Skip to content


The State of West Bengal Vs. Sailendra Kumar Sen - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 1817 and 1818 of 1972
Judge
Reported inAIR1977Cal251,(1976)2CompLJ539(Cal),81CWN113
ActsWest Bengal Estates Acquisition Act, 1954 - Sections 5B, 168A and 168A(1)
AppellantThe State of West Bengal
RespondentSailendra Kumar Sen
Appellant AdvocateP.K. Sen Gupta and ;Tapan Kumar Sen Gupta, Advs.
Respondent AdvocateAmarendra Mohun Mitra, ;Swadesh Bhusan and ;Prabir Kumar Samanta, Advs.
Cases ReferredDoolar Chand v. Lalla Ohabeel Chand
Excerpt:
- salil kumar datta, j. 1. the division bench consisting of a. k. sen, b. c. roy, jj. has referred the above revision cases to the special bench in view of the questions of great public importance involved therein. the questions relate to the interpretation of the provisions of section 5-b of the west bengal estates acquisition act, 1953 (west bengal act 1 of 1954) hereinafter referred to as the said act, with reference to the date of their application to raiyati and under-raiyati holdings and consequences arising therefrom.2. the relevant facts are as follows :--on december 18, 1970 the assistant settlement officer settlement 'c' camp no. iia, diamond harbour, initiated proceedings under section 44(2a) of the said act for revising the finally published record-of-rights in respect of some.....
Judgment:

Salil Kumar Datta, J.

1. The Division Bench consisting of A. K. Sen, B. C. Roy, JJ. has referred the above revision cases to the Special Bench in view of the questions of great public importance involved therein. The questions relate to the interpretation of the provisions of Section 5-B of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act 1 of 1954) hereinafter referred to as the said Act, with reference to the date of their application to raiyati and under-raiyati holdings and consequences arising therefrom.

2. The relevant facts are as follows :--On December 18, 1970 the Assistant Settlement Officer Settlement 'C' Camp No. IIA, Diamond Harbour, initiated proceedings under Section 44(2a) of the said Act for revising the finally published record-of-rights in respect of some khatians within his jurisdiction, which, according to him, were incorrectly recorded with auction purchaser the opposite party herein, as raiyat. Proceedings in respect of entries of khatians Nos. 10, 11' (624, 625 Khanda) of Mouza Haradhanpore gave rise to Case No. 156 of 1970 (under Section 44(2a)) while proceedings in respect of entries of khatians Nos. 6, 7, 13, 15 and 24 (302, 308, 309 and 310 Khanda) of Mouja Kailpara was registered as Case No. 22 of 1970 (under Section 44(2a)). It appears that the lands were purchased' by the opposite party in rent execution sales, on November 6, 1954 in respect of Haradhanpore lands and on Dec. 3, 1954 in respect of Kailpara lands. It was held by the Assistant Settlement Officer in the said Section 44(2a) proceedings, following some decisions of this Court, that on the issue of the notification under Section 49 bringing the provisions of Chap. VI, relating to acquisition of interests of raiyats and under-raiyats, into force, Section 5-B applied with retrospective effect to raiyati and under-raiyati holdings, as if they were estates as contemplated in the said section. As a result, in accordance with Section 5-B which provides that there could be no sale of estates under the Bengal Tenancy Act after June 1, 1954 and any sale held thereafter is to be deemed as void and of no effect the auction purchases in rent sales made admittedly after that date by the opposite party were thus void and of no effect. Accordingly by orders dated January 8 and 27, 1971 the record-of-rights in respect of above khatians were directed to be revised as recording the names of the former recorded raiyats as raiyats with possession of the lands with the auction purchaser as adverse to the recorded raiyats.

3. Appeals were preferred against the aforesaid orders by the opposite party under Section 44(3) giving rise to E. A. Appeals Nos. 86 and 87 of 1971 respectively. By an order dated December 9, 1971 the learned Ninth Additional District Judge, Alipore as the Tribunal under Section 44(3) allowed the appeals on contest and set aside the impugned orders holding that Section 5-B had no application to raiyati interest and the Assistant Settlement Officer was not justified in treating the auction purchases as invalid. The State of West Bengal has obtained the connected rules against the said orders of the learned Tribunal which on reference, are now before us.

4. We shall now consider the relevant sections of the West Bengal Estates Acquisition Act, 1953. Section 4 is as follows :

'4. (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 the 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' (April 15, 1955).

5. The intermediary has been defined as in Section 2(i) as '2 (i) 'intermediary' means a proprietor, tenure-holder, under tenure-holder 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.....'

