S.K. Datta, J.@mdashThese Rules are directed against the appellate orders passed by the Court of Small Causes, Calcutta, in thika tenancy appeals affirming the order of the Thika Controller dated July 21, 1970, August 6, 1970 and November 4, 1970. By the first order, the Thika Controller allowed the application of the thika tenant u/s 7A of the Calcutta Thika Tenancy Act as amended. The Controller directed the tenant to deposit a sum of Rs. 770 and costs within a period of 60 days from the date of the order. Thereafter, on August 6, 1970, the Thika Controller passed an order correcting the amount to Rs. 3,410 in place of Rs. 770 as specified in the earlier" order. The deposits were duly made. Another order was passed on November 4, 1970, whereby the order for recovery of possession passed by the Thika Controller on an application u/s 5 of the Act was set aside. These orders were affirmed on appeals therefrom. The Rules are against the orders as already stated.
2. The relevant facts are as follows : The landlord filed an application u/s 5 of the Calcutta Thika Tenancy Act, 1949, on the ground of building and rebuilding and default. The ground for default was subsequently abandoned and by order dated August 24, 1957, the application u/s 5 was allowed on ground of building and rebuilding. Thereafter, the Thika Controller determined the amount of compensation payable and the compensation was deposited by the landlord. As the tenant did not vacate, the order was put into execution on June 7, 1965, but the bailiff, as he went to the locale for delivery of possession, was resisted. On the application of the landlord the order was passed on September 26, 1966, for Police help and costs were deposited. It appears that the tenant preferred an appeal against the order allowing Police help. The appeal was allowed on March 18, 1967 and the Thika Controller was directed to make necessary investigation under Order XXI Rule 97 of the Code in presence of parties. This proceeding was pending on August 26, 1967.
3. The Government of West Bengal in the meantime took a decision to amend the Calcutta Thika Tenancy Act, 1949, as the provisions thereof were considered inadequate to protect the interest of the thika tenants. With a view to further restrict the eviction of thika tenants and conferring more rights on such tenants, the Government considered it necessary to undertake comprehensive legislation, but pending its finalisation interim legislation to stay all proceedings for ejectment of thika tenants was necessary. The Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Ordinance, 1967, was, accordingly, promulgated on August 26, 1967, staying execution of orders of eviction of the thika tenants. The provisions of this Ordnance, which were to expire on January 9, 1968, were continued by promulgation of the Second Ordinance (I of 1968) on January 8, 1968. Consequent on the in position of the President''s Rule in the State, the provisions of the Ordinance were re-enacted in the Calcutta Thika Tenancy Stay of Proceedings (Temporary Proceedings) Act (President''s Act III of 1968) staying eviction proceedings from August 26, 1967, upto and inclusive of September 25, 1968. As the comprehensive amendment was not till then finalised, it was considered necessary to continue the interim protection and stay of execution for further period. Accordingly, by President''s Act XXV of 1968, the life of the President''s Act III of 1968 was extended by six months, i.e. till and inclusive of March 25, 1969. Thereafter, by West Bengal Act III of 1968, the stay of all proceedings for ejectment of thika tenants pending on the date of commencement of the Act, i.e. March 26, 1969, was continued till March 25, 1970.
4. While the proceedings connected with these Rules remained stayed, the Calcutta Thika Tenancy (Second Amendment) Act, 1969, was brought into force with effect from October 30. 1969. This was the comprehensive legislation amending the parent Act, restricting unfair eviction of thika tenants and conferring on them additional rights. By this amendment Act, substantial charges were introduced in the parent Act, i.e. the Calcutta Thika Tenancy Act, 1949. The grounds of eviction contained in Section 3 of the original Act were substituted by new section providing for eviction of the thika tenants on specific grounds, namely--
(i) On the ground that the thika tenant has used the land comprised in his holding in a manner which renders it unfit for any of the purposes mentioned in Clause (5) of Section 2.
(ii) Where the land of the holding is required by the landlord for his own occupation subject to restrictions contained in Sub-sections (2), (3) and (4) of Section 3 and
(iii) On the expiry of the term held under a registered lease in respect of the holding.
5. It will, thus, be seen that the ground for building and rebuilding was no longer available to the landlord for eviction of a thika tenant from his holding.
6. Another new section numbered as section 7A was inserted after Section 7 of the parent Act. The said section is as follows:
7A. Power of the Controller to set aside order for ejectment in certain cases--(i) Where an order for ejectment of a thika tenant from his holding has been made by the Controller u/s 5 before the date of commencement of the Calcutta Thika Tenancy (Second Amendment) Act, 1969, but the possession of the land comprised in the holding has not been recovered by the landlord from the thika tenant, the thika tenant may, within sixty days from such date, apply to the Controller for setting aside the order.
