Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 14
PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
SAILENDRA NATH SEN
DATE OF JUDGMENT22/04/1993
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
KULDIP SINGH (J)
CITATION:
1993 AIR 2146 1993 SCR (3) 343
1993 SCC (3) 386 JT 1993 (3) 61
1993 SCALE (2)646
ACT:
%
West Bengal Estate Acquisition Act, 1953 :
Ss. 4, 5, 5A, 5B, 49.52, 44 (2a)-Raiyati holdings-
Prohibition on sale with effect from 1.6.1954-Notification
under s. 49 issued w.e.f. 10.4.1956- Decree for arrears of
rent in respect of land held by Raiyat-Execution of- Auction
sale of raiyati interests effected after 1.6.1954-Name-of
auction purchaser entered as Raiyat in record of rights-
Proceeding to revise entries-Order of Asst. Settlement
Officer substituting name of original Raiyat for auction
purchaser-Held, sales of raiyati interests effected on or
after 1.6.1954 are invalid-Order of Asstt. Settlement
Officer upheld.
The Bengal Tenancy Act, 1885:
S.168A-Decree for arrears of rent in respect of land held by
Raiyat-Execution of-Sale of raiyati interests on land in
question-Held, decree pursuant to suit under Tenancy Act can
not be executed except under the provisions thereof-
Provisions of Code of Civil Procedure not applicable-After
intermediary interests vest in State under West Bengal
Estate Acquisition Act, 1953, s. 168A would not come in
operation-Decree-holder is to proceed against other property
of judgment-debtor.
HEADNOTE:
The name of the respondent auction-purchaser was entered as
raiyat in respect of certain lands on the basis of auction
sales dated 6.11.1954 and 3-12-1954 in execution of the
decree for arrears of rent in respect thereof. In 1970 the
Assistant Settlement Officer initiated proceedings under s.
44(2a) of the West Bengal Estate Acquisition Act, 1953 for
revision of the record of rights in respect of the lands,
taking the view that the rent execution sales being effected
after 1.6.1954 were invalid under s. 5B of the Act.
Accordingly, he ordered correction of the record of rights
by substituting the names of the original raiyats for the
auction-purchaser.
The respondent filed appeals which were allowed by the
appellate authority holding that s. 5B of the Act had no
application to raiyati interests. The State filed writ
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 14
petition under Article 227 of the Constitution before the
344
High Court.
The Special Bench of the High Court, confirming the decision
of the appellate authority, held that the effective date in
s. 5B of the Act in respect of sale of raiyati and under-
raiyati holdings under the relevant statutes mentioned
therein was 1.6.1954; that s. 5B did not operate as a bar to
execution of decree for arrears of rent as a money decree
against raiyati or under raiyati interests, and s. 168A (1)
of the Bengal Tenancy Act, 1885 was impliedly repealed by
the vesting of the interests of the intermediary including
raiyats and under-raiyats in the State; and that the
initiation of the proceedings unders. 44(2a)of the Act was
without jurisdiction. The State filled the appeals by
special leave.
The State challenged the judgment of the High Court on the
ground that the High Court was not right in holding thats.
5B of the Act would not operate as a bar against the sale of
raiyati or under-raiyati interests if the execution of the
rent decree is treated as an execution of money decree under
the Code of Civil Procedure; and that the sale made pursuant
to the execution of the money decree under the Code even
though for rent, and of the raiyati or under-raiyati
interest holder, would not he a sale under the statutes men-
tioned in s. 5B including the Tenancy Act.
Allowing the appeals, this Court,
HELD:1.1 The proceedings initiated by the Assistant
Settlement Officer to revise the entries in the record of
rights made in favour of the respondent auction purchaser
and the orders passed by him recording the names of the
former raiyats as raiyats with possession of the lands and
deleting the name of the auction purchaser, were valid as
the raiyati interests were sold after 1.6. 1954 in execution
of the decree for arrears of rent in respect of the lands in
question. (360 -C-E)
1.2By virtue of the notification issued under s. 49, s. 52
makes the provisions of ss. 4, 5, 5A and 5B, among others,
of Chapter 11 of the Act applicable to the raiyati and the
under-raiyati interests on the issuance of such
notification. (351-H)
1.3In the instant case the Notification No. 680 dated
9.4.1956 issued under s. 49 was brought into force with
effect from 10.4.1956. It was not given retrospective effect
from 15.4.1955. The effect of this notification was that by
345
virtue of s. 4 the intermediary interests stood vested in
the State at the latest from 15.4.1955 while the raiyati and
under-raiyati interests stood vested in the State with
effect from 10.4.1956. The restriction on transfer of the
said interests, however, came into effect retrospectively on
or from 1.6.1954 by virtue of s. 5B, since that date is
mentioned in the section itself. (352 -AB)
1.4. In view of s. 5B of the Act, no estate, tenure or
under-tenure including raiyati and under-raiyati interests
could be sold under the statutes mentioned in s 5B including
the Tenancy Act on and after 1.6.1954 and a sale after that
date under any of those statutes would he void and have no
effect under that section. (352 -C)
1.5 The present auction sales being of raiyati interests
