Indramoni Nath vs Lofcenath Barbhuiya and Others

Sabjoo Prosad, C.J.—The point of general importance which led to the constitution of a Special Bench to hear this appeal from appellate decree is whether Section 13 of the Assam (Temporarily-Settled Districts) Tenancy Act, 1935, as. amended by Act 27 of 1953 is retrospective in operation, so as to deprive the Plaintiffs of their right to eject the Defendant in the suit to which this appeal relates.

The material facts are brief. The Plaintiffs-sued to evict the Defendant from an agricultural bedding which includes also homestead lands. They served a notice to quit on 8-10-1949 calling upon &e ''Defendant to vacate within a period of six months, at the end of the agricultural year; and on flie failure of the latter to comply they filed the present suit on'' 10-10-1950. The Defendant resisted the suit substantially on the ground that he had acquired occupancy rights in the land. The findings are that the Defendant was not shown to be a defaulter nor was there anything to show that ho kad used the land in a manner which rendered it wifit for the purposes of the tenancy. Both the Courts below, however, have concurrently found that the Defendant had been in possession of the land for the last 14 or 15 years. As such, under the law as it stood at the date of the institution of this suit, they held that he had not acquired occu-paiicy rights in the land and therefore, decreed the Plaintiffs'' claim for eviction.

It is now contended in support of the appeal that, on the strength of the finding that the Defendant had been in possession for the last 14 or 15 years and in view of the amended provision of Section 13 of the Assam Tenancy ''Act, it should be held that the Defendant was an occupancy tenant of the land in question and the Plaintiffs had no right to eject him. It is, therefore, necessary to consider the state of the law as it originally was and as it stands after the amendment. The relevant part of Section 13 of the Assam (Temporary-Settled Districts) Tenancy Act, 1935 (hereinafter called the Act), which occurs in Chapter IV dealing with Occupancy Raiyats, originally stood as follows:

3 (1) A person, who (a) for a period of 30 years in the case of land settled for ordinary or special cultivation at full revenue rates, or (b) for a period of 12 years in all other cases, has continuously held land as a raiyat, shall have a right of occupancy in that lund.

(2) The period of 30 years and 12 years respectively referred to in Sub-section (1) may be wholly or partly before or after the commencement of this Act.'''' This Act came into force sometime in 1935. The section was later amended by Section 6 of die Assam Act 27 of 1953 (hereinafter called the Amending Act). Section 6 of the Amending Act says:

In S. 13 of the principal Act 1. Clause (''a) of Sub-section (1) shall be deleted.

In CI. (b) of Sub-section (1) the words ''in all other cases'' shall be deleted.

In Sub-section (2) the words ''30 years and'' and the word ''respectively'' occurring in the first lin" shall bo deleted and the words ''this Act'' occurring in the last line shall be substituted by the words ''the Assam (Temporary Settled Districts Tenancy (Amendment) Act, 1.953.

I have omitted the other parts of the section and the amendment as they are not relevant at present. As a result of this amendment, S. 13 reads thus:

(1) A person, who for a period of 12 years has continuously held land as a raiyat, shall have a right of occupancy in that land.

(2) The period of 12 years referred to in Sub-section (1) may be wholly or partly before or after the commencement of the Assam (Temporary-Settled Districts) Tenancy (Amendment) Act, 1953." It would thus be seen from the amendment that in order to confer the status of an occupancy raiyat on a person holding land as a raiyat, it is enough for him in all cases, if he has continuously occupied the land for a period of 12 years only, and not for a period of 30 years as originally provided by the law. Therefore, if the amendment applies, the Defendant, who has been admittedly in occupation of the disputed land for more than 12 years, would be entitled to protection from eviction, as he should be held to have acquired occupancy rights in the land. The Amending Act, however, came into force on 23rd of September, 1953, when die litigation was pending in appeal before the Court below. It is, therefore, to be seen whether this amendment has retrospective operation so as to affect the right of the landlord to evict the tenant.

There are certain well recognised principles! of interpretation, which govern retrospective operation of statutes. When a statute has the effect of taking away or impairing vested rights acquired under existing laws, or., creates new duties and obligations, or ultaehes new disabilities in respect ol'' transactions already past, the presumption is that it'' is not retrospective, unless such intention is either clearly expressed by the Legislature or is to be gathered otherwise by necessary implication. It is also a well settled canon of construction that when the law is changed during the pendency of an action, it is ordinarily the law as it existed at the . commencement of the action that regulates the rights of the Parties, unless, as staled earlier, the law manifests a clear intention to the contrary.

These principles of course have no application Ito enactments which deal with adjective or procedural law, the reason being that no one has a vested right in a particular form of procedure.

The above rules are, however, mere rules of interpretation. Where the intention of the Legislature is clearly expressed, that it will have retrospective operation in order to affect vested rights, there is no difficulty. The difficulty arises only where such an intention has to be otherwise gathered so as to lead to the necessary inference that the statute was designed to be retrospective.

These rules of interpretation are, undoubtedly: safe guides in determining the retrospective operation of a statute; but we cannot treat them as mere mathematical formulae. An adherence to these rules with some amount of academic fondness may at times spell disaster and lead us to sacrifice the substance of a legislation for its mere form.

The whole purpose of interpreting an Act of the Legislature is to find its real meaning and content; or to explain, elucidate and unfold its underlying purpose. Therefore, an equally well recognised method of construing the intention of a legislation where it is not expressly stated to be retrospective is to find tire object of and the necessity for the enactment by ascertaining the state of the law as it was at the time when the Act came into operation, the mischief which was required to be remedied and the remedy for which the new legislation �was'' devised. Craies on Statute Law quotes the well known dictum of Lord St. Leonards in O''Flaherty v. McDowell, (1857) 6 HLC 142 (A) 179. Said the noble Lord.

In order properly to interpret statute, it is as necessary now as it was when Lord Coke, reported Hyden''s case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide and the remedy provided by the statute to euro that mischief.

There arc various other decisions which furnish apposite instances of the application of the above principle. In all those cases, the object of the new enactment was held to be the determining factor for giving retrospective operation to its provisions, even where the matter was pending in appeal. I shall presently refer to these instances. One of earliest of them is the case of Quilter v. Mapleson, (1882) 9 QBD 672 (B & C). There the Plaintiff brought an action to recover the demised property under a proviso of re-entry for breach of a covenant to insure and he obtained judgment on 4-7-1881. The Defendant appealed and obtained a stay of execution. In January, IS 52- curias the pendency of the appeal, the Conveyancing and Law of Property Act, 1881 camo into operation. Under Iho Act in question, the Court was given power to grant relief against forfeiture. The Court of Appeal'' held that the i>i;qyision was not confined to only breaches which took place after the Act emno into force, but applied equally to breaches committed before the Act and to proceedings pending when the Act came into operation. The Master of the Rolls in delivering his judgment allowing the appeal observed:

We must therefore in furtherance of the objects of the Act hold the enactment to apply to pending proceedings unless there is something in the words to prevent our doing so.

These words are very significant. It is quite clear from the above observation that unless the exception or saving appears on the language of the Act itself, which prevents its application to pending eases, the supervening object of the Act, which was intended to ''protect a given class of persons with out exception, will have effect. The same view is illustrated by the decision of the Privy Council in AIR 1936 49 (Privy Council) In that case, the Plaintiff, who was the Official Receiver representing the landlords'' interest in a village claimed possession of a holding on the ground that it was a non-transferable occupancy holding of which the Defendant had obtained transfer. The Trial Court accepted tire Plaintiff''s case and passed an ejectment decree. On appeal the High Court reversed the decree and dismissed the suit. While an appeal was pending against the High Court''s decree before the Judicial Committee, the Bihar Tenancy (Amendment) Act, 1934, was passed which by Section 10 amended the Bengal Tenancy Act of 1885, in its application to Bihar and Orissa by the insertion inter alia of S. 26 (N). The section provided that every person claiming an interest as a landlord in the holding shall be deemed to have given his consent to every transfer mado before January. 1, 1923. Tho transfer in the case in question having been made in 1916, it was held that inasmuch as no saving could be implied in respect of occupancy holdings which at the date of the commencement of the Act (June 10, 1935) were in question in a pending suit, S. 26(N) applied to the action and the Plaintiff''s appeal failed in limine. Sir George Rankin, who delivered the opinion of the Board, found that the Act, which came into operation during the pendency of the appeal, before the Board, contained no saving clause and as such the Act should be deemed to be retrospective and govern actions pending in litigation on appeal. His Lordship observed thus: .

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 of pending suits over old transfers cannot be assumed.

