# RAF1QUENNESSA v. LAL BAHADUR CHETRI (DEAD) THROUGH HTS

- **Citation:** [1964] 6 S.C.R. 876
- **Court:** Supreme Court of India
- **Decided:** 1964-02-24
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J. c. SHAH, N. Rajagopala Ayyangar Ands. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raf1quennessa-v-lal-bahadur-chetri-dead-through-hts-3227
- **Pages:** 9

## Headnote

Retroactivity-Enactment
of the
A.ct
pcndinr:
apptal-Apptal if
governed by the A.ct-Allam Non·Agricultural Urhan Arecu Ttnanq
Act, 19SS (Assam Act No. 12 of 19SS), •· S.
-
6 S.C.R.
SUPREME COURT REPORTS
877
The appellant sued the lessee, the predecesoor of the respondents. for
ojcctment on the latter's failure to deliver possession of a leased land
at the expiration of the stipulated period. Under the covenant the lessee
was entitled to build a house for residential purposes. The trial Court
decreed the appellant's claim
whereupon
the· lessee filed an appeal.
While the appeal was pending the Assam Non-Agricultural Urban Areas
Tenancy Act was passed, and thereafter the lessee prayed for permis·
sion to take an additional ground under •· S of the Act. Before lhat
date, the High Court" had taken the view that this provision of the Act
was applicable to pending procee'dings. The lower appellate court allow ..
ed the lessee's plea and ultimately allowed the appeal and set oside ,ho
decree passed by the trial Judge in favour of the appellant, concluding
that the two houses had been constructed by the lessee within five years
after the taking of the lease and that entitled the lessee to claim the
benefit of s. S of the Act. The High Court on appeal. following its
earlier decision about the applicability of the provisions of •· 5 to pending proceedings, summarily dismissed the appeal, but granted a certifi~
cate for leave to appeal to this Court.
Held: (i) A statutory provision is retroactive either when it is so
declared by express terms. or the intention to make it retroactive clear1y
follows from the relevant words and the context in which they O"..cu1.
Re. Athlumney Ex parte Wilson, (1898) 2 Q.B.D. 541, referred to.
(ii) The provisions of the Act clearly indicate that the legislature
wanted the beneficient provisions enacted by it to take within their
protection not only leases executed after the Act came into iorce, but
also leasei executed prior to the operation of the Act.
The plain object of s. 5 is to protect tho tenants who have built a
permanent structure either for business oi' for residence, provided it bu
been built within S years from the date of contract of tenancy, even
though those constructions had been malle before the date of tho AcL
(iii) A suit which was pending when the Act came into force would
be governed by s. S(I) (a) and an appeal arising from a suit which
had been decided before the Act came into force, would likewise bo
governed by s. S(I) (a), provided it is pending after the date when
the Act came into force, for an appeal pending in a continuation of
the suit.
CML APPELLATE JURISDICTION: Civil Appeal No. 549
of 1962.
Appeals from the judgment and orders dated August 1,
1958 and March 13, 1959 of the Assam High Court in S.A.
Nos. 86 of 1958 and 14 of 1959 respectively.
N. C. Chatter;ee, K. P. Sen and P. K. Chatterjee, for the
appellant (in C.A. No. 549 of 1962).
1961
Rafiquenneua
v.
Lal Bahadur
1964
Gaiendragadkar
C. I.
878
SUPREME COURT REPORTS
[1964)
B. P. Maheshwari, for respondents Nos. l(a) to l(e)
(in C.A. No. 549 of 1962).
Behrul Islam and R. Gopalakrishnan, for the appellant
(in C.A. No. 569 of 1963).
D. N. Mukherjee, for the respondent (in C.A. No. 569/
63).
February 24, 1964. The Judgment of the Court was
d; iivered by
GAJENDRAGADKAR C.J.-These two appeals which
have been brought to this Court with a certificate issued by
the Assam High Court, raise a short question about the
construction and effect of section 5 of the Assam
Non·
Agricultural Urban Area Tenancy Act,
1955 (No. 12 of
1955) (hereinafter called 'the Act').
