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TMI Blog1951 (7) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... the opposite party was a monthly tenant of one room on the first floor of the said premises paying a monthly rental of ₹ 24-12-0. The tenant failed to pay the rent payable by him for the three consecutive months of March, April and May, 1949, whereupon the petitioner brought proceedings in the Court of Small Causes, Calcutta, to eject the opposite party. By reason of Section 12(3) of the West Bengal Rent Control Act, of 1948 the tenant's interest was ipso facto determined upon his failure to pay the rent for the three consecutive months already mentioned and an order was made evicting the opposite party. This order had not-been executed when the West Bengal Rent Control Act of 1950, was passed and an application was made by the tenant under Section 18(1) of the-1950 Act. for vacating the order for possession. The arrears of rent were deposited in Court and an order was made vacating the previous order for possession and it is this order which is the-subject of this revision. 3. The petitioner in Civil Revision No. 1370' of 1950. is the owner of premises known as 44/1 Sir Hariram Goenka Street, Calcutta whereas the opposite party was the tenant of one room in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances existing when that piece of legislation was enacted. Drastic remedies may be necessary to meet conditions giving rise to serious and urgent problems and a piece of legislation which may well impose unreasonable restrictions in one set of circumstances may be eminently reasonable in a different set of circumstances. The Rent Acts in this State were enacted to meet the grave housing shortage caused by the last Great War and the congestion particularly in the cities and towns of West Bengal caused by the War and the partition of the province in the year 1947. There can be no doubt that the war and the partition created very serious problems in this State. During the war building was to a very large extent at a standstill and after partition lakhs of people flocked into this State, particularly into Calcutta and the large towns of the State. That the Government of West Bengal was faced with a serious problem is, I think clear and it was to meet that problem that these Acts were from time to time enacted. 8. Rent Control Acts were found to be necessary in England after the first World War. Building practically ceased during that wan and after the termination thereof there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estriction on the landlord's rights. What has to be considered is whether these restrictions on the landlord's rights are justified having regard to the circumstances which would inevitably arise if landlords were free to charge what rent they wished. It appears to me that in the interests of law and order and good Government, restrictions on the landlord's rights were absolutely necessary, for otherwise thousands of tenants would have been ejected and persons would have been compelled to pay far more than they could afford for most inferior accommodation. In considering whether the restrictions imposed on the landlords are reasonable regard must be had to the position of the tenants. Would it be in the interest of good Government and in the public interest generally for thousands of people to be rendered homeless and for thousands of others to be compelled to pay exorbitant rents and to be literally' at the mercy of their landlords? It appears to me that in the circumstances existing in this country and particularly in this State, the control of rents during the war and particularly after partition, was essential and had any Government failed to take action in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 1 7 . Sub-section (3) of Section 12 provided that if a tenant failed for three consecutive months to pay rent which has accrued due after the passing of that Act, the interest of such tenant in the premises was ipso facto determined and he was no longer to be deemed a tenant of the premises. 18. It will be seen therefore that Section 12 of the 1948 Act, dealt with three classes of arrears of rent; (a) arrears which had fallen due before the Act was passed; (b) arrears which had fallen due after the Act was passed, but did not include arrears of three consecutive months; (c) arrears which had accrued due for three consecutive months after the passing of the Act. Section 12 of the 1948 Act, gave the tenant an opportunity of paying the arrears of classes (a) and (b), but the arrears of class (c) could not be paid to save the tenant's interest. If rent for three consecutive months was not paid the tenancy was ipso facto determined and the tenant became a trespasser without any protection whatsoever. 19. It appears to have been felt that the tenant should be given further protection and that decrees or orders for recovery of possession which had already been made which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the purview of Section 18(1) of the Rent Control Act of 1950. Further by reason of Section 5 of the Amending Act of 1950, the Act was made retrospective and made to apply to all pending cases. 