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1980 DIGILAW 105 (CAL)

Sudha Banerjee v. State of West Bengal

1980-03-24

CHITTATOSH MOOKERJEE

body1980
Judgment On 15th August, 1962 the petitioner had filed an application under section 5 of the Calcutta Thika Tenancy Act, 1949 before the Thika Controller, Calcutta, for eviction of the respondents 5 to 8 on the around that the required more or less 2 cottahs 4 chittaks of land in Holding No.2, Panditia Road. P.S. Ballygunge for the purpose of building on the said land with the object of developing the land by discontinuing letting to respondents 5 to 8 who were thika tenants. The said application was registered as Thika Case No. 150 of 1962. The respondents 5 to 8 had been contesting the said case. 2. While the said case was pending, the West Bengal Legislature enacted the Calcutta Thika Tenancy (2nd Amendment) Act, 1969 (West Bengal Act 29 of 1969). The said Act made a number of changes in the Calcutta Thika Tenancy Act, 1949. Section 3 of the Principal Act was deleted and a new section 3 was inserted. Under the said substituted section 3, a thika tenant, subject to other provisions of the Act, was liable to ejectment from his holding on one or more of the grounds set out therein: The said grounds are set out below:- (i) on the ground that he his used the land comprised in his holding in a manner which renders it unfit for any of the purposes mentioned in clause (5) of section 2 of the Act; (ii) except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-sections (2), (3) and (4), on the ground that the land is required by the landlord for his own occupation; (iii) when he holds the land comprised in the holding under a registered lease for a purpose other than a residential purpose, on the ground that the term of the lease has expired. Under sub-section (2) of section 3 no landlord shall be deemed to require the land comprised in the thika tenant's holding for his own occupation if he has a house of his own in the city in which such laud is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family. Sub-section (3) of section 3 specified the circumstances under which an order for partial eviction of a thika tenant may be made. According to sub-section (4) of section 3, a thika tenant who has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part of such land as does not appertain to the pucca structure. 3. Section 13 of the West Bengal Act 29 of 1969 provided that the said amendments to the Thika Tenancy Act shall have effect in respect of all applications for ejectment of thika tenants and all appeals from orders made on such applications under the provisions of the said Act which were pending at the commencement of the said amending Act. 4. The petitioner in this Rule has contended that the provisions of the Calcutta Thika Tenancy (2nd Amendment) Act, 1969 cannot be applied to the petitioner's above thika tenancy case because the said amending Act is ultra vires Articles 14, 19(1)(f) and 31 of the Constitution. The said West Bengal Act 29 of 1969 has deprived the petitioner of his vested right to obtain an order for eviction against the respondent Nos. 5 to 8 on the grounds specified in the unamended Section 3 of the Calcutta Thika Tenancy Act and the same amounted to unreasonable restriction upon his right to enjoyment of his property. 5. It is not disputed that the West Bengal Legislature had power to make laws in respect of the incidence of thika tenancies as the said matter was enumerated in the Seventh Schedule of the Constitution. But the West Bengal Legislature was not competent to enact laws taking away rights conferred by Part III of the Constitution and such laws in contravention thereof, would be void. 6. It may be noted that the Constitution (44th Amendment) Act has now deleted both clause (f) of Article 19(1) and Article 31 from the Part III of the Constitution. But the West Bengal Legislature was not competent to enact laws taking away rights conferred by Part III of the Constitution and such laws in contravention thereof, would be void. 6. It may be noted that the Constitution (44th Amendment) Act has now deleted both clause (f) of Article 19(1) and Article 31 from the Part III of the Constitution. The West Bengal Act 29 of 1969 was a post-Constitutional law, and therefore, it is still open to the petitioner to contend that at the date of the enforcement of the Calcutta Thika Tenancy Act, 1969, the West Bengal Legislature had no legislative competence to enact laws repugnant to Articles 19(1)(f) and 31 and that the said amending act of 1969 was ultra vires and therefore void ab initio. Subsequent deletion of clause (f) of Article 19(1) and Article 31 could not have the effect of reviving and validating the said legislation which according to the learned advocate for the petitioner, was still-born. 7. The petitioner's challenge on the ground of infringement of Article 14 may be disposed of shortly. Section 13 of the West Bengal Act 29 of 1969 hall given retrospective effect to the provisions of the said amending Act by laying down that the said amendments shall have the effect in respect of all pending ejectment applications and appeals under the Act. Therefore, no question of discrimination arises inasmuch as the amending Act does not purport to differentiate amongst the pending applications and appeals. Section 13 of the Amendment Act purports to provide that the applications and appeals under the Act shall be decided according to the provisions of the Calcutta Thika Tenancy Act as amended by the Amendment Act, 1969. 8. Undoubtedly, the said amending Act had affected the vested rights of the owners of land to obtain eviction orders against their thika tenants by, inter alia, deleting some of the grounds specified in the previous section 3 of the Principal Act and also by limiting the right of the landlords to evict their thika tenants only to the three grounds laid down by sub-section (1) of substituted section 3 subject to the provisions of sub-sections (2) and (3). 