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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, 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:
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“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 but 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 be 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.