22. It is to be observed that this Amending Act appears to have been drafted very hurriedly and the effect of it has been to give tenants who had defaulted for three consecutive months in the payment of rent the relief intended by Section 18(1) of the 1950 Act, but to deprive all other tenants against whom orders of possession had been made for failure to comply with the provisions of Section 12(1) and (2) of the 1948 Act of all relief. What this Court had held in the cases to which I have referred was that the two latter classes only were entitled to relief and that the third class, namely, tenants who had defaulted in the payment of rent for three consecutive months, were not entitled to relief. The effect of the Amending Act of 1950, therefore was to deprive the persons, whom this Court had held were entitled to relief, of all relief and to give to the persons, whom this Court had held not to be entitled to relief the relief given by that sub-section. Whether this was intentional or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed by the petitioners upon a recent Bench decision of this Court in 'SUBODH GOPAL v. BEHARI LALM' ANU/WB/0014/1951 : AIR1951Cal85 , in which it was held that Section 7 of the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 was ultra vires the Constitution in that it imposed a restriction on the right to hold property greater than was necessary in the interests of the general public. The Bench gave great weight to the fact that certain amendments to the Bengal Land Revenue Sales Act, 1859, had been made retrospective and were for that reason unreasonable. 27. It appears to me that the present cases differ greatly from the case of 'SUBODH GOPAL BOSE' AIR1951Cal85 , above referred to. The Bengal Revenue Sales Act, 1859, had been in force for nearly a hundred years and though some of its provisions in the circumstances now existing were no longer necessary to ensure the payment of land revenue no special circumstances were suggested which made amendment of that Act urgent and imperative. Before the amendments contained in the Amending Act, purchasers at auction-sales conducted under the Act bought what was practically an estate in possession as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of West Bengal at the time the Amending Act of 1950 was passed were such as to make it quite reasonable to give the provisions of Section 18(1) of the 1950 Act as amended retrospective effect. 3 0 . There can be no doubt that a large number of tenants in this State and particularly in the city of Calcutta had been sued under the provisions of Section 12(3) of the Rent Control Act of 1948 and a large number of decrees and orders had been made for possession on the ground that the tenants' interest had been ipso facto determined. There can be no doubt that the intention of the Legislature was when it enacted the Rent Control Act of 1950, to grant relief to all classes of tenants against whom orders for possession had been made on the ground of failure to pay rent. The result of the two decisions of this Court to which I have made reference was that that class of persons whose tenancies had been ipso facto determined, were found to be without any protection whatsoever. I think it is common knowledge that these two decisions of this Court affected a very large number of persons and the result would have been that these persons would have been ejected as the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Republic of India. Legislation may be essential to redress some urgent grievance, for example, in a particular State, though such legislation would be wholly unnecessary in any other State. The fact that such legislation would not affect citizens in other States would not in my opinion make it impossible to say that such legislation was not in the interests of the general public. The phrase in the interests of the. general public means I think nothing more than in the public interest , and it may well be that legislation affecting a limited class of persons or a limited area might well be legislation in the public interests, though the public of other parts of India might not be directly affected by such legislation. The matter may be in the interest of the general public, though the public generally may not be directly affected by such legislation. If they are indirectly affected such would be quite sufficient to make such legislation in the public interest. Legislation affecting a particular class or a particular, area would only directly affect the members of that class or the inhabitants of that particular area. But the removal of some serious abuse or grievance or disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for this Court to do anything more than to take a general view of the circumstances existing when the impugned legislation was passed and that this Court could not meticulously weigh all the circumstances which might be said to make this piece of legislation reasonable or unreasonable in the interests of the general public. He contended that unless the legislation was clearly unreasonable on the face Of it this Court would be bound to hold that the legislation was reasonable, because the legislature must be deemed to have so held when they passed the legislation. Whether a piece of legislation imposes reasonable or unreasonable restrictions on a fundamental right in the interest of the