Astaram Bagdi and Others vs Sitanath Mandal

Das Gupta, J.—The real question in these two appeals under clause 15 of the Letters Patent is about the interpretation of the words "liable to ejectment" in section 9 of the Non-Agricultural Tenancy Act. The respondent Sitanath Mondal having obtained separate decrees for ejectment against Astaram Bagdi in one suit and against Panchu Bagdi in another on the allegation that the tenancies had been determined by service of 15 days notice, put these decrees into execution. The execution cases were stayed u/s 3 of the Non-Agricultural Tenancy Act, 1949. The stay orders were, however, vacated after the Non-Agricultural Tenancy Act, 1949, came into force. Objections were then raised on behalf of the judgment-debtors that they being non-agricultural tenants within the meaning of the Non-Agricultural Tenancy Act, 1949, for more than one year and less than 12 years without a lease in writing, the provisions of section 9(iii) applied to the case and they could not be ejected in these execution proceedings, as the only ground on which they were ''''liable to ejectment" under these provisions did not exist. The objection was rejected by the executing Court, but was ultimately accepted as valid by the District Judge, Murshidabad, on appeal. On Second Appeal to this Court Mr. Justice Sen has held that section 9 "lays down the conditions under which an ordinary non-agricultural tenant, who has not held for twelve years may be ejected and it cannot operate to stay the operation of a decree already obtained by the landlord under the old provisions of law". In that view he allowed the appeal, restored the decision of the learned Munsif and ordered that the execution cases should proceed. The correctness of this decision is challenged before us. Before we address ourselves to the question of the interpretation of section 9 of the Non-Agricultural Tenancy Act it will be proper to mention that section 88 of the Non-Agricultural Tenancy Act, 1949, will apply to proceedings in execution for ejectment that were pending on the date the Act came into force. The proceedings in this case were pending on the date the Act came into force and so the provisions of the Act in so far as they applied to the execution case will apply to the present case. If, therefore, on a proper interpretation of section 9 of the Act it should be held that ejectment even in execution proceedings of a non-agricultural tenant, who comes within section 9 is barred thereunder unless the grounds mentioned in that section exist, the judgment-debtor will be entitled to the benefit thereof and the fact that the decree was obtained before this Act came into force will not affect the question. This brings us to the real question for decision, namely, whether the bar against ejectment in section 9 applies to the execution proceedings as well.

On behalf of the appellants before us reliance was placed on the decision in Bamapati Bhattacharjee v. Lakshmi Bibi, (1) (57 C.W.N. 533). It was said that that case has decided that section 7 of the Non-Agricultural Tenancy Act, 1949, gives protection against ejectment in execution proceedings also. On a perusal of the judgment of the case it is clear, however, that it is assumed there that the protection given by section 9 of the Non-Agricultural Tenancy Act extends to execution proceedings. That question was neither raised nor decided.

In the case of Panchumani Dassi v. Bhuban Mohan Mookerjee, (2) (59 C.W.N. 243) this Court had to consider the question whether a tenant is entitled to protection u/s 7 in proceeding arising out of a suit other than a suit filed before the commencement of the Act. The Court answered the question in the negative. Giving the reason for the view that a tenant is entitled to protection u/s 7 of the Act only in respect of a suit for ejectment which is filed before the commencement of the Act, S.R. Das Gupta, J., observed:

Section 9 is a counter-part of section 7 of the Act in the sense that section 9 gives relief, under the conditions mentioned in the said section, to tenants holding for a term less than 12 years and to other tenants mentioned therein. But the words material for our present purpose used in the said section are ''the tenant holding such non-agricultural land would be liable to ejectment on one or more of the following grounds''. The expression ''shall be liable to ejectment''; to my mind, denotes liability to be ejected in a suit. The use of this expression in section 9 indicates that the protection which is given by that section to certain classes of tenants mentioned therein is a protection in respect of suits which are to be filed in future, that is, after the commencement of the Act.

It has been contended before us that the view expressed by S.R. Das Gupta, J., in that case that the expression "shall be liable to ejectment" denotes liability to be ejected in a suit, is not correct and the question should be considered afresh apart from the authority of that case.

Obviously the real question is: what did the legislature mean by saying that a non-agricultural tenant as described in the section will be liable to ejectment on the specified grounds and not otherwise. Did they mean only that no decree for ejectment will be passed against such tenant except on the specified ground ? Or, did they mean further that such a tenant will not be ejected even in execution of a decree passed in accordance with law, unless the specified grounds are found to exist ? The latter interpretation will give the tenant protection at two stages, one at the stage when the Court has to decide whether a decree for ejectment will be passed, and another at the stage when in execution proceeding, the Court has to decide whether actual ejectment of the judgment-debtor should be effected. If the former interpretation is correct, the tenant has the protection only at the stage when the Court is considering whether the decree should be passed, and no further protection from "ejectment" once the decree has been passed.

On behalf of the appellant judgment-debtor it is contended that if the normal grammatical meaning of the words is given to the words "liable to ejectment", ejectment in execution proceedings is necessarily included. It is argued that a decree for ejectment does not by itself result in ejectment. In order that ejectment may actually happen, a decree for ejectment has to be followed either by the tenant leaving the land amicably or his being made to leave it by the process of the Court in execution proceedings. Accordingly, it is argued the words "liable to ejectment" should be interpreted as "liable to have a decree for ejectment passed against him or liable to be actually ejected in execution proceedings".

