ivil Appeal No. 325 of 1965.

Appeal by special leave from the Award dated September 20, 1963 of the Central Government Industrial Tribunal, Bombay in Reference CG IT 25 of 1962.

section V. Gupte, Solicitor General, M. Rajagopalan and K. R. Choudhuri, for the appellants.

C. B. Agarwala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents.

The Judgment of the Court was delivered by Hidayatullah J.

This is an appeal by special leave against an award dated September 20, 1963 made by the Presiding Officer of the Central Government Industrial Tribunal, Bombay in a reference made by the Government of India under section 10(2) of the .

The appellants are the workmen of the Bombay Port Trust, who are and have been represented in this dispute by the Bombay Port Trust Employees ' Union.

The respondents to this appeal are the trustees of the Port of Bombay.

The reference was made on a joint application of the parties.

and the matter in dispute was stated to be : "Whether the existing system of work of the shore crew of the Prince 's and Victoria Docks under which each shift consists of 8 hours ' normal duty, 2 hours ' variable recess and 12 hours ' overtime needs any modification? The Tribunal, by the award impugned here, held that the Union was not able to establish that the existing system of work needed any modification.

The Port Trust had under its control several docks.

Reference in this judgment will be made to the Prince 's and Victoria Docks, the Alexandra Docks, Butcher Island and the Flotilla Crew.

These represent different areas of work where different groups of workmen were employed.

From the facts appearing on the record it appears that the Trustees first introduced a two shift system of work in the Alexandra Docks on June 30, 1953 and the same system was extended to the Prince 's and Victoria Docks on December 15, 1953.

Previously, the shore crew at all these places worked in a single shift and were liable to be called out at 634 any hour of the day or night.

When the two shift system began, each shift of 12 hours was broken up into 8 hours ' duty, 2 hours ' variable recess and 2 hours ' overtime.

The hours of rest were kept variable as they depended on the tides.

In 1956 the workmen, who were then represented by the Port Trust General Workers ' Union, made a demand for a fixed recess of two hours.

The Trustees apprehended that this was a device to get 4 hours ' overtime and rejected the demand.

The General Workers Union was informed that if the demand was pressed a three shift system would be introduced.

The workmen then retraced their steps and accepted a 2 hours ' variable recess but requested that it should be as near the middle of the shift as possible.

The Trustees agreed to accept the hours of rest at fixed hours in the Alexandra Docks but at the Prince 's and Victoria Docks they kept it variable agreeing to fix it as near the middle of the duty hours as possible.

Under this arrangement the shore crew working at the Prince 's and Victoria Docks were informed each day what the period of rest would be on the following day.

In explanation of this difference it may be pointed out that the Alexandra Docks work on a system of lock gates which enables the depth of water at the docks to be artificially regulated but the Prince 's and Victoria Docks, being tidal, work only at high tide.

It was thus possible to fix rest hours at the Alexandra Docks for half the crew different from the rest hours of the other half so that a part of the crew was always available on hand.

As the lock gates control the depth of water in the Alexandra Docks, fixed hours of rest could be maintained from day to day except in the monsoon months when the, storm gates had some time to be closed.

During these months recess time at the Alexandra Docks was also variable and was made to coincide with the closure of the storm gates.

The workmen at the Alexandra Docks seemed to have accepted a variable recess of two hours but the Port Trust gave a notice under section 9A of the on June 25, 1960 announcing the introduction of variable recess although in the months other than the monsoon months recess was actually at fixed hours.

The workmen opposed the change from fixed to variable recess.

Meanwhile studies were being made and it was found that the work hours at the different Docks were not equal: they were heavier at the Alexandra Docks than at the other docks.

The Trustees, therefore, resolved that the shore crew at the Alexandra Docks should work for 8 hours and that there should be a variable recess of one hour and overtime of three hours should be paid.

Thus the 12 hours ' shift at the Alexandra Docks was 8 hours ' of duty, 3 hours ' overtime and one hour variable recess.

This system was, however, 635 not extended to the prince 's and Victoria Docks and Butcher Island.

At these docks 8 hours ' duty, 2 hours ' rest at variable times and 2 hours ' overtime were prescribed.

The claim of the shore crew at the Prince 's and Victoria Docks and Butcher Island for reducing the hours of rest and increasing overtime to three hours was not accepted because the amount of work in the, opinion of the Trustees did not justify the change.

The Union contended that this division of 12 hours ' shift into 8 hours ' work, 2 hours ' rest and 2 hours ' overtime violated the provisions of the and that the so called period of rest was illusory since, being variable, it was some times given right at the commencement of the shift and some times at the end, depending on the tides or the exigencies of the work.

The Union claimed that a 12 hours ' shift should be divided into 8 hours ' work and 4 hours ' overtime as was the case with the Flotilla Crew.

This claim was opposed by the Trustees.

According to them, there was no breach of the provisions of the .

They contended that, regard being had to the number of actual work hours, the case of shore crew at the Prince 's and Victoria Docks and the Butcher Island could not be compared with that of the crew at the Alexandra Docks or the Flotilla Crew.

The Tribunal accepted the entire case put forward on behalf of the Trustees and the Union has appealed to this Court.

On behalf of the Union the learned Solicitor General has argued the case almost entirely from the legal stand point and has attempted to establish that the break up of a 12 hours ' shift into 8 hours ' duty, 2 hours ' rest and 2 hours ' overtime offends the .

He, has in addition submitted that the system of variable recess does not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages.

The was enacted to enable Government to fix minimum rates of wages in certain employments.

Since fixation of minimum wages must take into account the work load also, provision must not only be made for prescribing the minimum wage but to correlate it to a specified amount of work.

Any extra work beyond the specified work load must be paid for at a higher or what is known as "overtime" rate.

Similarly, intervals of rest must punctuate suitably the hours of work and they must also be provided for in a scheme of the work day of a workman.

The makes provision for all these matters either by itself or through Rules.

The Central Government has framed the Minimum Wages (Central) Rules, 1950.

The Act and the 636 Rules between them provide not only for fixation of minimum wages but also for the work load in relation to which the minimum wages are to be prescribed.

They provide on the one hand for minimum wages, lay down the procedure for fixing or revising them and prescribe the rules in accordance with which the wages must be paid.

On the other hand, the Act and the Rules fix the number of hours of work, payment of overtime and for hours of rest in the work day of the workman.

The provisions of the Act and of the Rules are applicable to some employments only and they are shown in a Schedule appended to the Act.

It is admitted that the present workmen come under the Schedule.

The hours of work and the payment of overtime are, therefore, governed by the provisions of the and the Minimum Wages (Central) Rules, 1950 and the controversy in this case must be appreciated and resolved in accordance with them.

We shall now turn to these provisions.

We are concerned with two sections and two rules.

The sections are Nos. 13 and 14 and the rules Nos. 24 and 25.

The whole of the matter in dispute admittedly is governed by these, four provisions.

We shall begin by setting out the relevant parts of these provisions : "13.

Fixing hours for a normal working day, etc.

(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; (b) provide for a day of rest in every period Of seven days which shall be allowed to all employees or to any specified class of em ployees and for the payment of remuneration in respect of such days of rest; (c) provide for payment of work on a day of rest at a rate not less than the overtime rate.

(2) The provisions of sub section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such conditions as may be prescribed: (a). . . . . . 637 (b). . . . . . (c) employees whose employment is essentially intermittent; (d). . . . . . (e). . . . . . (3) For the purposes of clause (c) of sub section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate Governmen t on the ground that the daily hours of duty of the employee, or if there be no daily hours of duty as such for the employee, the hours of duty, normally include, periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.

" 14. Overtime.

(1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher.

