1. Ejectment suit for land — Application of Calcutta Thika Tenancy Act, 1949 and subsequent amendments — Determination of thika tenant status and grounds for eviction. (Para 1 , 2 )
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1967 Supreme(SC) 385
SUPREME COURT OF INDIA
K.N. Wanchoo, C.J.I., V. Bhargava and G.K. Mitter, JJ.
Gopi Kanta Sen - Appellant
Versus
Abdul Gaffur & Ors - Respondents
Civil Appeal No. 787 of 1964
Decided On : 11-8-1967
Advocates Appeared:
For the Appellant :A.K. Sen and D. N. Mukherjee, Advocates
For the Respondent:Sukumar Ghose, Advocate
For the Appellant :A.K. Sen and D. N. Mukherjee, Advocates
For the Respondent:Sukumar Ghose, Advocate
Substantive provisions restricting eviction grounds under the Calcutta Thika Tenancy Act apply retrospectively to pre-Act suits, whereas procedural requirements for notice and application to a Controller are prospective and inapplicable to suits filed before the Act's commencement.
Headnote:(A) Calcutta Thika Tenancy Act, 1949 - Sections 3, 4, 5, 28 and 29 - Calcutta Thika Tenancy (Amendment) Ordinance, 1952 - Calcutta Thika Tenancy (Amendment) Act, 1953 - Ejectment of thika tenant - Retrospective and prospective application of statutory provisions - Section 3, which restricts the right of a landlord to recover possession except on specified grounds, applies to all suits, including those filed before the commencement of the Act (Paras 17, 21) - Sections 4 and 5, relating to the requirement of notice and application to the Controller, are prospective in nature and do not apply to suits instituted before the Act came into force (Paras 17, 18, 19).
(B) Statutes - Interpretation - General principle that statutes do not operate retrospectively to defeat vested rights unless expressly enacted or implied by language - If the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to such intention (Paras 13, 16).
(C) Civil Procedure - Effect of omission of sections providing for transfer of suits to a Controller - Omission of sections providing for the transfer of pending suits to a Controller does not render pre-Act suits infructuous; the court continues to hear the matter but must apply the substantive protections, such as the requirement to prove specific grounds for eviction, provided by the Act (Paras 21, 22).
Facts of the case:
A landlord instituted a suit for ejectment of tenants in 1948. A decree was passed in 1949, and possession was recovered. Subsequent amendments to the tenancy legislation expanded the definition of a thika tenant and modified the procedure for eviction. The tenant sought protection under the amended Act, asserting that the landlord had not established the mandatory grounds for eviction.
Findings of Court:
The tenant fell within the amended definition of a thika tenant. While the procedural requirements of notice and application to the Controller were not applicable to the pre-Act suit, the substantive requirement to prove specific grounds for eviction under Section 3 was mandatory. The landlord failed to establish any such ground during the proceedings.
Issues: Whether the provisions of the amended tenancy Act apply to suits filed before its commencement, and specifically whether the requirements of notice and application to the Controller are mandatory for such pre-Act suits.
Ratio Decidendi: The court held that Section 3 is retrospective and applies to all suits, meaning a landlord must prove specific grounds for eviction regardless of when the suit was filed. However, Sections 4 and 5 are prospective and do not apply to suits filed before the Act. The omission of transfer provisions does not strip the court of jurisdiction but requires it to apply the substantive law to the facts of the case.
Result: Appeal dismissed.
Legal Category Hierarchy
- property law
- practice and procedure
- statutory interpretation
Table of Contents
2. Whether omission of Section 29 of the Act renders civil courts unable to remit pre-Act suits to the Controller, thereby denying thika tenants relief under amended law. (Para 2 )
3. Section 3 limiting ejectment grounds applies to all suits, whereas notice and application requirements under Sections 4 and 5 are prospective and inapplicable to pre-Act suits. (Para 17 , 18 , 19 , 21 , 22 )
4. Landlords in pre-Act suits must establish grounds for eviction under Section 3, though they are not bound by prospective notice or Controller-application requirements under Sections 4 and 5. (Para 21 , 22 )
5. Appeal dismissed as the landlord failed to establish any grounds for ejectment specified under Section 3 of the Act. (Para 23 )
6. Does Section 3 of the Calcutta Thika Tenancy Act, 1949, which limits grounds for ejectment, apply to suits filed before the Act's commencement?
