# NATl-llA AGARWALLA & ANOTHER v. MUSST. JAHANARA BEGUM & OTHERS

- **Citation:** [1966] 3 S.C.R. 926
- **Court:** Supreme Court of India
- **Decided:** 1966-03-15
- **Case number:** Civil Appeal No. 893 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J.C. Shah Ands. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/natl-lla-agarwalla-another-v-musst-jahanara-begum-others-3780
- **Pages:** 7

## Headnote

Assam Non.Agricul1ural Urban Areas Tenancy Act, 1955, s. 5(1) (a)-
protecrio11 to 1enants agai11st ejectment-ll'lietlier availclble where dec:re.:
for ejectment already obtciined.
A decree for cjcctment was passed against ahc appellants in November
1950 in a suit filed against them by the respondcnLc; and was later confinn·
cd by the High Court. ·1be exccuaion proceedings began in August 1954
iUld were pending when the Assam Non·Agncultural Urban Areas Tenancy
Act 1955 came: into force from June 26,
1955. 1be appellants thereupon claimed the benefit of s. 5(1 )(a) of the Act (which grants protection from eviction to tenants under certain circumstances) on the ground
that the protection of Seciion 5 was available not only in pending !>Uits
and appeals but also in pending execution cases. This claim was rejected
by the execution Coun and an appeal to the High Court was also dismissed.
On appeal 10 this Court,
HELD:
·1bc prolection under Section S(l}(a) was not available:
where a decree in cjectmcnt had already hecn obtained.
Section 5 ( l) begins by stating "not withsunding anything in any
contract or in any la.w for 1he time being in force hut it does not include
decrees for ejcct.mcnt already obtained, in the non-<>hstante clause.
Clause (a) of Section 5 (l) protects tenants of land from cjectmcot
by the landlord in tho;e cases in wh;ch the tenant entitled to build on
the land under his contract ha~ actually built a permanent structure within
five years from the d;ite of his contract, or has without l>Uch 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 mldc before or after the commencement of the Act but as
it intends 10 operate on the rij!hts of the landlol'd. rights ;1lrcady enforced
and detcnnined cannot be 'aid to be involved and the clause must contemplate a suit and not execution proce-;:dings.
The fact that Section 14 of the Sylhct. Non-Agricultural Urban Areas
Tenancy Act 1947 repeakd by the 1955 Act and Section 6( I) of hoth
Assam Act 13 of 1949 and As.sam Act 3 of 1946 provided specially
for execution proceedings clearly shows that where the Assam Legislature
wito;hcd it, it included execution proceedings within the pr()(eclion.
Suresh Chandra Datt" v. Aslwtoslr Dulla mzcl Others A.I.R. 1960 Aso;am
24, referred to.
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Q)mparini ~tatulc of different states is not to be commended because
similarity or v:iriation in the laws of different States is not necessarily
indicative of a kindred or a changed intention.
Enactments drafted by
H
different hands, at different times and to satisfy different requirements
of a local character. seldom afford tangible or sure aid in construction. [9:!9 F~ F: 9311 E: 931 B-DI
·.
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AGARWALLA v. JAHANARA (Hidayatullah, J.)
927
A

