Supreme Court of India
Rajesh Mitra @ Rajesh Kumar Mitra vs Karnani Properties Limited on 20 September, 2024
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
1
2024 INSC 719 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3593-3594 OF 2024
RAJESH MITRA
@RAJESH KUMAR MITRA & ANR. …APPELLANTS
VERSUS
KARNANI PROPERTIES LTD. …RESPONDENT
JUDGMENT
SUDHANSHU DHULIA, J.
1. The appellants (the defendants in the suit), are here in
challenge to the judgement dated 08.12.2022 whereby their Appeal
was dismissed by the Division Bench of Calcutta High Court,
upholding the judgment of the learned Single Judge (which was a
judgment on admission), dated 29.06.2022. While decreeing the
suit, the Court had directed the appellants (tenant) to vacate the
suit property and handover the vacant possession to the
respondent-plaintiff, within sixty days!
2.
Signature Not Verified This is a landlord-tenant matter arising out of an eviction suit
Digitally signed by
Nirmala Negi
Date: 2024.09.23
filed by the respondent before the Calcutta High Court, inter alia,
17:57:33 IST
Reason:
praying for eviction of appellants from Room No.208, 2nd Floor, 25-
2A Park Street, Kolkata (hereafter referred as the “premises”). Even
before the appellants could file a Written Statement, the plaintiff,
without loosing any time, filed an application under Order XII Rule
61 Code of Civil Procedure (“CPC”) seeking a ‘judgment on
admission’ by relying on the deposition of defendant no.1 in
another case where the defendant had admitted that the tenancy
was in his mother’s name. According to the plaintiff/respondent,
since the mother of the defendants/appellants had admittedly died
way back in the year 2009, they are not entitled to stay in the
premises beyond the year 2014 in terms of section 2(g) of the 1997
Act, which protects the rights of the children and dependents of a
tenant only for a limited period of five years.
3. At the outset, we must state that both, the learned single-
judge bench and to some extent even the Division Bench of the
High Court, in the present case, ought not to have decreed the suit
of the landlord on the basis of alleged “admission” by the appellant
1
6. Judgment on admissions.— (1) Where admissions of fact have been made either in
the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit,
either on the application of any party or of its own motion and without waiting for the
determination of any other question between the parties, make such order or give such
judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in
accordance with the judgment and the decree shall bear the date on which the judgment was
pronounced.
3
no.1 which was made in another unconnected matter, as to our
mind, it does not pass muster the test of “admission” visualised in
Order XII Rule 6 CPC. It is not that a court cannot pass a judgment
on the basis of an admission made in some other case. All the
same, what has to be kept in mind is that Order XII Rule 6 is an
enabling provision conferring wide discretionary powers on the
courts which cannot be claimed by any party as a matter of right.
Courts can invoke Order XII Rule 6 only in cases where admissions
are unconditional, unequivocal and unambiguous or when
admission is based upon undisputed inferences. (See: Charanjit
Lal Mehra & Ors. v. Kamal Saroj Mahajan (Smt) And Anr.
(2005) 11 SCC 279, Raveesh Chand Jain v. Raj Rani Jain
(2015) 8 SCC 428, Uttam Singh Duggal & Co. Ltd. v. United
Bank of India And Ors. (2000) 7 SCC 120)
Here, we would like to reproduce that portion of the cross-
examination of appellant no. 1, as quoted by the Single Judge of
the High Court, which is alleged to be an admission on part of the
appellant no.1 to deny him the right of occupying the disputed
premises. It is as follows:
“33. Flat No.208 in respect whereof you are an occupant-
is it a tenancy?
4
Yes, it is in my mother’s name.
34. Your mother is Usha Mitra- am I right?
Yes, Late Usha Mitra.
35. When did Usha Mitra expire?
On 3rd November, 2009”
This deposition is the so called ‘admission’ on which the
respondent-landlord relies to claim that only the mother (Usha
Mitra) of the appellants was the tenant and not the appellants. The
appellant no.1 had admitted that the tenancy was in the name of
his mother.
We have perused the examination-in-chief and cross-
examination of appellant no.1 made in that ‘other case’ where this
statement was made. Such questions and their answers are
common place in depositions before courts, but every such
statement cannot be considered as an ‘admission’ to invoke Order
XII Rule 6 of CPC. It is for the courts to see whether any statement
in the pleadings or otherwise amounts to an admission of such a
nature as to inspire the confidence of the court to pass judgment
on admission under Order XII Rule 6 of CPC. It will depend upon
the content and kind of statement/admission which may vary from
case to case. In other words, it would depend upon the totality of
facts and circumstances of a particular given case. In the present
case, here, it is not a ‘clear admission’ as is being made out.