Before I proceed to discuss other cases there the same principle has been followed by other, eminent Judges, let us at this stage, examine what the objects of the ''amendment in the present rfgage are.. The Assam Tenancy Act of 1935 is an iAjt to regulate by law the rights and liabilities of $agr�culhiral tenants and their landlords in certain ''in the State of Assam, not included in any temporarly setteled estate. Chapter II of the Act:Hp)3riies4x t]ie,,iyarious classes of tenants including ^"Irfijyats;.h$&''riviyats again are sub-divided into three different qlasses including occupancy and nonoccu pancy raiyats! Chapter IV deals with the acquisition & incidents of occupancy rights and S. 13, which I have already quoted, occurs in that Chapter. Originally, as,,the section stood, a tenant had to be in occupation for a period of 30 years.in the case of lands settled for ordinary or special cultivation in ; order to acquire occupancy rights in the land. The new amendment to the Act has now reduced the period to, only 12 years. It is obvious that as a result of this, amendment, if a tenant has been in occupation of the land for a period of 12 years, he would get occupancy rights. Let us, therefore, for the time being, forget that an action is pending in respect of the Defendant before us. There can bo no doubt that on the finding that this Defendant has been in occupation as raiyat for a period for 14 or 15 years, prior to the suit, the Defendant would T?y virtue of this amendment acquire occupancy rights in the land. It is quite obvious that the amendment is retroactive. It may have come into force in September, 1953, but it evidently operates uppnTa period long prior to that date and its effect reaches back to a period which may be long past. Sub-Section (2) of the amended section as already quoted r.-y me expressly says that the period of 12 years referred to in Sub-section (1) may be wholly or partly before or after the commencement of the amending provision. The object of the section was to confer the occupancy status on all such tenants, who hail been continuously in occupation of the land for a period of 12 years, whether before or after the amendment; and to ensure that, if they had not been ejected earlier,. the landlord had no right to eject them; and they shall have tire right to remain on the land subject to the rights and incidents of an occupancy raiyat. Let us then inquire whether ,within this class, as pointed out by Sir George Jjlankin in the passage quoted earlier, the Legislature sought to discriminate against tenants whose ""right was under challenge in a suit. On the face joi the section itself there is no such saving and therefore, there is nothing to prevent us from giving Effect to this provision in pending litigations. Why ''phould we, narrow the scope of its application specially when the statute is intended to guarantee some measure of social justice to tenants and has not itself made any exception? The object of the amendment manifestly was to do away with the mischief'' of thirty years'' possession and reduce the period to 12 years only in order to protect tenants from eviction, except under circumstances provided by the law. This object will be largely frustrated if vfe .deny that protection to tenants whose cases are pending in litigation; the supervening object of the amendment must, therefore, have its full yjlay and no doctrinaire attitude should be adopted to defeat it.

It is urged that the service of a valid notice to, quit has ; terminated the tenancy and thereafter the tenant is merely a trespasser and cannot take .advantage of any change in the law. In particular, reference is made to the language of Sub-section (1). of the section where the words "has continuously held land as a raiyat" occur. It is suggested that since after the service of the notice putting an end to the tenancy,, the tenant is no longer a person holding as a raiyat, the section will have no appli-i cation to him. I am afraid, this argument does the thak a complete view of the actual legal position! Tenancy, it must be conceded, is both a matter oi '' contract and status. No unilateral act of either the landlord or the tenant can effectively put an end to tire tenancy. It may be that after a valid notice to quit upon the tenant, the landlord has taken a preliminary step to terminate the tenancy, but that step is not effective by itself to destroy the tenancy. It simply gives a right to the landlord to evict the tenant if he pursues his remedy further. Various circumstances may intervene to destroy the effect of the service of notice and to further the continuation of the tenancy. The landlord himself may omit to institute a suit for eviction within the period required by the law. In that event, if he again wants to terminate the tenancy, he may be required to serve a fresh notice to quit upon the tenant. The Court itself under the law in certain cases may refuse to evict the tenant and give relief against forfeiture. Similarly, legislation may intervene to protect the tenant and deprive the landlord of his right to evict. There is nothing in diis case to indicate that the tenant had also repudiated the tenancy. He continued to attorn to the landlord and to occupy the land, though the landlord by virtue of the notice to quit, which had been served on the Defendant, acquired a right to institute a suit for eviction treating the tenant as a trespasser. If in the meantime the legislation in question comes into operation and serves to protect the tenant and deprive the landlord of his right to evict him, the mere service of the notice to quit will not be of any avail. No one has suggested nor could reasonably suggest that the Legislature has no right to pass legislations having retrospective operation.

For the Respondents, much stress has been laid upon certain observations of Mitter J. in Jiban Krishna Chakrabarty Vs. Abdul Kader Chowdhury, which is a Special Bench decision. The decision , in question, in my opinion, is not very helpful, because, it. was given prior to the decision of the Judicial Committee in K. C. Mukherjee''s case (D), discussed above. In this case, there was a difference of opinion between Mitter and Ghose,-JJ., and then the matter was referred to the Special Bench. Rankin, C. J. as he then was, who deliver- ed the decision of the Bench, appeared to agree partially with the view expressed by Mitter J.,. though for different reasons; His Lordship pointed-out there that if the new provision as to notice harj-been exactly the same as the old, it might well be that a different view could be taken; and he further proceeded to clarify the position in no ambiguous terms:

On this point I desire to say that when that question comes up for decision, I am not, as at present advised, prepared to say that the reasoning of Mr. Justico Mitter in the present caso will conclude . the matter. I am of opinion, however, that in the case before us, whatever be the form of the notice which was actually given by tlie Plaintiff to tlie Defendant, the amending Act does not affect the rights of the parties and I would, therefore, agree with Mr. Justice Mitter in his conclusion and in tlie order which he proposes to make.

It would be seen that the case in question related to the form of the notice for eviction and it was held that the new form would not have any retrospective operation. Some of the general observations, therefore, made by Mitter J., cannot be pressed in aid for the decision of the present case. The decision of the Judicial Committee in K. C. Mukherjee''s case (D), which comes later, gives a clear lead on the point and the case there is almost similar to the present case. There a period had been indicated prior to which any transfer would be deemed have been with the consent o2 the landlord. Here, a period had been indicated whereby the legislation conferred the; status of occupancy raiyut on Uio tenant, if he had been in continuous occupation of tlie land for that period. In that sense both tlie legislations are retrospective in their character. Mitter, J. himself in a later decision in Habiba Bibi and Others Vs. Ram Ranjan Mullick and Others, to which 13. K. Mukhcrj''i, J., as he then was, was also a party, fully adopted the observations of the Judicial Committee in K. C. Mukherjee''s case (D). He pointed out these:

Where the intention of the Legislature to give retrospective operation is not indicated by express words, the scope of the Act must be taken into consideration in deciding whether retrospective operation was intended by necessary implication. Bearing thsse principles in mind we have to gather the intention of the Legislature in respect of S. 10-C of the new Act.

Although the learned Judges observed there that the Legislature had not by using express words made the section retrospective, yet it seemed clear to them that the section was intended to apply to decrees already obtained before Act 6 of 1936 came into force!. They proceeded to examine the provisions of the Act in question and held further that as there was no saving in respect of pending executions made by the Legislature, the section must be given full effect even in regard to such executions and they relied upon the dictum of Sir George Rankin in the Privy Council case, as any other view was likely to defeat tlie object, which the Lcgis-lature\\''hacj before it in enacting S. 10-C of tlie Act in question before them. B. K. Mukherji, J., in a separate judgment agreed with those propositions and laid, emphasis on the fact that the object of the legislation" had to be ascertained and if no exception was provided by the legislation itself, it should be given .effect to; otlierwise, tlie object would be frustrated. Varadachariar J., in AIR 1941 16 (Federal Court) noted the J.bove distinction with sufficient clarity and again in a very recent English decision in Hutchinson v. Jauncey, (1950) 1 All ER 165 (II), the same principle has been reiterated. The Muster of the Rolls there observed:

Having examined the many cases that the industry of counsel for the landlord has enabled him to lay before us, I doubt whether the principle ought to be expressed in quite so precise language as Si-George Jessel, M. R., slated it in Re: Joseph Suche and Co. Ltd. (1875) 1 Ch D 48 (I). It seems to me diat, if the necessary intendment of the Act is to affect pending causes of action, the Court will give effect to the intention of the legislature even, though there is no express" reference to pending actions.

Courts in India have since then continued to follow the principles formulated by Sir George Rankin in K. C. Mukherjee''s case (D), vide also the recent! Special Bench decision of the Allahabad High Court! in Jagannath Vs. Board of Revenue, U.P., Allahabad and Others, It is, therefore, futile to insist that in every case, the Legislature must clearly express that the legislation was intended to be retrospective when otherwise the intention can be clearly gathered.

I maintain that the present appeal could be easily determined in the light of our decision in. Harsukh Sarawgi v. Mashulal Khcmani, S. A. No. 50 of 1954: (AIR 1957 Gau 22) (K), wherein .substantially agreed with Ram Labhaya, J., in tlie construction of a somewhat similar, legislation. But in in a manner not quite uncommon to litigations the matter has again been pushed to tlie fore in connection with the present amending Act.