(2) Nothing in this Act shall prejudice the operation of the provisions of section 59 of the in any case where those provisions are applicable.

" Rule 24.

"Number of hours of work which shall constitute a normal working day (1) The number of hours which shall constitute a normal working day shall be: (a) in the case of an adult, 9 hours, (b) in the case of a child, 41 hours.

(2) The working day of an adult worker shall be so arranged that inclusive of the intervals for rest, if any, it shall not spread over more than twelve hours on any day.

638 (3) The number of hours of work in the case of an adolescent shall be the same as that of an adult or a child according as he is certified to work as an adult or a child by a competent medical practitioner approved by the Central Government.

(4). . . . . . (4 A) No Child shall be employed or permitted to work for more than 4 1/2 hours on any day.

(5) Nothing in this rule shall be deemed to affect the provisions of the ".

Rule 25.Extra wages for overtime (1) When a worker works in an employment for more than nine hours on any day or for more than forty eight hours in any week, he shall, in respect of overtime work, be entitled to wages, (a) in the case of employment in Agriculture, at one and a half time the ordinary rate of wages; (b) in the case of any other scheduled employment, at double the ordinary rate of wages.

Explanation The expression "ordinary rate of wages" means the basic wage plus such allowances including the cash equivalent of the advantages accruing through the concessional sale to the person employed of foodgrains and other articles as the person employed is for the time being entitled to but does not include a bonus.

(2) A register showing overtime payment shall be kept in form IV.

(3) Nothing in this rule shall be deemed to affect the provisions of the ." The controversy in the present case is a narrow one.

It is whether the fixing of a two hours ' rest and two hours ' overtime involves a breach of the two sections of the Act and the two rules quoted here ? The workmen claim that under a scheme of 12hour shifts with 8 hours ' work, overtime should be at least 3 hours, if not 4, and by fixing only two hours ' overtime the Trustee are B guilty of the breach of the Act and the Rules.

Unfortunately the provisions of the and the Minimum Wages 639 (Central) Rules, 1950, are not as clear as the corresponding provisions of the and they have led to long arguments before us.

We shall refer to the provisions of the later because for the present we must consider the provisions of the Act and the Rules without drawing any assistance from the .

Section 13 of the Act does not itself fix the hours of work or rest or overtime.

That is done by the Rules.

Section 13 only authorises Government to fix the number of hours which shall constitute a normal working day, inclusive of on, .

or more specified intervals.

The normal working day thus includes (a) hours of actual duty, and (b) one or more specified intervals.

There may be one interval of rest or there may be more intervals but whatever their number, they must be specified.

By interval under section 13 is obviously meant interval of rest and this is clear from Rule 24(2).

There is no definition of interval either in the Act or the Rules but the provisions of section 13 (2) (c) read with section 13 (3) give us an indication of what is meant by an interval of rest.

It means a break in the work during which a workman, though present on duty, is not called upon to display either physical activity or sustained attention.

But it is not a period of more inaction because there is no work for him.

If it is the latter, it is counted as actual work period: if the former, it is counted as a period of rest, provided the period is specified beforehand, and the workman is neither called upon to work nor expected to work.

Having thus distinguished between period of work and interval of rest we may now turn to Rule 24 which prescribes the number of hours of work which is to constitute a normal working day.

Sub rule (1) (a) provides that the number of hours constituting a normal working day for an adult shall be 9.

As the heading of the Rule shows these are the hours of work.

Sub rule (2) then lays down that the working day of an adult shall be so arranged that inclusive of intervals for rest it shall not spread over more than twelve hours on any day.

The distinction between intervals of rest and hours of work is thus made clear.

From this it follows that on any single day the number of hours of work must not exceed 9 and together with the hours of rest the total period of work and rest should not go beyond 12 hours.

It is wrong to contend that the period of 9 hours must always include intervals of rest.

It may or it may not.

There is no provision in the Act and the Rules corresponding to section 55 of the Factories 640 Act to which reference will be made hereafter.

In a 12 hour shift, the nine hours of work on any day can be spread over 12 hours and the extra hours will necessarily be hours of rest.

The contention of the workmen is that section 13 fixes the number of hours in a normal working day and this number is inclusive of one or more specified intervals.

They read Rule 24, which prescribes a normal working day of 9 hours, as including within the 9 hours one or more intervals of rest.

We do not think this is a correct reading either of section 13 or of Rule 24.

There is clear antinomy between hours of work and intervals of rest in sub rules (1) and (2) of Rule 24 and the phrase 'inclusive of one or more specified intervals ' governs the normal working day and not the number of hours of work.

Under sub rule (2) of Rule 24 the working day of an adult can be so arranged that inclusive of intervals of rest it does not exceed 12 hours on any day.

A working day may extend to 12 hours but the number of hours of work cannot exceed 9.

A working day of 12 hours is thus made up of hours of work and hours of rest and the number of hours of work (which cannot exceed 9) is part of the normal working day which may also include one or more specified intervals of rest.

This determines what is a normal working day and what is meant by an interval of rest.

We now come to the question of overtime.

If work on any day is taken which goes beyond 9 hours the provisions of section 14 apply.

That action speaks of overtime.

Overtime is payable for work in excess of the number of hours constituting a normal working day.

From section 13 read with Rule 24 we know that the number of hours constituting a normal working day is 9.

We shall now read into section 14 this number leaving out those provisions which have no bearing upon the matter.

The section so read lays down : "Where an employee. . . works on any day in excess of 9 hours, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate. . . " Under Rule 25 (1) (b) this overtime rate is double the ordinary rate of wages.

Therefore, an employer can take actual work on any day upto 9 hours in a 12 hour shift, but he must pay a double rate for any hour or part of an hour of actual work in excess of 9 hours.

He need not, however, pay for any interval of rest provided it is specified beforehand.

These provisions are subject to 641 one more check which we may now mention.

The check is found in the latter part of Rule 25(1) which says that the maximum number of hours of work in a week shall not exceed 48 and for any work in excess of 48 hours a week overtime shall be payable.

As there is a prescribed day of rest in a week we get a working week of six days with a maximum of 48 hours ' work.

Average duration of actual work payable at ordinary rate of wages per day thus comes to 8 hours.

Thus if an employer takes actual work for 8 hours per day on 6 days in a week he complies with all the provisions and need not pay overtime.

He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week.

He can specify the intervals of rest and spread the 8 hours or 9 hours, as the case may be, together with intervals of rest over 12 hours in a twelvehour shift.

These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be pre determined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention.

We have seen that an employer having a 12 hour shift can fix 48 hours of work per week of six days at 8 hours per day.

He is not compelled to give overtime for the remaining four hours unless he takes work during those hours, provided he has specified those hours as intervals of rest.

If he takes work during the extra 4 hours or fails to specify the hours of rest he must pay overtime.

He can spread 8 hours with intervals of rest to 9, 10, 11 or 12 hours as he likes.

For the hours of rest he is not required to pay overtime but he must specify those hours.

Overtime under section 14 is only payable when the workman works in excess of the number of hours constituting a normal working day.

That number is 9 hours for any day and work up to 9 hours on any day can be taken without paying overtime if the total number of hours in the week does not exceed 48.

As in the present case the total number of hours of work in a week is 48 (8 hours per day for 6 days) overtime is payable for that hour or part of an hour beyond the 8 hours in which the workman is either made to work or the interval is not specified.

The Port Trust can say that it will not take more than two hours extra work on any day and specify the remaining two hours as the intervals for rest.

It is, not compelled to fix only one interval or to make the interval of one hour only.

It can fix two or three or even four without in any way going against the provisions of section 13 or Rule 24.

642 At this stage it is instructive to look into the provisions of the dealing with the daily hours of work, intervals for rest and spread over of the working time.

