1960 (4) TMI 48 - SC - Indian Laws

With a view to give protection to Thika tenants against eviction and in certain other matters, the West Bengal Legislature enacted the Calcutta Thika Tenancy Act, 1949. That Act was amended by the Calcutta Thika Tenancy Amendment Act, 1953, which omitted s. 28 of the Act.

Summary

Issues Involved:
1. Applicability of Section 28 of the Calcutta Thika Tenancy Act after its omission by the Amendment Act of 1953.
2. Interpretation of Section 1(2) of the Calcutta Thika Tenancy (Amendment) Act, 1953.
3. Judicial propriety and the practice of referring questions to a larger Bench in case of differing opinions.

Detailed Analysis:

1. Applicability of Section 28 of the Calcutta Thika Tenancy Act after its Omission by the Amendment Act of 1953:
The principal question in this appeal was whether the provisions of Section 28 of the Calcutta Thika Tenancy Act could be applied by a court in a case where an application had been made by a tenant for relief under that section, and such application was pending for disposal on the date the omission became effective due to the Amendment Act of 1953. The court noted that Section 28 provided special protection to tenants against whom decrees or orders had been obtained but possession had not been recovered. However, the Amendment Act of 1953 omitted Section 28, raising the issue of whether pending applications under this section could still be disposed of under its provisions.

2. Interpretation of Section 1(2) of the Calcutta Thika Tenancy (Amendment) Act, 1953:
The decision hinged on the interpretation of Section 1(2) of the Amendment Act, which states that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by this Act, shall apply and be deemed to have always applied to all suits, appeals, and proceedings pending before any court on the date of the commencement of the Calcutta Thika Tenancy (Amendment) Ordinance, 1952. The court held that the phrase "as amended by this Act" qualifies the Calcutta Thika Tenancy Act, 1949, in its entirety, including omissions. Therefore, the amended Act without Section 28 applied to all pending proceedings, including the tenant's application for relief under Section 28, which was pending on the crucial date.

3. Judicial Propriety and the Practice of Referring Questions to a Larger Bench:
The court expressed regret that the High Court judges, who heard the present appeal, did not follow the usual procedure of referring the question to a larger Bench when they disagreed with an earlier decision of two judges of the same High Court in Deorajan Debi v. Satyadhan Ghosal (1953) 58 C.W.N. 64. The court emphasized that judicial decorum and propriety necessitate that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference should be made to a larger Bench. This practice ensures the quality of certainty in law and avoids confusion among lawyers and subordinate courts.

Conclusion:
The court concluded that the view taken by the High Court, that the effect of Section 1(2) of the Calcutta Thika Tenancy (Amendment) Act, 1953, is that all pending applications under Section 28 of the original Act must be dismissed, was correct. The court dismissed the appeal but ordered that parties bear their own costs due to the uncertainty in the law regarding the applicability of Section 28 to proceedings pending on the commencement of the Thika Tenancy Ordinance, 1952.