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THE BENGAL TENANCY ACT, 1885
ACT NO. VIII OF 1885
PASSED BY THE GOVERNOR-GENERAL OF INDIA IN COUNCIL
(Received the assent of the Governor-General on the 14th March, 1885)
An Act to amend and consolidate certain enactments relating to the Law of Landlord and Tenant within the territories under the administration of the Lieutenant-Governor of Bengal.
Whereas it is expedient to amend and consolidate certain enactments relating to the Law of Landlord and Tenant within the territories under the administration of the Lieutenant-Governor of Bengal; It is hereby enacted as follows:—
The Bengal Tenancy Act is not a complete code even in respect of the law of landlord and tenant. 6 C. L. J. 273 (see 290) ; II C.W.N., 983 (see 996) F.B., Kripa Sindhu Mukerjee v. Annada Soondari Debi. Per Mookerjee J.
CHAPTER I
PRELIMINARY
Short title
1. (1) This Act may be called the Bengal Tenancy Act, 1885.
Commencement
(2) It shall come into force on such date (hereinafter called the commencement of this Act) as the Local Government, with the previous sanction of the Governor-General in Council, may, by, notification in the local official Gazette, appoint in this behalf.
Local extent
(3) It shall extend by its own operation to all the territories fur the time being under the administration of the Lieutenant-Governor of Bengal, except the town of Calcutta, [any area constituted a Municipality under the provisions of the Bengal Municipal Act, 1884, or part thereof, and specified in a notification in this behalf by the Local Government,] the Division of Orissa, and the Scheduled Districts specified in the third Part of the First Schedule of the Scheduled Districts Act, 1874; and the Local Government may, with the previous sanction of the Governor-General in Council, by notification in the local official Gazette, extend the whole or any portion of this Act to the Division of Orissa or any part thereof.
[Explanation.—The words “the town of Calcutta” mean, subject to the exclusion or inclusion of any local area by notification under section 637 of the Calcutta Municipal Act, 1899, the area described in Schedule I to that Act.]
Sub-section (I) was extended to Chota Nagpur, except the district of Manbhum (Not., Feby. 9th, 1903). At present however Chota Nagpur has a separate Tenancy Act of its own : Act VI of 1908 B.C. The words within heavy brackets in subsection (3) and the Explanation have been added by s. 3, Act I, B. C., of 1907. For obvious reasons the Explanation has been omitted from the Eastern Bengal and Assam Act I of 1908.
Time of commencement of Act.—The Act came into force on the 1st November, 1885 (see notification of the 4th September, 1885, published in the Calcutta Gazette of the 9th September, 1885). By Act XX of 1885, the operation of sections 61 to 64, both inclusive, and of Chapter XII of the Act, except such of their provisions as confer power to make rules, was postponed to the 1st February, 1886. The provisions of sections 61 to 64 relate to deposit of rent, and those of Chapter XII, to distraint. Act XX of 1885 has been repealed by the Repealing and Amending Act, 1891 (Act XII of 1891.)
Amendments of Act—The Act has been amended by Act VIII of 1886 (Received the assent of the Governor-General on the 8th March, 1886) which slightly modified sections 12 and 13 of the Act, by Act V, B. C., of 1894, (Received the assent of the Governor-General on the 22nd August, 1894) which made certain changes in Chapter X of the Act, by the Bengal Tenancy (Amendment) Act III, B. C., of 1898, (Received the assent of the Governor-General on the 3rd May, 1898, and came into force on the 2nd November, 1898, the date of its first publication in the Calcutta Gazette) which repealed Act V, B. C., of 1894 and completely remodelled Chapter X, as well as altered the provisions of sections 30, 31, 39, 52, and 119 of the Act, and by the Bengal Tenancy (Amendment) Act, 1907, I, B. C., of 1907, which introduced very extensive changes into the Act (Received the assent of the Governor-General and came into force on the 11th May, 1907). These latter provisions have been enacted with certain alterations for Eastern Bengal and Assam by Act I of 1908 which was passed on the 4th May 1908 and received the assent of the Governor-General on the 25th May 1908. The provisions of these amending Acts are noticed in the notes to the sections affected by them.
Rent law of Calcutta.—In the town of Calcutta, the relations of landlord and tenant are governed by the Indian Contract Act (IX of 1872), so far as they are applicable. If they are not applicable, then, by section 17 of 21 Geo. III, c. 70, “all matters of contract and dealing between party and party shall be determined in the case of Mahomedans, by the laws and usages of Mahomedans, and in the case of Gentus, (Hindus) by the laws and usages of Gentus ; and where only one of the parties shall be a Mahomedan or Gentu, by the laws and usages of the defendant.” If the provisions of the Contract Act are inapplicable and the parties are English, then, the common law of England will be the law to be applied (Madhub Chandra Paramanik v. Raj Kumar Das, 14 B. L. R., 76 ; 22 W. R., 370 ; Rasik Lal Madak v. Loknath Karmakar, 5 Calc., 688 ; 5 C. L. R., 492 ; Jagar Mohini Dasi v. Dwarkanath Basak, 8 Calc., 582). The explanation to section (I) has been added by Act I, B. C., of 1907 in consequence of the ruling (Biraj Mohini Dasi v. Gopeswar Mallik, 27 Calc., 202), in which it was held that occupancy rights may accrue in those areas which have been included within the town of Calcutta, subsequent to the passing of the Bengal Tenancy Act, 1885. It was considered undesirable that the Act should have any application to the town of Calcutta, as it is now constituted, or as it may hereafter be constituted under any feature extension or modification of its boundaries. Existing rights and obligations are saved by sub-section (2) added to section 19 by Act 1, B. C., of 1907, and for Eastern Bengal by Act I, E. B. C., of 1908.
