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Sree Sreejut Maharaja Sir Bir Bikram Kishore Manikya Bahadur Vs. Tafazzal HossaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1942Cal587
AppellantSree Sreejut Maharaja Sir Bir Bikram Kishore Manikya Bahadur
RespondentTafazzal HossaIn and ors.
Cases ReferredSatish Chandra Bandopadhya v. Bishnupada Pal
Excerpt:
- sen, j.1. the appellant obtained a decree for arrears of rent against the respondents and in execution thereof sought to attach and sell their properties moveable and immovable other than the land which was in arrears. that land had already been sold in execution. the judgment debtors contended that by reason of the provisions of section 168a, ben. ten. act, no property other than the land in arrears was liable to be sold in execution of this decree for arrears of rent. this contention was given effect to by both the courts below and the execution case was dismissed. the decree-holder appeals. several arguments were raised in the courts below by the appellant but here he gives up all his contentions except one: and that is that section 168a, ben. ten. act, to the extent that it limits.....
Judgment:

Sen, J.

1. The appellant obtained a decree for arrears of rent against the respondents and in execution thereof sought to attach and sell their properties moveable and immovable other than the land which was in arrears. That land had already been sold in execution. The judgment debtors contended that by reason of the provisions of Section 168A, Ben. Ten. Act, no property other than the land in arrears was liable to be sold in execution of this decree for arrears of rent. This contention was given effect to by both the Courts below and the execution case was dismissed. The decree-holder appeals. Several arguments were raised in the Courts below by the appellant but here he gives up all his contentions except one: and that is that Section 168A, Ben. Ten. Act, to the extent that it limits sales in execution of decrees for rent to the property in arrears is void, inasmuch as, it is repugnant to Section 51, Civil P.C., which says that a decree may be executed by the sale and attachment of any property of the judgment-debtor. Reliance is placed on Section 107, Government of India Act, the relevant portions of which are in these terms:

107. (1) If any provision of a Provincial law is repugnant to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

(2) Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provisions repugnant to the provisions of an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter.

2. There can be no doubt that Section 168A is a provision of a Provincial law. It has been enacted by the Provincial Legislature established under the Government of India Act : vide Section 811. There can also be no doubt that the Civil Procedure Code is an existing Indian law inasmuch as it is a law made before the commencement of Part 3, Government of India Act, by a Legislature having power to make such law : vide Section 311. Further, it is a law relating to a matter enumerated in the Concurrent list being item 4 (Civil Procedure) of that list. Lastly, it is a fact that no assent of the Governor-General or of His Majesty the King has been received for the enactment of Section 168A, Ben. Ten. Act. If therefore Section 168A, Ben. Ten. Act, is repugnant to the Civil Procedure Code then it must be void to the extent to which it is so repugnant. The question for determination therefore is whether it is repugnant. In my opinion it is not. True, Section 168A, Ben. Ten. Act, differs from Section 51, Civil P.C. Section 168A, Ben. Ten. Act, prohibits the sale, in execution of a decree for arrears of rent, of any property of the judgment, debtor other than the land in arrears, whereas Section 51, Civil P.C., states that a decree may be executed by the sale of any property belonging to the judgment debtor. But diversity and repugnancy are not the same thing. Repugnancy implies a conflict. Two provisions of the law may be diverse or dissimilar but nevertheless there may be no conflict between them. Conflict arises when two diverse elements meet in seeking to occupy the same field. Where they do not meet there is no conflict. I shall endeavour to show that there is no conflict between Section 168A, Ben. Ten. Act, and Section 51, Civil P.C., because these two diverse provisions occupy different fields. Section 168A, Ben. Ten. Act, does not touch the Code of Civil Procedure at all. It is a provision of the Bengal Tenancy Act and it seeks to alter the procedure laid down that Act. No doubt, most of the provisions of the Code of Civil Procedure have been incorporated in the Bengal Tenancy Act but it is quite clear that the Civil Procedure Code, as such, does not apply to the Bengal Tenancy Act ex proprio vigore. The Bengal Tenancy Act provides its own procedure. Chapter 13 of that Act deals generally with the judicial procedure to be followed in suits between landlords and tenants as such and Chap. 14, in which Section 168A appears, deals specifically with sales in execution of decrees for arrears of rent. Section 143 which is the first section in Chap. 13 says this:

143. (1) The High Court may, from time to time, with the approval of the Provincial Government, make rules, consistent with this Act, declaring that any portions of the Code of Civil Procedure, 1908, shall not apply to suits between landlord and tenant as such or to any specified classes of such suits, or shall apply to them subject to modifications specified in the rules. (2) Subject to any rules so made, and subject also to the other provisions of this Act, the Code of Civil Procedure, 1908, shall apply to all such suits.

3. As I interpret this section it lays down in general terms the judicial procedure to be followed in suits under the Bengal Tenancy Act between landlords and tenants as such; in doing so it says that the procedure shall be the same as that laid down in those provisions and those provisions only of the Code as have been made applicable to suits between landlords and tenants as such by the Bengal Tenancy Act itself or by the rules made thereunder. To me it is quite clear that the Bengal Tenancy Act provides its own special procedure although most of it has been borrowed from the Code of Civil Procedure. Section 168A is merely an item of that special procedure and does not in any way encroach upon the domain in which Section 51, Civil P.C., functions. The two sections do not meet and so they cannot be in conflict. There is accordingly no repugnancy. The view that I have taken is supported by the provisions of Section 4, Civil P.C., the relevant portion of which is in these terms:

(1) 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.

4. Under this section, not only is any special law existing at the time of enactment of the Code left unaffected, but the section goes on to say that any special form of procedure that may be prescribed by any other law for the time being in force will also not be affected by the Code. In other words, if a subsequent law lays down any special form of procedure such special procedure will not be affected by the Code of Civil Procedure. Now, as I have said before, Chaps. 18. and 14, Ben. Ten. Act, lay down a special form of procedure. That procedure therefore is unaffected by the Code of Civil Procedure. There can consequently be no conflict or repugnancy between any provision of the Code of Civil Procedure and Section 168A, Ben. Ten. Act, which is a section dealing with the special form of procedure under the Bengal Tenancy Act. It was argued, though faintly, that Section 168A was repugnant to the Bengal Tenancy Act as it stood at the time of amendment and therefore it must be held to be void to the extent of its repugnancy inasmuch as the Bengal Tenancy Act is itself an existing Indian law. This argument, however, cannot be supported. Section 107, Government of India Act, says that the provisions of a Provincial law will be void if it is repugnant to a provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent List. Now the Bengal Tenancy Act is not a law with respect to a matter enumerated in the Concurrent List; it is a law with respect to Item 21, Provincial Legislative List, which is in these terms:

21. Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization, Court of Wards; encumbered and attached estates; treasure trove.

6. The words 'law with respect to a matter' cannot reasonably mean the substantive law only relating to that matter. The word 'law' embraces both substantive and procedural law and a 'law with respect to a matter' would include the special procedural law, if any, relating to that matter. I am not unmindful of the fact that 'civil procedure' is an item in the Concurrent list being Item 4 of List III Part 1. But there 'civil procedure' is used in a general sense as the procedure applicable to litigation generally; it does not include a special law of procedure which is applicable only to litigation regarding a special matter. The Bengal Tenancy Act when it deals with procedure does not deal with civil procedure generally but it deals with the procedural law applicable to a special class of suits dealing with matters included in Item 21 of the Provincial List. Therefore even when it deals with procedure it is not an existing Indian law with respect to a matter enumerated in the Concurrent list but it is a law with respect to a matter in the Provincial list. Section 168A although it alters the existing Bengal Tenancy Act in respect of sales in execution of decrees for arrears of rent cannot therefore be said to be repugnant to the provisions of an existing Indian law with respect to any matter enumerated in the Concurrent list. This question came up for decision in two cases viz. Satish Chandra Hui v. Sudhir Krishna Ghose : AIR1942Cal429 and Satish Chandra Bandopadhya v. Bishnupada Pal : AIR1942Cal470 where it was held that Section 168A, Ben. Ten. Act, is valid law. I respectfully agree with those decisions for the reasons stated above. The appeal is accordingly dismissed; there will be no order as to costs. A certificate under Section 205, Government of India Act, is granted.