Sections 54, 55 and 56 are the relevant provisions.

Omitting the portions not necessary for the purpose of comparison, these sections read "54.

Daily hours.

"54.Daily hours Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day Provided. . . "55.

Intervals for rest.

(1) The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.

(2). . . . "56.

Spread over.

The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55 they shall not spread over more than ten and a half hours in any day: Provided that the Chief Inspector may, for reasons to be specified in writing, increase the spread over to twelve hours.

" Almost the same provisions are to be found in some other Acts of the State Legislatures controlling shops, establishments etc.

It will be noticed that the arrangement of these sections is almost the same as the cognate provisions of the .

Here too, the hours of work cannot be more than 9 in a day and taken with the intervals for rest these 9 hours may be spread over 10 1/2 hours.

The only difference is that a worker must not be made to work for more than 5 hours at a stretch before he has had an interval for rest of half an hour at the least.

There is no provision in the which breaks up the hours of work by interposing a compulsory period of rest as is done by the latter part of section 55 of the .

The reason, perhaps, is that in some employments time for work depends on some 643 extraneous factors and hours of rest cannot always be fixed to, break up those hours.

It is proverbial that time and tide do not wait for any man.

Workers at a tidal dock must work when the tide is in and take their rest when the tide is out.

It is for this reason that a variable recess is in force at the Prince 's and Victoria Docks and due.

notice of the interval is given by specifying a day in advance the hours of rest.

We do not think that the Trustees are guilty of infraction of the by keeping the recess variable so long as they specify in advance the recess on any particular day.

It will also be noticed that the scheme of the compels the inclusion of an hour of rest in a normal working day.

This is achieved by pres cribing that the hours of work in a six day week shall not exceed 48, although on any particular day the hours of work in a day may go up to 9.

In this indirect way one hour of rest is included in a normal working day because the total number of work hours in a six day week cannot go beyond 48.

What has not been done by the Act or the Rules is to specify that the interval for rest shall break up the hours of work.

The Trustees cannot be compelled to break up the hours of work by interposing intervals for rest, if owing to the nature of the work there is difficulty in giving the intervals for rest in that manner on any particular day.

According to their resolution the recess is fixed as near the middle of the work as possible, depending on the tides.

The workmen compared the case of the Prince 's and Victoria Docks with the cases of the Alexandra Docks and the Flotilla Crew.

They point out that in the former there is 3 hours ' overtime and in the latter there is 4 hours of overtime in the 12 hour shifts, but at the Prince 's and Victoria Docks there is 2 hours ' overtime only.

They claim equal treatment.

This is not possible.

The crew at the Prince 's and Victoria Docks work in a different way and their case cannot be compared with that of the Flotilla Crew or the crew at the Alexandra Docks.

The Flotilla Crew has to remain on duty for full 12 hours and they work as and when they are required.

Although their hours of duty are only 8 they are entitled, if present for work, for overtime up to four hours.

The crew at the Alexandra Docks get a specified interval of one hour for rest and this makes up their 9 hours which is 8 hours ' work and one hour interval for rest.

They are, therefore, entitled to three hours ' overtime if required to work beyond the 9 hours on any day.

There is no parallel in the work of the three different crew and we are satisfied that no conclusion can be based upon the practice existing at the Alexandra Docks or in 644 respect of the Flotilla Crew.

We hold, therefore, that the decision of the Central Government Industrial Tribunal is right in a circumstances of this case.

The appeal must therefore fail.

It will be but in the circumstances of the case we make no order about costs.

Appeal dismissed.

Summary: The respondent had under its control several docks.

Summary: The trustees Of the respondent introduced a two shift system of work and that resulted in the crew working in some docks getting 4 hours of overtime in some docks 3 hours of overtime and in others 2 hours of overtime only.

Summary: In the last category the 12 hours shift wag divided in to 8 hours of work, 2 hours of rest and 2 hours of overtime.

Summary: The 2 hours period of rest was variable depending on the tides or the exigencies of the work, though the crew were informed each day what the, period of rest would be on the following day.

Summary: The appellants, who belonged to this category, complained that the breakup of the 12 hours shift into 8 hours of duty, 2 hours of rest and 2 hours of overtime offended the , and that the system of variable recess did not satisfy the requirements of rest which is the basis for fixing statutorily the hours of work in relation to wages.

Summary: The Industrial Tribunal held that the appellants were not able to establish that the existing system of work needed any modification.

Summary: In appeal to this Court, HELD: There was no breach of the provision of the and the case of the appellants could not be compared with that of the crew working at the other docks, because, there wag no parallel in the work of the three different sets of crew.

Summary: [643 H] If an employer takes actual work for 8 hours per day on 6 days in a week he complies with the relevant provisions of the Act and the Rules, namely sections 13 and 14 of the Act and rr.

Summary: 24 and 25 of the Minimum Wages (Central) Rules 1950, and need not pay overtime.

Summary: He may go up to 9 hours on any day without paying any overtime provided he does not exceed 48 hours in the week.

Summary: He can specify the intervals of rest and spread the 8 or 9 hours, as the case may be, together with intervals of rest over 12 hours in a twelve hour shift.

Summary: These periods of rest must not be periods during which the workman is on duty and inaction is due to want of work for him, but they must be predetermined periods of inaction during which the workman is neither called upon nor expected to display physical activity or sustained attention.[641 B D] In the present cage the total number of hours of work in a week was 48 (8 hours per day for 6 days).

Summary: Therefore overtime was payable beyond the period of 8 hours, for that hour or part of an hour during which the workman was either made to work or the interval of rest was not specified.

Summary: The respondent can say that it will not take more that two hours extra work on any day and specify the remaining two hours as the intervals for rest; and the Trustees would not be guilty of infraction of the Act by keeping the recess variable so long as they specify 633 in advance the recess on any particular day.

Summary: The Trustees could not be compelled to break up the hours of work by interposing intervals for rest.

Summary: [641 G H; 643 B C, D E]


Civil Appeal No. 3909 of 1986.

From the Judgment and order dated 29.9.1986 of the Allahabad High Court in C.R. No. 83 of 1986.

Shanker Ghosh and P K. Jain for the Appellants.

Y.S. Chitale.

Madan Lokur, Prashant Bhushan, Beni Parshad, Rajinder Dhawan and Jitendra Sharma for the Respondents.

This appeal arises out of a judgment passed by the High Court of Allahabad in Civil Revision No. 83 of 1986 wherein the learned Judge of the High Court allowed the revision petition set aside the judgment and decree of the Trial Judge and decreed the plaintiff suit for ejectment of the appellant.

The disputed property was let out on June 25, 1976.

The accommodation was for the first time assessed for house tax by the Nagar Palika Ghaziabad with effect from October 1, 1976.

The suit was filed for eviction after termination of tenancy before the trial court and objection was raised that as the shop and the basement were separately let out the tenancy could not be terminated by a single notice that would be invalid.

The trial court therefore dismissed the suit.

The High Court set aside this conclusion of the trial court.

The main ground which was before the High Court was as to whether the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( 'Act ' for short) will be applicable to these proceedings in view of the fact that although the premises were let out in June 1976 but as the assessment was made on October 1, 1976 the provisions of the Act referred to above will not apply for 10 years from October 1, 1976 and therefore the suit could be decreed as the protection available under this Act will not be available to the tenant.

High Court after discussing various decisions came to the conclusion that in view of the language of Section 2 sub clause 2 Explanation 1, it could not be doubted that period of 10 years will commence from 160 the date of assessment i.e. October 1, 1976 that it is in that view of the matter that the learned Judge of the High Court decreed the suit and hence the present appeal.