Yes. The court held that Section 3 applies to all suits, including those filed before the Act, as it expressly states that a thika tenant is liable to ejectment on specified grounds and not otherwise. (Para 17 )
7. Are the notice requirements under Section 4 and the application process under Section 5 of the Act applicable to pre-Act suits?
No. These provisions are prospective. A landlord who filed a suit before the Act had already evinced the intention to eject, making fresh notice or applications to the Controller unnecessary. (Para 17 , 18 , 19 )
8. What is the effect of the omission of Section 29 on the jurisdiction of civil courts in pre-Act ejectment suits?
The omission means there is no longer a provision to transfer pending suits to the Controller. However, civil courts still apply the Act's substantive protections, requiring the landlord to prove grounds under Section 3. (Para 21 , 22 )
JUDGMENT :
G.K. Mitter, J.
1. This is an appeal by a certificate granted by the High Court at Calcutta from a judgment and decree in Second Appeal passed by that court in January, 1961. The question before us is, whether the respondent No. 1 was entitled. to the benefit of the Calcutta Thika Tenancy Act, 1949, as amended finally by an Act of 1953.
2. The facts necessary for the disposal. of this appeal are as follows. On the 18th June 1948, the plaintiff, the appellant before us, instituted Suit No. 292 of 1948 for ejectment of three Persons, namely, Abdul Rahim, Abdul Hamid and Abdul Gaffur, from the property in suit (a parcel of land about 1 cottah 8 chittaks being part of premises No. 6/1, Shibtola Lane, Entally, Calcutta). In the notice to quit served on the 7th May, 1948 the first two persons were described as tenants under the plaintiff and the third as a person who had purported to purchase the structures on the land and the tenancy right therein. In the plaint itself, the first two defendants were described as thika tenants. No claim was made for rents or taxes although it was alleged that the same were in arrears. The suit was contested only by the third defendant who filed a written statement in September 1948 contending that the suit was bad for non- joinder of parties. The suit was decreed by a Munsif of Sealdah court, 24-Parganas on March 18, 1949 after the Calcutta Thika Tenancy Act of 1949 had come into force on February 28, 1949. The appeal filed therefrom by the third defendant was dismissed by the Subordinate Judge. Fifth Additional Court, Alipore on November 23, 1949. The decree-holder put the decree in execution and recovered possession of the land on December 18, 1949. The Calcutta Thika Tenancy (Amendment Ordinance), 1952 was passed on October 21, 1952 introducing various changes in the Act and substituting a new definition of a thika tenant. On March 14, 1953 the Calcutta Thika Tenancy (Amendment Act), 1953 was passed amending the definition of thika tenant still further and introducing important changes in the Act of 1949. The effect of these provisions will be considered later on. Before the Subordinate Judge, a point was taken that after the coming into force of the Act of 1949, the Rent Controller alone had jurisdiction in respect of ejectment suits as the defendant appellant was a thika tenant. The Subordinate Judge dismissed the plea on the ground that the defendant-appellant had not erected the structures on the land and was not a successor-in-interest of the tenant but only a transferee. Abdul Gaffur preferred a Second Appeal to the High Court and this was heard and disposed of by a single Judge of that court on July 21, 1954, long after the Thika Tenancy Ordinance of 1952 and the Amending Act of 1953 had come into force. The learned Judge held that at the time when the appeal of the defendant was disposed of by the Subordinate Judge, the rights of the parties were governed by the Thika Tenancy Act of 1949 and the definition of a thika tenant in that Act was not such as to afford any protection to the appellant. In view of the amendment of the Act in 1953 however. the learned Judge felt that the question whether the appellant was entitled to the benefit of that Act had to be re-examined and consequently he remanded the matter to the lower appellate court with a direction that there should be a fresh decision of the case after considering the law applicable and taking further evidence if necessary. On remand, the Subordinate Judge, Seventh Court, Alipore rejected the plea of the landlord that the appellant Gaffur could not be regarded as a thika tenant inter alia on the ground that he had sold his interest by a registered sale deed dated April 12, 1949 to one Subasini. On a consideration of the provisions of the Act and the Ordinance, the Subordinate Judge held that the appellant, Gaffur, was not liable to ejectment in the absence of any grounds therefor in the notice to quit in accordance with S. 3
