TMI Blog1964 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties in the present case must be governed by the provisions of s. 5(1)(a). It is common ground that if s. 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged. - Civil Appeal No. 549 of 1962 - - - Dated:- 24-2-1964 - Gajendragadkar, P. B. , Wanchoo, K. N. , Shah, J.C., Ayyangar, N. Rajagopala And Sikri, S.M.,JJ. N. C. Chatterjee, K. P. Sen and P. K. Chatterjee, for the appellant. B. P. Maheshwari, for the respondents. JUDGMENT These two appeals which have been brought to this Court with a certificate issued by the Assam High Court, raise a short question about the construction and effect of section 5 of the Assam NonAgricultural Urban Area Tenancy Act, 1955 (No. 12 of 1955) (hereinafter called the Act ). The relevant and material facts which have led to the suits from which these two appeals respectively arise, are similar, and so, it would not be necessary to state them in detail in regard to both the matters. We would, therefore, mention the facts broadly in C.A. No. 549/1962, in dealing with the common point raised for our decision. The appellant in this case is Mst. Rafique ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said houses were constructed. Part of the finding was challenged by the tenant before the lower appellate Court. The lower appellate Court ultimately allowed the appeal and set aside the decree passed by the trial Judge in favour of the appellant. The conclusion of the lower appellate Court was that the two houses had been constructed by the tenant within five years after the taking of the lease and that entitled the lessee to claim the benefit of s. 5 of the Act. The appellant then preferred a second appeal in the High Court of Assam (No. 86/1958). Following its earlier decision about the applicability of the provisions of s. 5 to pending proceedings, the High Court summarily dismissed the said appeal. Thereafter, the appellant applied for and obtained a certificate from the High Court and with the said certificate the present appeal has been brought before us. Pending these proceedings, the tenant Chetri died and his heirs and legal representatives Mst. Tulsa Devi and others. have been brought on the record and will be described as respondents hereafter. Thus, the only point which arises for our decision is whether the Assam High Court was right in taking the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served; and s. 13 confers rule-making power on the State Government. Section 14 repeals the earlier Tenancy Act. Having thus broadly considered the scheme of the Act, it is necessary to read s. 5, the effect of which is the main point of controversy between the parties before us. Section 5(i) reads thus:- 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; (b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights. In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retroactive operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur. Bearing in mind these principles, let us look at s. S. Before doing so, it is necessary to consider s. 2 which provides that notwithstanding anything contained in any contract or in any law for the time being in force, the provisions of this Act shall apply to all non-agricultural tenancies whether created before or after the date on which this Act comes into force. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uits brought after the Act came into force, and that might have introduced the element of prospective operation; instead, what is prohibited by s. 5 (1)(a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by s. 5(1)(a), though they may have been initially instituted before the Act came into force. Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by s. 5(1)(a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by s. 5(1)(a), provided it is pending after the date when the Act came into force. Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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