6. This definition by itself did not include raiyati or under-raiyati interest in any holding.

7. By West Bengal Estates Acquisition (Amendment) Act, West Bengal Act XIII of 1954 which received the President's assent on April 23, 1954, Section 5-A was in-serted with retrospective effect from the date of commencement of the parent Act The relevant excerpt is as follows :--

'5-A. (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 prima facie reasons for believing that such transfer was not bona fide.

(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.'

8. Section 5-B was inserted with retrospective effect from the 1st day of June, 1954 by West Bengal Estates Acquisition (Second Amendment) Act, 1954 West Bengal Act XXVIII of 1954 which received the President's assent on October 2, 1954, The relevant portion is as follows :--

'5-B. 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 sales 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.....'

9. Chapter VI is concerned with acquisition of interests of raiyats and under-raiyats and comprises of Sections 49 and 52. Sections 50 and 51 being omitted with retrospective effect. Section 49 and Section 52 were substituted with retrospective effect for the original section by West Bengal Estates Acquisition (Amendment) Act (West Bengal Act XXXV of 1955) and received the President's assent on November 25, 1955. The relevant provisions are as follows :--

'49. 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.'

10. Section 52 substituted with retrospective effect for the original section by the aforesaid Act in relevant extracts is as follows :--

'52. On the issue of a notification under Section 49 the provisions of Chaps. II, III, V and VI shall, with such modifications as may be necessary, apply mutatis mutandis to raiyatg 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 for the purposes of Clauses (c) and (d) of Section 51

11. By notification No. 6804LRef. dated the 9th April, 1956 (published in Calcutta Gazette Extraordinary of same dated, Part I, p. 743), Chap. VI came into force in all districts of West Bengal with effect from the 10th day of April 1956.

12. The points for determination in this reference are-

(1) what is the effective date in Section 5-B in respect of sales of rai-yati and under-raiyati interest under the statutes mentioned therein.

(2) whether during the period Section 5-B operated as a bar to the execution of rent decree as money decree against raiyati and under-raiyati interest and what is the effect of vesting on Section 168-A of the Bengal Tenancy Act, 1885.

13. The Judicial decisions on this aspect have not been uniform. In the earliest decision in Prahlad Chandra Dey v. Govinda Chandra Dey, (1963) 67 Cal WN 452, S. K. Sen, J. held as follows :--

'.....the effective date to be inserted in Section 5-B when we are concerned with the sale of raiyati .iotes cannot be any date earlier than 25th November, 1955, when Sections 49 and 52 of Chap VI were substituted for old sections; and ..... the date to be substituted in Section 5-B for avoiding the court sales of raiyati jotes would be 10th April, 1956, the date of the issue of notifications under Section 49, and not the date on which the Sections 49 and 52 in their present forms were substituted by amendment of the Estates Acquisition Act. It is to be observed that in Section 52, it is clearly provided that the provision of Chaps. II etc. shall not apply as they are, but they shall apply with necessary modifications. When the Act became applicable to raiyati jotes from a much later date, it is also necessary modification of Section 5-B Of Chap. II that the date mentioned in Section 5-B from which Court sale of raiyati jotes should become void would be a much later date viz. the date on which by notification the Act was made applicable to raiyati interests.' In Aftabuddin Ahmed v. State of West Bengal, (1967) 71 Cal WN 300, R. N. Dutt, J. was considering the effective date in Section 5-A in respect of raiyati and under-raiyati holdings and it was observed. 'When the words of Section 5-A specifically mentioned a certain date there is no scope to hold that in respect of raiyats and under-raiyats the effective date would be some other date because otherwise the raiyats and under-raiyats would be adversely affected.....the effective date in Section 5-A of the Act in respect of raiyats and under-raiyats also is 5th day of May, 1953.'

14. In Haripada Pramanik v. Gopal Chandra Maity, (1970) 74 Cal WN 400 the Court was considering sales of raiyati holdings of judgment debtor in 1960 by the auction purchaser. It was observed--

'In the present case, the interest that was sold was that of a raiyat. Chapter VI of the West Bengal Estates Acquisition Act, which deals with raiyats and under-raiyats, came into force on the 10th day of April, 1956, on the issue of a notification under Section 49 of the Act and thereupon Section 5-B became applicable to raiyats and under raiyats with such modifications as might be necessary'.

