Court in a  case  where  an        application had been made by a tenant for relief under  that        section and such application was pending for disposal on the        date the omission became effective, by reason of the  Amend-        ment Act coming into force.

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      The  decree  for possession with which we are  concerned  in        this  case  was  made as far back as August 8,  1941,  by  a        Munsif  in  Howrah.  The tenant’s appeal  was  dismissed  on        April  9,  1943.  On February 28, 1949, on  which  date  the        Calcutta  Thika  Tenancy  Act  of  1949  came  into   force,        proceedings  for  the execution of the decree  of  ejectment        were pending in the Munsif’s Court.  On March 19, 1952, when        these  proceedings  were still pending the  tenant  made  an        application to the Court which had passed the decree praying        that  the  decree may be rescinded or varied  in  accordance        with  the provisions of s. 28 of the Act.  This  application        came  up for hearing before the Munsif on July 7, 1953.   In        the  meantime the Amendment Act of 1953 had come into  force        and  the omission of s. 28 of the Act had become  effective.        The  learned  Munsif  held that s. 28 of the  Act  being  no        longer  in  force  he had no power to give  the  tenant  any        relief  in accordance with the provisions thereof.  In  that        view  he dismissed the application.  The tenant’s appeal  to        the  District  Judge,  Howrah,  having  been  rejected,   he        preferred a second appeal to the High Court.        The  learned judges of the High Court who heard  the  appeal        agreed with the courts below on a construction of s. 1(2) of        the  Amendment  Act  that s. 28 was not  applicable  to  the        proceedings  commenced by the tenant by his application  for        relief and dismissed the        Against  that  decision  the tenant has  filed  the  present        appeal before us on a certificate of fitness granted by  the        High Court.        The  decision of the question raised in this  appeal,  viz.,        whether this tenant who had applied for relief        583        under  s. 28 when that section was in force is  entitled  to        have  his  application disposed of in  accordance  with  the        provisions of that section though it remained undisposed  of        on  the date the Amendment Act came into force,  depends  on        the interpretation of s. 1, sub-s. (2) of the Amendment Act.        This section is in these words:        "It shall come into force immediately on the Calcutta  Thika        Tenancy (Amendment) Ordinance, 1952, ceasing to operate:        Provided  that the provisions of the Calcutta Thika  Tenancy        Act,  1949,  as amended by this Act, shall, subject  to  the        provisions of s. 9, also apply and be deemed to have  always        applied to all suits, appeals and proceedings pending-        (a)  before any Court, or        (b)  before the Controller or        (c)  before a person deciding an appeal under section 27  of        the said Act,        on  the  date  of the commencement  of  the  Calcutta  Thika        Tenancy (Amendment) Ordinance, 1952."        It  is  obvious  and  indeed undisputed  that  but  for  any        difficulty  that may be placed in the tenant’s way by  these        provisions the tenant would in view of the provisions of  s.        8 of the Bengal General Clauses Act be entitled to have  his        application  for  relief  under s. 28 of  the  original  Act        disposed  of  as  if s. 28 still continued.   If  however  a        contrary intention has been expressed by the Legislature  in        its amending Act the contrary intention would prevail.  What        we  have  to  decide is whether in s.  1,  sub-s.  (2),  the        Legislature  has  clearly  expressed an  intention  that  no        relief  under  s. 28 of the original Act shall be  given  in        cases like these.        The principles that have to be applied for interpretation of        statutory  provisions of this nature  are  well-established.        The  first of these is that statutory pro. visions  creating        substantive  rights  or taking away substantive  rights  are

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      ordinarily  prospective; they are retrospective only  if  by        express  words or by necessary implication  the  Legislature        has made them retrospective; and the retrospective operation        will be limited        584        only  to the extent to which it has been so made by  express        words, or by necessary implication.  The second rule is that        the  intention of the Legislature has always to be  gathered        from the words used by it, giving to ,the words their plain,        normal,  grammatical meaning.  The third rule is that if  in        any legislation, the general object of which is to benefit a        particular  class of persons, any provision is ambiguous  so        that it is capable of two meanings, one which would preserve        the  benefit  and  another which would  take  it  away,  the        meaning  which preserves it should be adopted.   