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Petitioner: KUMIR MONDAL AND OTHERS VS Respondent: PARAMATHA NATH CHOWDHURY AND OTHERS
P L D 1963 Dacca 886
P L D 1963 Dacca 886
Before Hassan and Idris, JJ
KUMIR MONDAL AND OTHERS‑---Appellants
versus
PARAMATHA NATH CHOWDHURY AND OTHERS‑ --Respondents
Appeal from Appellate Order No. 42 of 1960, decided on 23rd July 1962.
(a) Bengal Tenancy Act (VIII of 1885), S. 3 (17) proviso (as amended by Bengal Tenancy (Amendment) Act (IV of 1928) Proviso neither retrospective nor debars a bargadar from plea of tenancy‑Status to be determined with reference to circumstances of case: [Abu Nasser Sayedullah v. Abdul Malik P L D 1960 Dacca 587 rel.]
(b) Interpretation of Statutes‑Retrospectively‑Not to be inferred unless clearly arising from the Act‑Not to impair existing rights‑Vested rights cannot be affected without express provision's to that effect.
Md. Jani Alam with Sultan Ahmad for Appellants.
B. N. Chowdhury with Haradhan Sarkar for Respondents.
S. M. Mohsan Ali for the Deputy Registrar.
JUDGMENT
HASSAN, J.‑On 18th of February 1929, the plaintiffs purchased the property described in schedule Ka of the plaint by four different kabalas. It was their case that after the purchase they possessed the property either in khas in their own cultivation or through bargadars. In Chaitra, 1959 B. S. the defendants took yearly settlement with a condition to pay half the produce but by amendment dated 30th of June 1959, the word "Sankarari" "Yearly" was deleted and in place of 1361 B. S. was introduced at the time of hearing of the suit. The defendants did not deliver half crops for 1363 and 1364 though delivered for the previous year. Hence they instituted the suit for recovery of Rs. 4,100 as described in the schedule Ka of the plaint.
2. The suit was contested by the defendants pleading inter alia that the suit was not maintainable in its present form, that the defendants were not bargadars but they were tenants from their ancestors, that the suit land comprised two korfa jotes of their father Imam Mondal, rent being half the produce which had been recorded as such in the C. S. records, that the rent for 1362 B. S. was paid to the plaintiffs, and that the plaintiffs were not entitled to get rent for the years 1363 and 1364 B. S., as the plaintiffs' rent‑receiving interest had been acquired by Govern ment. They also challenged the quantum of the produce and the price thereof.
3. The trial Court dismissed the suit holding that the plaintiffs or their vendors bad never been in khas possession of suit land, that the defendants with their predecessors‑in‑interest had been in possession since the inception of the tenancy, that the defendants were not bargadars but were tenants, that the defendants had paid rent for the years up to 1362 B. S. and that the plaintiffs were not entitled to get any rent for the years 1363 and 1364 B. S., as their rent‑receiving interest had been acquired by Government.
4. On appeal at the instance of the plaintiffs four points were raised and only one was decided by the learned District fudge. Under point No. 1, question arose before the appellate Court whether in view of the provisions of the proviso of clause (17) of section 3 of the Bengal Tenancy Act the defendants could claim tenancy right. Relying on the case of Abu Nasser Sayedullah v. Abdul Malik alias Mala and another (P L D 1960 Dacca 587) it was held against the defendants and the other points were not decided by the learned District Judge, but the case was sent back for the purpose of fresh decision on the evidence on record and on further evidence necessary, as in the opinion of the learned District Judge evidence on those points was not sufficient and the learned Subordinate Judge did not decide those points by implication. Hence this appeal by the defendants.
5. The soundness of the interpretation given by the learned District Judge to the proviso to clause (17) of section 3 of the Bengal Tenancy Act has been questioned before us. Clause (17) of section 3 of the Bengal Tenancy Act runs as follows after the amendment:
"`Tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person
Provided that a person who, under the system generally known as "Adhi", "Barga" or "Bhag" cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless‑
(i) such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or
(ii) he has been or is held by a Civil Court to be a tenant."
6. The cases placed before us by the learned Advocates go to show that the interpretation of the proviso came for con sideration for the first time in the case of Suresh Chandra Dutta and others v. Mohendra Chandra De and others (34 C W N 845). In that case it was held that the proviso to subsection (17) of section 3 of the Bengal Tenancy Act as amended by the Bengal Tenancy (Amendment) Act IV of 1928 was not retrospective in its operation. Thereafter in some other cases the matter came up for consideration and from the subsequent cases it appears that the aforesaid case reported in 34 C W N 945 was distinguished on the ground that the period for which the suit was instituted was previous to the introduction of the proviso to subsection (17) of section 3 of the Act. In the case of Sishu Mohon Koyal and others v. Rojendra Nath Sorkor and others (A I R 1938 Cal. 707) it was held that bargadar was entitled to put up a defence of his tenancy in a suit for the period previous to the introduction of the proviso, but that defence was not available to a bargadar for a period subsequent to the introduction of the proviso. It further appears that in that case a bapga kabuliyat was executed by the defendants in favour of the plaintiffs of that case in 1923. The next case placed before us is the case of Abu Nasser Sayedullah v. Abdul Malik alias Mala and another which is a decision by a Single Judge of this Court and on which reliance has been placed by the learned District Judge in support of his decision. It appears from the said decision of this Court that the case reported in A I R 1938 Cal. 707 referred to above and the case of Digambor Poul Ghosh and others v. Tafazuddi Ijarder (37 C W N 1033) were relied on for the purpose of the decision in A I R 1931 Cal. 707. From the case reported in 3 7 G W N 1033, it appears that the case referred to a dispute under section 48 of the Bengal Tenancy Act. Before the introduction of the new section 48 in the year 1928 the rent payable by an under‑tenant or under‑raiyat to his superior landlord could not have exceeded certain limits. But after the introduction of section 48 in Chapter VII of the Bengal Tenancy Act in 1928 the only limit to the rent payable by the under‑tenant is that the rent agreed upon shall not be less than the rate of rent payable by the raiyat to his landlord. So the limit provided for maximum rent to be realised from the under‑tenant was removed and under this section any maximum amount of rent can be agreed upon between the tenant the under‑raiyat. So the subject‑matter of decision in 37 C W N 1033 was what would be the amount of rent payable by the under‑raiyat to his landlord and it was held that rent could not be realised for a period previous to the amendment in 1928 more than the limit imposed by the previous section; but after the amendment any maximum rent could be realised for a period subsequent to the amendment. So, it appears that the question was not that any right that was to be taken away but what amount of rent could be recovered from the under‑tenant after the amendment. It did not also lay down that the rent agreed upon between the parties, before the introduction of section 48 could not have been enforced for a period subsequent to the introduction of section 48. All that has been laid down that after the amendment and under‑raiyat can be made liable by a contract to pay more than the limit that could be recovered previously. So, in my opinion, this decision does not come to any help for the purpose of interpretation of the proviso to sub section (17) of section 3 of the Bengal Tenancy Act.
7. Now let me take into consideration the case reported in Y L D 1960 Dacca 587. If I have correctly understood the principle laid down in that decision, it was to the effect that a bargadar could plead his tenancy in respect of the period previous to the introduction of the proviso, but he was not entitled to plead the same bar for a period subsequent to the introduction of the proviso. The following observation of the learned Judge is pertinent:
"The Legislature, to my mind, should have introduced clear provisions into the statute to show that the previous position was not sought to be disturbed if that was its intention."
So that decision amounts to this that the proviso was not retros pective but was applicable to a period subsequent to the introduction of the proviso, thus creating an anomalous position, namely once a tenant could not be considered a tenant for a subsequent period. 1n the case of The Commissioner of Income -tax, Bengal v. Messrs Moholirom Rainjidos (44 C W N 929=1940 P C 124), it was laid down by their Lordships of the Judicial Committee:
"A construction so unreasonable and unpractical ought not to be preferred when another construction is open."
8. The first point before me for consideration whether the proviso is retrospective and the second point is whether this proviso is a bar to a bargadar to plead tenancy in a suit for a period subsequent to the introduction of the proviso. Before I proceed with interpretation of subsection (17) of section 3 of the Bengal Tenancy Act 1 intend to state some well‑settled rules of interpretation of statutes. At pages 1, 2 and 3 of Maxwell's Interpretation of Statutes, ninth edition, the following is relevant for the purpose of interpretation:
"p. 1: A statute is the will of the Legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded `according to the intent of them that made it If the words of the statute are in themselves precise and unambiguous no more necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The object of all inter pretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only; but when the statute expresses no intention on a question to which it gives rise, and yet some intention must necessarily be imputed to the Legislature regarding it, the interpreter has to determine it by inference grounded on certain legal principles.
p. 3 : The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one and, otherwise, in their ordinary meaning ; and, secondly, that the phrases and sentences are to be construed according to the rules of grammer."
At page 221 of the said volume, we find the following passage :‑
"Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statures a retrospective operation Nova constituto futuris Forman imponere debet, non proetristis. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enact ment."
From Craies on Statute Law, fifth edition, the following passage at page 64 is relevant
"2. Construction according to intention: --‑The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of the Parliament which passed them."
At page 368 of the same volume, we find the following passage
"Presumption against taking away vested rights: -‑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 con struction.
p. 369: And 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 o a claim in litigation at the time when the Act is passed ".
9. Having in view the aforesaid cardinal rules of inter pretation of statutes we are to see what was the intention of the Legislature in passing the proviso to subsection (17) of section 3 of the Bengal Tenancy Act.
10. It is admitted that before the introduction of this proviso any bargadar could have pleaded that he was a tenant and not a bargadar as claimed by the plaintiffs and that is also the trend of the decisions relied on by both sides. Now the question is whether by this proviso the right that already vested in a bargadar had been taken away by introduction of the proviso in the Act. According to the decisions relied on by the plaintiffs respondents already quoted before it appears that the bargadar could be a tenant for a period previous to the introduction of the proviso but could not be a tenant after the introduction of the proviso. If this interpretation be accepted as correct then it will amount to saying that the right of the tenant was taken away by the proviso or in other words, the proviso is retrospective but that position has not been accepted by those decisions. Now we are to see whether that right has been taken away either expressly or by unambiguous implication by the Legislature. In the proviso we find the following three things:
(i) whether such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or
(ii) whether he has or is held by a Civil Court to be a tenant ; and
(iii) reference to a certain period.
11. Now the question would be which point of period is referred to by the word `‑has". In my opinion, the pointer is not the time at which the proviso was introduced but the time at which the dispute arose or arises. If, before the dispute arose or arises, any bargadar was admitted to be a tenant by his landlord then it will be sufficient defence in a subsequent suit, for recovery of barga produce that he was not a bargadar but a tenant. This word "has" also does not debar a landlord to accept a bargadar as a tenant even during the pendency of the suit. Take for instance that a suit is instituted by the Ammuktear of the absentee landlord for recovery of half the barga produce alleging that the defendant was a bargadar. But in fact the defendant had been already recognised by the landlord though not in writing but by words and actions and the defendant gets the landlord examined, who admits in Court that he had already admitted the defendant as a tenant. So a bargadar can be treated as a tenant if there is a recognition even during the pendency of a certain dispute ; it might be after the introduction of the proviso. If we look to (ii) of the proviso,, this becomes more clear and as in it we find two phrases (1) `has/ been held' and (2) `is held' by a Civil Court. The words "has been held" to my mind indicate the time before the institution of the suit and not before the introduction of the proviso. The words "is held by a Civil Court" are clear enough to show that though the bargadar was not recognised expressly as a tenant by the landlord or has not been, already, held by the Civil A Court as a tenant, yet, the Court can take into consideration the evidence and the circumstances in the case and come to a finding that the bargadar is a tenant. So the words "is held by the Civil Court" do not debar a Civil Court to find the defendant bargadar as a tenant and those words are also a pointer that a bargadar is not debarred from pleading that he is a tenant for a period subsequent to the introduction of the proviso as held in the case of Abu Nasser Sayedullah v. Abdul Malik alias Malal and the case of Sishu Mohan Koyal and others v. Rajendra Nathi Sarkar and others. I am of opinion the aforesaid interpretation) that has been given by me above is the literal and grammatical meaning of the words of the proviso; and that interpretation is arrived at without any violence to the language of the enactment and that was the intention of the Legislature. Accordingly I hold that the proviso is neither retrospective nor does it debar the bargadar to plead that he is a tenant, but only has laid down certain rules for determination of the status.
12. Now the question is whether the case should be sent back on remand to the lower appellate Court as that Court did not decide the three other points which the lower appellate Court had to consider before it. In my opinion no useful purpose will be served by sending the case back on remand, as the lower appellate Court had accepted the finding of the trial Court that he was a tenant for a period previous to the intro duction of the proviso but relying on the case of Abu Nasser Sayedullah v. Abdul Malik alias Mala came to the finding that plea of tenancy would not be available in view of the decision therein. I have already found that the interpretation that had been given in that decision is not a correct one, that the bargadar is entitled to put the defence in any dispute either by saying that he had been already recognised by the landlord or found by the Civil Court as a tenant or the materials on the record are sufficient to show that he is not a bargadar as claimed by the plaintiff but a tenant. The learned Subordinate Judge who tried the suit took into consideration the evidence adduced by the parties and dealt with it elaborately and after giving cogent reasons he came to the finding that neither the plaintiff nor the predecessors‑in‑interest had ever been in khas possession of the suit land and possessed the same as tenant. This finding is also supported by the C. S. records‑of‑rights published in 1919. There nothing has been shown as to how the tenancy right acquired by the defendants had been lost. The case that was set up by the plaintiffs that the defendants were bargadars since 1361 B. S. had not been believed by the trial Court or by the lower appellate Court inasmuch as the learned District Judge held that the defendants were tenants for a period prior to the introduction of the proviso. The learned Subordinate Judge who tried the suit also accepted the plea of the defendants that half the barga produce was paid by the defendants in 1362 B. S. and nothing could be recovered from the defendants for 1363 and 1364 B. S. as the plaintiffs' rent receiving interest had been acquired by the Government. It is not disputed that if the defendants be held as tenants then the plaintiffs cannot claim any rent for the period 1363 and 1364 B. S. From the evidence I am convinced that the defendants are tenants under the plaintiffs. Furthermore, in view of my finding that the defendants are not bargadar but tenants the suit for recovery of barga produce is not maintainable.
13. I accordingly allow the appeal, set aside the judgment and order of the lower appellate Court and restore the judgment and decree of the trial Court. But in the circumstances; of the case, we make no order as to costs.
IDRIS, J.‑‑The question raised in this appeal is whether the defendants are tenants or bargadars. In the C. S. record of‑rights, the suit lands have been recorded in the name of Imam Mondal, father of the defendants, in korfa with half the produce as the annual rent. The C. S. record‑of‑rights were finally published long before the Bengal Tenancy (Amendment) Act, 1928, hereinafter called the Act. Mr. Jani Alain the learned Advocate for the appellants, has contended that the proviso to clause (17) of section 3 of the Act is not retrospective in effect and that the status of the defendants as tenants must be taken to be continuing after the amending Act of 1928.
15. Mr. B. N. Chowdhury, the learned Advocate for the respondents, has contended in reply that in view of the intro duction of the proviso to clause (17) of section 3 of the Act, the defendants are mere bargadars and cannot be regarded as tenants. In support of this contention, Mr. Chowdhury has referred to the cases of Sishu Mohan Koyal and others v. Rajendra Nath Sarkar and others, Digombor Paul Ghosh and others v. Tofozuddin Ijordor and the case of Abu Nasser Sayedullah v. Abdul Malik alias Mold.
16. The facts in the case reported in A I R 1938 Cal. 707 are that the land in suit were taken in barga settlement by the defendants by a barga kabuliyat on condition of paying half the produce to the plaintiffs. This kabuliyat was executed in 1923, that is long before the Amending Act of 1928. The suit was brought for price of barga crops for 1340 to 1342 B. S. corresponding to 1933 to 1935. Defendants raised the plea that they were tenants and not bargadars. It has been held that having regard to the facts of the case, defendants were bound by the amendments made in section 3 (17) of the Act and were not tenants. But in the present case, no barga kabuilyat was executed by the defendants or by their predecessor‑in‑interest.
17. In the case of Digambar Paul Ghosh and others v. Tofozuddi Ijordar it has been laid down that in a suit by the landlord of an under‑raiyat for recovery of arrears of rent of an under‑raiyati, he was entitled to recover rent under the old section for the period in respect of which cause of action arose before the Amending Act came into force; but in respect of the period for which cause of action arose after that date, he was entitled to recover rent under the new section 48 of the Act. In that case, the question of rate of rent was involved, while in the present case, we are concerned with the question of status of the defendants.
18. The facts of the case in P L D 1960 Dacca 587 are that the plaintiff instituted the suit for recovery of money being the price of barga crops grown on land which he alleged that defendants held under him as bargadars. The claim of the plaintiff was for price of barga‑crops for 1363 and 1364 B. S. The defence was that defendants were not bargadars but that they were holding the land as tenants on payment of half the produce as rent. In the C. S. Khatian, the person who was said by the plaintiff to have taken the barga lease, was recorded as a raiyati Shtitiban tenant. It has been laid down that before the introduction of the proviso to clause (17) of section 3 of the Act even a bargadar could be a tenant under the Bengal Tenancy Act, but that after the introduction of the proviso, this is not possible unless the exceptions therein are satisfied and that the defendants could not succeed in their claim of being tenants under the provisions prevailing prior to the introduction of the said amendment. If I have followed the decision correctly, the effect of this decision is that section 3 (17) is retrospective in operation, as a person who acquired right as a tenant prior to the Amending Act was deprived of that right in view of the introduction of the proviso to clause (17) of section 3 of Amending Act. The following observation was made in that case: --‑
"The Legislature, to my mind, should have introduced clear provisions into the statute to show that previous position was not sought to be disturbed if that was its intention."
With great respect I cannot agree that a person who has acquired right as a tenant prior to the Amending Act of 1928 could be deprived of that right by introduction of the proviso to clause (17) of section 3 of the Act.
19. Vested rights cannot be affected by an Amending Act operating retrospectively in the absence of express provisions to that effect. This view finds supports in the case of Haidur Husain v. Puran Mal and others (A I R 1935 All. 706) and in the matter of Tripural Modern Bank Ltd. v. Her Highness Mohorani Regent Mohodebi of Tripura and others (A I R 1950 Cal. 240). It has been laid down to these cases that a retrospective operation is not to be given to statute so as to…
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