Juthika Roy vs Shanti Nath Pandit

Chatterjee, J.—This second appeal is on behalf of the Plaintiff who claims to have acquired the status of a Bharatiya within the- meaning of Calcutta Thika Tenancy Act and for an injunction restraining the Respondents, the superior landlords, from ejecting her in execution of an order obtained by her under the Calcutta Thika Tenancy Act II of 1949. u/s 5 of the Thika Tenancy Act the landlords instituted a proceedings against the thika tenant and got an order for ejectment. The result of the order was that the structure vested in the landlords even though it was erected by the thika tenant. u/s 10(2) of that Act any person, who is inducted into the land by the thika tenant, would become a Bharatiya and would have the status of a monthly tenant under the West Bengal Premises Rent Control; (Temporary Provisions) Act of 1948. The Plaintiff claims that advantage and that is why the Plaintiff instituted the present suit. The defence of the landlords was that, as the Plaintiff was not in actual possession but in constructive possession, by letting it out to some other Bharatiya she is not entitled to be protected. The trial court dismissed that suit and held that the Plaintiff is not entitled to a declaration because she was not in actual possession but was in constructive possession. An appeal to the Appeal Court has also been dismissed and the present second appeal has been filed: against that decree. Two points have been urged before me. Section 10(2) of the Calcutta, Thika Tenancy Act is as follows:

Notwithstanding anything to the contrary contained in any contract on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding....any structure standing upon such land and existing on the date of such determination shall vest in the landlord.

It is submitted that this provision that structure raised by the thika tenant vests in the landlord is contradictory to the provision of Section 108(h) of the Transfer of Property Act which provides as follows:

The lessee may-even after the determination of the lease remove all'' things which he has attached to the earth.

It is therefore submitted that Section 108(h) specifically says that the structure could be removed by the thika tenant; whereas Section 10(2) of the Thika, Tenancy Act says that it would vest in the landlord. It is further submitted that there is a provision that Section 10(2) would apply notwithstanding anything contained in any contract but it has not been stated that it would apply notwithstanding anything contained in any. other law for the time being in force. Hence, it is submitted that Section 108(h) holds the field and therefore the provision of Section 10(7) is void.

It should be mentioned that the Calcutta Thika Tenancy Act of 1949 is an Act which got the assent of the Governor General and is a valid piece of legislation with regard to the field occupied by the Transfer of Property Act. Hence, the provision in the Transfer of Property Act is a general provision and the provision in the Calcutta Thika Tenancy Act is a special provision. I should say that this special provision in the Thika Tenancy Act excludes the genera) provision under the Transfer of Property Act. I may refer to a decision of the Supreme Court in the case of Kidar Lall Seal and Another Vs. Hari Lall Seal, , where the Supreme Court held that when there is a general law and a special law dealing with a particular matter the special excludes the general. Hence, the Thika Tenancy Act excludes the Transfer of Property Act. This is so, u/s 107(2) of the Government of India Act.

I may also say that this may be considered from another view.

It is quite clear that there is a contradiction between the two statutes. Secondly, if the provisions of a later Act are shown inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later (Refer to Maxwell''s Interpretation of Statutes, 9th Ed. pp. 1(53-166). I must therefore hold that the structures vested in the landlords.

The next question is whether the fact that the Plaintiff Bharatiya is not in actual possession would make any difference in interpretation of Section 10(2) of the Calcutta Thika Tenancy Act. The word "Bharatiya" has been defined as follows:

Bharatiya means any person by whom or on whoso account rent is payable for any structure or part of a structure erected by a thika tenant in his holding.

The definition therefore would include a Bharatiya not in actual possession but in constructive possession as well. Then we shall refer to Section 10(2). That subjection is "when any structure "standing on any holding of a thika. tenant vests in the landlord "under Sub-section (1) any Bharatiya, in possession of "such structure or any part thereof shall without any application, "being made, be entitled to continue in such possession and shall "be deemed to be a tenant within the meaning of the West "Bengal Premises Rent Control (Temporary Provisions) Act, "1948, West Ben. Act XXXVIII of 1948.

The question is whether there is anything in Section 10(2) which would exclude a Bharatiya not in actual possession but may be, in constructive possession. The view that the courts below have taken is that the policy of the Legislature being to protect only persons, who are in actual possession, persons not in actual possession will not be protected.

Reference'' has been made to the proviso added in Clause 5 to Section 3 where it is stated that a thika tenant, who has sublet a portion of the house, may be allowed to continue with regard to the portion which he is in actual occupation and would be ejected from the rest. It has been found that because of such intention of the Legislature it should'' also be assumed that the word "possession" in Section 10(2) refers to actual possession.

