Azizur Rahaman and Others vs Sukumar Dey

S.N. Sanyal, J.—These tow Rules wear heard together as the points involved in both the Rules are the same Both the Rules are against the order dated November 17, 1981 by which learned Munsif 4th-Court Sealdah allowed Misc. Case 1978 and dismissed the execution petition against the opposite in these Rule. The petitioners in both the Rules obtained order for eviction of opposite parties under the Rehabilitate of Displaced Person and Eviction of Persons in Unauthorised Occupation of Land Act, 1951 (hereinafter referred to (sic)the Act of 1951. In terms of the order the opposite parties in both the Rules along with others were asked to vacates the disputed property within 60 days. The opposite parties however were also found to be displaced persons and they were held to be entitled to protection u/s 4 of the Act of 1951. The order directed ascertainment of compensation Compensation was subsequently assessed and the opposite parties were directed to pay compensation. The petitioner put the order dated November 1,1957 into execution before the'' learned Munsif in kumar Day opposite parry in C.R. 613 of 1962, filed an application u/s 47 of the CPC registered as Misc. Case no. 120 of 1975 in which he objected to the execution on several ground. According to the opposite party Sukumar Day the was not executable and the opposite party was in adverse possession since 1948. The opposite parties M(sic)nath Dasgupta Makhan Das and Anil Krishna Das of C. R. 614 of 1982 filed an application u/s 47 of the C.P. Code and the same was registered as Misc. Case no.52 of 1978. It was contended the execution case was not maintainable It was further contended that the opposite parties were held as displaced persons by the competent authority in C. A. Case no. 50 of 1952 and as they had not been provided by Government with house or land or any alternative accommodation, they were not liable to be evicted. There was also the contention that they were in adverse possession.

The learned Munsif by the impugned order allowed the applications u/s 47 C. P. Code. The learned Munsif held that the finding of the competent authority shows that the case of the opposite parties should be referred to the State for alternative accommodation. The learned Munsif, further held that the judgment debtors were not liable to eviction/until alternative accommodation was provided to them. The learned Munsif also held that apart from referring the case of the petitioners for assessing monthly compensation northern evictable order was passed by the competent authority.

Being aggrieved, the petitioners have challenged the said decision in these two Rules. Opposite party Anil Krishna Das in C. R. 614 of 1982 died during the pendency of the Rule and his heirs have been substituted.

Mr. B. K. Banerjee, learned Advocate for the petitioner, has argued that the learned Munsif was wrong in holding that the opposite parties were not liable to be evicted for non-payment of compensation money. Mr. Banerjee has further contended that the Rehabilitation of. Displaced Persons and Eviction of Persons in unauthorised Occupation of Land, Act, 1951 was a temporary Act and Rehabilitation of Displaced persons and Eviction of Persons in unauthorised Occupation of Land (Continuance of Provisions) Act, 1964 was passed for the continuation of the Act of 1951 to the extent and for the purposes appearing in the Act of 1964. Mr. Banerjee argues that when the Act of 1964 was passed the case under the Act of 1951 was pending. It has been further argued that the opposite parties were not entitled to possess the land when they failed to pay the compensation money assessed by the competent authority. According to. Mr. Banerjee, the learned Munsif was wrong in holding, that, even after non-payment, of compensation money the opposite parties were entitled to possess the land in dispute till they were provided with alternative accommodation In support of his argument, Mr. Banerjee has referred to Sm. Rajnandini Burdhan Roy and another, v. State of West Bengal and others reported in 72 C.W.N. 133