The  fourth        rule is that if the strict grammatical interpretation  gives        rise  to an absurdity or inconsistency  such  interpretation        should  be discarded and an interpretation which  will  give        effect  to  the purpose the Legislature  may  reasonably  be        considered  to  have  had  will be  put  on  the  words,  if        necessary, even by modification of the language used.        In  applying  these principles to the interpretation  of  S.        1(2),  it is necessary first to consider a  contention  that        has  been  raised by Mr. Pathak on behalf of  the  appellant        that  the  phrase " as amended by this Act "  qualifies  the        word " provisions ". If this be correct, the meaning of  the        proviso will be that only those provisions of the Act  which        have  been amended by the Act shall apply and be  deemed  to        have  applied  always  to pending  proceedings.   This  will        become  meaningless, the argument continues, if the  word  "        amended " is interpreted to include omissions.  For it makes        no  sense  to say that a provision which  has  been  omitted        shall apply.  So, it is argued, the word " amended "  should        be  interpreted  to  mean only  amendment  by  additions  or        alterations  and not an amendment by omissions.  The  result        of the proviso, the appellant’s counsel contends, is to make        applicable to pendinn proceedings the altered provisions  in        place  of old provisions but to say nothing as regards  such        provisions which have been omitted.        We  are  unable to see how it is possible, unless  rules  of        grammar are totally disregarded to read the words as amended        by  this  Act  "  as to qualify  the  word  provisions."  If        ordinary  grammatical rules are applied there is  no  escape        from the conclusion that        585        the  adjectival phrase " as amended by this Act "  qualifies        the proximate substantive, viz., the Calcutta, Thika Tenancy        Act, 1949.  There is no escape from the conclusion therefore        that  what  the Legislature was saying by this  was  nothing        more  or less than that the provisions of the amended  Thika        Tenancy Act shall apply.        Mr.  Pathak  argued that if that was  what  the  Legislature        wanted  to  say, it was reasonable to expect it to  use  the        words  "  The Thika Tenancy Act, 1949, as  amended  by  this        Act," in the proviso; and there was no reason for the use of        the  words " the provisions of the Thika Tenancy Act  ".  We        are  not impressed by this argument.  The Legislature  might        certainly have used the language as suggested by the learned        counsel, and as be says, that would have meant an economy of        words.   But  where there are two ways of  saying  the  same        thing it is useless to speculate why one way was adopted  in        preference  to  the  other.   It  is  not  unusual  to  find        draftsmen using the words " provisions of the Act " in  many        statutes  where  the  words  " the Act  "  would  have  been        adequate; and it would be unreason. able to try to read  too

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      much  in the use of the words " the provisions of the  Thika        Tenancy  Act " instead of " The Thika Tenancy Act "  in  the        proviso.        Even so the learned counsel contends, there is no reason  to        read " amendments "’ so as to include omissions.  The word "        amendment  ",  he  has submitted is sometimes  used  in  the        restricted  sense  of  "addition"  or  "  a  alteration"  as        distinct  from omission; and he asks us to read the  word  "        amended  "  in  the proviso, to  mean  only  alterations  or        additions  in the statute, and as not  including  omissions.        It is unnecessary for us in the present case to express  any        opinion  on the general question whether in certain  context        the word " amended " should be interpreted so as to  exclude        omissions.  What is clear however is that the present is not        one  of  such  cases.  The amendment Act  itself  was  being        called  the  Calcutta Thika Tenancy (Amendment)  Act,  1953.        The  preamble  says " whereas it is expedient to  amend  the        Calcutta  Thika  Tenancy  Act, 1949 ".  Section  2  of  this        amendment  Act substitutes a new clause for the old el.  (5)        of  s. 2; s. 3 adds some words to el. (1) and s. 3(b)  omits        some words in cl. (4) and        586        again  adds  some  words  to cl. (5) of s.  3  of  the  Act.        Section 4 omits certain words of sub-s. (1) of s. 5. Section        5  substitutes some new words in place of certain  words  in        the  original  sub-ss.  (1) and (2) of s.  10  of  the  Act.        Section 6 omits one section of the original Act, viz., s.  1        1 ; s. 7 inserts some words in the original s. 27 ;  section        8  omits  two  sections,  viz., ss. 28 and  29  ;  the  last        section,  s. 9 provides for the continuance  of  proceedings        under s. 5, sub-s. (2) of the Amendment Ordinance if sub-ss.        (2), (3) and (4) thereof were in force.        