and effected on 6.11.1954and 3.12.1954 in execution of the
decrees for the arrears of rent under the Tenancy Act were
obviously invalid. (352 -D)
2.1 The decree pursuant to the suit under the Tenancy Act
cannot he executed except under the provisions of that Act.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 14
There cannot, therefore, be sale of the property in question
pursuant to such decree under the provisions of the Code of
Civil Procedure. (358-B)
2.2 The intention of the legislature in enacting s. 5B was
to prevent sales of the intermediary interests after
1.6.1954. In view of the provisions of the Tenancy Act, the
said interests could be sold only under and in accordance
with the provisions of that Act. The sale of such interests
in the land pursuant to a decree for arrears of rent in
respect of that land could not therefore, he made under the
Code of Civil Procedure. (360-D)
2.3 The Bengal Tenancy Act, 1885 is a self- contained code
governing the relations between the landlord and the tenant
and for resolution of their disputes. The Act incorporates
certain provisions of the Code of Civil Procedure in toto
while others with modification. The Tenancy Act by
implication prevents any suit between landlord and tenant to
be filed otherwise than under its provisions. All
proceedings in the suit filed under the Bengal Tenancy Act
from its inception to the satisfaction of the decree are to
be governed by its provisions and the provisions of the Code
are applicable to such proceedings only to the extent and
subject to the conditions stated therein. The Code as such
is not applicable to the proceedings or to any part of it
and hence no part of the proceedings can be prosecuted under
the Code. Even if simple money-decree is obtained for the
arrears of rent, no interest of
346
the tenant can he brought to sale in execution of such
decree except under Abe provisions of the Tenancy Act. In
other words, no such interest can be sold under the Code and
independently of the Tenancy Act. (357-H, 358-A-C)
2.4 Besides, Section 168A of the Tenancy Act removes the
doubt, if any, and provides the procedure for attachment and
sale of tenure or holding for arrears of rent due thereon,
and liability of purchasers thereof. The nonobstante clause
of the Section excludes all other provisions of the Tenancy
Act itself as well as of any other law and the provisions of
any contract as well. Clause (a) of the Section states that
a decree for arrears of rent whether having the effect of a
rent-decree or a money decree or even a certificate for such
arrears under the Bengal public Demands Recovery Act, 1930
shall not be executed by the attachment and sale of any
movable or immovable property other-than the entire tenure
or holding to which the decree or certificate relates. That
provision will not apply only if the term of the tenure has
expired before an application is made for the execution of
such decree or certificate. When the entire tenure or
holding is purchased in execution of a decree for arrears of
rent in respect thereof, clause (b) of s. 168A (1) provides
that the purchaser shall pay to the decree holder the
deficiency, if any, between the purchase price and the
amount due under the decree together with the cost incurred
for the auction sale and also the rent which may have become
due between the date of the institution of the suit and the
date of confirmation of the sale. This provision in
inconsistent with the provisions of the Code. (358 C-F)
2.5 The High Court was not right in holding that the sales
can be treated as being pursuant to a money-decree and,
therefore, under the Code and independently of the Tenancy
Act. The High Court unfortunately missed the vital fact
that whether it is a money-decree or rent-decree, the entire
raiyati interests of the judgement-debtor in the land in
question had to be sold under Section 168A of the Tenant Act
but could not be sold in view of the bar imposed by Section
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 14
5B of the Act. The bar cannot be over-come by treating the
sale under the Code to circumvent the provisions of the
Tenancy Act and in particular of Section 168A of that Act.
(359-H, 360 A-B)
2.6 After the intermediary interests vest in the State,
they cannot be brought to sale and the remedy of the decree-
holder is to proceed against other property of the judgment-
debtor if any. In that event, Section 168A would not come
in the picture. (358 G-H)
347
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2621-22 of
1977.
From the Judgment and Order dated 9.11.1976 of the Calcutta
High Court in Civil Rule Nos. 1817 and 1818 of 1972.
P.S. Poti and Rathin Das for the Appellant
Dr. Shankar Ghosh for the Respondent.
The Judgment of the Court was delivered by
SAWANT, J. On 18th December, 1970, the Assistant Settlement
Officer, Diamond Harbour, initiated proceedings under
Section 44 [2a] of the West Bengal Estate Acquisition Act,
1953 [the ’Act’] for revising the finally published record
of rights in respect of Khatians Nos. 10, 11 of Mouza
Haradhanpore and Khatians Nos 6,7,13,15 and 24 of Mouza
Kailpara within his jurisdiction. According to him,
incorrect entries were made in favour of the respondent in
the record of rights in respect of the said Khatians based
on the purchases made by the respondent in auction sales of
the Khatians in execution of the decrees for arrears of
rent. Two different cases-Case No. 156/70 and No. 22/70-
were respectively initiated in regard to the two properties.