5
Moreover, where the question and its answer are both a mixed
question of fact and law, as in the present case, a so called
‘admission’ against the law can never be an “admission” as
visualised under Order XII Rule 6. However, more on this later.
Order XII Rule 6 is meant for speedy disposal of the suits in
some cases but on the risk of repetition, we would like to caution
that unless there is a clear, unambiguous, unequivocal and
unconditional admission, courts should not exercise their
discretion under the Rule because judgment on admissions is
without a trial which may even preclude a party to challenge the
matter on merits in the court of appeal. The provision of law, which
is meant for the expeditious disposal of appropriate cases, should
therefore be cautiously exercised and it should never come in the
way of any defendant denying him the valuable right of contesting
the claim. (See: Himani Alloys Ltd. v. Tata Steel Ltd. (2011) 15
SCC 273, Hari Steel & General Industries Ltd. v. Diljit Singh
(2019) 20 SCC 425)
4. We will have to go briefly on the facts of the case in order to
have a perspective of what we have before us. The premises was
originally let out to one Sri S.K. Mitra. Subsequent to his death in
1970, as per section 2(h) of the West Bengal Premises Tenancy Act,
6
1956 (hereafter referred to as “1956 Act” or the “old Act”), the
tenancy devolved on his legal heirs who were ordinarily residing
with him. Section 2(h) of the old Act defined the ‘tenant’ as follows:
“(h) “tenant” [means any person] by whom or on whose
account or behalf, the rent of any premises is, or but for
a special contract would be, payable and [includes any
person continuing in possession after the termination of
his tenancy or in the event or such person’s death, such
of his heirs as were ordinarily residing with him at the
time of his death,] but shall not include any person
against whom any decree or order for eviction has been
made by a Court of competent jurisdiction.”
(emphasis supplied)In other words, in the event of the death of the tenant the
tenancy devolved on the legal heirs of the tenant ‘who ordinarily
resided with him’. In the case at hand, therefore, the tenancy
devolved on SK Mitra’s widow and the appellants, who were his
children aged 2 and 5 years, at the time of his death.
Subsequently, the new act, i.e., the West Bengal Tenancy
Premises Act, 1997 (hereafter “1997 Act”) came into force with
effect from 10.07.2001. Under the 1997 Act, the tenancy would
devolve to the legal heirs of the tenant as specified under section
2(g), but for a limited period of five years. The spouse of the tenant
though is excluded from the time limit provided she meets the
criteria as laid therein. Section 2(g) of the 1997 Act reads as
follows:
7
“(g) “tenant” means any person by whom or on whose
account or behalf the rent of any premises is or, but for
a special contract, would be payable, and includes any
person continuing in possession after termination of his
tenancy and, in the event of death of any tenant, also
includes, for a period not exceeding five years from the
date of death of such tenant or from the date of coming
into force of this Act, whichever is later, his spouse, son,
daughter, parent and the widow of his predeceased
son, who were ordinarily living with the tenant up to the
date of death of the tenant as the members of his family
and were dependent on him and who do not own or
occupy any residential premises, and [in respect of
premises let out for non-residential purpose his spouse,
son, daughter and parent who were ordinarily living
with the tenant up to the date of his death as members
of his family, and were dependant on him or a person
authorised by the tenant who is in possession of such
premises] but shall not include any person against
whom any decree or order for eviction has been made
by a Court of competent jurisdiction:
Provided that the time-limit of five years shall not apply
to the spouse of the tenant who was ordinarily living
with the tenant up to his death as a member of his
family and was dependent on him and who does not
own or occupy any residential premises,Provided further that the son, daughter parent or the
widow of the predeceased son of the tenant who was
ordinarily residing with the tenant in the said premises
up to the date of death of the tenant as a member of his
family and was dependent on him and who does not
own or occupy any residential premises, shall have a
right of preference for tenancy in a fresh agreement in
respect of such premises [on condition of payment of
fair rent]. This proviso shall apply mutatis mutandis to
premises let out for non-residential purpose.”
(emphasis supplied)
8
5. The landlord’s case is that after the death of Sh. S.K. Mitra in
1970 his wife Smt. Usha Mitra had become the tenant as per
section 2(h) of the 1956 Act. There is also a mention that she gave
an undertaking to the landlord that only she succeeds on the
property as a tenant and it was her who continued to pay rent after
the death of her husband. When Smt. Usha Mitra died in 2009,
the appellants would be considered tenants only till 03.11.2014
(five years after the death of Usha Mitra on 03.11.2009), as per
section 2(g) of the 1997 Act. As we have already referred earlier,
the main thrust of the landlord’s case was that the
appellant/defendant had admitted, in his deposition in a different
matter, that his mother was the tenant on the property who had
passed away in 2009. Hence, their tenancy had expired long back
in 2014 as per his own admission.
