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Ramani Mohan Sen and ors. Vs. Sm. Nilabja Barani Debi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1306 of 1953
Judge
Reported inAIR1954Cal146,58CWN147
ActsConstitution of India - Article 13(1); ;Debt Law; ;Bengal Agricultural Debtors Act, 1936 - Section 37A
AppellantRamani Mohan Sen and ors.
RespondentSm. Nilabja Barani Debi
Appellant AdvocatePrafulla Kumar Roy and ;Surathi Mohan Sanyal, Advs.
Respondent AdvocateA.D. Mukherjee and ;Priti Bhusan Burman, Advs.
Cases ReferredTara Prasanna v. Adwaita Charan
Excerpt:
- .....on or about the 31st of august, 1938. thereafter, after the coming into force of the amended bengal agricultural debtors act introducing section 37a into that statute the present opposite party, who was one of the tenants judgment-debtors, made an application under that section for reliefs provided therein. this application was filed on the 19th of may, 1943, it was, therefore, quite within the period of limitation, as provided under sub-section (2) of that section.3. at the initial stage a question was raised that the applicant was not an agriculturist. that question was finally decided in favour of the applicant after the matter had come up to this court. thereafter the case went back to the special officer, appointed under the act, and he, by his order, dated the 13th of.....
Judgment:

P.N. Mookerjee, J.

1. This rule is directed against an order of the learned District Judge, Burdwan, refusing to interfere under Section 40A of the Bengal Agricultural Act with an order of the Appellate Officer Katwa, affirming an award passed in favour of an applicant under Section 37A of the said Act.

2. The proceedings have a long history. The sale in question was held in execution of a decree for rent on or about the 27th of August, 1937. The landlords decree-holders who were the Patnidars--the defaulting property being a Dar Patni under them, of which the judgment-debtors were the tenants or Darpatnidars--were the purchasers. The sale was confirmed on or about the 31st of August, 1938. Thereafter, after the coming into force of the amended Bengal Agricultural Debtors Act introducing Section 37A into that statute the present opposite party, who was one of the tenants judgment-debtors, made an application under that section for reliefs provided therein. This application was filed on the 19th of May, 1943, It was, therefore, quite within the period of limitation, as provided under Sub-section (2) of that section.

3. At the initial stage a question was raised that the applicant was not an agriculturist. That question was finally decided in favour of the applicant after the matter had come up to this Court. Thereafter the case went back to the Special Officer, appointed under the Act, and he, by his order, dated the 13th of November, 1951, directed that an award be drawn up in favour of the applicant. Against this decision of the Special Officer, an appeal was taken by the landlords, who are the petitioners before us, to the Appellate Officer of Katwa but that appeal was dismissed on the 19th September, 1952. The petitioners then moved the learned District Judge of Burdwan in revision under Section 40A of the Bengal Agricultural Debtors Act but the said revision application under that section was unsuccessful. Against the order of the learned District Judge, rejecting the petitioners' application under Section 40A of the Bengal Agricultural Debtors Act, the present rule was obtained by the petitioners.

4. In support of this rule two points were urged by Mr. Roy who appeared for the petitioners. In the first place Mr. Roy contended that in view of Article 13(1) of the Constitution read with Article 19(1)(f) thereof, Section 37A of the Bengal Agricultural Debtors Act must be held to be bad as it imposed unreasonable restrictions on the subject's right of property. For the purpose of the present case, however, it is not necessary for us to go into this difficult question. Admittedly, the present proceedings under Section 37A of the Bengal Agricultural Debtors Act were pending on the day the Constitution came into force.

