# GOPI KANTA SEN v. ABDUL GAJi'FUR & ORS

- **Citation:** [1968] 1 S.C.R. 170
- **Court:** Supreme Court of India
- **Decided:** 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopi-kanta-sen-v-abdul-gaji-fur-ors-4096
- **Pages:** 15

## Headnote

170
GOPI KANTA SEN
A
v.
ABDUL GAJi'FUR & ORS.
August II. 1967
[K. N.
WANCHOO, C. J., V. BHARGAVA AND G. K. MITTER, JJ.] B
Calcutta Thika Tenancy Act 1949, as amended by Calcutta Thika
Tenancy Act 1953-S. 3 of the Act whether applicable to pre-Act
"uits-Deletion of ss. 28 and 29 of o•iginal Act by 1953 amendment-
.Effect of deletion on jurisdiction of civil cow-ts.
In June 1948 the appellant insbituted a suit against the firs_t res-
:pondent and others for their ejectme!lt from the property in suit On C
~ebruary 28 1949 the Calcutta Thika Tenancy Act came into force.
The first resi>ondent was not a thika tenant within the definition there-
<>f 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 1in the High Court which was heard. in 1954. Before that the
Calcutta Thika Tenancy (Amendm.ont) Act, 1953 was passed. Under
this Act the first respondent came within the definition of thika D
tenant. The High Court remanded the case to the Subordinate Judge
for trying the case in the llght 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 s. 3 of the Act
had been established by the appellant. The latter appealed to the
High Court and urged that w;th the omission of s. 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 E
pre-Act suits. The High Court however took the view that after the
-omission of ss. 28 and 29 from the Act suits for eviction before civil
courts became infructuous and, accordingly. dismissed the appeal.
'The appellant w.ith certificate came to this Court. The questions
that fell for. consideration were: (i) whether the tenant could take
the benefit of s. 3 in a pre-Act suit, (ii) whether in view of the omission of ss. 28 and 29 from the Act the civil! courts had jurisdiction to
try such a suit.
F
HELD: Per Wanchoo C.J. & Mitt-er J. (i) While lt is a genr.ral
principle of lav.~ 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 s. 3 leaves no room for doubt that it is retrospective
since it expressly states that notwithstanding anything contained :.n
any other law for the time being in force or in any contract, a thika G
·tenant will be liable to eiectment on grounds specified therein and
not otherwise. [179 D-E: 180 F-G].
Knight v. Lee, [1893] 1 Q.B. 41 and Beadling v. 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 B
the section lays down is that ejectment could not be had unless the
-existence of one of the iirounds 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 aga;nst him. [183 C-D].
GOPI KANTA V.
ABDUL GAFPUR (Miller, J.)
171
A
(ii) However ln a pre-Act suit no notice under s. 4 could be insisted on as that section was clearly prospective. Section 5 which required proceedings to be filed before the Controller was also clea~lw
prospective. (180 H; 181 A; B-H].
(iii) The High Court was wrong ;n holding that suits for the eviction of th.ik11 tenants became infructuous before civll courts after
the omission of ss. 28 and 29. There being no longer any provision for
B 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. (183 D-F].
c
Per Bhargava, J .-Th'.s appeal must be dismissed because the respondent was entitled to the benefit

## Text

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170
GOPI KANTA SEN
A
v.
ABDUL GAJi'FUR & ORS.
August II. 1967
[K. N.
WANCHOO, C. J., V. BHARGAVA AND G. K. MITTER, JJ.] B
Calcutta Thika Tenancy Act 1949, as amended by Calcutta Thika
Tenancy Act 1953-S. 3 of the Act whether applicable to pre-Act
"uits-Deletion of ss. 28 and 29 of o•iginal Act by 1953 amendment-
.Effect of deletion on jurisdiction of civil cow-ts.
In June 1948 the appellant insbituted a suit against the firs_t res-
:pondent and others for their ejectme!lt from the property in suit On C
~ebruary 28 1949 the Calcutta Thika Tenancy Act came into force.