## Text

926
NATl-llA AGARWALLA & ANOTHER
v.
MUSST. JAHANARA BEGUM & OTHERS
March 15, 1966
[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M.
HIDAYATULLAH, J.C. SHAH ANDS. M. S!KRI. JJ.]
Assam Non.Agricul1ural Urban Areas Tenancy Act, 1955, s. 5(1) (a)-
protecrio11 to 1enants agai11st ejectment-ll'lietlier availclble where dec:re.:
for ejectment already obtciined.
A decree for cjcctment was passed against ahc appellants in November
1950 in a suit filed against them by the respondcnLc; and was later confinn·
cd by the High Court. ·1be exccuaion proceedings began in August 1954
iUld were pending when the Assam Non·Agncultural Urban Areas Tenancy
Act 1955 came: into force from June 26,
1955. 1be appellants thereupon claimed the benefit of s. 5(1 )(a) of the Act (which grants protection from eviction to tenants under certain circumstances) on the ground
that the protection of Seciion 5 was available not only in pending !>Uits
and appeals but also in pending execution cases. This claim was rejected
by the execution Coun and an appeal to the High Court was also dismissed.
On appeal 10 this Court,
HELD:
·1bc prolection under Section S(l}(a) was not available:
where a decree in cjectmcnt had already hecn obtained.
Section 5 ( l) begins by stating "not withsunding anything in any
contract or in any la.w for 1he time being in force hut it does not include
decrees for ejcct.mcnt already obtained, in the non-<>hstante clause.
Clause (a) of Section 5 (l) protects tenants of land from cjectmcot
by the landlord in tho;e cases in wh;ch the tenant entitled to build on
the land under his contract ha~ actually built a permanent structure within
five years from the d;ite of his contract, or has without l>Uch 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 mldc before or after the commencement of the Act but as
it intends 10 operate on the rij!hts of the landlol'd. rights ;1lrcady enforced
and detcnnined cannot be 'aid to be involved and the clause must contemplate a suit and not execution proce-;:dings.
The fact that Section 14 of the Sylhct. Non-Agricultural Urban Areas
Tenancy Act 1947 repeakd by the 1955 Act and Section 6( I) of hoth
Assam Act 13 of 1949 and As.sam Act 3 of 1946 provided specially
for execution proceedings clearly shows that where the Assam Legislature
wito;hcd it, it included execution proceedings within the pr()(eclion.
Suresh Chandra Datt" v. Aslwtoslr Dulla mzcl Others A.I.R. 1960 Aso;am
24, referred to.
A
B
c
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E
F
G
Q)mparini ~tatulc of different states is not to be commended because
similarity or v:iriation in the laws of different States is not necessarily
indicative of a kindred or a changed intention.
Enactments drafted by
H
different hands, at different times and to satisfy different requirements
of a local character. seldom afford tangible or sure aid in construction. [9:!9 F~ F: 9311 E: 931 B-DI
·.
;
..
AGARWALLA v. JAHANARA (Hidayatullah, J.)
927
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 893 of 1963
Appeal by special leave from the judgment and order dated
August 14, 1959 of the Assam High Court in Appeal from Original
Order No. 21 of 1959.
M. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan,
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for the appellants.
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B. Sen, and P. K. Ghosh, for the respondents.
The Judgment of the Court was delivered by
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.
The present execution began on August 16, 1954 and was
pending in the court of the Subordinate Judge, L.A.D., Gauhati
when the Assam Non-Agricultural Urban Areas
Tenancy Act,
1955 (Assam Act 12 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 Saraqgi
& Anr. v. Mashu/a/ Khemani & Anr(l) and of the Calcutta High
Court in Habiba Bibi and others v. Ram Ranjan Mullick and others(2)
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 and others)(') 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(l)(a) of the Tenancy
Act apply to pending execution proceedings.
The Act was passed "to regulate in certain respects the relationship between landlord and tenant in respect of non-agricultural
(I) A.I.R. 1957 Assam 22.
(2) A.I.R. 1937 Cal 207,
(3) A.I.R. 1960 Assam 24.
928
SUPREME COURT REPORTS
(1966] 3 S.C.R.
land in urban areas of the State of Assam." It consists of 14 secA
tions. Section 5, with which we are primarily concerned, may be
read in full.
It reads :
"5. Protection from eviction-
(!) 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 and ifthe 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 construes. 5. The first three sections contain respectively
the
short title, the extent of application and the definitions of terms
in the Act. Section 4 puts an obligation upon a tenant to pay
rent for his holding at fair and equitable rates. Section 6 lays
down how compensation for improvements in a suit for cjectment
against a tenant is to be calculated and includes within improveB
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AGARWALLA v. JAHANARA (Hidayatullah, !.)
929
A . ments structures, which the tenant entitled to build has actually
built after the expiry of the period of five years referred to in cl.
(a) of sub-s. (I) of s. 5. Sections 7, 8 and 9 deal with the question
of enhancement of rent from different points of view.
Section
10 prohibits the realisation of any "salami". Section 11 provides
that no suit for ejectment, except for arrears of rent, shall be instituted until after the expiration of one month from the date of
the receipt of by the tenant of a 1111tice in writing by the landlord
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requiring the tenant to surrender possession of the land in favour
of the landlord. Section 12 shows how the notices have to be served and s. 13 gives the power to make rules.
By s. 14, the Sylhet
Non-Agricultural Urban Areas Tenan~y Act, 1917, (Assam Act
10 of 1947) was repealed.
The only question in this appeal is whether s. 5(l)(a) of the Act,
which we have reproduced above, applies to execution cases in
respect of decrees for ejectment granted before the coming into
force of the Tenancy Act. The answer
to this question will
determine which of the two orders passed by the respective preD
siding Judges was right.
Two methods of approach were adopted by counsel in this
appeal. One was to construe the words of the fifth
section
taken by themselves or in comparison with those employed in
