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Judgment
T.N. Singh, J.—A short point of law, at times, prompts insights into big social stakes. Inadequacy of expression of legislative intent, apparent, or real, if not remedied by judicial initiative and imagination, often tends to defeat or constrict the purpose of the measure and make impossible the full, complete and adequate achievement of the social objectives underlying it. To this Court, social justice is not a mere demagogic slogan and therefore when such objectives are directly rentable to Constitutional goals, there is a duty on the Court to speak and retrieve the lost ground. For, such duty transcends the narrow limits of litigative process in the case of superior Courts constitutionally obligated to expose and interpret Jaw. However, we propose, to deal with the case in band first on its own merit.
This appeal by the landlords arises out of a suit instituted on 9.3.64 for declaration of title and recovery of possession of a plot of land in Sibsagar town. The Defendant No. 1, the tenant, resisted ejectment and claimed protection of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 ( hereinafter "Assam Act" or "the Act " ) as he had thereon his dwelling house which was a permanent structure as defined under the Act. The trial Court accepted the plea and dismissed the suit on 17-8-70. A brief resume of the respective cases of the parties, as revealed by the pleadings, is given below.
The Plaintiffs case is that the suit property belonged jointly to four brothers, Tilakanta Phukan, Lok Nath Phukan, Nilamani Phukan and Biswa Kant a Phukan although the patta stood in the name of the eldest brother, Tilakanta. It is their specific case that Tilakanta constructed a house on the suit land in 1947 after taking necessary permission from the Sibsagar Municipal Board. They filed with the plant the certified copy of the relevant Valuation list of the Municipal Board (as document No. 3 ) in respect of the house. It is also stated In the plaint that on 22.5.58 the Defendant No. 1 (tenant) had a deed of lease executed and registered by them in respect of the suit laud which was also filed with the plaint as document No. 4. It is further stated that the period of lease as per document No. 4 expired on and that the Plaintiffs refused to renew the same and asked Defendant No, I sometime in August/60 to deliver vacant possession of the land and also of the house in his occupation. It is averred that the Defendant No. I committed some "act of bad faith" and tried to convert the entire land into his own occupation by constructing houses thereon and that he had applied in October, 1963 to the Sibsagar Municipal board asking for permission for the same against which the Plaintiffs filed objections. It is asserted that the Defendant No. 1 was in possession of the land without any lawful right because of non-renewa of the lease and of the death of one of the executants, Lok Nath phukan in 1962 and that he was not entitled to claim any protection of law under any colour of any right by constructing some semi-permanent structures on the land. It is to be noted in this connection that in the cause title as well as in the Schedule or even in the prayer portion the only claim made and description given of the land; no claim is made in any manner in respect of the house.
In his written statement the Defendant No. I ( tenant) did not deny the title of the Plaintiffs to the suit land but in para 4 he categorically denied that the house standing thereon was the joint property of the Plaintiffs. He asserted that the house belonged to him and he was the owner of the house. It was his case that in 1947 he got vacant possession of the suit land on lease, from Tilakanta Plaintiff No. 1 and in 1949 ho constructed permanent dwelling house thereon after taking permission from the Sibsagar Municipal Board through his wife Smti Prema Rani Barbaruah. He has also referred to certain municipal records and relied on Plaintiff document No. 4 In support of his cane that the house on the suit land belonged to him and that only the land belonged to the Plaintiffs. He has stated that before he took the land on lease in 1947 there was a house thereon in a dilapidated condition which had fallen down and was removed from the said land by the owner before vacant possession thereof was given to him He has also stated that he had exercised the option of renewal as per lease (Plaintiffs document No. 4 and for that purpose he had served notice on two of tbe executants, Lok Nath Phukan, on 23.9.60 and on Nila Kanta Phukan, on 16.9.70. it is asserted that Tila Kanta was accepting the annual rent for the land till 1963 and that from the beginning of the lease he had been paying rent for the land in advance. The Defendant claimed that he was protected from eviction under the Assam Act because he bad constructed his permanent dwelling house on the suit land in 1949 after incurring an expenditure of more than Rs. 30,000/-. He was entitled under the law to make extension thereto and the Chairman of Sibsagar Municipal Board had in fact granted him permission for the same on 22.11.63.
On the pleadings as many as 10 issues were formed of which the material issues arc as below:
Whether the houses standing on the suit land belong to the Plaintiffs or the Defendant No. 1 ?
Whether the Defendant has his dwelling houses with permanent structure on the suit land and if so for how long ?