The first resi>ondent was not a thika tenant within the definition there-
<>f 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 1in the High Court which was heard. in 1954. Before that the
Calcutta Thika Tenancy (Amendm.ont) Act, 1953 was passed. Under
this Act the first respondent came within the definition of thika D
tenant. The High Court remanded the case to the Subordinate Judge
for trying the case in the llght 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 s. 3 of the Act
had been established by the appellant. The latter appealed to the
High Court and urged that w;th the omission of s. 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 E
pre-Act suits. The High Court however took the view that after the
-omission of ss. 28 and 29 from the Act suits for eviction before civil
courts became infructuous and, accordingly. dismissed the appeal.
'The appellant w.ith certificate came to this Court. The questions
that fell for. consideration were: (i) whether the tenant could take
the benefit of s. 3 in a pre-Act suit, (ii) whether in view of the omission of ss. 28 and 29 from the Act the civil! courts had jurisdiction to
try such a suit.
F
HELD: Per Wanchoo C.J. & Mitt-er J. (i) While lt is a genr.ral
principle of lav.~ 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 s. 3 leaves no room for doubt that it is retrospective
since it expressly states that notwithstanding anything contained :.n
any other law for the time being in force or in any contract, a thika G
·tenant will be liable to eiectment on grounds specified therein and
not otherwise. [179 D-E: 180 F-G].
Knight v. Lee, [1893] 1 Q.B. 41 and Beadling v. 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 B
the section lays down is that ejectment could not be had unless the
-existence of one of the iirounds 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 aga;nst him. [183 C-D].
GOPI KANTA V.
ABDUL GAFPUR (Miller, J.)
171
A
(ii) However ln a pre-Act suit no notice under s. 4 could be insisted on as that section was clearly prospective. Section 5 which required proceedings to be filed before the Controller was also clea~lw
prospective. (180 H; 181 A; B-H].
(iii) The High Court was wrong ;n holding that suits for the eviction of th.ik11 tenants became infructuous before civll courts after
the omission of ss. 28 and 29. There being no longer any provision for
B 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. (183 D-F].
c
Per Bhargava, J .-Th'.s appeal must be dismissed because the respondent was entitled to the benefit of s. 3, It was not necessary to
express any opinion whether ·compliance with s. 4 \\'as also requlred
or whether it being prospecitve only no such compliance by the appellant was needed,- (184 Bl
• CIVIL APPELLATE JURISDICTION:
1964.
Civil Appeal No. 787 of
Appeal from the judgment and decree dated January 5, 1961
of the Calcutta High Court in Appeal from
Appellate Decree
No. 1012 of 1955.
D
A. K. Sen and D. N. Mukherjee. for the appellant.
Sukumar Ghose, for respondent No. !.
The Judgment of WANCHOO, C. J. and MITTER, J. was delivered by MITTER, J. BHARG,,.VA, J. delivered a separate Opinion.
Mitter, J.-This is an appeal by a certificate granted by the
E 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
F 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 a.nd Abdul Gaffur,
from the property in suit (a parcel of land about 1 cottah 8 chittaks
being part of premises No. 6/ I, Shibtola Lane, Entally, Calcutta).
In the notice to quit served on the 7th May, I 948 the first two
G persons were described as tenants under the plaintiff a.nd the third
as a per.son 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
li suit '~as bl\d for non-joinder of parties. The suit was decreed by a
Muns1f 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 .Tt:dge.
Fifth Additional
172
SUPREME COURT REPORTS
(1968] I s.c.R.
Court, Alipore on November 23, 1949. The decree-holder put the A
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 B
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· c
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, !Ong after the Thika
Tenancy Ordinance of 1952 and the Amending Act of 1953 had D ·
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 Tenan·
cy 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 E
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 F
regarded as a thika tenant inter a/la 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 t e 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 G
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 that 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 to pre- H
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 ejectme_nt suits against
GOPI KANTA V. ABDUL GAFFUR (Mitter, J.)
173
A thika tenants like the present one was to be found in ss. 28 and
29 ol! 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 n_ow to trace the relevant
changes in the law made f.rom llme to time and s~e whet!ter the
landlord was entitled to eiect Abdul Gaffur notwithstanding the
Act as amended from time to time.