The
relevant
and
material facts which have led to the suits from which these
two appeals respectively arise, are similar, and so, it would
not be necessary to state them in detail in regard to both
the matters. We would, therefore, mention the facts broadly
in C.A. No. 549/1962, in dealing with the common point
raised for our decision. The appellant in this case is
Mst. Rafique

## Text

SUPREME COURT REPORTS
[rg64)
1964
taxing entries in the legislative Lists I and II of the Seventh
R. Ab~uad., Schedule &re entirely separate from other entries. Entry 26
S I
T v. Offi
of List II deals with trade and commerce and has nothing
a 81
aJ:
ca to d
· h
·
·
I'
gl
_
o wit
taxIJJg or recovermg amounts rea 1sed wron y
Wanchoo J.
as tax.
It is said that s. 11 (2) regulates trade and commerce and the State legislature therefore was competent
under Entry 26 of List II to enact it.
We have not been
Ahle to understand what such a provision has to do with the
regulation of trade and commerce; it can only be justified
as a provision ancillary to a taxing statute. If it cannot be
so justified-as we hold that it cannot-we are unable to
uphold it as regulating trade and commerce under Entry 26
ot List II. There is in our opinion no element of regulation
of trade and commerce in a provision like s. 11 (2).
1961
February 24.
We are therefore of opinion that the State legislature was
Incompetent to enact a provision likes. 11 (2).
We may also
add that the provision contained in s. 20(c), being consequen·
tial to s. 11 (2) will fall along with it. In consequence it
was not open to the Sales Tax Officer to ask the appellant
to make ov~ what he had collected from
the purchasers
wrongly as sales tax. It is not disputed, as appears from
the final assessment order of the Sales Tax Officer, that the
appellant was not liable to pay the amount as sales tax for
the relevant period. We
therefore allow the appeal and
quash the assessment order dated
s~ptember 27, 1956
insofar as it is based on s. 11 (2).
Th~ appellant will get
his costs in this Court as well as in the High Court.
Appeal allowed.
RAF1QUENNESSA
v.
LAL BAHADUR CHETRI (DEAD) THROUGH HTS
REPRESENTATIVES AND OTHERS
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c.
SHAH, N. RAJAGOPALA AYYANGAR ANDS. M. S!KRI JJ.)
Retroactivity-Enactment
of the
A.ct
pcndinr:
apptal-Apptal if
governed by the A.ct-Allam Non·Agricultural Urhan Arecu Ttnanq
Act, 19SS (Assam Act No. 12 of 19SS), •· S.
-
6 S.C.R.
SUPREME COURT REPORTS
877
The appellant sued the lessee, the predecesoor of the respondents. for
ojcctment on the latter's failure to deliver possession of a leased land
at the expiration of the stipulated period. Under the covenant the lessee
was entitled to build a house for residential purposes. The trial Court
decreed the appellant's claim
whereupon
the· lessee filed an appeal.
While the appeal was pending the Assam Non-Agricultural Urban Areas
Tenancy Act was passed, and thereafter the lessee prayed for permis·
sion to take an additional ground under •· S of the Act. Before lhat
date, the High Court" had taken the view that this provision of the Act
was applicable to pending procee'dings. The lower appellate court allow ..
ed the lessee's plea and ultimately allowed the appeal and set oside ,ho
decree passed by the trial Judge in favour of the appellant, concluding
that the two houses had been constructed by the lessee within five years
after the taking of the lease and that entitled the lessee to claim the
benefit of s. S of the Act. The High Court on appeal. following its
earlier decision about the applicability of the provisions of •· 5 to pending proceedings, summarily dismissed the appeal, but granted a certifi~
cate for leave to appeal to this Court.
Held: (i) A statutory provision is retroactive either when it is so
declared by express terms. or the intention to make it retroactive clear1y
follows from the relevant words and the context in which they O"..cu1.
Re. Athlumney Ex parte Wilson, (1898) 2 Q.B.D. 541, referred to.
