1. Sm. Sukumari Debi is the owner of a plot of land in the 24-Perganas which was let some time before October 1939, to Rajdhari Pandey who used the land in connexion with his business of hiring out carts. The tenancy was described as a monthly tenancy at will and in 1939 the landlord gave the tenant notice to quit. The tenant did not quit and has not quitted. On 7th October 1939, the landlord obtained a decree against the tenant for possession of the premises. On 14th December 1989 the owner made an application for execution. That application was not dealt with immediately. On 30th May 1940, the Bengal Non-agricultural Tenancy (Temporary Provisions) Act of 1940, was passed by the Bengal Legislature and received the assent of the Governor on 30th May 1940. The Act did not receive the assent of the Governor-General. On 10th June 1940, the Munsif in the execution proceedings granted a stay of execution under the provisions of the Act just mentioned. On 20th July 1940, the owner appealed to the District Judge against the decision of the Munsif staying execution, but the appeal was dismissed. The owner applied to this Court for a rule to show cause why the orders just mentioned should not be set aside. That rule was granted and the matter has been argued at length before this Bench.
2. The learned advocate for the plaintiff - the petitioner before us - the owner of the land, has argued (1) that the Act in question is beyond the law-making powers of the Bengal Legislature and (2) that the provisions in the Act he complains of are repugnant to an existing law passed by the Central Legislature, namely the provisions of the Civil Procedure Code, which provide that execution of a decree shall be granted by the Courts. The Act itself begins with this preamble:
Whereas it is expedient, pending the enactment of further legislation, to provide for the temporary stay of certain suits and proceedings for ejectment of certain non-agricultural tenants; It is hereby enacted....
3. By Section 1 the Act is extended to the whole of Bengal with the exception of certain parts of Calcutta. Nothing arises under this part of the Act. Section 1 also provides that the Act shall continue in force for two years from the date of its commencement, that is, from 30th May 1940. Section 2 defines a 'non-agricultural tenant.' I will deal with this definition later. Section 3 provides:
Notwithstanding anything contained in any other law for the time being in force, every suit and proceeding in any Court for ejectment of a non-agricultural tenant, other than a suit or proceeding for ejectment on account of the non-payment of rent by such tenant, shall be stayed for the period during which this Act continues in force:Provided that every proceeding for delivery of possession in execution of a deoree for ejectment on account of the non-payment of rent by such tenant shall be stayed if, within 80 days from the date of the decree, such tenant deposits into Court the amount of the decree together with the coats of the proceeding.
4. Section 4 provides that the Court may in certain eases set aside certain orders made for the delivery of possession as from certain dates. Section 5 contains provisions to compensate the owner of the premises in respect of possession of those premises by the tenant during the period from 30th January 1940 down to the end of the period during which the Act operates. Section 6 provides:
Subject to the provisions of Sections 4 and 5, every suit and proceeding to which the provisions of Section 3 are applicable, which is pending at the date of the commencement of this Act, shall be stayed for the period during which this Act continues in force.
5. It is provided in Section 8 as follows:
Nothing in this Act shall apply to any tenant who holds non-agricultural land under the Central or Provincial Governments or under a local authority.
6. It is under this Act that the Munsif who has been upheld by the District Judge has stayed the proceedings for delivery of possession until 30th May 1942. As regards the first contention of the landowner, namely that the provisions of the Act relating to stay of proceedings for recovery of possession for two years as made are beyond the law-making powers of the Provincial Legislature those powers so far as they are relevant in this case are set out in List II of the Provincial Legislative List, items 2 and 21. Item 2 is:
Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this list.
7. Item 21 is:
Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents.
8. What the Provincial Legislature here has enacted and what is complained of is that it has directed the Courts to stay proceedings for the ejectment of non-agricultural tenants for a period of two years. Under the provisions of Section 100, Government of India Act, 1935, subject to Sub-sections (1) and (2) the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II of the Provincial Legislative List. The Provincial Legislature in curtailing the powers of the Court to grant possession has acted under item 2 taken in conjunction with that part of item 21 which deals with rights in or over land. In my view the Provincial Legislature and the Provincial Legislature only, had the legislative power to direct the Courts to stay proceedings for ejectment of a non-agricultural tenant in the way it has done. The plaintiff's contention as regards Section 3. being beyond the law-making powers of the Bengal Provincial Legislature fails. The second point taken by the plaintiff was that the Code of Civil Procedure in Order 21, Rule 24, provides that
when the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its-process for the execution of the decree.
9. It is said that that provision of law directs that the Court shall issue the process ; that the provisions of the Bengal Non-Agricultural Tenancy Act of 1940 which direct the Court to stay proceedings for ejectment of a non-agricultural tenant are repugnant to Order 21, Rule 24, Civil P.C., and therefore under Section 107, Government of India Act of no avail. That argument however leaves out of account the provisions of Section 4(1), Civil P.C., which is as follows:
In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
10. That means that if there is some local law in force, special power conferred or any special form of procedure prescribed by some valid Act of the proper Legislature, then the other provisions of the Code of Civil Procedure must give way to that special or local law or special form of procedure. That avoids the conflict and the repugnancy which it is alleged (I do not say correctly alleged) arise in the present case. In my view the second contention of the plaintiff fails. There is one matter that deserves some attention although it has not been urged in argument by the learned advocate for the plaintiff petitioner in this matter. In Section 2 of the Act it is provided:
In this Act, unless there is anything repugnant in the subject or context, -- 'non-agricultural tenant' means a tenant who holds under another person, and is liable to pay rent to such person for, non-agricultural land which, under the terms of any agreement, such tenant is entitled to use for any homestead or residential purpose or for the conduct thereon of any commercial of industrial enterprise or any trade or business, but does not include a tenant who so holds non-agricultural land together with any structure thereon erected or owned by the person under whom such tenant holds or by the superior or predecessor in interest of such person.
11. It has not been disputed in the present case that the tenancy was originally a non-agricultural tenancy. However, under the wording of the definition construed in its narrowest sense a non-agricultural tenant is 'a tenant who holds (note the present tense) under another person and is liable to pay rent to such person for non-agricultural land which, under the terms of any agreement....' Strictly construed, that would only apply to a tenant whose tenancy is still current under the terms of the agreement. It would not apply to a person who had been a tenant and whose tenancy has come to an end for some reason and who is still in possession of the premises. It is clear, however, that if the word 'tenant' is used to denote only a person whose tenancy agreement is current, he does not need the protection the Act has given to him, because he has his rights under his tenancy agreement. It is only when his tenancy agreement has come to an end and he no longer has his rights under it that he needs the protection which the Act has provided. It would appear, therefore, that the word 'tenant' is used not in its strict legal sense, but in its wider popular sense and includes not only the current tenant as set out in Section 2 but the ex-tenant remaining in occupation who formerly held in the manner described in Section 2 as non-agricultural tenant. That seems to be recognized by the proviso to Section 3 which is 'that every proceeding for delivery of possession in execution of a decree for ejectment, etc., shall be stayed'...on certain terms. When ejectment proceedings have reached the execution stage, a decree for possession has been passed against the tenant and the tenant has no longer his rights under the tenancy agreement.
12. For those reasons I am of the opinion that Rajdhari Pandey who was formerly a non-agricultural tenant of these premises was entitled to the protection that was given to him by the Munsif and the District Judge in this case. I am therefore of the opinion that this rule must be discharged. We make no order as to costs. Certificate under Section 205, Government of India Act, is granted.
Nasim Ali, J.
13. I agree.
R.C. Mitter, J.
14. I agree.