Babu Dhirendra Nath Roy v. Ijjetali Miah And Ors. Opposite Party

1. This rule is directed against an order of the Munsif, Second Court, Jhenidah made in a proceeding under Section 26.J, Ben. Ten. Act. The petitioner before us is the landlord and there was an occupancy holding owned by opposite parties 2 to 7 who held the same as tenants under the petitioner. A two-thirds share of this holding was put up to sale in execution of a money decree obtained by a creditor against the tenants and it was purchased by opposite party 1. In the sale certificate the holding was incorrectly described as mokarari and on that footing the purchaser deposited only Re. 1 as landlord's fee. Notice of the sale was served upon the petitioner under Section 26(E), Ben. Ten. Act, on 12th January 1937. On 24th August 1938 the petitioner applied to the Munsif, Second Court, Jhenidah for recovery of the balance of landlord's fees together with compensation under Section 26(J), Ben. Ten. Act, as it stood prior to its being repealed by the amending Act in 1938. The amending Act came into force on 18th August 1938 just six days before the application was presented. The Munsif was of opinion that the petitioner had the right to recover the balance of landlord's fees, but his remedy lay in a suit and not by an application under Section 26(J), Ben. Ten. Act, which was repealed by act 6 of 1938 and was not in existence at the date when the application was made. It is against this order that the present rule has been obtained. It is not seriously disputed before us that the petitioner acquired the right under Section 26(J) of the old Act to recover the balance of landlord's fees and compensation from opposite party 1 as soon as the holding was sold with an erroneous description that it was a mukarari tenancy, and a corresponding liability was imposed upon the purchaser at the same time to pay the money. Section 26-J stood repealed on and from 18th August 1938, but there is nothing in the repealing Act which would show that the Legislature intended to take away or impair any vested right that had already accrued under the repealed Section. The question that has been pressed for our consideration is, whether the remedy by way of an application was still open to the landlord, or was he bound to enforce his right by means of a regular suit?

2. Section 26-J, as it stood before act 6 of 1938 was passed, simply defined the rights of the landlord to recover the balance of landlord's fees, and compensation in cases where an occupancy holding was sold with a false description that it was a permanent tenure or a holding at fixed rates. The Section itself did not indicate as to how the right was to be enforced, and if the matter stood there, in my opinion the conclusion would have been irresistible that the remedy lay in an ordinary suit instituted under the provisions of the Civil Procedure Code. The Legislature however while enumerating the acts which the law authorizes co-sharer landlords to do, either acting together or by an agent definitely spoke of an application under Section 26-J, Ben. Ten. Act. This provided or rather implied that the remedy of the landlord lay in an application and it was held in several decisions of this Court that the recovery of the balance of transfer fees by the landlord must be by an application and not by a suit : Aghore Chandra Jalui v. Rajnandini Debi , Muhammad Ismail v. Lal Mia and Mahaluxmi Bank v. Abdul Khaleque (1939) 43 C.W.N. 1046. These decisions, I think could be supported on principle. It was Act 4 of 1928, which for the first time created the right in favour of the landlord, and if the Act itself provided as to how the right could be enforced, the remedy should be deemed to be exclusive, and the ordinary right of suit must be held to be barred. As Lord Tanterden G.J., observed in Doe d.Bishop of Rochester v. Bridges (1831) 1 B & Ad 847 at p. 859:

Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. If an obligation is created, but no mode of enforcing its performance is ordained, the common law may, in general, find a mode suited to the particular nature of the case.

3. The same principle was enunciated by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B. (N.S.) 336; and was followed by the Judicial Committee in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. (1935) A.C. 532. Now both Section 26-J as well as Section 188, I (1) have been repealed by act 6 of 1938, and if the right which arose under the old law is not affected by the repealing statute, the question arises as to how the right could be enforced, after the repealing enactment came into force. Mr. Sen argues that the remedy provided by the old Act was still applicable under Section 8, Bengal General Clauses Act, 1 of 1899, and in support of his contention he relies upon a decision of S.K. Ghose J. in Rajendra Nath Nag v. Ashalata Debi Section 8, General Clauses Act (Bengal) runs as follows:

Where this Act, or any Bengal Act, made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not-

(c) affect any right, privilege, obligation or liability acquired accrued, or incurred under any enactment so repealed: or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture; or punishment may be imposed, as if the repealing Act had not been passed.

4. Mr. Sen argues that as the right which arose under Section 26(J) of the old Bengal Tenancy Act is not affected by the repealing Act, any legal proceeding or any remedy in respect of such right is also not affected, and under the provision of the last clause in the Section any such legal proceeding : may be instituted, as if the old law was still' in force. It has been argued on the other hand by Mr. Parhat Ali, who appears for the opposite party, that Clause (e) as well as the subsequent provision in section 8 cannot apply to suits or proceedings which were started after the old Act was repealed. They refer only to pending litigations. He invites us to hold that the expressions 'instituted, continued, or enforced' occurring in the last clause of the Section are to be taken distributive and should be predicated respectively of the words "investigation, legal proceeding, or remedy" mentioned at the beginning of the Section; and they should not be read with each of the preceding words. Any other construction, it is said, would offend the well known principle of law that nobody has a vested right in any particular form of procedure. This contention, though seemingly plausible, does not appear to me to be sound. The effect of this construction would be to limit the Section unduly, which is not warranted by the express language used by the Legislature. Clause (e) of Section 8 relates to investigation, legal proceeding, or remedy in respect of a right which is preserved under Clause (c), and Clause (d) refers to any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed. The last clause combines both these matters, and from the distribution of verbs, as has been made by the Legislature itself, it would appear that whereas investigation, legal proceeding, or remedy could be instituted, continued or enforced, the penalty, forfeiture or punishment could be 'imposed' as if the repealing Act had not been passed.

