Chanru Sah v. Usharani Das Gupta — 1969 DIGILAW 9 (PAT)

Judgment N.L.Untwalia, J. 1. The plaintiff appellant in the second appeal filed a suit for eviction of the defendant respondents from the suit premises on three grounds: (1) that the tenant defendant had, defaulted in payment of rent the rate of which was Rs. 7/- per month, for the period May, 1960 to July, 1961; (2) that the premises had been sub-let by defendant first party to defendants second party without the consent of the landlord; and (3) that the appellant required the premises for his bona fide personal necessity. 2. Both the Courts below rejecting the defence taken by the defendants had held in favour of the appellant on all the three grounds. His case is, therefore, squarely covered by the provisions of Section of the Bihar Buildings (Lease, Kent and Eviction) Control Act, 1947. The suit was filed in the Court of the subordinate Judge at Dumka. It relates to the suit premises situated within Sahabganj Muni-ciplality in the district of Santhal Parganas which is undoubtedly the scheduled Area. The value of the dispute in the suit which was the value of the suit was Rs. 182/-, that is, Es. 84/-was the value put upon the relief of eviction being twelve months rental at the rate of Rs. 7/- per month and the claim of arrears of rent in the suit was to the tune of Rs. 98/-. 3. That suit was decreed by the trial Court, but has failed in the lower appellate Court in view of the Full Bench decision of this Court in Niranjan Pal V/s. Chaitanyalal Ghosh, (1964) BLJR 583 = ( AIR 1964 Pat 401 ) (FB) on the ground of non-service of notice under Sec.106 of the Transfer of Property Act. 4. The argument put forward on behalf of the plaintiff in this Court, as was done in the Court of appeal below, is that the provisions of the Transfer of Property Act will not apply to the facts of the present suit, as the value of the dispute in it is below Rs. 500/-. That being so, it was submitted that the suit could not fail on the ground of non-averment of any fact in the plaint relating to the requirement of Section. 106 of the Transfer of Property Act and of non-service of notice thereunder. 500/-. That being so, it was submitted that the suit could not fail on the ground of non-averment of any fact in the plaint relating to the requirement of Section. 106 of the Transfer of Property Act and of non-service of notice thereunder. The learned District Judge repelled this argument on the ground that after the advent of the Constitution, the provisions of the Transfer of the Property Act did apply to all kinds of suit even in the Scheduled Area, as under Clause 5 of the fifth Schedule of the Constitution there was no public notification by the Governor directing that the provisions of the Transfer of Property Act shall not apply to the Scheduled Area in question. 5. In my opinion, the Court of appeal below has taken an erroneous view of the law. Under Sec.3 (2) of Regulation 3 of 1872 no enactment passed either before the commencement of the said Regulation or thereafter was to apply to the Santhal Parganas unless the said Parganas were expressly named in the Act. Such an Act was made applicable to the said Parganas as regards the trial and determination of the Civil suits in which the matter in dispute exceeds the value of five hundred rupees when such suits are tried in Courts established under the Bengal, Agra and Assam Civil Courts Act, 1887 (12 of 1887). On an interpretation of the said provision of the Regulation it was held in Baijnath Surekha V/s. Chiranji Lal, AIR 1929 Pat 537 by Das, J. at page 539 Column 1-- "The Transfer of Property Act by virtue of Sec.1 does extend to the Santal paraganas; but it does not apply to the said Parganas except so far as regards the trial and determination of the Civil suits in which the matter in dispute exceeds the value of one thousand rupees." The value has now been reduced to five hundered rupees. Fazl Ali, J. as he then was did not disagree with Das, J. on the question aforesaid. He pressed division on another point with which we are not concerned in this case. James, J. to whom the case was referred on difference between the two learned Judges reiterated the view expressed by Das, J. in regard to the application of the provisions of the Transfer of Property Act to the Santal parganas. He pressed division on another point with which we are not concerned in this case. James, J. to whom the case was referred on difference between the two learned Judges reiterated the view expressed by Das, J. in regard to the application of the provisions of the Transfer of Property Act to the Santal parganas. The learned District Judge following the decisions of this Court in Bedabala Devi V/s. State of Bihar, AIR 1954 Pat 159 , Nil Madhab V/s. The State, AIR 1955 Pat 317 and Harihar Prasad V/s. Motilal Jalan, 1962 BLJR 49, has taken the view that after the commencement of the Constitution, Regulation 3 of 1872 is no longer in force, and reading Articles 245 and 246 of the Constitution with Fifth Schedule, the provisions of the Transfer of Property