Nathia Agarwalla & ANR Vs. Musst.
Jahanara Begum & Ors  INSC 77 (15 March 1966)
15/03/1966 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1967 AIR 92 1966 SCR (3) 926
F 1990 SC 879 (7)
Assam Non-Agricultural Urban Areas Tenancy Act,
1955, s. 5(1) (a)--protection to tenants against ejectment-whether available
where decree for ejectment already obtained.
A decree for ejectment was passed against the
appellants in November 1950 in a suit filed against them by the respondents and
was later confirmed by the High Court. The execution proceedings began in
August 1954 and were pending when the Assam Non-Agricultural Urban Areas
Tenancy Act 1955 came into force from June 26, 1955. The appellants there- upon
claimed the benefit of s. 5(1) (a) of the Act (which grants protection from
eviction to tenants under certain circumstances) on the ground that the
protection of Section 5 was available not only in pending suits and appeals but
also in pending execution cases, This claim was rejected by the execution Court
and an appeal to the High Court was also dismissed.
On appeal to this Court,
HELD: The protection under Section 5(1) (a)
was not available where a decree in ejectment had already been obtained.
Section 5(1) begins by stating
"notwithstanding anything in any contract or in any law for the time being
in force but it does not include decrees for ejectment already obtained, in the
Clause (a) of Section 5(1) protects tenants
of land from ejectment by the landlord in those cases in which the tenant
entitled to build on ,the land under his contract has actually built a
permanent structure within five years from the date of his contract, or has
without such right built with the knowledge and acquiescence of the landlord.
Such tenant may not be ejected except for non-payment of rent.
Clause (a) applies alike to contracts made
before or after the commencement of the Act but as it intends to operate on the
rights of the landlord, rights already enforced and determined cannot be said
to be involved and the clause must contemplate a suit and not execution
The fact that Section 14 of the Sylhet
Non-Agricultural Urban Areas Tenancy Act 1947 repealed by the 1955 Act and
Section 6(1) of both Assam Act 13 of 1949 and Assam Act 3 of 1946 provided
specially for execution proceedings clearly shows that where the Assam
Legislature wished it included execution proceedings within the protection.
Suresh Chandra Datta v. Ashutosh Dutta and
1960 Assam 24, referred to.
Comparing statute of different states is not
to be commended because similarity or variation in the laws of different States
is not necessarily indicative of a kindred or a changed intention. Enactments
drafted by different hands, at different times and to satisfy different
requirements of a local character. seldom afford tangible or sure aid in
construction. [929 E-F; 930 E; 931 B-D] 927
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 893 of 1963 Appeal by special leave from the judgment and order dated
August 14, 1959 of the Assam High Court in Appeal from Original Order No. 21 of
M. C. Setalvad, B. P. Maheshwari and M. S.
Narasimhan, for the appellants.
B. Sen, and P. K. Ghosh, for the respondents.
The Judgment of the Court was delivered by
Hidaytullah J. This is an appeal by special leave against an order of the High
Court of Assam dated August 14, 1959 re- jecting summarily an appeal in an
execution case. The appellants against whom the decree for ejectment is being
executed are the widow and son of one Maliram Agarwala whose father Arjun Das
had taken on lease the suit land from one Mohd. Soleman,
predecessor-in-interest of the respondents.
The decree was passed as far back as November
28, 1950 in a title suit filed against the appellants and was later confirmed
by the High Court.
The present execution began on August 16,
1954 and was pending in the court of the Subordinate Judge, L.A.D., Gauhati
when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act 12 of
1955) came into force from June 26, 1955. The appellants thereupon claimed the
benefit of s. 5 of the Act which grants protection from eviction to tenants,
under certain circumstances. The execution Court heard arguments and on
November 12, 1957 held that the protection of s. 5 was available not only in
pending suits and appeals but also in pending execution cases. In reaching this
conclusion the learned Judge followed a decision of the Assam High Court
reported in Harsukh Saraqgi & Anr. v. Mashulal Khemani & Anr(1) and of
the Calcutta High Court in Habiba Bibi and others v. Ram Ranjan Mullick and
others(2) He accordingly fixed the case for evidence to find out if there
existed facts necessary for the application of s. 5 of the Act. Subsequently,
the Presiding Judge having changed, the point was reopened on June 6, 1959 by
the successor Judge. That learned Judge following a later decision of the Assam
High Court (since reported in Suresh Chandra Datta v. Ashutosh Dutta and
others)(3) held that s. 5(1)(a) was not applicable to execution proceedings and
the pending execution must proceed according to law. The only question in this
case is whether the provisions of s. 5(1)(a) of the Tenancy Act apply to
pending execution proceedings.
The Act was passed "to regulate in
certain respects the relationship between landlord and tenant in respect of
non- agricultural (1) A.I.R. 1957 Assam 22. (2) A.I.R. 1937 Cal 207.
