Banshidhar Dobey v. Budangal Das

The Judgment of the Court was as follows:—

This appeal arises out of a rent suit in respect of some land in the Western Duars in the District of Jalpaiguri. The Plaintiff is a jotedar and the Defendant is a chukanidar under him. In 1918 the chukani was purchased by the Plaintiff in execution or a decree. In Chaitra 1325 (1919) the Plaintiff let out the chukani to one Lepta Uraon who executed a kabuliyat agreeing to pay Rs. 115 as rent. In 1920 the Defendant purchased the land from Lepta Uraon. The Plaintiff has brought this suit for rent at the rate of Rs. 115 a year. The Defendant has pleaded that the Plaintiff is not entitled to recover the rent at which he settled the land but at the rate of Rs. 104 odd which is the rent recorded in the settlement record. Both the Courts have accepted the Defendant's plea and decreed the suit at the rate admitted by him. There was also a plea of payment. The Plaintiff appeals and it is argued on his behalf that the Defendant is bound by the engagement entered into by Lepta Uraon (his vendor) and he cannot plead that he is not liable for the rent fixed in Lepta's kabuliyat. For the defence it is argued that under the law as it obtains in that part of the country the Plaintiff is not entitled to recover more than 50 per cent of the rent which he himself pays to the Government.

In order to appreciate the value of the respective contentions of the parties it is necessary to trace the history of the Western Duars and of the law in force there. The territory known as the Western Duars was coded by the Bhutan Government to the British Government in 1866. By Act XVI of 1869 (The Bhutan Duars Act) the jurisdiction of the ordinary Civil Courts taking cognizance of suits in respect of immoveable property, revenue and rent in the territory was excluded and certain rules were framed by the Government which formed the schedule to the Act, which has the force of law there. It was, however, found that the Act of 1869 was defective in many respects and so it was repealed by Act VII of 1895. In 1875 the Scheduled Districts Act (XIV of 1874) was declared to be in force in the Western Duars; and Act XXIII of 1863 (the Act to provide for the claims to waste land) was also extended to the territory. See the Gazette of India of the 24th September 1875. By the repeal of the Act of 1869 the Civil Procedure Code was held to be in force in the Duars. Brojo Kant Das v. Tufaun Das (1). But no substantive law was declared to be in force there except what would be extended under the Scheduled Districts Act. In 1895 the Lieutenant Governor of Bengal with the previous sanction of the Governor-General extended Act X of 1859 and Act V of 1867 (B.C) to the Western Duars under the Scheduled Districts Act. By a notification, dated the 5th November 1898, the Lieutenant Governor of Bengal similarly extended under the Scheduled Districts Act the Bengal Tenancy Act to the Western Duars with some restrictions of which the following clause is relevant for our purpose: “Where there is anything in the said Bengal Tenancy Act which is inconsistent with any rights or obligations of a jotedar, chukanidar, darchukanidar, 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 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.” When the Duars became included in the late province of Eastern Bengal and Assam that Government by a notification, dated the 7th November 1908, extended under the Scheduled Districts Act the Bengal Tenancy Amendment Act, 1903 and the Eastern Bengal and Assam Tenancy Amendment Act of 1908 to the Duars with some restrictions one of which was the same as contained in the notification of the Bengal Government of the 5th November 1898.

After the acquisition of the territory by the British Government there have been periodical settlements by the Government laying down rules to be enforced during the settlements. The first settlement was in 1871, but no notice was taken in it of the interest of chukanidars. The second settlement was in 1880 by which the rents payable by chukanidars were fixed for the term of the settlement and the settlement officer was authorised to enhance the rents of chukanidars up to 50 per cent of the revenue. The third settlement, commonly known as Sunders settlement, was made in 1889 for a period of 15 years under which the rents of the chukanidars were fixed for the term of the settlement on the principle that they should ordinarily pay 50 per cent, above the jotedari rates. The rules laid down by this settlement with occasional modifications have been adopted in subsequent settlements. The Western Duars is governed by the Waste Lands Act and the Bengal Waste Lands Manual, 1919, gives the rules under which leases of waste lands in the Western Duars are made. It prescribes the form of leases (which is Form D at page 32 of the Manual) to be adopted in case of renewal of leases in the Western Duars. The conditions attached to the lease have from time to time been modified and the lease which was granted by the Government to the Plaintiff in 1922 contains a clause—being cl. (8)—that he shall not be entitled to enhance the rent of the chukanidar more than 50 per cent of what he himself pays to the Government. The history of the various settlements in the Western Duars and the rules obtaining there will be found in Chap. VIII of the Eastern Bengal and Assam District Gazetteers by Griming. It is noticeable that cl. (2), part 11, Chap. 1 of the rules given in the Bengal Waste Lands Manual says that the rules are executive orders not ordinarily framed under any particular law; and one of the rules says that in order to avoid sub-infandation, the under-tenants of the jotedars are prohibited to create subordinate tenures and that the Civil Courts shall not take cognizance of cases between such parties. The Government thus assumes the right to make laws for the territory.

This being the state of the law in that part of the country, we have to see if the Plaintiff is entitled to demand rent under the ordinary law of contract higher than 50 per cent, of his own rent. There can be no doubt that in view of the various enactments which have been passed and the ruins framed relating to the Western Duars, the Government in that temporarily settled estate has the power to frame rules which have the force of law. The right of the Government to make laws for temporarily settled estates has been reserved by the Bengal Tenancy Act by secs. 191 and 192. The last clause of sec. 192 empowers the revenue officer to fix a fair and equitable rent notwithstanding anything contained in the contract between the parties. In such districts which are inhabited by aboriginals the Government has reserved to itself the right to make rules or laws by its executive orders ad part of its administrative policy. But it is argued on behalf of the Plaintiff that in spite of the restriction in the Plaintiffs lease with regard to the amount at which he is entitled to sub-let his holding, the Defendant is bound by his contract, rather the contract made by his vendor; and in support of this contention reliance has been placed upon the cases of Gour Chandra Saha v. Hani Mohan Sen and Zahardar Baksh Mallik v. Ram Lal Hazra . The above cases came from the Districts of Nadia and Hooghly respectively which are permanently settled Districts. In these cases the Government let out its khas mehal and in the kabuliyats which the tenants executed in favour of the Government, they stipulated that they would not charge from their sub-tenants rents higher than what they paid and 50 per cent, more. The sub-tenants agreed to pay higher rents than what the Government tenants were entitled to claim. The learned Judges held that the contract between the parties was enforceable notwithstanding the clause in the lease which could only be enforced by the Government and not by a sub-tenant. These cases have no application to the present case as they relate to Government khas mehal in which the position of the Government is that of a private Zemindar; whereas in the temporarily settled estates the Government has the right to make rules governing the settlements and its settlement-holders. In a case like the present there is no question of a third party enforcing a contract between two other parties or that the lessee is bound by the terms of his lease, under which he holds the land under his landlord. The Government has settled this land under rules prohibiting subletting at a rate higher than that fixed by the temporary settlement. The question therefore is whether the Plaintiff has the right to claim rent more than what he has agreed to receive from a sub-tenant by the terms of the settlement. The rules as they stand do not confer any such right to the Plaintiff. The decision of the lower Appellate Court is in our opinion correct and this appeal is dismissed with costs.

P.C