It is clear also that the rights, involved in the present proceedings, were rights which had been acquired before the making of the said application under Section 37A, that is, long before the Constitution, and they were sought to be enforced by the making of that application. The application, as we have said, was made well within the time allowed by law. It has now been found, -- and that finding is no longer open to challenge, -- that the applicant fulfils all the conditions required by that statute for the acquisition or enforcement of the rights, claimed by her. It is true that this decision has been given after the Constitution had come into force, but the decision merely declares that in the case of the applicant those conditions had been duly fulfilled. In other words, the decision merely declares that the applicant had duly acquired the rights in question immediately on the introduction of Section 37A of the Bengal Agricultural Debtors Act that is, in May 1942, which was long before the commencement of the Constitution, that she was entitled to enforce the same and had taken all necessary steps in that behalf. In such circumstances, it must be held that the rights in question were 'acquired rights' at the date the Constitution came into force which had been duly put into motion and were pending enforcement on that date in accordance with law.

5. On the authority of -- 'Keshavan Madhava Menon v. State of Bombay', : 1951CriLJ680 (A), therefore. Article 13(1) of the Constitution cannot affect those rights or their enforcement. It is also clear that as the proceedings under Section 37A of the Bengal Agricultural Debtors Act were pending on the day when the Constitution came into force, nothing in the Constitution which would involve a change in the law of substantive rights could affect the same unless there was a clear intention or indication therein to that effect. This follows from the well-known principle that in the absence of a clear intention to the contrary a change of law regarding substantive rights would not affect pending proceedings. On this principle too which is really a corollary of the fundamental principle, applied in -- 'Menon's case (A)' cited above, Article 13(1) of the Constitution can be of no assistance to Mr. Roy's clients in this case, as it has already been held in that case that Article 13(1) so far as it seeks to affect substantive rights, is prospective. In that view of the matter, we hold that, even if Mr. Roy's first contention that Section 37A of the Bengal Agricultural Debtor's Act is ultra vires the Constitution by reason of Article 13(1) read with Article 19 thereof be correct and We have our doubts as to the relevancy or applicability of this latter article in the matter of rights to property dealt with by Section 37A, -- that can be of no possible help to his clients. It is unnecessary, therefore, to examine the said contention, urged by Mr. Roy. The first point in support of the rule is, accordingly, overruled.

6. The view, which we have taken above, is not opposed to the recent decision of the Supreme Court in -- 'Lachmandas Keoralram Ahuja v. State of Bombay', : 1952CriLJ1167 (B). That case was very strongly relied upon by Mr. Roy and he strenuously contended that it was a clear authority in his favour and plainly supported his argument that the pendency of the proceedings under Section 37A of the Bengal Agricultural Debtors Act at the date of the commencement of the Constitution did not exclude its application to nullify the said statutory provision. In our opinion, however, the reliance was entirely misplaced.

'Ahuja's case (B)' dealt with a change of procedural law and it was apparently on that footing that their Lordships of the Supreme Court there applied the altered law to the pending proceeding in that they held that the old law of special procedure being contrary to the Constitution and thus void under Article 13(1) stood abrogated on its introduction and this change also affected the pending proceeding under the well-known rule that

'procedural changes, in the absence of contrary intentions, are retrospective and affect pending proceedings,'

the result being that the special procedure of the old law was held to' have lapsed or ceased to have effect from the moment the Constitution came into force and all proceedings had under that special procedure since the date of the Constitution and culminating in the appellants' convictions and sentences were set aside by the Supreme Court and they were directed to be retried according to law. The impugned law in -- 'Ahuja's case (B)' was plainly procedural and so, as soon as the Constitution came, its offending provisions became dead and they could not be saved even for the purposes of pending proceedings, there being in the Constitution no express saving in that behalf nor any saving by necessary implication.

7. The present case is entirely different The law sought to be affected by the Constitution relates primarily to substantive rights. Those rights had been acquired long before its introduction and the pending proceeding in question was for enforcement of those rights and had been started long before the Constitution and therein all necessary steps for such enforcement had already been taken.

8. 'Ahuja's case (B)', therefore, has no application to the case, now before us, which must be governed, as we have held above, by the principle, laid down and applied in -- 'Menon's case (A)', which purported to deal with the law of substantive rights and liabilities as opposed to the law of procedure. That principle is no other than the settled fundamental rule of statutory construction that, generally speaking, a change of law does not affect or impair acquired or accrued rights or liabilities and, clearly enough, that principle applies to the present case.