Pal, J.

7. I agree that this appeal should be dismissed. The only point urged in this appeal is that Section 168A, Ben. Ten. Act, in so far as it lays down that 'a decree for arrears of rant...shall not be executed by the attachment and sale of any moveable or immovable property other than the entire tenure or holding to which the decree...relates', is void to that extent under Section 107(1), Government of India Act, 1935. Section 107 (1), Government of India Act, provides as follows:

If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void.

'Provincial law' is defined by Section 311 of the Act thus:

'Provincial Act' and 'Provincial law' mean, subject to the provisions of this section an Act passed or law made by a Provincial Legislature established under this Act.

8. Section 168A, Ben. Ten. Act is 'a Provincial law' or 'a provision of a Provincial law', it having been inserted in the Bengal Tenancy Act by Act 18 of 1940, passed by the Bengal Provincial Legislature established under the Government of India Act, 1935. The expression 'existing Indian law' is defined by the same section thus:

'Existing Indian law' means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of Part 3 of this Act by any Legislature, authority or person in any territories for the time being comprised in British India, being a Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation'.

9. Dr. Sen Gupta contends that 'the existing Indian law' in question here is: (1) Section 51, Civil P.C., as it is; or (2) Section 51, Civil P.C., as adopted by the Bengal Tenancy Act Section 143 (2) ; or (3) the law wherever to be found giving the decree-holder a right to execute his decree against all the properties of the judgment-debtor.

10. Admittedly, the Bengal Act 18 of 1940, which enacted Section 168A, Ben. Ten. Act, was not passed following the procedure laid down in Section 107 (2), Government of India Act. If therefore, the provision in the Provincial law in question and the provision in the existing Indian law in question satisfy the requirements of Section 107 (1), Government of India Act, and if there be repugnancy between the two provisions in any extent the Provincial law will be void to the extent of the repugnancy. Beading the Section 107 (1) Government of India Act 1935 by itself there is some difficulty in seeing the exact bearing of the words 'with respect to one of the matters enumerated in the Concurrent Legislative List'. As the section stands, these words maybe taken with(1) 'an existing law' or (2) any provision of an existing Indian law or (3) 'repugnant'. In Sub-section (2) of the Section, however, these words are taken with ' a Provincial law' and 'an existing Indian law'. The Sub-section runs thus:

Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian law with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter.

11. According to this Sub-section, the Provincial law in question must itself be 'with respect to one of the matters enumerated in the Concurrent Legislative List,' and the existing Indian law must also be with respect to that matter. The repugnant provisions need only be contained in such 'Provincial law' and 'the existing Indian law;' and beyond being contained in them these provisions themselves are not required by the Sub-section to be 'with respect to' any particular matter, Taking the two subsections together it appears to me that the following possible sets of requirements might have been within the contemplation of the section:

1.(a) the Provincial law must be with respect to one of the matters enumerated in the Concurrent list; (b) the existing Indian law must also be with respect to the same matter; (c) a provision in (a) must be repugnant to a provision in (b); (i) these provisions themselves are not required to be with respect to any particular matter; or (ii) these provisions must also be with respect to one of the matters enumerated in the Concurrent Legislative List;

