Balai Chandra Pakhira vs Satish Chandra Pradhan

P.N. Mookerjee, J.—This Rule was obtained by the Petitioner tenant against a concurrent decision of the two Courts below allowing, in substance, the opposite party No. l''s application for evicting the Petitioner from the disputed land.

The application was made u/s 5 of the Calcutta Thika Tenancy Act upon the allegation,. inter alia, that the Petitioner was a thika tenant under the said Act in respect of the disputed property under the opposite party.

In allowing the opposite party''s application the Courts below have concurrently held that the Petitioner''s objection or defence to the opposite party''s prayer on the ground that he was not a thika tenant under the Calcutta Thika Tenancy Act but had an agricultural tenancy, Which entitled him to protection under the Bengal Tenancy Act, could not be accepted. They have concurrently found that the Petitioner''s tenancy was not an agricultural tenancy so as to attract the operation of the Bengal Tenancy Act. That finding appears to have been arrived at on a consideration of the evidence before the Courts below and, in revision, it is not possible to interfere with the said concurrent finding. Upon that ground alone, therefore, the instant Rule would fail and may be discharged.

As, however, before us, the other question whether, to the instant case, the Calcutta Thika Tenancy Act would apply was fully argued before us and as our conclusion on the said question also would be in favour of the opposite party so as not to interfere with our earlier finding that the instant Rule would fail and must be discharged, we would record our said conclusion and base our decision of this Rule upon the said conclusion too.

The disputed land was included within the Tollygunge Municipality, as it was originally constituted. Thereafter, under an appropriate notification issued u/s 594 of the Calcutta Municipal Act, 1951, the area comprised within the Municipality of Tollygunge was included within Calcutta, as defined under the said Calcutta Municipal Act and under the said section. Schedule I to the said Art was deemed to be amended accordingly. It was contended on behalf of the opposite party that, as a result of the above inclusion, the Calcutta Thika Tenancy Act became applicable to the disputed property. On behalf of the Petitioner reliance was placed, in particular, on a decision of this Court in Shaffiuddin & ors. v. Gopal Chandra Banerjee and Ors. (1964) 69 C.W.N. 842 for the purpose of showing that, in spite of the said inclusion, the Calcutta Thika Tenancy Act would not be attracted to the areas originally included within the Tollygunge Municipality.

For our present purpose, it is necessary only to refer briefly'' to the principles and statutory provisions, which have guided us in taking the view that, as a result of the above inclusion, the area under the Tollygunge Municipality became amenable to the applicability of the Calcutta Thika Tenancy Act subject to certain reservations, not material in the present case, which will be stated herein- below. We proceed now to briefly record our reasons for our above view.

The Calcutta Thika Tenancy Act in Section 1(2) provides as follows:

It extends to Calcutta as defined in Clause (1) of Section 3 of the Calcutta Municipal Act, 1923, to quote only its relevant part. The Calcutta Municipal Act of 1923 has, however, since been repealed and replaced by the Act of 1951. Section 608 of this latter Act, Clause (d), provides that all reference to; or to any chapter or section of the Calcutta Municipal Act, 1899, the Calcutta Municipal Act, 1923, shall, as far as is possible, be construed as references to this Act or to its corresponding chapter or section.

That immediately replaces the reference to Section 3(1) of the Calcutta Municipal Act of 1923 in the Calcutta Thika Tenancy Act, as quoted above, [vide Section 1(2)], by the corresponding Section 5(11) of the Calcutta. Municipal Act, 1951, and u/s 594, already quoted, the Municipality of Tollygunge having been included within Calcutta, sch. I to the above Act, which was referred to in its relevant definition of Section 5(11), must be deemed to be amended accordingly, the net result being that the definition of Calcutta, as referred to in Section 1(2) of the Calcutta Thika Tenancy Act, would now include areas originally included within the Municipality of Tollygunge.

It is true that, as noted in the decision above-cited, in Section 610 of the Calcutta Municipal Act of 1951, it was specifically stated:

Except as in this Act otherwise expressly provided, nothing in this Act shall be deemed to affect the provisions of any other enactment.