Any area constituted a Municipality.—The words “any area constituted a Municipality under the provisions of the Bengal Municipal Act, 1884, or part thereof, and specified in a notification in this behalf by the Local Government” were inserted by Act I, B. C., of 1907, in Western Bengal and by Act I, E. B. C., of 1908 in Eastern Bengal and Assam. In the report of the Select Committee on the Bill it was said “the provisions of the Act are intended to apply to agricultural areas, and are unsuitable to such Municipalities or portions thereof as are mainly urban in character. We think that the Government should have power to withdraw from the operation of the Act such municipal urban areas by notification, when it is satisfied by enquiry that such withdrawal is expedient. We consider that the operation of the Act should not be withdrawn from any area until a record of the rights existing under the Act in such area has been made.” Existing rights and obligations are saved by additions made to section 19.
Rent law of Bengal.—The districts which under the Government of India notifications Nos. 2832 and 2833 of the 1st September, 1905, (see Gazette of India, September 2nd 1905, Pt. I, p. 636) have since the 16th October, 1905, constituted the province of Bengal are Burdwan, Birbhum, Bankura, Midnapore, Hooghly, Howrah, 24 Parganas, Nadia, Murshidabad, Jessore, Khulna, Patna, Gaya, Shahabad, Saran, Champaran, Mozaffarpur, Darbhanga, Monghyr, Bhagulpur, Purnea, Darjeeling, Sonthal Parganas, Cuttack, Balasore, Angul and Khondmals, Puri, Sambalpur, Hazaribagh, Ranchi, Palamau, Manbhum, and Singhbhum. The Bengal Tenancy Act is in force in all these districts, except as explained below. No part of the Act is in force in Darjeeling, Sambalpur and Angul. Certain portions of the Act have been extended to Cuttack, Puri and Balasore and certain parts of the District of Manbhum. Section 56, section 58, sub-sections (1) and (3) and section 84 only are in force in the Sonthal Parganas.
Rent law of Orissa.—The division of Orissa now consists of the districts of Cuttack, Puri, Balasore, Angul and Sambalpur. The two latter are scheduled districts. In Cuttack, Puri, and Balasore, Act X of 1859 and its amending Acts, VI, B. C., of 1862, and IV, B. C., of 1867 are still current (see Sadanand Mahanti v. Nauratan Mahanti, 16 W. R., 289 ; 8 B. L. R., 280). But by notification, dated the 10th September, 1891, published in the Calcutta Gazette of the 16th September, 1891, Part I, page 839 the Lieutenant-Governor of Bengal with the previous sanction of the Governor-General in Council extended the following portions of the Bengal Tenancy Act to Orissa:—Chapter X and sections 3 to 5, 19 to 26, 41 to 49, 53 to 75, and 191. Similarly, by a notification No. 2448, L. R., dated the 27th June, 1892, published in the Calcutta Gazette of the 29th June, 1892, Part I, page 673, the following sections of the Act were extended to Orissa:—sections 27 to 38 and 80. Again, by a notification No. 115, L. R., dated the 5th January, 1893, published in the Calcutta Gazette of the 11th January, 1893, Part I, page 20, sections 189 and 190 were extended to Orissa. By notification, No. 99, L. R., dated the 7th January, 1896, published in the Calcutta Gazette of the 8th January, 1896, Part I, page 28, the provisions of section 39 were extended to Orissa. By notification No. 971, T. R, dated 17th October, 1896, published in the Calcutta Gazette of the 21st October, 1896, Part I, page 1081, sections 7, 40, 52 and 192 were introduced into Orissa. By notification No. 292, L. R., dated the 18th January, 1893, published in the Calcutta Gazette of the 25th January, 1893, Part I, page 59, the rules framed and validated under sections 189 and 190 of the Tenancy Act were declared to be in force in Orissa, so far as they relate to the sections of the Bengal Tenancy Act which have been, or may be, extended to that division (See also Board’s Settlement Manual, 1908, Part I, Chap.2, rule 7, p.3). By notification No. 957, T. R., dated 5th November, 1898, published in the Calcutta Gazette of Nov. 9th, 1898, Part I, page 1156A, the provisions of the Bengal Tenancy (Amendment) Act, III, B. C., of 1898 were extended to the division of Orissa. By notification No. 620, L. R., dated the 27th January, 1906, published in the Calcutta Gazette of the 7th February, 1906, Part I, p. 176, sections 93 to 103 of this Act were extended to the districts of Cuttack, Puri and Balasore in the Orissa division. By notification No. 1816, T. R., dated the 21st August, 1906, published in the Calcutta Gazette, dated 29th August, 1906, Part I, p. 1658, the provisions of Chapter XI, and by notification No. 20, L. R., dated the 3rd January, 1907, published in the Calcutta Gazette of the 9th January, 1907, Part I, P. 54, the provisions of Chapter XI V of the Act were extended to the districts of Cuttack, Puri and Balasore in the Orissa Division.