15. The Division Bench held that even so there was no bar on the ex-landlord to execute the decree under the C. P. C. treating them as money decrees, as a rent sale thereafter under the Bengal Tenancy Ac.t was neither permissible nor possible. There was no bar in Section 5-B of the Act to such sale of the lands held by the judgment-debtors then under the State.

16. In earlier Bench decisions in Ahi-dhar Ghosh v. Sm. Nisi Bala, : AIR1958Cal253 , it was held that when as a result of vesting, the defaulting tenure ceased to exist, the proviso of Section 168-A (1) of the Bengal Tenancy Act would apply, that is to say, other properties of the ex-tenant might be proceeded against. In another case in Hiranmoyee v. Apal Choudhury, (1958) 62 Cal WN 373 it was held by another Division Bench that on vesting the decree holder is entitled to proceed against the properties of the ex-tenant other than the defaulting tenure and the bar of Section 168-A of the Bengal Tenancy Act would not apply to suoh a case. It was further held that there was an implied repeal of Section 168-A of the Bengal Tenancy Act by Section 5-B of the said Act.

17. The Division Bench in Haripada Pramanik's case (1970) 74 Cal WN 400 following the above two Bench decisions held :--

'There is, therefore, no reason why the sales in question would not have the effect of sales under money decrees. The judgment-debtor had lost the original holdings on the vesting of his interest in the State, but he still had some interest in the lands which constituted those holdings in view of the provisions of Section 6 of the Estates Acquisition Act. It is this interest which passed to the auction purchaser upon his purchase of the disputed lands.'

18. In Ambujakhya Mukherjee v. State of West Bengal, ILR (1966) 1 Cal 495, P. B. Mukherjee, J. (as his Lordship then was) on p. 525-6, para. 55 was meeting the argument that raiyati lands could not be vested in the State under the said Act in view of the enforcement of Chap VI after expiry of Baisakh 1, 1362 as provided in Section 4(2). His Lordship referred to the observations made by him in Haranath Ghosh v. State of West Bengal, (1963) 67 Cal WN 129 as set out below :--

'The words 'mutatis mutandis' following the word 'modification' make it abundantly clear as to the modifications intended under Section 52 of the Act. In other words, the word 'modification' in Section 52 of the Act means contextual adaptation of these chapters of the Act to the case of raiyats and under-raiyats and not amendment of the substantive provisions and effects of those chapters. The contextual adaptation is only intended to make these chapters applicable to the case of raiyats and under-raiyats.....'

19. Janah, J. in Basdeo Singh v. Binode Behari, (1973) 77 Cal WN 969 observed as follows :--

'According to the view taken in Ambujakhya Mukherjee v. State, therefore, it is not permissible to read 10th April, 1956 or anv other date in place of 1st June, 1954.'

20. In the Bench decision in State of West Bengal v. Bithika Maity, (1975) 79 Cal WN 216 the Court was of opinion that the proposition enunciated in the ease of Aftabuddin Ahmed. ((1967) 71 Cal WN 300) in respect of Section 5-A applies with all its force to cases under Section 5-B as well. It was observed :

'When legislature made Sections 49 and 52 of the Act retrospective with effect from the day when the Act first came into force, it must be said that the date mentioned in Section 5-B must be the effective date not only in respect of intermediaries whose estate vested in the State under Section 5 but also in respect of intermediaries whose estate vested under Section 52 of the Act that is raiyats and under-raiyats. When the words of Section 5-B specifically mentioned a certain date there is no scope for holding that in respect of raiyats and under-raiyats the effective date would be some other date because otherwise the raiyats and under-raiyats would be adversely affected. The legislature must have considered this aspect of the matter when it made Sections 5-A, 5-B and 52 retrospective from the date when the Estates Acquisition Act first came into force. It being in the domain of legislature court cannot question the same.'

21. The Bench making the present reference was also of opinion that the interpretation given by S. K. Sen, J. would be beyond the powers of Court. Such alteration of date in Section 5-B would mean legislation by Court beyond the authority of Section 52 which authorised only contextual adaptation of provisions of Section 52 to raiyati or under-rajyati interest brought under the purview of the Act on the notification of Section 49.

22. Mr, P. K. Sen Gupta learned Government Pleader, relying on the Aftabud-din's case ((1967) 71 Cal WN 300) as also on the Bench decision in Baithika Maity's case ((1975) 79 Cal WN 216) contended that the provisions of Section 5-B became operative on and from June 1, 1954 for all purposes. It is not open to the Court to fix another date for the purpose when the legislature in its wisdom fixed the relevant date for purpose of Section 5-B. Mr. Amarendra Mohan Mitra as also Mr. Swa-desh Ranjan Bhunia learned Advocates for the opposite parties, contended on the other hand that Section 5-B could only be operative only on the vesting raiyati and under-raiyati interest in the State by notification made under Section 52. Their rival contentions will now have to be examined.