(3) A.I.R. 1960 Assam 24.
928 land in urban areas of the State of
Assam." It consists of 14 sections. Section 5, with which we are primarily
concerned, may be read in full. It reads :
"5. Protection from eviction- (1)
Notwithstanding anything in any contract or in any law for the time being in
force- (a) where under the terms of a contract entered into between a landlord
and his tenant whether before or after the commencement of this Act, a tenant
is entitled to build, and has in pursuance of such terms actually built within
the period of five years from the date of such, contract, a permanent structure
on the land of the tenancy for residential or business purposes, or where a
tenant not being so entitled to build, has actually built any such structure on
the land of the tenancy for any of the purposes aforesaid with the knowledge
and acquiescence of the landlord, the tenant shall not be ejected by the
landlord from the tenancy except on the ground of non-payment of rent;
(b) where a tenant has effected improvements
on the land of the tenancy under the terms whereof he is not entitled to effect
such improvements, the tenant shall not be ejected by the landlord from the
land of the tenancy unless compensation for reasonable improvements has been
paid to the tenant.
(2) No tenant shall be ejected by his
landlord from the land of the tenancy except in execution of a decree for
ejectment passed by a competent civil court.
(3) No decree for ejectment passed on the
ground of non-payment of rent shall be executed within a period of thirty days from
the date of the decree and if the tenant pays into the Court whose duty it is
to execute the decree the entire amount payable under the decree within the
aforesaid period, the Court shall record the decree as satisfied." The
remaining sections may be shortly noticed before we proceed to construe s. 5.
The first three sections contain respectively the short title, the extent of
application and the definitions of terms in the Act. Section 4 puts an
obligation upon a tenant to pay rent for his holding at fair and equitable
rates. Section 6 lays down how compensation for improvements in a suit for
ejectment against a tenant is to be calculated and includes within improve- 929
ments structures, which the tenant entitled to build has actually built after
the expiry of the period of five years referred to in cl. (a) of sub-s. (1) of
s. 5. Sections 7, 8 and 9 deal with the question of enhancement of rent from
different points of view. Section 10 prohibits the realisation of any
"salami". Section II provides that no suit for ejectment, except for
arrears of rent, shall be in- stituted until after the expiration of one month
from the date of the receipt of by the tenant of a notice in writing by the
landlord requiring the tenant to surrender possession of the land in favour of
the landlord. Section 12 shows how the notices have to be served and s. 13
gives the power to make rules. By s. 14, the Sylhet Non-Agricultural Urban
Areas Tenancy Act, 1917, (Assam Act 10 of 1947) was repealed.
The only question in this appeal is whether
s. 5(1)(a) of the Act, which we have reproduced above, applies to execution
cases in respect of decrees for ejectment granted before the coming into force
of the Tenancy Act. The answer to this question will determine which of the two
orders passed by the respective presiding Judges was right.
Two methods of approach were adopted by
counsel in this appeal. One was to construe the words of the fifth section
taken by themselves or in comparison with those employed in other Acts of the
Assam Legislature. The second was to compare and contrat s. 5 of the Assam Act
with enactments In rent control Acts of other States. The second method,
althoug sometimes instructive, is not to be commended because similarity or
variation in the laws of different States is not necessarily indicative of a
kindred or a change intention. Enactments drafted by different hands, at
different times and to satisfy different requirements of a local character,
seldom afford tangible or sure aid in construction. We would, therefore, put
aside the Rent Control Acts of Madras, Bihar, Delhi and other States, because
in these States the problem of accommodation in relation to the availability of
lands and houses and the prior legislative history and experience, cannot be
same as in Assam. We shall however, refer to other Rent Control Acts of the
Assam Legislature because they do not suffer from this weakness and may throw
some light on how the legislature was accustomed to view such matters. But
before we do so we shall consider s. 5 taken by itself.
The section consists of three sub-sections
and it is helpful to view the provisions backwards, that is, from the last
subsection to the first. The third sub-section deals with decree of ejectment
passed on the ground of nonpayment of rent. It affords a last chance to the
tenant to retain the land of his tenancy by making such a decree unexecutable
for a period of 30 days from its date so that the tenant may, if he cares,
deposit 930 the amount of the decree in the court which will execute that
decree. On the tenant so paying, the decree is recorded as satisfied. This
sub-section must apply to all executions which come within its terms because of
the clear language "no decree for ejectment shall be executed" and
"the Court shall record the decree as satisfied". These are
peremptory words and they do not admit of any exception.
All decrees for ejectment in which thirty
days' time had not passed were affected but, it is clear, that decrees which
did not come within the terms of the sub-section remained executable.
