NILMANI KAR Vs. RAJA SATI PRASAD GARGA BAHADUR

JUDGEMENT

(1.) This Reference has been made in connection with an appeal by the tenants, defendants, in a proceeding under Section 105 of the Bengal Tenancy Act for settlement of fair and equitable rent. One of the questions in controversy was, whether the defendants paid a consolidated rent for the tenancy, or whether they were liable to pay additional rent for increment of area as disclosed by recent survey over the area shown in the rent-roll of the landlords. The Revenue Officer and the Special Judge answered this question in favour of the landlords. On second appeal to this Court, the decision of the Special Judge was assailed on the ground that his conclusion was based upon an erroneous construction of Sub-section (6) of Section 52 of the Bengal Tenancy Act, That sub-section is in the following terms: When in a suit under this section, the landlord or tenant proves that, at the time the measurement on which the claim is based, was made, there existed, in respect of the estate or permanent tenure or part thereof in which the tenure or holding is situate, a practice of settlement being made after measurement of the land assessed with rent, it may be presumed that the area of the tenure or holding specified in any patta or kabuliyat, or (where there is an entry of area in a counterfoil receipt corresponding to the entry in the rent roll) in any rent roll relating to it, has been entered in such patta, kabuliyat or rent roll after measurement.

(2.) The appellants argued before the Division Bench that the expression at the time the measurement on which the claim is based was made in Section 52(6), signified "at the time when the tenancy in question originated," and, in support of this position, relied upon the decision in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, where it was ruled that the words mentioned did not refer to the measurement upon which the excess area had been found out before the institution of the suit. The respondents submitted, on the other hand, that this was not the correct inter, predation of the sub section which, according to them, referred to the measurement by which the augmented area, for which additional rent was claimed, had been ascertained. The Division Bench was unable to accept the interpretation placed upon Section 52(6) in the case of Timed Ali v. Habibullah Khaseh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, and accordingly referred the following question to a Full Bench for decision: Does the expression at the time the measurement on which the claim is based was made in Section 52(6) refer to the measurement upon which the excess area is found out before the institution of the suit, or does it, as ruled in Umed Ali v. Habibullah Khajeh Habibullah v. Umed Ali (1891) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676, refer to the measurement made at the time of the original settlement. 2. As the question arose in an appeal from Appellate Decree, the whole appeal has been, under the Rules of the Court, referred to the Full Bench for decision, The appellants have contended before this Bench, that to determine the meaning of the expression at the time the measurement on which the claim is based was made," we should first ascertain what difficulties had been created by the law as it stood before Section 52 was amended by the insertion of Sub-section (6) therein, and then interpret the phrase on the assumption that the Legislature intended to remedy what might have been considered as the undesirable result of the Section in its original form. The respondents have argued that this is not the correct method of interpretation of a statutory pro vision framed in unambiguous language, and they have placed reliance upon the following passage from the judgment of Lord Herschell in Bank of England v. Vagliano (1890) A.C. 107 at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 The proper course is, in the first instance, to examine the language of the Statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a Statute, intended to embody in a Code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a Statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am, of course, far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the Code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate Or, again, if in a Code of the Law of Negotiable Instruments, words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the Code. I give these as examples merely; they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the Statute, and that an appeal to earlier decisions can only be justified on some special ground.