(ii) The provisions of the Act clearly indicate that the legislature
wanted the beneficient provisions enacted by it to take within their
protection not only leases executed after the Act came into iorce, but
also leasei executed prior to the operation of the Act.
The plain object of s. 5 is to protect tho tenants who have built a
permanent structure either for business oi' for residence, provided it bu
been built within S years from the date of contract of tenancy, even
though those constructions had been malle before the date of tho AcL
(iii) A suit which was pending when the Act came into force would
be governed by s. S(I) (a) and an appeal arising from a suit which
had been decided before the Act came into force, would likewise bo
governed by s. S(I) (a), provided it is pending after the date when
the Act came into force, for an appeal pending in a continuation of
the suit.
CML APPELLATE JURISDICTION: Civil Appeal No. 549
of 1962.
Appeals from the judgment and orders dated August 1,
1958 and March 13, 1959 of the Assam High Court in S.A.
Nos. 86 of 1958 and 14 of 1959 respectively.
N. C. Chatter;ee, K. P. Sen and P. K. Chatterjee, for the
appellant (in C.A. No. 549 of 1962).
1961
Rafiquenneua
v.
Lal Bahadur
1964
Gaiendragadkar
C. I.
878
SUPREME COURT REPORTS
[1964)
B. P. Maheshwari, for respondents Nos. l(a) to l(e)
(in C.A. No. 549 of 1962).
Behrul Islam and R. Gopalakrishnan, for the appellant
(in C.A. No. 569 of 1963).
D. N. Mukherjee, for the respondent (in C.A. No. 569/
63).
February 24, 1964. The Judgment of the Court was
d; iivered by
GAJENDRAGADKAR C.J.-These two appeals which
have been brought to this Court with a certificate issued by
the Assam High Court, raise a short question about the
construction and effect of section 5 of the Assam
Non·
Agricultural Urban Area Tenancy Act,
1955 (No. 12 of
1955) (hereinafter called 'the Act').
The
relevant
and
material facts which have led to the suits from which these
two appeals respectively arise, are similar, and so, it would
not be necessary to state them in detail in regard to both
the matters. We would, therefore, mention the facts broadly
in C.A. No. 549/1962, in dealing with the common point
raised for our decision. The appellant in this case is
Mst. Rafiquennessa who sued the predecessor of the
respondents for ejectment. It appears that Lal Bahadur
Chetri has executed a registered lease-deed in favour of
the aqipellant on the 14th February, 1946. The lease
covered an open plot of land and under the covenant the
leasee was entitled to build a house for residential purposes.
In the ordinary course, the lease was due to expire on the
12th February, 1952, and the lessee had agreed to deliver
vacant possession of the land at the expiration of the
stipulated period. Accordingly, a notice to quit was served
on him to vacate on the 12th February, 1952. He,
however, did not comply with the notice and that led to the
present suit by the appellant for eviction (No. 149 of 1952).
In support of her claim, the appellant alleged that the lessee
had contravened the terms of the lease inasmuch as he had
sublet the premises built by him, and so, that was an addi·
tional gtound for evicting the lessee.
The sub-lessees were
accordingly joined as defendants to the suit.
The lessee Chetri alone resisted the suit The sub-tenants
let into possession by him did not join issue with the appel-
6 S.C.R.
SUPREME COURT REPORTS
lant. The trial Judge decreed the appellant's claim whereupon the lessee Chetri filed an appeal in the Court of the
Sub-Judge, Lower Assam District, Gauhati, challenging
the validity and the correctness of the decree passed against
him (Civil Appeal No. 24/1953).
While the appeal was pending, the Act was passed and
was published in the Assam Gazette on the 6th July, 1955.
Thereafter, when the appeal came on for hearing before the
lower appellate Court, the tenant filed an application praying
that he should be permitted to take an additional ground
under s. 5 of the Act.
Before that date, the Assam High
Court had taken the view that the said provision of the Act
was applicable to the pending proceedings between landlords and tenants for eviction and that was the basis on
which the temint Chetri wanted to support his appeal. The
lower appellate Court allowed the tenant's plea, framed an
11dditional issue in pursuance of it and sent the matter back
to the trial Court for a finding.
