For The vs State Transport Appellate Tribunal ... on 25 April, 2012

[Cites 17, Cited by 0]

Calcutta High Court (Appellete Side)

For The vs State Transport Appellate Tribunal ... on 25 April, 2012

Mr. Jiban Ratan Chatterjee, Mr. M. Thakur .... For the Petitioners Mr. Probal Mukherjee, Mr. Suhrid Sur .... For the Opposite Parties The suit for eviction was instituted in the year 1995 which unfortunately is lingering for the last 11 years.

During the pendency of the said proceeding and failure to dispose of the said suit, the defendants apparently taking advantage of the West Bengal Thika Tenancy Act, 2001 filed an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure for rejection of the plaint on the ground that in terms of Section 8(3) of the West Bengal Thika Tenancy Act, 2001, such civil suit is not maintainable. It was urged that in view of such amendment, the defendant became bharatia that is the tenant under the West Bengal Premises Tenancy Act, 1956 governed by the provisions of West Bengal Thika Tenancy Act, 2001 and disputes between bharatia and thika tenant cannot be decided by this Hon'ble Court.

It is not in dispute that when the said proceeding was instituted, the said civil Court was competent to try and determine the said suit.

Mr. Chatterjee, learned counsel appearing for the petitioners by referring to Section 27 of the West Bengal Thika Tenancy Act, 2001 submitted that the proceeding which was initiated prior to amendment has not been saved by Section 27 of the West Bengal Thika Tenancy Act, 2001. In order to appreciate such submission it is necessary to consider the said Section which is reproduced below:

27. Repeal and savings.- (1) With effect from the date of commencement of this Act, the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Ben. Act 37 of 1981), shall stand repealed.

(2) Notwithstanding the repeal of the said Act, such repeal shall not-

(a) affect the previous operation of the said Act or anything duly done or suffered thereunder; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act; or

(d) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or 3 punishment as aforesaid;

A saving is a provision the intention of which is to narrow the effect of enactment to which it refers so as to preserve some existing legal rule or right from its operation. Furthermore, it relates to an existing legal rule and often begins with the words nothing in this...... ..... (Bennion on statutory interpretation 5th Edition 725}. Saving clause is used to preserve from destruction certain rights, remedies or privileges already existing. 'Savings' means that it saves all the rights the party previously had, not that it gives any new right. Saving clauses are introduced into Acts which repeal others to safeguard rights which, but for the savings, would be lost and these clauses are seldom used to construe the Act. (G. P. Singh's Principles of Statutory Interpretation, 10th Edition, 2006) In Gajraj Singh vs. State Transport Appellate Tribunal (AIR 1997 Supreme Court 412), the Hon'ble Supreme Court in discussing the effect of Section 6 of the General Clauses Act, 1897 quoted the following pasage from G. P. Singh's Principles of Statutory Interpretation (6th Edidition). The effect of Clauses e to e of Section 6 of the General Clauses Act, 1897 is, speaking briefly, to prevent the obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during its operation and permit continuance or institution of any legal proceedings or recourse to any remedy which may have been available before the repeal for enforcement of such rights and liability.

In deciding the said issue, reference may be made to Section 85 (1) of the Arbitration and Conciliation Act, 1996 which repeals three Acts namely the Arbitration (Protocol and Convention) Act, 1937, the Arbitration Act, 1940 and the Foreign Awards (Recognition and Enforcement) Act, 1961. Section 85(2) of the said Act provides notwithstanding such repeal the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties, but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act came into force. The Supreme Court in the case of Thyssen Stahlunion Gmbh vs. Steel Authority of India reported in 1999(9) Supreme Court Cases 334 in paragraph '28' construed the scope of said saving clause namely Section 85(2)(a) vis a vis Section 6 of the General Clauses Act. The said paragraph is reproduced hereinbelow:

"28. Section 85(2)(a) is the saving clause. It exempts the old Act from complete obliteration so far as pending arbitration proceedings are concerned. That would include saving of whole of the old Act up till the time of the enforcement of the award. This (sic Thus) Section 85(2)(a) prevents the accrued right under the old Act from being affected. Saving provision preserved the existing right accrued under the old Act. There is a presumption that the legislature does 5 not intend to limit or take away vested rights unless the language clearly points to the contrary. It is correct that the new Act is a remedial statute and, therefore, Section 85(2)(a) calls for a strict construction, it being a repealing provision. But then as stated above where one interpretation would produce an unjust or an inconvenient result and another would not have those effects, there is then also a presumption in favour of the latter."

