MD YUSUF Vs. GOLAM JILANI

JUDGEMENT

(1.) The maintainability of an application under section 17A of the West Bengal Premises Tenancy Act, 1956, is in dispute between the parties in this Rule. The decision of the dispute depends upon the answers to two questions that arise in this connection; one of them concerns the date of commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968 which introduces the present section 17A in the West Bengal Premises Tenancy Act, 1956, and the other relates to the scope of section 6 of the aforesaid Amendment Act of 1968. Hereinafter I shall refer to the parent Act of 1956 as the Act and the Act of 1968 as the Amendment Act,

(2.) Before I proceed to state the facts giving rise to the dispute, it will be necessary for a correct appreciation of the questions that arise to trace the legislative history behind the enactment of the said section 17A and refer to the terms of the other relevant provisions. On August 26, 1967 an ordinance was promulgated called the West Bengal Premises (Amendment) Ordinance, 1967, West Bengal Ordinance No. VI of 1967. By paragraph 4 of this Ordinance (hereinafter referred to as the first Ordinance) a new section, namely, section 17B, was inserted in the Act which fcr the first time entitled the court on certain conditions being satisfied to set aside an order passed under section 17 (3) of the Act striking out the defence against delivery of possession. Section 17B permitted a tenant, if the suit for eviction was pending at the commencement of the said Ordinance and his defence against delivery of possession had been struck out before such date, to apply within 30 days from the commencement of the Ordinance to set aside the order. On receipt of such application the court was to determine the amount that the tenant was liable to deposit or pay under sub-section (1) or (2) of section 17 of the Act and order the tenant to deposit the amount in court within 30 days from the date of the order. On the tenant depositing the amount within the time fixed the court was to allow the application and set aside the order striking out the defence. This Ordinance was repealed by another Ordinance, West Bengal Premises Tenancy (Amendment) Second Ordinance, 1968 West Bengal Ordinance II of 1988, (hereinafter referred to as the second Ordinance) which was published in the Calcutta Gazette Extra-Ordinary of January 8, 1968. Paragraph 7 of this Ordinance repealed the first Ordinance. Parapraph 4 of the second Ordinance also introduced a new section 17B in the Act. Section 17B as introduced by second Ordinance is exactly similar in terms to the section 17B inserted by the first Ordinance; the conditions of aplicability of the new section 17B are also the same, namely, the suit must be pending at the date of commencement of the first Ordinance and the defence against delivery of possession struck out before such date. Paragraph 7 of the second Ordinance while repealing the earlier Ordinance also provided that in spite of such repeal any order made, thing done, action taken or obligation or liability incurred under the first Ordinance would be deemed to have been validly made, done, taken or incurred under the second Ordinance. The second Ordinance in its turn was repealed by the amendment Act, President's Act 4 of 1968, which was published in the Calcutta Gazette Extra-Ordinary of March 26, 1968. Section 1(2) of the amendment Act lays down that it shall be deemed to have come into force on August 26, 1967. A provision almost similar to section 17B introduced by the Ordinances was inserted in the Act by the Amendment Act, and that is section 17A, which is in the following terms:- "17A. Power of Court to set aside order striking out defence against delivery of possession.- (1) Where in a suit pending at the date of commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968 the defence against delivery of possession was struck out by an order made under subsection (3) of section 17 before such date, the tenant may, within a period of thirty days from such date make an application to the court which made such order to set aside such order. (2) On receipt of an application under sub-section (1) the court shall determine, after giving credit for every deposit or payment made by the tenant in accordance with the provisions of sub-section (1) or sub-section (2) of section 17, the total amount whch the tenant remained liable to deposit or pay in accordance with such provisions up to the end of the month previous to that in which the order under this sub-section is to be made and direct the tenant, by order, to deposit such amount in the court within a period of thirty days from the date of the order. (3) If the tenant deposits such amount within such time, the court shall allow the application under sub-section (1) and set aside the order made under sub-section (3) of section 17 striking out the defence against delivery of possession, and permit the tenant to defend the claim for delivery of possession. (4) If the tenant fails to deposit such amount within such time, his application under sub-section (1) shall be dismissed with such costs as the court may award to the landlord."

(3.) The only difference between the said section 17B and section 17A appears to lie in the dates which determine the applicability of the two sections. In order to attract section 17A, the suit must be pending at the date of commencement of the Amendment Act and the defence against delivery of possession struck out before such date, not the date of commencement of the first Ordinance. In other respects the two sections are identical.