9. Both the Calcutta Thika Tenancy Act, 1949 and the West Bengal Act 29 of 1969 which amended the Principal Act are pieces of welfare legislation. 9. Both the Calcutta Thika Tenancy Act, 1949 and the West Bengal Act 29 of 1969 which amended the Principal Act are pieces of welfare legislation. For making "better provision relating to the law of landlord and tenant in respect of thika tenancies, in Calcutta" the Act altered the incidence of thika tenancies, inter alia, by providing that the thika tenants would be liable to be ejected from their holdings on one or more of the grounds specified in Section 3 and not otherwise. The petitioner has not challenged the validity of the Calcutta Thika Tenancy Act, 1949 as the same stood prior to the amendments made by the West Bengal Act 29 of 1969. The said amending Act of 1969 broadly had the effect of giving greater protection to thika tenants from eviction by further limiting the grounds on which they are liable to ejectment and consequently the rights of the landlords to eject their thika tenant had been further curtailed. The said provisions having been made in the interest of the general public, both the Calcutta Thika Tenancy Act 1949 and the Amendment Act of 1969 would be laved by clause (5) of Article 19 of the Constitution (as the said provision of the constitution stood as the relevant time). The said Calcutta Thika Tenancy Act is not a law for compulsory acquisition or requisition of property. Therefore, clause (2) of Article 31 would not be attracted. 10. The vires of section 13 of the Calcutta Thika Tenancy Amendment Act, 1969 cannot be challenged only because retrospective effect has been given to the amended law in respect of pending applications and appeal. The West Bengal Legislature by enacting the Thika Tenancy (Amendment) Act, 1953 had, inter alia, deleted sections 28 and 29 of the parent Act. The question before the Supreme Court in (1) Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 , was whether the provisions of section 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 of the said section become effective by reason of the amendment Act, 1952 coming into force. The proviso to sub-section (2) of section 1 of the said amendment Act, 1953 had provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by the said Act, shall, subject to the provisions of section 9, also apply and be deemed to have always applied to all suits, appeals and proceedings pending before any court or before the Controller or before the appellate authority under section 27 of the Act on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952. Their Lordships held that the legislature had thereby clearly expressed an intention that no relief under section 28 of the original Act shall be given even in the cases pending at the date of the commencement of the said amendment Act or 1953. Das Gupta, J. who delivered the judgment of the Court in Mahadeolal Kanodia's case (supra), indicated the relevant principles for interpretation of statutory provisions (vide paragraph 8 of the judgment at page 939 of the reports). Statutory provisions creating substantive rights or taking away such rights are ordinarily prospective. But the legislature by express words or necessary implication can make the creation or omission of such rights retrospective. 11. By applying the said principals of interpretation, I am bound to hold that the section 13 of the Calcutta Thika Tenancy (Amendment) Act, 1969 by express words made the provisions of the said Amendment Act applicable to pending applications and appeals. In other words, the legislature by express words made the said Amendment Act applicable to the pending applications and appeals. Thus, the legislature by express words made the said amending Act retrospective by affecting substantive rights of the parties to the pending applications and appeals under the Calcutta Thika Tenancy Act. A law enacted in the interest of the general public is not ultra vires only because the same affects substantive rights of the parties to the pending proceedings under the Act. 12. The petitioner relied upon the decision of A.C. Gupta and S.K. Datta, JJ. in (2) Gouri Rani Ghosh v. Morai Rai and Ors., 78 C.W.N. 394, which held that section 13 of the Calcutta Thika Tenancy (2nd Amendment) Act, 1969 in so far as it has the effect of deleting with retrospective effect, the grounds of ejectment specified in clause (v) of section 3 of the Act is ultra vires. in (2) Gouri Rani Ghosh v. Morai Rai and Ors., 78 C.W.N. 394, which held that section 13 of the Calcutta Thika Tenancy (2nd Amendment) Act, 1969 in so far as it has the effect of deleting with retrospective effect, the grounds of ejectment specified in clause (v) of section 3 of the Act is ultra vires. The ratio of the said Division Bench decision is that the object intended to be achieved and the evil sought to be remedied by the said amending Act were not secured by striking out with retrospective effect clause (v) of old section 3. According to the Division Bench, the policy underlying the amendment was for the protection of the legitimate interests of thika tenants inter alia by restricting the further grounds of ejectment against the thika tenants. In other words, the intention or the legislature in amending the parent Act was to protect and improve the lot of "8 million" thika tenants in Calcutta. The Division Bench was of the opinion that when a thika tenant who had failed to occupy the major portion of the holding either because he had abandoned the holding or had transferred possession of the same and the landlord had already commenced ejectment proceeding under clause (5) of section 3 of the principal Act, there could be no question of protection his possession and stifling the proceedings against him. Because the same was not likely to contribute to the improvement of the lot of thika tenants in Calcutta. In the case where a thika tenant had subeet the holding to a bharatia and a proceeding for his eviction was pending when the amending Act of 1969 came into force according to the Division Bench it was difficult to see how by extending the coverage of that Act to such tenant the legitimate interest of this tenants were protected. The Division Bench proceeded to observe further that a class of tenants who were really intermediaries earning profits and were liable to be ejected were sought to be protected by the amending Act. Therefore, it was held that the provisions for giving retrospective effect to the deletion of clause (5) of section 3 was ultra vires as it imposed unreasonable restrictions on the Fundamental Rights guaranteed under Article 19(1)(f) of the Constitution. 