Rani Bala Dasi vs Benodini Ray

Mookerjee, J.—These are two composite applications u/s 115 of the CPC and Article 227 of the Constitution directed against an order made in an appeal by a Subordinate Judge at Midnapore.

Two holdings belonging to the Petitioner having been sold, applications u/s 174(3) of the Bengal Tenancy Act were heard analogously by a learned Munsif who on a consideration of the evidence produced held that the impugned sales had been vitiated by material irregularity and fraud in publishing and conducting the sale with the consequence that the Petitioner had suffered substantial injury as a result of such irregularity and fraud. The execution creditor took an appeal which was allowed and the Munsif''s order was set aside. It is against this appellate order that the two Rules have been obtained which have been heard together and are disposed of by this judgment.

In one of the cases the property was said to be of the value of Rs. 2,000 but it was priced very low in the sale proclamation which stated that its value was Rs. 150 only. The decree-holder who was the auction-purchaser, took the property at Rs. 162. In the other case the value of the property was said to be Rs. 150 but the sale proclamation stated the value as Rs. 12 and the actual purchase price tendered by the decree-holder was only Rs. 22. As I have indicated, one of the grounds of impugning the sales was the unconscionably low price mentioned in each of the sale proclamations and the equally low prices fetched at the actual sales.

The learned Subordinate Judge held that the Munsif had wrongly placed the onus on the execution creditor of proving that the sale processes had been properly published and the sales properly held. On a review of the evidence the conclusion reached by the court of appeal below was that there had been no suppression of processes and no material irregularity in publishing or conducting the sales.

On the question, however, as to whether fraud had been committed by grossly under-valuing the properties in the sale proclamations, the observations of the learned Subordinate Judge were cryptic to a degree and no findings were recorded which might be said to have properly disposed of the question relative to the fraud alleged. The absence of a satisfactory finding in this regard makes it difficult for this Court to accept the position that there was no fraud on the part of the execution creditor. If after a proper consideration of the relative evidence the learned Judge had arrived at the conclusion that no fraud had been perpetrated for which the execution creditor might be said to have been responsible, the position would have been different. On the face of the matter, it seems plain that there was allegation that at least one of the properties sold had been grossly tinder-valued and no attempt was made by the learned Judge to consider this aspect of tile matter which he disposed of on an observation to the effect that the decree holder did not appear to have acted fraudulently from the mere fact that the valuations of the property sold were inadequate. This is by no means a satisfactory disposal of the question involving as it does failure to exercise jurisdiction vested by law. As was pointed out in the case of Manmatha Nath Chakravarty v. Sachindra Kumar Chakravarty (1955) 59 C.W.N. 1082 by Chakravartti, C.J. that if the decree-holder knowing of the real facts publishes a low valuation in the sale proclamation, he is guilty of fraud and cannot take advantage of it by retaining the sale whatever the conduct of the judgment debtor may have been. It was made plain that the court also had a duty to discharge and check the valuation just as an execution creditor had a duty to be honest. There has been in this case no attempt at an appraisal of the relevant evidence affecting the question of fraud raised by the Petitioner. In this view, I think that the appeals have not been properly disposed of. I would accordingly set aside the order of the learned Subordinate Judge and direct the two appeals to be heard in accordance with law and in the light of the observation made above.

The question of material irregularity in publishing the sale processes need not again be gone into. That matter has, in my view, been dealt with in sufficient detail by the Judge below. The only question which would require further consideration would be whether the facts and circumstances alleged establish fraud on the part of the execution creditor in under-valuing the properties sold. If on a reappraisal of the relevant evidence the allegation of fraud in the matter of valuation is held not established, the appeals will be dismissed; in the event of fraud being found the appeals will have to be allowed.

Mr. Ghosh took a preliminary point impugning the validity of the sales which gave rise to the application u/s 174(3) of the Bengal Tenancy Act. The contention was that a sale held under the Bengal Tenancy Act after June 1, 1954 would be void and of no effect in view of the provision contained in Section 5B of the Estates Acquisition Act, 1953. Reliance was placed on the terms of Section 5B which says that on and from the stated date (1-0-54) no estate, tenure or under-tenure shall be liable to be sold under the Bengal Tenancy Act and other laws and any sale which took place on or after the date just mentioned, must be deemed to have been void and of no effect. In the present case the Petitioner was a raiyat; consequently the sales were required to be held under the provisions of the Bengal Tenancy Act; and being a raiyat her case would be governed by Section 52 of the West Bengal Estates Acquisition Act. That section provides that on the issue of a notification u/s 49, the provisions of Chapter II shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats and under-raiyat as if such raiyats and under-raiyats were intermediaries and the lands held by them were estates and a person holding under a raiyat or an under-raiyat were a raiyat for purposes of Clauses (c) and (d) of Section 5. The proviso attached to the section is of no importance in the present context and is accordingly left out of consideration. The contention is that after a notification has been issued in terms of Section 49 which occurs in Chapter VI of the Estates Acquisition Act, the provisions contained in Chapter II of that Act will apply mutatis mutandis to raiyats and under-raiyats and the lands held by them must be deemed to be estates. Sections 49 and 52 occurs in Chapter VI of the Act while Section 5B occurs in Chapter II. Acquisition of Estates and the rights of intermediaries are dealt with in Chapter II, Acquisition of the interests of raiyats and under-raiyats is dealt with in Chapter VI. The contention is that Sections 52 and 5B having been made retrospective by the act of the legislature, they must be deemed to be in force from the date of promulgation of the Act, that is to say, February 12, 1954. But by reason of a special date having been mentioned in Section 5B, namely, June 1, 1954 the contention is that on and from this date no sale under the Bengal Tenancy Act can be of any effect if held on or after June 1, 1954. The sales in the present case having been held in March, 1955, would therefore be bad and must be declared to be void and of no effect with the consequence that the opposite parties acquired no rights whatever to the holdings.