Under the provisions of section 3, clause (2), of this Act, so much of Act X and of its amending Acts VI, B. C, of 1862, and IV, B. C., of 1867, as is inconsistent with the sections of the Bengal Tenancy Act that have been extended to Orissa, stands repealed. The other portions of Act X., etc, which are not inconsistent with these sections continue in force.
Angul
The laws in force in the mahal of Angul which is a scheduled district, are detailed in the schedule to Regulation No. I of 1894, the Angul District Regulation, published in the Govt. of India Gazette, of the 13th January, 1894, Part I, p. 17. Neither Act X of 1859, nor any rent Act is mentioned in the schedule to this Regulation, and as by section 3, sub-sec. (2), an enactment not comprised in the schedule shall not be deemed to be in force in Angul unless previously or subsequently expressly extended thereto, and as neither Act X of 1859 nor Act VIII of 1885 has been extended to Angul, it follows that there is no rent law in Angul. It is understood that in Angul Government demands and rents are realized according to the procedure prescribed in Chapter V of the Angul District Regulation.
The mahal of Banki was formerly a scheduled district, but since the 1st April, 1882, it has, under the provisions of Act XXV of 1881, been incorporated with the district of Cuttack.
Sambalpur
The district of Sambalpur formerly belonged to the Central Provinces. Since the 16th October, 1905, with the exception of the Chanderpur-Padampur Zamindari and the Phuljhar Zamindari, it has been transferred to Bengal. The rent law in force there is the Central Provinces Tenancy Act, I of 1898.
Darjeeling
Act X of 1859 prevails in the district of Darjeeling. (See note to Bengal Code, 3rd edition, Vol. III, p. 182). There is no local extent clause in the Act, but Darjeeling was part of Bengal when Act X of 1859 was passed, having been ceded by the Raja of Sikhim to the British Government in 1835, and as the Act was applicable to the whole of Bengal, (Sadanand Mahanti v. Nauratan Mahanti, 16 W. R., 290 ; 8 B. L. R., 280) it was regarded as extending to Darjeeling, and has consequently always been administered there.
Acts VI of 1862 and IV of 1867, B. C., also prevail in Darjeeling (see notes, pp. 183, 236, Bengal Code, 3rd edition).
Sonthal Parganas
In the Sonthal Parganas, the Sonthal Parganas Settlement Regulation, III of 1872, as amended by Reg. III of 1886 and the Sonthal Parganas Rent Regulation, II of 1886, are in force. In this district there are a few unsettled areas in the Telliaghiree pargana, which have been exempted from settlement by Government notification of the 9th December, 1879, published in the Calcutta Gazette of the 10th December, 1879, Part I, p. 1221. There is no rent law in force in these areas, or in certain dearah lands in this district. The relations of landlord and tenant in these tracts are accordingly regulated by contract and custom. By a Government notification, No. 771 L. R., dated 10th February, 1897, published in the Calcutta Gazette of February 24th 1897, Part I, p. 281, the provisions of sec. 84 of the Bengal Tenancy Act, and by another notification No. 1338, L. R., dated 1st March,61904, published in the Calcutta Gazette of the 2nd March 1904, Part I, p. 347, section 56 and clauses (2) and (3) of section 58 were extended to the Sonthal Parganas from the dates of the notifications.
Chota Nagpur
The provisions of the Chota Nagpur Tenures Act (II of 1869, B. C.) prevail in the districts of the Chota Nagpur Division. The rent law of Hazaribagh, Ranchi, Palamau and Singhbhum was to be found in Act I of 1879, B. C., (the Chota Nagpur Landlord and Tenant Procedure Act) and Act IV, B. C., of 1897, (the Chota Nagpur Commutation Act) as amended by Act V, B. C., of 1903 and Act V of 1905 : but all these acts have now been repealed by Act VI, B. C., of 1908—the Chota Nagpur Tenancy Act. In Manbhum and the Tributary Mahals Acts X of 1859, VI, B. C., of 1862, and IV, B. C., of 1867, are in force. The Chota Nagpur Tenancy Act of 1908 may be extended to the District of Manbhum or any part thereof : sec. 1(3) Act VI, 13. C., of 1908, and by Notification No. 5335 of 1908 certain portions of the said Act have already been extended to Parganas Barabhum and Patkum. See. 13 C. W. N., lx.
Under section 5, Act XIV of 1874 (the Scheduled Districts Act,) the Bengal Tenancy Act may be extended by the Local Government, with the previous sanction of the Governor-General, to any of the scheduled districts or to any part of a scheduled district. And under section 5A, the enactment, or part thereof, so extended may be included or modified, as the Local Government thinks fit. In accordance with these powers, the Local Government has issued the notification No. 721 L. R. dated the 9th February, 1903 (see Calcutta Gazette, 1903, Pt. I, p. 172) extending certain sections of this Act to the districts of Hazaribagh, Ranchi, Palamau and Singhbhum, subject to the restrictions and modifications therein specified. The sections so extended and the restrictions they are subject to are noted in this book under each section of the Act, and the Act as applicable to the Chota Nagpur division, except Manbhum, is printed in extenso in Appendix V.