It may, however, be reasonably contended that when, on a reference to this new Act, the amending Act of 1951, the extent and application of the Calcutta Thika Tenancy Act was being extended to areas not originally covered thereby, it would not be a case of affecting the provisions of the said enactment as mentioned in the said Section 610. But, even assuming that that would be so, it is plainly a case of express provision, so far as the enlargement of the area within the definition of ''Calcutta'' is concerned, by reason of the inclusion of the Tollygunge Municipal area within the said area by the appropriate notification u/s 594 of the Calcutta Municipal Act, 1951, and what follows thereafter does not depend on anything under the Calcutta Municipal Act but arises on the Calcutta Thika Tenancy Act itself inasmuch as once Calcutta as mentioned in Section 1(2) of the Calcutta Thika Tenancy. Act, includes the area within the Tollygunge Municipality by virtue of the above extended or enlarged definition, the said Act becomes applicable to the said area by its own force by reason of the said Section 1(2) of the said Act which defines the local limit of applicability of the said statute.

An argument was made before us, and that was accepted by this Court in the decision quoted above that the above deeming provision under the Calcutta Municipal Act, 1951, (vide Section 594), must be limited to matters under the said Act or, in other words, must be understood to have been made only for purposes of the same. It is, however, pertinent to point out in this connection that under the Calcutta Municipal Act, 1923, as under the Calcutta Municipal Act, 1951, the definition of ''Calcutta'', as given in the definition section, opens with the words ''for the purposes of this Act'', but in spite of the same, the said definition was adopted and accepted for purposes of the Calcutta Thika Tenancy Act [vide Section 1(2)] by reference to the said definition. The purpose theory, therefore, would not prevent the application of. the Calcutta Thika Tenancy Act to the included area of the Tollygunge Municipality within Calcutta by the notification u/s 594 of the Calcutta Municipal Act, 1951, and by consequential amendment of the relative sch. I and the definition of ''Calcutta'' in Section 5(1) of the Calcutta Municipal Act, 1951, and the decisions of the Supreme Court, in The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, and State of Travancore-cochin and Others Vs. Shanmugha Vilas Cashew Nut Factory and Others, would be clearly distinguishable. The Privy Council decision in the case of Secretary of State for India in Council v. Hindusthan Cooperative Insurance Society Limited (1931) 58 I.A. 259 also would be distinguishable in view of the express provision contained in Section 608 of the Calcutta Municipal Act, 1951, quoted above.

We must, however, make one clarification in the matter. It is well-known that, unless the statute is retrospective, it would not affect vested rights. In the Calcutta Municipal Act, 1951, there is nothing, so far as the present matter is concerned, to make the Act retrospective. The vested rights; therefore, or rights acquired or accrued before the coming into operation of the said Act, would not be affected by its relative provision and the enlargement of the local jurisdiction of the Calcutta Thika Tenancy Act under the said new Act of 1951, would not affect any accrued or vested right in the area since brought under the said new Act of 1951 within ''Calcutta'' as contemplated in the said statute. The vested or accrued rights if any, therefore, would not be affected by this change or enlargement of local jurisdiction or applicability of the Calcutta Thika Tenancy Act. Reference in this connection may be made to the decision of this Court, reported in Jotiram Khan v. Jonaki Nath Ghosh (1914) 20 C.W.N. 258. In the instant case, however, it is plain from the records that the Petitioner cannot lay any claim to any such vested or accrued right so as to defeat or limit the application of the Calcutta Thika Tenancy Act.

In the above view, we hold that the Calcutta Thika Tenancy Act would apply to the instant case and the argument in support of the Petitioner''s contention that the said Act would not apply on the authority of the decision of this Court (1) cannot be accepted. With respect, we may point out that, although even in the said case the ultimate decision may well be held to be correct in the facts of that case, having regard to the principle already mentioned by us, that vested or accrued rights cannot be defeated by the above extension or enlargement of local jurisdiction of the Calcutta Thika Tenancy Act, the view that the said Act would not have an enlarged local jurisdiction by reason of the inclusion of the Tollygunge Municipality within ''Calcutta'' by an appropriate notification u/s 594 of the Calcutta Municipal Act, 1951, cannot be supported.

In the premises, this Rule will fail and it will be discharged.

There will be no order as to costs.

Amiya K. Mookerji, J.: I agree.