Whether the Defendant No, I occupies any house belonging to the Plaintiffs as tenant as alleged by the Plaintiffs and if so is he protected from eviction under Assam Non-Agricultural Urban Areas Tenancy Act ?
Plaintiff No. 2 examined himself and another witness in support of their case. The Defendant No. 1 also examined himself and another witness, The learned trial Court considered the evidence on issues Nos. 4 and 5 which were taken up together and came to the categorical finding that Defendant No. 1 constructed the house on the suit land in 1949 and he was the owner of the same and that the house which existed on the suit land did not belong to the Plaintiffs. After discussing the evidence on issue No. 6 he came to another categorical finding that Defendant No. 1 bad constructed the house within 5 years of the commencement of the tenancy with the " consent and knowledge'''' of the landlords(Plaintiffs/Appellants) and he was protected from eviction u/s 5 of the Act. In giving his findings on issue Nos. 4 and 3 he also held that the house in question was a " permanent sttucture ". After having decided these And also other issues in favour of the Defendants he dismissed the suit with Costs.
In this appeal it has been contended before us on behalf of the Plaintiffs/Appellants by Mr. J.P. Bhattacharjee, learned Advocate General, Nagaland, that the finding of the learned trial Court on the ownership of the house in question cannot be sustained on law as well as on fact. He further submits that no claim for protection u/s 5(1)(a) of the Act was made out inasmuch us neither the terms of the lease under which the Defendant No. 1 was " entitled to build the house on the suit land were proved nor the "knowledge and acquiescence" in the matter of construction of the house by the tenant could be proved and as neither ingredients of Section 5(1) (a) were proved in this case the learned trial Court erred in law in dismissing the suit upon holding that the Defendant was protected from eviction u/s 5(1)(a) of the Act. On behalf of the Defendant No, 1 (tenant) Mr. N. M. Lahirj, the learned Advocate General, Megbalaya, contends that the Plaintiffs'' own document Ext. P is a complete answer to both the contentions raised on behalf of the Plaintiffs-Appellants (landlords). He submits that on the pleadings and the evidence the finding of the learned trial Court about the ownership of the house is unassailable. It is further submitted that-the case was covered by the first part of Clause (a) of Section 5(J) of the Act inasmuch as there was evidence on record to prove that the tenent was "entitled to built " the houses under the terms of the lease" and that in any event "knowledge and acquiescence of the landlord'''' in this case has been satisfactorily proved. Another limb of his argument is that Defendant, had exercised his option of renewal under the lease Ext. D and therefore he was also protected u/s 40 of the Transfer of Property Act.
In order to appreciate the rival contentions it is necessary to set out Section 5(1)(a) of the Act. It necessary also to mention that the two provisos were added by Section 2 of the Assam Non-Agricultural Urban Areas Tenancy (Amendment) Act 1968 which came into force on 20.6.68
Protection from eviction:
(1) Notwithstanding anything in any contract or in any law for the time being in force-
(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of; the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent.
Provided that where the tenant having built a permanent structure within the period specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed contract:
Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not he ejected except on the ground of non-payment of rent.
(Emphasis added)
We may first deal wild the question ownership of the house because it is not denied that the house in question was not a "permanent structure" as defined under the Act, Mr. Bhattacharjee has laid great stress on the Municipal records proved in the case namely, Exts. 1 and B which arc the certified copies of Valuation lists of the "holding'''' in question. In both Exts. 1 and B Tila Natb Phukan (Plaintiff No. 1) has been described as the "owner" of the holding at column 5 and at column 6 he is also described as the "occupier" of the holding in the year 1947. In Ext. B Smti Premarani Barbarua, wife of Shri Lalit Ch. Barburua (defondant''tenant) has bsen described as the "occupiet" in the year 1249.50 but in 1952 and 1958 in both Exts. I and P the Defendant is himself described as the "occupier" at column 6 of the list. The description of the ''''buildings on the holding" given at column 11 of both the Lists and much stress U laid by Mr. Bhattacbarjee on this description to show that the same house which was in-existence in 1947 has remained In fact on the "holding." He submits that in 1947 the lists show that the Plaintiff No. 1 was-the "occupier" of the house and therefore no new house was constructed by the Defendant on the suit land; it is the house of the Plaintiff which existed in 1947 which the Defendant is all along occupying, In making this submission, it may be pointed rut, he has asked this Court to ignore the fact that it was also the Defendant''s case that in 1947 there existed on the suit land a dilapidated house of Plaintiff No. I and after it was removed he had got vacant possession of the land on which be constructed his house In 1949, Mr. Bhattacharjee has also drawn our attention in this connection to Sub-sections (2), (10), (16), (24) and (26) of Section 3 and also to Sections 59(1)(a), 66, 74 and 92 of Assam Municipal Act, 1923 which was in force during the relevant period as the new Act 1956 came into force in 1957.