general public might be a matter of very great difficulty and it appears to me that the Courts must take a broad view of the circumstances existing when such legislation was passed. Legislation which appears to have been arbitrary and based on no reason would clearly be ultra vires the Constitution. Such was the case of 'CHINTAMAN RAO v. STATE OF MADHYA PRAD ESH', [1950]1SCR759 : 1950 SCR 759, at p. 763, Mahajan, J., who delivered the judgment of the Board observed: The phrase 'reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution gives a citizen a right to acquire, hold and dispose of property and it appears to me that the right to hold property includes the right to enjoy the same. A restriction on the right to hold property may be something less than a deprivation of such property. Deprivation of property is dealt with in Article 31 of the Constitution and Clause (1) of that Article provides that no person shall be deprived of his property save by authority of law. Where a person's enjoyment of property is restricted it appears to me that his right to hold the property is restricted. If a person cannot do with his property as he wishes his rights of enjoying that property have been restricted. His rights of enjoyment are part of his rights to hold the property, because property is held by a citizen to enjoy the same or to enjoy the profits and advantages of the same. Interference with the right of enjoyment is I think clearly an interference with the right to hold property and therefore had I been of the view that the impugned legislation amounted to an unreasonable interference with the landlord's right to enjoy his property, I should have been bound to hold the subsection to be ultra v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provides by sub-section (1) that: Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired: * * 42. It is clear that the protection given by this sub-section is a protection against not only decrees for the recovery of possession but also against any orders for recovery of the same. The protection is given to the tenant sued not only in the High Court or in the Court of a Subordinate Judge or Munsif, but also to a tenant sued in the Small Cause Court. That being so, there appears to be no reason whatsoever why the relief given by Section 18(1) of this Act as amended, should be confined to tenants against whom a decree in the true sense of the word had been obtained, that is, should be confined to tenants against whom the High Court or a district Court or a Court of the Subordinate Judge or Munsif had pronounced, and not to a tenant upon whose case a Small Cause Court had pronounced. 43. Further, it appears clear from the marginal note of this section that the intention was to give r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in 'ATULYA DHAN v. SUDHANGSU BHUSAN', 55 Cal W N 343 in which it was held that the expression decree for recovery of possession in subsection (1) of Section 18 of the West Bengal Premises Rent Control Act, 1950, includes an order for recovery of possession made under Ch. VII of the Presidency Small Cause Courts Act, 1882. 47. It appears to me that the Court is bound to give the word decree in this subsection a wider meaning that it ordinarily bears and that being so I hold that the opposite parties were entitled to claim relief under sub-s, (1) of Section 18 of the Rent Control Act of 1950. 48. Lastly it was contended in Civil Revision Case No. 1370 of 1950 that the tenant in that particular case could have no relief because the order of the Presidency Small Cause Court in that case was an order made by consent. It was contended that Section 18 (1) of the Rent Control Act of 1950 could only apply if the order was made on the ground of default in the payment of arrears of rent under the provisions of the West Bengal Premises Rent Control Act of 1948 and therefore that sub-section could not apply if the order was made on the ground of an agreement entered int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce it is held that S- 18 (1) of the West Bengal Rent Control Act of 1950, as amended by the later Act of 1950, is intra vires and applies to orders of the Small Cause Court the applications of the tenant were bound to succeed. Even if the subsection did not originally apply, to cases where orders had been made on the ground that the tenancies had been ipso facto determined, nevertheless as the result of Section 5 of the Amending Act of 1950, Section 18 (1) of the original Act of 1950 now applies and applies only to cases of orders for recovery of possession made against tenants whose tenancies had been ipso facto determined under the provisions of Section 12 (3) of the Act of 1948. By Section 5 of the Amending Act of 1950 Section 18 (1) must be deemed always to have applied to such tenants. It did not apply in either of these two cases when the Small Cause Court decided in favour of the tenants. It may well be that having regard to the view that this Court took in the cases of 'NANDORANI DASSI v. SATYA NARAINM' ANU/WB/0242/1950 : AIR1950Cal215 , and 'S. B. TRADING CO. LTD. v. SATYENDRA CHANDRA SEN' 54 CW N 756, the decisions of the Small Cause Court Judges were erro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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