P L D 1963 Dacca 886 (PLP)

No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enact ment." From Craies on Statute Law, fifth edition, the following passage at page 64 is relevant "

2. Construction according to intention: --‑The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of the Parliament which passed them." At page 368 of the same volume, we find the following passage "Presumption against taking away vested rights: -‑It is a well recognised rule that statutes should be interpreted, if possible, so as to respect vested rights, and such a construction should never be adopted if the words are open to another con struction. p. 369: And in the absence of anything in an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable o a claim in litigation at the time when the Act is passed ".

9. Having in view the aforesaid cardinal rules of inter pretation of statutes we are to see what was the intention of the Legislature in passing the proviso to subsection (17) of section 3 of the Bengal Tenancy Act.

10. It is admitted that before the introduction of this proviso any bargadar could have pleaded that he was a tenant and not a bargadar as claimed by the plaintiffs and that is also the trend of the decisions relied on by both sides. Now the question is whether by this proviso the right that already vested in a bargadar had been taken away by introduction of the proviso in the Act. According to the decisions relied on by the plaintiffs respondents already quoted before it appears that the bargadar could be a tenant for a period previous to the introduction of the proviso but could not be a tenant after the introduction of the proviso. If this interpretation be accepted as correct then it will amount to saying that the right of the tenant was taken away by the proviso or in other words, the proviso is retrospective but that position has not been accepted by those decisions. Now we are to see whether that right has been taken away either expressly or by unambiguous implication by the Legislature. In the proviso we find the following three things: (i) whether such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him, or (ii) whether he has or is held by a Civil Court to be a tenant ; and (iii) reference to a certain period.

11. Now the question would be which point of period is referred to by the word `‑has". In my opinion, the pointer is not the time at which the proviso was introduced but the time at which the dispute arose or arises. If, before the dispute arose or arises, any bargadar was admitted to be a tenant by his landlord then it will be sufficient defence in a subsequent suit, for recovery of barga produce that he was not a bargadar but a tenant. This word "has" also does not debar a landlord to accept a bargadar as a tenant even during the pendency of the suit. Take for instance that a suit is instituted by the Ammuktear of the absentee landlord for recovery of half the barga produce alleging that the defendant was a bargadar. But in fact the defendant had been already recognised by the landlord though not in writing but by words and actions and the defendant gets the landlord examined, who admits in Court that he had already admitted the defendant as a tenant. So a bargadar can be treated as a tenant if there is a recognition even during the pendency of a certain dispute ; it might be after the introduction of the proviso. If we look to (ii) of the proviso,, this becomes more clear and as in it we find two phrases (1) `has/ been held' and (2) `is held' by a Civil Court. The words "has been held" to my mind indicate the time before the institution of the suit and not before the introduction of the proviso. The words "is held by a Civil Court" are clear enough to show that though the bargadar was not recognised expressly as a tenant by the landlord or has not been, already, held by the Civil A Court as a tenant, yet, the Court can take into consideration the evidence and the circumstances in the case and come to a finding that the bargadar is a tenant. So the words "is held by the Civil Court" do not debar a Civil Court to find the defendant bargadar as a tenant and those words are also a pointer that a bargadar is not debarred from pleading that he is a tenant for a period subsequent to the introduction of the proviso as held in the case of Abu Nasser Sayedullah v. Abdul Malik alias Malal and the case of Sishu Mohan Koyal and others v. Rajendra Nathi Sarkar and others. I am of opinion the aforesaid interpretation) that has been given by me above is the literal and grammatical meaning of the words of the proviso; and that interpretation is arrived at without any violence to the language of the enactment and that was the intention of the Legislature. Accordingly I hold that the proviso is neither retrospective nor does it debar the bargadar to plead that he is a tenant, but only has laid down certain rules for determination of the status.