The contention is not well founded. The Valuation. Lists, a; rightly pointed out by Mr. Lahiri, cannot be considered as documents of title and on the basis merely of these lists the title to to house in question of the Plaintiffs cannot be said to have been established. By Section 59(1) the Municipal Board is empowered to impose taxes on, among others, "holdings" situated in Municipal urea and for this purpose Valuation Lists are prepared u/s 66 thereof. The inquiry contemplated u/s 66, or even u/s 69, cannot be said to determine conclusively the rights of the parties a "owners'''' and "occupier''''. For, such inquiries ore net only not judicial inquiries, but these may even be made expert without bearing any person and for a specific purpose as indicated by these provisions. That apart, Mr. kahiri has, further, rightly contended that the Assam Municipal Act itself does not envigage any legal presumption as to correctness to be attached to entries made in such lists. Indeed, ft comparison of the two documents proved In this case (Exts, 1and 8) itself bear out this fact: and entries in the two lists of column 11, appertaining to the description of the buildings, do not tally 91 respect the year 1958, The provisions of Sections 74 and 91, in cur opinion, have little bearing on the facts of this ease ns neither party has proved any fact relating in any manner to payment of any tax to the Municipality in respect of the house or the holding in question. The terms, "building", "holding", "land", "occupier" and "owner''" are denned respectively in Sub-sections (2), (10), (16), (24) and (26) of Section 3 of the said Act, but on a reading of these definitions it is not possible to hold that merely because the Plaintiff No. 1 has been described in Exts. I and D as the ''''owner" of the "holding" (defined to "mean land''''), his title to the house in question has been proved. However, it is also to be noted that in Exts. 1 and B at column 11, the area of the main house is shown as 4425 s. ft. in 1947 but in 1949 it is 429 and in both 1952 and 1958 it is 384 which does not, on facts even, support the Plaintiffs'' case that it is the same old house of theirs which was constructed In 1947 after taking permission from the Municipal Board as stated in the plaint. Indeed, no such permission has been proved. Nor even any other evidence, except ext. 1 and the statement of Plaintiff No. 2 in his evidence, is before the Court to sustain the plea of Mr. Bhattacharjee. On the other hand as rightly observed by the'' learned trial Court, the fact that the Plaintiffs did not claim any manner of relief in the plaint in respect of the house goes very much against them- Indeed, they also failed to prove as a fact, as alleged in the plaint, that the tenancy was in respect of both the land and the home and that after expiry of the lease (Ext. D) they asked Defendant No. 1 in August 1960 to surrender vacant possession thereof.
It is settled law that the Plaintiff must succeed or fail on the strength of his own case but in this case onus it on Defendant No. 1 to prove that he had constructed a permanent structure on the leased land in terms of Section 5(1) of the Act invoked by him us a shield to resist the Plaintiffs'' claim. It is true that it is nobody''s case that the house existing on the suit land was constructed by anybody else, the contest on the point being only between the Plaintiff and Defendant No. 1, the Plaintiffs'' failure in these circumstances to prove that it was their house can, therefore, be considered at a circumstance in favour of Defendant No. 1. However Defendant No. 1 has, in this case, Independently proved by other evidence, besides his own that it is ho who constructed the house in 1949 and that be had constructed it within 5 year of taking the tenancy in 1947. Apart from his own witness. D.W. 1, Plaintiffs'' witness (P.W. 1) also support his case. The trial Court has believed them and no reason is disclosed to us in this appeal why we should not accept their evidence. P.W. 1 as well as D.W. 1 both corroborate Defendant No. 1 (D.W. 2) and all the three witnesses consistently prove the specific case of the Defendant No. I made but in the written statement. They proved that there was a house on the suit land which belonged to Plaintiff No. 1 but later Defendant No, 1 constructed a house in its place and also extended the same; that the house was constructed by him in 1949 is proved by him and also by D.W. I. Reliance is also placed on the entries at column 11 of Exts. 1 and B which show him in 1952 and 1958 and his wife (in 1949 ) as "the "occupier of the building. Ext. A is relied on to show that the building permission granted to him for constructing the house in 1949 could not be proved in the case because the relevant Municipal records were not traceable. However, from Ext. C it appears that on 30-10-63 he had applied for " extension of his dwelling house on the the suit land and that it was thereby granted.
