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1965 Supreme(Cal) 134
HIGH COURT OF CALCUTTA
C. N. Laik
KALACHAND NASKAR - Appellant
Versus
DWIJENDRA LAL CHAKRABORTY - Respondent
Second Appeal 93 Of 1958
Decided On : MAY 21, 1965
ABINASH CHANDRA GHOSH, AMAR PRASAD CHAKRABORTY, Amarendra Kumar, P.K.SENGUPTA
The Civil Court has no jurisdiction to review a conversion order passed by the Collector under Section 72 of the West Bengal Non-agricultural Tenancy Act, 1949, in a collateral proceeding, unless the order is ineffective, invalid, without jurisdiction, or ultra vires.
Headnote:
LAND TENANCY - CONVERSION OF AGRICULTURAL LAND INTO NON-AGRICULTURAL TENANCY - VALIDITY OF CONVERSION ORDER - JURISDICTION OF CIVIL COURT TO REVIEW CONVERSION ORDER - ULTRA VIRES - TENANT'S RIGHT TO APPLY FOR CONVERSION - DEFINITION OF 'HOLDING' - STATUS OF KORFA RAIYAT AS TENANT - CIVIL COURT'S JURISDICTION TO REVIEW CONVERSION ORDER - PLAINTIFF'S FAILURE TO CHALLENGE CONVERSION ORDER IN PLEADINGS.
Fact of the Case:
Plaintiff-appellant, a landlord, filed a suit for khas possession of disputed property and mesne profits, alleging that the under-raiyat defendant transferred the holding without his knowledge and consent, in violation of Chapter VII of the Bengal Tenancy Act. The under-raiyat had obtained an order from the Collector for conversion of the agricultural land into a non-agricultural tenancy under Section 72 of the West Bengal Non-agricultural Tenancy Act, 1949.
Finding of the Court:
The court held that the order of conversion passed by the Collector was valid and effective, and that the Civil Court had no jurisdiction to review the conversion order in a collateral proceeding. The court also held that the plaintiff-appellant could not challenge the order as ultra vires since he had not raised the issue in the pleadings and had submitted to the jurisdiction of the Collector by opposing the application for conversion.
Issues: 1. Whether the order of conversion passed by the Collector was valid and effective? 2. Whether the Civil Court had jurisdiction to review the conversion order in a collateral proceeding? 3. Whether the plaintiff-appellant could challenge the order as ultra vires?
Ratio Decidendi: 1. The court held that the order of conversion was valid and effective because: - The under-raiyat was a 'tenant' within the meaning of Section 72 of the Non-agricultural Tenancy Act, as he was an under-raiyat under Section 4(3) of the Bengal Tenancy Act. - The under-raiyat had not ceased to have interest in respect of the entire holding on the date of the application for conversion, even though he had granted a Patta of a portion of the holding. - A korfa raiyat is a tenant under the Bengal Tenancy Act. 2. The court held that the Civil Court had no jurisdiction to review the conversion order in a collateral proceeding because: - Section 72 of the Non-agricultural Tenancy Act gives jurisdiction to the Collector to entertain applications for conversion and to pass orders for conversion. - The decision of the Commissioner on appeal from the Collector's order is final. - The plaintiff-appellant had submitted to the jurisdiction of the Collector by opposing the application for conversion. 3. The court held that the plaintiff-appellant could not challenge the order as ultra vires because: - He had not raised the issue in the pleadings. - He had suppressed the fact of the order of conversion from the pleading.
Final Decision: The appeal was dismissed without any order as to costs.
( 1 ) THIS Second Appeal by the plaintiff is directed against the judgment and decree of the learned Subordinate Judge, 5th Court, Alipore passed in an appeal against the decree of the learned Munsif dismissing the plaintiff appellant's claim for khas possession of the disputed property and for mesne profits.
( 2 ) WHAT is contended for, by Mr. Abinash Chandra Ghosh, the learned Advocate appearing on behalf of the appellant, an authority in the tenancy laws, is, that the Courts below committed an error of law in holding that the order of conversion passed by the Collector, 24-Parganas on July 11, 1952 under the provisions of Section 72, chapter X of the West Bengal Non-agricultural Tenancy Act, 1949, had the effect of converting the land of the under-raiyati holding in suit into a non-agricultural tenancy, in consequence of which it was no longer open to the plaintiff-appellant to treat the suit land as agricultural land amenable to the provision of Chapter VII of the Bengal Tenancy Act, authorising the landlord to re-enter, in case of transfer without his knowledge and consent.
( 3 ) THE following facts are not in dispute. Bishnupada (pro-forma defendant and pro-forma respondent No. 2) was an under-raiyat in an agricultural land under the plaintiff appellant, at an annual rental of Rs. 14/- on the strength of a registered Kabuliyat dated February 1, 1928 (Ext. 1 ). The under-raiyat had no transferable interest in his holding. In spite of the same he granted a permanent lease to defendant No. 1 Rakhal (since deceased) on the basis of a registered Patta dated June 6, 1950 (Ext. 3), without the knowledge and consent of the plaintiff appellant. The land is situated in Behala within South Suburban Municipality. He subsequently effected an unauthorised transfer of the holding in favour of defendant No. 1 on July 28, 1953. Meantime on April 10, 1951 an application was filed by defendant No. 2 under the provisions of Section 72 of the Non-agricultural Tenancy Act, for conversion of the agricultural land in the holding into a non-agricultural tenancy. On July 11, 1952 in spite of the opposition by the plaintiff, the Collector passed an order for conversion, under Section 72 with effect from July 10, 1951. The rent was doubled i. e. a sum of Rs. 28/- was fixed as annual rent (Ext. A ).
( 4 ) THE plaintiff appellant says that the said transfer by Bishnupada in favour of Rakhal is without his knowledge and consent. Therefore under the provisions of Chapter VII of Bengal Tenancy Act, relating to under-raiyats, the plaintiff is entitled to treat the transferee defendant No. 1 as a trespasser out and out and he is entitled to re-enter in the holding. Further he means to say that the transfer Is not binding upon the plaintiff. According to the plaintiff appellant, the order of conversion is either ineffective or invalid in law, so as to entitle him to ignore it altogether and to rest content by saying that the sale order is of no legal effect whatsoever.
( 5 ) THE defence, which was accepted by the Trial Court was to the effect, that the lease that preceded the sale, did not cover the entire area of the holding in suit and that the order of conversion was passed in favour of Bishnupada while he retained possession of a portion of the holding; as a result of which, the conversion which was allowed by the Collector in the face of the opposition from the plaintiff appellant, could not be challenged by him collaterally in the suit, the plaint of which again, was studiously silent about the aforesaid conversion, of which the appellant had all alone been aware up to the stage of appeal before the Commissioner.
( 6 ) THE appeal met with dismissal before the learned Subordinate Judge, firstly on the ground, that under the scheme of Chapter X of the Non-agricultural Tenancy Act, the Civil Court was not competent in a collateral proceeding like the instant suit to reopen the matter by going behind the order of conversion. Therefor