23. Under Acts and regulation mentioned in Section 5-B the defaulting Estate, tenure or under-tenure only could be put to sale in execution of a decree for rent of such estate, tenure or under-tenure. As a result of vesting of the intermediary interest, the defaulting estate, tenure or under-tenure ceased to exist, so that after vesting it is no longer possible to put such interest to sale. It is thus obvious that normally any rent sale under the aforesaid statutes taking place prior to vesting would be valid in law and would entitle the auction purchaser to the defaulting estate, tenure or under-tenure.

24. Chapter VI which provides for acquisition or interests of raiyats and under-raiyats, was brought into force in all districts of West Bengal with effect from April 10. 1956 by notification No. 6804 L Ref. dated April 9, 1956 as provided in Section 49. On the issue of notification, provisions of Chapts. II, III, V and VII applied with such modifications mutatis mutandis to raiyats and under-raiyats as if such raiyats and under-raiyats were intermediaries and the lands held by them were estates. As a result, provisions of Sections 4, 5-A and 5-B which were included in Chap. II became applicable to raiyats and under-raiyats in respect of the lands held by them with effect from April 10, 1956 and interest of the raiyats and under-raiyats thereupon vesting in the State. On such vesting, the interests of raiyats and under-raiyats ceased to exist and if thereafter they chose to retain lands in their khas possession under Section 6 of the said Act they were to be deemed to be a direct tenant under the State and such tenancy would be a new and different tenancy altogether.

25. It is therefore obvious that in execution of rent decree for arrear of rent passed prior to vesting under the statutes mentioned in Section 5-B, after vesting of the interests of raiyats and under-raiyats it was no longer possible to put the defaulting holding to sale as such holding then ceased to exist. There was or could be no legal bar in usual circumstances to put such defaulting holding to sale in execution of rent decree prior to vesting when such holding had its existence. The question now is whether it is competent for legislature to prohibit such rent sale with effect from an earlier date before vesting as was sought to be done by provisions of Section 5-B read with Section 49 and notification as also Section 52. It may be noted that the legislature took into consideration that by reason of the belated legislation codified in Section 5-B there might be sales of interest of intermediaries in tenure or holdings during the period prior to vesting Section 5-B accordingly provided that on and from 1st day of June 1954 no such interest would be liable to be sold under the statutes mentioned therein and any sale which took place after that date under the said statutes was to be deemed as void and of no effect.

26. As has been recognised in judicial decisions the legislature is undoubtedly competent to take away vested rights by means of retrospective legislation. Unless however a clear and unambiguous intention is indicated by legislature by adopting suitable and express words in respect thereof, no provision of a statute should be given retrospective operation if there-by vested rights are affected. The Supreme Court in Rafiquennessa v. Lal Bahadur Chetri, : [1964]6SCR876 added that a statutory provision is held to be retrospective either when it is so declared by express terms or the intention to make it retrospective clearly followed from the relevant words and the context in which they occur.

27. In the case before us, by reason of of the provisions of Section 52, there was, as held in Ambujakhya's case, ILR (1966) 1 Cal 495 a contextual adoption of the pro- : visions of Section 5-B to raiyati and under-rai-yat holdings in express clear and unambiguous language. It is accordingly not possible for the Court to fix another date in Section 5-B which would be in direct contravention of the provisions adopted by the legislature. We have however made attempts to ascertain why the particular date namely June 1, 1954 was selected as the relevant date where from the rent sales of tenures and holdings are to be declared as void. No nexus could apparently be found for enforcement of the provisions from that date unlike Section 5-A wherein the date, 5th May 1953 was the date when the bill for acquisition of intermediary interest resulting in the parent Act was published in the Calcutta Gazette, which led to a spate of transfer for defeating the purposes of the Act. In the objects and reasons of the amending Act XXVIII of 1954, it was merely stated to be as follows :--

'to exempt all estates and tenure from sale under the Bengal Revenue Sales Act, 1859 (IX of 1859) or the Cooch Behar Revenue Sales Act, 1897 (Cooch Bihar Act V of 1897) or the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), as the case may be, on and from the first day of June 1954'. (and even there the Bengal Tenancy Act, 1885 appears not to be included though it is included along with the aforesaid statutes in Section 5-B).