No two legislations are usually in the sarnie terms; but in my opinion, the principles I have laid down apply equally to this case. I pointed outi in that earlier judgment that social legislations of this kind should be interpreted in such a way as to give full effect to their underlying purpose. 1 cannot help reproducing a significant passage here:

Where in a social legislation of this kind the Legislature intends to give protection or confer a privilege on a class of persons which it otlierwise did not possess, the legislation should be taken to apply ordinarily to the entire class, unless there was seme saving or exception meant by the- terms of tlie legislation itself.

The mere fact that there is a suit or proceeding pending against any member of tlie class should not in the usual course deprive him of tlie protection or privilege so aforesaid, unless the Legislature intended to make an exception in his case. All rules of interpretation are .meant to bring out and give effect to the dominant purpose or intention of the legislation and to advance the remedy which it seelcs to offer. There should be, therefore, no academic or rigid interpretation of its provisions.

The law is not something static. It reflects and registers the growing needs of the people and their varying moods. Its language has, therefore, to be interpreted not as dead letters in black and white printed on tlie pages of the Statute, ''. but as the voice of a representative Legislature speaking through those pages, which it is always the privilege of the judiciary to interpret. But if the Ian.: guage . of the Statute is itself so obscure that''its dominant purpose cannot be effectuated, the Court must cry a halt.

At some stage a lino has to bo drawn between interpretation and legislation and tlie Court cannot under the guise of interpretation do something, which the Legislature itself has not been able to fulfil. As to where the line has to be drawn is not always an easy matter; the best guarantee in such cases is the sound judicial discretion of the Judge himself (10) For the reasons aforesaid, I cannot but Mhold that Section 13 of the Act as amended is retrospective in its operation and has deprived the landlord of. his right to eject ijhe Defendant, the latter having acquired occupancy rights in the land. In fact, if any such declaration as to retrospective operation jwag needed, Clause (2) of the section almost specifically 76.&XS SQ.-j-. In. .my opinion, therefore, the appeal should be -allowied, the decree under appeal should be set aides and the Plaintiff''s suit dismissed, but in the circumstances without costs.

In the judgment which is about to be delivered, Ram Laghaya, J., has subjected my reasonings to elaborate and minute scrutiny. I have ,:also had the privilege of glancing through his judgment this morning. While I have every respect tor the reasons advanced by him, I regret to say that ''they do not serve to deflect the balance of my own decision in the matter. JRAM LABHAYA, J:

This appeal arises out of an ejectment suit. Plaintiffs'' case was that the Defendant was a tenant in respect of the lands in suit on an annual rental of Rs. 50. He "had been in arrears. They also wanted to fbring the land into their khas possession. They therefore sent a notice to the Defendant asking him to vacate the land. He did not accept the notice nor the he vacate the land.

The Defendant; resisted the suit. He claimed occupancy rights in the land. He repudiated the allegation about arrears and denied that the Plaintiffs needed the land for their own purposes. He also pleaded that the notice was not served on him.

The learned Munsiff found that the Defendant had been in possession for 14 or 15 years before suit, and had not thus acquired occupancy rights which could be acquired by continuous possession for thirty years. He relied on the statement of the peon who deposed that the Defendant refused to accept notice. His finding was that the notice was offered to the Defendant and was refused. He decreed the suit on the findings arrived at by him. It appears that before the learned Additional District. Judge the only question that was argued was whether the Defendant had become liable to eviction.

The concurred in the view that Defendant had been in possession for 14 or 15 years only and therefore had not acquired occupancy rights. He further icame to the conclusion that a valid notice had been served on him which he had refused to accept and therefore the tenancy had been duly terminated. As a result he dismissed the appeal. Defendant has assailed the validity of the appellate decree.

It has been contended on his behalf that the Assam (Temporarily-Settled Districts) Tenancy (Amendment) Act, 1953, which took effect during the pendency of the appeal in the Court of the Additional District Judge permitted acquisition of occupancy rights by 12 years'' possession. He has therefore acquired occupancy rights. The grievance now is that the provisions contained in the amending Act were lost sight of by the lower appellate Court. The �contention fof the learned Advocate for the Plaintiff-Respondents is that the Act has got no retrospective .-effect. This is the only point that arises for deter-jmination. Concurrent findings of the Courts below on the other points have not been challenged.

The notice of ejectment was sent on 8th October, 1949. The suit was instituted on 10th October, 1950. Tire trial Court decreed the suit on 3rd March, 1952. The appeal was disposed of on 9th June, 1954. The amending Act came into force in September 1953 during the pendency of the appeal in the Court below. Occupancy rights were not claimed in the lower appellate Court on the basis of the provision of the amending Act of 1953.

We are concerned in this case with the provisions contained in S. 13 as amended. Section 13 of the principal Act provided as follows:-

13 (1) A person, who (a) for a period of 30 years in the case of land settled for ordinary or special cultivation at full revenue rates, or (b) for a period of 12 years in all other cases has continuously held land as a raiyat, shall have a right of occupancy in the land.

(2) The period of 30 years and 12 years respectively referred to in Sub-section (1) may be wholly or partly before or after the commencement of this Act.

Clause (1) (a) of Section 13 has been completely deleted. Clause (1) (b) and Clause (2) of S. 13 have been amendmed The amended Section 13 (1) and (2) read as follows:

(1) A person who for a''period of 12 years has! continuously held land as a raiyat shall have a right'' of occupancy in that land.

(2) The period of 12 years referred to in sub-S.;'' (1) may be wholly or partly before or after the commencement of the Assam Tenancy Amendment Act, 1953.

It will be noticed that the effect of the deletion of Clause (a) of S. 13 (1) is that the period for acquisition of occupancy rights has been'' reduced to 12 years in all cases. This period of 12 years may be wholly or partly before or after the commencement of the amending Act. In the principal Act also the two periods could commence before or after the commencement of that Act.

The res''ult of the amendments stated shortly is that a person who has continuously held land as a raiyat for a period of 12 years shall have occupancy right in the land regardless of the fact that his possession commenced before or after the amending Act came into force. The question Is whether there is anything in the language of S. 13 of the amending Act which in express terms or by necessary implication gives retrospective effect the amended provisions of tine section. In the ultimate analysis it is a question of construction of the. relevant provisions.

The learned Counsel for the Appellant has in support of his contention relied mainly on the decision of their Lordships of the Privy Council re-.; ported in 63 Ind App 47: AIR 1936 49 (Privy Council) (Dp and a Division Bench decision of this Court in Se-,"1 cond Appeal No. 50 of, 1954 (not reported) (since reported in AIR 1957 Gau 22) (K) in which the ratio which prevailed with their Lordships-of the Privy Council was followed.

I was a party to the decision in Second Appeal No. 50 of 1954: (AIR 1957 Gau S2) (K). In my judgment in that case I considered most of the important decisions bearing on the principles which govern construction of; Statutes when the question is whether they have any retrospective effect or not. It is not necessary to, cover the entire ground again. I would briefly refer to a few decisions for, indicating the trend of judicial authority from very early times. In Lauri v. Renad, (U892) 3 Ch 402 (L), the requirement laid down was that the new Statute should show a cleav intention to vary rights when the law is altered during the pendency of an action. ....:...... In-Pardo v. Bingham (1869) 4 Ch A 735 (M), Lord Hatherley, L. C, held that the Statute is not to have a retrospective construction unless there was a clear indication of it from the subject-matter or from the wording of a Statute. In AIR 1941 16 (Federal Court) Sulaiman, J., expressed the view that "it was a well recognised rule that Statutes should as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a Statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is a well established principle that such Statutes must be construed strictly and not given a liberal interpretation." In Sudkya Ramji Vs. Mahammed Issak, it was held that ."where a Statute is passed pending an action as distinct from ''after the date of the cause of action'', strong and distinct words are necessary to alter the vested rights of either litigant as they stood at the commencement of the action."

In (S) Jagannath Vs. Board of Revenue, U.P., Allahabad and Others, it was regarded as undoubted that where the intention of the Legislature is doubtful, an enactment will not be construed so as to affect vested rights of action; but in the view of the learned Judge the matter was one of construction and if upon a consideration of the enactment as a whole it wos apparent that it was the intention of the Legislature that the provisions of the Act should be applicable to pending suits, they should bo applied.