In their Written Statements, appellants did not deny the
deposition made by appellant no.1 as a “witness” in another case
but submitted that this cannot be used as an admission under
Order XII Rule 6. Further, it was asserted that it was not just their
mother who had become a tenant after the death of his father in
the year 1970, but both appellants had also become tenants as the
9
tenancy was heritable as per section 2(h) of the 1956 Act, which
was then in force.
6. The Single Judge of the High Court, however, did not accept
this contention. What was relied upon were the rent receipts in the
name of Smt. Usha Mitra (the mother of the present appellant), for
the period between 1970 and 2009 and an affidavit attested by
Smt. Usha Mitra, showing that she was the sole tenant of the
premises while dismissing the claim of the defendants.
Undisputedly, Smt. Usha Mitra had become a tenant under
section 2(h) of the 1956 Act. However, when these facts were
considered along with the deposition of appellant no. 1, it was held
by the Single Judge of the High Court that after the death of Smt.
Usha Mitra in 2009, the appellants would be tenants under section
2(g) of the 1997 Act only for a period of five years which would be
calculated from the date of Usha Mitra’s death due to the words
“whichever is later” appearing in section 2(g). Five years got
completed on 02.11.2014, after which the appellants had no right
to remain on the premises. As we have already stated above, the
learned Single Judge was not correct in decreeing the suit on this
so called “admission”. Looking at the facts of the case and the
position of law, it was not proper for the Court to give a judgment
10
on admission simply because there cannot be an admission
against law and in any case, it is not an unambiguous admission
as is being made out.
In view of the discussion above, the legal question to be
determined by us is whether the appellants had also became
tenants upon the death of their father, by virtue of section 2(h) of
the old Act. Further, what effect would the enforcement of the new
Act have on their tenancy.
This goes to the root of the controversy and involves a
question of law and thus, the learned single Judge erred in passing
the judgment under Order XII Rule 6. What has been given to the
appellants under law cannot be taken away on the basis of an
unclear deposition. In short, there cannot be an admission against
law. Whether a particular statement amounts to an “admission”
will depend on the fact of each case. In the case at hand, we are of
the opinion that it is not an admission as visualised under Order
XII Rule 6.
7. The appellants filed an appeal against this order before the
Division Bench of the High Court which was dismissed, vide order
dated 08.12.2022, which is presently under challenge before us.
The Division Bench held that under section 2(g), the legislature
11
intended that where the original tenant has died before the coming
into force of the 1997 Act, his legal heirs would be protected for
five years from the date of coming into force of the act. Otherwise,
the latter phrase in section 2(g) “from the date of coming into force
of this Act, whichever is later” would stand frustrated. This is what
the High Court held:
“What can be logically deduced therefrom that the
heritability of the estate of the tenant was restricted for
a period of five years from the date of the death in case
the tenant died after promulgation of the said Act to the
other heirs excluding the spouse who have been kept in
the exception (provided the conditions imposed therein
are duly fulfilled and/or satisfied). A striking feature
may further be noticed from the definition of tenant
under 1997 Act in relation to the fixation of the time limit
fixed therein which, if lost sight of, shall frustrate the
legislative intent. The son, daughter and parents shall
not be entitled to take protection under the aforesaid
definition, if the tenant dies prior to the promulgation of
the said Act and the aforesaid period would be
reckoned from the date of coming into force of the said
Act. Otherwise, the expression “from the date of coming
into force of this Act, whichever is later” shall be
redundant and meaningless. What can be legally
deduced therefrom is that even if the tenant dies when
the Act of 1956 was in vogue, yet the heirs other than
the spouse would not get any protection in relation to a
time limit under the definition of the tenant in the Act of
1997 and, therefore, the concept of “devolution” of the
tenancy right under the 1956 Act cannot be said to be
inflexible. The legislatures can restrict the heritability of
the tenanted estate which does not offend the
constitutional ethos nor can be impinge (sic: impinged)
on the ground of restricting the succession in relation to
our tenanted property. What can be culled out from the
aforesaid discussion that the heirs other than the
12spouse, even if they satisfy the other conditions laid
down in the definition provision, loses their right as a
tenant nor protected under the provisions thereof after
the expiration of five years from the date of death and
in the event the death occurs after coming into force of
the said Act or upon expiration of five years from the
date of coming into force of the Act or 1997, whichever
is later.”The entire case here rests upon the interpretation of “tenant” as
defined in the new Act. In case, the defendants i.e., the present
appellants come under the definition of “tenant” the order
impugned has to be set aside. However, if the case is that the
appellant does not come under the definition of “tenant” as referred
above, this appeal would fail.