We may now consider the effect of Ext. D on which Mr. Lahiri strongly relies not only in support of his clients'' ownership of the house but also to prove the other ingredient of Section 5(1)(a) of the Act to sustain his plea of protection there under. Before appreciating the evidentiary value of Ext. D it is necessary to bear in mind the relevant principle of law for its interpretation in Padmaraja and Others Vs. Dhanavathi and Others, it was held that the whole document must be read and construed and that the Court must have regard to the declared object of the document which is often contained in the preamble. There are some other salutary rules which are stated in Delhi Development Authority Vs. Durga Chand Kaushish, of which the following are relevant :
(1) if two interpretations of any covenant are possible, one favorable to the guarantee should be adopted.
(2) If there are words in a covenant which create an uncertainty, the ambiguous words cart be discarded.
Indeed, the second rule can be said to hi an off short of Rule IV of Odger''s book which state literary meaning in any instrument depends on circumstances of the party (see Odger''s Construction of Deeds and Statutes, 5th edn. page 39)
We turn now to Ext. D which was executed in favor of Defendant No. I as the lease by all the four brothers (Plaintiffs and other predecessor-in-interest) as tensors. It was for a period of three years from January, 1958 to 31st December, 1960. It gave the lessee an option of renewal and also a right of preemption in Clauses (5) and (8) respectively and the demise was in respect of only the land in suit. There is no mention in this document of any existence of any house of the Plaintiffs on the demised land on the other hand there are clear statements in it to show that whatever houses exist on it, these arc of lessee. Mr. Bhattacharjee has great stress on the words "since 1947'' occuring in the preamble to submit that Defendant No. 1 did not construct any house in 1949. The relevant portion of the preamble may be quoted:
Whereas the lessee is in occupation of the land described in the schedule below with his residential houses thereon since 1947 whereas the lessor having required of the lessee to execute a proper lease....
In our opinion the words ("since 1947") cannot be torn out of context and read in a manner as to qualify merely the expression "houses", having regard to the declared object of the, document which was execution of a ''proper lease'' of the land. On a proper construction of the preamble bearing the above rules of construction in mind we feel inclined to hold that the words have to be related to the occupation of the land by the lessee and not to the house.
The next question that has to be considered to whether Ext, D throws any light on the terms of the first lease of 1947. It is also the case of Defendant No, 1 that the first lease was an oral lease and therefore it is not surprising that the words "proper lease" are to be found in the preamble of the later lease, There Is no direct evidence on the terms of the first lease except the statement of the Defendant himself who has stated in his evidence that he took the land on a verbal lease of the vacant land and that Plaintiff No. 1 removed the dilapidated house which existed on It before he was inducted. Ho constructed the house in 1949 after obtaining permission from the Municipality In the name" of his wife and since then he living there. Before that he used to come to Sibsagar from his original house at Namti village as he is a practising lawyer since 1941. He has also stated that Plaintiff No. 1 used to visit his house frequently and that the floor was cemented on his advice. In his evidence Plaintiff No, 2 has also admitted that the " suit property" was managed by Plaintiff No. 1 who, however, lived in a "separate house''''. Thus from the circumstances disclosed in the evidence of Defendant No. 1 and Plaintiff No. 2 and in Ext. D it appears that the land was leased in 1947 to Defendant No. 1 for constructing a dwelling house of his own therein of permanent nature. Indeed, for this, Plaintiff No. 1 received his own old house and gave ber vacant possession of the land. He was. thus "entitled to build " the house on the suit land as per terms of the oral lease of 1947 to which reference is made in Ext. O. Indeed, the right of pre-emption and of renewal of the lease .given to him there under are also indicative of the fact that these rights were granted to him because he had his dwelling house on the demised land (suit land) in virtue of his right under the oral lease. He bad constructed the house as of right under the terms of the , oral lease and not in virtue of any license. Clause (6) which required him to remove at his own cost his house was to be operative only he desire to vacate the land during the subsistance of the lease or after its termination and It has to be read in the context of Clauses (3) and (8) and of the preamble, Besides, the admitted position is that no separate rent has been in this suit, or even otherwise at any time, claimed, as per evidence, for the house and even after execution of Ext, D rent was accepted there under and that also for the land only. This also indicates that the house was built by Defendant No. 1 as of right. For the first time rent for the land was refused on 27.12.62, after the expiry of Ext. D on 30.12.60 and the notice to quit (Ext. E) was given still later, on 16.7.63.
