1. Execution of a decree for ejectment — Application of protection against eviction under Section 5(1)(a) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955. (Para 1 , 2 )
Back
Next 
1966 Supreme(SC) 104
SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH AND S.M. SIKRI, JJ.
Nathia Agarwalla and another, Appellants
Versus
Jahanara Begum and others, Respondents.
Civil Appeal No. 893 of 1963, dated 15-3-1966.
Advocates appeared
Mr. M. C. Setalvad, Senior Advocate (M/s B. P. Maheshwari and M .S. Narasimham, Advocates, with him), for Appellants; Mr B. Sen, Senior Advocate (Mr. P. K. Ghosh, Advocate, with him), for Respondents.
Important Points
Section 5(1)(a) of the Tenancy Act provides protection against the landlord's right to eject but does not extend to the execution of decrees for ejectment passed before the Act's commencement, as the legislature deliberately omitted execution proceedings from its scope.
Subject
Civil Law - Landlord-Tenant Law
Act Referred
Headnote
(A) Tenancy Act - Section 5(1)(a) - Protection from eviction - Applicability to execution proceedings - Whether the protection granted to tenants who have built permanent structures on leased land applies to execution proceedings of decrees for ejectment passed prior to the commencement of the Act - The non-obstante clause in Section 5(1) does not specifically include decrees for ejectment already obtained - The language of the section refers to the right of the landlord to eject rather than the execution of a decree - Contrast with Section 5(3) which explicitly mentions the execution of decrees, indicating a deliberate omission in Section 5(1) (Paras 8, 9).
(B) Statutory Interpretation - Legislative Intent - Where the legislature has explicitly included execution proceedings in similar previous enactments but omitted them in the current Act, such omission is deemed deliberate (Paras 10, 11).
Facts of the case:
A decree for ejectment was passed against tenants and subsequently entered into execution. During the pendency of the execution proceedings, a tenancy act came into force providing protection from eviction to tenants who had built permanent structures on the land. The tenants sought the benefit of this protection to stop the execution of the pre-existing decree.
Findings of Court:
The protection under Section 5(1)(a) of the Act is not available to tenants in execution proceedings for decrees passed before the Act's commencement.
Issues: Whether the provisions of Section 5(1)(a) of the Tenancy Act apply to pending execution proceedings in respect of decrees for ejectment granted before the coming into force of the Act.
Ratio Decidendi: The court held that Section 5(1) operates on the rights of the landlord to eject and does not specifically mention decrees already obtained. Unlike Section 5(3), which explicitly refers to the execution of decrees, Section 5(1) does not. Furthermore, previous similar legislation by the same legislature explicitly included execution proceedings, proving that the omission in the present Act was intentional.
Result: Appeal dismissed.
(B) Statutory Interpretation - Legislative Intent - Where the legislature has explicitly included execution proceedings in similar previous enactments but omitted them in the current Act, such omission is deemed deliberate (Paras 10, 11).
Facts of the case:
A decree for ejectment was passed against tenants and subsequently entered into execution. During the pendency of the execution proceedings, a tenancy act came into force providing protection from eviction to tenants who had built permanent structures on the land. The tenants sought the benefit of this protection to stop the execution of the pre-existing decree.
Findings of Court:
The protection under Section 5(1)(a) of the Act is not available to tenants in execution proceedings for decrees passed before the Act's commencement.
Issues: Whether the provisions of Section 5(1)(a) of the Tenancy Act apply to pending execution proceedings in respect of decrees for ejectment granted before the coming into force of the Act.
Ratio Decidendi: The court held that Section 5(1) operates on the rights of the landlord to eject and does not specifically mention decrees already obtained. Unlike Section 5(3), which explicitly refers to the execution of decrees, Section 5(1) does not. Furthermore, previous similar legislation by the same legislature explicitly included execution proceedings, proving that the omission in the present Act was intentional.
Result: Appeal dismissed.
Legal Category Hierarchy
Advocates:
B.P.MAHESHVARI, B.SEN, M.C.SETALVAD, M.S.NARASIMHAN, P.K.GHOSH
B.P.MAHESHVARI, B.SEN, M.C.SETALVAD, M.S.NARASIMHAN, P.K.GHOSH
Table of Contents
2. Whether the protective provisions of Section 5(1)(a) of the Tenancy Act apply to pending execution proceedings for decrees passed prior to the Act's commencement. (Para 2 , 4 )
3. The Act's non-obstante clause omits decrees; Section 5(1)(b) refers to suits; and previous similar legislation explicitly included execution proceedings, making the current omission deliberate. (Para 6 , 7 , 8 , 9 , 10 , 11 )
4. Protective provisions against ejectment under Section 5(1)(a) of the Tenancy Act apply to the landlord's right to seek ejectment via suit, not to existing decrees in execution. (Para 8 , 9 , 11 )
5. Appeal dismissed with costs. (Para 12 )
6. Does Section 5(1)(a) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 apply to pending execution proceedings of decrees passed before the Act?
No. The court held that the section protects tenants from the landlord's right to eject, contemplating a suit rather than execution proceedings. The omission of execution proceedings in the non-obstante clause and the reference to suits in related sections indicate that existing decrees remain executable. (Para 8 , 9 , 11 )
7. How does the court interpret the omission of execution proceedings in the 1955 Act compared to previous Assam tenancy laws?
The court observed that previous Acts, such as the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947, explicitly included proceedings in execution. The deliberate departure from this language in the 1955 Act signifies that the legislature did not intend to extend protection to execution proceedings. (Para 10 , 11 )
8. Does the protection under Section 5(1)(b) regarding improvements on leased land apply to execution proceedings?
No. The court noted that Section 5(1)(b) is linked to Section 6, which specifically mentions a suit for ejectment and not execution proceedings, suggesting the protection operates on rights being enforced by suit, not rights already determined by decree. (Para 8 )
Judgment
HIDAYATULLAH, J. : This is an appeal by special leave against an order of the High Court of Assam, dated August 14, 1959 rejecting 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.
2. The present execution began on August 16, 1954 and was pending in the Court of the Subordinate Judge. L. A. D. Ganhati when the Assam Non-Agricultural Urban Areas Tenancy Act. 1955 (Assam Act XII 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 Sarawgi v. Mashulal Khemani , AIR 1957 Assam 22 and of the Calcutta High Court in Habiba Bibi v Ram Ranjan Mullick . AIR 1937 Cal 207. 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 AIR 1960 Assam 24), 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.
3. The Act was passed "to regulate in certain respects the relationship between landlord and tenant in respect of non-agricultural 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 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 thre