We may now examine the second sub-section
which also takes away some rights of landlords but leaves them free to execute
decrees other than those on which the section places an embargo. That
sub-section provides that no tenant shall be ejected by his landlord from the
land of his tenancy except in execution of a decree for ejectment passed by a
competent civil court. Although this sub-section takes away the right of
ejectment in other ways, if any, it recognises that ejectment is possible
provided there is a decree of a competent civil court.
We may now consider the first sub-section.
Certain matters appear on its face the sub-section does not speak of an
ejectment decree, but of the right of the landlord to eject his tenant. It begins
by stating "notwithstanding anything in any contract or in any law for the
time being in force" but it does not include decrees for ejectment already
obtained, in the non-obstante clause. Such decrees could have easily been
named, to include them within the protective provisions, but they were not. The
operative parts of the sub-section protect tenants under two circumstances
which are mentioned as (a) and (b). Taking (b) first : if the tenant effects
improvements on the land which he is not entitled to effect, the landlord may
not eject him unless he pays reasonable compensation. Who will assess the
compensation is laid down in s. 6 but that section specifically mentions a suit
for ejectment and not execution proceeding. All this seems to suggest that s. 5
(1) (b) is intended to operate on rights of the landlord which are being
enforced by a suit but not on rights already enforced and determined. By
speaking of the curtailment of the landlord's right and by omitting to provide
for decrees into which the rights merge and by mentioning the provisions of s.
6 are to be invoked in a suit for ejectment, it appears that the decrees as
such are not put under the same embargo.
So far there is nothing in s. 5 which would
suggest that its provisions cover decrees in which the rights had passed before
the coming into force of the Act. It remains to see whether s. 5 (1)(a) strikes
a different note. Part (a) of s. 5 (1) is constructed 931 on very similar lines
and does not admit a different approach. It protects tenants of land from
ejectment by the landlord in those cases in which the tenant entitled to build
on the land under his contract has actually built a permanent structure within
five years from the date of his contract, or has without such right built with
the knowledge and acquiescence of the landlord. Such tenant may not be ejected
except for non-payment of rent. Clause (a) applies alike to contracts made
before or after the commencement of the Act. This creates some doubt but as it
intends to operate on the rights of the landlord seeking to enforce them
against a tenant, who claims that he cannot be ejected, the clause must again
contemplate a suit and not execution proceedings. There is nothing to
distinguish cl. (a) from cl. (b) in so far as execution of decrees already
granted is concerned.
The decision of the Assam High Court in
Suresh Chandra v. Ashutosh Dutta(1) expressed the same conclusion but on a
slightly different reasoning. The conclusion is further strengthened when one
reads the cognate sections of the earlier Assam Acts passed by the same
Legislature. Section 14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act,
1947 (Assam Act 10 of 1947) now repealed by the Act we are considering,
provided in clear terms that proceedings in execution were included. It reads
"14. Pending suits.
The provisions of this Act shall have effect
in respect of all suits or proceedings in execution, for ejectment of a person,
who would under the provisions of this Act be an occupancy tenant, which are
pending at the date of commencement of this Act." Similarly, s. 6(1) of
the Assam Urban Areas Rent Control Act 1949 (Assam Act 13 of 1949) and s. 6(1)
of the Assam Urban Areas Rent Control Act, 1946 (Assam Act 3 of 1946) provided
specially for execution proceedings.
These two sections read the same and only one
of them may be read. Section 6 (1) of Act 13 of 1949 read:
"6. Bar against passing and execution of
decree and orders.
(a) No order or decree for the recovery of
possession of any house shall be made or executed by any Court so long as the
tenant pays rent to the full extent allowable under this Act and perform the
conditions of the tenancy:
(1) A.I.R. 1960 Assam 24.
932 Provided that nothing in this subsection
shall apply in a suit or proceedings for eviction of the tenant from the house-
(a) where the tenant has done any act contrary to the provisions of clause (m),
clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1882
or to the spirit of the aforesaid clauses in areas where the Act does not
apply, or (b) where the tenant has been guilty of conduct which is a nuisance
or an annoyance to the occupiers of the adjoining or neighbouring houses, or
(c) where the house is bona fide required by the landlord either for purposes
of repairs or re-building, or for his own occupation or for the occupation of
any person for whose benefit the house is held, or where the landlord can show
any other cause which may be satisfactory by the Court, or (d) where the tenant
sublets the house or any part thereof or otherwise transfers his interest in
the house or any part thereof without permission in writing from the landlord.
These enactments, which are quite explicit,
show that where the Assam Legislature wished it included execution proceedings
within the protection. Being aware that if execution proceedings are to be
included they need to be mentioned and having at hand the former sections as
models, the departure appears to be deliberate. The language chosen places the
right under an embargo but does not say that decrees already won would become
un executable thus stating clearly that they were not to be affected. The
decision under appeal was, therefore, right.
The appeal has no force; it fails and will be
dismissed with costs.