1. This appeal arises out of an application under Section 105,Bengal Tenancy Act, to settle fair rents of a number of holdings and relates to two of the holdings viz., Nos. 16 and 53. The landlord asked for an enhancement of the rent of these holdings under Sections 30(b), Bengal Tenancy-Act. With regard to both these holdings the lower Courts have held that as No. 16 is a homestead and No. 53 is a homestead and tank, they are not liable to enhancement under Section 30(6), Bengal Tenancy Act. The landlord has appealed. The tenant unfortunately, as the question is apparently one of first impression and also of some importance, has not appeared. The decision of the question would seem to depend on the wording of Section 30 and Section 182.
2. Reading Section 30 there seems nothing in the section to restrict it to the land actually used for cultivation. To attract the operation of the section it would seem to be sufficient that the land in question is a holding, held at a money rent by an occupancy raiyat. The land in question is clearly a holding Section 3(9).
3. Neither would Section 182 remove homestead lands from the operations of Section 30.
4. Section 182 provides that when a raiyat holds the homestead otherwise than as part of the holding as a raiyat the incidents of the tenancy of the homestead shall be regulated by local eustotriand usage and, subject to local custom or usage, by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. It would, no doubt, be open to the tenant to prove that the sent of homestead land by custom or local usage is not liable to be enhanced under Section 30(b), but failing the proof of any such custom or usage homestead land would come within the operation of Section 30(b). As to whether, in any particular case, an enhancement should be granted would depend on the circumstances of the case. The appeal must, therefore, succeed and the case be remitted to the Court of first instance to be decided on the merits.
5. The reasons assigned by the Courts below for refusing an enhancement of rent under Section 30(b) of the Tenancy Act are thus stated: the Revenue Officer after pointing out that the holdings in question consist respectively of homestead and a homestead and tank, observes: 'The lands of these holdings grew no agricultural crop. So no enhancement under Section 30(b) is allowed.' The learned Special Judge, in agreeing with this decision, says: 'The plaintiff is not entitled to enhancement under Section 30(b) in respect of serials 16 and 53 as they consist of homestead and homestead and tank respectively.' Now, nothing is Said about 'agricultural crops' in Sub-section 30(b) or in relation to it; and the reasoning of the Courts below cannot otherwise be supported. There is nothing in the wording of Section 30 which indicates that an enhancement under Sub-section (b) can only be made when the holding grows 'agricultural crops.' Such an enhancement tears no apparent relation to the use to which the particular holding is devoted. In this respect there is a clear distinction between Sub-section (b) and the sub-sections which follow, namely, (c) and (d), Where reference is made to the productive powers of 'the land' by which the land of the particular holding is apparently meant. An enhancement under Section 30(b) is made upon general grounds and its application does not, in my view, depend upon the use, agricultural or otherwise, to which the holding is put.
6. I agree, therefore, with the order proposed by my learned brother.