On remand, the trial Court took evidence and after local
inspection, made a finding that the two houses proved to
have been built by the tenant must be regarded as permanent
in relation to the locality of the plot. He, however, found
that there was no evidence to show when the said houses
were constructed. Part of the finding was challenged by the
tenant before the lower appellate Court. The lower appellate Court ultimately allowed the appeal and set aside the
decree passed by the trial Judge in favour of the appellant.
The conclusion of the lower appellate Court was that the two
houses had been constructed by the tenant within five years
after the taking of the lease and that entitled the lessee to
claim the benefit of s. 5 of the Act
The appellant then preferred a second appeal in the High
Court of Assam
(No.
86/ 1958).
Following its earlier
decision about the applicability of the provisions of s. 5 to
pending proceedings, the High Court summarily dismissed
the said appeal.
Thereafter, the appellant applied for and
obtained a certificate from the High Court and with the said
certificate the present appeal has been brought before
us.
Pending these proceedings, the tenant Chetri died and his
bcirs and legal representatives Mst Tulsa Devi and othm
1964
Rafill.utv.
Lal Bahotblr
GafendraaadJ;arC. 1.
1961
Raflquennt1m
v.
Lal Baliadur
Ga/endragadkar
c. /.
880
SUPREME COURT REPORTS
[r<fi4]
have been brought on the record and will be described as
respondents hereafter. Thus, the only point which arises for
our decision is whether the Assam High Court was right in
taking the view that the provisions of s. 5 applied to the
proceedings between the parties which were pending at the
relevant time before the lower appellate Court.
Appeal No. 569 of 1963 arises from a suit filed by the
appellan~ Wahedulla against his tenant,
the
respondent
Abdul Hamid. The relevant facts are similar to those in
C.A. No. 549I1962.
In this case also, the Act came into
force while the appeal was pending before the lower appellate Court and by the application of s. 5 respondent's claim
to continue in possession has been upheld and the app~llant's
claim for ejecting the respondent has been rejected.
The
High Court granted certificate to the appellant when it was
toid that the appellant proposed to challenge the correctness
of its earlier decision holding that s. 5 of the Act applied
to the pending proceedings.
The Act was passed by the Assam Legislature in order
to regulate in certain respects the relationship between landlord and tenant in respect of non-agricultural lands in the
urban areas of the State of Assa'I!. It contains fourteen
sections and the scheme which is evident in the operative
provisions of the Act is to afford protection to tbe tenants
by regulating in certain respects the relationship between
them and their landlords in respect of the lands covered by
the Act.
Section 3 (c) defines a 'landlord' as meaning a
person immediately under whom a tenant holds but does not
include the Government. While s. 3(d) defines a 'permanent
structure' in relation to any locality as meaning a structure
which is regarded as permanent in that locality, the 'tenant'
and 'urban area' are defined by clauses (g) and (h) respectively.
Section 4 imposes an obligation on the tenant to pay
rent for his holding at fair and equitable rates, and the
proviso prescribes that in case of any dispute as to fair rent
between the parties, the rent which was paid by the tenant
immediately before the dispute shall be deemed to be fair
and equitable unless a competent court decides to the
contrary. Section 6 provides for compensation for improvements; s. 7 provides for enhancement of rent by contract;
·s. 8 deals with enhancement of rent without contract; s. 9
..
..
6 S.C.R.
SUPRE:&rtl; COURT REPORTS
881
authorises the Court to make an order as to enhancement of
rent; s. IO prohibits illegal realisation beyond the prescribed
amount; s. 11 provides for notice for ejectment; s. I 2 prescribes the procedure in which the notice has to be sNved;
and s. 13 confers rule-making power on the State Govern·
ment. Section 14 repeals the earlier Tenancy Act.
