Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
NATHIA AGARWALLA & ANOTHER
Vs.
RESPONDENT:
MUSST. JAHANARA BEGUM & OTHERS
DATE OF JUDGMENT:
15/03/1966
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1967 AIR 92 1966 SCR (3) 926
CITATOR INFO :
F 1990 SC 879 (7)
ACT:
Assam Non-Agricultural Urban Areas Tenancy Act, 1955, s.
5(1) (a)--protection to tenants against ejectment-whether
available where decree for ejectment already obtained.
HEADNOTE:
A decree for ejectment was passed against the appellants in
November 1950 in a suit filed against them by the
respondents and was later confirmed by the High Court. The
execution proceedings began in August 1954 and were pending
when the Assam Non-Agricultural Urban Areas Tenancy Act 1955
came into force from June 26, 1955. The appellants there-
upon claimed the benefit of s. 5(1) (a) of the Act (which
grants protection from eviction to tenants under certain
circumstances) on the ground that the protection of Section
5 was available not only in pending suits and appeals but
also in pending execution cases, This claim was rejected by
the execution Court and an appeal to the High Court was also
dismissed.
On appeal to this Court,
HELD: The protection under Section 5(1) (a) was not
available where a decree in ejectment had already been
obtained.
Section 5(1) begins by stating "notwithstanding anything in
any contract or in any law for the time being in force but
it does not include decrees for ejectment already obtained,
in the non-obstante clause.
Clause (a) of Section 5(1) protects tenants of land from
ejectment by the landlord in those cases in which the tenant
entitled to build on ,the land under his contract has
actually built a permanent structure within five years from
the date of his contract, or has without such right built
with the knowledge and acquiescence of the landlord. Such
tenant may not be ejected except for non-payment of rent.
Clause (a) applies alike to contracts made before or after
the commencement of the Act but as it intends to operate on
the rights of the landlord, rights already enforced and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
determined cannot be said to be involved and the clause must
contemplate a suit and not execution proceedings.
The fact that Section 14 of the Sylhet Non-Agricultural
Urban Areas Tenancy Act 1947 repealed by the 1955 Act and
Section 6(1) of both Assam Act 13 of 1949 and Assam Act 3 of
1946 provided specially for execution proceedings clearly
shows that where the Assam Legislature wished it included
execution proceedings within the protection.
Suresh Chandra Datta v. Ashutosh Dutta and Others A.I.R.
1960 Assam 24, referred to.
Comparing statute of different states is not to be commended
because similarity or variation in the laws of different
States is not necessarily indicative of a kindred or a
changed intention. Enactments drafted by different hands,
at different times and to satisfy different requirements of
a local character. seldom afford tangible or sure aid in
construction. [929 E-F; 930 E; 931 B-D]
927
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 893 of 1963
Appeal by special leave from the judgment and order dated
August 14, 1959 of the Assam High Court in Appeal from
Original Order No. 21 of 1959.
M. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan, for
the appellants.
B. Sen, and P. K. Ghosh, for the respondents.
The Judgment of the Court was delivered by
Hidaytullah J. This is an appeal by special leave against an
order of the High Court of Assam dated August 14, 1959 re-
jecting summarily an appeal in an execution case. The
appellants against whom the decree for ejectment is being
executed are the widow and son of one Maliram Agarwala whose
father Arjun Das had taken on lease the suit land from one
Mohd. Soleman, predecessor-in-interest of the respondents.
The decree was passed as far back as November 28, 1950 in a
title suit filed against the appellants and was later
confirmed by the High Court.
The present execution began on August 16, 1954 and was
pending in the court of the Subordinate Judge, L.A.D.,
Gauhati when the Assam Non-Agricultural Urban Areas Tenancy
Act, 1955 (Assam Act 12 of 1955) came into force from June
26, 1955. The appellants thereupon claimed the benefit of
s. 5 of the Act which grants protection from eviction to
tenants, under certain circumstances. The execution Court
heard arguments and on November 12, 1957 held that the
protection of s. 5 was available not only in pending suits
and appeals but also in pending execution cases. In
reaching this conclusion the learned Judge followed a
decision of the Assam High Court reported in Harsukh Saraqgi
& Anr. v. Mashulal Khemani & Anr(1) and of the Calcutta High
Court in Habiba Bibi and others v. Ram Ranjan Mullick and
others(2) He accordingly fixed the case for evidence to find
out if there existed facts necessary for the application of
s. 5 of the Act. Subsequently, the Presiding Judge having
changed, the point was reopened on June 6, 1959 by the
successor Judge. That learned Judge following a later
decision of the Assam High Court (since reported in Suresh
Chandra Datta v. Ashutosh Dutta and others)(3) held that s.
5(1)(a) was not applicable to execution proceedings and the
pending execution must proceed according to law. The only
question in this case is whether the provisions of s.