It is not possible for as to agree with the conclusion of the trial Court that the case of the tenant is covered by the second part of Section 5(1)(a) of the Act. Indeed, the fact that he has failed to appreciate the legal position it apparent. His finding is that the tenant (Defendant No. 1) had constructed the house with the "knowledge and consent''1 of the landlords (Plaintiffs) whereas the legal requirement is not "consent" but acquiescence'' and it cannot be denied that the two expressions do not carry the same meaning in law. The term " acquiescence'''' has received lucid exposition in Wilmott v. Barbar (1880) 15 C.H.D. 96 . This decision was quoted with approval in Jai Narain Vs. Jafar Beg and Another, on which reliance is placed by this Court in Nanda Kumar''s .case (infra). In Wilmott''s case Fry, J. observed that "acquiescence which will deprive a man of his legal right must amount to a fraud'''' and analysed its different elements, which may be thus summarised:
(1) The Plaintiff (who sets so the plea) must have made some mistake as to his legal rights.
(2) He must have done some act on the faith of his mistaken belief.
(3) The Defendant (the possessor of the legal right) must know the existence of his own right which is inconsistent with the right claimed by the Plaintiff.
(4) The Defendant must know of the Plaintiffs mistaken belief of his rights.
As it is necessary that all the four elements must co-exist to sustain the plea of acquiescence and in this case it cannot be said, on the evidence on record, that all the elements have been proved, protection under the second part of the section cannot therefore be claimed by Defendant No. I. Indeed, on the facts of this case it can be said that there was so scope for the Defendant to prove the third element which was basic to the plea as the counter right which in this case could be claimed by the Plaintiff, did not exist when in this case the Defendant can be said to have made mistake as to his own right to build the structure in question.
Having thus held that the Defendant No. 1 was entitled to the protection of the first part of Section 5(1)(a) of the Act and also that the second part is not applicable to this case we rosy now briefly refer to the legal position under the two provisos. We feel that the labored legislative effort to match judicial rectitude has to be taken notice of because we are construing a welfare legislation which reminds us of our constitutional obligation. Indeed, the Apex Court has encouraged such judicial exercise by observing that ''where law-is enacted for giving effect to a directive principle in furtherance of constitutional goal of social and economic justice. It may conflict with a formalists and doctrinaire view of equality before the law'''' and thereby reiterating the emerging role of part IV of the Constitution as an Interpretative tool, (See Minerva Milk casa (AIR 1980 SC 1799 . For this his Lordship ( Bhagawati, J) referred to an earlier decision of Pathumma and Others Vs. State of Kerala and Others, who had adopted a similar approach. There cannot be any doubt that the Assam Act is a measure aimed at promoting directly the social objectives of the welfare State envisaged under Arts. 38 and in virtue of Article 37 the judiciary ("the State" under Arts. 12 and 36) is obligated to give effect to the principles of Article 36 by interpreting ("making") laws enacted for this purpose. Our judicial labour on this point will not, therefore, be misdirected.
The following decisions of this Court as well as of the Supreme Court on the interpretation of Section 5(1)(a), of the Act have been placed before us:
(1) Rafiquennessa Vs. Lal Bahadur Chetri (Dead) through his Representatives and Others, decided on 24.2.64
(2) AIR 1966 SC 190 K (Biswambhar v. Girindra) decided on 30.3.66.
(3) An unreported decision of this Court in Second Appeal No. 33/69 (Nanda Kumar v. Khubchand) decided on 9.5.63.
(4) AIR 1964 Gau 70 (Chimanial v. Anandamallo) decided on 26.7.63.
(5) AIR 1966 Gau 118 (Mira Khurnbl v. Usha Ranjan) decided on 13.3.65.
(6) (1973) 15 GauLR (F B.) Bireswar Banerjee v. Sudhir Ranjan) decided on 26.6.71.
(7) (1977) 156 GuaLR (Sisha Bala v. Ajoy Nath) decided on 4.3.77. by a Single Bench.
(8) An unrsported decision of this Court in First Appeal No. 458/73 (Saotosh Mohan Deb v. Vivekananda) decided on 24.8.82, by a division Bench.
In Chimanlal''s case, protection u/s 5(1)(a) of the Act was claimed on the ground that the tenant had taken the suit land on lease in 1931 and within 5 years of the lease permanent structures were constructed thereon. Hut it appears that on the expiry of that lease the tenant continued in possession of the land for sometime and after a notice was served on him to surrender possession thereof, a second lease was taken by the tenant in 1943, The Court held that on a reading of both parts of Section 5(1)(a) the only conclusion could be that "construction should be made within 5 years of the contract of the current lease". It was further observed that in ;a number of cases the Court had held that when such structures were already in existence on the date of the lease, no protection could be claimed on that basis. In Mira Khumbl''s case, the Court had to deal with slightly a different situation. The occupancy of the suit land by the Defendants was under a tenancy taken from the predecessor-in-interest of the Plaintiff and the structures thereon were already in existence when the Plaintiff acquired ownership of the land, Protection was denied to the tenant in this case also with the observation that the finding of the Courts below was that there was no contract under which the tenants were entitled to make the construction and further that those were made beyond live years of the commencement of the tenancy. It was observed that the limitation of 5 years also applied to cases where there was no contract for making, such construction.
