S. B. Trading Co. Ltd. vs Satyendra Ch. Sen and Another

Banerjee, J.—In this suit which is an ejectment suit and was filed on June 23, 1949, an application was made on May 18, 1950, by the Defendants for relief u/s 18 5) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950), which came into force on March 31, 1950, as appears from a notification published in the Calcutta Gazette, dated March 29, 1950. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, was in force at all material dates and at the date of the institution of the suit and was repealed by the Act of 1950 when it came into force (see Section 45 of the Act of 1950).

The Plaintiff in the plaint alleges that the Defendants failed to pay or deposit in accordance with the provisions of the Act of 1948 rent payable by them in respect of the premises in question which had accrued due after the commencement of the Act of 1948 and as such their interest in the premises ipso facto determined and they shall no longer be deemed to be tenants. According to the Plaintiff the Defendants being no longer tenants are liable to be ejected from the premises.

The Defendants filed their written statement denying any failure resulting in the determination of their interest in the premises. But ultimately they abandoned this defence and the only relief they claim is u/s 18 (5) of the Act of 1950. The Defendants have expressly agreed that if their claim under this section fails they have no other defence to the suit and the judgment must go against them as a matter of course.

The suit came up for hearing before P. B. Mukharji, J., who having regard to his views expressed on Section 18 (5) in another case, held that the Defendants were not tenants within the meaning of Section 18(5) and as such were not entitled to any benefit under that section. Another learned Judge, however, of this Court in construing Section 18 (1) of the Act of 1950 has taken a view which is in direct conflict with the view taken by P. B. Mukharji, J. There being this conflict of opinion of this Court on a matter which is of great importance to the public, P. B. Mukharji, J., reported to that effect to the Chief Justice under Ch. 5, Rule 3 of our Original Side Rules.

The Chief Justice has accordingly constituted this Bench to hear and dispose of the suit.

The only question that arises in the suit is whether the Defendants come within the meaning of "tenant" in Section 18 (5) of the Act. That section provides: -

"If at the date when this Act comes into force, a suit for ejectment of a tenant is pending whether in trial Court or in Court of first or second appeal in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the Court shall exercise the powers of granting relief against ejectment given by Section 14 of this Act following the provisions and procedure of that section, as far as may be necessary, and for the said purpose shall make such order for amendment of pleadings, production of evidence, remand, payment of costs as may be necessary or just."

It is clear that the Defendants in order to be entitled to the benefit of the section must be tenants against whom at the date when the Act of 1950 came into force, a suit for ejectment was pending in which no decree for ejectment would be passed except on the ground of default in payment of arrears of rent under the provisions of the Act of 1948.

In this case it is not disputed that sometime before the institution of the suit failure as contemplated in Section 12 (3) of the Act of 1948 occurred. Therefore, there cannot be any doubt that by the operation of that section the Defendants'' interest in the premises in question ahs ceased and they can no longer be deemed to be tenants within the meaning of the Act of 1948.

There is no doubt in my mind that Section 12 (3) of the Act of 1948 applies to the case of statutory tenant just as it applies to the case of a contractual tenant.

A statutory tenancy arises when a tenant under a lease or other contractual tenancy of premises within the Acts holds over, that is, remains in possession without the landlord''s assent after the expiration of the contractual tenancy. The statutory tenant continues in possession not by virtue of any consent of or assent given by the landlord, but upon his right to retain possession given to him by the Act. Statutory tenancy begins after the termination of the contractual tenancy.

In this case, on the Defendants'' failure to pay or deposit rent in terms of Section 12 (3) of the Act of 1948, their interest in the premises came to an end and they are not to be deemed as tenants; in other words, their position is that of a trespasser and it remained as such at the date of the institution of the suit and at the date when the Act of 1950 came into force; for nothing happened in the meantime which made them tenants. Therefore, the Defendants cannot possibly be regarded as tenants against whom a suit for ejectment of the type referred to in Section 18 (5) was pending at the date when the Act of 1950 came into force. The relevant words in Section 18 (5) are identically the same as in sub-section (1). Theya re these: "on the ground of default in payment of arrears of rent . . ."