There is a well known rule of construction, that it is the duty of the court not to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an enactment. (Refer to The State of Bombay Vs. Virkumar Gulabchand Shah, ). What is urged is that the word "khas" or "actual" is not to be found in the enactment to qualify the word "possession". Therefore it is not the duty of the Court to fill in that gap or fill that omission and introduce the word "khas" or "actual". This is certainly one rule of interpretation of statute; but there is another rule of interpretation of statute which is equally settled and that is "where the language of a statute in its ordinary "meaning and grammatical construction leads to manifest contradiction of the apparent purpose of the enactment or to some: "inconvenience or absurdity, hardship or injustice, presumably "not intended, a construction may be put upon it which modifies "the meaning of the words and even the structure of the "sentence" -(Tirath Singh v. Baehittar Singh (1955) 2 S.C.R. 7). This rule therefore says that if the grammatical construction and ordinary meaning leads to something which manifestly contradict the purpose of the enactment, then the enactment may be construed in such a manner as to modify the meaning and it goes further and says "even the structure of the sentence". It is urged that the apparent purpose of the Act is to protect persons, who are in actual possession, and to give better rights to persons, who are m actual possession, but not to confer rights upon, persons who are not in actual possession. Section 10(2) itself states that the rights'' of the Bharatiya would-be the same as the rights of the tenants under the West Bengal Premises Tenancy Act. We, therefore, may refer to that Act for understanding who protected under the provisions of that Act. The question is whether under the West Bengal Premises Tenancy Act of 1948 a subtenant who is not in actual possession, will be allowed to continue, in possession after the tenant is ejected. We may refer to Section 11(3) of the Act XXXVIII of 1948 which is as follows:

Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained by the landlord be deemed to be a tenant in respect of such premises or part, as the case may bo, holding directly under the landlord.... on the terms and conditions.

This section as well does not specifically provide that a subtenant, who is not in actual possession, will not be protected.

Therefore, we do not get any sure guide about this matter from the West Bengal Premises Rent Control (Temporary Provisions) Act (West Ben. XXXVIII of 1948.)

The only provision relating to this purpose, viz., of doing away with the rent receiving interest is to be found in proviso to Section 3 of the Thika Tenancy Act. The statement of objects and reasons of a statute may be referred to for ascertaining the conditions, prevailing at the time which actuated the sponsor of the Bill; to introduce the same and the extent and urgency of the evil which is sought to remedy. This has been held by the Supreme Court in M.K. Ranganathan and Another Vs. Government of Madras and Others, . But in the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, the Supreme Court held that "the statement of objects and reasons appended to the Bill "are not admissible as aids to the construction of the statute".

Taking the. two decisions together the objects and reasons can be considered just to ascertain the: condition prevailing at the time and the extent and urgency of the evil which is sought to remedy. The objects and reasons would show that the condition of the thika, tenants was precarious and the landlords were taking complete advantage of that position because of scarcity of accommodation. In order to do away with this evil the West Bengal Acts of 1949 came into force. The West Bengal Thika Tenancy Act was also there. It was only much later thereafter, i.e., after the constitution that the Estates Acquisition Act came into force and the dominant purpose of the Estates Acquisition Act is certainly to take away all rent receiving interest. The purpose of the Thika -Tenancy Act as well as the West Bengal Premises Tenancy Act is to allow, persons, who are in possession, to continue in possession. That purpose is not in any way defeated by including persons in constructive possession to have the protection of the Act. What we find further in both the legislations is that, if a person was in possession of a major portion of a premises by sub-letting, he would be liable to ejectment but there is nothing in the Act which says that his rights would cease. If a sub-tenant under the West Bengal Premises Rent Control (Temporary Provisions) Act is not in actual possession, it is not stated in the Act of 1948 that he would not become a tenant. It may be that once a Bharatiya who is not in actual possession, becomes a tenant within the meaning of the Rent Control Act of 1948, may be liable to ejectment, for Subletting but that does not mean that the protection would not accrue to him at the first instance. I cannot say that the purpose of the Thika Tenancy Act was to do away with the rent receiving interest and therefore not to recognise a Bharatiya, who is in constructive possession. The manifest intention of the legislature was certainly to protect persons, who were in possession, but not unconditionally nor was there any manifest intention of the legist lature to avoid all rent receiving interest. I cannot therefore say that there is any manifest contradiction. In fact, if the position was that the rights of a tenant, not in actual possession, would automatically cease as under the Estates Acquisition Act, the position would be completely different. Here, the Act recognises him as a tenant and then says, he would be ejected from the portion in. which he is not in possession. Therefore, I cannot say that there is contradiction in the apparent purpose of the Act. I may further say that the superior landlord, if he so likes, has the remedy under the "West Bengal Premises Rent Control. Act to eject him on the ground of sub-lease of a major portion. (But that is not the matter which I am to consider. As I have already held that the later rule of construction, regarding manifest contradiction of the apparent purpose of the Act has no application, I cannot but hold that it is not for the Court to supply the missing gap, if there was any, viz., to introduce the word "actual" or "khas" before the word "possession" in Section 10(2) of the Act or in the definition of the word "Bharatiya".

''Mr. Bhattacharjee says that by a Civil Rule he has been injuncted from taking possession of the entire property. The order made by this Court is discharged by the decision in. the appeal. Therefore, the Plaintiff''s prayer for injunction is granted with respect to the portion which was included in. the plaint and to no more.

The result is that the appeal is allowed and the suit decreed with costs of all the courts.

Leave to appeal under Clause 15 of the Letters Patent is granted as prayed for.