2. (a) the Provincial law need not be with respect to one of the matters enumerated in the Concurrent List; (b) the existing Indian law must be with respect to one of the matters enumerated in the concurrent list; (c) a provision in (a) must be repugnant to a provision in (b); (i) these provisions themselves are not required to be with respect to any particular matter; or (ii) these provisions must be with respect to one of the matters enumerated in the Concurrent Legislative List or (iii) the provision in the existing Indian law must be with respect to one of the matters enumerated in the Concurrent Legislative List, the provision in the Provincial law is not required to be with respect to any such matter;

3. (a) the Provincial law is not required to be with respect to any of the matters enumerated in the Concurrent Legislative List; (b) the existing Indian law also is not required to be with respect to any of the matters enumerated in the Concurrent Legislative List; (c) a provision in (a) must be repugnant to a provision in (b), the repugnancy being with respect to one of the matters enumerated in the Concurrent Legislative List. This can happen only when the provisions are with respect to the same matter and that matter is one of those enumerated in the Concurrent Legislative List.

12. It should be noticed here that the expressions 'Provincial law' and 'existing Indian law' do not necessarily mean and refer to any entire statute. Any provision of a 'Provincial Act' or of a 'Provincial law' will also be a Provincial law. Similarly, a provision of an existing Indian law will also be 'an existing Indian law.' In the above analysis, however, we have kept them distinct, in view of a particular contention raised by the learned advocate for the appellant, as will appear later. In my opinion the two Sub-sections must be read together. In order to fall within the mischief of Section 107 (1), Government of India Act, 1935, both the Provincial law and the existing Indian law must be with respect to the same matter and that matter must be 'one of the matters enumerated in the Concurrent Legislative List'. Sub-section (1) declares a provision to be void 'subject to the provisions of this section'. The invalidity imposed by Sub-section (1) will not attach to the provision if the Provincial law in question is passed in the manner contemplated by Sub-section (2). In my opinion, therefore, only that kind of the Provincial law is contemplated by Sub-section (1) as is covered by Sub-section (2). Sub-section (2) clearly contemplates only a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List. The Provincial law in question in the present case is a provision contained in the Bengal Council Act 18 of 1940. The question, therefore, is whether this Act can be said to be 'with respect to one of the matters enumerated in the Concurrent Legislative List.' In Satish Chandra Hui v. Sudhir Krishna Ghose : AIR1942Cal429 a Division Bench of this Court, of which I was a member, observed that this enactment in pith and substance was one with respect to 'land-tenure' and consequently with respect to item 21 of the matters enumerated in the Provincial legislative list. I see no reason to differ from the view which we took in this respect in that case.

13. It is contended on behalf of the appellant that as every provision in this Act is 'a Provincial law' as defined by the Government of India Act, 1935, we are to see not the pith and substance of the entire enactment, but the matter for legislation in the particular provision. Here it is contended, the particular provision is Section 168A, Ben, Ten. Act, and the subject-matter for legislation in this particular section is 'a matter included in the Code of Civil Procedure' in 1935--is the matter included in Section 51, Civil P.C. This is item 4 of the Concurrent Legislative List. Consequently, it is contended that Section 168A, Ben. Ten. Act, is 'a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List, or is 'a provision of a Provincial law' with respect to one of the matters enumerated in the Concurrent Legislative List, within the meaning of Section 107, Government of India Act, 1935.' I am unable to accept this contention. In my opinion, it is opposed to the very doctrine of 'pith and substance.' In order to see 'with respect to' what matter the Legislature is exercising its legislative function we are to look to the substance of the entire subject matter for legislation and not to every detailed provision severed from the context. It is further contended that item 21, Provincial Legislative List, does not cover the matter provided for by Section 168A, Ben. Ten. Act. The relevant portion of item 21, Provincial Legislative List stands thus : 'land, that is to say, rights in or over land, land tenure, including the relation of landlord and tenant, and the collection of rents....'