8. On behalf of the appellants, we have heard learned counsel
Ms. Rashi Bansal, who relies on the decision of the Single Judge
of the Calcutta High Court (Goutam Dey v. Jyotsna Chatterjee
reported in 2012 SCC OnLine Cal 642). In the above cited case,
the original tenant had died prior to the enforcement of the1997
Act. He was survived by his daughter and her husband, Goutam
Dey. Subsequently, the daughter of the original tenant also died in
2011, after which the respondent-landlord filed a suit for eviction
against Goutam which was decreed. By virtue of section 2(h) of the
1956 Act, it was held that a vested right had accrued in favour of
the daughter of the original tenant, which could not be abrogated
13
by the enactment of the 1997 Act. It was further held that if section
2(g) of the 1997 Act was interpreted literally, it would mean that
all inherited tenancies under the 1956 Act would expire on
09.07.2006 (five years after the coming into force of the 1997 Act).
This is a position which cannot be tenable in law according to the
learned Single Judge in the above case. It was held that the phrase
“or from the date of coming into force of the act, whichever is later”
was wrongly drafted by the legislature, and it is in fact redundant.
This is what was said:
“19. Even otherwise, I am of the further view that
portion of section 2(g), as extracted in the preceding
paragraph starting from “or” and ending with “later”,
and on which Mr. Bhattacharya laid emphasis, if read
literally would produce absurd results and, therefore,
the provision must be so read so as to make it
meaningful. Law is well settled that in exceptional
circumstances, it would be proper for the Court to
depart from the literal rule and such rule of
interpretation could be adopted that is just, reasonable
and sensible, and does not offend the sense of justice.
In the context, one may possibly conceive either of three
inevitable situations, – death of a tenant (i) before July
10, 2001; (ii) after July 10, 2001; and (iii) on July 10,
2001. Regarding situation (i) i.e. death of a tenant
before July 10, 2001 and the case with which I am
concerned (Sunil died on May 4, 1997), undoubtedly it
was the Act of 1956 that was in force and had a tenant
governed by the provisions of the Act of 1956 died on
July 9, 2001 or even previous to that date, the tenancy
would be governed by that Act meaning thereby that
the tenancy being heritable, the heirs would be justified
in claiming tenancy right subject to fulfilment of the
residence requirement in section 2(h) of the Act of 1956
14but unfettered by the other two conditions newly
inserted and the stipulation of five years in section 2(g)
of the Act of 1997. Law appears to be settled that
provisions of a new statute which touch a right in
existence at the date it is enforced are not to be applied
retrospectively in the absence of express provision or
necessary intendment. The Act of 1997 has not been
given retrospective effect so as to bring within its
coverage death of tenants occurring prior to July 10,
2001 and a different intention does not appear on a
reading of the Act of 1997 so as to affect any right or
privilege that has been acquired or has accrued in
favour of the specified heirs of the deceased tenant
under the Act of 1956, since repealed. Having regard to
section 8(c) of the Bengal General Clauses Act, 1899, a
vested right that accrued in favour of an heir like
Subhra on the death of the tenant i.e. Sunil cannot be
abrogated. There is a presumption against curtailment
of or washing away a vested right by a repealing
legislation, and a construction involving such
curtailment of or washing away the right accrued ought
not to be adopted unless a contrary intention clearly
appears in the repealing legislation. It could not have
been and it does not seem to be the intention of the
legislature to fix July 9, 2006 as the last date fill which
tenancy of an heir of a deceased tenant would continue
(assuming all the other conditions were fulfilled), no
matter when he died prior to July 10, 2001. The absurd
result that the aforesaid extract of section 2(g) of the Act
of 1997 has the potential of producing is best illustrated
by the facts of the present case and needs no further
elaboration. Insofar as situations (ii) and (iii) are
concerned, it is obvious that the definition of tenant in
section 2(g) of the Act of 1997 shall apply and for
achieving the purpose that it seeks to achieve, it was
not necessary to insert the phrase “or from the date of
coming into force of this Act, whichever is later”. The
period of five years mentioned in section 2(g)
automatically would have application only in respect of
death of tenants occurring on and from July 10, 2001
and in such case the portion extracted above, is in my
considered view, a piece of loose drafting and ought to
15be considered redundant unless in a given case, which
I have been unable to perceive, the same is shown to
have application. I hasten to record here that the above
observation regarding redundancy has been made by
me despite my best effort to make the statute effective
with all the words that have been used by the
legislature and conscious of the principle that
legislature is presumed not to waste words.”Relying upon the above Judgment of Calcutta High Court, the
counsel for the appellants would submit that similarly the tenancy
in the present case had in fact devolved in favour of the present
appellants way back in the year 1970 on the death of their father,
who was the original tenant. This could not be undone by applying
the provisions of the 1997 Act which was a subsequent legislation.