It was after two decisions of this Court that, there was a legislative intervention in 1968 when the two provisos were added but the purport and the effect of the amendment appears to have been overlooked in the decisions of this Court subsequent to the amendment, viz. Bireswar Banerjee''s case which expressly overruled (as respects interpretation of Section 5(1)(a) of the Act ) Chimanlal, Sishu Bala and also Santosh Mohan Deb, Indeed, in the last mentioned case, it was Mr. Lahlri''s contention, which be has reiterated before us also in this appeal, albeit dehors the proviso, that the protection was given by the Act to a tenant who had not kept the land fallow or unutilised for a reasonable period o" time after obtaining the tenancy. The Court, speaking through one of us (Hansaria, J.) held in that case that 5 years limitation would also apply to the second part of Section 5(1)(a). Apparently Court''s attention was not drawn to the second proviso (nor indeed to the first proviso) which is not saddled by any limitation of time. In Bheswar Banerjee, however, both provisos were noticed by the Court and while the first proviso was challenged at being ultravires Article 254 (1) of the Constitution,, no opinion was expressed on tbe scope and application of the same and ,also of the second proviso possibly because the Full Bench confined its attention to the order of reference which merely required re-consideration of the decision in Chimanlal. In Sishu Bala the position is almost similar. The provisos are quoted in the judgment but the decision is given in the case'' (albeit negativing the tenant''s plea) on the basis of the second'' part of the main provision of Section 5 (1) (a). However, it has to be pointed out that the observation in this case to the effect that limitation pf time did not attach to the Second Part should be deemed overruled by Santosh Mohan Deb. However, our brother Lahiri, I, also observed in this case that if there was no positive term of the tenancy entitling the tenant to construct a permanent structure the first part of the section could not be invoked. It is this observation which is relevant for the purpose of this case.
It is this matrix in which must fit the effect of the amendment made in 1963 and the considerations bearing on the scope and application of the second proviso. From the above discussion of the decisions of this Court cited before us it appears that the judicial interpretation of the protection has been generally restrictive whether before or after the amendment with the exception of, and notwithstanding, Bireswar Banerjee and the latest Full Bench decision reported in 1982) 1 GLR 736 ( K.P. Barua v. K.R. Medhi). Indeed this is also perhaps, the reason that the broad sweep of the said proviso discouraged its consideration, If the legislature having noticed the judicial trend deliberately enlarged in 1968 the scope of the protection In view of the past factory and future prospect the Courts are bound to take note of this fact, The two Full Bench decisions of this Court and also the decisions cited be-fore us of their Lordships of the Supreme Court suggest that a positive and liberal approaoh by the judiciary to advance the object and purpose of the Act is called fort The Apex Court upheld the retrospective operation of the Act in one case Rafiquennessa Vs. Lal Bahadur Chetri (Dead) through his Representatives and Others, and in tbe other case Biswambar Roy Vs. Girindra Kumar Paul, it construed the expression "for residential or business purpose" of Section 5(1)(a) in a manner which benefited the tenant.
In S.C. Prashar, Income Tax Officer, Market Ward, Bombay and Another Vs. Vasantsen Dwarkadas and Others, Kapur, J. observed that in construing an enactment and determining in scope it is permissible to have regard to all such factors, to ascertain the intention of the legislature, as the legislative history, tbe reason which led to its beingpassed, the mischief which had to be cured as well as the cure (c.f. Heydon''s Rule (1584 ) E.R. 736). It was held to that case that the effect of the amendment was to validate certain notices issued under the income tax Act as well as to nullify the effect of certain judgment of the Calcutta High Court on that matter. In The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, it was held that if two constructions of a welfare legislation were possible the Court should lean in favour of one which advanced the object and the policy of the Act and keep in view the fact as to what was the previous position in law and to what extent the new provision exhibited legislative intent to change it.
The principle of interpretation bearing on the construction of provisos generally may also be noted. It is trite law that the proper function of a proviso is to qualify the generality of the main enactment but that it not all. It was held in Commissioner of Income Tax Kerala and Coimbatore Vs. Krishna Warriar, as follows ;
But it is not an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enactment, Generally the natural presumption is that but for the proviso the enacting part of the section would have included the subject matter of the proviso; but the clear language of the substantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provision, but is in itself a substantive provision.