13. Therefore, it was held that the provisions for giving retrospective effect to the deletion of clause (5) of section 3 was ultra vires as it imposed unreasonable restrictions on the Fundamental Rights guaranteed under Article 19(1)(f) of the Constitution. 13. These observations of the Division Bench in my view, are no longer applicable to the modifications made by the West Bengal Act 29 of 1969 in respect of the landlord's right to obtain eviction of a thika tenant for his own occupation, As already stated, the said amending Act by inserting sub-sections (2), (3) and (4) in section 3 have confined landlord's requirement to his own occupation only and landlord's requirement no longer includes building and re-building for the purpose of again letting out the land. Secondly, in view of section 3(2), a landlord who is already in occupation of reasonably suitable accommodation, is no longer entitled to obtain eviction of his thika tenants on the ground of his own occupation. These provisions are clearly incorporated in furtherance of the object to protect thika tenants. Giving greater security to thika tenant, who are threatened with eviction cannot be taken as not germane to the objection of the Act. It was for the legislature to decide how the said object to protect the thika tenants would be achieved and such restrictions on the landlord's right to obtain eviction of the thika tenants being in the general interest should be considered as a reasonable restriction upon that right to property which was at the relevant time included in Part III of the Constitution. The Supreme Court in Mahadeolal's case (supra), had mentioned the background of the thika tenancy legislation. 14. Mr. Bakshi, learned advocate for the respondents, in this connection has placed strong reliance upon the decision of the Supreme Court in (3) B. Banerjee v. Smt. Anita Pan, reported in AIR 1975 S.C. 1146 . The West Bengal Premises Tenancy (2nd Amendment) Act, 1969 had amended section 13 of the West Bengal Premises Tenancy Act, 1956 Inter alia, by deleting the clause (f) of sub-section (1) and by substituting the same by clauses (f) and (ff). The sub-section (3A) inserted by amending Act deprived the transferee-landlords from instituting ejectment suits for their own use and occupation within three years from the dates of transfer of the property in their favour. The sub-section (3A) inserted by amending Act deprived the transferee-landlords from instituting ejectment suits for their own use and occupation within three years from the dates of transfer of the property in their favour. Section 13 of the West Bengal Premises Tenancy (2nd Amendment) Act, 1969 was similar to section 13 of the Calcutta Thika Tenancy (2nd Amendment) Act, 1969. Section 13 of the West Bengal Act 34 of 1969 also made the said amendments retrospective by making the amended provisions applicable to pending suits and appeals. The Division Bench of this Court held section 13 of the West Bengal Premise. Tenancy (2nd Amendment) Act ultra vires (vide (4) AIR 1971 Calcutta 331). 15. The Supreme Court by a majority in B. Banerjee's, case (supra) reversed the said decision and upheld the validity of section 13 of the West Bengal Act 34 of 1969. The said provision was held to be not violative of Article 19(1)(f) of the Constitution. Krishna Iyer, J. delivering the majority judgment had, inter alia, observed that when the vires of a welfare legislation calculated to benefit weaker classes is challenged socio-economic circumstances should be considered. The learned Judge referred to the perspective of the West Bengal Premises Tenancy (2nd Amendment) Act, by quoting several passages from the judgment of this Court. The learned Judge also referred to section 13 of the said amending Act and observed that "we have to remember the comity of constitutional Instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its powers." The learned Judge re-affirmed legislature's competence to enact retrospectively. The Court is not entitled to determine whether a particular legislation should have been given retrospective effect or not. Mere grounds of hardship could not be a ground for invalidating a legislation. There observations are squally applicable in testing the constitutional validity of the Calcutta Thika Tenancy (2nd Amendment) Act, 1969. 16. I, therefore, conclude that section 3(1)(ii) of the Calcutta Thika Tenancy Act was applicable to the case filed by the petitioner before the amendment or the Calcutta Thika Tenancy Act. It is not within the scope of this Rule to consider the further question whether the petitioner should be allowed to emend his pleadings in the said case. 16. I, therefore, conclude that section 3(1)(ii) of the Calcutta Thika Tenancy Act was applicable to the case filed by the petitioner before the amendment or the Calcutta Thika Tenancy Act. It is not within the scope of this Rule to consider the further question whether the petitioner should be allowed to emend his pleadings in the said case. I also express no opinion on the merits of the other claims and contentions of the parties in the said thika tenancy case. Subject to the observations made hereinbefore, I discharge this Rule without any order as to costs.