Supreme Court of India
STATE OF WEST BENGALversusSAILENDRA NATH SEN
- Citation
- 1993 INSC 163
- Decided
- 22 April 1993
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
Sales of raiyati interests effected after 1 June 1954 in execution of rent decrees are void under Section 5B of the West Bengal Estate Acquisition Act, and the Assistant Settlement Officer’s revision of the record of rights was valid.
Summary
The State of West Bengal challenged the High Court’s view that auction sales of raiyati interests, made in execution of rent decrees under the Bengal Tenancy Act, could be treated as sales under the Code of Civil Procedure and thus be valid. The Assistant Settlement Officer had revised the record of rights, substituting the original raiyats for the auction purchaser, on the ground that such sales after 1 June 1954 were void under Section 5B (SB) of the West Bengal Estate Acquisition Act, 1953. The Supreme Court held that Section 5B expressly bars any sale of raiyati or under‑raiyat holdings after that date, irrespective of whether the decree is characterised as a money decree, and that decrees under the Tenancy Act can be executed only under its own provisions, not the CPC. Consequently, the Assistant Settlement Officer’s revision was valid and the High Court’s decision was set aside. The appeals were allowed.
Issues considered
- Whether Section 5B (SB) of the West Bengal Estate Acquisition Act, 1953 invalidates sales of raiyati and under‑raiyat interests effected after 1 June 1954 even if the sale is under execution of a money decree under the CPC.
- Whether a decree for arrears of rent under the Bengal Tenancy Act can be executed under the provisions of the CPC or only under the Tenancy Act.
- Whether the Assistant Settlement Officer had jurisdiction under Section 44(2a) to revise the record of rights.
- Whether Section 168A of the Bengal Tenancy Act is impliedly repealed by the vesting of intermediary interests in the State.
- Effect of the Notification under Section 49 on the vesting dates of raiyati and under‑raiyat interests.
Legislation cited
Subjects
estate acquisitionraiyatunder‑raiyatsale of landvoid salesection 5Bsection 168Arecord of rightsjurisdictionexecution of decreeWest Bengal
Judgment
--- STATE OF WEST BENGAL
v. {
/
A
SAILENDRA NATH SEN
APRIL 22. 1993
B
[KULDIP SINGH AND P.B. SA WANT, JJ.]
--- 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.ef 10.4.1956-Decree
for arrears of rent in respect of land held by Raiyat-Excution of-Auction sale C
ofraiyati interests effected after 1.6.1954-Name.ofauction purchaser entered as
Raiyat in record of rights-Proceeding 10 revise entries-Order of Asst. Settle·
ment Officer substituting name of original Raiyat for auction purchaser-Held,
sales of raifati i~;rests effected on or after 1.6.1954 are invalid-Order ofAsstt.
Settlement Officer upheld.
D
The Bengal Tenancy Act, 1885:
S. 168A-Decree for arrears of rent in respect of land held by
Raiyat-Execwion of-Sale ofraiyati interests on land in question-Held, decree
pursuant to suit under Tenancy Act ca11-not be executed except under the
provisions thereof-Provisions of Code of Civil Procedure not applicable-After E
intermediary interests v~st in State under West Bengal Estate Acquisition Act,
1953, s. 168A would noi come in operation-Decree·holder is to proceed against
other property ofjudgment-debtor.
The name of the respondent auction~purchaser was entered as raiyat in
F
respect of certain lan~s on the basis ofauction sales dated 6.U.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 heIDg
effected after 1.6.1954 were invalid under s. 58 of the Act. Accordingly, he G
ordered correct~on ·of th~ record of rights by _substituting the n~mes of the
original raiyats for the auction-purchaser.·· ·
The respondent filed appeals which were allowed by the appellate
- authority holding thats. 58 of the Ac~ bad no application to raiyati interests.
The State fded writ petition under Article 227 of the Constitution before the
343
H
344 SUPREME COURT REPORTS [1993] 3 S.C.R.
A High Court.
-
The Special Bench ot the High Court, confirming the decision of the
appellate authority, held that the effective date ins. SB of.the Act in respect
of sale of raiyati and under-r:aiyati holdings under the relevant statutes
mentioned therein was 1.6.19S4; that s. SB did not operate as a bar to
B
execution of decree for ar~ears of rent as a money decree against raiyati or
under raiyati interests, and s.168A (1) of the Bengal Tenancy Act, 188S was
impliedly repealed by the vesting of the interests of the intermediary includ-
ing raiyats and under-raiyats in the State; and that the initiation of1he
proceedings under s. 44(2a) of the Act was witJtoutjurisdiction. The State fded
c the appeals by special leav~.