In a judgment delivered by my Lord, the Chief Justice, yesterday in Appeal No. 78 of 1950 [Sm. Nandarani Dassi v. Satya Narain Harit, 54 CWN 735 (1950)] these words have been fully explained, and it would profit nothing to attempt to add anything to the observations made by my Lord. On the reasons given by my Lord, in that appeal I am bound to hold that the Defendants are not entitled to the benefit of the section.

Counsel for the Defendants said that though at the date when the Act came into force the Defendants were trespassers, they became tenants as soon as the Act of 1950 came into force and, therefore, they are entitled to the benefit of Section 18 (5). I am unable to follow this argument. The interest of the Defendants in the premises had ceased long before the Act of 1950 came into force. I cannot see how they became tenants. It is quite true that the legislature had power to give retrospective operation to the Act of 1950 and it was quite within its legislative competent to frame the Act of 1950 in such a way that it could revive a right that was lost under the Act of 1948. But the question is has the legislature done it? In a Full Bench case of the Allahabad High Court, Ram Karan Singh and Another Vs. Ram Das Singh and Others , this aspect of the matter has been considered. I quote here a portion of the observations made by Mukerji, J., who was one of the members of the Full Bench (p. 643):

"In Craies'' Statute Law (Edn. 3 by Pease and Gorman) there appears the following opinion at p. 326:

''If the enactment is expressed in language which is clearly capable of either interpretation, it ought to be construed as prospective only.''

Again the book quotes Lord O''Hagan as having pronounced the following: -

"Unless there is some declared intention of the legislature clear and unequivocal or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and not retrospective.''

At p. 330 appear the following observations:

''It is a well recognised rule that statutes should be interpreted, if possible, so as to respect vested rights.''

Again :

''In the absence of anything in an Act to show that it is to have retrospective effect, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time that Act is passed.''

I may lay emphasis on the last quotation. Again at p. 331, we have the following:

''It seems a strong thing to hold that the legislature could have meant that a party who, under a contract made prior to the Act had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation.''

I have quoted enough from the book to show that where an existing right is likely to be taken away by the operation of an Act, unless there is something which compels a Court to give the Act a retrospective effect, it will not give the Act that effect."

The landlord under the Act of 1948 got the legal right to eject the tenants.

In this Act I do not find any express words which have been taken away that right. Neither is there any word in the Act which by necessary implication takes away the right Counsel for the Defendants relied on the definition of "tenant" in the Act of 1950 and said that the intention of the Act of 1950 was to give that retrospective effect. The definition is as follows: -

''tenant'' means any person by whom rent is, or but for a special contract would be, payable for any premises, and includes any person who is liable to be sued by the landlord for rent.

It is clear from this definition as to who are tenants under this Act. In this case the Defendants are not persons by whom rent is due, or but for a special contract would be, payable for the premises and it is clear also that they cannot be included in the category of persons who are liable to be sued by the landlord for rent in the sense in which the word "rent" is ordinarily understood. But then Counsel contended that "rent" here means and includes mesne profits, and, therefore, the Defendants came within the definition of "tenant". It is not necessary for us to decide in this case as to whether "rent" has that meaning; but it is clear that the Defendants are not tenants of the type referred to in Section 18 (5) of the Act, and for the reasons I refer to the decision in Nandarani Dassi''s case.

The next point argued by Counsel for the Defendants was as to the effect of the Act of 1950 repealing the Act of 1948. This question recently came up for consideration before the Court of Appeal in England, R. v. Wicks, 2 All ER 529 (1946). In this case the effect of an expired Act was considered and the distinction between repeal and expired statutes pointed out. At page 531, Lord Goddard, C.J., said:

"Considering the position, first, at common law as to the expiration or repeal of a statute, in our opinion, the position may be taken as now settled. The leading authority is Stevenson v. Oliver, 8 M&W 284 at p. 241. In that case, Parke, B., said:

"There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.''