B
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
C 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 ra.te,
for that land to such other person and had erected any strucltire
on such land and. was entitled to use it for residential purposes
or for manufacturing or business purposes and included the sucI> 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
E 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 system.
A comprehensive Act was later passeed i.e., West Bengal
Act II of 1949 which, as already noted. came into force on FebF ruary 28, 1949. The definition of a thika tenant was modified
slightly but the change affected thereby need not be taken account
of because t~e !espondent _Gaffur's
position was not improved
ther~by. The mc1dents of th1ka tenancy were mentioned in various
sect10ns fi:om s. 3 to s. 1) contai?ed in Chapter II of the Act.
S. 3 provided that notwl\hstandmg anything contained in any
G other law for th~ time being in ~~rce or in any contract, a thika
tenant shall. sub)ect to. the provmons of the Act, be liable to
CJectmcnt from ~1s holdm!f on one or more of the specified grounds
and not otherwise. The six grounds mentioned are: (i) failure to
pay a~ arrear of rent due to the landlord in respect of the holdmg; (n) user of. the land comprised in the holding in a manner
when rendered It un~~ for any of the purposes mentioned in cl.
H (5) o~ _s. 2 (th~ defimt~on of a thika tenant) or violation of a
cond1t10n consistent with the Act by a breach of which he was
~nder the teri:ns of a .. c:ontract between himself and his landlord:
liable to be eiect~; (111) refusal. to agree to pay rent at such enhanced rate as might .be determmed under s. 25; (iv) requirement
174
SUPREllE COURT REPORTS
[1968] l s.c.R.
of the land by the landlord for his own occupation or for the It
purpose of building on the land or otherwise tleveloping -110 land
except during any period limited by a registered lease under which
the tenant might be holding; (v) failure on the part of the tenant
to use or occupy a major part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months (omitting the proviso); and (vi) on the expiry of B
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 Transfer of Property Act, 1882 :-
(a) in the case where he wishes to eject the thika
C
tenant on any of the grounds specified in clauses
(i), (ii), (iii) and (iv) of section '.l 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 cla1188 (iv) of
section 3 at least three months' notice in writing
expiring with the end of a month of the tenancy"
D
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 els. (iv) and (vi of s. 3 except on payment to him or
on deposit with the Controller for payment to him such compen- B
sation as might be agreed upon or might be determined in the
manner prescribed by the Controller.
S. 5 enacted that: -
"()) 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 prescribed manner 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 a{'Plication shall
not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it
aftet recording the reasons for malCing such order ...... ".
r
G
The section further provided that no order allowing an application was to be made unless compensation payable to the tenant
was either deposited with the Controller or paid to the tenant. R
Chapter IV of the Act, by several sectiom, provided for appeals,
reviews etc. _l;Jnder s. 27 any person.~~ by an order of t~e
Controller might present an appeal m writing either to the Chief
. Judge of the Court of Small Causes in the Presidency town or to
'
'
OOPI KANTA
11.
ABDUL GAUUR (Miltel-, J.)
175
A the District Judge of a district in which the holding was situate.
Sub-s. (5) of the section provided for reviews. Section 28 enacted
that:
B
c
"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, ~h~ C:ourt
by which the decree or order was made may, 1f 1t 1s of
opinion that the decree or order is not in conformity with
any provision of this Act other than sub-section (]) of
section S or section '17, 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: -
D
IJ
r
"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 commencement to pass orders under this Act, such suit or proceeding shall be transferred to the Controller who shall on
such 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 this 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 s. 8 of the Bengal General
G 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 t:alcutta High Court shows that the tenants failed to get
B any relief because they could not prove any system either of the
kind speci~cally mentioned in s<
2 sub-s. (5) or any other like
system. It 1s 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 the commencement of the Act but
176
SUPREME COURT REPORTS
[1968) 1 S.C.B.
possession of such holding had not been recovered from
him. A
Section 29 on the other hand was made applicable to all poceedings 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 lmlding had been recovered from the thika tenant. The consequence was that even if
the tenant had Jost possession but any proceeding even arising from B
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 he 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 C
~ommencement 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 D
the filing of his suit. As already stated, the Act failed to achieve
its object-see Murari v. Prakash(') and Mohammad Mateen v.