12. Now the question is whether the case should be sent back on remand to the lower appellate Court as that Court did not decide the three other points which the lower appellate Court had to consider before it. In my opinion no useful purpose will be served by sending the case back on remand, as the lower appellate Court had accepted the finding of the trial Court that he was a tenant for a period previous to the intro duction of the proviso but relying on the case of Abu Nasser Sayedullah v. Abdul Malik alias Mala came to the finding that plea of tenancy would not be available in view of the decision therein. I have already found that the interpretation that had been given in that decision is not a correct one, that the bargadar is entitled to put the defence in any dispute either by saying that he had been already recognised by the landlord or found by the Civil Court as a tenant or the materials on the record are sufficient to show that he is not a bargadar as claimed by the plaintiff but a tenant. The learned Subordinate Judge who tried the suit took into consideration the evidence adduced by the parties and dealt with it elaborately and after giving cogent reasons he came to the finding that neither the plaintiff nor the predecessors‑in‑interest had ever been in khas possession of the suit land and possessed the same as tenant. This finding is also supported by the C. S. records‑of‑rights published in 1919. There nothing has been shown as to how the tenancy right acquired by the defendants had been lost. The case that was set up by the plaintiffs that the defendants were bargadars since 1361 B. S. had not been believed by the trial Court or by the lower appellate Court inasmuch as the learned District Judge held that the defendants were tenants for a period prior to the introduction of the proviso. The learned Subordinate Judge who tried the suit also accepted the plea of the defendants that half the barga produce was paid by the defendants in 1362 B. S. and nothing could be recovered from the defendants for 1363 and 1364 B. S. as the plaintiffs' rent receiving interest had been acquired by the Government. It is not disputed that if the defendants be held as tenants then the plaintiffs cannot claim any rent for the period 1363 and 1364 B. S. From the evidence I am convinced that the defendants are tenants under the plaintiffs. Furthermore, in view of my finding that the defendants are not bargadar but tenants the suit for recovery of barga produce is not maintainable.

13. I accordingly allow the appeal, set aside the judgment and order of the lower appellate Court and restore the judgment and decree of the trial Court. But in the circumstances; of the case, we make no order as to costs. IDRIS, J.‑‑The question raised in this appeal is whether the defendants are tenants or bargadars. In the C. S. record of‑rights, the suit lands have been recorded in the name of Imam Mondal, father of the defendants, in korfa with half the produce as the annual rent. The C. S. record‑of‑rights were finally published long before the Bengal Tenancy (Amendment) Act, 1928, hereinafter called the Act. Mr. Jani Alain the learned Advocate for the appellants, has contended that the proviso to clause (17) of section 3 of the Act is not retrospective in effect and that the status of the defendants as tenants must be taken to be continuing after the amending Act of 1928.

15. Mr. B. N. Chowdhury, the learned Advocate for the respondents, has contended in reply that in view of the intro duction of the proviso to clause (17) of section 3 of the Act, the defendants are mere bargadars and cannot be regarded as tenants. In support of this contention, Mr. Chowdhury has referred to the cases of Sishu Mohan Koyal and others v. Rajendra Nath Sarkar and others, Digombor Paul Ghosh and others v. Tofozuddin Ijordor and the case of Abu Nasser Sayedullah v. Abdul Malik alias Mold.

16. The facts in the case reported in A I R 1938 Cal. 707 are that the land in suit were taken in barga settlement by the defendants by a barga kabuliyat on condition of paying half the produce to the plaintiffs. This kabuliyat was executed in 1923, that is long before the Amending Act of 1928. The suit was brought for price of barga crops for 1340 to 1342 B. S. corresponding to 1933 to 1935. Defendants raised the plea that they were tenants and not bargadars. It has been held that having regard to the facts of the case, defendants were bound by the amendments made in section 3 (17) of the Act and were not tenants. But in the present case, no barga kabuilyat was executed by the defendants or by their predecessor‑in‑interest.

17. In the case of Digambar Paul Ghosh and others v. Tofozuddi Ijordar it has been laid down that in a suit by the landlord of an under‑raiyat for recovery of arrears of rent of an under‑raiyati, he was entitled to recover rent under the old section for the period in respect of which cause of action arose before the Amending Act came into force; but in respect of the period for which cause of action arose after that date, he was entitled to recover rent under the new section 48 of the Act. In that case, the question of rate of rent was involved, while in the present case, we are concerned with the question of status of the defendants.