Rent Law of Eastern Bengal and Assam. The province of Eastern Bengal and Assam was constituted by Government of India Notification No. 2832 of the 1st September, 1905, (see Gazette of India, September 2nd, 1905. Part I, p. 536) with effect from the 16th October, 1905. It comprises the districts of Backergunge, Chittagong, Dacca, Dinajpur, Faridpur, Mymensingh, Noakhali, Pabna, Bogra, Rajshahi, Rangpur, Jalpaiguri, Malda, Tipperah, Sylhet, Cachar and the districts of the Assam Valley, viz. : Goalpara, Kamrup, Darrang, Nowgang, Sibsagar and Lakhimpur. In all these districts, except Jalpaiguri, the Hill Tracts of Chittagong (which two latter districts are scheduled districts) Syihet, Cachar and the districts of the Assam Valley, this Act as amended by the amending Acts, including Act I, E. B. C., of 1908 but excepting Act I, B. C., of 1907, is in force.
Jalpaiguri
In that part of the district of Jalpaiguri which was formerly a portion of the district of Rungpore, viz : thanas Jalpaiguri, Titaliya, Rajgunj and Boda, lying to the west of the Teesta river, and thana Patgram, which is to the east to the Teesta, Act X of 1859 with its above mentioned amending Acts has always prevailed. But in that portion of the district of Jalpaiguri which was ceded by the Bhutan Government to the British Government in 1866, and which is commonly known as the Western Duars, Act XVI of 1869, (The Bhutan Duars Act) was in force up to the 16th October, 1895. This Act excluded the ordinary Civil Courts from the cognizance of suits relating to immoveable property, revenue and rent. In the schedule to this Act there were certain rules for the assessment of the Bhutan Duars with Government revenue and for the preparation of the record-of-rights to form the basis of such assessment. But in this schedule there were no rules laid down for the guidance of the officers engaged in the administration of this tract of country in suits relating to immoveable property or rent. There was, therefore, while this Act was in force, no definite rent law for that portion of the Jalpaiguri district known as the Western Duars. Act XVI of 1869 was, however, repealed by Act VII, B. C., of 1895, which came into force on the 16thOctober, 1895, on which date it was published in the Calcutta Gazette, Part III, p. 62, and on the 25th October, 1895, by a notification published in the Calcutta Gazette of the 13th November, 1895, Part I A, p. 139, the Lieutenant-Governor of Bengal with the previous sanction of the Governor-General in exercise of the power conferred upon him by section 5, of the Scheduled Districts Act, extended Act X of 1859, as well as Act VI, B. C., of 1862, to that portion of the Jalpaiguri District known as the Western Duars. Act IV, B. C., of 1867 was, however, not similarly extended. It is an unimportant Act. The only section, of which the force is not spent, is section 5, which gives the Lieutenant-Governor power to appoint revenue officers to exercise the powers of the Collector of a district for the purpose of enabling them to hear appeals under Act X of 1859 and Act VI, B. C., of 1862.
Subsequently, the local Government issued the two following notifications:—
“No. 963 T. R.-5th November, 1898—In exercise of the powers conferred by sections 5 and 5A of the Scheduled Districts Act, XIV of 1874, and with the previous sanction of the Governor-General in Council the Lieutenant-Governor of Bengal is pleased to extend the Bengal Tenancy Act, VIII of 1885, to the whole of the Jalpaiguri district, except the Western Duars, with effect from the 1st of January, 1899, subject to the following restrictions and modifications, namely:—
(I) Sub-sections (2) and (3) of section 1 of the said Act shall be omitted; and
(II) The words ‘in the territories to which the Act extends by its own operation’ in sub-section (1) and the whole of sub-section (2) of section 2 of the said Act shall be omitted.”
“No. 964 T. R.--.5th November, 1898.—In exercise of the powers conferred by the Scheduled Districts Act, XIV of 1874, section 5 and section 5A (inserted by the Repealing and Amending Act, 1891), and with the previous sanction of the Governor-General in Council, the Lieutenant-Governor of Bengal is pleased to extend the Bengal Tenancy Act, VIII of 1885, to the portion of the Jalpaiguri district, known as the Western Duras, with effect from the 1st January, 1899, subject to the following restrictions and modifications, namely:—
I.—Sub-sections (2) and (3) of section 1 of the said Bengal Tenancy Act shall be omitted.
II.—The words ‘in the territories to which this Act extends by its own operation’ in sub-section (1), and the whole of sub-section (2), of section 2 of the said Act shall be omitted.
III.—Nothing in the said Bengal Tenancy Act, other than the provisions of sub-section (1) of section (2), as modified by clause II of this notification, shall apply to any lands heretofore or hereafter granted or leased by Government to any person or company under an instrument in writing for the cultivation of tea or for the reclamation of land under the Arable Waste Laud Rules.
IV.—Where there is anything in the said Bengal Tenancy Act which is inconsistent with any rights or obligations of a jotedar, chukanidar, darchnkanidar, adhiar or other tenant of agricultural land as defined in settlement proceedings heretofore approved by Government, or with the terms of a lease heretofore granted by Government to a jotedar, chukanidar, darchukanidar, adhiar, or other tenant of agricultural land, such rights, obligations, or terms shall be enforceable notwithstanding anything contained in the said Act.”