In both these cases, in the record of rights, the name of
the respondent-auction purchaser was entered as raiyat on
the basis of the said sales. These sales were effected on
6th November, 1954 and 3rd December, 1954 respectively.
The sales were admittedly of the rights of the raiyats, and
hence the Assistant Settlement Officer took proceedings for
revision of the record of rights taking the view that such
rent execution sales effected after 1st June, 1954 would be
invalid under Section 5B of the Act. By his orders dated
8th January, 1971 and 27th January, 1971 respectively passed
in the two cases, he directed the correction of the record
of rights by substituting the names of the original raiyats
for the auction purchaser.
The auction purchaser preferred appeals before the Tribunal
appointed for the purpose under Section 44[3] of the Act
being E.A. Nos. 86 and 87 of 1971. The Tribunal allowed the
appeals and set aside the orders of the Assistant Settlement
Officer holding that Section 5B of the Act had no
application to raiyati interest. Against the decision of
the appellate authority, the appellant-State of West Bengal
approached the High Court by way of a writ petition under
Article 227 of the Constitution. The Division Bench before
which the matters came, referred them to a Special Bench
since questions of public importance relating to the
interpretation of the provisions of Section 5B of the Act
were involved. The Special Bench
348
held, that (i) the effective date in section 5B in respect
of sales of raiyati and underraiyati holdings under the
relevant statutes mentioned therein is 1st June, 1954 as
provided therein; [ii] Section 5B does not operate as a bar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 14
to the execution of decree for arrears of rent as money-
decree against raiyati or under-raiyati interests and
Section 168A [1] of the Bengal Tenancy Act is impliedly
repealed by the vesting of the interests of the intermediary
which include raiyats and under-raiyats] in the State. In
this view of the provisions of the Act, the High Court held
that the initiation of the proceedings by the Assistant
Settlement Officer Under Section 44 [2a] was without
jurisdiction, and confirmed the order of the appellate
authority. It is this order which is questioned before us.
2. In order to appreciate the answer to the question
raised before us, it is necessary to have a brief glance at
the relevant provisions of the Act. As its preamble shows,
the Act has been placed on the statute book to provide for
the acquisition of estates, of the rights of intermediaries
therein and also certain rights of raiyats and under-raiyats
and of the rights of certain other persons in the lands
comprised in the estates.
Section 2 (i) of the Act defines "intermidiary" as follows:
"intermediary" means a proprietor, tenure-holder, under-
tenureholder or any other intermediary above a raiyat or a
non-agricultural tenant and includes a service tenure-holder
and, in relation to mines and minerals, includes a lessee
and a sub-lessee".
By virtue of Section 2 (p), the "tenure-holder" and "raiyat"
as defined under the Bengal Tenancy Act, 1885 [hereinafter
referred to as to the Tenancy Act’] are to be read in the
present Act. They are defined under Section 5 (1) & (2) of
the Tenancy Act as follows:
"5. Meaning of Tenure-holder and Raiyat. (1) "Tenure-holder"
means primarily a person who has acquired from a proprietor
or from another tenure-holder a right to hold land for the
purpose of collecting rents or bringing it under cultivation
by establishing tenants on it, and includes also the
successors in interest of persons who have acquired such a
right.
(2) "Raiyat" means primarily a person who has acquired a
right to hold land for the purpose cultivating it by
himself, or by members of his family or by servants or
labourers or with the aid of partners,
349
and includes also the successors in interest of persons who
have acquired such a right.
Explanation
Coming back to the present Act, Chapter II of the Act deals
with the ,.acquisition of estates and of the rights of
intermediaries therein" and consists of Sections 4 to 13.
For our purpose, the relevant sections are Sections
4,5,5A and 5B. Sub-sections (1) and (2) of
Section 4 read as follows:
"4. Notification vesting estates and rights of
intermediaries. (1) The State Government may from time to
time by notification declare that with effect from the date
mentioned in the notification, all estates and rights of
every intermediary in each such estate situated in any
district or part of a district specified in the
notification, shall vest in the State free from all
incumbrances.
(2) The date mentioned in every such Notification shall be
the commencement of an agricultural year; and the
notifications shall be issued so as to ensure that the whole
area to which this Act extends, vests in the State on or
before the 1st day of Baisakh of the Bengali
year 1362."
Section 5 refers to the effect of notification published
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 14
under Section 4 and states that on or from the date of
vesting, among other things, the estates and the rights of
intermediaries in the estates to which the declaration
applies, shall vest in the State free from all incumbrances.
