Bhagwari Prasad vs Sahadeo Upadhaya

Fazl Ali, J.—This appeal arises out of a suit instituted by the appellants for the ejectment of the defendants from 2.32 acres of land in village Khairhi in respect of which the defendants are recorded as shikmidars under one Ram Pragash Lal whose interest has been purchased by the appellants. The suit was decreed by the Munsif but has been dismissed on appeal by the Additional Subordinate Judge on a ground which was raised by the defendants for the first time in the lower appellate Court, namely, that u/s 48A, Bihar Tenancy Act, they must be deemed to have acquired an occupancy right in the land in suit and cannot therefore be ejected. This section admittedly came into force after the case had been decided by the trial Court, but the lower appellate Court has held that it is retrospective and must govern all pending litigations.

The appellants contend that this view is not borne out by the language of the section and that in any case this new provision cannot be retrospective in operation owing to Section 292, of the new Government of India Act. Section 48A, Bihar Tenancy Act, runs as follows:

Every person who for a period of 12 years, whether wholly or partly, before or after the commencement of the Bihar Tenancy Amendment Act, 1938, has continuously held land as an under-raiyat in any village, whether under a lease or otherwise shall be deemed to have acquired on the expiration of that period a right of occupancy in the land which he has so held for the said period.

It is not denied by the appellants that the defendants have held the disputed lands for over 12 years as under-raiyats in village Khairhi, but it is urged on their behalf that Section 48A must be construed according to the well-established rule that new Act will not affect existing rights, unless it is expressly made retrospective.

This is precisely the point which was raised in Agin Singh v. Bhudeo Singh AIR 1940 Pat. 515 but it was held that the section has by the use of the words "shall be deemed to have acquired" been made retrospective and would apply to a pending action.

The learned Judges who decided that case supported their judgment by referring to the decision of the Privy Council in AIR 1936 49 (Privy Council) . In that case, their Lordships of the Privy Council had to construe Section 26N. Bihar Tenancy Act, which has since been repealed and replaced by Section 26B. Section 26N ran as follows:

Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the 1st day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and transferee.

Their Lordships held that this provision was retrospective and observed as follows:

It appears to their Lordships that unless some saving can be implied as regards occupancy holdings which at the date of the commencement of the Act are in question in a pending suit, Section 26Nmust be applied to the present case... Their Lordships are of opinion that no such saving can be implied. Section 26N is not a provision to the effect that no action shall lie in certain circumstances, nor has it any reference directly to litigation. Its provision is that every person claiming an interest as a landlord shall be deemed to have given his consent to every transfer made before the 1st January 1923. This is retrospective: The question is not whether general language shall be taken only in a prospective sense, The object of this section can only be to quiet titles which are more than ten years old and to ensure that if during those ten years the transferee has not been ejected, he shall have the right to remain on the land. Within this class the Legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.

I think that these observations clearly support the view that Section 48A, Bihar Tenancy Act, also is retrospective. To adopt the language of the Privy Council, the object of the section can only be to quiet titles which are more than twelve years old, and to ensure that if during these 12 years the under-raiyats have not been ejected, they shall have the right to remain on the land as if they were occupancy tenants. Mr. Mullick who appears on behalf of the appellants tried to distinguish the present case from the case before the Privy Council and so the facts of the latter case may be briefly stated here. In that case, the Official Receiver of the High Court of Calcutta who represented the landlord''s interest in a village called Majhauli had sued to eject defendant 1 who was the transferee of a non transferable holding.

The Subordinate Judge gave a decree ejecting defendant 1, but on appeal, the High Court dismissed the suit being of the opinion that since the date of the transfer in favour of defendant 1, the landlord had recognized the right of the transferee and could not therefore impugn the transfer. On appeal to the Privy Council, the decree of the High Court was affirmed not on the ground stated in the judgment of the High Court but because of the provisions of Section 26N which had been inserted in the Bihar Tenancy Act since the decree of the High Court and their Lordships of the Privy Council after referring to that section proceeded to observe as follows:

The first question to which their Lordships have to address themselves is the question whether this Act does not take away from the appellant the right which he is proposing to enforce by bringing this appeal to His Majesty in Council.

Mr. Mullick relies on the italicized words of this passage and contends that what they suggest is that though a new section may be invoked to affirm the decree under appeal, it cannot be called in aid for the purpose of reversing a decree which was quite a valid decree at the time it was passed.

In my opinion, this contention is not sound. The opinion given by the Privy Council as to the Act being retrospective is unqualified and draws no distinction between cases where the decree of the lower Court is affirmed and those in which it is reversed. This is clear from the concluding passage in the observations quoted above which run as follows:

Legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued cause of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.