5(1)(a) of the Tenancy Act apply to pending execution
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
proceedings.
The Act was passed "to regulate in certain respects the
relationship between landlord and tenant in respect of non-
agricultural
(1) A.I.R. 1957 Assam 22. (2) A.I.R. 1937 Cal 207.
(3) A.I.R. 1960 Assam 24.
928
land in urban areas of the State of Assam." It consists of
14 sections. Section 5, with which we are primarily
concerned, may be read in full. It reads :
"5. 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;
(b) where a tenant has effected improvements
on the land of the tenancy under the terms
whereof he is not entitled to effect such
improvements, the tenant shall not be ejected
by the landlord from the land of the tenancy
unless compensation for reasonable
improvements has been paid to the tenant.
(2) No tenant shall be ejected by his
landlord from the land of the tenancy except
in execution of a decree for ejectment passed
by a competent civil court.
(3) No decree for ejectment passed on the
ground of non-payment of rent shall be
executed within a period of thirty days from
the date of the decree and if the tenant pays
into the Court whose duty it is to execute the
decree the entire amount payable under the
decree within the aforesaid period, the Court
shall record the decree as satisfied."
The remaining sections may be shortly noticed before we
proceed to construe s. 5. The first three sections contain
respectively the short title, the extent of application and
the definitions of terms in the Act. Section 4 puts an
obligation upon a tenant to pay rent for his holding at fair
and equitable rates. Section 6 lays down how compensation
for improvements in a suit for ejectment against a tenant is
to be calculated and includes within improve-
929
ments structures, which the tenant entitled to build has
actually built after the expiry of the period of five years
referred to in cl. (a) of sub-s. (1) of s. 5. Sections 7,
8 and 9 deal with the question of enhancement of rent from
different points of view. Section 10 prohibits the
realisation of any "salami". Section II provides that no
suit for ejectment, except for arrears of rent, shall be in-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
stituted until after the expiration of one month from the
date of the receipt of by the tenant of a notice in writing
by the landlord requiring the tenant to surrender possession
of the land in favour of the landlord. Section 12 shows how
the notices have to be served and s. 13 gives the power to
make rules. By s. 14, the Sylhet Non-Agricultural Urban
Areas Tenancy Act, 1917, (Assam Act 10 of 1947) was
repealed.
The only question in this appeal is whether s. 5(1)(a) of
the Act, which we have reproduced above, applies to
execution cases in respect of decrees for ejectment granted
before the coming into force of the Tenancy Act. The answer
to this question will determine which of the two orders
passed by the respective presiding Judges was right.
Two methods of approach were adopted by counsel in this
appeal. One was to construe the words of the fifth section
taken by themselves or in comparison with those employed in
other Acts of the Assam Legislature. The second was to
compare and contrat s. 5 of the Assam Act with enactments In
rent control Acts of other States. The second method,
althoug sometimes instructive, is not to be commended
because similarity or variation in the laws of different
States is not necessarily indicative of a kindred or a
change intention. Enactments drafted by different hands, at
different times and to satisfy different requirements of a
local character, seldom afford tangible or sure aid in
construction. We would, therefore, put aside the Rent
Control Acts of Madras, Bihar, Delhi and other States,
because in these States the problem of accommodation in
relation to the availability of lands and houses and the
prior legislative history and experience, cannot be same as
in Assam. We shall however, refer to other Rent Control
Acts of the Assam Legislature because they do not suffer
from this weakness and may throw some light on how the
legislature was accustomed to view such matters. But before
we do so we shall consider s. 5 taken by itself.
The section consists of three sub-sections and it is helpful
to view the provisions backwards, that is, from the last
subsection to the first. The third sub-section deals with
decree of ejectment passed on the ground of nonpayment of
rent. It affords a last chance to the tenant to retain the
land of his tenancy by making such a decree unexecutable for
a period of 30 days from its date so that the tenant may, if
he cares, deposit
930
the amount of the decree in the court which will execute
that decree. On the tenant so paying, the decree is
recorded as satisfied. This sub-section must apply to all
executions which come within its terms because of the clear
language "no decree for ejectment shall be executed" and
"the Court shall record the decree as satisfied". These are
peremptory words and they do not admit of any exception.
All decrees for ejectment in which thirty days’ time had not
passed were affected but, it is clear, that decrees which
did not come within the terms of the sub-section remained
executable.
We may now examine the second sub-section which also takes
away some rights of landlords but leaves them free to
execute decrees other than those on which the section places
an embargo. That sub-section provides that no tenant shall
be ejected by his landlord from the land of his tenancy
except in execution of a decree for ejectment passed by a
competent civil court. Although this sub-section takes away
the right of ejectment in other ways, if any, it recognises
that ejectment is possible provided there is a decree of a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
competent civil court.