18. The facts of the case in P L D 1960 Dacca 587 are that the plaintiff instituted the suit for recovery of money being the price of barga crops grown on land which he alleged that defendants held under him as bargadars. The claim of the plaintiff was for price of barga‑crops for 1363 and 1364 B. S. The defence was that defendants were not bargadars but that they were holding the land as tenants on payment of half the produce as rent. In the C. S. Khatian, the person who was said by the plaintiff to have taken the barga lease, was recorded as a raiyati Shtitiban tenant. It has been laid down that before the introduction of the proviso to clause (17) of section 3 of the Act even a bargadar could be a tenant under the Bengal Tenancy Act, but that after the introduction of the proviso, this is not possible unless the exceptions therein are satisfied and that the defendants could not succeed in their claim of being tenants under the provisions prevailing prior to the introduction of the said amendment. If I have followed the decision correctly, the effect of this decision is that section 3 (17) is retrospective in operation, as a person who acquired right as a tenant prior to the Amending Act was deprived of that right in view of the introduction of the proviso to clause (17) of section 3 of Amending Act. The following observation was made in that case: --‑ "The Legislature, to my mind, should have introduced clear provisions into the statute to show that previous position was not sought to be disturbed if that was its intention." With great respect I cannot agree that a person who has acquired right as a tenant prior to the Amending Act of 1928 could be deprived of that right by introduction of the proviso to clause (17) of section 3 of the Act.

19. Vested rights cannot be affected by an Amending Act operating retrospectively in the absence of express provisions to that effect. This view finds supports in the case of Haidur Husain v. Puran Mal and others (A I R 1935 All. 706) and in the matter of Tripural Modern Bank Ltd. v. Her Highness Mohorani Regent Mohodebi of Tripura and others (A I R 1950 Cal. 240). It has been laid down to these cases that a retrospective operation is not to be given to statute so as to impair an existing right or obligation.

20. Maxwell in his Interpretation of Statutes, 9th edition, at page 223 has made the following observation: "Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation creates a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature to be intended not to have a retrospective operation. Where vested rights are affected prima facie it is not a question of procedure."

21. In the present case, defendants were holding the land as under‑raiyats from long before the Amending Act of 1928. The land has been recorded in the C. S., record‑of‑rights as under‑raiyati in the name of the father of the defendants with half the produce as the annual rent including cess. The learned Subordinate Judge on discussion of the evidence held that the settlement records were correct. This finding of the trial Court was not set aside by the appellate Court. As the defendants acquired tenancy right long before the Amending Act of 1928, that right cannot be disturbed or taken away by giving retros pective effect to the proviso to clause (17) of section 3 of the Act of 1928.

22. The proviso to clause (17) of section 3 of the Act is not retrospective in effect. It applies to lettings, which have taken place after the Amending Act. This view is supported by the cases of Suresh Chandra Dutta and others v. Mohendra Chandra De and others (A I R 1941 Cal. 717) and Sudhir Chandra Singha Sarma and others v. Jadav Marak and another (34 C W N 845). The facts of the case in 34 C W N 845 are that a suit was instituted in the Court of Small Causes on the 15th of April, 1929 for price of a certain share of the produce from the defendants in respect of the years 1926‑1928 on the allegation that they were labourers. The defence inter alia was that they were rasyats in respect of the suit land and so the suit was not maintainable in the Court of Small Causes. It appeared that they were recorded as raiyats in the settlement record‑of rights finally published before the Amending Act of 1928 came into force. It has been held that clause (17) of section 3 of the Act is not retrospective in its effect. The principles appear to have been laid down in general terms and not in consideration of the fact that the claims were for the years 1926‑1928. The principle laid down in that case was followed in the case of Sudhir Chandra Singha Sarma and others v. Jadav Marak and another.

23. My humble opinion is that the question of clause (17) of section 3 of the Act being retrospective in effect arise. The second proviso to clause (17) to the effect "he has been or is held by a Civil Court to be a tenant" must be referred to the date of each particular suit in which the status of a bargadars is to be determined. The result is that when the status of a bargadar, bhagdar or adhair is in issue in a particular suit, if the particular circumstances mentioned in the first proviso to the effect "such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him" "do not exist, yet he will be tenant if he "is held" to be a tenant by the Civil Court in that suit. The position, therefore, is that the status of a bargadar is, to be determined with reference to the circumstances of each case. The decision of the trial Court after thorough discussion of the evidence, is that the defendants are tenants. The decision of the appellate Court that in view of the proviso to clause (17) of section 3 of the Act, the defendants cannot be regarded as tenants but that they are bargadars, cannot be upheld.

24. Mr. Chowdhury, the learned Advocate for the respon dents, has contended that if the defendants‑ plea that they are tenants be accepted, the case should be sent back on remand for determination of the questions regarding the plea of payment and value of the produce. But the suit is not for rent. It is a suit for price of barga produce. As the defendants have been found to be tenants, the question of plea of payment or price of produce is not relevant for consideration in this suit for recovery of price of barga crops. I agree with my learned brother that the appeal should be allowed. S. B./A. H. Appeal allowed.