That passage was considered and approved by Roche, J., in Spencer v. Hooton, (1920) 37 TL 280 and, in our opinion, is a correct statement of the law. It is worth observing that in Stevenson v. Oliver there are dicta both by the Chief Baron and by Alderson, B., which go further, and appear to say that in any case where a man offends against a temporary statute he can be convicted and punished after its expiration, but, in our opinion, this is contrary to the older cases which were not cited to the Judges, in particular, Miller''s case, WMBL 451 and R. v. McKenzie, Russ & By. 481. At the present day it is most unlikely that any question of this nature will arise where an Act has been repealed because the position is sufficiently dealt with by the Interpretation Act, 1889, Section 38 (2) (c) and (d), which provides that the repeal of an Act passed after the commencement of that Act shall not, unless the contrary intention appears, affect any liability incurred or affect any penalty or punishment incurred in respect of any offence committed against any enactment so repealed, and the section goes on to provide that any legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This section, however, has no application to statutes which have expired, and the question must, therefore, remain one of construction whether the provisions as to expiry are such as to make it impossible for a prosecution or other proceeding to be either instituted or brought to conviction, or whether, on a true construction of the Act, Parliament has provided that legal proceedings, whether of a civil or criminal character, can be prosecuted in relation to matters connected with the Act after it has expired."

The principle as enunciated by the Lord Chief Justice of England is well established. On this principle it is clear that the repeal of the Act of 1948 brings into play the operation of Section 8 of our Interpretation Act which is the Bengal General Clauses Act, 1899. Section 8 of this Act in so far as it is material is in these words:

"Where this Act, or any Bengal Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -

(a) * * * * *

(b) * * * * *

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) * * * * *

(e) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed."

The Bengal General Clauses Act as appears from Section 3 applies to all Acts made after the commencement of the General Clauses Act, unless there is anything repugnant in the subject or context. The Acts of 1948 and 1950 are both Bengal Acts made after the commencement of that Act. Therefore, in my view, the repeal of the Act of 1948, does not affect any right or liability which accrued under the repealed. Act.

Under the Act of 1948 as soon as there was determination of the Defendants'' interest in the premises, a right accrued to the landlord to eject the tenants and that right has not been taken away by the Act of 1950. I may refer here to a judgment of McCardie, J., in Henshall v. Porter, (1928) 2 KB 193. By Section 1 of the Gaming Act, 1922, no action u/s 2 of the Gaming Act, 1835, to recover back money paid in respect of gaming debts ''shall be entertained in any Court.'' The Plaintiff, after the Act of 1922 came into force, issued a writ in respect of causes of action which had arisen before that Act came into force. It was held in that case that the Plaintiff''s cause of action, vested in him before the Act of 1922 came into force, was not divested on the Act coming into force, and that he was entitled to recover. Of course, as I have said before, if a contrary intention clearly appears in the repealing Act the result would be different.

The judgment of McCardie, J., is a very strong case on the point under consideration. There his Lordships held that if under the repealed Act any cause of action had accrued before the repeal, the repeal would not prevent the bringing of an action on that cause of action. In the case before us the suit was instituted on a cause of action under the repealed Act before its repeal. Therefore, the observations of that learned Judge apply with greater force to the case under consideration. The case of Henshall v. Porter has been referred to in the Allahabad case I have cited above and followed.

Counsel for the Defendants then referred to Section 12 (2) of the Act of 1950 saying that the contrary intention appears from that section. The section runs as follows: -

Nothing in this section or in this Act shall be deemed to entitle the landlord to get a decree for the recovery of possession of any premises against the tenant, where any contract or law debars such relief, or except in accordance with the provisions of law for getting such relief; and such contract shall not be deemed to be inoperative by reason of interference by this Act with other terms of the lease.