--
Having thus broadly considered the scheme of the Act,
it 1' necessary to read s. 5, the effect of which is the main
point of controversy between the parties before us. Section
5( 11 rends thus:-
"N otwithstanding anything in any contract or in any
law for the time being in force-(a) where under
the terms of a contract entered into be!ween a
landlord and his tenant whether before or <Jter
the commencement of this Act,
a tenant
is
entitled to build, and has in pursuance of_ such
terms actually built within the period of five
years from the date of such contract, a permanent structure on the land of the tenancy for
residential or business purposes, or where a
tenant not being so
entitled
to
build,
has
actually built any such structure on the land of
the tenancy for any of the purposes aforesaid
with the knowledge and acquiescence
of the
landlord, the tenant shall not be ejected hv the
landlord from the tenancy except on the eround
of non-payment of rent; (b) where a tenant has
effected improvements on the land of the tr.na ncv
under the terms whereof he is not entitled
to
effect such improvements, the tenant shall not he
ejected by the landlord from the land of the
tenancy unless
compensation
for
reasonable
improvements has been paid to the tenant".
Sub-section (2) prohibits the ejectment of any tenant from
the land or the tenancy except in execution of a decree for
ejectment passed by a competent civil Court; and sub-section
(3) prohibits the execution of a decree for ejectment on the
ground of non-payment of rent within a period of 30 days
from the date of the decree, and allows the tenant to pay into
the executing Court the entire amount due from him under
134--159 S.C.-56
IllM
RafiquennnM
v.
Lal Bafuuhlr
Gajendragadkar
c. J.
196-f
Rafiqutnnessa
Y.
Lal Bahadur
Gaitndragadkar
C. I.
882
SUPREME COURT REPORTS
the decree within the said period, whereupon the decree has
to be entered as satisfied.
Mr. Chatterjee contends that the Assam High Court v. as
in error in coming to the conclusion that the proceedings
which were pending between the parties at the appellate
stage on 6th July, 1955 when the Act came into force. fell
to be governed by the provisions of s. 5.
He argues that at
the relevant date when the suit was filed by the appellant,
he had acquired a right to eject the tenant under the terms
of the tenancy, and he contends that where vested rights are
affected by any statutory provision, the said provision shou!rl
normally be construed to be prospective in operation and
not retrospective, unless the provision in question relates
merely to a procedural matter.
It is not disputed by him
that the legislature is competent to take away vested rights
by means of retrospective legislation. Similarly, the legislature is undoubtedly competent to make laws which over-ride
and materially affect the terms of contracts between tk
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 statute
should be given retroactive 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 in re Athlumney
Ex parte Wilson('), when the learned Jml~e said that it is a
general rule that when the Legislature aiters 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
e1\ception to that rule, namely,
that,
where
~nactments
merely affect procedure and do not extend to
rights
of
action, they have been held to apply to existing rights.
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 retroactive operation of a
statutory provision can be inferred even in cases where such
retroactive operation appears to be clearly implicit in the
(I) [1898] 2 Q. B. D. 547.
'
6 S.C.R.
SUPREME COURT REPORTS
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.
Bearing in mind these principles, let us
look at s. 5.
Before doing so, lt is necessary to consider s. 2 which provides that notwithstanding anything contained in al!y contract or in any 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.
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
rriade before the date of the Act. Thus, the very scheme of
fl 5 ( 1) (a) clearly postulates the extension of its protection to
19M
Rafiquennes5a
v.
Lal Bahadut
Gajendragadkar
c. J.
1964
a.fiquenn~n•
••
Liii Bahlldar
G•irndra~adk11r
c. J.
SUPREME COURT REPORTS
[rg64]
constructions already made. That is another point which is
significant in dealing with the controversy
between ·the
partie~ before us .
There is yet another point which is relevant in this connection. S. 5\l)(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 expressio11 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 (!)(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, arid that obviously indicates that' the pending proceedings are governed bys. 5(])(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 an
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(])(a) is held to apply, the decrees passed
against the appellants in both the appeals cannot be successfully cha.Jlenged.
The result is, the appeals fail and are dismissed with
costs. One set of hearing fees.
Appeals dismissed.