The State challenged ~he judgmentonhe High Court on the ground that
the High Court was not rightin holding thats. SB oftheA~t would not operate
as a bar against the sale ofiraiyati or under-raiyati interests if the execution
of the rent decree is treated as an execution of money decree under the Code
D of Civil Procedure; and th11t the sale made pursuant to the execution of the
mc;mey decree under the Code even though for rent, and of the raiyati or
under-raiyati interest hol~el", would not be a sale under the statutes men-
tion<;d in s. SB including the Tenancy Act. .
E Allowing the appeals, this Court,
HELD: 1.1 The proceedings initiated by the Assistant Settlement Offi-
cer 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 raiy,ats as raiyats with possession of the lands and
F deleting the name of the auction purchaser, were valid as the raiyati interests
were sold after 1.6. 19S4 in execution of the decree for arrears of rent in
respect of the lands in question. (360 -C-E)
1.2 By virtue of the notification issued under s. 49, s. S2 makes the
provisions of ss. 4, S, SA and SB, among otbers, ·of Chapter II of the Act
G
applicable to the raiyati and the under-r:aiyati interests on the issuance ofsuch
notification. (3Sl-H) .
1.3 In the instant case the Notification No. 680 dated 9.4.19S6 issued
under s. 49 was brought into force with effectfrom 10.4.19S6. It was not given
H retrospective effect from 15.4.19SS. The effect of this notification was that by
STATEOFW.B v. S.N. SEN" 345
\. :soecrnl
virtue of s. 4 the intermediary interests stood vested in the State at the latest A
from 1S.4.19SS while the raiyati and under-raiyati interests stood vested in
the State with effect from 10.4.19S6. The restriction on transfer of the said
interests, however, came into effect retrospectively on or from 1.6.19S4 by
virtue of s. SB, since that date is mentioned in the section itself. (3S2 -AB)
1.4. In view of s. SB of the Act, no estate, tenure or under-tenure B
including raiyati and under-raiyati interests could be sold under the statutes
mentioned ins SB including the Tenancy Act on and after 1.6.19S4 and a sale
after that date under any of thos~ statutes would be void and have no effect
under that section. (3S2 -C)
c
1.S The present auction sales being of raiyati interests and effected on
6.11.19S4 and 3.12.19S4 in execution of the decrees for the arrears of rent
under the Tenancy Act were obviously invalid. (3S2 -D)
2.1 The decree pursuant to the suit under the Tenancy Act cannot be
executed except under the provisions of that Act. There cannot, therefore, be D
a sale of the property in question pursuant to such decree under the provisions
of the Code of Civil Procedure. (:lS8-B)
2.2 The intention of the legislature in enacting s. SB was to prevent sales
of the intermediary interests after 1.6.19S4. In view of the provisions of the
E
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 of Civil Procedure. (360-D)
2.3 The Bengal Tenancy Act, 188S is a self-contained code governing the F
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 fded other-
wise 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 G
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 ofrent, no interest of H
346 SUPREME COURT REPORTS (1993) 3 S.C.R.
A the tenant can be brought to sale in execution of such decree except under the
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,
B
and provides the procedure for attachment and sale of tenure or holding for
arrears of rent due thereon, and liability of purchasers thereof. The non-
obstante 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
c
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 ifthe 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
D 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
E 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 mi'ISed the
F
a
vital fact that whether it is a money-decree or rent-decree, the entire raiyati
interests ofthejudgement-debto, in the land in' question had to be sold under
Section 168A of the TenantAct but could not be sold in view of the bar.imposed
by Section SB 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)
G
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
H ,would not come in the picture. (358 G-H)
STATEOFW.B v. S.N. SEN [SWANT,J.] 347
- CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2621-22 ofl 977. A
From the Judgment and Order dated 9.11.1976 of the Calcutta High Court
in Civil Rule Nos. 1817 and 1818of1972.
P.S. Poti and Rathin Das for the Appellant
B
Dr. Shankar Ghosh for the Respondent.
The Judgment of the Court was delivered by
SAWANT, J. On 18th December, 1970, the Assistant Settlement Officer, C
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 ofKhatians Nos. 10, 11 ofMouza Haradhanpore and Khatians
Nos 6,7, 13, 15 and 24 ofMouza Kail para within his jurisdiction. According to him,
incorrect entries were made in favour of the respondent in the record of rights in D
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. I 56nO and No. 22n0-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 E
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 F
auction purchaser.
