Gostha Behari Gorain vs Banarashi Lal Marwari

Sen, J.—This Letters Patent Appeal arises from a decision of Bachawat, J., in a second appeal by the Plaintiff landlord from an ejectment suit. The suit was instituted on March 22. 1949 when the West Bengal Premises Rent Control (Temporary Provisions) Act of 1948 was in force and the relationship of landlords and tenants was governed to a large extent by that temporary Act. The landlord sought eviction on the ground that he had bona fide requirement for the godown which was the subject-matter of the tenancy and thus Section 11, Sub-section (1) proviso, Clause (f), of the Rent Control Act of 1948 was applicable, which provides that where the premises are bona fide required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the premises are held, a suit for ejectment against the tenant can be filed. The learned Munsif who heard the suit decided thai bona fide requirement of the landlord for the godown in suit had been made out and accordingly on January 16, 1950 he granted a decree of ejectment. There was an appeal which was heard by the Subordinate Judge of Asausol. The learned Subordinate Judge reversed the finding of the learned Munsif on the question of bonafide requirement; lie was not satisfied that the Plaintiff''s case came within Clause (f) of the proviso to Section 11, Sub-section (1) of the Rent Control Act of 1948. Accordingly the appeal was allowed on January 27, 1951 and the suit was dismissed. A second appeal was preferred against that decision by the Plaintiff landlord. Before Bachawat, J., the Appellant took the point that the protection under the provisions of Section 11 of the West B''engal Premises Bent Control Act of 1948 was no longer available after the expiry of that Act and accordingly the lower appellate court ought not to have granted to the Defendant the protection under that section, and that the High Court also could not give the protection of that section to the tenant Defendant. Bachawat, J., overruled the contention by relying on an unreported Division Bench decision of this Court in N.K. Dey and Sons v. Eastern Stock Agency Ltd. Unreported decision, dated Aug. 9, 1951, in Civ. Rev. 1749 of 1951, and on certain observations in the Full Bench decision in the case of Tarah Chandra Banerjee v. Ratan Lal Ghosal (1956) 61 C.W.N. (F.B. 263 at page 281). Accordingly he dismissed the appeal, but granted leave to appeal under Clause 15 of the Letters Patent, as he considered that the point of law urged before him was a substantial question of law. Before us Mr. Chandra Narain Laik has urged this question of law at great length, namely, that the protection given to the tenant by Section 11 of the West Bengal Premises Bent Control (Temporary Provisions) Act of 1948 is no longer available to him and was no longer available to him when the lower appellate court heard and decided the appeal; and that the relationship between the parties would be governed by the provisions of the Transfer of Property Act and therefore on the finding that notice determining the tenancy had been properly served the landlord was entitled to get a decree for ejectment.

The observations of Chakravarti, C.J., at p. 281 of the Full Bench case, Tarak Chandra Banerjee v. Ratan Lal Ghosal (supra) which were relied upon by Bachawat, J., are as follows:

With reference to the Act of 1948 which was also a temporary Act, I was able to find an intention that the rights, liabilities and remedies under it should survive its expiry because, as I pointed out the Act, even as originally'' passed, provided that it might be extended up to March 31, 1953 and the Act, of 1950, which replaced it and substantially re-enacted its provisions, was also to remain in force up to that date. There was thus evidence of a legislative intention evinced by the Act of 1948 itself that the benefits provided by it should remain available up to the end of March, 1953 and the Act of 1950 which brought about an earlier end of the Act was designed to continue the beneficial policy of the Legislature during the remainder of the period which emphasized the intention.