It is clear that if there is any force in the contention put forward by Mr. Mullick, the Privy Council would not have omitted to deal with the ground on which the High Court had dismissed the ejectment suit and would not have based their judgment merely upon the effect of the new legislation.

The last point urged by Mr. Mullick was that having regard to the provisions of Section 292, Government of India Act, 1935, Section 48A cannot have retrospective operation even though it was intended to have such an operation. Section 292 runs thus:

Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the commencement of Part 3 of this Act, shall continue to be in force in British India until altered or repealed or amended by competent Legislature or other competent authority.

It is contended that the real meaning of this section is that the rights which have been acquired under the law which is to remain in force until the date of its repeal cannot be affected retrospectively by the repealing Act. In my opinion, however, this is not the correct interpretation of the section. The section does not mean anything more than what it says, namely, that all the existing laws shall remain in force until repealed or amended by competent Legislature or authority. There is nothing in it to suggest that there was any intention to curtail the power of the Indian Legislature or other competent authority to decide in what manner a new law should operate as against the existing rights and causes of action. It is well established that a competent Legislature may legislate even retrospectively and it is inconceivable that the section was intended to take away such power from the Indian or Provincial Legislature. I do not think that this section either expressly or by implication lays down what is suggested by the learned advocate for the appellants.

The question as to whether a new Act will operate retrospectively can arise only after the old law has been repealed and the new Act has come into force. How can then Section 292, Government of India Act, be a bar to such a question being raised because any one who wishes to raise the question may legitimately put it in this form?" I concede that the old Act was in force up to the date of its repeal and if the present case had arisen before that date, it would have been decided according to the old Act; but to-day that Act is no longer in force and all that I want to know is whether the rights which accrued under the old Act can still be exercised notwithstanding its repeal and not with standing the fact that those rights would not have accrued, if at the time they accrued the new Act had been in force."

The question may be capable of being answered in the affirmative but in that case it must be so answered not by virtue of anything contained in Section 292, but by reason of the well established rule of construction of statutes which the Indian Legislature has embodied in Section 6, General Clauses Act. This section provides among other things that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It is needless to point out that this rule is quite different from the rule embodied in Section 292, Government of India Act, because all that Section 292 provides is that the existing law shall remain in force until it is repealed and not that the rights which have accrued under that law shall continue to be exercised even after the date of the repeal. Section 292 is a simple and plain provision and the proposition it enunciates is so self-evident as to justify the view that it must have been embodied in the Act ex abundanti cautela.

I think I have said enough on the subject but I might as well try to illustrate my remarks with reference to Section 48A, Bihar Tenancy Act, which we are asked to construe in this case. This section was enacted by Act 11 (Bihar) of 1938, which came into force on 10th December 1938. Before that date the right of an under-tenant had to be determined with reference to the Tenancy Act as it then stood and this is all that Section 292, Government of India Act, provides for. Before Section 48A was inserted in the Act, the under-tenant, if he wanted to establish an occupancy right in the land cultivated by him, had to assert and prove the existence of a custom by virtue of which the under-tenants acquired the right of occupancy after a certain length of time in a particular locality. Section 48A was not in force when the trial Court delivered its judgment in the present case, and as the defendants could not prove the existence of any such custom, the plaintiff''s suit was rightly decreed. The defendants thereupon preferred an appeal to the District Judge and while the appeal was still pending the law was changed and Section 48A came into force. A question then arose before the lower appellate Court as to whether Section 48A could apply to a pending action or affect the decree which had been passed by the trial Court in favour of the plaintiff. As the question arose after the old law had been changed and the new section had come into operation, the principle laid down by Section 292, Government of India Act, had obviously no application to the facts of the case.

The points which did arise were first whether the Legislature had the power to pass an Act which would affect certain rights already accrued under the old law and secondly, whether such a power had been exercised in enacting the new provision. So far as the first point is concerned, the answer is clear. If the Legislature can make new laws and unmake old ones, it follows that it can also create new rights as well as take away the rights already accrued. Indeed, even Mr. Mullick did not seriously contend that the Legislature can have no such power.

The question, therefore, which was of importance was one of construction, that is to say, whether the intention of the Legislature was to affect by enacting Section 48A the rights which had accrued under the law which had been repealed. The learned Additional Subordinate Judge has after considering the language of the new section held that it was intended to be given effect to in the case of all under-tenants whose rights were in dispute at the time the section came into force irrespective of whether they had been holding lands since before its enactment or otherwise.

In my opinion the view taken by the learned Additional Subordinate Judge is correct and the appeal must, therefore, be dismissed with costs.

Harries C. J.

I agree.