These notifications have the effect of extending the Bengal Tenancy Act, subject to certain modifications, to the whole of the Jalpaiguri district, which is now part of the province of East Bengal and Assam.
It has been held that the repeal of Act XVI of 1896 (the Bhutan Duars Act) has had the effect of making the provisions of the Civil Procedure Code as applicable to the Western Duars as it is to other Parts of the district (Braja Kanta Das v. Tufaun Das, 4 C. W. N., 287).
Chittagong Hill Tracts
The application of this Act in the Chittagong Hill Tracts is barred by Reg. I of 1900. There is no special rent law in force in these deregulationised tracts, but by s. 18 of the Regulation the Local Government is empowered to make rules to provide for the collection of rents and to prohibit, restrict or regulate the migration of cultivating raiyats in these tracts. For rules made under this section, see the Calcutta Gazette, 2nd May, two, Part I, p. 429: also the Bengal Local Statutory Rules and Orders, 1903, vol. II, pp. 92-100.
Sylhet
In the district of Sylhet, the provisions of Act VIII, B. C., of 1869 are in force, having been extended to it by Government notification of the 24thFebruary, 1870, published in the Calcutta Gazette of the 2nd March, 1870, Part I, p. 361. They continued in force in Sylhet on its incorporation with the Chief Commissionership of Assam under Government notification of the 22nd August, 1878, published in the Government of India Gazette of the 24thAugust, 1878, Part I, p. 533, and still prevail there. Act VIII, B. C., of 1869, was extended by the Chief Commissioner of Assam to the district of Goalpara by Notification No. 2050], dated the 9th May, 1892, and published in the Government of India Gazette of the 9th May, 1892, Part I, p. 356. In the other Assam Valley districts, viz. : Kamrup, Darrang, Nowgong, Sibsagar and Lakhimpur, and in Cachar and the Hill districts, the Rent Law is in an Assam Valley uncertain and unsettled state. (See Gait’s Assam Land Revenue Manual, pp. lv and 20). In the case of Prasidha Narain Koer v. Man Koch, (9 Calc., 330) it was decided that Act X of 1859 is not in force in the Assam Valley districts.
Repeal
2. (1) The enactments specified in Schedule I hereto annexed are repealed in the territories to which this Act extends by its own operation.
(2) When this Act is extended to the Division of Orissa or any part thereof; such of those enactments as are in force in that Division or part, or, where a portion only of this Act is so extended, so much of them as is inconsistent with that portion, shall be repealed in that Division or part.
(3) Any enactment or document referring to any enactment hereby repealed shall be construed to refer to this Act or to the corresponding portion thereof.
(4) The repeal of any enactment by this Act shall not revive any right, privilege, matter or thing not in force or existing at the commencement of this Act.
Clause (1). Enactments repealed.—The enactments specified in schedule I as repealed are Regulations VIII of 1793 (sections 51-55, 64 and 65), XII of 1805 (section 7), V of 1812 (sections 2, 3, 4, 26 and 27), XVIII of 1812 (the preamble and sections 2 and 3) and XI of 1825 (the words “nor if annexed to a subordinate tenure” to the end of clause I of section 4), Act X of 1859, and Acts VI, B. C., of 1862, IV, B. C., of 1867, VIII, B. C., of 1869 and VIII, B. C., of 1879. Sections 14 and 45 of the Act are repealed by s. 2, Act I, B. C., of 1907, in the province of Bengal, and by sec. 2, Act I, E. B. C., in Eastern Bengal. The provisions of Regulation VII of 1822 are in no way repealed by this Act.
Clause (2). Orissa.—For a complete list of the portions of this Act which prevail in Orissa, see note to section 1, clause (3) pp. 4 and 5. The extension of every section in force in Orissa is also mentioned in a note to the section extended to it.
Sub-section (4). Effect of repeal of enactments.—The provisions of this clause are in accordance with the rule laid down in section 7 (1) of the General Clauses Act (X of 1897), wherein it is provided that “for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, it shall be necessary expressly to state such purpose,” and with the rule of English law which has prevailed since 1850, when it was enacted by section 5, 13 and 14 Vict., c. 21, that “where any Act repealing in whole or in part any former Act is itself repealed, such last repeal shall not revive the Act or provisions before repeal, unless words be added reviving such Act or provisions.” (See Wilberforce on “Statute Law,” p. 310, and Maxwell on the “Interpretation of Statutes,” 3rd edition, p. 585). An occupancy right acquired when Bengal Act VIII of 1869 was in force and lost before 1885 is not revived by Act VIII of 1885 which creates no new rights in favour of the tenant. Saligram Singh v. Puluk Pandey ; 6 C. L. J. 149.