In the earlier unreported case V.K. Dey and Sons v. Eastern Stock and Agency Ltd. (supra) which was a decision of Chakravarti, J., as he then was and P.N. Mookerjee, J., Chakravartti, J., gave the same reason for holding that the benefits and privileges given to a tenant under the 19-18 Act continued even after the Act had been repealed by the 1950 Act. In the unreported case reliance was also placed on the Division Bench decision S.B. Trading Company v. Satyendra Ch. Sen (1950) 54 C.W.N. 756, where it was held that because the 1948 Act had been repealed before its expiry and had not been allowed to expire, Section 8 of the General Clauses Act would operate to save the rights and liabilities acquired or incurred under the 1948 Act. In the Full Bench decision Tarak Chandra Banerjee v. Ratan Lal Ghasal the learned Judges of the Full Bench did not accept that reasoning, but held that the repeal of a temporary Act would not save the rights and liabilities under a temporary Act except up to the end of the natural life of the temporary Act itself; but still at p. 281 of the decision, as already observed, the decision of the earlier case N.K. Dey and Sons v. Eastern Stock and Agency Ltd., that the rights and obligations under the 1948 Act had been saved at least up to the end of March, 1953, was reaffirmed.

Mr. Laik has argued that the observations in the Full Bench case of Tarak Chandra Banerjee (supra) at p. 281 relating to the question whether or not the rights and liabilities under the 1948 Act survived its natural life was not really a point for decision in that Full Bench case, where their Lordships were concerned with the question whether the provisions of Section 32, Sub-section (4) of the West Bengal Premises Bent Control (Temporary Provisions) Act. 1950 would survive the repeal of the 1950 Act by the West Bengal Premises Tenancy Act of 1956. Mr. Laik has argued that the observations relating to the survival of the rights and liabilities tinder the 1948 Act even after the repeal of that Act must, there-fide, lie considered to be obiter dicta and should not be taken as the decision of the Full Bench. It is true that in a sense these observations at p. 281 relating to the effect of the repeal of the 1948 Act are obiter dicta. But the observations are certainly relevant and are entitled to due consideration when we have to decide how far a tenant is entitled to the privileges and protections afforded by the Bent Control Act of 1948 even after the lepeai or the expiry of that Act.

A observed by Chakravartti, C.J., in the 1948 Act itself the intention of the Legislature that the benefits given to the tenant under the Act might be continued for a further period up to March 1953 was apparent and the Act of 1950 was designed to continue the beneficial policy of the Legislature, that is to say, the protection jiveu to the tenant continued. Mr. Laik has urged that the protection given to the tenant by Section 12 of the 1950 Act, although more or less in similar terms to the protection given to the tenants by Section 11 of the 1948 Act, was still distinct and separate; and in a suit which had been filed when the Rent Control Act of 1948 was in force and the tenant had invoked the protection of Section 11 of the Rent Control Act of 1948, the tenant could not after the expiry of the 1948 Act fall back on the protection given by the corresponding section, namely, Section 12 of the 1950 Act. In support of this proposition Mr. Laik has referred to certain decisions of which we may refer to one, namely, Karali Charan Laha Roy v. Probhasini Debi (1950) 56 C.W.N. 645, where though the suit had been filed when the 1948 Act was still in force the tenant sought the advantage of Section 12, Sub-section (1) proviso Clause (h) of the 1950 Act and asked the Court to decide upon the question of comparative advantages and disadvantages of the landlord and the tenant. It was held that the provisions of Section 12 Sub-section (1), proviso Clause (h) of the Rent Control Act, 1950 could not be attracted to the suit; and except with regard to cases falling within the provisions of Section 18 Sub-section (5) of the Rent Control Act of 1950, the Rent Control Act of 1950 could have no operation in a pending suit for ejectment instituted before the 1950 Act had come into force. In that case however their Lordships were particularly concerned with the question whether the new provision relating to the necessity of investigating the relative advantages and disadvantages of the landlords and tenants would have to be considered in a suit instituted when the 1948 Act was still in force. In the 1948 Act there was no such provision as to the investigation of the relative advantages and disadvantages of the landlord and tenant in considering the question of requirement of the landlord for the premises; and from that point of view alone it could be held that the newly introduced provision in Section 12 Sub-section (1) proviso Clause (h) would not be applicable to a suit instituted when the 1948 Act was still in force. Generally, however, as observed in the Full Bench decision at page 281 the Act of 1950 was designed to continue the beneficial policy of the Legislature relating to giving special protection to tenants in certain cases, and the question whether the provisions of the 1950 Act would apply where the provisions in the 1948 Act and 1950 Act were identical, did not fall to be considered in the case Karali Charan Laha Roy v. Probhasini Debi (supra). In another Full Bench case, namely, T.S.R. Sarma v. Nagendra Bala Devi Choudhurani (1952) 57 C.W.N. 1 F.B., Chakravarti, C.J., touched upon the question, but as the Full Bench was concerned with the question of application of the provisions of Section 14 Sub-section (4) of the Rent Control Act of 1950, which was held to be inapplicable to a pending proceeding instituted when the 1948 Act was in force, the general question was not decided. Certain observations at p. 16 of the decision are, however, interesting and have been pointed out by Mr. Laik. It was argued before that Bench that the Act of 1948 was a temporary statute and on its expiry on March 31, 1950, all proceedings commenced under it and pending would automatically lapse unless the Legislature intervened to save them; the Legislature passed the Act of 1950 and brought it into force on the very day on which the Act of 1948 was due to expire and it was contended that it ought, therefore, to be presumed that the Legislature intended that the Act of 1950 would apply to pending suits. Chakravarti, C.J., then observed as follows:

I do not think it necessary to consider in this case whether or not the whole Act of 1950 was intended to apply to suits pending at its commencement. Bui I may point out that Mr. Roy Choudhury was not right in contending that on the expiry of the temporary Act of 1948, all proceedings commenced during its time would automatically lapse.... But the real answer to Mr. Roy Choudhury ''s contention is that so far as suits for ejectment referred to in the Rent Act of 1948 are concerned, they were not brought under that Act, but were brought under the Transfer of Property Act and therefore repeal or expiry of the Rent Act would not affect the life of the suits. A further difficulty, however, remains. It may be argued that even if the suits brought during the time of the Rent Act of 1948 did not die with the Act the special defences and privileges conferred by it on the tenant would no longer be available after its repeal, except up to the date of the original life of the Act, even if Clause (c) of Section 8 of the Bengal General Clauses Act applied ; and if the Act of 1950 also does not apply to those suits, the tenant is reduced once against the stark position under the Transfer of Property Act without any special protection under any Rent Act at all. There may or may not be a solution of that apparent difficulty, but it is not necessary to consider the large question of the whole Act in the present Reference which is limited to Section 14(4).

Mr. Laik has sought to take advantage of these observations and has submitted that though the point was left undecided in the aforesaid Full Bench case, actually on the expiry of the 1948 Act the special defences and privileges conferred by it would no longer be available to the tenant, and that the Act of 1950 also could not apply to those because the Act of 1950, unless specially provided for, as in connection with Section 18 Sub-section (5) and Section 17 Sub-section (3), would not apply to pending proceedings and therefore the tenant would be reduced to the ordinary law, that is, to the position under the Transfer of Property Act and would not get any special protection.