Learned counsel for the appellant contended that apart from the controversy about the date which should be the starting point for computing the period of 10 years in view of the language of Sections 39 and 40 of the Act, provisions of this Act will be applicable to the present case and therefore a decree for eviction could only be passed.

If it could be passed on anyone of the grounds mentioned in Section 20 clause 2 of this Act in support of this contention the learned counsel placed reliance on decisions in Om Prakash Gupta etc.

vs Dig Vijendrapal Gupta etc.

, 11982] 3 SCR 491 and Vineet Kumar vs Mangal Sain Wadhera, [ On the other hand learned counsel for the respondent contended that the rights of parties will be governed on the basis of the date on which the suit was filed and it was contended that if on the date on which the suit was filed by the respondent the provisions of this Act were not applicable then merely because the proceedings have been pending for all these years it could not be contended that as now 10 years elapsed the decree could not be passed.

Learned counsel placed reliance on a decision in Firms Amar Nath Basheshar Dass vs Tek Chand, 11972] 3 SCR 922 and contended that this is a decision of three Judges Bench which clearly hold that if the suit was filed within a period of exemption then the suit could be decreed and the provisions of the Act will not be applicable.

Learned counsel further contended that in the decision in Vineet Kumar 's case (supra) on which reliance has been placed by learned counsel for the appellant the Firms Amar Naath Basheshar Dass 's case (supra) has not been referred to and decision in Vineet Kumar 's case (supra) is a judgment by a Bench of two Judges.

It was also contended by learned counsel that as till the matter was pending in the High Court 10 years have not been completed and therefore the High Court passed the decree Now it could not be contended that as during the pendency of the proceedings in this Court 10 years have elapsed and therefore the appellant tenant will be entitled to protection of the provisions of Section 20 It was contended that it is well settled that if the right to file a suit accrues on the date of tiling of the suit then the rights will have to be determined on the basis of the law applicable on the date of the suit and not subsequently.

Learned counsel for the appellant contended that the decision in 161 Firms Amar Nath Basheshar Dass 's case (supra) will not be applicable to the present case as in that case this Court was considering the language of a notification issued under the East Punjab Act exempting buildings from the operation of the Act for five years and the view taken by this Court in that decision is based on the language of the notification issued whereas in view of the language of Sections 39 and 40 of the Act which is applicable to the present case that view is not possible and it is because of this that in Vineet Kumar 's case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant will be entitled to the benefit of the provisions of the Act.

It was contended that in this decision the Court was concerned with the provisions of Section 2 of the Act itself.

Before this Court also the only question that was raised on behalf of the parties was as to whether the provisions of the Act will be applicable or not and as to whether the protection granted to the tenants under this Act will be available to the present appellant Learned counsel for the appellant contended that as during the pendency of this matter in this Court 10 years have elapsed even if the date of completion is taken to be 1.

10.76 which is the date on which the first assessment of this property was made and during the pendency of this matter 1.

10.86 has been crossed now the period of exemption has come to an end and therefore the appellant is entitled to the benefits thereof.

In the alternative it was contended that even if it is held that the rights of parties have to be determined in respect of the date on which the suit was filed still because of the language of Sections 39 and 40 of this Act the appellant tenant will be entitled to protection under this Act Sub clause (2) Sec.

2 of the Act reads as under: "(2) Except as provided in sub section (5) of Section 12, sub section (1 A) of Section 21, sub section (2) of Section 84, Sections 24 A, 24 B, 24 C or sub section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid 162 period of ten years then the reference in this sub section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter: Explanation I For the purposes of this sub section, (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants: (b)"construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.

" A perusal of this provision will clearly indicate that the new buildings constructed have been exempted from the operation of this Act for a period of 10 years.

This period of 10 years have to be computed in the manner from the date as indicated in Explanation 1 and it was contended by learned counsel for the respondents that it will be the date on which the first assessment was made and so far as this question is concerned, it is also concluded by a decision of this Court in Om 163 Prakash Gupta 's case (supra) where it has been clearly held while interpreting Sec.

2 Explanation I of this Act that if there is an assessment made then the date of completion of the building, the date from which 10 years are to be computed will be the date on which the first assessment was made.

In this view of the matter therefore it is clear that 10 years have to be computed from 1. 10.76, and it is because of this that even the learned counsel for the appellant did not seriously contend that the 10 years commence from 1.10.76.

It is true that the decision reported in Firms Amar Nath Basheshar Dass 's case (supra) is a decision on the Punjab Act where the question before this Court was about the language of the notification which was issued under the Act exempting the buildings from operation of the Act for a period of S years and it is true that the language of the notification was not identical with the language of Sec.

2 sub clause 2 quoted above.

But apart from it the contention advanced by the learned counsel for the appellant was that because of the language of Section 39 and 40 even if the matter is pending in this Court and 10 years have elapsed, appellant will be entitled to the benefit of the provisions of this Act because according to him the appeal will be a continuation of the suit and therefore the advantage will be available.

It is no doubt true that the appeal is the continuation of the suit and if within the language of Section 39 the appellant is entitled to the advantage of the Section even if the matter is pending in this Court the protection will be available to the appellant but looking to the language of Section 39 it appears that the contention of the learned counsel could not be accepted.

Pending suits for eviction relating to buildings brought under regulation for the first time In any suit for eviction of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine cent per annum and the landlord 's full cost of the suit, no decree for eviction shall be passed except on any of the grounds 164 mentioned in the proviso to sub section (1) or in clauses (b) A to (g) of sub section (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary: Provided that a tenant the rent payable by whom does not exceed twenty five rupees per month need not deposit any interest as aforesaid:" It is pertinent to note that this Section applies to those suits which were pending on the date of the commencement of this Act.

Admittedly this Act came into force on 15th July, 1972 and therefore if the suit was pending on that date it is only then that the provisions of Section 39 will come to the assistance of the tenant appellant.

Admittedly this suit was not pending on the date on which this Act came into force.

An attempt was made to contend that so far as the present property is concerned the Act will be deemed to have come into force on the expiry of 10 years i.e. 1.10.86 but this contention could not be accepted as it is very clear from the language of this Act that it applied I only to a suit pending on the date of the commencement of this Act and this is the view taken in the Om Prakash Gupta 's case wherein it was observed: "Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act.

There is yet another reason why section 39 will have no application to the present case.

It is therefore clear that so far as the present appeal is concerned, the provisions of Section 39 will be of no avail.

Section 40 of the Act reads as under: "40.

Pending appeals or revisions in suits for eviction relating to buildings brought under regulation for the first time Where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provisions of Section 39, which shall mutatis mutandis apply." 165 This Section talks of the pendency of a revision or an appeal arising out of a suit pending on the day on which this Act came into force.

It is clear that provisions of Section 40 will come to the rescue of the appellant tenant only if the suit from which revision or appeal arose was pending on the date of commencement of this Act i.e. 15.7.1972 and therefore it could not be contended that the present revision petition or the appeal either to the High Court or the appellate authority arose out of suit which was pending on the date on which this Act came into force.

Admittedly the suit itself was filed much after the coming into force of this Act.

In this view of the matter therefore, in our opinion, even this contention of learned counsel for the appellant could not be accepted.

It is well settled that the rights of the parties will be determined on the basis of the rights available to them on the date of the suit, but in Vineet Kumar 's case (supra) this Court took the view that if during the pendency of the proceedings 10 years have elapsed the tenant is entitled to the protection under the Act and in coming to this conclusion the Court also considered the language of Section 39 of the Act and it observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency c.f the litigation.

We see no reason why the benefit of the new Rent Act be not given to the appellant.

Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section.

Subsection (4) of section 20 stipulated that in any suit for eviction on the grounds mentioned in Cl.

(a) to sub section

(2) viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for the use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord 's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section (1) of section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground.