Baiinath Bajoria.(') To get over this difficulty, an Ordinance,
namely, the Calcutta Thika Tenancy (Amendment) Ordinance,
XV of 1952 was promulgated on October 21. 1952. By s. 2 of
this Ordinance, the definition of thika tenant in the Calcutta Thika B
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
P
structure on such land for a residential. manufacturing
or business purpose and includes thQ successor in interest
of such person, but does not include a person:-
(a) who holds such land under that another person in
perpetuity; or
G
(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 khartal".
'(') A.I-II. 1950 Calcutta 230.
B
001".I KANTA v. ABDUL GAFFU.11 (Mitter, J.)
177
A Other amendments were made in different sections of the Act.
The most important one was however that contained in s. S sub-s.
(!) of this section which enatced that-
"Save as provided in sub-section ~). 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
B
of the commencement of this Ordinance".
c
D
l!I
Sub-s. (2) of s. 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 la.w.
(iii) where the proceedings are before the Controller.-
he shall reopen the case and pass a new order".
r
Sub-s. (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 revisiorial
jurisdiction and the expression 'controller' meant the controller
G referred to in sub-s. (2) of s. 2 of the Calcutta Thika Tenancy Act,
1949 for the time being in force or the person deciding an appeal
under s. 27 of the Calcutta Thika Tenancy Act, 1949 for th~
time being in force as the case may be.
The effect of this was that a person who before the Ordinate
would not come within the pale of the Act because he could not
I prove a system came within its. protection because of the amendment of the definition of a thika tenant. Sub-s. (I) of s. 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
L/P(N)lSCI-13
178
SUPRllJllll COURT RBPORTS
(1968] l s.c.R.
after the Act, or whether a decree had been passed before the Act A
or thereafter. Sub-s. (2) of s. 5 made a special provision for cases
where a decree or order for possession had been made between
the commencement of the Act arid 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 8
the commencement of the Ordinanee 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
applyin,g was a thika tenant. the court before whom the proceed- C
ings were pending had to remit the case to the controller and if
the authority before whom the applica.tion was ma de 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 D
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 t/Jika
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 B
force on March 14, 1953 on which date the Calcutta Thika
Tenancy (Amendment) Ordinance, 1952 ceased to operate. Subs. (2) of s. 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 s. 9 to apply and be deemed to
have I:
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 s. 27 of the said Act, on the date of
the commencement of the Calcutta T/1ika 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 Q
benefit of the Act to persons who lmd erected or acquired by purchase or gift any structure on the land for a residential, manufacturing or business purpose and was to include the successors in
interrst of such person.
The word 'successor-in-interest' had not been defined m the
Act or in the Ordinance but as words in the Act were under s. 2 K
sub-s. (6) to have the same .meaning as those used in the Transfer
of Property Act. 1882 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
oon ltANT..\ v • .lBDUL G..\nutl (Milter, J.)
179
.I. not those who acquired by purchase. Sections 3, 4 and 5 intro&iK~
changes with which we are not concerned. Section 8 laid down that
ss. 28 and 29 of the Act of l 94CJ shall be omitted. Under s. 9
any proceedings commenced under suJ>.s. (2) of s. 5 of the Calcutta Thika Tenancy (Amendment) Ordinance. were to be continued as if such sub-ss. (2), (3) and (4) of that section and' the
B Explanation to that· section were jn 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. SuJ>.s. (2)
of s. 1 made the provisions of the 'Calcutta Thika Tenancy Act,
1949 as amended by the Act of 1953, applicable to all suits,
o appeals and proceedings pending on 21st October before any
court or before the controller or before a person deciding an
appeal under s. 27 of the Act. No reference is made in this subieetion 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
D suit. It is a geperal principle of Jaw that statutes are not to
operate retrospectively so as to defeat vested rights, but such
operation may be given by express enactment or by neces.sary
implication from the . language employed.