We are unable to take the view that the words in this section or any other section in the Act of 1950 expressly or by necessary intendment take away the accrued right of the landlord. But then Counsel for the Defendants suggested that the words in Section 8 of the General Clauses Act "as if the repealing Act had not been passed" make a difference. We do not think so. In Lewis v. Hughes, (1916) IKB 831, it has been held that the expression that the repealed Act "shall cease to have effect" does not show a contrary intention. Counsel for the Defendants in the alternative said that the Act of 1948 was to expire on March 31, 1950, and as such should be deemed to have expired on that date by virtue of the words "as if the repealing Act had not been passed" and this case should be decided on the basis of an expired statute. The answer to this argument is two-fold. First, the Act of 1950 (Section 45) expressly says that the Act of 1948 is repealed; and secondly, it is clear from the Act of 1948 that the intention of the legislature was not that it should expire. Section 1, sub-section (4) of the 1948 Act says : "It" (referring to the Act of 1948) "shall, in the first instance, remain in force up to the 31st day of March, 1950, but if, and so often as, a resolution approving its continuance for any further period is passed by the Provincial Legislature, it shall continue in force for such further period, so that it shall not, in any case, continue in force after the 31st day of March , 1953."

There is a decision of a Bench of this Court presided over by my Lord the Chief Justice, in which it has been held that an Act of this type cannot be extended by a resolution. Be it so. But there are legitimate ways of continuing an Act, if the legislature is minded to do so. Having regard to the present situation in Bengal it is impossible for us to hold that the legislature would have allowed the Act of 1948 to expire. The Act of 1950 has been passed to confer larger rights on tenants. How could it possibly be then held that the Act of 1948 would have been allowed to expire? However, in fact it did not expire. It was repealed. Counsel''s argument, therefore, on the footing that the law should be applied as if the Act of 1948 had expired is without any substance. We are of the view that the repeal of the Act of 1948 has not the effect of reviving any right of the tenant that is dead, or divesting the landlord of any right that accrued to him under the repealed Act of 1948. I would quote an observation of Collins, L.J. from Taylor v. Mayor, Aldermen and Burgesses of New Windsor, (1898) IQB 186 p. 284-5. In that case one of the questions for determination was whether an Act of 1734, extinguishing a franchise then existing by prescription, was absolutely or only temporarily repealed by a temporary Act of 1819 which after divers continuance was allowed to expire in 1867, Collins, L.J., at pp. 104-5 said:

That an Act which, while substituting temporary provisions only, purports to repeal a prior permanent one will not be read as merely suspending its operation during the currency of the repealing statute unless the intention of the Legislature to that effect be expressed was decided by Lord Ellenborough in Warren v. Windle, 3 East, 205.

So far as the effect of repeal is concerned, there is no difference between a permanent and a temporary Act. The Bengal General Clauses Act certainly does not make any difference. No authority has been cited to us to show that there is such difference. On the contrary it has been held in Gwynne v. Drewitt, (1894) 2 Ch. 616 that the reverse is the case. In that case what happened is this. A turnpike Act, passed in 1819, and which was to continue in operation for twenty-one years, recited that a public bridleway across a farm would, if not stopped up, be the means of enabling persons to evade the tolls granted by the Act, and enacted that the bridleway should be vested in the owner of the farm in exchange for land of his taken for the purposes of the Act, and that, after the turnpike road had been opened for traffic, the bridleway should be stopped up, and it should be unlawful for the public to use it. Subsequent statute continued the operation of the Act till 1856, when it was repealed. It was held that the repeal did not revive the public right to use the bridleway. Romer, J., observed at page 620:

Now, when the Act of 1856 was passed, and the Act of 1819 repealed, it was not, in my judgment, at all the intention of the Legislature, or the effect of the Act of 1856, to undo that which had been already done during the continuance of the prior Act, or to revive these ways, which has been once for all discontinued and put an end to, as public ways, by Section 51.

It is unnecessary to state that a temporary Act may contain provisions creating temporary rights or permanent rights as will be seen from the words of Romer, J., I have italicised.

Other cases were cited at the Bar before us but I think, it is unnecessary to discuss them, having regard to the authorities I have cited.

On these considerations I am of opinion that the Defendants are not tenants within the meaning of Section 18 (5) and they are not entitled to the benefits of that section. The application u/s 18 (5) is dismissed with costs.

There being no other defence, the suit must be decreed in favour of the Plaintiff with costs including costs before P. B. Mukharji, J. Certified for two Counsel both here and before P. B. Mukharji, J.

Harries, C.J. - I agree.

Solicotors : N. C. Bural & Pyne for the Plaintiff

B. C. Chakravarty for the Defendant.