We may now consider the first sub-section. Certain matters
appear on its face. Ihe sub-section does not speak of an
ejectment decree, but of the right of the landlord to eject
his tenant. It begins by stating "notwithstanding anything
in any contract or in any law for the time being in force"
but it does not include decrees for ejectment already
obtained, in the non-obstante clause. Such decrees could
have easily been named, to include them within the
protective provisions, but they were not. The operative
parts of the sub-section protect tenants under two
circumstances which are mentioned as (a) and (b). Taking
(b) first : if the tenant effects improvements on the land
which he is not entitled to effect, the landlord may not
eject him unless he pays reasonable compensation. Who will
assess the compensation is laid down in s. 6 but that
section specifically mentions a suit for ejectment and not
execution proceeding. All this seems to suggest that s. 5
(1) (b) is intended to operate on rights of the landlord
which are being enforced by a suit but not on rights already
enforced and determined. By speaking of the curtailment of
the landlord’s right and by omitting to provide for decrees
into which the rights merge and by mentioning the provisions
of s. 6 are to be invoked in a suit for ejectment, it
appears that the decrees as such are not put under the same
embargo.
So far there is nothing in s. 5 which would suggest that its
provisions cover decrees in which the rights had passed
before the coming into force of the Act. It remains to see
whether s. 5 (1)(a) strikes a different note. Part (a)
of s. 5 (1) is constructed
931
on very similar lines and does not admit a different
approach. It protects tenants of land from ejectment by the
landlord in those cases in which the tenant entitled to
build on the land under his contract has actually built a
permanent structure within five years from the date of his
contract, or has without such right built with the knowledge
and acquiescence of the landlord. Such tenant may not be
ejected except for non-payment of rent. Clause (a) applies
alike to contracts made before or after the commencement of
the Act. This creates some doubt but as it intends to
operate on the rights of the landlord seeking to enforce
them against a tenant, who claims that he cannot be ejected,
the clause must again contemplate a suit and not execution
proceedings. There is nothing to distinguish cl. (a) from
cl. (b) in so far as execution of decrees already granted is
concerned.
The decision of the Assam High Court in Suresh Chandra v.
Ashutosh Dutta(1) expressed the same conclusion but on a
slightly different reasoning. The conclusion is further
strengthened when one reads the cognate sections of the
earlier Assam Acts passed by the same Legislature. Section
14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act,
1947 (Assam Act 10 of 1947) now repealed by the Act we are
considering, provided in clear terms that proceedings in
execution were included. It reads as follows:
"14. Pending suits.
The provisions of this Act shall have effect
in respect of all suits or proceedings in
execution, for ejectment of a person, who
would under the provisions of this Act be an
occupancy tenant, which are pending at the
date of commencement of this Act."
Similarly, s. 6(1) of the Assam Urban Areas
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Rent Control Act 1949 (Assam Act 13 of 1949)
and s. 6(1) of the Assam Urban Areas Rent
Control Act, 1946 (Assam Act 3 of 1946)
provided specially for execution proceedings.
These two sections read the same and only one
of them may be read. Section 6 (1) of Act 13
of 1949 read:
"6. Bar against passing and execution of
decree and orders.
(a) No order or decree for the recovery of
possession of any house shall be made or
executed by any Court so long as the tenant
pays rent to the full extent allowable under
this Act and perform the conditions of the
tenancy:
(1) A.I.R. 1960 Assam 24.
932
Provided that nothing in this subsection shall
apply in a suit or proceedings for eviction of
the tenant from the house-
(a) where the tenant has done any act
contrary to the provisions of clause (m),
clause (o) or clause (p) of section 108 of the
Transfer of Property Act, 1882 or to the
spirit of the aforesaid clauses in areas where
the Act does not apply, or
(b) where the tenant has been guilty of
conduct which is a nuisance or an annoyance to
the occupiers of the adjoining or neighbouring
houses, or
(c) where the house is bona fide required by
the landlord either for purposes of repairs or
re-building, or for his own occupation or for
the occupation of any person for whose benefit
the house is held, or where the landlord can
show any other cause which may be satisfactory
by the Court, or
(d) where the tenant sublets the house or any
part thereof or otherwise transfers his
interest in the house or any part thereof
without permission in writing from the
landlord.
These enactments, which are quite explicit, show that where
the Assam Legislature wished it included execution
proceedings within the protection. Being aware that if
execution proceedings are to be included they need to be
mentioned and having at hand the former sections as models,
the departure appears to be deliberate. The language chosen
places the right under an embargo but does not say that
decrees already won would become unexecutable thus stating
clearly that they were not to be affected. The decision
under appeal was, therefore, right.
The appeal has no force; it fails and will be dismissed with
costs.
Appeal dismissed.
933