.. The auction purchaser preferred appeals before the Tribunal appointed for
the purpose underSection44[3] of the Act being E.A. Nos. 86 and 87of1971. The
Tribunal allowed the appeals and set aside the orders of the Assistant Settlement
G
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 interpre-
tation of the provisions of Section 5B of the Act were involved. The Special Bench H
348 SUPREME COURT REPORTS [1993) 3 ~.C.R.
A held. that (i) the effective date in section 5B in respect of sales of raiyati and under-
raiyati holdings under the relevant statutes mentioned therein is l st June, 1954 as
-
provided therein; [ii] Section 5B does not operate as a bar 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
B 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.
c 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.
D
Section 2 (i) of the Act defines "intermediary" as follows:
"intermediary" means a proprietor, tenure-holder:' under-tenure-
holder or any other intermediary above a raiyator a non-agricultural
tenant and includes a service tenure-holder and, in relation to mines
E
and minerals, includes a lessee and a sub-lessee".
• By virtue of Section 2 (p ), the "tenure-holder" and "rai yat" 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
F 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
G tenants on it, and includes also the successors in interest of persons
who have acquired such a right.
H
(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,
--
STA lE OF W.B v. S.N. SEN [SWANT,J.] 349
and includes also the successors in interest of persons who have A
acquired such a right.
Explanation ............................................ "
Coming back to the present Act, Chapter II of the Act deals with the
B
•·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 (l) and (2) of Section 4 read as follows:
"4. Notification vesting estates and rights of intermediaries. (I) The
State Government may from time to time by notification declare that C
with effect from the date mentioned in the notification, all estates
and,. rights of every intermediary in each such estate situatedfo any
district or part of a district specified in the notificatioQ, shall vest in
the State free from all incumbrances.
{2) The date mentioned in every such Notification shall be the
D
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 l st day of Baisakh of the
Bengali year 1362."
E
Section 5 refers to the effect of notification published 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 F
rights so mentioned are the rights in sub-soil, in mines and minerals, in hats,
bazaars, ferries etc. Clause (c) of Sub-section (I) of the said section then states as
foilows:
"5. Effect of notification. ( l) Upon the due publication of a notifi-
cation under section 4, on and from the date of vesting- G
(a] ............................................ ;:.·................................ .
.[b] ................................ ~ ................. ;......................... .
350 SUPREME COURT REPORTS [1993) 3 S.C.R.
A (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 ifthe State had been the intermediary, and on the
same terms and conditions as immediately before the date of
B vesting:
x x x x x x x"
Section SA places restrictions on certain transfers: Sub-sections (1) and (2)
thereof read as follows:
c
"SA. Restrictions on certain transfers. (1) The State Government
may afterthe date of vesting enquire into any case of transfer of any
land by an intermediary made between the 5th day ofMay, 1953 and
the date of vesting, if in its opinion there are primafacie reasons for
believing that such transfer was not bona fide.
D
(2) If after such enquiry the State Government finds that such
transfer was not bona fide, 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;"
E
Then comes Section SB which without its proviso with which we are not
concerned, reads as follows:
".SB. Estate or tenure not liable to be sold under Act XI of 1859,
F Cooch Behar Act Vof 1897, Bengal Regulation Villof 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
G took place on or after that day under any oftthose acts or that
Regulation shall be deemed to have been void and of no effect:"
We are not .~oncerned in the present case with Chapter ID Which deals with
H
"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 o~er other provisions of the Act and Chapter V which relates to
--
STAlEOFW.B v. S.N. SEN [SWANT,J.] 351
the "preparation of the record of rights". A
Chapter VI deals with the "acquisition ofrights ofraiyats and under-raiyats".
As it stood at the relevant time, it consisted of Sections 49 and 52, which were
newly inserted 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 51.
Section 49 reads as follows: B
"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 c
. appointed for different districts or parts of districts" ..
Section 52 "\Vithout its proviso, is as follows:
"52. Application of Chapters II, III, V and VII to raiyats and under-
raiyats. On the issue of a notification under section 49 the provision
of Chapters II, III, V and VII shall, with such modifications as may D
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 f(frthe purposes of clauses (c) and (d) of
section 5:"
E
It is on \ecord that by notification No. 6804 L. Ref dated 9th April, 1956
published in Calcutta Gazette Extraordinary of the same @y, Part I, Page 47,
Chapter VI came into force in all the districts of W.est Bengal with. effect from the
10th April, 1956.
F
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
es(Jlte., vest in the ~tate, free from all incumtirances. 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 co.rresponds to t:'.e
1st day of the Baisakh of the Bengali year 1362 m~ntioned therein. When Chapter G
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,
amo1.~ 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 H
352 SUPREME COURT REPORTS (1993) 3 S.C.R.
A notification. In the present case, as stated above, the notification under Section 49
was broughtinto 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,
B however, came into effect retrospectively on or from 1st June, 1954 by virtue of
Section SB, since that date is mentioned in the Section itself.