Proceedings Commenced under any former Act.—By section 6, Act I of 1868 (the General Clauses Act), now repealed by the General Clauses Act, X of 1897, it was provided that “the repeal of any Statute, Act or Regulation shall not affect anything done, or any offence committed, or any fine or penalty incurred or any proceedings commenced before the Repealing Act shall have come into operation.” The effect of this section, and especially the meaning of the word “proceedings” in it, have been the subject of discussion in many cases. These cases were all reviewed in the Full Bench case of Deb Narain Dalla v. Narendra Krishna (16 Calc., 267). In this case a decree for arrears of rent had been passed under Bengal Act VIII of 1869. Subsequently, after the Bengal Tenancy Act had come into operation, the decree-holder applied for execution, and the tenure, in respect of which the decree for arrears of rent had been made, was attached. The tenure was put up for sale, and a claim was then preferred by a third person, who objected to the execution proceeding. The Munsif rejected the claim without enquiring into it on the ground that under the provisions of section 170 of the Bengal Tenancy Act no such claim could be preferred. An application was then made to a Division Bench of the High Court to set aside the Munsif’s order. The Division Bench doubted its correctness and referred the following two questions for the decision of a Full Bench — viz. “1. Whether in the present case, the provisions of the Bengal Tenancy Act were applicable to proceedings in execution ? 2. Whether the term ‘proceedings’ in s. 6 of Act I of 1868, does or does not include proceedings in execution after decree?” The Full Bench answered the first of these questions in the affirmative, the second in the negative and discharged the rule. The judgment in this case was delivered by Wilson, J., who pointed out that the cases in which the Courts in this country have had to consider the effect of legislative change in the law upon proceedings instituted before the change was made, fall under one or other of three classes. “The first class consists of those in which the Courts have had to construe enactments which have altered the law, not by the mere repeal of earlier enactments, so as to bring the case under s. 6 of the General Clauses Act, but by new affirmative provisions, and in which the new enactments contain in themselves no special rule for their own interpretation. In such cases the Courts have applied the settled rule of construction ordinarily acted upon in the absence of any statutory rule inconsistent with it ; and that rule is that retrospective effect is not given to an enactment so as to affect substantive rights, but that provisions affecting mere procedure are applied to pending proceedings. The second class of cases comprises those in which the enactment to be construed provides its own rule of construction by expressly or impliedly declaring that it is or is not to have retrospective operation, or the extent to which it is to affect pending proceedings. The third class of cases consists of those in which the law is changed by a mere repeal Of a previously existing law, and the repealing enactment contains no special rule for its own interpretation. Such cases are governed by s. 6 of the General Clauses Act.” Wilson, J., then proceeded to consider the cases in which the meaning of the word “proceedings” in s. 6 of Act of 1868, has been discussed and decided, and pointed out that they might be arranged in three groups. The first group consists of cases relating to appeals, in all of which, it was said, “there is a completely uniform course of decision to the effect that an appeal is a part of the same proceedings, within the meaning of s. 6 of the General Clauses Act, as the thing appealed against, and that, therefore, if the thing appealed against is a decree in a suit, the appeal is a part of the same proceeding as the earlier steps in the suit.” The second group consists of cases relating to proceedings in execution of decrees. Although proceedings in execution are strictly speaking proceedings in the suit, yet, according to Wilson, J., these cases are authorities “for holding that an application for execution initiates proceedings separate from those which resulted in the decree.” The third group consists of cases decided with respect to the Civil Procedure Code, and all but one are said to have been based on the terms of the Code itself and not merely on those of the General Clauses Act.
In Maheswar Prasad Narain Singh v. Sheobaran Mahto, (14 Calc., 621), the plaintiff sued to eject a tenant who had executed a solehnamah agreeing to hold the land in suit for a specified time at a specified rent and providing that the landlord was to be at liberty to enter on the lands on the expiry of the period. The suit was instituted on the 6th October, 1885, i.e., before the commencement of the Tenancy Act. It was found that at the date of the solehnamah, the tenant had acquired a right of occupancy with respect to some of the lands in suit, and it was held that the tenant was not entitled to the benefit of section 178, (1) (b) because at the time the suit was brought there was nothing to prevent his contracting himself out of his rights. The decision in this case, which is of date prior to that of the Full Bench just cited, seems hardly in accordance with the principles laid down in it ; for, from sub-section (1) of section 178, it would seem as if clause (b) affects a matter of substantive right and is intended to halve retrospective effect.
In another case, Uma Sundari Dasi v. Brajanath Bhattacharyya, (16 Calc, 347,) in which a decree for rent had been passed under Act VIII, B. C., of 1869, but execution was not applied for until after the commencement of the operation of the Bengal Tenancy Act, it was held that execution must proceed under the provisions of the Bengal Tenancy Act, the ratio decidendi being that the right to execute the decree in the mode applied for. Viz. : by sale of the tenure under sections 59, 60 and 61 of Act VIII, B. C., of 1869, if it existed, was a private right or a mere right of procedure, and that, therefore, the execution proceedings must be governed by Act VIII of ins. The decision in this case, though not based on the provisions of section 6, Act I of 1868, is quite in accordance with the principles laid down in the Full Bench case above referred to.
