1. Eviction suit for non-agricultural urban land — Tenant constructed permanent structures — Applicability of Section 5, Assam Non-Agricultural Urban Areas Tenancy Act, 1955 to pending proceedings. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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1964 Supreme(SC) 40
SUPREME COURT OF INDIA
24th February, 1964.
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, J.C. SHAH, N. RAJAGOPALA AYYANGAR AND S.M. SIKRI, JJ.
1. Mst. Rafiquennessa (in C. A. No. 549 of 62 and 2. Mohammad Wahedulla (In C. A. No. 569 of 63) Appellants
Versus
1. Lal Bhahdur Chetri (since deceased) and after him his legal representative and others (In C. A. No. 549 of 62) and 2. Mohammad Abdul Hamid (In C. A. No. 569 of 63), Respondents.
Civil Appeals Nos. 549 of 1962 and 569 of 1963.
Advocates appeared
Mr. N. C. Chatterjee Senior Advocate (M/s. K. P. Sen and P. K. Chatterjee, Advocates, with him), for Appellant (In C. A. No. 549 of 62); Mr. B. P. Maheshwari Advocate for Respondents Nos. 1(a) to 1(e) (In C. A. No. 549 of 62); M/s. Behrul Islam and R. Gopalakrishnan, Advocates, for Appellant (In C. A. No. 569 of 63); Mr. D. N. Mukherjee, Advocate, for Respondent (In C. A. No. 569 of 63).
Advocates:
B.P.MAHESHVARI, BEHRUL ISLAM, D.N.MUKHERJI, K.P.SEN, N.C.CHATTERJI, P.K.CHATTERJI, R.GOPAL KRISHNAN
B.P.MAHESHVARI, BEHRUL ISLAM, D.N.MUKHERJI, K.P.SEN, N.C.CHATTERJI, P.K.CHATTERJI, R.GOPAL KRISHNAN
A statutory provision prohibiting "eviction" of a tenant applies retrospectively to pending proceedings, including appeals, if the legislative intent—evidenced by the Act's scope and language—is to protect tenancies created before the Act's commencement.
Headnote:(A) Non-Agricultural Urban Areas Tenancy Act - Sections 2 and 5 - Retrospective operation of statutory provisions - Protection against eviction for tenants who built permanent structures - Whether provisions apply to pending proceedings - A statutory provision is retroactive when declared by express terms or when the intention clearly follows from the words and context (Para 9) - Section 2 indicates the Act applies to tenancies created before or after its commencement, thereby affecting vested rights of landlords (Para 10) - Section 5(1)(a) protects tenants who built permanent structures within five years of the contract, implying protection for constructions already made before the Act (Para 11) - The prohibition of "eviction" rather than "suing for ejectment" indicates that the protection extends to pending proceedings, including the appellate stage (Para 12).
(B) Appeal - Nature of proceedings - An appeal pending before the lower appellate court is a continuation of the suit; therefore, a suit or appeal pending when the Act comes into force is governed by the protective provisions of the Act (Para 13).
Facts of the case:
The appellants filed suits for eviction of tenants based on the expiration of lease terms and breach of covenants. While the appeals were pending before the lower appellate court, a tenancy act was passed. The tenants sought protection under the Act, claiming they had constructed permanent structures within five years of the lease agreement. The lower appellate court and the High Court ruled in favor of the tenants, holding that the protective provisions of the Act applied to the pending proceedings.
Findings of Court:
The court found that the legislative intent was to provide retrospective protection to tenants who had built permanent structures. The use of the term "eviction" signifies that the protection applies until the final removal of the tenant, thus covering pending suits and appeals.
Issues: Whether the protective provisions of Section 5 of the Act apply to eviction proceedings that were pending at the time the Act came into force.