other Acts of the Assam Legislature. The second was to compare
and contra! s. 5 of the Assam Act with enactments in rent control
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Acts of other States. The second method, although sometimes
instructive, is not to be commended because similarity or variation
in the laws of different States is not necessarily indicative of a
kindred or a change intention. Enactments drafted by different
hands,
at different times and to satisfy different requirements
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of a local character, seldom afford tangible or sure aid in construction.
We would, therefore, put aside the Rent Control Acts
of Madras, Bihar, Delhi and other States, because in these States
the
problem of accommodation in relation to the availability
of lands and houses and the prior legislative history and experience,
cannot be same as in Assam. We shall however, refer to other
Rent Control Acts of the Assam Legislature because they do
not
suffer from this weakness and may throw some light on how the
legislature was accustomed to view such matters. But before we
do so we shall consider s. 5 taken by itself.
The section consists of three sub-sections and it is helpful
to view the provisions backwards, that is, from the last subsection to the first. The third sub-section deals with decree of
ejectment passed on the ground of non-payment of rent.
It affords a last chance to the tenant to retain the land of
his tenancy by making such a decree unexecutable for a period
of 30 days from its date so that the tenant may, if he cares, deposit
930
SUPREME COURT REPORTS
[1966] 3 S.C.R.
the amount ·.>f the decree in the court which will execute that
A
decree.
On the tenant so paying, the decree is
recorded
as
satisfied.
This sub-section must apply to all executions
which
come within its terms because of the clear language "no decree
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for ejcctment . , .. shall he executed" and "the Court shall record
the decree as satisfied". These arc peremptory words and they
do
not admit of any exception.
All decrees for ejectment in
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which thirty days' time had not passed were affected hut, it is
clear, that decrees whkh did not come within the terms of the
sub-section remained executable.
We may now examine the second sub-section which also takes
away some rights of landlords but leaves them free to execute
decrees other than those on which the section places an embargo,
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That sub-section provides that no tenant shall be
ejected
by
his landlord from the land of his tenancy except in execution
of a
decree for ejectment passed
hy a competent civil court.
Although this
sub-section takes away the right of cjcctment
in other wa)s, if any,
it recognises that cjectment is
possible
provided there is a decree of a competent civil court. ·
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We may now consider the first sub-section. 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 ejectmcnt already obtained, in
the
11011-obstante
clause.
Such decrees could have easily been named, to include
them within the protective pro\'isions, but they were not.
The
operati\'e
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 comrensation. Who will assess
the compensation is laid down in s. 6 but that section specifically mentions
a suit for
cjectment and not execution
proceeding.
All this
seems to suggest that s. 5 (i) (b) is intended to operate on rights
of the landlord which arc being enforced hy a suit hut not on
rights
already enforced and determined.
By speaking
of the
curtailment of the landlord's right and hy omitting to
provide
for decrees into which the rights merge and by mentioning the
provisions of s. 6 arc to be irl\oked in a suit
for ejectmcnt, it
appears that the decrees as such are not put under the same embargo.
So far there is nothing in s. 5 which would suggest that its
pro,isions cover decrees in which the rights had passed before
the coming into force of the Act.
It remains to see whether
s. 5 (l)(a) strikes a different note.
Part (a) ofs. 5 (I) is constnrcted
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AGARWALLA v. JAHANARA (Hidayatullah, !.)
!131
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.
The decision of the Assam High Court in Suresh Chandra v.
Ashutosh Dutta(') 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 10 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."
Similarly, s.
6(1) of the Assam Urban Areas Rent Control Act
1949 (Assam Act 13 of 1949) and s. 6(1) of the Assam Urban
Areas Rent Control Act, 1946 (Assam Act 3 of 1946) provided
specially for execution proceedings. These two sections read the
same and only one of them may be read. Section 6 (I) of Act
13 of 1949 read:
"6. Bar against passing and execution of decree and
orders.
(a) 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:
(I) A.I.R. 1960 Assam 24.
"932
SUPREME COURT REPORTS
Provided that nothing in this sub·
section shall apply in a suit or pro·
ceedings for eviction of the tenant from
the house-
( a) where the tenant has done any
act contrary to the provisions of clause
(m), clause (o) or clause (p) of section
108 of the Transfer of Property Act,
1882 or 10 the spirit of the aforesaid
clauses in areas where the Act does
not apply, or
(b) where the temnt has been guilty
of conduct which is a nuisance or an
annoyance to the occupiers of the adjoin·
ing or neighbouring houses, or
(c) where the house is bona fide
required by the landlord either for pur·
poses of repairs or re-building, or for
his own occupation or for the occupa·
tion of any person for whose benefit the
house is held, or where the landlord can
'how 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 pcm1ission in
writing from the landlord.
(1966] 3 S.C.R.
These enactments, which arc 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
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the former sections as models, the departure appears to be deli·
berate. The language chosen places the right under an embargo
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but does not say that decrees already won would become unexecu·
table thus stating clearly that they were not to be affected. The
decision under appeal was, therefore, right.
The appeal has no force; it fails and will be dismissed with
costs.
. Appeal di.m1issed.
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