(3.) Our attention has also been drawn to the judgment of the Judicial Committee in Norendra Nath Sarcar v. Kamalbasini Dasi 23 C. 563 (P.C.) : 23 I.A. 18 : 6 Sar. O.C.J. 667 : 6 M.L.J. 71 : 12 Ind. Dec. (N.S.) 374, where Lord Maanaghten quoted with approval the observations of the Lard Herschell we have just set out. But it has been maintained on behalf of the appellants that this principle of construction is restricted in its application only to codifying Statutes and does not extend to amending Statutes, There is clearly no solid foundation for this distinction. In the case of a codifying Statute, there may some times be a presumption that a particular provision was intended to be a statement of the existing law rather than a substituted enactment, and from this point of view an enquiry into the pre existing law may conceivably be useful where the language of the codifying Statute is open to doubt. In the case of an amending Statute, on the other hand, the manifest intention is to alter the preexisting law, and speculation that the law was intended to be altered only in a certain repack or to a particular extent, must usually rest on a slender basis; and we do not read the observations of Lard Halsbury on amending Statutes in Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs and Trade Marks (1898) A.C. 571 at P. 575 : 67 L.J.Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527, as justifying an historical enquiry into the previous state of the law even when the language used in the amending Statute is free from ambiguity and uncertainty. On the other hand, in a case of real doubt, the test formulated by Lord Coke would be appropriate; 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68 what was the law before the Act was passed : (1891) A.C. at P. 144 : 60 L.J.Q.B. 145 : 64 L.T. 353 : 39 W.R. 657 : 55 L.P. 676 what was the mischief or defeat for which the law had I not provided : 56 Ind. Cas. 38 : 47 C. 266 : 31 C.L.J. 68 what remedy Parliament has appointed; (1898) A.C. 571 at P. 575 : 67 L.J.Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527 and the reason of the remedy; Heydon s case (1581) 3 Coke 7a : 76 B.R. 637, Marshaltea s case (1613) 10 Coke 68b (73a) : 77 E.R. 1027. reference may also be made in this connection to the judgment of Saakey, J., in Attorney General v. Brown (1920) 1 K.B. 773 at p. 791 : 89 L.J.K.B. 1178 : 122 L.T. 553 : 84 J.P. 113 : 36 T.L.R. 165, where reliance is planed upon the observations in Starding v. Morgan (1558) 1 Plowden 199 : 75 13. R, 305, Heydon s case (1581) 3 Coke 7a : 76 B.R. 637 and Howkins v. Galhercole (1855) 6 D.M. & G. 1 : 24 L.J. Ch. 332 : 1 Jur. (N.S.) 481 : 3 W.B. 191 : 108 R.R. 1 : 3 Eq. Rep. 318 : 43 E.R. 1129. The true rule of interpretation of all Statutes is that stated by Burton, J., in Warburton v. Loveland (1828) 1 Had. & Broo. 623 at p. 648 and adopted by Lord Wensleydale in Grey v. Pearson (1857) 6 H.L.C. 61 at p. 106 : 26 L.J. Ch. 473 : 3 Jur. (N.S.) 823 : 5 W.R. 454 : 108 R.R. 19 : 10 E.R. 1216, namely, that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency. Once we depart from this canon of construction, which has been repeatedly affirmed, for instance, by Lord Wensleydale himself in Thellusson v. Rendlesham (1859) 7 H.L.C. 429 at p. 519 : 28 L.J. Ch. 948 : 5 Jur. (N.S. ) 1031 : 7 W.R. 563 : 115 R.R. 229 : 11 K.R. 172 by Lord Selborne and by Lord Blackburn in Caleionian Ray. Co. v. North British Ry. Co. (1881) 6 App. Cas. 114 at pp. 121. 131 : 29 W.R. 685. by Lord Fitzgerald in Bradlaugh v. Clarke (1883) 8 App. Cas. 354 at p. 384 : 52 L.J.Q.B. 505 : 48 L.T. 651 : 31 W.R. 677 and by Lord Bramwell in Hill v. East and West India Dock Co. (1881) 9 App. Cas. 418 at p. 461 : 53 L.J. Ch. 842 : 51 L.T. 163 : 32 W.R. 925 : 48 J.P. 788, we are launahed, as Lord Cranworth said in Cundry v. Pinniger (1851- 52) 1 De G.M. & G. 502 at p. 605 : 21 L.J. Ch. 405 : 16 Jur. 483 : 92 R.R. 40 : 42 B.R. 647 affirmed on Appeal 14 Beav. 94 : 20 L.J. Ch. 635 : 17 L.T, (O.S.) 217 : 51 E.R.222, into a sea of difficulties which it is difficult to fathom. Consequently, whether the Statute codifies or amends the law if its provisions are expressed in jar and unambiguous terms, resort should to be bad to the pre-existing law, although low reference may be useful and legiti-ate where the provisions are of doubtful apart or are couched in language which id previously acquired a technical meaning: in, as Lord Watson said in Robinson v. Canadian Pacific Ry. Co. (1892) A.C. 481 at P. 487 : 61 L.J.P.C. 79 : 67 L.T. 505, an appeal to earlier ,we and decisions for the purpose of interpreting a Statute can only be justified upon some such special ground.