Section 39 and 40 of the new Rent Act also indicate that the benefit of new Act will be given 166 to the tenant if the conditions contemplated in those sections are satisfied.

Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. " But unfortunately attention of the Court was not drawn to the Om Prakash Gupta 's case (supra) which specifically considered this Act and the language of Section 39 in particular and is a decision of a Bench of three Judges which is binding on us.

The restriction on the right of a landlord to evict a tenant has been provided for in this Act under Section 20 and the language of Section 20 is also significant.

Bar of suit for eviction of tenant except on specified grounds (1) Save as provided in sub section (2) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: Provided that nothing in this sub section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceedings, which is either recorded in court or otherwise reduced to writing and signed by the tenant.

" This is put in Chapter IV with the heading "Regulation and Eviction" and the section starts with title which is printed in bold "Bar of suit for eviction of tenant except on specified grounds" and again in the wording of the section itself it provides: "No suit shall be instituted for eviction.

" This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applies then no suit for eviction can be instituted except on the grounds specified in the sub sections of this Section.

Keeping in view the language of this Section if we examine the provisions contained in sub section (2) of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in clause (2) of Section 2 restriction of the 167 institution of suit as provided for in Section 20 clause (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even of 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 can not be attracted.

In the light of the discussions above therefore, in our opinion, the contention advanced by learned counsel for the appellant can not be accepted.

The appellant tenant could not be given the advantage of the provisions contained ' in this Act.

In this view of the matter therefore the appeal is without any substance and is dismissed.

It is true that we maintained the decree for eviction passed by the High Court but in view of the fact that as the appellant has been carrying out the business in the premises for a long time for it would be proper to permit the appellant time to make their arrangements for shifting.

We therefore direct that the decree for eviction shall not be executed upto 3 1st March, 1988 on the appellant filing a usual undertaking within four weeks.

In default the respondent shall be entitled to execute the decree forthwith.

In the circumstances of the case parties are directed to bear their own costs.

S.L. Appeal dismissed.

Summary: The appellants are the tenants of the disputed property.

Summary: Respondent plaintiff 's suit for eviction of the appellants was dismissed by the trial court.

Summary: The High Court in revision set aside the judgment and order of the trial court and decreed the suit for ejectment of the tenants appellants.

Summary: The tenants appealed to this Court.

Summary: Dismissing the appeal, the Court, HELD: Under the provisions of sub section (2) of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, newly constructed buildings stand exempted from the operation of the Act for a period of ten years, which has to be computed from a date to be determined in the manner indicated in Explanation I to section 2(2), which in this case is the date on which first assessment of the premises in dispute was made for house tax by the Nagar Palika, i.e. October 1, 1976.

Summary: Provisions of Sections 39 and 40 are of no avail to the appellants as the suit for their eviction was not pending on July 15, 1972, when the Act came into force; the suit being filed much later after coming into force of the Act.

Summary: Provisions of the Act are not applicable to the appellants ' case and the protection thereunder granted to the tenants is not available to them.

Summary: [166G H; 164C, F] In view of the fact that the appellants had been carrying on business in the premises in question for a long time, the decree for eviction directed not to be executed till March 31, 1988, subject to the appellants ' filing usual undertaking (within four weeks).

Summary: [167C D] Om Prakash Gupta, etc.

Summary: vs Dig Vijendrapal Gupta, etc., [19821 3 S.C.R. 491 and Vineet Kumar vs Mangal Sain Wadhera, [1985] A.l.

Summary: R. S.C. 817, relied upon by the appellants.

Summary: 159 Firm Amar Nath Basheshar Das vs Tek Chand, [19721 3 S.C.R. 922, relied upon by the respondent.


Appeal No. 787 of 1964.

Appeal from the judgment and decree dated January 5, 1961 of the Calcutta High Court in Appeal from Appellate Decree No. 1012 of 1955.

A.K. Sen and D. N. Mukherjee, for the appellant.

Sukumar Ghose, for respondent No. 1.

The Judgment of WANCHOO, C. J. and MITTER, J. was delivered by MITTER, J. BHAGAVA, J. delivered a separate Opinion.

Mitter, J. 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.

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 172 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 section 3 of the Act as he was a thika tenant within the meaning of the Act as it was finally amended.

He also observed that section 4 of the Act would be applicable.

The landlord went up in appeal once more to the High Court.

On this occasion, the main plank of the argument on behalf of the landlord was that with the omission of section 29 civil courts became unable to remit ejectment suits to the controller with the result that the Act as finally amended could not apply to pre Act suits and thika tenants could get no relief under the Act.

The learned Judges of the Division Bench of the High Court found themselves unable to accept this argument and held that the only power vested in civil courts in respect of ejectment suits against 173 thika tenants like the present one was to be found in sections 28 and 29 of the original Act and by their omission from the statute "suits for eviction became infructuous before civil courts".

In the result, they dismissed the appeal.

We have now to trace the relevant changes in the law made from time to time and see whether the landlord was entitled to eject Abdul Gaffur notwithstanding the Act as amended from time to time.

The first attempt to give relief to persons described as thika tenants was made by West Bengal Ordinance No. XI of 1948 promulgated on October 26, 1948.

The Ordinance had only six sections.

Section 2 defined a thika tenant ' as meaning any person who under the system commonly known as "thika" "thika masik utbandi", "thika masik", "thika bastu", or under and other like system held land under another person whether under a written lease or otherwise and was, or but for a special contract would be, liable to pay rent at a monthly or any other periodical rate, for that land to such other person and had erected any structure on such land and was entitled to use it for residential purposes or for manufacturing or business purposes and included the suc cessors in interest of such person.

Section 3 Provided that notwithstanding anything contained in any other law for the time being in force, no decree or order for the ejectment of a thika tenant shall be executed during the continuance in operation of the Ordinance.

We need not consider the proviso to the section as we are not concerned with the condition mentioned therein.

It is to be noted that by the definition of thika tenant, a person could only get the protection of the Ordinance if he could establish that he was holding land under any of the systems expressly mention ed or any other like system.

A comprehensive Act was later passed i.e., West Bengal Act II of 1949 which, as already noted, came into force on Feb ruary 28, 1949.

The definition of a thika tenant was modified slightly but the change affected thereby need not be taken account of because the respondent Gaffur 's position was not improved thereby.

The incidents of thika tenancy were mentioned in various sections from section 3 to section II contained in Chapter 11 of the Act.

section 3 provided that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall, subject to the provisions of the Act, be liable to ejectment from his holding on one or more of the specified grounds and not otherwise.

The six grounds mentioned are: (i) failure to pay an arrear of rent due to the landlord in respect of the holding; (ii) user of the land comprised in the holding in a manner when rendered it unfit for any of the purposes mentioned in cl.

(5) of section 2 (the definition of a thika tenant) or violation of a condition consistent with the Act by a breach of which he was under the terms of a contract between himself and his landlord liable to be ejected; (iii) refusal to agree to pay rent at such enhanced rate as might be determined under section 25; (iv) requirement 174 of the land by the landlord for his own occupation or for the purpose of building on the land or otherwise developing the land except during any period limited by a registered lease under which the tenant might be holding; (v) failure on the part of the holding for his own residential, manufacturing or business purpose for more than six consecutive months (omitting the priviso); and (vi) on the expiry of a registered lease in favour of the tenant.

S 4 provided: "It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in section 106 of the : (a) in the case where he wishes to eject the thika tenant on any of the grounds specified in clauses (i), (ii), (iii) and (iv) of section .1 at least one month 's notice in writing expiring with the end of a month of the tenancy; and (b) in the case where he wishes to eject the thika tenant on the ground specified in clause (iv) of section 3 at least three months ' notice in writing expiring with the end of a month of the tenancy.