5. In my opinion, these words "instituted, continued or enforced" are to be taken with each of the words "investigation, legal proceeding or remedy" so far as they seem to be appropriate. If the strict interpretation suggested by the learned advocate for the opposite party is accepted, the result would be that whereas a suit could only be continued and not instituted after the repealing Act is passed, an investigation on the other hand could be started, but not continued after the old law has been repealed. I am also not impressed by the argument that the word "investigation" here refers to a proceeding which is not judicial in its character. It is strenuously argued on behalf of the opposite party that if under Section 8, Bengal General Glauses Act, a suit is allowed to be instituted as provided for under the old law, even after that law is repealed, it would amount to giving a litigant a vested right in the procedure also; whereas it is an established principle that all changes in the procedure are normally retrospective. This contention, in my opinion, seems to be entirely misconceived. Where an enactment merely alters the procedure, without altering the substantive rights of the parties, the new procedure would be retrospective in its operation, and would extend to rights which had accrued before the changes were made. As was observed by Lord Blackburn in Gardner v. Lucas (1878) 3 A.C. 582 at page 603:

It is perfectly settled that if the Legislature intended to frame a new procedure that, instead of proceeding in this form or that, you should proceed in another and a different way; clearly then bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be.

6. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, the new procedure will prima facie apply to all such proceedings as well as future. (Craies on Statute Law, p. 337). Section 8, Bengal General Clauses Act, in my opinion, does not contemplate a case where the procedure only is changed leaving the rights of the parties intact. clauses (c) and (e) of the section go together. Clause (e) refers only to the remedial-rights which arise in connexion with substantive rights which are repealed by the new enactment but are saved under Clause (c). In other words Section 8 contemplates a case where the repealing enactment repeals a substantive right as well as the procedure by which it was enforced, and in such oases if the rights are saved in respect of transactions completed prior to the repealing of the statute, the remedies in respect of such rights as laid down in the repealed statute are also saved and the litigant can institute or continue proceedings in the same way for the enforcement of his rights as if the repealing Act had not come into force. This, I believe, is the true interpretation to be put upon the provision of Section 8, Bengal General Clauses Act. This Section is almost a reproduction of Section 38 of the English Interpretation Act of 1889, and the principle embodied in the last clause is quite in accordance with what has been laid down in well known English cases.

7. In In re Hale's Patent (1920) 2 Ch. 377 there was a dispute regarding compensation to be paid for the use of a certain patent by the Government Department. Under the Patents and Designs Act of 1907 such dispute was to be settled by the Treasury. By the Act of 1919 the Court was substituted for the Treasury for the purpose of determining and settling such disputes. Hale, the appellant in the case, made the application before the Court after the new Act was passed but it was held that the applicant's proper remedy lay in presenting his application to the Treasury, as was provided in the Act, of 1907. Sargeant J., observed as follows:

No doubt the general law is that, while rights are not statutorily altered retrospectively, procedure is, apart from indications to the contrary, altered retrospectively; but where rights and procedure are dealt with together in the way in which Section 8 of the Act of 1919 deals with them, the intention of the Legislature would seem fairly clear - namely that the old rights are still to be determined by the old tribunal under the Act of 1907, and that only the new rights under the substituted Section are to be dealt with by the tribunal thereby substituted for the Treasury.

8. In the present ease the rights of the petitioner in the matter of recovery of landlord's fees, when the holding was sold under a false description, as well as the procedure for enforcing the rights were dealt with together in the old Act and as they have both been repealed and as the right is saved in respect of antecedent transactions under Clause (c) of Section 8, General Clauses Act, the remedy in my opinion is also saved under Clause (e); and as the landlord had the right of presenting the application under Section 26-J of the old Act read with Section 188-1(i) I hold that the same remedy is still open to the landlord even after the passing of the amending Act of 1938. In my opinion the decision of S.K. Ghose J. in Rajendra Nath Nag v. Ashalata Debi is correct. The decision in Profulla Chandra v. Raj Mohan Das which has been relied on by the opposite party refers to a proceeding under Section 26-F, Ben. Ten. Act, and is not directly n point. The result therefore is that this Rule is made absolute. The order of the Munsif, Second Court, Jhenidah, is set aside and the case is sent back to him in order that the application may be heard and decided on points other than those dealt with in his order. As the petitioner was guilty of inordinate delay in making the application, I make no order as to costs in this Court.

Mohamed Akram, J.

9. I agree.