There are a few other cases, relating to this subject, which it seems desirable to notice. In both Lal Mohan Mukhurji v. Jogendra Chandra Rai, (14 Calc., 636,) and Uzir Ali v. Ram Kamal Shaha, (15 Calc., 383,) the effect of the provisions of section 174 of the Bengal Tenancy Act, under which a judgment-debtor, where a tenure or holding has been sold for an arrear of rent, can on certain conditions have the sale set aside, was considered. In the former case not only had the decree been passed, but execution had been applied for before the Bengal Tenancy Act came into force, though the sale was actually held after the operation of the Act had commenced. In the latter case, execution had been applied for after the Bengal Tenancy Act had come into operation. In both cases, it was held that the judgment-debtor could not take advantage of the provisions of section 174 of the Bengal Tenancy Act, as they confer on judgment-debtors a new right, and, therefore, cannot have retrospective effect. In a third case, Girish Chandra Basu v. Apurba Krishna Das, (21 Calc., 940,) the question was as to whether the provisions of section 310 A, added to the Civil Procedure Code by Act V of 1894, applied to a sale held after the date on which the Act came into operation, when execution had been applied for and the sale proclamation had been issued before that date. The majority of the Bench which decided the case held, following the two above cited cases relating to section 174 of the Bengal Tenancy Act, that they were not applicable, as the provisions of section 310 A, like those of section 174 of Act VIII of 1885, conferred a new right, and did not relate merely to procedure. These three decisions were, however, all reconsidered in the Full Bench case of Jagadanand Singh v. Amrita Sarkar, (22 Calc., 767,) in which it was held that they had all been wrongly decided, inasmuch as neither section 174 of the Bengal Tenancy Act nor section 3 to A of the Civil Procedure Code confers any new right on judgment-debtors. But the Bench expressly refrained from deciding whether the order, in the case of La/ Mohan Mukhurji v. Jogendra Chandra Rai, (14 Calc., 636,) was or was not right with reference to the provisions of section 6 of Act I of 1868, as the question did not arise in the case of Jagadanand Singh v. Amrita Lai Sarkar. This case, it may be mentioned, was one under section 310 A, and, as it was pointed out, was consequently not affected by the provisions of section 6 of the General Clauses Act, as the change in the law considered in that case had been brought about, not by the repeal of any Act, but by the addition to the existing Code of Civil Procedure of a new section. But it would seem that under the rule laid down in Deb Narain Datta v. Narendra Krishna to the effect that an application for execution initiates a new set of proceedings, the decision in the case of Lai Mohan Mukhurji v. Jogendra Chandra Rai was right under section 6 of the General Clauses Act. Section 6 of Act X of 1897, which has now taken the place of section 6 of Act I of 1868, lays down that “where this Act, or any Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not ……… (c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, &c., as aforesaid” (i.e., acquired or accrued under any enactment so repealed), “and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the repealing Act or Regulation had not been passed.” This section, though somewhat differently worded from section 6 of Act I of 1868, does not appear to make any change in the law as to the effect of the repeal of an enactment upon pending proceedings. The propositions laid down by Wilson, J., on the point in Deb Narain Datta v. Narendra Krishna would therefore, seem to hold equally good under the present, as under the former General Clauses Act.
Definitions
(3). In this Act, unless there is something repugnant in the subject or context:—
(I) “Estate” means land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes Government khas mahals and revenue-free lands not entered in any register.
The whole of this section has been extended to Orissa, (Not., Sept. 10th, 1891). All the definitions contained in sub-section (I) and the seventeen succeeding sub-sections consequently apply there. This sub-section was also extended to the Chota Nagpur Division, except the district of Manbhum, but for “Collector,” “Deputy Commissioner,” must be read. (Not., Feb. 9th, 1903). The Chota Nagpur Division however has at present a separate Tenancy Act of its own : Act VI; B. C., of 1908, except the district of Manbhum and Parganas Barabhum and Patkum in which certain portions of the said act have been extended. See 13. C. W. N. lx.
Definitions of “Estate.”—Other definitions of “estate” are to be found in sec. I, Act VII, B. C., of 1868 (an Act to amend the law for the recovery of arrears of land-revenue) and in section 3 (2) of Act VII, B. C. of 1876, (the Land Registration Act, 1876). According to the former Act, “estate” means any land or share in land subject to the payment to Government of an annual sum in respect of which the name of a proprietor is entered on the register known as the general register of all revenue-paying estates, or in respect of which a separate account may, in pursuance of section to or section it of Act XI of 1859, have been opened.” According to the Land Registration Act, 1876, as amended by Act II, B. C., of 1906, ‘estate’ includes (a) any land subject to the payment of land-revenue, either immediately or prospectively, for the discharge of which a separate engagement has been entered into with Government ; (b) any land which is entered on the revenue-roll as separately assessed with land revenue (whether the amount of such assessment be payable immediately or prospectively) although no engagement has been entered into with Government for the amount of revenue so separately assessed upon it as a whole ; (c) any land being the property of Government of which the Board shall have directed the separate entry on the general register hereinafter mentioned, or on any other register prescribed for the purpose by rule made under this Act.” The definition of “estate” given in section 3 (1) of this Act differs from those cited above, inasmuch as it includes revenue-free lands which are not “estates” according to either Act VII, B. C., of 1868 or Act VII, B. C., of 1876. In the latter Act revenue-free lands come under the head of “Revenue-free property,” which according to section 3, sub-sec. (10), “means any land not subject to the payment of land revenue which is included under one entry in any part of the general register of revenue-free lands.” “Estate” in this Act also includes unregistered lakheraj lands and Government khas mahals. When an estate is recorded under a distinct number on the tauzih or revenue roll of the Collectorate with a separate revenue assessed upon it, the mere fact of its comprising undivided shares in certain villages does not prevent its being an entire estate (Preonath Mitra v. Kiran Chandra Rai, 27 Calc., 290 ; Kamal Kumari Chaudhurani v. Kiran Chandra Rai, 2 C. W. N., 229).