Ratio Decidendi: The court held that the Act is retrospective in nature as Section 2 explicitly applies it to tenancies created before its commencement. Furthermore, Section 5(1)(a) protects constructions made within five years of the contract, regardless of whether they were made before the Act. Since the Act prohibits "eviction" and an appeal is a continuation of the suit, the protection extends to pending appellate proceedings.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether statutory provisions affecting vested rights operate prospectively or retrospectively — Applicability of Section 5 to eviction proceedings pending at the time of the Act's commencement. (Para 9 )
3. Analysis of Section 2 and Section 5 — Legislative intent to protect existing constructions — Distinction between prohibition of suit and prohibition of eviction. (Para 7 , 8 , 10 , 11 , 12 , 13 )
4. Statutory provisions prohibiting eviction of tenants who built permanent structures apply retrospectively to pending proceedings, including appeals, as they are continuations of the original suit. (Para 10 , 11 , 12 , 13 )
5. Appeals dismissed with costs. (Para 14 )
6. Does Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 apply to tenancies created before the Act?
Yes. Section 2 explicitly states that the provisions of the Act apply to all non-agricultural tenancies, whether created before or after the date the Act came into force. (Para 10 )
7. How is the retrospective nature of Section 5(1)(a) determined regarding permanent structures?
The provision protects tenants who built permanent structures within five years of the contract date, which necessarily includes constructions made before the Act's commencement, indicating a retrospective legislative intent. (Para 11 )
8. Does a statutory prohibition on eviction apply to proceedings already pending in court?
Yes. By prohibiting the eviction of the tenant rather than the filing of a suit, the law applies to pending proceedings, including appeals, as an appeal is a continuation of the suit. (Para 12 , 13 )
Judgement
GAJENDRAGADKAR, C.J.I. : These two appeals which have been brought to this Court with a certificate issued by the Assam High Court, raised a short question about the construction and effect of S. 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (No. 12 of 1955) (hereinafter called " the Act" ). The relevant and material facts which have led to the suits from which these two appeals respectively arise are similar, and so, it would not be necessary to state them in detail in regard to both the matters. We would, therefore, mention the facts broadly in C. A. No. 549/1962 in dealing with the common point raised for our decision. The appellant in this case is Mst. Rafiquennessa who sued the predecessor of the respondents for ejectment. It appears that Lal Bahadur Chetri had executed a registered lease-deed in favour of the appellant on the 14th February, 1946. The lease covered an open plot of land and under the covenant the lessee was entitled to build a house for residential purposes. In ordinary course, the lease was due to expire of the 12th February, 1952, and the lessee had agreed to deliver vacant possession of the land at the expiration of the stipulated period. Accordingly, a notice to quit was served on him to vacate on the 12th February, 1952. He however, did not comply with the notice and that led to the present suit by the appellant for eviction (No. 149 of 1952). In support of her claim, the appellant alleged that the lessee had contravened the terns of the lease inasmuch as he had sublet the premises built by him, and so, that was an additional ground for evicting the lessee. The sub-lessees were accordingly joined as defendants to the suit.
2. The lesseee Chetri alone resisted the suit. The sub-tenants let into possession by him did not join issue with the appellant. The trial Judge decreed the appellants claim whereupon the lessee Chetri filed an appeal in the Court of the Sub-Judge, Lower Assam District, Gauhati, challenging the validity and the correctness of the decree passed against him (Civil Appeal No. 24/1953).
3. While the appeal was pending, the Act was passed and was published in the Assam Gazette on the 6th July, 1955. Thereafter, when the appeal came on for hearing before the lower appellate Court, the tenant filed an application praying that he should be permitted to take an additional ground under S. 5 of the Act. Before that date, the Assam High Court had taken the view that the said provision of the Act was applicable to the pending proceedings between landlords and tenants for eviction and that was the basis on which the tenant Chetri wanted to support his appeal. The lower appellate Court allowed the tenant s plea, framed an additional issue in pursuance of it and sent the matter back to the trial Court for a finding.
4. On remand, the trial Court took evidence and after local inspection, made a finding that the two houses proved to have been built by the tenant must be regarded as permanent in relation to the locality of the plot. He, however, found that there was no evidence to show when the said houses were constructed. Part of the finding was challenged by the tenant before the lower appellant Court. The lower appellate Court ultimately allowed the appeal and set aside the decree passed by the trial Judge in favour of the appellant. The conclusion of the lower appellate Court was that the two houses had been constructed by the tenant within five years after the taking of the lease and that entitled the lessee to claim the benefit of S. 5 of the Act.
5. The appellant then preferred a second appeal in the High Court of Assam (No. 86/ 1958). Following its earlier decision about the applicability of the provisions of S. 5 to pending proceedings, the High Court summarily dismissed the said appeal. Thereafter, the appellant applied for and obtained a certificate from the High Court and with the said certificate the present appeal has been brought before us. Pending these proceedi