9. It is proper also to hold that there is no real conflict between the above two decisions of the Supreme Court. They dealt with fundamentally different matters -- the earlier one, namely, -- ' : 1951CriLJ680 (A)' dealing with acquired or accrued rights and liabilities and a change in the substantive law, the other, namely, -- ' : 1952CriLJ1167 (B)', involving consideration of a question of procedure and a change in the procedural law -- and there is little doubt that the case, now before us, is well covered by the earlier authority.

10. It may also be pointed out that in --'Ahuja's case (B)' itself -- 'Menon's case (A)' came up for detailed examination and in the majority judgment we find elaborate discussion of the principle, underlying the said earlier decision. That principle, to which reference has already been made by us in the course of this judgment, was re-affirmed over again by the Supreme Court in the recent case of -- 'Qasim. Razvi v. State of Hyderabad', : 1953CriLJ862 (C), where their Lordships drew particular attention to the distinction between the two types of cases dealt with by the Court on the two occasions, explained their real import and implications and firmly set the limits within which -- 'Ahuja's case (B)', must be kept confined. This last decision of the Supreme Court in -- 'Qasim Razvi's case (C)' leaves little scope for Mr. Roy's argument on this part of the case and the law, as laid down there, and the clarification of the legal position, as now made by their Lordships, strike at the root of his constitutional point. Further discussion of the same is, therefore, unnecessary.

11. The second question raised by Mr. Roy relates to the maintainability of the application, under Section 37A at the instance of one of the co-debtors and in the absence of some of the other joint debtors. It has already been decided by this Court in a number of cases -- 'Gopi Ballav v. Aswini Kumar', : AIR1948Cal31 ; --'Monohardas Mohanta v. Golam Rahman', AIR 1949 Cal 225 (E); -- 'Sudarshan Chandra v. Karunasindhu', AIR 1949 Cal 625 (F), that an application by one of several joint debtors is maintainable under Section 37A of the Bengal Agricultural Debtors Act. It has also been laid down that for the purpose of the said Section 37A it is enough if the applicant is a 'debtor' under the Act and his co-debtors need not be so. It further appears that under the said section (vide Section 37A(4)), the applicant debtor, the decree-holder the landlord and the mortgagee are the only necessary parties to such an application (vide also in this connection -- 'Tara Prasanna v. Adwaita Charan', AIR 1948 Cal 329 (G). )

It has been argued by Mr. Roy that the view that one of several joint debtors is entitled to maintain an application in the absence of other co-debtors may be productive of great hardship upon the 'decree-holder' in the matter of realisation of 'his dues under the award' and also upon the said non-impleaded co-debtors' particularly if it be held, as it had been held in the above cases, that the applicant debtor when his application succeeds would be entitled to be restored to the possession of the entire property, and Mr. Roy has urged that, in any event the 'applicant' should not get back more than 'his or her share' of the property. These arguments of Mr. Roy are not altogether without force but as it seems to us that, whichever way the section is interpreted, the difficulties would not wholly disappear we are not prepared at this late stage when the Statute in question is practically dead, to differ from the decisions cited. In the present case it further appears that the debt has already been satisfied and it has been found to be nil in the award and, therefore, no question of prejudice to the 'decree-holder' in the matter of realisation of 'his dues under the award' at all arises. As to the other co-debtors also their application for relief under the above Section 37A having already been dismissed, no question of any prejudice to any of them can possibly arise.

12. In these circumstances, we are not Inclined to interfere under Section 115 of the Code of Civil Procedure with the order of the learned District Judge on the ground that the application under Section 37A of the Bengal Agricultural Debtors Act would not be maintainable at the instance of one of the several debtors and in the absence of all or some of the other co-debtors, all or some' of whom again may not be debtors under the Act, even assuming that that contention is correct. We, accordingly, refuse to give effect also to the second contention urged by Mr. Roy.

13. In the result, therefore, both the points, urged in support of this Rule, fail and the rule is discharged.

14. In the circumstances of this case, however, there will be no order for costs in this Court.

Sen, J.

15. I agree.


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