14. Dr. Sen Gupta contends that these words comprehend only the substantive rights and liabilities relating to land and land tenure and do not cover any remedial provisions in relation to such rights and liabilities. According to him the use of the word 'collection' in the item is significantly narrow and it does not comprehend even 'recovery' of rent. He refers to item 2 of the List in order to show that the matter of jurisdiction and powers of Courts with respect to any of the matters in this List was kept as a distinct subject-matter so as to indicate that the other items in the List could not cover such matters even incidentally. Dr. Sen Gupta then contends that even item 2 is not comprehensive enough to cover the matter dealt with in Section 168A, Ben. Ten. Act. According to him it is only item 4 of the Concurrent Legislative List which embraces the provisions contained in this section. In my opinion, the words in item 21 of the Provincial list are comprehensive enough to cover the remedial as well as the procedural provisions concerning the reliefs in respect of the rights and liabilities admittedly covered by the item. The law relating to landlord and tenant has always been understood to be comprehensive enough to include such matters. The Bengal Tenancy Act, for example, which professes to give the law relating to landlord and tenant, contains provisions like its Sections 143, 148, Chap. 14. The matter, I believe, has been set at rest by the Federal Court in United Provinces v. Atiqa Begum .

15. The same case is also an authority for saying that the words 'collection of rent' are comprehensive enough to include 'the recovery' thereof, and that it will be within the competence of the Legislature to make incidental remedial provisions while legislating with respect to land, land-tenure, the relation of landlord and tenant, and the collection of rent. Provisions in curtailment of the decree-holder's right to execute his decree for arrears of rent were not unknown even before this Section 168A, Ben. Ten. Act, and such provisions were always made in statutes relating to the matters enumerated in item 21 of the Provincial list. Section 148 (o), Ben. Ten. Act, may be referred to as an instance of such a provision. The Provincial law in question in the present case was not, therefore, with respect to one of the matters enumerated in the Concurrent Legislative List and consequently the special procedure laid down in Section 107 (2), Government of India Act, was not at all called for in its case. As I have stated above, 'the Provincial law' in Sub-section (1) of Section 107 also must be 'with respect to one of the matters enumerated in the Concurrent Legislative List. The Provincial law in question in the present case not being with respect to such a matter the law does not at all come within the mischief of Section 107 (1), Government of India Act, 1935, and consequently no provision of it can be void under that section.

16. In the above view it is unnecessary to enquire which is the rival existing Indian law and whether there is any repugnancy between its provision and the provisions contained in Section 168A, Ben. Ten. Act. Dr. Sen Gupta himself contends in the alternative that Section 51, Civil P.C., was not by its own operation the law in the field. It was Section 51, Civil P.C., as adapted by Section 143 (2), Ben. Ten. Act, for the purposes of the suits between landlord and tenant. If so, then even this provision as contained in the Bengal Tenancy Act will, in pith and substance, be a part of the law relating to landlord and tenant. In such a case even the provision of the existing Indian law will not be 'with respect to one of the matters enumerated in the Concurrent Legislative List' within the meaning of Section 107, Government of India Act, 1935. Whether the Provincial law need or need not be with respect to one of the matters enumerated in the Concurrent Legislative List, there can be no doubt that the rival provision of the existing Indian law must be with respect to such a matter. If the existing Indian law be taken to be the law, wherever to be found, giving the decree-holder a right to execute his decree against all the properties of the judgment-debtor, then again it is not 'with respect to one of the matters enumerated in the Concurrent Legislative List.' This right treated as a right of the decree-holder is certainly not a matter of jurisdiction and powers of Courts. Dr. Sen Gupta contends that such a right was also a matter included in the Code of Civil Procedure at the date of the passing of the Government of India Act, 1935, and therefore, is covered by item 4 of the Concurrent Legislative List. Dr. Sen Gupta points out Section 51 of the Code as providing for this right. The right of the decree-holder is the result of the jural relation constituted by the decree itself. A new right in personam in favour of the decree-holder arises out of this jural relation and the legal advantages of the dominus (the decree-holder) involved in this right are available against the personality of the servus (the judgment-debtor). This personality extends over portions of the physical world over which the power of the person is extended. This is how the property belonging to the judgment-debtor becomes available to the decree-holder for the realization of the judgment-debt. The provisions in the Civil Procedure Code do not create this right or its attendant advantages. These either only limit this right or the legal advantages by withdrawing some of the properties from their extent or only prescribe the mode of realization of this right or these advantages.

17. It was pointed out in Satish Chandra Hui v. Sudhir Krishna Ghose : AIR1942Cal429 and Satish Chandra Bandopadhya v. Bishnupada Pal : AIR1942Cal470 , that the provision in Section 51, Civil P.C., did not contain the law giving such a right. It simply gives the procedure in execution and enumerates in general terms the various ways in which the Court may order execution of a decree. Assuming now that in order to attract the Operation of Section 107 (1), Government of India Act, 'the Provincial law' need not be with respect to any of the matters enumerated in the Concurrent Legislative List, or that the words 'with respect to' do not refer to the pith and substance of the entire legislation but mean and refer to the matter that is being dealt with in the particular provision, then the provision contained in Section 168A (1), Ben. Ten. Act, is in apparent rivalry with the provisions contained in Sections 51 and 60, Civil P.C. The question is whether there is any repugnancy between the provisions. In Satish Chandra Hui v. Sudhir Krishna Ghose : AIR1942Cal429 it was held by a Division Bench of this Court, of which I was a member, that between Sections 51 and 60, Civil P.C., on the one hand and Section 168A(1), Bengal Tenancy Act, on the other, there was no repugnancy and that accordingly Section 168A (1), Bengal Tenancy Act, though a Provincial law not assented to by the Governor-General or His Majesty, was not rendered void by Section 107(1), Government of India Act. The same view was taken by another Division Bench in Satish Chandra Bandopadhya v. Bishnupada Pal : AIR1942Cal470 .

18. I see no reason to differ from the view taken in those cases. Dr. Sen Gupta contends that even assuming that Section 168A, Bengal Tenancy Act, purports only to deal with matters of jurisdiction or power of Courts, or with matters of procedure, its provisions do not amount to conferring 'any special jurisdiction or power' or prescribing any special form of procedure within the meaning of Section 4, Civil P.C., and consequently the repugnancy shall not be withdrawn by the automatic operation of that section. His contention is that Section 168A (1) does not at all confer any power; on the other hand, it curtails the existing power of the Court. In my opinion, even without the help of Section 4, Civil P.C., there will be no repugnancy between the provision contained in Section 168A (1) Bengal Tenancy Act, and that in Section 51, Civil P.C. The one test of such repugnancy is to see if the two can co-exist even without the assistance of Section 4, Civil P.C. In my opinion they can. Some of the recognised rules of construction of the statutes are : (1) Generalia specialibus non derogant--General things do not derogate from special; (2) Generate tenturn valet in generalibus quantum singulare in singulis--What is general prevails as much amongst things general as what is particular amongst things particular.

19. Had there been these two apparently rival provisions in the field, the general provision of the Code of Civil Procedure would have withdrawn itself, (even without its provision in Section 4, but by reason of these rules of construction), from the particular portion of the field and would have given space to the particular or the special provision contained in Section 168A, Bengal Tenancy Act, designed to cover only the particular field of jural relations relating to land, land tenure, etc In my judgment therefore, Section 168A, Bengal Tenancy Act, is a valid piece of legislation and is not void to any extent. The case certainly involves a question as to the interpretation of Section 107, Government of India Act, 1935, and, in our opinion, it is a question of law and is a substantial question. We accordingly certify, as required by Section 205 (1) of the Act, that it involves a substantial question of law as to the interpretation of the Government of India Act, 1935.


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