Estates in Bengal.—A revenue-paying estate in Bengal is generally known as a zamindari and may be either permanently or temporarily settled. Many so called “tenures” may come within the definition of “estate” given in this Act, e. g., aima (from the plural of imam) or altanzgha (from al, red, and tamgha, a stamp) grants, jagirs, (from ja, a place, and gir, taking or occupying), madadmash grants (from madad, assistance, and -mash, livelihood,) mukaddami interest (from mukoddam, the headman of a village) and taluks (from alak, to suspend from.) But they may be “tenures.” Taluks are of two kinds, huzuri (i.e., paying to the huzur or head-quarter treasury) or kharija (i.e., separated) taluks, and shikmi (from shikm, the belly), mazkuri (or “specified,” because they were specified in the zamindar’s engagements,) or shamil, (from shamil, extending to) taluks. The huzuri or kkarija taluks only are estates. Taluks of the latter class are tenures. Some ghatwali tenures, on which revenue is payable directly to Government are also “estates.”
Noabad taluks in Chittagong are not estates.—In years Put there was much contention as to whether the Noabad taluks of the Chittagong district came within the definition of “estate” or not. This controversy was set at rest, so far as the executive are concerned, by the orders of the Government of India conveyed in its letter, No. 1792, 173 of the 24th July, 1893, to the address of the Secretary to the Government of Bengal, in which it was directed that the Noabad taluks in Chittagong were to be treated as “tenures” and not as “estates” within the meaning of Act VIII of 1883. According to these instructions, then, the Noabad talukdars are “tenure-holders,” and the khas mahals to which they are subordinate are “estates”, of which the Government is “proprietor.” In the leading case of Prasanna Kumar Rai v. Secretary of State, (26 Calc., 792 ; 3 C. W. N., 695,) it was not contended that the Noabad taluk in question was anything but a tenure.
(2) “Proprietor” means a person owning, whether in trust or for his own benefit, an estate or a part of an estate.
Extended to the Chota Nagpur Division, except the district of Manbhum (Not., February 9th, 1903) : but the present law there, is Act VI B. C., 1908, of which certain portions have been extended to Parganas Barabhum and Patkum in the District of Manbhum.
Effect of acquisition by Government of interest of proprietor.—When the paramount title of the State carrying with it the right to receive revenue and ale proprietary right to receive rent unite in Government, the proprietary interest becomes merged in the paramount title ; and rent, in such cases, becomes revenue. (The Bengal Settlement Manual, 1908, Part I, Chap. 1, rule 4, p. 1 : see also section 101 (2) Expln. I).
(3) “Tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person.
Extended to the Chota Nagpur Division, except the district of Manbhum (Not., February 9th, 1903): but the present law there, is contained in Act VI, B. C., 1908.
“Land” not defined.—There is no definition of the term “land” in this Act. The Rent Commission in their Bill (sec. 3) proposed to define land as follows : “Land includes woods and water thereupon ; when applied to land cultivated or held by a raiyat, it means land used or intended to be used for agricultural or horticultural purposes, or the like. In Chap. XVIII” (a chapter relating to procedure in suits for recovery of arrears of rent and certain other suits), “it means (a) tenures, under-tenures, and holdings ; (b) land used or let to be used for agriculture, horticulture, pasture, or other similar purpose, or for dwelling-houses, manufactories, or other similar buildings ; and (c) rights of pasturage, forest rights, fisheries, and the like. Explanation-Bastu or homestead land is land used for agricultural purposes when it is occupied by a raiyat, and together with the land cultivated by such raiyat forms a single holding.” This suggestion, which would have obviated all ambiguity, was not adopted, and there is no definition of the term in this or any other legislative enactment, by means of which its meaning in this sub-section can be determined. In the course of the debates in Council on the provisions of the Bill, the Maharaja of Darbhanga proposed that the provisions of the Act should be restricted to “land which is the subject of agricultural or horticultural cultivation, or is used for purposes incidental thereto.” But his proposed amendment to this effect was not accepted. The Hon’ble Mr. Reynolds in his remarks on the Maharaja of Darbhanga’s amendment observed that, if it were carried, “it would have the effect of excluding from the operation of the Bill not merely all waste lands but all the lands not actually under cultivation at the time the question might be raised. It would leave it open to a landlord to contend that a raiyat’s right of occupancy did not extend to those lands of his holding which were not actually under cultivation at the time. It is in my opinion better for the Council to leave the question to be decided by the Courts.” (1) The Hon’ble Sir Steuart Bayley said “The Hon’ble Mr. Reynolds has pointed out that his amendment will have the effect of limiting the raiyat’s right of occupancy, as he would thereby lose the right as to all waste lands and lands not used for agricultural and horticultural purposes. I may point out also that the effect would be to remove from the scope of the Bill, which deals with tenures generally, all such parts of a tenure, as may be used momentarily for other purposes than agriculture and horticulture. It is much safer to trust to the Courts to apply the law to these cases.” (1) It is, therefore, evident that the omission of any definition of “land” in this Act is intentional. The question of determining to what classes of land the Act should be applicable was felt to be a difficult one, and so it was left to the Courts to overcome the difficulties involved in its solution.
The subject of homestead land is, however, dealt with in section 182 of this Act, which provides t
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