It further states that in particular and without prejudice
to the generality of the provisions, everyone of the
following rights which may be owned by an intermediary shall
vest in the State. Among the rights so mentioned are the
rights in sub-soil, in mines and minerals, in hats, bazaars,
ferries etc. Clause (c) of Sub-section (1) of the said
section then states as follows:
"5. Effect of notification. (1) Upon the due publication of
a notification under section 4, on and from the date of
vesting-
[a]
[b]
350
(c) Subject to the provisions of sub-section (3) of section
6, every non-agricultural tenant holding any land under an
intermediary, and until the provisions of Chapter VI are
given effect to, every raiyat holding any land under an
intermediary, shall hold the same directly under the State,
as if the State had been the intermediary, and on the same
terms and conditions as immediately before the date of
vesting:
x x x x x x XI’
Section 5A places restrictions on certain transfers. Sub-
sections (1) and (2) thereof read as follows:
"5A. Restrictions on certain transfers. (1) The State
Government may after the date of vesting enquire into any
case of transfer of any land by an intermediary made between
the 5th day of May, 1953 and the date of vesting, if in its
opinion there are primafacie reasons for believing that such
transfer was not bonafide.
(2) If after such enquiry the State Government finds that
such transfer was not bonafide, it shall make an order to
that effect and thereupon the transfer shall stand cancelled
as from the date on which it was made or purported to have
been made;"
Then comes Section 5B which without its proviso with which
we are not concerned, reads as follows:
"5B. Estate or tenure not liable to be sold under Act XI of
1859, Cooch Behar Act V of 1897, Bengal Regulation VIII of
1819 and Act VIII of 1885. On and from the
1st day of June, 1954, no estate, tenure or
under-tenure shall be liable to be sold under
the Bengal Land Revenue Sales Act, 1859 or the
Cooch Behar Revenue Sales Act, 1897 or the
Bengal Patni Taluks Regulation, 1819 or the
Bengal Tenancy Act, 1885, as the case may be,
and any sale which took place on or after that
day under any of those acts or that Regulation
shall be deemed to have been void and of no
effect:"
We are not concerned in the present case with Chapter IIl
which deals with "assessment and payment of compensation"
for the estates of the intermediaries acquired; Chapter IV
which relates to "mines and minerals" and which has
overriding effect over other provisions of the Act and
Chapter V which relates to
351
the "preparation of the record of rights".
Chapter VI deals with the "acquisition of rights of raiyats
and under-raiyats". As it stood at the relevant time, it
consisted of Sections 49 and 52, which were newly inserted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 14
in place of the old Sections 49 and 52 retrospectively by
the Amending Act 35 of 1955. The same amending Act deleted
Sections 50 and 5 1. Section 49 reads as follows:
"49. When this Chapter is to come into force. The
provisions of this Chapter shall come into force on such
date and in such district or part of a district as the State
Government may, by notification in the Official Gazette,
appoint and for this purpose different dates may be
appointed for different districts or parts of districts".
Section 52 without its proviso, is as follows:
"52. Application of Chapters 11, III, V and VII to raiyats
and underraiyats. On the issue of a notification under
section 49 the provision of Chapters 11, III, V and VII
shall, with such modifications as may be necessary, apply
mutatis mutandis to raiyats and under-raiyats as if such
raiyats and under-raiyats were intermediaries
and the land held by them were estates and a
person holding under a raiyat or an under-
raiyat were a raiyat foe the purposes of
clauses (c) and (d) of section 5:"
It is on record that by notification No. 6804 L. Ref dated
9th April, 1956 published in Calcutta Gazette Extraordinary
of the same day, Part 1, Page 47, Chapter VI came into force
in all the districts of West Bengal with effect from the
10th April, 1956.
It is clear from the aforesaid provisions of the Act that
when notifications are issued under Section 4, all estates
and rights of every intermediary in each such estate, vest
in the State, free from all incumbrances. The notifications
under that Section have to be issued so as to ensure that
the whole area to which the Act extends vests in the State
on or before 15th April, 1955 which corresponds to the 1st
day of the Baisakh to the Bengali year 1362 mentioned
therein. When Chapter VI of the Act comes into force by
virtue of the notification issued under Section 49, Section
52 which falls under that Chapter makes the provisions of
Chapter II, among others, applicable also to the raiyats and
the under-raiyats as if such raiyat and under-raiyat were
intermediaries and the lands held by them were estates. In
other words, Sections 4, 5, 5A and 5B, among others, of
Chapter II become applicable to the raiyati and the under-
raiyati interests on the issuance of such
352
notification. In the present case, as stated above, the
notification under Section 49 was brought into force w.e.f.
10th April, 1956. It was not given retrospective effect
from 15th April, 1955. The effect of this notification was
that by virtue of Section 4 the intermediary interests stood
vested in the State at the latest from 15th April, 1955
while the raiyati and the under-raiyati interests stood
vested in the State with effect from 10th April, 1956. The
restriction on transfer of the said interests, however, came
into effect retrospectively on or from 1st June, 1954 by
virtue of Section 5B, since that date is mentioned in the
Section itself.
3. Hence there cannot be any dispute that no estate,
tenure or under tenure including raiyati and under-raiyati
interests could be sold under the statutes mentioned in
section 5B including the Tenancy Act with which we are
concerned, on and after 1st June, J954 and a sale after that
date under any of those statutes would be void and have no
effect under that Section. Admittedly, the present auction
sales were held in execution of the decrees for the arrears
of rent under the Tenancy Act and took place on 6th November
and 3rd December, 1954 respectively. What came to be sold
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 14
under the said sales were the raiyati interests of the
judgment debtors, and the respondents were entered in the
record-of-rights as raiyats in place of the original raiyats
on the basis of the said sales.
