ASUTOSH CHANDRA MITRA Vs. HARIPADA GANGULI

JUDGEMENT

(1.) These two appeals are directed against two awards in proceedings under the Land Acquisition Act. The question in controversy in each of these cases is, whether the occupancy raiyat is entitled to any portion of the compensation money. The landlord of the raiyat argues that under the terms of the contract of tenancy, dated the 10 March 1907, the occupancy raiyat has no claim to a share of the compensation money. This contention has been negatived by the Judge in the Court below.

(2.) The convenant is in these terms: "If the land covered by this kabuliyat be acquired by any Railway Company or any Canal Company or any other Company or Government, you shall get the value or compensation that may be awarded for the same. I shall have no concern with the same." There is no room for the controversy that a covenant of this character is not illegal and is enforceable. Godadhar Bhatta V/s. Lalit Kumar Chatterjee 4 Ind. Cas. 434 : 10 C.L.J. 476; Godadhar Dass V/s. Dhunput Singh 7 C. 585 : 9 C.L.R. 227 : 3 Ind. Dec. (N.S.) 925. But the tenant successfully urged in the Court below that as the land is agricultural in character, the co-venant is unenforceable by reason of the provisions of Section 178 of the Bengal Tenancy Act, which prescribes as follows in Clause (a) of Sub-section (1): "Nothing in any contract between a landlord and a tenant made before or after the passing of this Act shall bar in perpetuity the acquisition of an occupancy right in land." In our opinion this provision has no application to the covenant in question, which does not bar, either temporarily or in perpetuity, the acquisition of any occupancy right in land. What is provided is that the occupancy raiyat will not, in the event of acquisition by the Crown, claim a share of the compensation money. The substance of the matter is that an agreement of this description as to distribution of the compensation money in the event of acquisition does not affect the title or status of the raiyat. Consequently the covenant is not affected by Clause (a) of Section 178, Bengal Tenancy Act, and must be deemed enforceable.

(3.) The result is that these appeals are allowed and the order of the Judge varied. The amount which has been awarded to the raiyats will be taken by their landlords. The appellants are entitled to their costs in this Court and the lower Court. We assess the bearing fee at two gold mohurs in each case. Buckland, J.