The law on this point can be summarized as follows:-

(i) The right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. (CIT Vs. Shah Sadio & Sons, 1987 (3) SCC 516)

(ii) The distinction is drawn between an existing right and a vested right and it is said that the rule against the retrospective construction is applied only to save vested rights and not existing rights. (West Vs. Gwynee, 1911(2) CH

1) 6

(iii) The saving of rights and liabilities is in respect of those rights and liabilities which were acquired or incurred under a repeal statute and not under general law which is modified by a statute. (Rao Nihalkaran Vs. Ramgopal, AIR 1966 SC 1485)

(iv) What is in effect by the repeal of a statute is a right acquired or accrued under it and not a mere "hope or expectation of" or liberty to apply for acquiring a right. (Bansidarh Vs. State of Rajasthan (supra) )

(v) A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right.

(vi) If the right created by the statute is of an enduring character and has vested in the person, the right cannot be taken away because the statute, by which it was created, has expired. (M.S. Shivananda Vs. KSRTC, 1980 (1) SCC 149) 7

vii) "The effect of repealing of a statute is to obliterate it as completely from the records of Parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions were commenced, prosecuted and concluded whilst it was an existing law." (Tindal, C.J. in Kay Goodwing)

viii) The provisions of a repeal statute cannot be relied upon after it has been repealed. But, what has been acquired under the Repealed Act cannot be disturbed. But, if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed.

(D.C. Bhatia Vs. Union of India, 1995(1) SCC

104).

(ix) The effect of repeal of an enactment on pending cases is that without continue as if the enactment had not been repealed, subject, however, to another contrary expressed in the repealing enactment. (Rameshchandra Vs. Nagendra, 1951 Cal 435)

(x) The rights of the parties have to be governed by the law in force at the time when the action was commenced and a change in the law would not affect pending actions, unless the new enactment has, to that effect, a clear provision. (Nalagarh Dehati Cooperative Transport Society Limited Vs. Surajmani, AIR 1977 HP 35; Sudkya Ramji Vs. Mohammed Issak, AIR 1950 Bom

236).

(xi) It is not necessary that if the right to accrue legal proceedings must be pending when the new Act comes into force. (Thyssen Stahlunion Gmbh Vs. Steel Authority of India, 1999(9) SCC 334) 9 In view thereof, this Court is unable to accept the submission of Mr. Chatterjee that in view of the said amendment the civil Court has no jurisdiction. It is quite clear from the language of Section 27 of the repeal and savings clauses that legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed. The said repeal and savings clause completely protect the proceedings that was initiated prior to 2001 and is continuing.

Mr. Chatterjee, referred to a decision of this Court in the case of Mir Mohammad Ali vs. Sairunessa reported in (2008) 3 WBLR (Cal) 381 in which the Division Bench of this Court was considering Section 19 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. Their Lordships were considering the scope Section 19 of the said Act with regard to abatement of proceedings and held as follows:

"12. In our view, by making specific provision of abatement of all proceedings for eviction of thika tenant and Bharatiya, the Legislature had made its intention clear that there is no scope of revival of those proceedings by way of amendment. As pointed out by the Supreme Court in the case of Narayan Chandra Ghosh & Ors.

(supra), previously the thika tenants were not required to prove any of the rounds as provided in the West Bengal Premises Tenancy Act for eviction of a Bharatiya and service of notice under Section 106 of the Transfer of Property Act was sufficient. But 10 after the coming into operation of 1981 Act, the landlord is required to prove the ground of eviction as provided in the West Bengal Premises Tenancy Act and consequently, the earlier suit including the appeal or execution proceedings arising out of proceeding for eviction of a Bharatiya has stood abated by operation of law. In our view, such proceedings cannot be revived by way of amendment."

In view thereof, the revisional application fails.

There shall be no order as to costs.

Since the matter is pending before the learned Civil Judge, Senior Division at Sealdah, he is requested to dispose of the suit within a period of one year from date without granting any unnecessary adjournments to either of the parties.

Photostat certified copy of the order, if applied for, be given to the parties on usual undertaking.

( Soumen Sen, J. )

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