According to Craies
on Statute Law (Sixth Edition) at p. 391:
•
'
G
B
"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 weil 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 lit page 398, the learned author &tates:
"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 fllfect to the intention of' the legislature even though
there is no express reference to pending actions".
180
BUl'BIDIE COURT Rlll'OBTB
[1968] 1 s.c.11.
Reference may be ma.de to the case of Knight v. Lee(') where A
Parke B. in his judgment; aid:-
.
"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".
B
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 0
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 (s. 2 of the Gaming Act, 1835) shall be entertairi!d by any court". In Beadling v. Goll(') it was held that the
section was not retrospective and tha.t the Act did not operate
to put an end to pending actions.
D
According to Halsbury's Laws of England, third edition,
Vol. 36, page 413, Art. 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 conB
tracts 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 t.o be examined to show how far they disturb
the rights of landlord to recover possession of the property from r
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 must
be held to apply to all suits even though filed before 28~ February 1949. The language of the section leaves no room for
doubt as to this. It expressly states that notwithstanding anything G
contained in any other law for the time being in force or in any
contract, a thika tenant shall be liable to ejectment on grounds
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 s. 3 could not claim
to eject his tenant But the provisions of ss. 4 and 5 of the Act
are not couched in the same kind of language as $. 3. The Jegis- B
lature clearly meant s. 4 to be prospective because according to
its language "the landlord who wishes to eject the thika tenant
(I) [1893] I Q.B. 41.
(2) 39 Times Low lt<lporter 31.
I
f
\=
GOPI KANTA 11. ABDUL GAl!'l'Ull (Mitter, J.)
181
A 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.
B
Again' s. 5 lays down in clear terms that a "landlord wishing
to eject a thika tenant" on one or more of the grounds specified
in s. 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
C 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 s. 3 was available to him, and if so, he did not have
to file a suit blit apply to the controller for an order in that
behalf.
D
The language of ss. 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
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
E 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 fot 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 atl suits and proceedings
F 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
G 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 s. 4 was
necessary. If the legislature did not want to impose the bar of
s. 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 opeH rative 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 s .. 4 was prospective. The
language of s. 5 being closely similar to that used in s. 4 that
section should also be held to be prospective only.
182
SUPQQ COUllT REPORTS
[1968] l S.C.11.
We cannot speculate as to why the legisla.ture thought fit A
to omit ss. 28 and 29 from the Act of 1949. The effect of omission of s. 28 bas been considered by this Court in Mahadeolal
Kanodia v. Administrator-General of West
Bengal(') where it
was held that a thika tenant against whom proceedings for execution of the decree for eviction were pending and who bad
applied for relief under s. 28 Jost the protection of that section B
as a result of the Amending Act of 1953.
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 bad 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 en· C
acted 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 sueh 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. Conse- D
quently, the absence of a notice under s. 4 would not stand in
the way of the landlord nor couJd bis 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 B
or a qualific~tion to the rights of the parties by the use of suitable words such as "notwithstanding any Jaw 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 I'
against a tenant under the ordinary Ja.w 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 G
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, B
if necessary, was not called upon by any of the parties to hear
or record fresh evidence. He however directed his attention to the
(I) [1960] 3 $.C.J\. G78.
...
GOP! KANTA ti. .IJIDUL GABUB (Miller, J.)
183
A question as to whether the tenant-appellant 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 t.'le opinion
that it was necessary to state some ground under s. 3 on the basis
of which the landlord wanted to eject the tenant. Referring to the
B 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 s. 3
could not be called in aid. Section 3 does not purport to lay down
CJ
that the grounds mentioned therein had got to be stated in the
notice of ejectment. All that the section lays down is that eject·
ment· could not be had unless the existence of one of the W?unds
was proved. Such proof could have been adduced at the tnal 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
D 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 tlzika
tenants became infructuous before civil courts after the omission
:g of s. 29 is not correct. The correct view is that ss. 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 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
tlzika tenant after taking into acount s. 3'.