(1882) 9 QBD 672 (B & C) was relied on in (S) Jagannath Vs. Board of Revenue, U.P., Allahabad and Others, In this case the question was whether the Act of 1881 applied to the pending proceedings. Jessel, M. R., observed when dealing with this question as follows:- ''''Then does the enactment apply to pending proceedings? I think that it does. The second Sub-section only applies where the landlord has not re-entered. This is important to be observed. On an ejectment under the Common Law Procedure Act, 1852 (15 and 16, Vict. c. 76), S. 210i a tenant could obtain relief against forfeiture for non-payment of rent at any tirhe within six months after execution. No such period is allowed by the Act of .1881, S. 14, Sub-section (2), and the tenant must proceed under that enactment before the landlord has re-entered. We must, therefore, in furtherance of the objects of the Act, hold the e-nactment to apply, to pending proceedings. unless there is something in the words to prevent our doing so."

It is clear that a provision in the Act was interpreted and the construction placed on it was in furtherance of the provisions of the Act. The conclusion was reached on the language of S. 14, Sub-section (2). The object of the enactment no doubt was found to be a relevant factor in ascertaining the intention Of the Legislature.

In Habiba Bibi and Others Vs. Ram Ranjan Mullick and Others, it was held that "where the intention of the Legislature to give retrospective operation is not indicated by ''iexpress words, the scope of the Act must be taken into consideration in deciding whether retrospective operation was intended by necessary implication." Mu" kherji, J. (as he then was), observed when inter" preting the relevant provisions of S. 10-C of tho Bengal Court of Wards Act that "if the new section in express words cut down the rights of the existing decree-holders who had obtained decrees prior to the amending Act, it would be inconsistent with the principle of the Act to limit the provision to those decree-holders, who had not yet taken out execution."

The object of the amending Act was taken into consideration for determining die extent to which the provision in question could be retrospectively applied. The decision even in this case depended an the construction of S. 10-C which enacted a general prohibition that no Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935.

It may be observed that not merely the object or the scope but the enactment as a whole may be considered for ascertaining whether the enactment was intended to affect vested rights where the language is not plain or explicit. The object and the scope are relevant considerations but the intention even when it is to be gathered from necessary implications must be implied in the language employed; the mere object of the legislation would . not justify retrospective el/fect being .given to jit beyond what it must receive so as to avoid violence to its language.

The fundamental rule of construction [is that no Statute shall be construed so as to have retrospective operation (when vested rights are affected) unless its language is such as plainly to require such a construction. A necessary corollary of the rule is that a Statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.

(1950) 1 KB 574 ("), Thistleton v. Frew-er, (1861) 31 LJ Ex 230 (O), Moon v. Durden, (1848) 2 Ex 22 (jP), Doolubdas Pettamberdass v. Ram-loll Thackoorseydoss, 5 Moo Ind App 109 (PC) (Q), Sylhet Loan and Banking Co. Ltd. v. Syed Ahmad Majtoba. AIR 1946 Cal 337 (R), Peoples Bank of Northern India Ltd. v. Wahid Bux, AIR 1943 Lah 170 (FB) (S), and Moohomed Amir Khan v. Mohd. Khalil. AIR 1947 Lah 180 (T) are cases which provide instances where retrospective operation, was not given to new laws by applying them to pending proceedings.

The decision of their Lordships of the Privy Council in 63 Ind App 47: AIR 1936 49 (Privy Council) was relied on by the learned Counsel for the Appellants in Second Appeal No. 50 of 1954: ( AIR 1957 Gau 22) (K). It formed the corner stone of his case and one question that arose was whether their Lordships of die Privy Council modified to any appreciable extent any of the welli-Tecognised .rules applicable to the interpretation of Statutes when the question was whether any retrospective effect was intended to be given so as to divest individuals of their1 vested rights. The conclusion reached by me was �:stated in the following terms:-

The general rule, therefore''has been that tho intention of the Legislature to give retrospective effect to its enactments .where vested rights are taken away or impaired, must appear in express terms or by necessary implication. This necessary implication is a recognised mode of expression. It creates a similar compulsion for the Court as the use of express terms. But the rule of interpretation which assists the Courts in determining whether a law can be retrospectively applied to pending suits, is stated differently from the general rule.

In such cases, the rule is that pending cases should be decided in accordance with the law which was in force when the suit was instituted. Changes of the law during the pendency of the suit, unless purely procedural, do not affect its course or tenor. Since application of a new law to a pending suit is an extreme form, which retrospective application of measures of the Legislature may take, "Sf clear''Statement of intention has generally been insisted on. Even here, the intention may be made manifest in express terms or by necessary implication.

Where the intention of the Legislature is made cearm spme known way, die Courts would be bound, to give effect to it by applying it to pending suits. The freedom of the Legislature to express its mind in any form cannot be restricted or reduced. But if-extreme retrospective effect is sought to be given by the application of a law to pending suits whatever the stage they have reached, and vested rights are intended to be varied, Courts may expect a clear, adequate and unequivocal expression of intention, which should not be easy to mistake.

For, if there is ambiguity or equivocation, retrospective effect could not be given to the law. In the ultimate analysis, the matter is one of construction, and if upon a consideration of the. enactment, it is apparent that it was the intention of the Legislature that the provisions of the Act should apply to pending suits, they should be so applied. Since the Legislature must be aware, when giving retrospective effect to its laws that pending suits may possibly be affected, it is desirable that it should speak out its mind sufficiently and unequivocally on this aspect of the matter."

The decision in 63 Ind App 47: AIR 1936 49 (Privy Council) was found to be a clear authority for the proposition that the legislajtivie intent to Vary rights evensStmng the pendency of an action need not appear in express terms. Dealing with this ease Vara-dachariar, J., observed in AIR 1941 16 (Federal Court) that "where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring to pending actions. But it will be seen from the decision of the Privy Council in AIR 1936 49 (Privy Council) that it is not necessary that tho intention of the Legislature should always be ex-, pressed in that particular form."

But the rule that the legislative intent in regard to the applicability of a new law to ponding actions may,be indicated by necessary implication was not new.. Their Lordships of the Privy Council did not introduce any change or modification in tihe preexisting rules of construction bearing on the point.

This conclusion was induced by a survey of the relevant decisions anterior to and after 1937. It appeared to me that tire decision in Mukhe" jee''s case was not taken as introducing any alteration in the general rules even in subsequent decisions of High Courts in India.

The Legislature by amending S. 13 has facilitated the process of the acquisition of occupancy rights by tenants. All tenancy legislation from very early times was intended to protect tenants from exploitation by the landlords by defining and regulating their rights and privileges. The amending Act is just a link in the chain of that legislation. It may be regarded as aiming at promoting social justice.

But so would all legislation wKich deprives citizens or classes of citizens of their vested rights for promoting the welfare of society as a whole. All such measures advance social justice. But the nature of the obligations that the State chooses to take on itself has no essential connection with the rules of construction of Statutes. These rules apply to Statutes of police States. They apply with equal force to laws forged by a welfare State. The task of tire judiciary is merely to interpret these legislative enactments. It may not in the process of''interpretation assume legislative power by extending the scope of any legislative measure. The changing conception of the State may make legislation advancing social justice necessary in an increasingly large measure. It becomes all the more necessary that the Legislature when taking away or varying vested rights should after due consideration express its mind whatever manner of expression it adopts, in no uncertain way.

After reconsidering the matter I have not been persuaded to modify the conclusion reached by me in S. A. No. 50 of 1954: (AIR 1957 Gau 22) (K) and reproduced above. The question as held ithere is ultimately one of construction of the relevant provisions and therefore we have to see if S, 13 of tho amending Act applies to pending action against tenants where tenancies were determined before the amending Act came into force.

I would now proceed to consider in the light of the rules above stated whether" Section 13 as amended was intended to apply to pending suits.

It is obvious that the Legislature has not indicated in express terms that the amended provision was to apply to pending suits regardless the stage they had reached. The amended section does not embody any such direction. This was common ground. But this does not dispose of the question. We have still to see whether legislative intent to apply it to pending suits has been indicated if not in express terms, at least by necessary intendment or implication. We have to give effect to the implications of the amendment also. The Legislature may well adopt that mode of expression. For finding this we have to interpret tho section itsclfl to discover its full import.

Tho amended section provides that a person who for a period of 12 years has continuously. hold land as a raiyat shall have a right of occupancy in that land. This period of 12 years may be wholly or partly before or after the commencement of the amending Act. No difficulty arises in cases where the period in question commences after the, commencement of the. amending Act. It also applies to tenancies where the tenant came in occupation of the property before the amending Act was passed. It would confer occupancy rights on tenants who were in occupation as ruiyats when the Act came into force, even if the entire period of 12 years elapsed before the Act came into force. Tenants who had not completed the iwriod of 12 years when tire Act came into force could acquire occupancy rights by continuous possession for 12 years. But if they could acquire occupancy rights by continued possession for 12 years the landlord also had the right to terminate the tenancy before the expiry of 12 years by six months'' notice u/s 33 (e) in cases in which there were no written leases. There was thus no immediate grant or conferment of a better status on such tenants. Tenants who had 32 years'' possession as raiyats when the Act came Unto force acquired occupancy rights. They became ngn-evictable. This is tire extreme limit to which the operation of the amending section extends. Its operation cannot be extended beyond this limit by reason of difficulties caused by the language used in the amending provision. In order that a person should have the right of occupancy in the land at a given time it is necessary that he should have occupied the land continuously for a period of 12 years as a raiyat. When occupation ceases to be as that of a raiyat, the period of occupation after that date cannot be taken into consideration under the amended section. If a person has been a tenant for six years and then the tenancy is validly terminated, but he refuses to vacate and no suit is instituted for Anr. six years, the case would not fall, u/s 13 as amended. Its essential condition is that a right of occupancy shall accrue to a person who has continuous possession of the land as a raiyat.