In other words, in 1970, the tenancy was heritable and thus the
appellants along with their mother had become tenants on the
property/premises.
9. On the other hand, learned counsel Mr. Sabyasachi
Chowdhary appearing on behalf of the respondent-landlord would
rely on the findings given by the High Court, in the present case,
and in addition, he would rely upon two judgments of the Calcutta
High Court Sri. Sushil Kumar Jain & Ors. v. Pilani Properties
Limited, 2017 SCC OnLine CAL 18807 and Satyanarayana
More v. Milagrina Rose Correia, 2020 SCC OnLine CAL 957,
16which are both Division Bench judgments laying down a law
contrary to the judgment in Goutam Dey (supra).
The Division Bench of the Calcutta High Court in Sushil
Kumar (supra) had in fact overruled the judgment of the Single
Judge in Goutam Dey (supra). It relied on the statement of objects
and reasons of the 1997 Act and its purpose which was to do away
with the heritability of tenancy. The relevant paragraphs have been
reproduced below:
“20. The underlying logic of the judgment in Goutam
Dey is that if a right vests in a person under a statute,
the same cannot be undone. As a proposition of law it
may sound attractive, but it will not hold good in all
cases. While it is true that certain rights if they vest
under a predecessor statute cannot be undone by a
successor statute, the purpose of the statutes, the
nature of the rights and the extent of the vesting of such
rights are relevant considerations.
21. The 1956 Act provided for a degree of protection to
certain classes of tenants in this State. In course of time,
the legislative wisdom provided for a relaxation in the
norms such that the protection was limited to a smaller
class of persons and in certain specified situations by
the Act of 1997. It cannot be said, for instance, that
merely because a tenancy had been created prior to the
1997 Act, the protection enjoyed under the 1956 Act
would continue even after the 1997 Act has come into
operation. The 1997 Act does not admit of such a
situation…
* * *
23. It must also be added that courts ought to be very
cautious before finding words used in the statute to be
otiose or meaningless. The intention of Section 2(g) of
the 1997 Act is to regard heirs of the original tenant who
17were dependent on him and were residing with him at
the time of his death as tenants for a period of five
years. That would imply that for a period of five years
from the death of the original tenant, the heirs of the
original tenant who were dependent on the original
tenant and were residing with him will be entitled to the
same protection under Section 6 of the 1997 Act as the
original tenant. However, such umbrella of protection is
removed upon the conclusion of the fifth year from the
date of death of the original tenant, in case the original
tenant died after the 1997 Act came into effect. For the
similar heirs of the original tenants who had died prior
to the 1997 Act coming into force, a period of five years
was counted from the date of the 1997 Act coming into
operation.
24. It was a policy decision taken by the legislature to
afford a five-year period for the dependents of the
original tenant who ordinarily resided with him at the
time of his death to make alternative arrangements. To
ensure that all such heirs of the original tenant had the
same time period to make alternative arrangements, the
clause “whichever is later” was introduced in Section
2(g) of the 1997 Act so that the heirs of the original
tenant who had died prior to the 1997 Act coming into
force did not have a shorter time to make such
alternative arrangements. That is the meaning and
purpose of the expression, “whichever is later”, in
Section 2(g) of the Act.”Thus, the counsel for the respondent/landlord would argue
that even if the appellants claim tenancy under the 1956 Act, then
also their tenancy would expire on 09.07.2006, i.e., five years after
the 1997 Act came into force. This logic is based on the
interpretation of the term “whichever is later”. In other words,
protection is only for five years, even for the one who had inherited
18‘tenancy’ when the old Act was in force, as it say five years from
the death of the tenant or five years from the enforcement of the
Act, “whichever is later”. Since the new Act came into force in
2001, therefore, although the tenant (and in this case it would be
the father of the appellant i.e., the original tenant) died in the year
1970 but five years will be counted from 2001. In other words, the
language of the statute suggests that its purpose was to cover even
the death of a tenant which occurred during the subsistence of the
old Act. But such an interpretation would depend upon whether
the new Act has a retrospective application!
10. Whether the 1997 Act would cover such tenants who were
protected under the 1956 Act is the question? The High Court has
held that the legislature by virtue of section 2(g) of the 1997 Act,
intended to extinguish the tenancy of all such legal heirs, who
inherited it on the death of their predecessor-in-interest before the
enforcement of the 1997 Act. Such rights would expire after five
years from the commencement of Act.
To understand the intention of the legislature, we will have to
examine the provisions of the 1956 Act and also the 1997 Act.