In our opinion, however, the reply to this argument is that a suit is to succeed or fail on the legal position which prevailed at the time when the suit was instituted. The present suit was instituted on March 22, 1949 in the trial Court when the 1948 Act was in force. The suit was an ejectment suit under the Transfer of Property Act, but the tenant was entitled to the special privileges and benefits conferred by Section 11 of the Rent Control Act of 1948, and he was entitled to plead in his defense that unless the landlord satisfied the necessary conditions laid down in the section, particularly Clause (f) of the proviso to Section 11, Sub-section (1) of the Act, the landlord could not get an ejectment decree. Even though on March 31, 1950 the 1948 Act expired and assuming that the provisions of the 1950 Act would not apply, still the question before the Court remained whether at the time when the suit was instituted the tenant was entitled to the particular privilege conferred by the 1948 Act, and to insist that the landlord must satisfy the conditions laid down in Section 11 before he could get a decree. Mr. Laik has urged that the suit was decreed in favor of the landlord on January 1, 1950 by the trial Court holding that the landlord had satisfied the conditions laid down in Section 11, Sub-section (1) proviso, Clause (f) of the Act; and that when the case was decided by the lower appellate Court, that is, in January, 1951, the 1948 Act had expired and the lower appellate Court could not at that stage apply the provisions of the 1948 Act and give the tenant the benefit of the provisions. But the reply to this argument is that the appellate Court also had to see what was the position of law at the time when the suit was instituted. He had to decide whether the decision of the learned Munsif was correct with reference to the law in force at the time of the institution of the suit. It did not matter that after March 31, 1950 the defences u/s 11 of the 1948 Act would no longer be open to the tenant as a class, but to the particular tenant who was a Defendant in the suit, that defense was open at the time when the suit was instituted and he did take the defense and the only point for consideration by the trial Court as well as by the lower appellate Court, and also by the High Court in Second Appeal, was whether at the time when the suit was instituted the tenant was entitled to the special protection under the law then in force so as to defeat the landlord''s claim for eviction. For decision of the question the position after March 31, 1950 was irrelevant, because the suit was not instituted after March 31, 1950, and the court was not called upon to consider what would have been the position if the suit had been instituted after March 31, 1950 and even still outside the scope of the 1950 Act. The Court had to deal with the suit as instituted when the 1948 Act was in force, and therefore, the Court had to see whether the tenant could rightly claim the privileges which had been conferred to the tenant under the 1948 Act.

Mr. Laik has referred to certain observations in Craies on Statute Law, 5th edition at p. 377. Under the heading "Expiration" the following observations occur:

As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have any further effect. Therefore offences committed against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate. In Spencer v. Hooton, Roche, J. held he had no jurisdiction to hear appeals from Munitions Tribunals in proceedings taken under the Wages (Temporary Regulation) Acts, 1918, 1919, by reason of the Act giving him jurisdiction having expired before the appeals came on for hearing.

We do not think that these observations are directly relevant to the question whether a defence which is validly taken under a temporary Act which was in force at the time when the suit was filed, must fail or will remain valid after the Act has expired. As regards special procedure prescribed by a temporary Act, it is the settled law that the special procedure can no longer be availed of after the temporary Act had expired, in the absence of express provision to the contrary. It is for this reason that it was observed in Craies that no proceedings can be taken under a temporary Act after it has expired and it was held by Roche, J., that the appeals under the temporary Act could not be heard by him as the temporary Act which prescribed the procedure for appeals had expired. It is for this reason that in Tarak Barter jee v. Ratanlal Ghosal (supra), it was held that but for the saving provision contained in the amended Section 40, Sub-section (2) of the West Bengal Premises Tenancy Act, 1956, the special procedure u/s 32, Sub-section (4) of the West Bengal Premises Rent Control Act, 1950 could not have survived the expiry of that Act. But all this has nothing to do with the special protection which the tenant got for temporary periods by the temporary Rent Control Acts. By the Rent Control Act of 1948 the tenant got special protection from November 16, 1948 when the Act came into force to March 31, 1950 when the Act expired, and in any suit filed during that period the tenant could plead the protection and successfully defeat any suit for ejectment by the landlord by saying that the landlord had not satisfied the special conditions laid down in Section 11 of the Act. Provided the suit was instituted within that period the defense in our opinion would be available even after the expiry of the period, and it did not matter whether the appeal or the second appeal was heard after the expiry of the Act, because as already observed, the trial Court or the High Court in second appeal would only have to see whether the defense was available to the tenant at the time when the suit was instituted.

Accordingly we agree with Bachawat, J., in holding that the protection given by the 1948 Act was available to the tenant even though the appeal was heard after the 1948 Act had expired or had been repealed; and the High Court in second appeal was also bound to see whether at the time when the suit was instituted the tenant was entitled to the special protection of Section 11 of the Bent Control Act of 1948 even though the Act had subsequently, expired. Accordingly this appeal fails and is dismissed with costs.

N.K. Sen, J.

I agree.