4. The High Court has rightly held that the effective date
in Section 5B for prohibition of the sales of raiyati and
under-raiyati holdings under the statutes mentioned therein,
is 1st January, 1954 as is provided therein. This
conclusion of the High Court is not challenged before us.
However, the High Court has further held that Section 5B
does not operate as a bar against the sale of raiyati or
underraiyati interests if the execution of the rent-decree
is treated as an execution of money-decree under the Code of
Civil Procedure [hereinafter referred to as the ’Code’.
According to the High Court, the sale made pursuant to the
execution of the money decree under the Code even though for
rent, and of the raiyati or underraiyati interest-holder,
would not be a sale under the statutes mentioned in Section
5B including the Tenancy Act. It is this conclusion of the
High Court which is under challenge before us.
5. In order to arrive at the said conclusion, the High
Court has reasoned that Section 5B only declares void, sales
of tenures of holdings under the statutes mentioned therein
but does not prohibit the sales under the Code. According
to the High Court, the Section has no concern with other
sales since the tenure or holding was transferable and
inheritable under the provisions of the Tenancy Act and
other connected regulations till the estates vested in the
State w.e.f. 15th April, 1955 by notification issued under
Section 49 of the Act.
353
6. We are afraid that the interpretation placed by the
High Court ignores some obvious provisions of law. In the
first place, it, is not correct to say that the sale or
transfer of the holding or tenure, was permissible till the
estates vested in the State. Section 5A of the Act applies
to the case of transfer of any land by an intermediary, made
between the 5th May, 1953 and the date of vesting. Under
that section, the legislature has given power to the.State
Government to make an inquiry into the question whether such
a transfer was bonafide or not, and if the State Government
came to the conclusion that the transfer was not bonafide,
consequences stated in the said section followed. It cannot
be suggested that the voluntary transfers of the tenure or
under-tenures or raiyati or under-raiyati interests in the
estates, the sale of which is prohibited under the relevant
statutes mentioned in Section 5B, is not covered by Section
5A of the Act.
Secondly, the Tenancy Act is a piece of legislation which
amends and consolidates certain enactments relating to the
law of landlord and tenant. Under section 3 [6] of that Act
"landlord" is defined as "a person immediately under whom a
tenant holds, and includes the Government" while under
Section 3 [17] of that Act "tenant" is defined as "a person
who holds land under another person, and is, or but for a
special contract would be, liable to pay rent for that land
to that person". The classes of tenants mentioned under
Section 4 of that Act include [i] tenure-holders, including
under-tenure-holders, [ii] raiyats, and [iii] under-raiyats.
The said Act further exclusively governs the relations
between the landlord and the tenant as is evident from the
provisions of that Act. It’is not necessary to refer to all
the said provisions. Suffice it to say that the matters
relating to the fixation, payment and enhancement of rent,
the grounds of ejectment of the tenant and the procedure for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 14
their ejectment, transfer and surrender of tenancies,
improvements on land, record of rights, the occupancy and
non-occupancy rights, the judicial procedure to be followed
in suits between landlord and tenant, the sale of interests
in land for arrears under a decree, the restrictions on the
exclusion of the provisions of the Act by agreement between
the landlord and the tenant, the limitation for suits to be
filed under the Act, the penalties for illegal interference
with the produce of the land, damages, for denial of
landlord’s title, and even matters relating to the agents
and representatives of landlords are all subjects regulated
by the said Act. We are concerned in the present case with
regard to the suit for the arrears of rent and with the
execution of the decree obtained in such suit. Chapter XIII
which contains Sections 143 to 158 relates to the "judicial
procedure" to be followed in suits between the landlord and
the tenant. Section 143 gives power to the High Court to
make rules from time to time with the approval of the State
Government consistent with the said act declaring that any
portion of the Code shall not apply to suits between
landlord and tenant as such or to any specified classes of
such suits, or shall apply to them subject to modifications
specified in the rules made
354
by the High Court. Subject to any rules so made and subject
also to the other provisions of the said Act, the Code
applies to all suits between the landlord and the tenant.
Section 144 confers jurisdiction on the suits under the Act
on the civil courts which would have jurisdiction to
entertain a suit for the possession of the tenure or holding
in connection with which the suit is brought. The section
also makes clear that no suit between landlord and tenant
under the Act shall be instituted in any court other than
such court. Section 145 specifies the persons who can be
recognised agents of the landlord, and the manner in which
they are to be authorised by the landlord to be his agents,
and notwithstanding anything contained in the said Act,
every such agent is empowered to verify the pleadings on
behalf of the landlord without the permission of the Court.
Section 146 ordains that the particulars of the suits
between the landlord and the tenant should be entered in a
special register to be kept by each civil court in such form
as the State Government may prescribe in this behalf instead
of in the register of civil suits prescribed by the court.
Section 146A makes a special provision for joint and several
liability for rent of co-sharer-tenants notwithstanding
anything contained in the Contract Act. Section 146B
likewise lays down a special procedure in rent suits against
co-sharer-tenants notwithstanding anything contained in the
Limitation Act. Section 147 prevents a landlord from
instituting successive rent suits against a raiyat except
under circumstances mentioned therein. Section 147A
prevents the Court from wholly or partly adjusting by
agreement or compromise, any suit between landlord and
tenant unless the agreement can be enforced under the said
Act, viz., the Tenancy Act. This provision again is made
notwithstanding anything contained in this behalf under the
Code.
Section 148 then lays down a special procedure to be
followed in rent suits. It states in clause [a] thereof
that Sections 68 to 72 of the Civil Procedure Code and rules
1 to 13 of Order XI, rule 83 of Order XXI and Rule 2 of
Order XLVIII in Schedule 1 of the said Code and Schedule III
thereof shall not apply to such suit. Clause [b] thereof
states that the plaint in such suit shall contain in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 14
addition to the particulars specified in the code, certain
additional particulars which are mentioned therein. Clauses
[c] and [d] require further particulars in such plaints in
certain situations mentioned therein. Clause [e] thereof
states that the summons shall be for the final disposal of
the suit unless the court is of opinion that it should be
for the settlement of issues only. Clause [f] lays down a
special mode of service of summons if the High Court by rule
so directs and also permits the Court to presume service of
summons in certain circumstances. Clauses [g] and [h]
similarly relate to the special procedure of summons in such
suits. Clause [i] requires leave of the Court to file a
written statement. Clause [i] makes the rules for recording
the evidence of witnesses contained in rule 13 of Order
XVIII in Schedule 1 to the Civil Procedure Code applicable
in the trial of such suits, whether
355
an appeal is allowed or not. Sub-clause (j) of Clause [k]
permits a Court to issue a special summons under certain
circumstances notwithstanding anything contained in the Code
and Sub-clause (ia) thereof, and also provides for the
procedure for effecting the service of the special summons
and Sub-clause (ii) provides for the consequences for the
non-appearance of the defendants in answer to such special
summon. Clause [m] permits the Court to order execution of
oral application of the decree-holder unless the decree is
for ejectment for arrears. Clause [n] requires the Court
not to insist on a fresh vakalatnama or to file a copy of
the decree for the purpose of executing the decree
notwithstanding any thing contained in the Code. Likewise,
notwithstanding anything contained in the Code. Clause [o]
prohibits an application for the execution of a decree for
arrears by an assignee of the decree unless the landlord’s
interest in the land is vested in such assignee.
Section 148A permits a co-sharer-landlord to sue for rent in
respect of his share in the tenure. Section 149 requires
the defendant to deposit the amount in Court once he admits
that money is due from him even though he pleads that it is
not due to the plaintiff but to a third person. Section 150
likewise requires the defendant to deposit the admitted
amount due to the landlord notwithstanding the defendant’s
plea that the plaintiff s claim is in excess of the amount
due. Section 153 then provides for appeals in rent suits
and while doing so, lays down conditions under which the
appeal will lie and will not lie. Section 153A lays down
special conditions under which an application to set aside
decree, or for review of the judgment won Id lie. Section
154 provides for the dates from which the decree for
enhancement of rent would take effect.
Then comes Section 155 which provides for relief against
forfeiture under certain circumstances and Section 156 lays
down the rights of ejected raiyats and under-raiyats in
respect of crops and land prepared for sowing.
Section 157 lays down special power of the Court to fix fair
rent as alternative to ejectment.
Section 158 gives power to the Court to determine incidence
of tenancy on the application either of the landlord or
tenant. Chapter XIV of the Act provides for "Sale for
arrears under Decree". We are directly concerned with the
said Chapter. Section 159 thereof details "general powers
of purchaser as to avoidance of incumbrances". Section 160
mentions the "protected in terests" within the meaning of
the said Chapter. Section 161 gives a special meaning of
"incumbrance" and "registered and notified incumbrance" for
the purpose of the said Chapter. Section 162 gives the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 14
particulars of the statement which a decree-holder has to
produce when he makes an application for attachment and sale
of the tenure or
356
holding in execution of the decree. Section 163 makes
special provision for a combined order of attachment and
proclamation of sale to be issued notwithstanding anything
contained in the code on the subject. Section 164 provides
for the sale of tenure or holding subject to "registered and
notified incumbrance" and the effect thereof. Section 165
is another special provision which provides for sale of
tenure or holding with power to avoid all incumbrances and
states the effect thereof. Likewise, Section 166 makes
provision for sale of occupancy holdings with power to avoid
all incumbrances and for the effect thereof. Section 167
gives procedure for annulling incumbrances under Sections
164, 165 or 166. Section 168A with which we are directly
concerned in the present case then states as follows:
"168A. Attachment and sale of tenure or holding for arrears
of rent-due thereon, and liability of purchasers thereof.