" The section has two provisos one of which laid down that no thika tenant Shall be ejected from his holding on any of the grounds specified in cls. '(iv) and (v) of _. 3 except on payment to him or 0 deposit with the Controller for payment to him such compensations might be agreed upon 'or might be determined in ' 'the manner prescribed by"the Controller.

5 enacted that: "(1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribedmanner to the Controller for an order in that behalf and,on receipt of such application, the Controller shall after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order. " The section further provided that no ' order allowing an application was to be made unlesscompensation payable to the tenant was either deposited with the Controller or paid to the tenant Chapter IV of the Act, by several sections, provided for appeals, reviews etc.

Under section 27 any person aggrieved by an order of the Controller might present an appeal in writing either to the Chief Judge of the Court of Small Causes in the Presidency town or to 175 the District Judge of a district in which the holding was situate.

Sub section

(5) of the section provided for reviews.

Section 28 enactect that: "Where any decree or order for the recovery of possession of any holding from a thika tenant has been made before the date of commencement of this Act but the ' possession of such holding has not been recovered from the thika tenant by the execution of such decree or order, the Court by.

which the decree or order was made may, if it is of opinion that the decree or order is not in conformity with any provision of this Act other than sub section (1) of section 5 or section 27, rescind or vary the decree or order in such manner as the Court may think fit for the purpose of giving effect to such provision and a decree or order so varied by any Court shall be transferred by such Court to the Controller for execution under this Act as if it were an order made under and in accordance with the, provisions of this Act".

Section 29 ran as follows: "The provisions of this Act shall apply to all suits and proceedings, including 'proceedings _ in execution, for ejectment of a thika tenant which are pending at the date of commencement of this Act, and if any such suit or proceeding relates to any matter in respect of which the Controller is competent after the date of such commendment to pass orders under this Act, such suit or proceeding shall be transferred to the Controller who shall on, suit transfer 'deal with it in accordance with the provisions of this Act as if this Act had been in operation on, the date of institution of the suit or proceeding: Provided that in applying the provisions of the Act to any suit or proceeding instituted for the ejectment of a thika tenant so transferred, the provisions regarding notice in section 4 of this Act shall not apply".

Section 33 provided that on the expiry of the Calcutta Thika Tenancy Ordinance, 1948, the provisions of section 8 of the Bengal General Clauses Act, 1899 would apply as if it were an enactment then repealed by a, West Bengal Act.

It will be noted from the provisions of the Act that it was intended to benefit all thika tenants expressly covered thereby.

Unfortunately, the Act did not afford any real protection to persons for whom it Was meant because of the peculiar definition of thika tenant in it.

A series of decisions of the Calcutta High Court shows that the tenants failed to get any relief because they could not prove any system either of the kind specifically mentioned in section 2 sub section

(5) or an other like system.

It is however 'clear that the benefit of section 28 was available only if the decree or order for the recovery of possession had been made before the date of the commencement of the Act but 176 possession of such holding had not been recovered from him.

Section 29 on the other hand was made applicable to all proceedings including proceedings in execution which were pending at the date of the commencement of the Act.

No exception was made under section 29 to cases where possession of the holding had been recovered from the thika tenant.

The consequence was that even if the tenant had lost possession but any proceeding even arising from an execution proceeding was pending, the provisions of the Act would be attracted.

If any such pending suit or proceeding related to any matter in respect of which the Controller was competent to pass orders, the suit or proceeding would be transferred to the Controller who would deal with it in accordance with the provisions of the Act just as if the Act had been in operation on the date of the commencement of the suit or proceeding.

The only qualification was that even if the suit had been filed before the Act but was riot disposed of by that date, the landlord had to establish that be was entitled to possession because of the existence of any of the grounds mentioned in section 3.

He was however not to be bound he could not have done because of the passing of the Act after the filing of his suit.

As already stated, the Act failed to achieve its object see Murari vs Prokash(1) and Mohammad Mateen vs Baijnath Bajoria.(2) To get over this difficulty, an Ordinance, namely, the Calcutta Thika Tenancy (Amendment) Ordinance, XV of 1952 was promulgated on October 21, 1952.

By section 2 of this Ordinance, the definition of thika tenant in the Calcutta Thika 'Tenancy Act, 1949 was substituted by a new one, namely: "(5) thika tenant ' means any person who holds, whether under a written lease or otherwise, land under another person, and is but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successor in interest .of such person, but does not include a, person: (a) who holds such land under that another person in perpetuity; or (b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or (c) who holds such land under that another person and uses or occupies such land as a khattal".

(1)A.I.R. 1950 Calcutta 230.

(2)A.T.R. 1951 Calcutta 358.

177 Other amendments were made in different sections of the Act.

The most important one was however that contained in section 5 sub section

(1) of this section which enatced that "Save as provided in sub section (2), the provisions of the said Act as amended by this Ordinance, shall apply to all cases pending before a Court or Controller on the date of the commencement of this Ordinance".

Sub section

(2) of section 5 provided as follows: "If, at any time between the commencement of the said , 'Act and of this Ordinance, a decree or order has been passed for the recovery of possession of any land and for other relief, if any, and delivery of possession has not been given, then on application made in this behalf by the person against whom the decree or order was passed, within three months of the commencement of this Ordinance, the Court which or the Controller who passed the decree or the order shall decide (after hearing the parties and after taking fresh evidence if necessary) whether the person is a thika tenant within the meaning of the said Act as amended by this Ordinance.

If the Court or Controller holds that the person is not such a thika tenant.

it or he shall dismiss the application.

If the Court or Controller holds that the person is such a thika tenant.

it or he shall set aside the decree or the order and annul the execution proceedings, if any, and (ii) where the proceedings are before a Court it shall remit the case to the Controller to be dealt with by him according to law.

(iii)where the proceedings are before the Controller he shall reopen the case and pass a new order".

Sub section

(4) provided that the provisions of this section would have effect notwithstanding anything to the contrary in any other law or elsewhere in the said Act as amended by the Ordinance.

The second Explanation to the section provided that the expression " court" would include a court exercising appellate or revisional jurisdiction and the expression 'controller ' meant the controller referred to in sub section

(2) of section 2 of the Calcutta Thika Tenancy Act, 1949 for the time being in force or the person deciding an appeal under section 27 of the Calcutta Thika Tenancy Act, 1949 for the time being in force as the case may be.

The effect of this was that a person who before the Ordinance would not come within the pale of the Act because he could not prove a system came within its protection because of the amendment of the definition of a thika tenant.

Sub section

(1) of section 5 made the Act, as amended by the Ordinance, applicable to all cases pending before a court or a controller.

This was irrespective of the question whether the suit had been filed before the Act or 178 after the Act, or whether a decree had been passed before the Act or thereafter.

Sub section

(2) of section 5 made a special provision for cases where a decree or order for possession had been made between the commencement of the Act and of the Ordinance and delivery of possession had not been given to the decree holder.

In such a case it became open to a person covered by the new definition of a thika tenant to make an application within three months of the commencement of the Ordinance either to the court or to the Controller as the case may be for relief on the basis that the applicant was a thika tenant.

Such an application could be made even if, the decree for ejectment had become final and order, for recovery of possession made but actual delivery of possession had not been given.

In such a case, if it was found that the person applying was a thika tenant, the court before whom the proceedings were pending had to remit the case to the controller and if the authority before whom the application was made was a controller, he had to re open the case and pass a new order.

If the matter was in appeal, the appellate court had to exercise jurisdiction under this sub section, determine whether the tenant was a thika tenant and send the matter to the controller 'if it was found that the tenant was entitled to the benefit of the Act '.