The natfure of assession is material. It has to be possession for the statutory period as a rai-, yat. A possession by a trespasser cannot be utilised for completing this period. In all cases where tenancies were validly terminated before the amending Act came into force, acquisition of occupancy rights was not possible on the strength of subsequent possession in Anr. capacity.

It may thus be said that the effect of S. 13 is that where a raiyat has completed 12 years'' possession as a raiyat, without termination of his tenancy before the Act came into force, he became an occupancy tenant. But a tenant whose tenancy was validly determined before the Act came into force even though his possession before the Act was for a longer period than 12 years, could not have the benefit of the amended provision.

The Defendant had 12 years'' possession as a raiyat to his credit when the notice determining the tenancy was issued to him. If he had vacated the land in pursuance of tire notice he could not recover back the land under the amended Act as he would not have been in possession and could not acquire occupancy rights. By remaining in possession as a trespasser he could not improve his position. He may be in actual possession but not as a raiyat.

The whole object and purpose of the amending provision is to assist existing tenants in improving their status by cutting short the period of pos- session needed for acquisition of a higher status. Protection was given only to raiyats, not to trespassers. The tenants became unevictable after holding the land for 12 years as tenants. This status could be acquired only if the tenancy" was not determined before the acquisition of occupancy rights. The landlord''s rights no doubt suffered diminution in regard to eviction of existing tenants in the future.

The deprivation of their rights is prospective, not retrospective The mere fact that the amending Act permits use of some period of possession before the Act came into force, would not make the provision in question retrospective. Craies on Statute Law lends support to this view. According to him a Statute (vide p. 357, fifth edition) "is not properly called a retrospective Statute because a part of the requisites for its action is drawn from a time antecedent to its passing."

In this case utilisation of some period before the rcommehcement of the Act was necessary as existing tenants could not otherwise be given the privilege which the Legislature sought to confer on them. It may be observed that the case of the Defendant does not fall in this class. He was not in possession as a raiyat when the Act came into force.

Before the amendment all cases of tenants did not fall under Clause (b) of S. 13. For acquisition of occupancy rights u/s 13 (a) a period of 30 years was necessary in cases where land was settled for ordinary or special cultivation at full revenue rates. It was conceivable that a tenant had occupation for over 12 years and had not acquired occupancy rights. Ho was evictable as a raiyat with no occupancy rights.

The tenancy could have been determined by a six months'' notice as provided in S. 33. If the tenancy in such a case was determined before the amending Act came into force, the ex-tenant continuing in possession would be a trespasser and would not get the protection of the amended section. The amended provision does not apply to persons who had become trespassers before the new Act came into force. This seems to bo the effect of the language employed in the amending Act.

Tenants therefore whose tenancies were determined in accordance with Jaw before 1953 do not get extended protection. Occupants of tHiis class may be divided into two classes - Those against whom suits were pending when the amending Act came into force and Ors. whose tenancies were determined but suits had not been instituted. A suit for eviction after determination of tenancy may be instituted within 12 years.

Many persons may be in occupation as trespassers even though their tenancies were determined long before the Act camo into force. Both these classes get no protection from'' the amended section. Its requirement is that a person has to be in continuous possession as a raiyat. If1, a person lost his possession or ceased to be a tenant as the result of a valid proceeding, he could not claim occupancy rights.

If the intention had been to grant protection to persons in occupation notwithstanding that their tenancies had been determined, it would have been necessary to say in the amended provision that 12 years'' occupation would include period of occupa lion even after the determination of the tenancy. This''has not''been said and this may not be read into the section. There is no such implication.

Applying'' it to cases in which tenancies were determined before the Act came into force involves not merely reading something into it which is not there but reading something into it which is contrary to what it says. To put it shortly it may bo said that a person who was not a raiyat at the time of the commencement of the amending Act whether a suit was pending against him had or had not been instituted, js not entitled to any protection under it.

The nearest approach to the present case is found in Jiban Krishna Chakrabarty Vs. Abdul Kader Chowdhury, It was a Special Bench decision. In this case an under-raiyat without any written lease was served with a notice to quit by the landlord on 12th April 1928. He became liable u/s 49 of the old Act to be ejected on 13th April 1929 on the expiry of tire agricultural year 1928-29.

The amending Act 4 of 1928 which came into force on 21st February, 1929, repealed S. 49 and anew Section 48 (c) was introduced. In a suit by the landlord for ejectment of the under-raiyat on the expiry of the agricultural year, the tenant contended that the amending Act applied and that ho was not liable to be ejected. Section 49 (b) of the old Act; was as follows:-

An under-raiyat shall not be liable to be ejected by his landlord except when holding otherwise than under a written lease for a term at the end of tH$agricultural year next following the year in which a notice to quit is served upon him by his landlord." Section 48 (c) of the amending Act provided thait "an under-raiyat shall subject to the provision of this Act be liable to ejectment on the ground that the tenancy has been terminated by his landlord by ; one year''s notice expiring at the end of the agricultural year when he holds the land otherwise than under a written lease, provided that an under-raiyat shall not be liable to be ejected on this ground if he has been admitted in a document by the landlord to have a permanent and heritable right to his land, or been in possession of his land for a continuous period of 12 years or has a homestead thereon.

The period of 12 years which sufficed for the acquisition of occupancy rights under the amending Act could be wholly or partly before or after the amending Act as in S. 13 of the Assam Tenancy Amendment Act. Mitter, J., was of the view that "the amending Act was not retrospective, (hat it did not affect the rights of the parties under the tenancy acquired before the amending Act and that the landlord was entitled to eject the tenant on the expiry of the agricultural year.'''' Ghose, J., did not agree with this view. The case was referred to a Special BencfiN,.

The judgment was delivered by Rankin, C. J., with whom Pearson and Mukherji, JJ., agreed, llankin, C. J., delivering the judgment observed that the amending Act had no retrospective effect. He further found that the amending Act did not affect the rights of the parties and in doing so he agreed with Mitter, J. On |his point there was no difference of opinion. The ratio that prevailed with Mitter, J., was that the right to evict accrued in the Plaintiff as soon as a proper notice to quit was given although the right could not take effect in possession till tire expiry of the period of notice. The learned C. J. expressed himself as follows:-x "The clause having been re-drafted, I do not think that in- the absence of express provision, we " can hold that after February 1929, no under-raiyat is to l)e ejected on the ground of notice to quit unless he has had the notice which the new Act requires. If the now provision as to notice had been exactly the same as the old, it may well be that a different view could be taken; it may well be also that the case of a written lease for a definite term expiring after the commencement of the new Act, that is, the case contemplated by the .old S. 49, Clause (a) and new S. 48, Clause (c) will require to be decided upon other lines.

On this point I desire to say that when that question comes up for decision, I am not, as at present advised, prepared to say that the reasoning of Mitter, J. in the present case will conclude the matter. I am of opinion however that in the case before us, whatever be the form of the notice which was actually given by the Plaintiff to the Defendant, the amending Act does not affect the rights of the parties and Twould therefore agree with Mitter, J.," in his conclusion and in the order which he proposes to make."

The reservation made by the learned C. J., is about cases with which we are not concerned. The decision of the Special Bench was clear that tire amending Act had no effect on rights of the parties which accrued by reason of tire notice under the old Act.

34-A. This decision camo some years before the Privy Council decision in 63 Ind App 47: (AIR 1936 SC 49 ) (D). The authority of the decision is not shaken by the subsequent decision of the Privy Council in 63 Ind App 47 AIR 1936 49 (Privy Council) as there is no essential conflict between the two decisions on any question of principle.

34-B. Section 33 of the principal Act has not been amended. The proviso to Clause (e) of S. 33 however has been amended. Thje effect of the amendment is that a non-occupancy raiyat who holds lands otherwise than under a written lease may be evicted on the ground that the tenancy has been terminated by his landlord by six months'' notice in writing expiring at the end of the agricultural year provided that a non-occupancy raiyat who at the commencement of the Assam (Temporarily-Settled Districts) Tenancy Act, 1953, held land continuously for no less than five years is not liable to ejectment on the ground specified in Clause (e) unless the landlord satisfies the Court that he requires the land for his homestead or for cultivation by himself or members of his family or by hired servants or labourers.

A non-occupancy raiyat may be evicted under this clause by a landlord by a valid notice under Clause (e) if the raiyat has not acquired occupancy rights'' by 12 years'' continuous possession. If the tenant. was in possession for no less than five years at the commencement of the amending Act, he has further to show that he requires the land for purposes �'' specified in the proviso. Tenants who occupied the11 land within five years of the commencement of tha s amending Act, could be evicted by a six. months-''''1 notice at any time before the acquisition of occupancy right by 12 years'' continuous possession.

Determination of the tenancy of a non-occupant before he acquires the status of an occupancy tenant is still the privilege of the landlord under specified conditions. This section provides-for grounds on which a non-occupancy raiyat may be evicted. ''If the intention of the Legislature was that a non-occupancy raiyat whose tenancy had been validly terminated before the commencement of tlie amending Act should not be ejected if his occupation despite determination of his tenancy had been for 12 years, this section should have been suitably altered or amended.

The expression ''raiyat'' is defined in S. 4. A raiyat is a tenant holding immediately under a proprietor, land-holder or settlement-holder. A tenant according to S. 3 (3) means a person who holds land under Anr. person, and is, on but for a special contract - express or implied - would be, liable to pay rent for that land to that other person. A raiyat is a tenant. The person whose tenancy is determined does not fall under this definition. He may be described as an ex-tenant but he is neither a tenant nor a raiyat. If he is in possession against the consent of the landlord his real position is that of a trespasser.

He is not holding under any agreement with the landlord. Therefore any period of occupation after tlie determination of the lease cannot be taken into account, when a claim for occupancy rights is made. The implication of S. 13 also is that the person who claims occupancy rights should be in occupation as raiyat when lie makes a claim. An invalid notice would not determine the tenancy. But if a valid notice is issued and the tenancy is.determined, he ceases to be a raiyat.

Where the tenancy is made terminable by notice as prescribed the act of the landlord alone suffices to put an end to it. Right of eviction arises from the fact that the person who was a tenant has ceased to be so. But for the provisions of law which pro- vide for notice of ejectment a tenant-at-will would be evictable at the pleasure of the landlord in tlie'' absence of a contract to the contrary.

u/s 33 (e) a non-occupancy raiyat is liable to eviction when ho holds the land otherwise than under a written least;, on the ground that '' the tenancy has been terminated by his landlord by six months'' notice in writing expiring at the end of the agricultural year. The proviso to this clause makes evictable all rai''yats who have held the land for a specified period on condition that the landlord requires the land for cultivation by himself.

But whether the case falls under Clause (e) or under the proviso, the tenancy is determined by a unilateral act of the landlord, viz., his notice complying with the requirements of Clause (e). The notice determines the tenancy and liability to ejectment is incurred. Repudiation by the tenant or any overt act showing his consent to the determination of the tenancy is not needed.

Baron Bramwell observed in Taylour v. Wildin, (1868) 3 Ex 303, (U), that "a tenant from year to year has an interest in the land for so long as neither party gives a six months'' notice to quit, when that is done the estate is determined."

These observations were approved by Warrington, L. J., in Freeman v. Evans, (1922) 1 Ch 36 (V), vvlto said:- "Bramwell, B., put the point jhi tlie neatest and most precise terms that could be used. He said if the notice to quit is given tlie tenancy is at an end."

Once a tenancy is determined by a valid notice, a fresh tenancy may start if tlie landlord.. .allows tlie tenant to continue on, after the period of notice as the result of a fresh agreement. He may even tacitly consent to his continuing in possession by accepting rent. In such cases a new tenancy comes into existence. The old tenancy does not" continue.

But even if the old tenancy- were regarded a9 continuing, the tenant in these, circumstances would be a tenant and not a trespasser. It is not the case-of the Defendant before us that he was in possession of the land with tlie consent of the landlord after the-expiry of the.period of notice. There is no allegation-or proof that the tenant was attorning or the landlord was receiving any rent after the expiiy of tlie period of notice.

If a landlord omits to institute a suit after the determination of a tenancy during the period allowed to him by law, the person in possession being a trespasser would acquire ownership of the property after 12 years'' possession. The landlord would lose his right of ownership in the property. This-is the effect of Article 139 of the Limitation Act.

Relief against forfeiture where the Statute permits it may help to avoid a break in the period of tenancy but the case of a tenant who has-been relieved from the penalty of forfeiture is different from that of a tenant whose tenancy has-been terminated and who continues in possession-against tlie will and without the consent express or implied of the landlord.

Legislation may come to the rescue of a tenant whose tenancy has been determined by a valid notice. This is conceivable. The Legislature has-plenary powers. It may ordain that tenancies determined by a valid notice during a certain period shall) be deemed as subsisting notwithstanding their termination if tenants are in possession. It may provide that notices terminating tenancies shall not be given-effect to in certain cases. An instance in point is-the Assam Urban Areas Non-agricultural Tenancy Act. This Act expressly provided that the tenant for the purposes of the Act shall include a person whose tenancy has been determined but who has-not been actually ousted.

The effect of this definition is that persons in possession even though trespassers could be treated as tenants until eviction for the purposes of that Act. Where reliance is placed or! such or similar legislative intervention the Courts have to find out from'' the language of the provisions of the Act whether the Legislature intended to intervene even in favour of tenants who had ceased to be so and this is the question which we have to answer in this case.

In this case the notice of ejectment was sent on 8th October, 1949. The suit was instituted on 10th October, 1950. The question in tlie case was whether the tenant had acquired occupancy rights under the principal Act.. It was found that" he had not and that therefore notice terminated the-tenancy. This termination came about in 1949-50- Assam [PES. 42-47] INDRAMONI NATH V. LOKENATH (SB) (Delta J.) After that the position of the tenant was that he was a mere trespasser. ''-''< '' He is not in possession as a raiyat, now. His possession has not been as a raiyat contimiously upto the present "time. His case does not fall u/s 13 as .amended. '' '' (43) The decisions in 63 Ind App 47: (''AIR 13.936 PC 49); (D) and S. A. No. 50 of 1954: (AIR 1957 Gau 22 ) (K), are distinguishable. In 63 Ind App 47: AIR 1936 49 (Privy Council) Plaintiff sued for possession of a holding on the ground that it was a non-transferable occupancy holding of which the Defendant had taken a transfer by a deed of September 28, 1916.

The High Court reversed die decree in rjlain-tiff''s favour and whilst the appeal was pending before their Lordships of the Privy Council die Bihar Tenancy (Amendment) Act, 1934, was passed, which by S. 10 amended the Bengal Tenancy Act, 1885, in its application to Bihar and Orissa by (inter alia) the insertion ,of S. 26 (n), which provides diat every person claiming an interest as a landlord in any holding shall be deemed to have given his consent to every, transfer made before January 1, 1923. j . The insertion of S. 26 (ji) introduced a legal fic-tionl . Transfers made before 1st January, 1923, without landlord''s,consent were to be deemed as having been ("assented to. When all transfers made before ai given.date had to be deemed as assented to, their " Lordships of the Privy Council refused to make any feadistinctiQn; between unauthorised transfers on the I basis of which a suit had not been instituted and those, on. the basis of which suits were instituted. : . The. language left them no option. The decision; rests on the interpretation of the section which undoubtedly validated unaudiorised transfers made long before the Act came into force.

In S. A. No. 50 of 1954 (not yet reported):, since reported in AIR. 1957 Gau 22) (K), the contention, raised was that by reason of the provisions contained in the Assam Non-Agricultural Urban. Areas Tenancy Act, 1955, the tenant was not evictable. This Act came into force during the pendency of the Second Appeal. The. provision of S. 2 of this Act was that "notwidistanding anything contained in, any contract or in any law for the time being in force the provisions of the Act shall apply to all non-agricultural tenancies whetiier created before or after the date on which diis Act comes into force." The whole of the Act was made applicable to-existing tenancies notwithstanding anything in any contract or law to the contrary.

Section 5 (1) of the Act provided that "notwithstanding anything in any contract or in any law for the time being in force, -, (a) where under the terms of a contract entered into between a landlord and his tenant, whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms, actually built within the period of five years from the dale of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where Tenant, not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid, with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent;" The rest of the section need not be reproduced.

The effect of S. 5 was to modify contracts from die date the contracts were made. The tenant acquired trie privilege conferred by S. 5 not from die date of the commencement of �the Act but from the date of the contract with the landlord. The result was diat any determination of the tenancy even by a notice valid under die old Act could not be recognised by Court, if infringement of any provision of the new Act was involved. Hero again there is a legal fiction. The tenancy in point ,of fact may have been determined before this Act came into force. It could have been determined.

The amending Act modified the contract between the parties and made die tenant non-evictable under certain circumstances. If the contract was to be deemed as modified from the date on which it was made, the determination of die tenancy to which S. 5 applied before the commencement of the Act had to be treated as invalid. The result of die amendment therefore was that die de facto deter mination diat had occurred was nullified by the" legislature which modified the contract from the date it came into existence.