[1] Notwithstanding anything contained
elsewhere in this Act, or in any other law, or
in any contract-
[a] decree for arrears of rent due in respect of a tenure or
holding, whether having the effect of a rent
decree or money decree,or a certificate for
such arrears signed under the Bengal Public
Demands Recovery Act, 1913, shall not be
executed by the attachment and sale of any
movable or immovable property other than the
entire tenure or holding to which the decree
or certificate relates:
Provided that the provisions of this clause shall not apply
if, in any manner other than by surrender of the tenure or
holding, the term of the tenancy expires before an
application is made for the execution of such a decree or
certificate;
[b] The purchaser at a sale referred to in clause (a) shall
be liable to pay to the decree-holder or certificate-holder
the deficiency, if any, between the purchase
price and the amount due under the decree or
certificate together with the costs incurred
in bringing the tenure or holding to sale and
any rent which may have become payable to the
decree-holder between the date of the
institution of the suit and the date of the
confirmation of the sale.
[2] In any proceeding pending on the date of the
commencement of the Bengal Tenancy (Amendment) Act, 1940, in
execution of a decree or certificate to which the provisions
of sub-section (1) apply, if there has been attached any
immovable property of the
357
judgment-debtor other than the entire tenure or holding to
which the decree or certificate relates, and if the property
so attached has not been sold, the Court or Certificate-
officer as the case may be shall, on the application of the
judgment-debtor, direct that, on payment by the judgment-
debtor, of the costs of the attachment, the property so
attached shall be released.
[3] A sale referred to in clause (a) of sub-
section (1) shall not be confirmed until the
purchaser has deposited with the Court or
Certificate-officer, as the case may be, the
sum referred to in clause (b) of that sub-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 14
section."
We will revert to this section soon.
Section 169 provides for special rules for disposal of the
sale proceeds instead of the rules contained in the Code.
Similarly, Section 170 provides for circumstances under
which tenancy of holding is to be released from attachment
notwithstanding the provisions of the Code in that behalf.
Section 173 enables a decree-holder to bid for the purchase
of the tenure or holding in an auction-sale without the
permission of the Court which is against the provisions of
the Code. Section 174 provides for application to set aside
the sale and makes the relevant provisions of the Code
inapplicable in certain circumstances. Section 174A
provides for the circumstances under which sale shall become
absolute or shall be set aside and purchase money will be
returned. It is also necessary to refer to Section 178 in
Chapter XV of the Act which expressly provides for
restrictions on the exclusion of the Act by agreement
between the parties. Sub-section [c], in particular of that
section, states that nothing in any contract between a
landlord and a tenant made before or after the passing of
the said Act shall entitle a landlord to eject a tenant
otherwise than in accordance with the provisions of the said
Act. Section 184 provides for special limitation in suits,
appeals and applications filed under that Act and Section
185 makes certain provisions of the Limitation Act
inapplicable to such suits. Section 186 provides for
penalties for illegal interference with produce. Section
186A provides for damages for denial of landlord’s title.
Section 187 gives landlord power to act through agents.
These are all the provisions which are necessary for us to
notice. It will be apparent from the said provisions that
the Act is a self-contained Code governing the relations
between the landlord and the tenant, for resolution of their
disputes, for the suits to be filed by them, for the
procedure to be followed in such suits and the conditions on
which decrees may be passed in such suits, for the execution
and
358
satisfaction of the said decrees. The Act incorporates
certain provisions of the Code in toto while others with
modification. At the same time, it makes still other
provisions inapplicable to the proceedings in the suit filed
under it. The Act by implication prevents any suit between
landlord and tenant to be filed otherwise than under its
provisions. Thus all proceedings in the suit filed under
the Act from its inception to the satisfaction of the decree
are to be governed by its provisions and the provisions of
the Code are applicable to such proceedings only to the
extent and subject to the conditions stated therein. The
Code as such is not applicable to the proceedings or to any
part of it and hence no part of the proceedings can be
prosecuted under the Code. It is thus clear that even if
simple money-decree is obtained for the arrears of rent, no
interest of the tenant can be brought to sale in execution
of such decree except under the provisions of the Act. In
other words, no such interest can be sold under the Code an
independently of the Act. Secondly, if any doubt in that
behalf was left, it is removed by the provisions of Section
168A. The said section which is reproduced above begins
with the non-obstante clause which excludes all other
provisions of the Tenancy Act itself as well as of any other
law and the provisions of any contract as well. Clause [a]
of that section states that a decree for arrears of rent
whether having the effect of a rent-decree or a money decree
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 14
or even a certificate for such arrears under the Bengal
Public Demands Recovery Act, 1930 shall not be executed by
the attachment and sale of any movable or immovable property
other than the entire tenure or holding to which the decree
or certificate relates. That provision will not apply only
if the term of the tenure has expired before an application
is made for the execution of such decree or certificate.