28. The Objects and Reasons of the West Bengal Estates Acquisition Act, 1953, as is well known, is inter alia to eliminate the interests of all zamindars and intermediaries and also to permit the intermediaries to retain possession of their khas land upto certain limits and to treat them as tenants holding directly under the State. It was also the intention of the legislation to make the actual cultivators tenants directly under the Government. If an auction-purchaser is permitted to acquire the interest of the defaulting holding in a rent sale upto vesting he would be entitled under the law to annul the subordinate interest of actual cultivators under the defaulting holding till vesting who would otherwise be entitled to hold the lands in their khas possession under the Government upon vesting. It seems obvious that to safeguard the interest of actual cultivators and to avoid an uncertain state of affairs at the time of vesting which annulment of subordinate interest on rent sale till date of vesting might create, the legislature thought it fit to prohibit rent sale with effect from an earlier date by making suitable legislation which it was competent to promulgate. Such interpretation accordingly appear to be consistent with the aim, scope and object of the Act.

29. On the issue of notification under Section 49 as we have seen the provisions inter alia of Chap II applied mutatis mutandis to raiyats and under-raiyats as if they were intermediaries. Accordingly as soon as Section 5-B within Ohap. II applied to raiyati and under-raiyati interest the relevant provisions thereof became applicable, and the sale under any of the statutes mentioned therein after 1st day of June 1954 was to be deemed to have been void and of no effect. According to the decision of S. K. Sen, J. in Prahlad's case ((1963) 67 Cal WN 452) noted above the date mentioned in Section 5-B is to be the date on which by notification the Act was made applicable to raiyati interest. This conclusion overlooks that on vesting of raiyati and under-raiyati interest which obliterated such interests there could be no sale under those acts of such interests which ceased to exist. The provisions of Section 5-B on such interpretation taking the effective date as the date of vesting would be wholly redundant and unnecessary. It is a rule of interpretation of statutes that each and every provision of a statute must be given full operation and effect. In view of the express provision in S 5-B we are of the opinion that the effective date in respect thereof is the first day of June 1954 in respect of sales of raiyati and under-raiyati holdings under the statutes mentioned therein and such provision is undoubtedly with the competency of the legislature.

30. It is further to be noted that Section 5-B declares void sale of tenure or holding held on and from June 1, 1954 under the satutes mentioned therein. It contains no prohibition in respect of sales in execution of decree under the C. P. C., as this section is concerned only with the sales under the aforesaid statutes. A tenure or holding as is well known till vesting was transferable and heritable under the provisions of the Bengal Tenancy Act and other connected regulations. There could accordingly be no legal bar in the sale of such tenure or holding till vesting so long they were in existence in execution of decrees for money against the holder thereof while under Section 5-B after June 1, 1954 there could be no sale of such tenure or holding under the provisions of the said statutes. It accordingly appears to us that notwithstanding Section 5-B, till vesting there is no bar to the voluntary sales of tenures or holdings of raiyats or under-raiyats or to sales of such interest in execution of monev decrees under the provisions of the C. P. C. If any such sale has taken place during the material period till vesting and was or could be treated as a sale under the Code if otherwise valid and not under the provisions of the aforesaid Acts, such sale will not be void or deemed to be void under Section 5-B and has to be sustained as a valid sale in law.

31. Under Section 143 (2) of the Bengal Tenancy Act, subject to rules under the Act and other provisions thereof, the C. P. C. applies to all suits between landlord and tenant. All such suits are to be entered in a special register instead of the register of Civil suits (S. 146). There are certain specific provisions in the Act in respect of suits for recovery of rent and of appeals from decrees therein. As a result a decree for arrears of rent due in respect of a tenure or holding may thus have the effect of a rent decree if the formalities are complied with as required under Section 148 and under Section 65 if it is a rent decree, the tenure of the holding shall be liable to sale in execution.

32. Chapter XIV (Sections 159-177) provides for sales for arrears under decree obviously for rent being under the said Act, Under Section 159 (1), the purchaser takes subject to protected interests but with power to annul interests defined as incumbr-ances. 'Incumbrance' under Section 161, with reference to tenancy, means any lien, subtenancy or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein and not being a 'protected interest'. Sections 164, 165 and 166 provide for procedure for sale with power to annul in-cumbrance. In order to constitute a sale under the Act, there must be a rent decree contemplated under Section 65 and the sale must also be in conformity with provisions of Chap. XIV.