3. Hence L.'lere cannot be any dispute that no estate, tenure or under tenure
-
including raiyati and under-raiyati interests could be sold under the statutes "
c mentioned in section 5B including the Tenancy A,ct with which we are concerned,
on and after 1st June, 1954 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 respec-
tively. What came to be sold under the said sales were the raiyati interests of the
D judgment debtors, and the respondents were entered in the record-of-rights as
fljj.yats 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 l st January, 1954 as is provided therein. This conclusion of
E 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 under-
raiyati 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 orunder-
F
raiyati 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
G 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 h<l$ no concern with other sales since the tenure or holding
was transferable and inheritable under the provisions of the Tenancy Act and other
H
connected regulations till the estates vested in the State w.e.f. 15th April, 1955 by
notification issued under Se<;tion 49 of the Act. ·--
STAlEOFW.B v. S.N. SEN [SAWANT, J.] 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.
A
Section SA 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 bona fide or not, and ifthe State Government B
--- came to the conclusion that the transfer was not bona fide, 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.
Se.condly, the Tenancy Act is a piece of legislation which amends and
consolidates certain enactments relating to the law oflandlord arid tenant. Under
c
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, D
and is, or but for a special contract wo11.ld 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, E
payment and enhancement of rent, the grounds of ejectment of the tenant and the
procedure for 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 undera decree, the restrictions on the exclusion of the provisions
F
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 G
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 mies from time to time with the approval of the State Government
consi~tent withJhe said act declaring that any portion of the Code shall not apply
to suits between lanulord 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 H
'. ·,~ :--.i-/~-::· -~ .\
I ,,J •l ~ \ '. 'i-i. ' ~ " . ._ / '\,
354 · . · SUPREME COURT REPORTS (199313 S.C.R.
.·_·.\'·1 '\;·,,
; ' , ; A< by the High C~urt, Subject to any rules so made and subject alsoJo_the other
· · ··· provisions of the said Act. the Code applies to all suits between the landlord and
:: · th~ tenanL Sei:'tion 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 broughL The section also
makes clear that no suit between landlord and tenant under the Act shall be ·
B in~tituted in any court other than such courL 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 con-. ) -
tained in thi!s:iid Act. every such agent is emiiowered to verify the pleadings on ;
behalf of the landlord without the permission of the Court. Section 146 ordains that
the particulars of the ~uits between the landlord and the tenant should be entered
C in a special register 'to be kept by each civil c~urt in such form as the State
Government may prescribe in this behalfinstead of in the register of civil suitS.
prescribed by the_ court. Section 146Amakesa special provision for joint and
several liability for rent of co-sharer-tenants notwithstanding anything contained
·in the Contract AcL Section 146B likewise lays down a special procedure in rent
D suits against co-sharer-tenants notwithstanding aiiything contained in the Limita-
tion Act. Section 147 prevents a landlord from instituting successive rent suits
against a rltlyat exce"pt iincier ci(cunlStances mentioned therein. Section 147A
prevents the Court from wholly or partly adjusting by agreement or compromise,
any suit bet~een landlord and tenant unless the agreement can be enforced under
the said Ac4 viz.• thC Tenancy Act. This pro~ision again is made notwithstanding
E anything contained in this behalf under the Code. __,l,~
Section 148 then lays down a special procedure to be followed in rent suits.
It siates in clause (a] thereof that Sections 68 to 72 of the Civil Procedure Code and
rules I to 13 of Order XI. rule 83 of Order XX! and Rule 2 of Order XLVII1 in
Schedule I of the said Code and Schedule III thereof shall not apply to such suiL
F
Clause [bl thereof states that the plaint in such suit shall contain in addition to the
particulars specified in the code, certain additional particulars which are men-
tioned therein. Clauses [c] and [d] requir~ 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
G · be for the settlement ofissues only. C_lause [f] lays down a special mode of service
of summons if the High Court by rule so directs and also permits the Court to
presu111e service of summons in ce!tain circumstances. Clauses [g] and [h) ~- .
n
ll simiiariy relate to the special procedure of summons in such suits. Clause [i)
requires leave of the Court to file a written statement. Clause Ul makes the rules
for recording the evidence of witnesses contained in rule 13 of Order xvm in .
f: H Schedule I to the Ci~il Procedure Code applicable in the trial_ of such suits, whether
.