(2) On receipt of an application under Sub-section (1) the Controller shall cause a notice thereof to be served on the landlord and if after considering such evidence as the parties may adduce--
(a) the Controller is satisfied that the order for ejectment would have been made against the thika tenant even if the Calcutta Thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall dismiss the application with such costs as the Controller may allow to the landlord; or
(b) the Controller is satisfied that no order for ejectment would have been made against the thika tenant if the Calcutta Thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall determine the amount which would have been payable by the thika tenant for the period commencing from such date and ending with the date of the order to be made under this sub-section, if the thika tenant had to pay rent at the rate at which it was last paid during such period and after deducting therefrom all such sums as the thika tenant may have deposited with the Controller or paid to the landlord on account of rent for such period, the Controller shall direct the thika tenant, by order, to deposit the remaining amount, together with such further amount as the Controller may allow to the landlord as his costs of the proceeding arising out of the application under Sub-section (1) of Section 5, within such time, not exceeding sixty days from the date of the order, as the Controller may fix.
(3) If the thika tenant deposits the amounts ordered by the Controller under Clause (b) of Sub-section (2) within the time fixed by him, the Controller shall allow the application under Sub-section (1) and set aside the order of ejectment and dispose of the application of the landlord under Sub-section (1) of Section 5p>(4) If the thika tenant fails to deposit such amounts within such time, his application under Sub-section (1) shall be dismissed with such costs as the Controller may award to the landlord.
7. There are other material changes in the said Act with which we are not concerned in these Rules.
8. The other relevant provision is Section 13 which is as follows:
13. The amendments made to the said Act by this Act shall have effect in respect of all applications for ejectment of thika tenants and all appeals from orders made on such applications, under the provisions of the said Act which are pending at the commencement of this Act.
9. It has been contended by Mr. Sett that in view of the provision of Section nfba>13 the amendments made to the said Act including those in Section 7A have no application when the application for ejectment of a thika tenant or any appeal therefrom was not pending at the commencement of the said Amendment Act. Mr. Sett submitted relying on the decision in Narayan Chandra Saha v. Dev All Pvt. Ltd. (1974) 79 C.W.N. 524 that the provision of the amendment Act would only be attracted if an application or an appeal is pending at the relevant date. As in this case no such application u/s 5 or an appeal therefrom was pending, Section 7A could have no application to this case.
10. Mr. Sett also contended that Section 7A is ultra vires as imposing unreasonable restrictions on enjoyment of the property offending Article 19(i)(f) of the Constitution. As this contention was taken at an earlier hearing before A.K. Mookerji J. his Lordship was pleased to refer the matter to a larger Bench in view of the question involved. At the hearing before us, Mr. Sett has submitted that he is not pressing this contention.
11. The point, now, is whether Section 7A applies to this case. The Amendment Act of 1969 was brought into force on October 30, 1969. There can be no dispute that the provisions of the said Amendment Act came into force on that date in absence of any prohibition about the commencement of the provisions thereof. In respect of pending applications u/s 5 for ejectment of a thika tenant and appeal from orders therein, under provisions of Section 13 of the Amendment Act, a limited retrospective operation was given to such provisions of the Amendment Act as would be affected thereby. It was provided that the provisions of the Amendment Act will be applicable to such applications u/s 5 or appeals from orders therein if they were pending at the commencement of the said Act. Such retrospective operation obviously will be is respect of such provisions of the Amendment Act as would affect and apply to the pending proceedings under the terms thereof. While substituted Section3 in the parent Act is one of such provisions, Section 7Awhich is prospective in operation, applies under its terms to a case when order of ejectment has been made by the Controller which obviously includes its appellate authority, but possession of the holding has not been taken in pursuance of such order and not to any section 5 peal from any order passed therein. This is a new right conferred on the thika tenant even if no proceeding for his ejectment is pending before the Thika Controller or the appellate authority. The condition is that the application for setting aside the order of eviction is to be filed within sixty days of the commencement of the Amendment Act and possession of the holding has not been recovered by the landlord in the meantime. In this view, the provisions of Section 13 of the Amendment Act has no application to Section 7A as inserted by the said Act and Section 7A applies by its own force prospectively provided the conditions therein are satisfied.
12. There is no dispute that the application u/s 7A was made in time by the thika tenant and the amount as directed by the Thika Controller had been duly paid. There is, accordingly, no infirmity in the order of the Thika Controller dated November 4, 1970, setting aside the order of eviction of the thika tenant.
13. The rules, accordingly, fail and are discharged. There will be no order for costs in the circumstances.
H.N. Sen J.
14. I agree.