33. Section 168-A (1) provides that a decree for arrears of rent due in respect of a tenure or holding whether having the effect of rent decree or monev decree can only be executed against the defaulting tenure or holding. Under its proviso this provision will not apply if otherwise than by surrender the term of the tenancy expires before an application is made for execution of such decree. By reason of vesting it could be said that there is a statutory surrender or extinction of the tenancy. So that there is an implied repeal of Section 168-A (1) of the Act, leaving the decree-holder free to execute his decree whether having the effect of a rent decree or money decree, against any other property of the ex-tenant. We accordingly approve of the Bench decisions in cases of, Adhidhar Ghosh, : AIR1958Cal253 and Hiranmoyee ((1958) 62 Cal WN 373) referred to the above and hold that vesting of the interest in a tenure or holding by implication repealed the provisions of Section 168-A (1) of the Act and attracted the proviso thereunder leaving the decree-holder free to execute his decree as money decree in view of Section 5-B of West Bengal Estate Acquisition Act against any other property of the judgment-debtor tenure-holder or tenant.

34. The Bengal Tenancy Act, as it appears, contemplates that if the formalities of Chap. XIV are complied with in execution of a rent decree, the tenure or holding will be sold and the auction-purchaser will be entitled to additional rights provided therein, including the right to annul incumbrances like sub-tenancies created by the defaulting tenant. In case such formalities are not complied with in the execution case when a sale is held such sale will be one under the C. P- C. wherein only the judgment-debtor's interest will pass on to the auction-purchaser who will not be entitled to the benefits like annulment of incumbrances to which an auction-purchaser under the said Act would be entitled. Where by reason of the statutory bar there cannot be in law a sale of the defaulting holding under the Bengal Tenancy Act and other Statutes and sale if held under any of those Acts, are to be deemed as void, there is no impediment by Section 5-B to auction sales under the C. P. C. in execution of a money or rent decree. Such sale if held accordingly is to be treated and have the effect of sale as money decree under the Code as was held in Haripada Pramanik's case (1970) 74 Cal WN 400. Being a sale within June 1, 1954 and prior to vesting of the holding, the auction-purchaser became entitled to the interest of the defaulting raiyat in the holding which was put up to sale now to be deemed as in execution of the money decree in view of the statutory prohibition under Section 5-B. Similar view was taken in Doolar Chand v. Lalla Ohabeel Chand, (1878) 6 Ind App 47 at p. 51 wherein the Privy Council observed :

'Now it is clear that in attaching the property of a judgment-debtor, whether in an under-tenure or in an ordinary lease-hold interest, under Act VIII of 1859, you can only attach and sell the right, title and interest of the judgment-debtor; but you proceed to sell a tenure under Section 59 of Act VIII of 1859, then you sell the tenure; and by virtue of Section 66 of the same Act, the purchaser, under the provisions of Sections 59 and 60 of the Act, acquires it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives or assigns, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement. So that if this tenure had been sold under the provisions of Section 59, the sale would have got rid of all under-tenures, and the purchaser would have been entitled to the whole interest in the tenure, free from all encumbrances in the same way as if the tenure had been sold under the provisions of the law for the sale of an estate for arrears of Government revenue,'

35. In view of the perwaunah, the notice of sale, and the certificate of sale it was held that only the rights and interest of the judgment-debtor were sold and not the tenure

36. In Bithika Maity's case ((1975) 79 Cal WN 216) it was correctly decided that the effective date in Section 5-B 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 sale under the C. P. C. 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 ex parte. 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 C. P. C. 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 re-cord-of-rights in place and stead of defaulting judgment-debtors who held the said holdings.

37. We accordingly hold that

i) The effective date in Section 5-B in respect of sales of raiyati and under-raiyati holdings under the relevant statutes mentioned therein is the first day of June 1954 as therein provided.

(ii) Section 5-B' does not operate as a bar to the execution of decree for arrears of rent as money decree against raiyati or under-raiyati interest and Section 1'68-A (1) is impliedly repealed by vesting of the interest of intermediaries (which include raiyats and under-raiyats) in the State.

38. In the circumstances the initiation of the proceeding by the Assistant Settlement Officer under Section 44(2a) in view of the provisions of Section 5-B in the light of the above discussions must be held to be without jurisdiction. The tribunal's order under Section 44(3) setting aside the orders of the Assistant Settlement Officer in the connected proceedings, are affirmed though for different reasons as indicated above and the connected Rules are discharged. There will be no order for costs in the circumstances.

Sankar Prasad Mitra, C. J.

39. I agree.

Sabyasachi Mukharji, J.

40. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //