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Shiba Kali Kumar and ors. Vs. Chuni Lal Chatterjee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal748,103Ind.Cas.674
AppellantShiba Kali Kumar and ors.
RespondentChuni Lal Chatterjee
Cases ReferredJotiram Khan v. Jonaki Nath Ghose
Excerpt:
- .....that the land was not taken for an agricultural purpose and so it could not be governed by the bengal tenancy act. the findings on this point are conclusive. the land was obviously taken for the purpose of a garden which has been held to be an agricultural purpose,2. the next point taken is that the land is no longer governed by the bengal tenancy act, but by the transfer of property act; that it ceased to be governed by the bengal tenancy act, when act 1 of 1907, came into force and that the defendant's non-occupancy right was then extinguished. to support this part of his case, the appellant relies on section 19(1), bengal tenancy act as now amended by act 1 of 1907. his argument is that section 19(1), bengal tenancy act, preserves, so far as land which was excluded from the.....
Judgment:

Cuming, J.

1. (After stating facts the judgment proceeded.) It has first of all been argued that the land was not taken for an agricultural purpose and so it could not be governed by the Bengal Tenancy Act. The findings on this point are conclusive. The land was obviously taken for the purpose of a garden which has been held to be an agricultural purpose,

2. The next point taken is that the land is no longer governed by the Bengal Tenancy Act, but by the Transfer of Property Act; that it ceased to be governed by the Bengal Tenancy Act, when Act 1 of 1907, came into force and that the defendant's non-occupancy right was then extinguished. To support this part of his case, the appellant relies on Section 19(1), Bengal Tenancy Act as now amended by Act 1 of 1907. His argument is that Section 19(1), Bengal Tenancy Act, preserves, so far as land which was excluded from the operation of the Bengal Tenancy Act, by Act 1 of 1907, only the right of occupancy and that hence non-occupancy rights are destroyed by that section. He points out that Section 19(2) only preserves these rights in the case of lands which are excluded from the operation of the Bengal Tenancy Act, by Section 637, Calcutta Municipal Act and. reading the section as a whole contends that it was the intention of the legislature to destroy all rights excepting occupancy rights in the area excluded by Act. 1 of 1907 from the operation of the Bengal Tenancy Act. The sheet anchor of the respondent's case is the decision of Jotiram Khan v. Jonaki Nath Ghose [1914] 20 C.W.N. 253. Now it was held in Jotiram Khan v. Jonaki Nath Ghose [l914] 20 C.W.N. 253, that the status of a non-occupancy raiyat was not affected by the passing of the Bengal1 Tenancy Amendment Act (1 of 1907). The appellant contends that the decision is wrong and that the case should be referred to a Full Bench 'of this Court.

3. As far as can be seen the rights of a non-occupancy raiyat were created by the Bengal Tenancy Act of 1885 (Section 44 of that Act). Act 10 of 1859 certainly has no section corresponding to Section 44.

4. One Act is not to be considered to take away the rights and privileges conferred by a former Act unless it is quite clear from the provision that it does so. In amending Section 19, so far as the first part of the section is concerned, all that has been done is to insert the words 'or the Bengal Tenancy (Amendment) Act, 1907.'

5. No doubt the section does specifically mention that rights of occupancy are preserved. I do not think that we are entitled to draw the conclusion from that, that any other rights are deliberately destroyed. In enacting Act 8 of 1885 the enactors had no doubt in their mind the occupancy right which was the most, important right that the raiyat had, and they wished to make it clear beyond all controversy that this important right was preserved. So far as regards non-occupancy raiyats, Act 10 of 1859 seems to be silent except to provide that such raiyats were entitled to get a patta.

6. By the Tenancy Act of 1885 a number of rights were created and I think it is for that reason that in the second part of Section 19, viz., Section 19(2), which is a new enactment, the legislature speak of any right, obligation or liability. I see no reason to dissent from the case of Jotiram Khan v. Jonaki Nath Ghose [1914] 20 C.W.N. 253. The result is the appeal fails and is dismissed with costs.

Mallik, J.

7. (After stating facts the judgment proceeded.) The only question in controversy in the present appeal is whether the plaintiffs are entitled to a decree for ejectment. The answer to this question will depend on the status of the defendant and on the rights acquired by him.