[ . ~-
:t.____~~
STA TE OF W.B v. S.N. SEN [SAWANT, J.) 355
an appeal is allowed or not. Sub-clause (j) of Clause [k] permits a Court to issue A
a special summons under certain circumstances notwithstanding anything con-
tained 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 applica-
tion of the decree-holder unless the decree is for ejectment for arrears. Clause [n] B
requires the Court not to insist on a fresh vakalatnama orto 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.
c
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 D
defendant's plea that the plaintiffs 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 l 53A lays down
special conditions under which an application to set aside decree, or for review of
the judgment would lie. Section 154 provides for the dates from which the decree
for enhancement of rent would take effect. E
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.
F
Section 157 laysdown special powerofthe Courtto 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 G
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 particulars of the statement which a decree-holder has to H
produce when he makes an application for attachment and sale of the tenure or •
356 SUPREME COURT REPORTS (1993) 3 S.C.R.
A holding in execution of the decree. Section 163 makes special provision for a
combined order of attachment and proclamation of sale to be issued notwithstand-
ing 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.
B 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 ofrent_due
c
thereori, and liability of purchasers thereof. [1] Notwithstanding any-
thing 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
D 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:
E
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;
-
F [b] The purchaser at a sale referred to in, clause (a) shall be liable to pay
to the decree-holder or certificate-holdei:: the deficiency, if any, between
the purchase price and the amount due u'nder 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
G 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 (I)
apply, if there has been attached any immovable property of the
H
STATEOFW.B v. S.N. SEN [SA WANT, J.] 357
judgment-debtor other than the entire tenure or holding to which the A
decree or certificate relates, and ifthe 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.
B
[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 Certifi-
cate-officer, as the case may be, the sum referred to in clause {b) of that
sub-section."
c
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)_}{) 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 D
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
E
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. F
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 interfer-
ence with produce. Section 186A provides for damages for denial of landlord's
title. Section 187 gives landlord po~er to act through agents.
G
These are all the provisions which are necessary for us io 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 displl:~es,
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 H
358 SUPREME COURT REPORTS [1993) 3 S.C.R.
A 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
B 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
___,_
c 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,
ifany doubt in that behalf was left, it is removed by the provisions of Section l 68A.
The said section which is reproduced above begins with the non-obstante clause
which excludes all other provisions of the Tenancy Actitself as well as of any other
law and the provisions of any contract as well. Clause [a] of that section states that
D 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
E 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]
r
of sub-section [1] of that section provides that the purchaser shall pay to the decree-
holderor 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
F due between the date of the institution of the suit and the date of the confirniation
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
G 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 SB of the Act, against any other property of the judgment-debtor, tenure-
holder 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,
H Section l 68A would not come in the picture.
STAlEOFW.Bv. S.N. SEN [SAWANT, J.) 359
.-
_
However, the High Court has gone further and observed as follows: A
"In Bithika Mail)' '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 as a sale under the Code of Civil Procedure as a sale B
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 c
hence to be declared void as was summarily held by it. On the
contrary, such sales though deemed as invalid and ofno effect under
.. _
ttre 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 cont_ention,
we hold that the naine of the opposite party being auction-purchaser D
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 judg-
ment-debtors who held the !i_ake [sic] holdings."
It is difficult to apJ:>reciate these observations which are self-contradictory. .E
There is a conflict of view on the question as to when the raiyati and the under-
raiyati interests vested in the State, viz., whetheron 15th ApriJ___, 1955 when Section
4 became applicable to them by virtue of the retr_ospeciive operation of Sections
49 and 52 oron 10th April 1956 when the notification under Section 49 was issued.
was the question debated -
It is not necessary for us to go into that question on the facts of the present case nor
-- before us. Hence we would refrain from expressing any F
opinion on the point there is, however, no dispute before us that the sales even of
rai_y_ati and under-raiyati interests effected alter 1st June, 1954 were invalid under
-Section SB of the Act. Hence, the sales of the raiyati interest in the present c~e
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 G
-
conflicting views of the High Court), when the r~yati 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 H
360 SUPREME COURT REPORTS [1993] 3 S.C.R.
A· being pursuant to a money-decree and, therefore, under the Code and indepen- \
dently of the Tenancy Act. The High Court unfortunately missed the vital fact that
whether it is a nioney-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
l 68A, but couJii BO( be sold in view of the bar imposed by Section SB of the Act.
The bar cannot be overcome by treating the sale under the Code to circumvent the
B 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 SB was to prevent sales of the intermediary interests after l.6.19S4. In
c 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 pre§ent case, the raiyati
interests were sold after l .6. l 9S4 in execution of the decree for arrears of rent in
D 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
E Settlement Officer. The appeals are allowed accordingly. In the circumstances of
the case, there will be no order as to costs.
RP Appeals allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "estate acquisition"Sign in to search