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1972 DIGILAW 59 (CAL)

Amal Chandra Chatterjee v. Promod Kumar Banerjee

1972-02-28

A.K.Janah, Mitra, S.P.Mitra

body1972
JUDGMENT 1. THIS Rule is directed against order No. 22 dated the 15th May, 1971 passed in Title Suit No. 316 of 1960 by the Munsif, Sixth Court, Alipore allowing an application under Section 17e of the West Bengali Premises Tenancy Act, 1956. 2. THE disputed premises was purchased by one Bipul Chandra Chatterjee on the 14th of December, 1959. The opposite party was a tenant in respect of the said premises. After his purchase bipul Chandra Chatterjee filed a suit for ejectment of the opposite party on the 23rd March, 1960 being Title Suit No. 360 of 1960, on the ground of reasonable repairmen On the 25th July, 1963 a decree was passed by the consent of parties and the petition of compromise was made a part of the decree. By the said petition of compromise the tenant opposite party admitted that the plaintiff reasonably required the disputed premises and he agreed to vacate on the expiry of three years from that date. The landlord-decree holder died in the meantime and the tenant-opposite party not having vacated the disputed premises in terms of the decree, the present petitioner started execution of the decree as the Executor to the Will and as the legal representative of the deceased plaintiff Bipul Chandra Chatterjee. Various objections were raised by the tenant opposite party under Section 47 of the Code of Civil Procedure, which was registered as Miscellaneous Case No. 147 of 1967. The said case was ultimately dismissed and on appeal therefrom, namely Misc. Appeal No. 620 of 1967 was also dismissed by the First Appellate Court. The tenant-opposite party filed a Second Miscellaneous Appeal being No. S. M. A. 44 of 1968 in this Court and the said appeal was also dismissed on the 18th March, 1970. 3. THEREAFTER the tenant-opposite party filed an application under Section 17e of the West Bengal Premises Tenancy Act for setting aside the decree. The learned Munsif held that the said section was applicable and he accordingly allowed the application and gave necessary directions to the parties to adduce evidence for determining the amount payable by the defendant to the plaintiff in terms of the said section. Against the said order the petitioner has obtained the present Rule. 4. MR. The learned Munsif held that the said section was applicable and he accordingly allowed the application and gave necessary directions to the parties to adduce evidence for determining the amount payable by the defendant to the plaintiff in terms of the said section. Against the said order the petitioner has obtained the present Rule. 4. MR. Das Gupta appearing for the petitioner has submitted that the decree in the present case having been passed an the 25th July, 1963 the provisions of Section 17e in so far as it purports to affect the said decree is ultra vires. Mr. Das Gupta has relied upon a decision in the case of (1) Sailendra Nath Ghose v. Sm. Ena Dutta reported in 75 C. W. N. 331. Mr. Das Gupta has also relied upon two other unreported decisions in I. P. A. 14 of 1969 (Sailendra Nath Ghose v. Ena Dutta) and F. A. 665 of 1962 (sm. Kalyani Dutta v. Pramila Bala Dassi) decided by Arun Kumar Mukherjee and M. M. Dutta, JJ. In the decision reported in (1) 75 C. W. N. 331 their Lordships while considering the vires of Section 13 (3a) of the West Bengal Premises Tenancy Act in so far its application to pending suits is concerned observed as follows : "lastly, comes the question whether this retrospective operation makes the restriction, imposed by the new subsection 3a, unreasonable so as to be violative of Article 19 of the Constitution. On this part of the case, we are inclined to return an affirmative answer. We have already held that, in order to satisfy the test of reasonableness under Article 19, it should not be arbitrary or excessive, that is beyond what is required in public interest. The retrospective operation given to Sub-Section 3a by Section 13 of the amending Act, would, have the effect of applying the restriction imposed by the said sub-section, to all pending suits and appeals, which would cover cases filed since 1956 or even earlier. There is nothing on the record to show that the mischief sought to be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin, in this context the application of the restrictions on the omnibus scale to all pending suits and appeals would smack of unreasonableness. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin, in this context the application of the restrictions on the omnibus scale to all pending suits and appeals would smack of unreasonableness. We would, accordingly, hold that Sub-section 3a, so far as it operates retrospectively under the terms of Section 13, would be ultra-vires and in-valid and should be struck down to that extent. " In the other two unreported decisions arun K. Mukherjee and M. M. Dutt, JJ. have also expressed a similar view. Mr. Sinha appearing on behalf of the opposite party has drawn over attention to a Division Bench decision in the case of (2) Kameswar Singh v. Sahadev Singh reported in 74 C. W. N. 715 in which D. Basu, J. observed as follows : "the only object of the legislature in getting the pending suits dismissed where the landlord might bring a fresh suit at the next moment may be to interpose mere delay and discouragement to the landlord and also to enable the tenant to take advantage of the change of circumstances. To a layman it may appear to be futile or meaningless, but there being nothing inherently absurd in this, the Court cannot twist the language of the enactment so as to continue the pending suits whose institution itself comes within the mischief of Section 13 (3a) of the Act. It is not the province of this Court to legislate so as to cure defects. If it be a question of statute law. . . . . . . . we must take the law as we find it, and if it be unjust or inconvenient, we must leave it to the constitutional authority to amend it". 5. WE do not, however, find that this aspect of the matter namely, the question which has now come up far our decision was considered in the said decision. Mr. Sinha has next relied upon a decision of the Special Bench in the case of (3) Iswar Prosad Goenka and ors. v. N. R. Sen and ors. reported in 55 C. W. N. 719 and he has drawn our attention to the following observations in the said decision. Mr. Sinha has next relied upon a decision of the Special Bench in the case of (3) Iswar Prosad Goenka and ors. v. N. R. Sen and ors. reported in 55 C. W. N. 719 and he has drawn our attention to the following observations in the said decision. "section 18 (1) of the Rent Control Act 1950, as amended by the Amending Act of 1950, is not ultra vires by reason of the fact that the amendment made by the Amending Act, 1950, was made retrospective and applicable to pending cases. Having regard to the circumstances existing in the State of West Bengal at the time the Amending Act of 1950 was passed, it cannot be said that the making of the provisions of the Amending Act retrospective was unreasonable in the interest of the general public. " 6. IT is to be noted, however, that in the said decision itself there is a quotation from the judgment of Mahajan, J. in the case of (4) Chintamon Rao v. State of Madhya Pradesh reported in 1950 S. C. R. 759 where the learned Judge observed as follows: "the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation that is, the choice of course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality or reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 (1) (g) and the social control permitted by clause (6) of Article 19 it must be held to be wanting in that quality. " That being the position, we hold that there is no nexus between the retrospectivity of Section 17e of the West Bengal Premises Tenancy Act and the mischief sought to be remedied by that Section and as such the application of the said section to decrees which have already been passed cannot be said to be reasonable. We would accordingly hold that Section 17e in so far as it operates retrospectively is ultra-vires and is invalid. 7. MR. We would accordingly hold that Section 17e in so far as it operates retrospectively is ultra-vires and is invalid. 7. MR. Sinha has next contended that the decree itself is invalid inasmuch as there is no finding by the Court that one or more of the grounds specified in Section 13 of the West Bengal Premises Tenancy Act exists or not. Mr. Sinha has further submitted that in this application he is entitled to challenge the decree as a nullity and incapable of being executed on account of want of jurisdiction. In the exercise of our powers under Section 115 of the Code of Civil Procedure we are unable to go into this question in the present proceeding and we do not express any opinion on the merits of this submissions made by Mr. Sinha. 8. IN the result, this Rule is made absolute. The order passed by the learned Munsif is set aside. In the facts and circumstances of the case, we do not make any order as to costs in this Rule. Records be sent down as soon as possible.