The argument though presented in an attractive form does not in my view, bear examination. "Intermediary" has been defined in Section 2 as a proprietor, tenure holder, under-tenure holder or any other intermediary above a raiyat or a non-agricultural tenant. The rest of the definition is not relevant to our present purpose and may therefore be left out. Section 52 of the Act provides that the provisions of Chapter II which are provisions relating to the acquisition of estates and of the rights of intermediaries, that is to say, of non-raiyats, will apply mutatis mutandis to raiyats and under-raiyats by a process of legal fiction as if such raiyats and under-raiyats were intermediaries and the lands held by them were estates. It has been argued that since the whole of Chapter II has been made applicable by the express words of Section 52 to the case of raiyats and under-raiyats, the provision contained in Section 5B which nullifies all sales under the Bengal Tenancy Act must be held to have the consequence that the sales in the present case were void and of no effect. In my judgment Section 52 properly read does not incorporate all the provisions contained in Chapter II and I think the specific provision contained in Section 5B which declares certain sales to he void and of no effect cannot he said to have been incorporated in Chapter VI which deals with the acquisition of interests of raiyats and under-raiyats only.

The West Bengal Estates Acquisition Act came into force on February 12, 1954. Chapter VI which deals with the acquisition of interests of raiyats and under-raiyats came into force on April 10, 1958. Section 5B occurring in Chapter II mentions almost an arbitrary date namely, June 1, 1954 as the date on and from which certain sales held under certain acts and regulations were declared to be void and of no effect. It is true that both Sections 52 and 5B were given retrospective effect. That being the position, it has to be conceded that whatever the date the notification u/s 49 bears, Section 5B will have effect provided it could reasonably be said that the provision contained in that section was intended to be incorporated whole-sale into Chapter VI which deals only with rights and interests of raiyats and under-raiyats. Having regard however to the context in which Section 52 appears, it seems to me that what the legislature had in view was not to touch sales held under the provision of the Bengal Tenancy Act affecting raiyats and under-raiyats but to extend to them certain kinds of rights which have been dealt with in separate provisions contained in Chapter II. Instead of repeating those provisions in Chapter VI, the legislature incorporated them by reference by enacting Section 52, so that raiyats and under-raiyats may have those rights. By way of illustration, Section 6 may be mentioned. That deals with rights of intermediaries to retain certain lands. There are other sections dealing with rights and liabilities in Chapter II which are also made applicable to raiyats-and under-raiyats. This conclusion seems to be reinforced by the closing words of Section 52 itself which say that a person holding under a raiyat or an under-raiyat must be deemed to be a raiyat for the purposes of Clauses (c) and (d) of Section 5. These two clauses of Section 5 provides inter alia that every raiyat holding land under an intermediary shall hold the same directly under the State as if the State is the intermediary and every raiyat shall be bound to pay to the State rent and other dues in respect of the land. By enacting Section 52 the legislature did not in my view, intend to transpose bodily all the provisions contained in Section 5B, although the language used may at first sight encourage that view.

There seems to be yet another difficulty in the way of applying whole-sale the provisions contained in Chapter II to raiyats and under-raiyats the acquisition of whose interests has been. dealt with in Chapter VI. There are obviously certain provisions of Chapter II which can have no manner of application to the case of raiyats. For example, the various provisions relating to recovery of arrears of land revenue and other impositions by the State can have nothing to do with the acquisition of interests of raiyats and under-raiyats.

Turning to the language of Section 52 it seems plain that raiyats and under-raiyats have been dealt with on the footing of intermediaries for certain purposes and their holdings are to be regarded as estates. If the raiyats or under-raiyats were by a process of fiction to be treated as intermediaries and their holdings to be treated as "estates" it is difficult to see how these "estates" could have been sold for default of payment of rent under the provisions of the Bengal Tenancy Act. Obviously the owners of estates should be proprietors and when default is made by them in payment of revenue, the estates would be liable to be sold under other laws and not under the Bengal Tenancy Act. The word "estate" has not been defined in the West Bengal Estates Acquisition Act which however provides that expressions used in the Act and not otherwise defined have the same meaning as they have in the Bengal Tenancy Act. The definition of "estate" in the Bengal Tenancy Act is a well known concept, and I think it cannot be said by any stretch of imagination that the raiyat''s holding is to be regarded as an estate and yet liable to be sold under the provisions of the Bengal Tenancy Act.

My conclusion is that the contention that the sales held in the present case were void and of no effect in view of the provision contained in Section 5B read with Section 52 of the Estates Acquisition Act has no substance and must therefore be negatived.

In the view I have taken, I direct the appeals to be reheard as indicated above. The Rules are made absolute.

There will be no order for costs.