11. The West Bengal Premises Tenancy Act, 1997 received assent
from the President of India on 28.11.1998 and as per notification
19
dated 09.07.2001, the provisions of the 1997 Act came into force
on 10.07.2001. The Object and Reasons of the 1997 Act are also
important, the portion relevant for our examination is reproduced
below:
“The National Housing Policy approved by the Central
Government recommended that appropriate
amendment in existing laws and regulations be carried
out for creating enabling atmosphere for housing
activities in the country. A number of export bodies such
as the Economic Administration Reform Commission
and the National Commission on Urbanisation have
recommended reforming the rent legislation in a way
that balances the interests of both the landlords and
the tenants and also that stimulates future construction
to meet the growing demands for housing.
On the basis of the various recommendations of the
experts and also after a series of consultations with the
State Governments, the Ministry of Urban Development
of India prepared a Model Rent Control Legislation, and
sent to the States for consideration.”
12. The entire issue revolves around the interpretation of the
phrase “for a period not exceeding five years from the date of death
of such tenant or from the date of coming into force of this Act,
whichever is later” used in section 2(g) of the 1997 Act. There is no
ambiguity in case the original tenant passes away after the
commencement of 1997 Act, as in such a case, it is clear that the
specified heirs will get a limited protection of five years only. The
difficulty is in enforcing the above provision of section 2(g) of 1997
20
Act in a situation where the original tenant had died before the
commencement of 1997 Act i.e., prior to July 10, 2001. The matter
at hand falls in the latter.
The Single Judge in Goutam Dey (supra) observed that a
literal reading of ‘or from the date of coming into force of this Act,
whichever is later’ would lead to absurd results as all tenancies
devolved under the 1956 Act, would end together on the same day
(July 9, 2006), i.e., five years after the enforcement of the 1997 Act!
Thus, the Single Judge held the aforesaid phrase to be redundant
and a piece of loose drafting by the State Legislature.
13. Subsequently, the Calcutta High Court considered this issue
in Prabir Kumar Jalan v. Laxmi Narayan Jalan, 2012 SCC
OnLine Cal 1313 where another Bench of a learned Single Judge
did assign meaning to the phrase, which was referred to as a piece
of loose drafting in Gautam Dey (supra). In Prabir Kumar (supra),
the High Court decreed the suit for eviction against the respondent-
defendant therein and observed that if the Legislature intended to
apply section 2(g) of 1997 Act only to the deaths which would have
occurred after the commencement of the new Act, then legislature
was not required to use the phrase “or from the date of coming into
force of this Act, whichever is later”. This is what was said:
21
“21. Now, if Ms. Doshi’s argument that the rights of the
original tenant vested in the defendants on his death
on 25th December, 1999 was true, then there would be
no occasion for the legislature to enact that the status
of a tenant would cease on expiry of five years from the
date of the Act or five years after the death whichever
was later. If the legislature had intended to protect the
heirs of a tenant under the 1956 Rent Act, the tenant
having died before coming into force of the new Rent
Act, the legislature would have only prescribed five
years from the date of death which must occur on or
after coming into force of the new Act. Or better still it
could have said five years from the death and no more.
The legislature need not have said any more…”But to our mind, the Single Judge bench while deciding this
case did not consider the observations made in Goutam Dey
(supra). Eventually, this issue came before a Division Bench of the
Calcutta High Court.
14. In Sushil Kumar Jain (supra), the Division Bench, in its
effort to give meaning to the words of sec. 2(g) of the 1997 Act, held
that there appears to be ‘a different intention’ on the part of the
legislature, which was to dilute the rights of the tenant given under
the old Act. A challenge against this decision was also made before
this Court, which came to be dismissed without issuance of notice
at the admission stage itself with the following order:2
“We see no reason to interfere with the impugned
order passed by the High Court at Calcutta.
2
SLP(C) No.2750/2018, decided on 07.02.2018.
22
The Special Leave Petition is, accordingly,
dismissed.
However, as prayed for, one month’s time is
granted to vacate the suit premises subject to
filing usual undertaking in the Registry of this
Court within two weeks from today, stating that
the petitioners shall not create any third party
rights, will clear all the rent/dues/occupational
charges in the meanwhile and will peacefully
vacate the suit premises concerned at the end of
one month positively.”
Here, we want to pause for a while to note that this dismissal of
SLP is no bar on us to decide the issue at hand. The dismissal of
an SLP at the admission stage before issuance of notice, with a
non-speaking order, does not mean that this Court has affirmed
the law laid down by impugned order. [See: P.Singaravelan v.
District Collector, Tiruppur (2020) 1 SCC (L&S) 453; Palam
Gas Service v. CIT (2017) 7 SCC 613; Kunhayammed v. State
of Kerala (2000) 6 SCC 359]
15. Subsequently, the view taken in Sushil Kumar Jain (supra)
by the Calcutta High Court, was reiterated by another Division
Bench in Satyanarayan More v. Milagrina Rose Correia, 2020
SCC OnLine Cal 957. Both these judgments have put much
emphasis on the object behind the promulgation of the 1997 Act.