What is further, when the entire tenure or holding is
purchased in execution of a decree for arrears of rent in
respect thereof, Clause [b] of sub-section [1] of that
section provides that the purchaser shall pay to the decree-
holder or certificate-holder, as the case may be, the
deficiency, if any, between the purchase price and the
amount due under the decree or the certificate, together
with the cost incurred for the auction sale and also the
rent which may have become due between the date of the
institution of the suit and the date of the confirmation of
the sale. This provision is inconsistent with the
provisions of the Code.
The High Court has held that the said-Section 168A [1]
stands impliedly repealed by the vesting in the State of the
interests of the intermediary which include raiyati and
under-raiyati interests and attract the proviso thereunder
leaving the decree-holder free to execute his decree as
money-decree in view of Section 5B of the Act, against any
other property of the judgment-debtor, tenureholder or
tenant. There is no doubt that after the intermediary
interests vest in the State, they cannot be brought to sale
and the remedy of the decree-holder is to proceed against
other property of the judgment-debtor, if any. In that
event, Section 168A would not come in the picture.
359
However, the High Court has gone further and observed as
follows:
"In Bithika Maity’s case, it was correctly decided that the
effective date in section 5B in respect of raiyati and
under-raiyati holdings is also the first day of June 1954.
The decision however failed to take notice that the impugned
sale therein held on September 10, 1954 could be treated
a,,; a sale under the Code of Civil Procedure as a sale in
execution of a money decree. This aspect of the case was
not taken in consideration possibly because the case was
heard exparte. We are accordingly unable to approve the
decision that all sales between the first day of June 1954
to the vesting of raiyati interest are to be deemed as being
under the Statutes mentioned therein and hence to be
declared void as was summarily held by it. On the contrary,
such sales though deemed as invalid and of no effect under
the aforesaid acts, are to be treated and will have the
effect of sales under the Code of Civil Procedure in
execution of money decrees, if otherwise valid. Accordingly
accepting Mr. Mitra’s contention, we hold that the name of
the opposite party being auction- purchaser of the right,
title and interest of the judgment-debtor was validly
recorded as raiyat in respect of the disputed holdings in
the finally published record-of-rights in place and stead of
defaulting judgment-debtors who held the sake
[sic] holdings."
It is difficult to appreciate these observations which are
self-contradictory. There is a conflict of view on the
question as to when the raiyati and the underraiyati
interests vested in the State, viz., whether on 15th April,
1955 when Section 4 became applicable to them by virtue of
the retrospective operation of Sections 49 and 52 or on 10th
April 1956 when the notification under Section 49 was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 14
issued. It is not necessary for us to go into that question
on the facts of the present case nor was the question
debated before us. Hence we would refrain from expressing
any opinion on the point there is, however, no dispute
before us that the sales even of raiyati and under-raiyati
interests effected after 1st June, 1954 were invalid under
Section 5B of the Act. Hence, the sales of the raiyati
interest in the present case effected on 6th November, 1954
and 3rd December, 1954 were obviously invalid. After 15th
April, 1955 or 10th April, 1956, as the case-may be,
(according to the conflicting views of the High Court), when
the raiyati and under-raiyati interests came to be vested in
the State, no sale could have been held of those interests,
and the decree-holder would have been required to proceed
against the other properties of the judgment-debtor.
However, admittedly in the present case it is the raiyati
interests of the judgment-debtor in the land in question
which were sold. Hence, the sales were void. The High
Court has reasoned that the sales can be treated as
360
being pursuant to a money-decree and, therefore, under the
Code and independently of the Tenancy Act. The High Court
unfortunately missed the vital fact that whether, it is a
money-decree or a rent-decree, the entire raiyati interests
of the judgement-debtor in the land in question had to be
sold under the said Section 168A, but could not be sold in
view of the bar imposed by Section 5B of the Act. The bar
cannot be overcome by treating the sale under the Code to
circumvent the provisions of the Tenancy Act and in
particular of Section 168A of that Act. We have already
pointed out that the decree pursuant to the suit under the
Tenancy Act cannot be executed except under the provisions
of that Act. There cannot, therefore, be a sale of the
property in question pursuant to such decree under the
provisions of the Code. What is further, the intention of
the legislature in enacting Section 5B was to prevent sales
of the intermediary interests after 1.6.1954. In view of the
provisions of the Tenancy Act, the said interests could be
sold only under and in accordance with the provisions of
that Act. The sale of such interests in the land pursuant
to a decree for arrears of rent in respect of that land
could not therefore be made under the Code. Admittedly in
the present case, the raiyati interests were sold after
1.6.1954 in execution of the decree for arrears of rent in
respect of the land in question. Hence the proceedings
initiated by the Assistant Settlement Officer to revise the
entries in the record-of-rights made in favour of the
auction-purchaser and the orders passed by him on January 8
and 27, 1971 recording the name of the former raiyats as
raiyats with possession of the lands and deleting the names
of the auction-purchaser, were valid. We, therefore, set
aside the impugned decision of the High Court and restore
that of the Assistant Settlement Officer. The appeals are
allowed accordingly. In the circumstances of the case,
there will be no order as to costs.
RP Appeals allowed.
361