The legislature in tiiis case did not leave the matter in any doubt at all. The definition of the expression "tenant" in that Act included persons j whose tenancies had been determined but who had not yet been actually ousted. The retrospective effect was given to die Act in no uncertain terms., Giving effect to die language of the provisions contained in die Act necessitated retrospective effect being given to diem. Legislative intention could not be missed. The decision in this case like the decision in 63 Ind App 47: AIR 1936 49 (Privy Council) is of no assistance to the Appellant in this case., (45) The provision contained in S. 13 of the amending Act has no retrospective effect. The rights of the parties to die case must be determined under the law in force on the date of the institution of the suit. A valid notice of ejectment had been served on the tenant and he had incurred liability to ejectment by reason of the termination of the tenancy which occurred before the institution of the suit. Subsequent change in die law can have no effect on the rights and obligations which (parties tiien had on the date of die suit. The contention raised on behalf of the Defendant cannot prevail. The appeal therefore must fail and is dismissed, (46) I regret I have not been able to agree'' with my Lord the Chief Justice in the view which has prevailed witii him. > . DEKA J.:

The point involved in this appeal is whether Sections 6 and 10 of the Assam (Temporary-Settled Districts) Tenancy (Amendment) Act, 1953 (Assam Act 27 of 1953) (hereinafter called the amending Act), are retrospective in their operation and whether they apply to pending proceedings. The amending Act came into operation on 23rd September, 1953; the suit from which this appeal arises was instituted on 10th October, 1950 and was decided on 3rd March, 1952 by the first Court decreeing the suit in favour of the Plaintiffs and ordering eviction of the Defendant.

The tenancy was sought to be terminated by the Plaintiffs-landlords on 14-4-50 by a notice dated 8-10-49 in terms of die provisions of S. 33, Cls. (b) lify ere red: of the . of Act lent [ere oint Act be-ible was lich / to of t of ter-tho the the the sons had:tive rms. con-Efect ould the (D), the The min-insti-had rrred ation stitu-/ can vhich con-innot i dis-

agree vhich whe-3ttled i.ssam nding whe-The ptem-arises was Court s and 3d by dated Is. (b) -and (e) of the Assam (Temporarily-Settled Districts) Tenancy Act, 1935. The provisions of the amending Act were agitated in the Court ol I lie learned Additional District Judge particularly the amendment to the proviso to S. 33 fe)'', but he refused to accept the 1953 Act as retrospective and as such affirmed the decree passed by the first Court.

Plaintiffs'' ease was that the Defendant was a tenant-at-will in respect of the land in suit on an annual rental of Rs. 50/- and that the Defendant had defaulted in tire matter of payment of rent or irregular payment thereof diat die Plaintiffs wanted evict Defendant by terminating tenancy under 33 (e) Assam Tenancy Act after giving six months? notice writing expiring at end agricultural year. The Defendant resisted the suit mainly on the ;ground that he had acquired occupancy right and had not defaulted in the matter of payment of rent us ascribed by (lie Plaintiffs. 11<: further alleged that the Plaintiffs had no bona lide necessity for making the land kbas, The finding oi the appellate Court is that the Plaintiffs failed to prove that there has been any arrear of rent and that the Defendant has been in possession of the land for 14 or 15 years and had failed to acquire jote rights or rights of an occupancy tenant as provided u/s 13 of the Assam (Temporarily-Settled Districts) Tenancy Act of 1935.

The requirement of the section was under CI. (1) (a) that a person can acquire occupancy rights in all lands settled for ordinary or special cultivation at full revenue rates only after possession for �30 years and the land in this suit belonging to this class, the Defendant could have acquired jote right, �according to the learned Additional judge only after possession for a period of 30 years and not after 12 years as provided under the amending Act. The same construction prevailed with the learned Additional Judge as to the proviso u/s 33 which prescribed that a non-occupancy raiyat who had at the commencement of the Tenancy Act. 1935 held the land continuously for not less than .10 years were not liable to be evicted on the grounds specified in CI. (e) unless the landlord had satisfied the Court that he required the land for his homestead or for cultivation for himself or by members c''f his family or by hired servants or labourers.

Under the amending Act this period of 10 years ''has been reduced to 5 years from the commencement of the Act of 1953. The learned Additional Judge held that the provisions of the amending Act .had no application since the Act. was not retrospective in operation.

I should indicate in brief the changes brought about by the provisions of the two sections namely, Sections 6 and 10 of the amending Act. Section 6 provides that CI. (a) of-sub-s. (1) of S.. 13 of the original Act be deleted and that in CI. (b) the words "in all other cases" should be deleted, ,and read with CI. (3) of S. 6 of Ihe amending Act, the proviso to S. 13 will read as: period of 12 years referred to in Sub-section (;1) may be wholly or partly before or after the commencement of tire Assam (Temporary-Settled Districts) Tenancy (Amendment) Act, 1953. That is, possession for a period, of twelve years will be sufficient for the purpose of acquiring the occupancy right by a raiyat and how that period, is to be computed is indicajted above.

By S. 10 of the amending Act tire proviso to Section 33 of the principal Act is amended, only ta,.", this extent that in place of "tiiis Act" the Assam|., (Temporary-Settled Districts) Tenancy (Amendment) Act 1953, and in place of "ten years". five years, shall be substituted. ..'',.]

Once we hold, that the amending Act is retrospective in its operation, there will be no, difficulty in holding that the Act applies to pend- '' ing cases even at an appellate stage. This is -Su]_ ported by the view expressed by their Lordships"a the Privy Council in 63 Ind App 47: (AIR 1936 49) (D). There is practically no serious contest this position either on behalf of the Respondents;

The learned Advocate for the Appellant argued before us that this decision is an audioril also on lh(i point that the present Act is retroi, pective in its operation. I propose to take up thj point a little later. He has further relied on'' tw" other decisions. Habiba Bibi and Others Vs. Ram Ranjan Mullick and Others, and V(S] AI.R 1955 All 432 (SB) (J).

The learned Advocate for the Respondents however, has contended tlffat the amending Act js&. not retrospective in its operation and has relied, oriJ''j the following decisions: Jiban Krishna Chakrabarty Vs. Abdul Kader Chowdhury, , Joy Kumar Deb Vs. Jamiraddin and Another, ; Masihuddin and Others Vs. Akbar Ali and Others, Sham Singh v. Vir Bhan, AIR 1942 Lah 102 . (F.B) (Y) and Kishori Lal Potdar Vs. Debi Prasad Kejriwal and Another, Mr. Gho''se for the Respondent has'' strongly argued that the i>rinciple as to the inter-alia, pretation of a statute as to whether it is retros-pective in operation or not has been clearly laii down in the cases he has cited and has urged thai on the facts of this case it cannot be said that the| amending Act is retrospective in operation.

Without much difficulty we can say that principle as to the interpretation of a statute as to? whether it is retrospective in operation or not hasj really been settled and we might roughly put.''il that it is a fundamental rule diat no statute shall construed to have retrospective operation unless such a construction appears very clearly in the terms of the statute or arises by necessary and distinct implication. To quote the words of R. C. Mittei;, J, . (vide Habiba Bibi and Others Vs. Ram Ranjan Mullick and Others, to; which B. K. Mukherjee, J. was a party the principle laid down" is as follows:

The principles governing retrospective operation of statutes are well settled. When a statute takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty or attaches a new disability .in respect of transactions or considerations already IS past, the presumption is, but it is only a presumption, that it is not to have retrospective operatic.

It is also a general rule that a statute whjcl takes away or affects a right of action is presum ed not to apply to pending actions. But these aire general rules and are displaced when the intention of the Legislature, either expressed or to be gathered by necessary implication, is otherwise... Where the intention of the Legislature to give retrospective operation is not indicated by express words, the scope of the'' Act must be" taken into consideration: in deciding whether retrospective operation was intended by necessary implication.'''' i. Here, therefore, we can come to no decision unless we examine the provisions of the amending j Act itself that ,are necessary for the purpose of this case""r>The'' Act is totally silent as to whether the provisions should have retrospective effect, it has pnly amended certain provisions of the 1935 Tenancy Act, and the first clause in S. 13 (1) as to 30 years'' period has been completely deleted and the period of continuous possession for 12 years has been made applicable in all cases.

The provision as to computation of that period of 12 years is retained just the same only by deleting 30 years by virtue of the amendment in CI. (1) of S. 13. The mode of computation is retained just the same except that in place of the original Act the new. Act is inserted. It is not very difficult from this change or verbal alterations to infer that what is really intended by the legislature is that the period of 12 years will be available in all eases for ; the purpose of acquiring occupancy rights as soon as the amending Act comes into operation.

