Case: Nathia Agarwalla &amp; Another Vs. Musst. Jahanara Begum &amp; Others

execution of a decree for ejectment passed by a competent civil Court. Although this sub-section takes away the right of ejectment in other ways, if any, it recognises that ejectment is possible provided there is a decree of a competent civil Court.8. We may now consider the first subsection. Certain matters appear on its face. The sub-section does not speak of an ejectment decree, but of the right of the landlord to eject his tenant. It begins by stating "notwithstanding anything in any contract or in any law for the time being in force" but it does not include decrees for ejectment already obtained, in the non-obstante clause. Such decrees could have easily been named, to include them within the protective provisions, but they were not. The operative parts of the sub-section protect tenants under two circumstances which are mentioned as (a) and (b). Taking (b) first: if the tenant effects improvements on the land which he is not entitled to effect, the landlord may not eject him unless he pays reasonable compensation. Who will assess the compensation is laid down in S. 6 but that section specifically mentions a suit for ejectment and not execution proceeding. All this seems to suggest that S. 5 (1)(b) is intended to operate on rights of the landlord which are being enforced by a suit but not on rights already enforced and determined. By speaking of the curtailment of the landlords right and by omitting to provide for decrees into which the rights merge and by mentioning the provisions of S 6 are to be invoked in a suit for ejectment, it appears that the decrees as such are not put under the same embargo.9. So far there is nothing in S. 5 which would suggest that its provisions cover decrees in which the rights had passed before the coming into force of the Act. It remains to see whether S. 5 (1) (a) strikes a different note. Part (a) of S. 5 (1) is constructed on very similar lines and does not admit a different approach. It protects tenants of land from ejectment by the landlord in those cases in which the tenant entitled to build on the land under his contract has actually built a permanent structure within five years from the date of his contract, or has without such right built with the knowledge and acquiescence of the landlord. Such tenant may not be ejected except for non-payment of rent.Clause (a) applies alike to contracts made before or after the commencement of the Act. This creates some doubt but as it intends to operate on the rights of the landlord seeking to enforce them against a tenant who claims that he cannot be ejected, the clause must again contemplate a suit and not execution proceedings. There is nothing to distinguish Cl. (a) from Cl. (b) in so far as execution of decrees already granted is concerned.10. The decision of the Assam High Court in AIR 1960 Assam 24 (supra) expressed the same conclusion but on a slightly different reasoning. The conclusion is further strengthened when one reads the cognate sections of the earlier Assam Acts passed by the same Legislature. Section 14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947 (Assam Act X of 1947) now repealed by the Act we are considering, provided in clear terms that proceedings in execution were included. It reads as follows :"14. Pending suits.The provisions of this Act shall have effect in respect of all suits or proceedings in execution, for ejectment of a person, who would under the provisions of this Act be an occupancy tenant, which are pending at the date of commencement of this Act."11. Similarly, S. 6 (1) of the Assam Urban Areas Rent Control Act, 1949 (Assam Act XIII of 1949) and S. 6 (1) of the Assam Urban Areas Rent Control Act, 1946 (Assam Act III of 1946) provided specially for execution proceedings. These two sections read the same and only one of them may be read. Section 6 (1) of Act XIII of 1949 read :"6. Bar against passing and execution of decree and orders(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and perform the conditions of the tenancy:Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house -(a) where the tenant has done any act contrary to the provisions of Cl. (m), Cl. (o) or Cl. (p) of S. 108 of the Transfer of Property Act, 1882 or to the spirit of the aforesaid clauses in areas where the Act does not apply, or(b) where the tenant has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoining or neighbouring houses, or(c) where the house is bona fide required by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court or(d) where the tenant sublets the house or any part thereof or otherwise transfers his interest in the house or any part thereof without permission in writing from the landlord.* * * *"* * * *"12. These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]These enactments, which are quite explicit show, that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand the former sections as models, the departure appears to be deliberate. The language chosen places the right under an embargo but does not say that decrees already won would become unexecutable thus stating, clearly that they were not to he affected. The decision under appeal was, therefore, right