Mr. S. P. Sen, learned Advocate appearing on behalf of the opposite parties in both the Rules, has argued that eviction order became filial on November 1, 1957, the first order having been passed on April 11, 1955. Mr. Sen argues that the Act of 1964 came into force on April 1, 1964 and this Act has thus no application as no proceeding was pending on March 31, 1964. Mr. Sen has further argued that according to section 4 of the Act of 1951 no order under sub-section (3) of section 3 shall be executable if the person in respect of whom the order has been made is a displaced person who on the 31st December, 1950 was in unauthorised occupation of any land until the State Government provides for him other land from where the displaced person would be able to carry on conveniently such occupation as he may have been engaged in for earning his livelihood at the time when the competent authority makes the order and also a house on such other land suitable for him in the opinion of the competent, authority if immediately before. the competent authority makes the order be house on the land, Mr. Sen argues that in view of section 4 of the Act of 1951 until this provision for alternative accommodation be made the opposite parties who have been found to be displaced persons, cannot be evicted Mr. Sen argues that the learned Munsif was thus justified in holding that in the absence of alternative accommodation being provided to, opposite parties, they were not liable to be evicted. According to Mr. Sen, for the non-payment of compensation money the remedy is provided by section 9 of the Act of 1951 as the petitioners can recover the amount payable as compensation as a sum recoverable under a decree of a civil court. It was further contended by Mr. Sen that the execution case was barred by limitation as the order for eviction was made on November 1, 1957. The execution application was made on August 26, 1974. Mr. Sen argues that the starting point for limitation was from December 1957 when the monthly compensation was not paid.

In answer to this contention, Mr. Banerjee argues that the petitioner can waive the previous dues payable as compensation. Fresh period of limitation will begin each month because of continuous default in payment of compensation money. It has been further argued by Mr. Banerjee that section 9 of the Act of 1951 provides additional provision for recovery of amount due as compensation. Mr. Banerjee has contended that in a Divination Bench decision of this Courts, 72 (sic) all these questions were (sic)was held by their lordships (sic)non-payment of consideration for occupation was a continuing cause of action and if at the time when execution application had been made, there was any default of the payment of the consideration, the bar against execution was not there at all

In Rajnandini Burdhan, Roy and another vs. State of West Bengal and others reported in 72 C.W.N. 133, the provisions of the Act of 1951 were considered. In that case the appellants and the respondent nos. 9 and 10 neither vacated the land nor paid any compensation therefore or any consideration. It was specifically urged in that case that they could not be ejected without finding alternative accommodation had not been granted. It was held that u/s 4(1) of the Act of 1951 there were two conditions for receiving protection under that provision of law. The first was that alternative accommodation, should be found and the second one was that until it was, so found; the persons in unauthorised occupation would continue, to occupy the land upon payment of such compensation as the competent, authority may order. It was held that if the person in unauthorised occupation did not pay the consideration, he was not. entitled to protection simply because alternative accommodation had not been found. It was also held that non-payment of consideration for occupation was a continuing cause of action and if at the time when the execution application was made, there was any default in payment of the consideration the execution was not barred.

Having regard to the materials on record and principle of law laid down in 72 C.W.N. 133 it, appears that the contentions of Mr. Banerjee are well founded. The opposite parties have not paid any consideration. They are liable to eviction even if no alternative accommodations have been found. The opposite parties are liable to pay compensation till alternative accommodation is found for them. In order to get the benefit of section 4(1) of the Act of 1951 the opposite parties had to comply with the order for payment of compensation money. Had they done so they could certainly contend that until and unless alternative accommodation was found for them, they were not liable to be evicted. Section 9 of the Act of 1951 does not mean that the only right available to the petitioner is to apply for recovery of the sum by execution as under a decree of a civil court. For nonpayment of consideration, the person in whose favour an order of eviction is made can apply for execution for recovery of the land. Execution in this case is not barred by limitation as the nonpayment of consideration for occupation was a continuing cause of action. As there is no dispute that in the instant case no consideration was paid at any time prior to the making of the execution application, execution was thus not barred by limitation. The learned Munsif has failed to consider properly the provision of law relevant to the case. Eviction order was made on April 11, 1955. The said order was subject to payment of consideration but in the subsequent order the opposite parties of these two Rules were asked to pay consideration for occupation till they were provided with alternative accommodation. As order for eviction was already passed on April 11, 1955 if was not necessary for subsequent order fixing compensation to make a further order for eviction. There was thus jurisdictional error on the part of the learned Munsif arid the petitioners have been prejudiced thereby. The impugned order cannot be sustained. Both the Rules be made absolute and the impugned order be set aside. Both the applications u/s 47 C. P. Code being Misc Cases nos. 120 of 1975 and 52 of 1978 be dismissed. The learned Munsif will proceed with the execution case in accordance with law. Let the records be sent below forthwith. There will be no order as to costs.