Maharaja Probirendra Mohan Tagore, landlord vs Kusum Kumari Devi, Tenant

Mookerjee, J.—This rule was obtained by landlord and is directed against orders passed by the Commissioner, Presidency Division, dated the 6th April, 1954, and the order by the Collector in conformity of the latter passed on the 30th April, 1954. Two points have been raised before me. But in view of my decision with regard to the first, the second point does not require to be considered. The opposite party was a tenant holding land under the petitioner which was not non-agricultural land. The tenant applied to the Collector for conversion for such land into a tenancy to which the provision of the West Bengal Non-agricultural Tenancy Act, 1949, would apply. This application under sub-section 1 of section 72 was filed on the 8th August, 1952. It came up for hearing before the Collector on the 13th March, 1953. When the Collector directed portion of the agricultural land held by the tenant to be converted into a tenancy to which the provisions of the Non-agricultural Tenancy Act would apply. Against this decision appeals were taken to the Commissioner, Presidency Division. The two appeals were heard together. On the 6th April, 1954, the Commissioner dismissed the landlord''s appeal but upheld the contention raised on behalf of the tenant. It was held under sub-sec. 2 of sec. 72 of the Non-agricultural Tenancy Act that the Collector was bound to have stated the date from which the conversion would take effect. The Collector had omitted to do so. The records came back to the Collector and on the 30th April, the Collector recorded the following order:

Seen Commissioner''s order in appeal. My order will take effect from 13.3.53., i.e. the date of my order allowing the conversion of the tenancy.

It is argued on behalf of the landlord petitioner that the order passed by the Collector on the 30th April, was without jurisdiction as the area within which the property in dispute lay had come under the jurisdiction of the Calcutta Corporation. The petition of the tenant, therefore, is liable to the dismissed.

There is no doubt that under clause (a) of sub-section 2 of Section 1 of the West Bengal Non-agricultural Tenancy Act that Act extends to the whole of West Bengal except among other areas-

(a) Calcutta as defined in Clause 11 of Section 3 of the Calcutta Municipal Act, 1923.

On the date when the tenant''s application was filed under sub-section 1 of section 72 of this Act the area within which the property was situate was outside the jurisdiction and the limits of Calcutta as defined under Act 3 of 1923.

The new Calcutta Municipal Act (33 of 1951) came into force with effect from the 1st of April, 1953. As a result of this new law the whole of the area which was originally within the jurisdiction of the Tollygunge Municipality came under the Calcutta Corporation. The area now in suit was within the Tollygunge Municipality. Under clause D of section 608 of the Calcutta Municipal Act, 1951:

In every enactment in force at the commencement of this Act, unless a different intention appears..........

(d) all references to, or to any chapter or section.......... or the Calcutta Municipal Act, 1923, shall, so far as is possible, be construed as references to this Act or to its corresponding chapter or section.

It is incontestable that as a result of the promulgation of Calcutta Municipal Act on the 1st April, 1953, Clause (a) of sub-section 2 of section 1 of the West Bengal Non-agricultural Tenancy Act stood amended by substituting reference to the relevant provision of the Calcutta Municipal Act, 1951. From 1st April, 1953, reference in clause (a) of sub-section 2 of section 1 of the Non-agricultural Tenancy Act has stood amended.

The petition u/s 72 of the Non-agricultural Tenancy Act had been filed before the promulgation of the new Calcutta Municipal Act. The ordinary rule is that a proceeding is to be governed by the law as was in force when the proceedings are started. This general proposition, however, stands modified when during the pendency of the proceeding new legislation is introduced and enforced which among others is either retrospective by specific provision being introduced in that new Act or takes away jurisdiction or the special authority created by an earlier statute the pending proceeding would be governed by the modified or new law.

The jurisdiction created under the West Bengal Non-agricultural Tenancy Act, 1949, was a special jurisdiction created by that statute. The jurisdiction so created could not be exercised within the area which was within the Calcutta Corporation when this special statutory provision was made. By the 1951 Calcutta Municipal Act the jurisdiction of the Calcutta Corporation was extended with effect from the 1st April 1953 and if not on general principles but by special provisions made in Clause (d) of Section 608 of the said 1951 Act. This special jurisdiction created under the Non-agricultural Tenancy Act was, however, limited to such special jurisdiction as was being exercised in areas not affected by the exception clauses (a) to (c) in sub-section 2 of section 1 of the Non-agricultural Tenancy Act where further limited and circumscribed.

The result, therefore, of enforcing the new Calcutta Municipal Act, 1951 was to take away the jurisdiction of the special Tribunals or of others created under Non-agricultural Tenancy Act over areas which were originally described in sub-section 2 of Section 1 of that Act to be the area which was taken away.

Both the questions of principles as also the interpretation and the effect of Section 608 (d) of the Calcutta Municipal Act, 1951, came up for consideration in Civil Rules 388 and 389 of 1954 and the Bench decision in that case dated the 15th June 1955 is the same as I have already indicated above.

It must, therefore, be held that with effect from the 1st April. 1953, no authority created under the Non-agricultural Tenancy Act was entitled to deal with the matters under the special jurisdiction created by that Act.

I have already referred to the relevant dates. The original order was passed on the 13th March, 1953, i.e., before the Calcutta Municipal Act, 1951, had come into force. If an effective and valid order is passed under a statute the subsequent amendment thereof or withdrwal of jurisdiction will not in the majority of cases affect the enforcibility of such a valid and binding order. If, therefore, the order passed by the Collector in the present case on the 13th March, 1953, be the final and valid and binding order, the objection raised by the landlord cannot affect the same.

It, however, appears that the tenant himself had moved the Commissioner against this order on the ground that the date from which such conversion into non-agricultural tenancy is to take effect has to be mentioned in the order itself. The Commissioner accepted the position taken up by the tenant and directed the Collector to pass an order mentioning the date from which the order is to take effect. The Collector carried out the order on the 30th April, 1954.

It has been argued on behalf of the tenant that though a contrary view was expressed by the Commissioner that the earlier order by the Collector was a valid and binding order so far as the conversion of an agricultural plot was concerned.

I do not think that there is any room for argument in view of the clear provisions contained in sub-sections 2 and 4 of section 72 of the Non-agricultural Tenancy Act. If the Collector omits to mention the date from which the order for conversion is to take effect that order is not a complete order or for the matter of that, is not a proper and valid order under sec. 72 of the said Act. It was only after the Collector had added the date from which the order was to take effect and that was done on the 30th April, 1954, that the order became a complete and valid order. It was, therefore, on the 30th April, 1954 that the order was completed and the two parts of the order-one part passed on the 13th March, 1953, and the other part on the 30th April, 1954, together constitute one order. The latter part cannot be divorced from the earlier part to declare the latter to be valid and binding.

I must, therefore, hold that the final order which was passed by the Collector u/s 72 of the Non-Agricultural Tenancy Act was completed on the 30th April, 1954, when he had no jurisdiction to pass any effective order in respect of a plot which was on the date of that order within the limits of the Calcutta Corporation as envisaged under the Calcutta Municipal Act, 1951. This rule is accordingly made absolute and the order passed by the Commissioner and the Collector must be set aside and the petition filed by the tenant will stand dismissed. In view of the special circumstances of this case each party will bear the respective costs in this Court.