Act having been not excluded under Clause 5 of the said Schedule are applicable to the Scheduled Area. The gist of the last of the three cases referred to above is not quite apposite on the point. The two other cases dealt with post-Constitutional laws either passed by the Indian Parliament or the State Legislature. In none of them was there any occasion to consider the question of applicability of a pre-constitutional law enacted either by the Central Legislature or the provincial Legislature. The question, if I may say so with respect, was succinctly considered by Sahai, J. sitting in Division Bench in Jaman Mian V/s. The State, AIR 1966 Pat 375 . He pointed put the distinction between the applicability of the Pre-consitutional Enactments and post-constitutional Enactments. It was held with reference to the Land Customs Act (Central Act XIX of 1924) that it was not applicable to the Scheduled Area. I find myself in respectful agreement with the view expressed in Jhaman Mians case, AIR 1966 Pat 375 . I may however, venture to add a few reasons of my own also. 6 It is undisputed that by no Regulation enacted after Regulation 3 of 1872 the provisions of the Transfer of Property Act were made applicable to the Scheduled Area of Santal Parganas. Under Article 372 of the Constitution Regulation 3 of 1872 being a law in force in the territory of India immediately before the commencement of the Constitution continued in force therein until altered, repealed or amended by a competent legislature or other competent authority. Under Article 372 of the Constitution Regulation 3 of 1872 being a law in force in the territory of India immediately before the commencement of the Constitution continued in force therein until altered, repealed or amended by a competent legislature or other competent authority. Its continuing in force, however, was subject to the other provisions of the Constitution. In other words, it could not control and govern the laws enacted by the Indian Parliament or any State Legislature under Article 245 or 246 of the Constitution. In regard to such laws the provisions contained in Fifth Schedule appended to the Constitution govern the case. If any particular provisions of an enactment were excluded by the notification issued by the Government then and then only they could not apply to the Scheduled Area otherwise they were applicable. But Regulation 3 of 1872 and the other Regulations unless they were altered, repealed or amended continued in force as they were and did very well govern the application of the pre-Constitutional Laws. The provisions of Article 245 or 246 of the Constitution or Fifth Schedule appended thereto could not and did not obliterate the effect of Sec.3 of Regulation 3 of 1872 in so far as it governs the applicability of the Pre-constitutional laws and enactments. That being so, I am definitely of the view that the provisions of the Transfer of Property Act including the one contained in Sec.106 in it will not govern the present suit, the value of the disputes in which is below rupees five hundred. 7. Learned counsel for the defendant respondents submitted that the principle of law engrafted in Sec.106 of the Transfer of Property Act should be made applicable to the present case on the ground of justice, equity and good conscience even though the provisions of the said Act are in terms not applicable. He placed reliance upon an unreported decision of a learned single Judge of this Court in Satyanarayan Morarka V/s. Motilal Agarwala S. A. No. 571 of 1963, D/-10-8-1964 (Pat). That was also a case from Santal Parganas. He placed reliance upon an unreported decision of a learned single Judge of this Court in Satyanarayan Morarka V/s. Motilal Agarwala S. A. No. 571 of 1963, D/-10-8-1964 (Pat). That was also a case from Santal Parganas. The learned Judge took the view that even though Sec.106 of the Transfer of Property Act was not applicable, the principle engrafted therein should be applied on the ground of justice, equity and good conscience as laid down in the Full Bench decision of the Calcutta High Court in Sulatu Das V/s. Jadu Nath Das, (1904) 8 Cal WN 774. I am unable to accept the view of the learned Judge as correct, and I say so with very great respect. The rule of law enacted in Sec.106 of the Transfer of Property Act is not a rule of justice, equity and good conscience, as pointed out by the Supreme Court in Namdeo Lokman Lodhi V/s. Narmadabal, AIR 1953 SC 228 , with reference to the provisions of notice in Sec.111 (g) of the Transfer of Property Act. The requirement of giving of notice is a technical rule of law. It is a firmly established principle that such a rule of law cannot be characterised as law based upon the principle of justice, equity and good conscience. It cannot be applied without the application of the statute law. 8. In the result, I allow the appeal, set aside the judgment and decree of the lower appellate Court and restore that of the trial Court. I shall make no order as to costs either in this Court or in the Court of appeal below. M.P.Verma, J. 9 I agree.