It does not suggest in express words that this light can be pleaded as a bar in pending suits, or where the cause of action arose before the amending Act came into operation. In S. 33 of the old Act or the principal Act no material alteration is made except that the period of 10 years has been curtailed to 5 years by virtue of the amending Act.

Even from the other provisions of the amending Act we find no indication that any of the provisions of this Act is intended to be given retrospective effect with a view to interfere with the vested rights acquired under the existing laws.

The provisions of the law which came up for consideration in the cases cited by the learned Advocate for the Appellant give little help for the purpose,of interpretation of the relevant provisions of the amending Act whereas the case reported in ''37 Cal WN 689 corresponding to AIR 1.933 Cal 435 (SB) (E), has much in common with the present case. There also the rights of a non-occupancy tenant voider the Bengal Tenancy Act were involved.

In that case an under raiyat without any written lease was served with a notice to quit by the landlord on 12th of April, 1928, so that he became liable u/s 49 of the old Bengal Tenancy Act to be ejected on die expiry of the agricultural year 1928-29 corresponding to 13th April, 1929. The amending Act 4 of 1928 which came into operation on 1st February 1928 repealed S. 49 and the new S. 48 (c). was introduced.

In a suit by the landlord for ejectment of the under-raiyat on the expiry of the agricultural year the tenant contended that the amending Act applied and that he was not liable to be evicted. It was, however, held by a Special Bench that the amending Act was not retrospective, that it did not affect the rights of the parties under the tenancy acquired before the amending Act came into force and that the landlord was''entitled to eject the tenant on the expiry of the agricultural year.

In this case there was difference of opinion between the two Judges of a Division Bench (Mitter, .J. and Ghose, J.) and the matter was finally deckled by a Special Bench presided over by Rankin, C. J.

Pearson and Mukherjee, JJ. The difference between Mr. Justice Mitter and Mr. Justice Ghose was not as to the interpretation of the amending Act, but it was confined only to a minor point and they botii agreed that the-1928 Act was not retrospective in operation.

In the words of Mr. Justice M, C. Chose:

One of us thinks that the right to evict the under-tenant vests in the landlord from the date-of the notice although, the right does not take effect in possession till after die expiration of the period of notice....... The other of us thinks that the right to evict the under-tenant vests iu tho landlord not on the date of the notice, but on the expiration of the notice. If the former view is right then the amending Act 4 of 1928 does not applyj if the latter, then the amending Act applies.

In the Special Bench case, Rankin, C. J. agreed with the view that the amending Act had no retrospective effect. His Lordship though not completely agreeing with the view of Mitter, J. held that in the absence of express provision he was not prepared to hold that after February 1929 no under-raiyat is to be ejected on the ground of notice to quit unless he has had a notice which the new Act required. In other words, the notice served under the old Act was found to be valid and the relation between the landlord and tenant terminated by virtue of that notice. � In the present case the facts aro still better and tho Act had not come into operation not only at the time the tenancy was terminated, but till after the decree of the first Court was passed. Once we hold the view that the landlord acquired the right to evict the tenant by virtue of the notice u/s 33 of the old Act, the new Act. could not affect the rights unless it was clearly expressed in the amending Act itself. Mitter, J. held that once a notice is given the tenancy will be inevitably determined upon its expiration and the Courts have gone so far as to hold that when the notice is given to quit by the landlord or tenant, the party to whom it is given is entitled to insist upon it and it cannot be withdrawn without consent of both parties. The view held by Mitter J. has been followed in two Division Bench eases reported in Joy Kumar Deb Vs. Jamiraddin and Another, and 38 Cal WN 167: Masihuddin and Others Vs. Akbar Ali and Others, In the case of Joy Kumar Deb it was hold that there was no indication in the Act that the Legislature intended the provisions of S. 48 (c) of the Bengal Tenancy Act to be retrospective and u/s 6 (b) (c) of the General Clauses Act 1897 ,:| it would not affect the rights which are vested on -the landlord under the provisions of S. 49 (b) of the Bengal Tenancy Act of 1885 to eject the tenant- Defendants after tho expiry of Chaitra. .

Applying similar tests we find nothing in the amending Act of 1953 to suggest that any right vested in the landlord will be lost because; of the'' amended provisions. The further fact diat boUi in Ss. (i and 10 of the amending Act, the new Act is substituted in place of the old, goes to suggest that the intention of the legislature is that the altered conditions (as to the acquisition of rights) will prevail after the new Act. came into force and not retrospectively.

Mr. Ghose has further relied on a Full Bench decision of the Lahore High Court reported in AIR 1942 Lah 102 (Y). There it was held relying on the view expressed by Write, J. In re, Athlurnney; Ex parte Wilson, (1808) 2 OB 547 (Zl) at p. 552.

Nothing is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise that as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only.

It further quoted the view expressed in AIR 1927 242 (Privy Council) (Z2)>tto the effect that the provisions which touch a right in existence at I ho passing of the .statute are not to be applied retrospectively in die absence of express enactment or necessary intendment. If tile same principle is applied to this "Act, wo cannot by any stretch of imagination say that the amending Act -was intended to be retrospective, either in clear words or by intendment. The only thing that has been argued and could be argued is that it mentions of the period of twelve years which may be wholly or partly before or after the commencement of this Act. Mr. Bhattacharjee argues that since at the time the Act was passed, the raiyat had completed the period of twelve yeai''s required under the amending Act for the purpose of acquiring the rights of an occupancy tenant, he is not liable to be evicted. But as a matter of fact this plea is not open to him since the Plaintiff landlord had already acquired the right to evict him after service of the notice as contemplated under the old Act. The new Act docs not entitle him to continue in possession or claim the right which lie has once lost. I am inclined to aeecrpt the contention that CI. (2) of S. 13 of the old Act as amended by the new Act does not entitle the tenant to compute the period after the termination of tenancy by a valid notice, towards his possession as a tenant and his possession cannot be said to bo continuous as a tenant thereafter, even though the now Act had come into force. Rights of the tenants who had been, evicted or against whom decrees for eviction had been passed under the old Act for not having continuous possession for thirty years are not intended to be revived by this amending Act, nor can they pead this Act in defence. That is clear from the Act itself and it only signifies that the new Act is prospective.

In the case reported in 63 Ind App 47: AIR 1936 49 (Privy Council) the provision of the Act, namely, S. 26(N) of the Bengal Tenancy Act was held to be retrospective since the amending Act provided by the provision of S. 26 (N) that every person claiming interest as landlord in any holding or portion thereof would bo deemed to have given his consent retrospectively to every transfer etc. to vali- _ date the same even though no such consent had been actually given. The intention of the legislature was inferred from these provisions. Once a Legislation is held to be retrospective and if there is no saving clause to restrict its operation to the pending cases, the view of their Lordships was that the amending Act would affect the pending proceedings. Hero as I have already indicated, there is nothing to show that the Act was retrospective, nor was there any intention expressed either in clear: words or by implicatioh that they would apply to pending suits or proceedings. This Privy Council decision therefore is not of much assistance in the present! set of facts. It is a general rule that a statute which takes away or affects a right of action is presumed not to apply to pending actions. Here to give effect to the amending Act would be to abrogate the right of the landlord to evict the tenant, though the amending Act itself does not provida'' that the rights of the landlord should so suffer. In, the Allahabad case on which the Appellant relied, (S) Jagannath Vs. Board of Revenue, U.P., Allahabad and Others, the laV provided that the tenant could continue in possession notwithstanding what happened, after the Zamindary Abolition. Act came into force and as such it was held that the U. P. Zamindary . Abolition and Land Reforms Act had application to pending cases. This case as well as the case reported in Habiba Bibi and Others Vs. Ram Ranjan Mullick and Others, have no application to the present set of circumstances. The latter case related to the scope of Section 10-C of the Bengal Court of Wards Act 1879 by the amending Act 6 of 1936 and in their Lordships'' opinion the intention of the legislature was clear on the point that Act 6 of 1936 should apply to pending execution proceedings as the wordings indicated. The decision in S. A. No. 50 of 1954: ( AIR 1957 Gau 22) (K), of this Court also cannot render us much assistance since the Assam Urban Areas Non-agricultural Tenancy Act, 1955 is differently worded and the learned Judges by construing certain provisions of that Act had come to the view that the Act had retrospective operation, and we cannot say the same of the Assam (Temporary-Settled Districts) Tenancy (Amendment) Act, 1953 in the absence of any clear or implied intendment.

In my view, therefore, the amending Act is not retrospective in operation and has no application to the present appeal, and the order passed by the lower appellate Court should bo affirmed.

PER CURIAM: In view of the majority decision, the appeal is dismissed and the decree under appeal is aflirmcd. There will be no order; for costs of this appeal. The Defendant is given llirce months'' time lo vacate the premises failing which the Plaintiffs will be entitled to take out execution of the decree.