Even if no proceedings were pending in any court, it was open to the thika tenant to apply for relief provided delivery of possession had not been given.

Finally came the Thika Tenancy (Amendment) Act (VI of 1953).

It made important changes in the Act itself.

It came into force on March 14, 1953 on which date the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 ceased to operate.

Sub section (2) of section 1 provided that the Act was to come into force immediately on the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 ceasing to operate: provided that the provisions of the Calcutta Thika Tenancy Act, 1949 as amended by this Act were subject to the provisions of section 9 to apply and be deemed to have always applied to all suits, appeals and proceedings (a) before any court, or (b) before the Controller, or (c) before a person deciding an appeal under section 27 of the said Act, on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952 i.e., 21st October, 1952.

Section 2 of the Act amended the definition of 'thika tenant ' still further by giving the benefit of the Act to persons who had erected or acquired by pur chase or gift any structure on the land for a residential, manufacturing or business purpose and was to include the successors in interest of such person.

The word 'successor in interest ' had not been defined in the Act or in the Ordinance but as words in the Act were under section 2 sub section

(6) to have the same meaning as those used in the and the Bengal Tenancy Act, 1885 it would, but for the amendment of the definition of a thika tenant, have meant only those persons who inherited from tenants and 179 not those who acquired by purchase.

Sections 3, 4 and 5 introduced changes with which we are not concerned, Section 8 laid down that sections 28 and 29 of the Act of 1949 shall be omitted.

Under section 9 any proceedings commenced under sub section

(2) of section 5 of the Calcutta Thika Tenancy (Amendment) Ordinance were to be continued as if such sub sections

(2), (3) and (4) of that section and the Explanation to that section were in force.

The net result seems to be that after the Amendment Act of 1953 came into force, the position of a tenant had to be examined in the light of the Act as it finally emerged.

Sub section

(2) of section 1 made the provisions of the Calcutta Thika Tenancy Act, 1949 as amended by the Act of 1953, applicable to all suits, appeals and proceedings pending on 21st October before any court or before the controller or before a person deciding an appeal under section 27 of the Act.

No reference is made in this subsection to the date when the suit was instituted.

Only suits which were pending on 21st October 1952 were to be decided in terms of the Act as finally amended.

The question therefore arises, whether a tenant could claim the benefit of the Act in a. pre Act suit.

It is a general principle of law that statutes are not to operate retrospectively so as to defeat vested rights, but such operation may be given by express enactment or by necessary implication from the language employed.

According to Craies on Statute Law (Sixth Edition) at p. 391: "If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation".

The learned author points out at p. 397: "It is a well recognised rule that statutes should be interpreted, if possible, so as to respect vested rights, and such a construction should: never be adopted if the words are open to another construction. . .

For it is not to be presumed that interference with existing rights is intended by the, legislature, and if a statute be ambiguous the court should lean to the interpretation which would support existing rights.

" Again at page 398, the learned author states: "In the absence of anything in an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a slaim in litigation at the time when the Act is passed, . .

Where, however, the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to the intention of the legislature even though there is no express reference to pending actions".

180 Reference may be made to the case of Knight vs Lee(1) where Parke B. in his judgment, said: "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation".

This was decided in terms of the Gaming Act, 1845, section 18 of which enacted that " no suit shall be brought or maintained for recovering any such sum of money " and the question was whether that enactment was retrospective so as to defeat an action already commenced.

The Gaming Act,1922 enacted that "no action for the recovery of money under the said section (section 2 of the Gaming Act, 1835) shall be entertained by any court".

In Headling vs Goll(1) it was held that the section was not retrospective and that the Act did not operate to put an end to pending actions.

According to Halsbury 's Laws of England, third edition, Vol. 36, page 413, article 627: "Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property or so as to deprive a man of his property without his having an opportunity of being heard".

The provisions of the Act of 1949 as finally amended by the Act of 1953 have to be examined to show how far they disturb the rights of landlord to recover possession of the property from a person who would be a thika tenant on 28th February, 1949.

Section 3 of the Act which cuts down the right of the landlord to recover possession except on the grounds therein specified musi be held to apply to all suits even though filed before 28th February 1949.

The language of the section leaves no room for doubt as to this.

It expressly states that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall be liable to ejectment on ground specified and not otherwise.

Consequently, a landlord who had filed a suit before the 28th October 1949 but was unable to ,establish any of the grounds mentioned in section 3 could not claim to eject his tenant.

But the provisions of sections 4 and 5 of the Act are not couched in the same kind of language as section 3.

The legislature clearly meant section 4 to be prospective because according to its language "the landlord who wishes to eject the thika tenant (1) (2) 39 Times Law Reporter 31. 181 must give at least one month 's notice in writing" or three months ' notice as the case may be.

A landlord who had already filed the suit before the Act had evinced his intention and the question of his wishing to eject the thika tenant afresh after the Act or giving a notice for the purpose did not arise.

Again section 5 lays down in clear terms that a "landlord wishing to eject a thika tenant" on one or more of the grounds specified in section 3 "shall apply in the prescribed manner to the controller".

This is only consistent with the wish of a landlord after the Act has come into force.

Before the Act had come into force, the landlord could not possibly know that his suit would be liable to be defeated unless he applied to the controller because there was no such authority functioning then.

The section shows clearly that when a landlord wished to eject a thika tenant after the Act had come into force, he had to consider whether any of the grounds in section 3 was available to him, and if so, he did not have to file a suit but apply to the controller for an order in that behalf.

The language of sections 4 and 5 leave no room for doubt that after the coming into force of the Act it was not open to the landlord to file a suit.

He could only make an application under section 5 after giving notice under section 4.

Sections 28 and 29 of the Act which were omitted as a result of the enactment of the Act of 1953 bring this out in clear terms.

Section 28 was meant to give relief to a thika tenant in a case where a decree or order for recovery of possession of any holding from a thika tenant had been made before the date of commencement of the Act.

It could not apply to the facts of a case like the present where the decree was made after the Act had come into force.

Section 29, on the other hand, shows that it was to be applicable to all suits and proceedings which were pending at the date of the commencement of the Act of 1949.

In other words, it was to apply to any suit or appeal or any proceeding in execution which was pending on 28th February, 1949.

In any such case, the suit or proceeding wherever it was pending had to be transferred to the controller.

The controller in his turn had to deal with the matter in accordance with the provisions of the Act of 1949 as if it had been in operation on the date of the institution of the suit or proceeding which might be before the commencement of the Act; but he was to deal with all pre Act suits on the basis that no notice under section 4 was necessary.

If the legislature did not want to impose the bar of section 4 to pre Act suits in 1949 it does not stand to reason that the legislature should seek to impose it in the year 1953 to be operative in all suits pending not on February 28, 1949 but on 21st October, 1952.

The logical conclusion is that the legislature always proceeded on the basis that section 4 was prospective.

The language of section 5 being closely similar to that used in section 4 that section should also be held to be prospective only.

182 We cannot speculate as to why the legislature thought fit to omit sections 28 and 29 from the Act of 1949.

The effect of omission of section 28 has been considered by this Court in Mahadeolal Kanodia vs Administrator General of West Bengal(1) where it was held that a thika tenant against whom proceedings for execution of the decree for eviction were pending and who had applied for relief under section 28 lost the protection of that section as a result of the Amending Act of 1953.

The effect of omission of section 29 is that we must measure the rights of the parties in the appeal before us on the 'basis that the section had never been on the statute book.

The situation which arises as a result thereof is that we must deal with the rights of the parties to a suit filed before the Act of 1949 was enacted in terms of such provisions as were clearly applicable thereto.

As Abdul Gaffur came under the definition of a thika tenant by the Amending Act of 1953 we have to proceed on the basis that he was such a tenant in 1949 with the result that he could claim the benefit of section 4 of the Act.