According to them, the new Act aims to free the landlords from the
clutches of the 1956 Act by creating a balance between the rights
23
of tenants and interest of the landlord. We agree with the view so
far as it says that the purpose of the 1997 Act was to create a
balance between the interests of tenants and landlords but we
doubt that it can be extended to say that legislature intended to
extinguish the rights of legal heirs (who had become tenants under
the old Act after the death of their predecessor-in-interest) on a
particular date.
16. The current position of law as it seems from the decision of
the Calcutta High Court is that the 1997 Act represents a shift of
legislative intent. While the 1956 Act approached tenancy as a
heritable right that can be claimed by legal heirs of an original
tenant, this position was changed by the 1997 Act, to provide a
limited protection of five years to the specific heirs of an original
tenant and, as per the High Court, in cases where original tenant
had died during the existence of old Act, five years shall be counted
from the commencement of the new Act.
17. In our considered opinion, the above view of the Calcutta High
Court cannot be sustained. The High Court in the case of Goutam
Dey (supra) has held that the new statute which touches upon the
existing rights cannot be retrospective, without an express
provision or necessary implication expressing the clear intent of
24
the Legislature. Goutam Dey (supra) relied upon Section 8(c) of the
West Bengal General Clauses Act to say that a new statute does
not affect existing rights. Section 45 of the 1997 Act repealed the
1956 Act but that cannot mean that rights accrued under the old
Act are extinguished altogether with the enforcement of the new
Act.
The enforcement of a new statute ipso facto will not take away
the rights already accrued under a repealed statute, unless this
intention is reflected in the new statute.
This Court in CIT v. Vatika Township (P) Ltd., (2015) 1 SCC
1 reiterated the general principles concerning retrospectivity of
statutes. This is what was said:
“28. Of the various rules guiding how a legislation has
to be interpreted, one established rule is that unless a
contrary intention appears, a legislation is presumed
not to be intended to have a retrospective operation. The
idea behind the rule is that a current law should govern
current activities. Law passed today cannot apply to
the events of the past. If we do something today, we do
it keeping in view the law of today and in force and not
tomorrow’s backward adjustment of it. Our belief in the
nature of the law is founded on the bedrock that every
human being is entitled to arrange his affairs by relying
on the existing law and should not find that his plans
have been retrospectively upset. This principle of law is
known as lex prospicit non respicit: law looks forward
not backward. As was observed in Phillips v. Eyre
[(1870) LR 6 QB 1], a retrospective legislation is contrary
to the general principle that legislation by which the
conduct of mankind is to be regulated when introduced
25for the first time to deal with future acts ought not to
change the character of past transactions carried on
upon the faith of the then existing law.
29. The obvious basis of the principle against
retrospectivity is the principle of “fairness”, which must
be the basis of every legal rule as was observed in
L’Office Cherifien des Phosphates v. Yamashita-
Shinnihon Steamship Co. Ltd. [(1994) 1 AC 486 : (1994)
2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations
which modified accrued rights or which impose
obligations or impose new duties or attach a new
disability have to be treated as prospective unless the
legislative intent is clearly to give the enactment a
retrospective effect; unless the legislation is for purpose
of supplying an obvious omission in a former legislation
or to explain a former legislation.” (emphasis supplied)
18. It is to be kept in mind that Courts can, and must, differ from
the literal meaning of words if the reading of any provision provides
absurd results.
There are specific grounds under which a landlord can seek
eviction of the tenant. There are provisions as well for immediate
recovery of possession for certain classes of landlords. But Section
2(g) of the 1997 Act cannot be interpreted in the manner it has
been done by the Calcutta High Court in Sushil Kumar (supra)
and Satyanarayan More (supra).
19. We are of the view that the phrase “or from the date of coming
into force of this Act, whichever is later”, used in section 2(g) of 1997
Act, was rightly held to be superfluous in Goutam Dey (supra). We
26
do not doubt the wisdom of the legislature but we are constrained
to hold that the case at hand reflects loose drafting, as it seems to
have created more problems than it sought to resolve.
Francis Bennion, who has been quoted by Krishna Iyer, J. in
State of Karnataka v. Ranganatha Reddy (1977) 4 SCC 471
while dealing with Karnataka Contract Carriages (Acquisition) Act,
1976, had said the following words about the Renton Committee
Report (Report on Preparation of Legislation):
“The Renton Committee points out that the
problem of obscure statute law is important to
every citizen.
There is hardly any part of our national life or of
our personal lives that is not affected by one
statute or another. The affairs of local authorities,
nationalised industries, public corporations and
private commerce are regulated by legislation.