[Emphasis added]
Observations to similar effect are to be found in other decisions also of their Lordships of the Supreme Court-see The State of Orissa Vs. Dabaki Devi and Others,
Bearing these principles in mind we are of the opinion that the second proviso is a substantive provision for which we also find support from the intrinsic evidence of context and collocation. In our opinion the key to the construction of Section 5(1)(a) as a whole is provided by the expression "shall not be ejected except on the ground of non-payment of the rent'''' of this proviso which is not in the first proviso but is very much there in the main provision. In our opinion this proviso takes note of the judicial trend (especially of the decisions in Chimanlal and Mira Khumbi ) and expresses the intention of the legislature to enlarge the scope of protection by including in Section 5(1)(a) cases which are not covered by the main provision in terms, e.g. cases in which the specific term of the tenancy ("entitled to build") or the "knowledge and acquscence" of the landlord cannot be proved. The terse expression "whatever mode of acquision" occuring in the proviso in relation to the word "tenancy'''' does not refer merely either to the form or to the nature of the tenancy; it takes care of such cases, among other, as those exhibiting fact-situations similar to the cases of Chimanlal and Mira Khumbi as also, for that matter, of the case in hand. This is because tbe expression "permanent structure'''' has received paramount emphasis in the context and collocation. In a nut shell it may be said that if there existed on the tenanted land a permanent structure built by the tenant for residential or business purpose, the tenant cannot be evicted except on the grounds, of non-payment of rent. In the context of the Directive Principles, there are valid reasons to attribute to the legislature the opinion that social purpose is best served by encouraging productive investment for shelter or employment and not by encouraging the land owners to keep their land fallow merely for speculation or status By such broad protection there may be cases of overlaping and on the particular facts of a case protection may he available to a tenant under the main provision as also under the second proviso Section 5(1)(a) bit merely on that ground legislative effort should not be stifled. The broad sweep of the terse expression can be given effect and meaning by reading it in the context of the words "permanent structure'''' and of the key expression noted earlier which in them carry the main burden of the main object of the Act. The legislature meant to provide the proviso with a field to operate proprio vigore. The benefit of the ambiguity, if any, should go to the class whose interest the legislature sought to advance for social welfare and for this considerations of "formalists equality'' can be disregarded, as observed by Bhagaw-ati, J. in Minerva Mills case ( supra ).
Further, the language of the proviso in its own setting and also in the historical context plainly suggests its retrospective operation having regard to the main object of the Act. We may, in this connection, rely on an observation made on the retrospective operation of Section 3(1)(a) of the Act by their Lordships of the Supreme Court in Rafiquennessa ( supra ).
In other words, the statutory provision is held to be retroactive either when it is so declared by express terms or the intention, to make it retrospective follows from the relevant words and the context in which they occur.
Indeed, in that case their Lordships also considered the provisions against the general object of the Act and the application thereof in terms of Section 2 of the Act besides construing the provision in the context of its own setting and language.
In this case the proviso had come into operation before the suit was disposed of and the Court could not, on the plain language of the proviso it self, pass a decree for the ejectment of Defendant No. l as there was on the suit land a permanent structure which was built by the tenant for dwelling purpose and which was in existence on the date of institution of the suit. This is, however, our tentative opinion on the construction of the second proviso of Section 5(1)(a) and applicability thereof to the facts of this case Inasmuch as we have already held that the Defendant is protected by the first part of Section 5(1)(a).
To say the last word on the merits of the case we may, further, clarify that it has not been, and it could not also be, contended in view of the Full Bench decision in Birtswer Banerjee (supra), that the protection acquired by Defendant No. 1 under the oral lease of 1947 was lost by virtue of second written lease granted to him in 1958.
We do not also consider it necessary to deal with the question of protection u/s 40 of the T.P. Act not merely for the reason that there was no specific issue on this point and it was not urged in the Court below but particularly because of the view we have taken In the matter to uphold the plea of Defendant No. I that he is entitled to protection against ejectment in view of Section 5(1)(a) of the Act.
In the result the judgment and decree passed by tbe learned trial Court are upheld and this appeal dismissed. The contesting Respondent (Defendant No. 1) is entitled to his costs of this appeal and we allow and decree the sane accordingly.
B.L. Hansaria, J.
The interpretation put on the second proviso to Section 5(1)(a) of the Act by my learned brother has needed this noteconcurring in the ultimate decision but dissenting in finding out the legislative intent and meaning of the aforesaid proviso.
