MAHADEOLAL KANODIA Vs. ADMINISTRATOR GENERAL OF WEST BENGAL

JUDGEMENT

(1.) In Calcutta and its suburb Howrah there have existed for many years precarious tenancies popularly known as Thika tenancies, the characteristic feature of which is that the tenant takes lease of the land only and erects structures thereon at his own expense; where there is already a structure on the land the tenant acquires these structures by purchase or gift but takes the land on which the structure stood in tenancy. With the influx of population into these areas that followed the partition of India the position of these Thika tenants became even more insecure than before. With the sharply rising demand for accommodation the landlords found it possible and profitable to put pressure on these Thika tenants to increase their rents or to evict them so that other tenants who would give more rents and high premiums might be brought in. With a view to give some protection to these Thika tenants against eviction and in certain other matters, the West Bengal Legislature enacted in 1949 an Act called the Calcutta Thika Tenancy Act (hereinafter referred to as "the Act"). Some features of the protection afforded by this legislation which deserve mention are that ejectment could be had only on one or more of the six grounds specified in S.3 of the Act; special provisions as regards notice for ejectment were made in S. 4; in the same section provisions was also made about payment of compensation as a necessary pre-requisite for ejectment in certain case. Section 6 provides that no orders for ejectment on the grounds of arrears of rent shall be executed if the amount of arrears together with costs of proceedings and damages that may be allowed were deposited within 30 days from the date of the order. Not content with giving such protection only in suits and proceedings for eviction that might be instituted by the landlord in future the Legislature in the 29th section of this Act provided that even in suits and proceedings which had already been instituted and were pending for disposal on the date when the new law came into force, this new law will be applicable, except the provisions as regards notice in S. 4. In the 28th section of the Act the Legislature went further and provided that even where the decree or order for recovery of possession had been obtained by the landlord against a Thika tenant but possession had not been actually recovered, courts will have the power to re-open the matter and if the decree or order is not in conformity with the beneficent provisions of the Act either to rescind the decree or order altogether or to vary it to bring it into such conformity. Section 28 with which we are specially concerned in this appeal is in these words.

(2.) The new law however failed to achieve its objects for some years as the courts interpreted the definition of Thika tenant in the Act in such a manner that speaking generally no tenant was able to establish its requirement. To remedy this the Governor of West Bengal enacted on October 21, 1952, an Ordinance by which the definition of Thika tenant was revised and a few other amendments of the Act were made. The special protection given under Ss. 28 and 29 of the Act to tenants against whom decrees or orders had been obtained or against whom cases were pending was however kept intact. The Ordinance by its S. 5 extended such special protection also to tenants whose cases were pending before a court on the date of the commencement of the Ordinance and those against whom decrees or orders had been made after the date of the Act and before the date of the Ordinance but possession and not been obtained. In 1953 the West Bengal Legislature enacted the Calcutta Thika Tenancy Amendment Act, 1953, revising permanently the definition of Thika tenant and making some other amendments. One of the amendments was that Ss. 28 and 29 of the original Act were omitted. The principal question before us in this appeal is whether the provisions of S. 28 could be applied by a court in a case where an application had been made by a tenant for relief under that section and such application was pending for disposal on the date the omission became effective, by reason of the Amendment Act coming into force.

(3.) The decree for possession with which we are concerned in this case was made as far back as August 8, 1941, by a Munsif in Howrah. The tenant's appeal was dismissed on April 9, 1943. On February 28, 1949, on which date the Calcutta Thika Tenancy Act of 1949 came into force, proceedings for the execution of the decree of ejectment were pending in the Munsif's court. On March 19, 1952, when these proceedings were still pending the tenant made an application to the Court which had passed the decree praying that the decree may be rescinded or varied in accordance with the provisions of S. 28 of the Act. This application came up for hearing before the Munsif on July 7, 1953. In the meantime the Amendment Act of 1953 had come into force and the omission of S. 28 of the Act had become effective. The learned Munsif held that S. 28 of the Act being no longer in force he had no power to give the tenant any relief in accordance with the provisions thereof. In that view he dismissed the application. The tenant's appeal to the District Judge, Howrah, having been rejected, he preferred a second appeal to the High Court.