8. The first contention before us was that the defendant was not a tenant under the Bengal Tenancy Act. I do not think that this contention can Be entertained for a moment. There is a concurrent finding of the two lower Courts that the-land was leased out for horticultural purposes, and it is settled law that a tenant who takes a lease of land for horticultural purposes is a raiyat under the Bengal Tenancy Act. There is no doubt, therefore, that the defendant was a raiyat within the meaning of the Bengal Tenancy Act when he held the land in question and there is no doubt either that, as a raiyat under the Bengal Tenancy Act, he acquired certain rights in respect of the holding one of which was the right not to be ejected therefrom except under the provisions of Section 45 of the Act which requires six months notice.

9. It appears that the land lies in Entally and is, and has been so from before 1899, within the limits of the Calcutta Municipality. The defendant came into possession of the land on executing a kabuliyat for three years on the 9th September 1904, but before the term of the kabuliyat expired the Bengal Tenancy Amendment Act (Act 1 of 1907) came into force. It was contended that the result of this amending Act by which Entally ceased to be subject to the operation of the Bengal Tenancy Act, was the extinction of the right to six months notice a right which the defendant had acquired before Act 1 of 1907 came into force. The question then for consideration is whether Act 1 of 1907 could and did extinguish the rights which a non-occupancy raiyat like the defendant had previously acquired in his holding. Dr. Basak contended that it did extinguish such rights and his argument was that as neither the Bengal Tenancy Act of 1885, nor the amending Act of 1907, safeguarded the rights of a non-occupancy raiyat as it did in the case of a raiyat having rights of occupancy, the Acts by implication extinguished the rights of a non-occupancy raiyat, and in support of this contention he invoked the aid of the legal maxim expressio unius est exclusio alterius. This argument will not, in my opinion, bear a close scrutiny. There is no doubt the doctrine of expressio unius est exclusio alterius; but great caution is necessary in applying this maxim which is not of universal application. Then to hold that Act 1 of 1907 by repealing Section 45, Bengal Tenancy Act extinguished the right which had been acquired under that section would be to give the Act a retrospective effect. But it is a well established principle of law that retrospective effect ought not to be given to a statute unless an intention to that effect is expressed in plain and unambiguous language. Then Section 6, General Clauses Act (Act 10 of 1897) lays down that when an Act of the Governor-General in Council repeals any enactment, then unless a different intention appears, the repeal shall not affect any rights acquired under the enactment so repealed. If a repealing Act of the Governor-General in Council cannot extinguish such a right, much less can an amending Act of the Bengal Council, like Act 1 of 1907, unless of course the amending Act is a declaratory Act. But Act 1 of 1907 as has been held in the case of Jotiram Khan v. Jonaki Nath Ghose [1914] 20 C.W.N. 253, is not an Act of a declaratory character. The conclusion, therefore, is that Act 1 of 1907 did not extinguish the rights of a non-occupancy raiyat which had been previously acquired by him.

10. Then as I read the Bengal Tenancy Act of 1835 and the amending Act 1 of 1907, the rights of non-occupancy raiyats were actually safeg larded by them when there were any such rights to be saved. It is true that in Act 8 of 1885 there was only Section 19 to save the rights of occupancy raiyats and there was no provision of any kind to save the rights of non-occupancy raiyats. But that was evidently, because there were hardly any rights of a raiyat other than an occupancy raiyat which can be said to have been acquired under Act 10 of 1859 and before the enactment of Act 8 of 1885. It was after the enactment of Act 8 of 1885 that such rights of non-occupancy raiyats began to accrue; and as I read the law these rights were actually saved when the Bengal Tenancy Act, came to be amended by Act 1 of 1907. Section 19(2), Bengal Tenancy Act, was added by this amending Act; and Section 19(2) provides that the inclusion of any area within the town of Calcutta shall not affect any rights (including rights of non-occupancy raiyats) acquired previously to such inclusion.

11. It was said that Section 19(2) does not contemplate the case of inclusion of areas under Act 1 of 1907, but only those which were made under Section 637, Calcutta Municipal Act 1899. This view is in my opinion clearly erroneous. Section 637 provided for the inclusion of areas within the limits of the Calcutta Municipality. It could not, taken by itself, include any area within the town of Calcutta. Such an inclusion could be made only under Act 1 of 1907. I am, therefore, of opinion that Act 1 of 1907, by enacting Section 19(2), Bengal Tenancy Act, did safeguard the rights of non-occupancy raiyats which they had acquired in lands previous to their inclusion within the town of Calcutta. As the defendant in the present case had before the enactment of Act 1 of 1907 acquired the right not to be evicted except under the provisions of Section 45, Bengal Tenancy Act and on six months notice, he was no liable to be ejected on the notice that was found to have been served on him. The result, therefore, is that the appeal fails and it is dismissed with costs.


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