A proviso can contain in it a substantive provision of law as pointed out in the leading judgment by referring to some decisions of the apex Court; but it can never make the main provision entirely otiose and redundant, by itself occupying the entire Held. The true role of a proviso is to carve out an exception to the main provision and it deals with a case which would otherwise fall within the general language. Then, the proviso must be read and considered in relation to the principal matter to which it is a proviso. (See Dwarka Prasad Vs. Dwarka Das Saraf, , The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, and R.N. Soni v. Assistant Sales Tax Commissoner AIR 1935 SC 765).
The second proviso has to be understood and interpreted accordingly. No doubt, the legislature wanted to enlarge the protection given to the tenants by Section 5 by incorporating the proviso in the section, but it would be wrong to assume that it wanted the proviso alone to govern the cases of ejectment de hors other requirements mentioned in the section. In that case, other provisons could have will been repealed, By judicial interpretation we cannot re-write a statute.
To understand the intention behind the incorporation of the two provisos, it would be only apposite to refer to the Statement of Objects and Reasons of Assam Act XVI of 1968 which had added the provisos in the Sub-section. It reads:
It has been found that when a tenant renows his lease after the expiration of the current lease, the permanent structures constructed by him during the five years of the first lease do not get any protection during the period of the renewed lease. In order to rectify this anomalous situation, the provisions of Section 5 the Assam Non-Agricultural Urban Areas Tenancy Act need amendment. Certain other minor amendments are also necessary due to adoption of the decimal coinage system.
Thus the amendment was not aimed to achieve the object my learned brother has highlighted, Indeed, nothing has been said in the Statement of Objects and Reason about the need of the second proviso, lest there be any doubt in any mind if this proviso had found place in the Bill itself, let it be said that it had. Though no reason for it was ascribed by the mover, it might have found place in the statute book to take care of cases like Gaya Prasad Mistri and Ors. (S.A. 130/57 disposed of on 31.3.1959 ) where protection from eviction was denied to the tenants who had remained in the occupation of the structure built on it by them after selling the land on which the structure stood to the Plaintiff who accepted the Defendant as tenants. The tenants did not get benefit of the Act in Gaya Prasad, as it was held that cases of construction which are in existence at the time of contract of tenancy are not governed by Section 5(1)(a) of the Act. I would think that the second proviso wanted to protect such persons specifically. The language of the proviso (which is somewhat inartistic ) does not permit any further extension. The main provision speaks of building of a permanent structure by a tenant, whereas this proviso assumes existence of such construction. We cannot pour more content in it.
To hold that because of what has been stated in this proviso, a tenant will pot be ejected "except on the ground of non-payment of rent" oven If the permanent structure had been built by him beyond the period mentioned in Clause (a) and for that matter in the first proviso, and without -attiring the other conditions mentioned in the clause, would amount effacing other provisions of the section. This is not permissible. The Heyden''s Rule to which my learned brother has referred only requires attention to be paid to the mischief sought to be cured, and nothing further. Of course while taking care of the mischief, the Courts may iron out crease, but it cannot weave on an altogether different texture.
I would not therefore agree on the construction put on the second proviso In tin main judgment. The omission to deal with it in the decisions of this Court noted above is therefore not a case of slip on the part of the Bench and Bar. Perhaps no case attracting it entered the precincts of the Court after Gaya Prasad Mistry. In that case also no reliance was placed on the aforesaid proviso by the learned Advocate General, Meghalaya ; indeed he did not even mention about it. It is because of this that we do not have the benefit of any address from the Bar about the scope and width of the Proviso which has been focused by my learned brother. Had it been that the decision of the case hinged on the protection made available by the proviso, I would have opined for setting the case for further bearing on the question. But that is not the position, as-the case of the Defendant is taken care of by-the main provisions of Section 5(1).
Here too, 1 would think that the second part of the clause (a) is more attracted than the first. According to me, if the Defendant of this case was no; ''entitled to build'' as per the term of the contract, he must have done so in the mis taken belief of his legal right, and the Plaintiffs must have known that the right claimed by the other side is inconsistent with their right on the land. This would show ''acquiescence'' of the Plaintiff.
Be that as it may, I agree with my learned brother that the Defendant Respondent is entitled to protection u/s 5(1)(a) of the Act, I would also, therefore, dismiss the appeal, but not on the ground which have appealed to my noble brother.
As a presiding Judge of the bench I may say that the little delay in pronouncing this judgment owe to the fact that t I had to be out for two weeks to hold Court at Agartala soon after the draft of the main judgment was received, where after ray learned brother had to go there for a week for the , same purpose returning only on 12th March.