Reading  the Amendment Act as a whole there can be no  doubt        that  the Legislature in. using the word " amended " in  the        proviso to sub-s. (2) of s. 1 sought to make no  distinction        between  amendment by additions, alterations  or  omissions.        It is clear when certain words or sections have been  added,        altered or omitted by the Amendment Act, the Calcutta  Thika        Tenancy  Act,  1949,  took on a new shape  with  some  added        features,  some  altered features and minus  those  features        which have been omitted.  What the proviso says is that  the        Calcutta Thika Tenancy Act in its new shape shall apply  and        shall  be  always  deemed to  have  applied  to  proceedings        pending  before  a  Court,  a  Controller  or  an  appellate        authority under s. 27 on the date of the commencement of the        Thika Tenancy Amendment Ordinance, 1952.  As the application        which  the appellant had made for relief under s. 28 of  the        Tenancy  Act  was pending for disposal before  the  Munsif’s        court  on October 21, 1952, the date of the commencement  of        the Calcutta Thika Tenancy (Amendment) Ordinance, 1952,  the        position  which cannot be escaped is that the Thika  Tenancy        Act  of  1949 without the provisions as  regards  relief  to        tenants  against whom decrees had been obtained on the  date        of  the commencement of the original Act but possession  had        not  been  actually recovered would be  applied  to  pending        applications.   In  other  words,  though  the   application        originally  was for relief under s. 28 no such relief  could        be   granted,   the   section   having   ceased   to   exist        retrospectively.        It  is helpful to remember in this connection the fact  that        while s. 28 of the original Act was giving certain tenants a        right to relief which they would have had if        587        the  beneficent provisions of the new Act were available  to        them  during the disposal of the suits the manner  in  which

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      the  right  is given is by conferring on courts a  power  to        rescind  or  vary  decrees  or orders  to  bring  them  into        conformity  with the provisions of the, Act.  As soon as  s.        28  was  omitted the courts ceased to have any  such  power.        The effect of the proviso in its strict grammatical  meaning        is  that the courts shall be deemed never to have  had  this        power  in respect of applications which were still  pending.        The inevitable result is that the Court having been deprived        of the power to give relief even in respect of  applications        made at a time when the power could have been exercised, was        bound to dismiss the applications.        There  can be no doubt that this is an  unfortunate  result.        It  may  very  well  be true that if  as  a  result  of  the        Amendment  Act, many tenants are deprived of the benefit  of        s. 28, this will be mainly because of the Court’s  inability        to dispose of the applications before the Amendment Act came        into force and not for any default on their part.        Mr. Pathak has repeatedly stressed this and has asked us  to        construe s. 1 (2) in a way that would retain the benefits of        s. 28 to tenants whose applications remained to be  disposed        of  on  the  crucial  date.   He  has  in  this   connection        emphasized the fact that the Amendment Act itself is a piece        of  beneficent legislation and that the amendments  made  by        ss.  2,3,  5 and 9 all extend to tenants benefits  to  which        they  would not have been entitled under the  original  Act.        This extension of further benefits to tenants, he says, is a        guiding  principle of the amending legislation.   He  points        out  also that except as regards such  pending  applications        under  s. 28 the effect of s. 1(2) of the amending Act  will        be  to  give the extended benefits to  tenants  in  pending,        proceedings.  It will be incongruous, he argued, that  while        all  tenants  stand to benefit by the  amending  legislation        only those whose applications under s. 28 have, for no fault        of theirs, remained pending would be deprived of the benefit        they  would  have had but for the omission in  the  amending        Act,  of  s. 28. It is difficult not to  feel  sympathy  for        these tenants.  As we have already mentioned it is a sound        588        rule  of  interpretation of beneficent legislation  that  in        cases  of  ambiguity  the construction  which  advances  the        beneficent  purpose should be accepted in preference to  the        one which defeats that purpose.  In their anxiety to advance        the  beneficent  purpose  of  legislation  courts  must  not        however  yield to the temptation of seeking  ambiguity  when        there  is none.  On a careful consideration of the  language        used by the Legislature in s. 1(2) we are unable to see that        there is any such ambiguity.  The language used here has one        meaning only and that is that the Act in its new shape  with        the  added  benevolent  provisions,  and  minus  the  former        benevolent  provisions  in s. 28 has to be  applied  to  all        pending proceedings, including execution proceedings and the        proceedings  pending  under  s. 28 of the  original  Act  on        October 21, 1952.  There is therefore no scope for  applying        in  this  case the principles of  interpretation  which  are        applicable in cases of ambiguity.        Nor  is  it  possible  to  agree  with  Mr.  Pathak’s   last        contention that the strict grammatical interpretation  would        result  in an absurdity or inconsistency.  It is urged  that        it  is unthinkable that the Legislature when  undertaking  a        legislation  to  help tenants would do anything  to  deprive        them  of  the existing benefits under s. 28.  It is  in  our        opinion  useless  to  speculate as to  why  the  Legislature        thought it right to take away the benefit.  One-reason  that        suggests  itself is that the Legislature might have  thought        that where landlords had already been deprived of the fruits

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      of the decrees they had obtained for a long period from  the        date  when the original Act came into force up to  the  time        when  the  Amendment Act came into force, it  would  not  be        right  to  continue  that  deprivation.   But  whatever  the        reasons  may  be the fact remains that the  Legislature  has        used  words which in their normal grammatical  meaning  show        that  they  intentionally deprived this  class  of  tenants,        viz.,  those whose applications under s. 28 of the Act  were        undisposed of on the date the Ordinance came into force, and        remained  undisposed  of, even when the Amendment  Act  came        into force.        We have therefore come to the conclusion that the view taken        by the High Court in this case that the        589        effect of s. 1(2) of the Calcutta Thika Tenancy  (Amendment)        Act,  1953, is that all pending applications under s. 28  of        the original Act must be dismissed is correct.  The contrary        view  taken  by  the same High Court  in  Deorajan  Debi  v.        Satyadhan Ghosal (1) and other cases is not correct.        Before we part with this appeal, however, it is our duty  to        refer  to one incidental matter.  We have noticed with  some        regret  that when the earlier decision of two judges of  the        same  High  Court in Deorajan’s Case was  cited  before  the        learned  judges  who heard the present appeal they  took  on        themselves  to  say that the previous  decision  was  wrong,        instead  of  following  the  usual  procedure  in  case   of        difference of opinion with an earlier decision, of referring        the  question to a larger Bench.  Judicial decorum  no  less        than legal propriety forms the basis of judicial  procedure.        If one thing is more necessary in law than any other  thing,        it is the quality of certainty.  That quality would  totally        disappear  if judges of co-ordinate jurisdiction in  a  High        Court  start  overruling one another’s  decisions.   If  one        Division  Bench of a High Court is unable to  distinguish  a        previous decision of another Division Bench, and holding the        view that the earlier decision is wrong, itself gives effect        to  that  view  the result would be  utter  confusion.   The        position  would be equally bad where a Judge sitting  singly        in  the High Court is of opinion that the previous  decision        of  another single Judge on a question of law is  wrong  and        gives effect to that view instead of referring the matter to        a  larger Bench.  In such a case lawyers would not know  how        to  advise their clients and all courts subordinate  to  the        High Court would find themselves in an embarrassing position        of  having to choose between dissentient judgments of  their        own High Court.        As far as we are aware it is the uniform practice in all the        High Courts in India that if one Division Bench differs from        an  earlier  view on a question of law of  another  Division        Bench,  a  reference  is made to a  larger  Bench.   In  the        Calcutta  High  Court  a rule to this  effect  has  been  in        existence since 1867.  It is unfortunate        (1)  (1953) 58 C.W.N. 64.        77        590        that  the attention of the learned judges was not  drawn  in        the  present  case to that rule.  But quite apart  from  any        rule, considerations of judicial propriety and decorum ought        never to be ignored by courts in such matters.        On  the merits, as we have found that the view of law  taken        by  the  High Court in this case is correct, the  appeal  is        dismissed.        In  view however of the uncertainty that was in the  law  as        regards the applicability of s. 28 to proceedings pending on        the  commencement of the Thika Tenancy Ordinance,  1952,  we

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      order that the parties will bear their own costs.        Appeal dismissed.