The life of the ordinary citizen is affected by
various provisions of the statute book from cradle
to grave.
The committee might have added that the rule of
law and parliamentary democracy itself are
imperilled if laws are incomprehensible. They did
say that it is of fundamental importance in a free
society that the law should be readily
ascertainable and reasonably clear, and that
otherwise it is oppressive and deprives the
citizen of one of his basic rights. It is also
needlessly expensive and wasteful. Reed
Dicerson, the famous American draftsman, said
it cost the Government and the public ‘many
millions of dollars annually.”
27Justice Iyer in State of Karnataka v. Ranganatha
Reddy, (1977) 4 SCC 471 further observes that “our draftsmen
handle foreign know-how meant for different circumstances, and
without full grasp of the economic regulation or the leisure and
facilities for such study”. He went on to further state that:
“In a country where the people are, by and
large, illiterate, where a social revolution is
being pushed through by enormous volume
and variety of legislation and where new
economic adventures requiring unorthodox
jural techniques are necessitous, if legal
drafting is to be equal to the challenge of
change, a radicalisation of its methodology
and philosophy and an ability for the
legislative manpower to express themselves
in streamlined, simple, project-oriented
fashion is essential. In the hope that a role-
conscious court communicates to a responsive
Cabinet, we make this observation.”
(Para 49)Ambiguous drafting leads to manifold problems and
generates lengthy litigations, as it has evidently done in the case
at hand. There is no clarity in the 1997 Act to suggest that it
extinguishes the rights of all tenants (who inherited tenancy rights
under Old Act) retrospectively.
20. This is also not the first occasion where Section 2(g) of the
1997 Act has been under consideration by this Court. In Nasimi
Naqi v. Todi Tea Company Ltd. & Ors. (CA No.9052/2019,
28
decided on 26.11.2019) the second proviso to the same section was
held to contain an inadvertent omission as the spouse was not
given the right of preference for tenancy in case of a fresh
agreement, which was given to certain other specified heirs. This
is what was said:
“The exclusion of a spouse of a deceased tenant
is without rationale, discriminatory and
deprives the surviving spouse of a valuable
entitlement granted to the other heirs. There is a
valid justification for amending the provision so
as to bring the widow within the ambit of the
second proviso. This is a matter which, in our
view, deserves to be considered by the
legislature. Having due regard to the object and
purpose underlying the recognition of a right of
preference under the second proviso and the
social welfare purpose underlying the
enactment of the legislation, it would be
appropriate if this aspect is considered… There
would appear to be no justification for not
considering the grant of such a protection on the
spouse of the original tenant. We hope and trust
that this aspect of the omission in the second
provisio will engage the attention of the law
makers so as to fulfill the salutary purpose of
the provision.”
21. It is true that legislature can restrict heritability by amending
or repealing the law, as the case might be. The Division Bench’s
finding (in the impugned judgment dated 08.12.2022), is that since
legislature can restrict the heritability it has done precisely that in
the 1997 Act, by adding the words “five years from the date of death
29
of such tenant or from the date of coming into force of this Act,
whichever is later”. Hence, as per the Division Bench of the
Calcutta High Court, the death of SK Mitra in 1970 also stands
covered under new Act. In other words, the 1997 Act changes
“heritable rights” retrospectively according to the Division Bench of
the Calcutta High Court. Although, the actual date when eviction
would happen is post the new Act but it does have a retrospective
application as well in as much as it is applicable retrospectively to
an earlier date (1970 in the present case) and had taken away a
right of the appellants, given to them under the old statute.
Statutory laws operate from the date of their enforcement i.e.,
prospectively. In case the legislature intends to make a law
retrospective then such an intention of the legislature must be
shown clearly and unambiguously in the statute itself. The
Division Bench’s mere interpretation of a statutory provision will
not make the law retrospective and take away the heritable rights
of a tenant.
22. In view of the above, we hold that Smt. Usha Mitra and the
appellants jointly inherited the tenancy from Sh. S.K. Mitra, in the
year 1970. Thus, the impugned judgment is liable to be set aside
as appellants’ tenancy did not expire in the year 2006, by the
30
introduction of 1997 Act, in the absence of a clear and unequivocal
intention in the 1997 Act to have a retrospective operation.
23. Accordingly, these appeals are allowed. Orders dated
29.06.2022 and 08.12.2022 of the Single Judge and the Division
Bench respectively are set aside.
24. Pending application(s), if any, shall stand disposed of.
25. Interim order(s), if any, shall stand vacated.
……………….………………….J.
[SUDHANSHU DHULIA]
..……..………………………….J.
[PRASANNA B. VARALE]
New Delhi.
September 20, 2024.