If section 9 stood by itself, I may have found it reasonable to accept that interpretation as correct. In deciding what the legislature did mean by the words "liable to ejectment" it is necessary and proper however to consider the entire scheme of the legislation of which section 9 forms a part The purpose of this legislation by the West Bengal Non-Agricultural Tenancy Act, is, as stated in the preamble, "to make better provision relating to the law of landlord and tenant in respect of certain non-agricultural tenants in West Bengal". An important, if not the most important matter relating to the law of landlord and tenant is that of eviction of the tenant by the landlord. The legislature has devoted five sections of the Act to this matter. Section 70 provides that no non-agricultural tenant shall be ejected from the tenancy or from any non-agricultural land which he holds except in execution of a decree of a competent Civil Court. Section 69 provides that where a tenancy is held by a non-agricultural tenant subject to the condition of employment in any industrial concern, such tenant shall, notwithstanding anything elsewhere contained in this Act, be liable to be ejected from the land comprised in such tenancy on the termination of such employment. The other three sections are in Chapter II. They are sections 7, 8 and 9 of the Act. Section 7 deals with several kinds of tenancies and provides that for any such tenancy, the tenant shall not be ejected except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy. Section 8 deals with tenancies under a lease in writing for a term of more than one year but less than twelve years specified in the lease and provides that the tenant of such a tenancy shall not be ejected by his landlord during the term specified in the lease or after the tenant has exercised his option of renewal, as provided in the section, during the term of such renewal, except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy. Section 9 deals with three kinds of tenancies, viz., (a) tenancy held for a term of more than one year but less than twelve years under a lease in writing for a term of more than one year, but less than twelve years, where the landlord has not allowed pucca structure to be erected, (b) tenancies held for a term of more than one year but less than twelve years without a lease in writing and (c) tenancies, held under a lease in writing but without any term specified in the lease. The section provides that the tenant of any of these tenancies shall be liable to ejectment only on the grounds mentioned in the section and not on any other ground. It then proceeds to state that a non-agricultural tenant coming under any of the three clauses shall be liable to ejectment on the ground that he has used such land in a manner which renders it unlit for use for the purposes of the tenancy. It further provides that if the tenant comes under clause (a) mentioned above, the tenant will also be liable to ejectment on the ground that the term of the lease has expired. It further provides that if the tenant is one who falls within clause (b) mentioned above, he will be liable to ejectment on the ground that the tenancy has been terminated by the landlord by six months'' notice in writing expiring with the end of a year of the tenancy.

It is to be noticed that one ground of ejectment is common to all the three sections, namely, the ground that the, tenant has used the land in a manner which renders it unfit for use for the purposes of the tenancy. But in section 9 one additional ground of ejectment is provided for tenancies mentioned in clause (a) of the section and a different additional ground of ejectment for tenancies falling within clause (b) of the section.

If these three sections are considered together, it becomes clear that by these the legislature intended to make "better provision", in the law of ejectment, for different classes of tenants, exhausting by these three sections all tenants from whom "better provision" was thought desirable. It is equally clear that each of these three sections deals with tenants not included in the other two sections. It is reasonable to think, therefore, that the different language in section 9 "shall be liable to ejectment on the following grounds and not otherwise" has not been used to mean more or less than what is meant by the language "shall not be ejected except on the ground" used in sections 7 and 8. If by the language in sections 7 and 8, the legislature meant "shall not be liable to have a decree passed against him, or shall not be liable to be ejected in execution of the decree", they could not, but have meant the same thing by the language in section 9.

Let us assume that this is the meaning of the language in sections 7, 8 and 9, and examine the effect thereof on a tenancy held at the date of a suit for ejectment, for 11 years 11 months, without a lease in writing, when the suit is brought after termination of the tenancy by a six months'' notice in accordance with the provision in section 9(iii). u/s 9 a decree for ejectment will be passed by the Court. Execution proceedings are started after the decree is passed, but by that date, in almost every case, even if the execution is started on the very day after the decree is passed, the land will have been held for more than twelve years, and the tenant judgment-debtor will get the benefit of section 7 so that he cannot be ejected in the execution proceedings unless it is further proved that the tenant has used the land in a manner which renders it unfit for use for the purposes of the tenancy. While there is nothing inherently improbable in the legislature intending such a curious consequence. I think it will not be proper to credit the legislature with such an intention unless the language used compels us to do so. In the present case, it is, I think, possible to say without any straining of the language that the legislature meant thereby merely that no decree for ejectment shall be passed against a tenant except on the special ground mentioned. To my mind, the position is that the language used is capable of two meanings. If one is accepted, the curious position of a landlord being deprived of the benefit of a decree, immediately after he has obtained it, ensues; if the other meaning is accepted, no such position ensues. In this position, the first meaning should, I think, be accepted.

I have, therefore, come to the conclusion that the words "shall not be ejected", and the words "shall be liable to ejectment" have no reference to ejectment in execution proceedings, but refer only to the liability of a decree for ejectment being passed against the tenant.

My conclusion, therefore, is that the view taken by Sen, J., is correct. I would, accordingly, dismiss this appeal with costs.

Bachawat, J.

I agree.