As already noted, sections 4 and 5 could not be made to apply to such a suit which in the view expressed, were prospective and not retrospective.

Consequently, the absence of a notice under section 4 would not stand in the way of the landlord nor could his suit be rejected on the ground that he had not applied to the controller.

There being no provision for transfer of the proceedings of the suit to the controller, the court had to apply the Act as it found applicable to the facts of the case.

It is open to the legislature to impose a bar or a qualification to the rights of the parties by the use of suitable words such as "notwithstanding any law to the contrary or in any agreement between the parties".

In such a case, a litigant desiring to have relief in a suit must show that the bar does not affect his case.

For instance, it is open to the legislature to enact that notwithstanding the rights which a landlord may have against a tenant under the ordinary law of the land, he shall not be entitled to eject the tenant unless he makes out a special ground for eviction, as has been done by section 3 in this case.

Most of the Rent Control Acts all over India contain similar provisions and courts have always held such provisions applicable to pending proceedings.

Whereas before the enactment of the Calcutta Thika Tenancy Act, 1949 it was not necessary for the landlord either to allege any of the grounds specified in section 3 or to prove the existence thereof at the hearing of the suit, he had to establish the existence of such a ground when the suit was heard.

The ground need not be specified in the plaint, but nevertheless it had to be established in the suit.

In this case, the learned Subordinate Judge, Seventh Court, Alipore who was directed by the remand order of the Calcutta High Court to take fresh evidence, if necessary, was not called upon by any of the parties to hear or record fresh evidence.

He however directed his attention to the (1) [1960]3 S.C.R. 578.

183 question as to whether the tenant appellant was entitled to press into service the provisions of sections 3 and 4 of the Act.

According to him both these sections would apply to the facts of this case.

The learned Subordinate Judge seems to have been of the opinion that it was necessary to state some ground under section 3 on the basis of which the landlord wanted to eject the tenant.

Referring to the notice of ejectment served in this case, he said: "Not any one of the grounds as enumerated in section 3 was called in aid or could be called in aid".

He was not right in his view that the grounds specified in section 3 could not be called in aid.

Section 3 does not purport to lay down that the grounds mentioned therein had got to be stated in the notice of ejectment.

All that the section lays down is that ejectment could not be had unless the existence of one of the grounds was proved.

Such proof could have been adduced at the trial even if no mention of the grounds had been made before.

As section 4 of the Act was prospective only, it could not apply to this case.

The decision of the Subordinate Judge is however right inasmuch as the landlord made no attempt to establish any of the grounds for eviction mentioned in section 3.

The decision of the High Court, when the matter was heard for the second time must be upheld on that ground.

However, the. view expressed by the Calcutta High Court finally hearing the appeal that suits for eviction of thika tenants became infructuous before civil courts after the omission of section 29 is not correct.

The correct view is that sections 4 and 5 being prospective and as such inapplicable to pre Act suits, the landlord had to establish the existence of one of the grounds specified in section 3 in order to succeed.

There being no provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account section 3.

The tenant could not however ask for any compensation for the structures but could only remove them in terms of section 108(h) of the Transfer of Proper ty Act.

For reasons we cannot speculate upon, the legislature limited the applicability of the Act only to suits and appeals pending on 21st October 1952 and not in February, 1949 i.e. the date of the commencement of the Act of 1949.

It may be because before the Ordinance of 1952 no one could establish his rights as a thika tenant in view of the vague definition of "thika tenant" in the Act of 1949 which led to the decisions of the Calcutta High Court against persons who sought to establish their rights as such.

The legislature cannot be taken to have imposed a ban on all pre Act suits by the circuitous process of sections 4 and 5 of the Act.

It could then have said in clear terms that all pre Act suits shall be stayed.

Clearly that never was the intention of the legislature as section 29 of the Act of 1949 amply demonstrates.

In the result, as the landlord has not established any of the grounds specified in section 3 entitling him to ejectment, the appeal 184 must be dismissed.

On the special facts of the case, we make no order as to costs.

Bhargava, J. I agree with the judgment of my brother, Mitter, J. with the exception that I would like to reserve my opinion on the question whether section 4 of the Calcutta Thika Tenancy Act, 1949, as amended up to 1953, is prospective or not.

On the view that this appeal must be dismissed because the respondent was entitled to the benefit of section 3, it does not appear to me to be necessary to express any opinion on whether compliance with section 4 was also required, or whether it being prospective only no such compliance by the appellant was needed.

Summary: In June 1948 the appellant instituted a suit against the first respondent and others for their ejectment from the property in suit, On February 28, 1949 the Calcutta Thika Tenancy Act came into force.

Summary: The first respondent was not a thika tenant within the definition therefore of given in the Act.

Summary: The suit was decreed by the Munsif in March 1949.

Summary: In November 1949 the appeal filed by the first respondent was ,dismissed by the first appellate court.

Summary: He then filed a second ,,appeal in the High Court which was heard in 1954.

Summary: Before that the Calcutta Thika Tenancy (Amendment) Act, 1953 was passed.

Summary: Under this Act the first respondent came within the definition of thika tenant.

Summary: The High Court remanded the case to the Subordinate Judge for trying the case in the light of the amended Act.

Summary: The Subordinate Judge held that the first respondent was a thika tenant and could not be ejected as none of the grounds mentioned in section 3 of the Act had been established by the appellant.

Summary: The latter appealed to the High Court and urged that with the omission of section 29 in the 1953 Act Civil Courts became, unable to remit ejectment suits to the Rent Controller with the result that the Act as amended could not apply to pre Act suits.

Summary: The High Court however took the view that after the omission of sections 28 and 29 from the Act suits for eviction before civil courts became infructuous and, accordingly, dismissed the appeal.

Summary: The appellant with certificate came to this Court.

Summary: The questions that fell for consideration were: (i) whether the tenant could take the benefit of section 3 in a pre Act suit, (ii) whether in view of the omission of sections 28 and 29 from the Act the civil courts had jurisdiction to try such a suit.

Summary: HELD:Per Wanchoo C.J. & Mitter J. (i) While it is a general principle of law that statutes are not to operate retrospectively so as to defeat vested interests; such operation may be given by express enactment or by necessary implication from the language employed.

Summary: The language of section 3 leaves no room for doubt that it is retrospective since it expressly states that notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant will be liable to ejectment on grounds specified therein and not otherwise.

Summary: [179 D E; 180 F G].

Summary: Knight vs Lee, and Beadling vs Goll, 39 Times Law Reporter 31, referred to.

Summary: Section 3 does not purport to lay down that the grounds mentioned therein have got to be stated in the notice of ejectment.

Summary: All that the section lays down is that ejectment could not be had unless the ,existence of one of the grounds was proved.

Summary: Such proof could have been adduced at the trial even if no mention of the grounds had been made before.

Summary: The appellant not having given such proof the case was rightly decided against him.

Summary: [183 C D].

Summary: 171 (ii) However In a pre Act suit no notice under section 4 could be insisted on as that section , clearly prospective.

Summary: Section 5 which required proceedings to be filed before the Controller was also clearly prospective.

Summary: [180 H; 181 A; B H].

Summary: (iii) The High Court was wrong in holding, that suits for the eviction of thika tenants became infructious before civil courts after the omission of sections 28 and 29.

Summary: There being no longer any provision for transfer of pending suits and appeals, the court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account section 3.

Summary: [183 D F].

Summary: Per Bhargava, J. This appeal must be dismissed because the respondent was entitled to the benefit of section 3.

Summary: It was not necessary to express any opinion whether compliance With section 4 was also required or whether it being prospective only no such compliance by the appellant was needed.

Summary: [184 B].