Kalipada Saha vs Kishore Singh Sreemal

M.M. Dutt, J.—In these appeals we are mainly concerned with the question as to the scope and effect of the provision of Section 6(l)(b) of the West Bengal Estates Acquisition Act, 1953, as amended by Section 4(l)(b) of the West Bengal Estates Acquisition (Amendment) Act, 1961 (W.B. IX of 1961).

The Plaintiff Appellant in these appeals instituted three suits being Money Suits Nos. 16, 18 and 17 of 1961 against the Defendants Respondents for the recovery of arrears of rent in respect of the suit land for the years 1364 B.S. to 1367 B.s. The main contention of the Defendants in the above suits was that the interest of the Plaintiff vested in the State and, as such, the suits were not maintainable. It may be noted here that the structures existing on the suit land were erected by the Defendants.

The learned Munsif dismissed all the said suits on the ground that the interest of the Plaintiff had vested in the State and that the Plaintiff had no right to retain the suit land in view of the amendment of the provision of Section 6(l)(b) of the West Bengal Estates Acquisition Act. The judgments of the learned Munsif were upheld by the learned Subordinate Judge in appeals and the learned Subordinate Judge come to the same conclusion and dismissed the appeals preferred by the Plaintiff against the judgments and decrees of the learned Munsif passed in the above suits.

In these appeals, Mr. Abinash Chandra Bhattacharyya, learned Advocate for the Plaintiff Appellant, contended before us that the amendment of the provision of Section 6(l)(b) of the Act had the effect of vesting of the interest of the Plaintiff Appellant in the suit land as contemplated u/s 4 and that, accordingly, a fresh notification under the said Section 4 of the West Bengal Estates Acquisition Act was necessary and, in the absence of such a notification, the interest of the Plaintiff in the suit land did not vest in the State. Further, it was contended by Mr. Bhattacharyya that, in any event, the Plaintiff having retained the suit land under the unlamented provision of Section 6(l)(b) of the Act he was entitled to recover rent from the tenant Defendant upto the date when the said amendment was made. Mr. Bhattacharyya admitted before us that the Plaintiff was an intermediary within the meaning of the Act and the finding of the Courts below that the Plaintiff was an intermediary, was not challenged before us.

u/s 4 of the West Bengal Estates Acquisition Act the State Government may from time to time by notification declare that with effect from the date mentioned in the notification all estates and the rights of every intermediary in each such estate, situated in any district or part of a district specified in the notification, shall vest in the State free from all in cumbrances. Section 5 of the Act provides the several consequences which will follow on the due publication of a notification u/s 4 of the Act on and from the date of vesting. The date of vesting as specified in the notification u/s 4 of the Act, which was published, was Baisakh 1, 1362 B.S. Section 6(l)(b) of the Act before it was amended was as follows:

Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other provisions of that Sub-section, be entitled to retain with effect from the date of vesting--

(b) Land comprised in or appertaining to buildings and structures, whether erected by the intermediary or not.

It is clear from the aforesaid provision of Section 6(l)(b) of the Act, before the same was amended, that the Plaintiff who was an intermediary was entitled to retain the suit land. It was the case of the Plaintiff that he retained the suit land under the provision of Section 6(l)(b) of the Act before the same was amended. Although these structures were erected by the tenants, the Plaintiff was entitled to retain the suit land comprised in or appertaining to the structures in view of the provision of Section 6(l)(b) of the Act before-the same was amended.

The provision of Section 6(l)(b) of the Act was, however, subsequently amended by the West Bengal Estates Acquisition (Amendment) Act, 1961 (W.B. IX of 1961), Section 4(l)(a) & (b) of the said Amendment Act reads as follows:

In Section 6 of the said Act-- (1) in Sub-section (1), (a) in Clause (b), for the words ''whether erected by the intermediary or not'', the words ''owned by the intermediary or by any person, not being a tenant, holding under him by leave or licence'' shall be, and shall be deemed always to have been, substituted ;

(b) to Clause (b), the following explanation shall be, and shall be deemed always to have been added, namely:

Explanation--For the purposes of this clause ''tenant'' shall not include a thika tenant as denned in the Calcutta Thika Tenancy Act, 1949 (West Ben. Act II of 1949);

By the deeming provision, as quoted above, the amendment was given retrospective operation. It is well-settled that�s deeming provision postulates that a thing deemed to be something else is not, in fact, the thing which it is deemed to be. It is also well-settled that in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. The Court is bound to give full effect to statutory fiction and carry it to its logical conclusion: Vide Commissioner of Income Tax, Delhi Vs. S. Teja Singh, ; Shaikh Jumrati v. S.B. Banerjee (1962) 66 C.W.N. 891; Ananta Kumar Dutta Vs. Land Revenue Officer II Estates Acquisition Branch, Nadia, .

In view of the deeming provision, we have to assume that the intermediary who is the Plaintiff was not entitled to retain the suit land on the date of vesting inasmuch as the structures standing on the suit land were all erected by the tenants. We have already observed that under the unamended provision of Section 6(l)(b) of the Act the Plaintiff was entitled to retain the suit land but, in view of the amendment of the said provision with retrospective effect, it has got to be assumed that the Plaintiff had never the right to retain the suit land and he did not retain the same.

We are unable to accept the contention of Mr. Bhattacharyya that the lands which were allowed to be retained by inter mediaries u/s 6 of the Act did not vest and that the effect of the amendment, even though it had retrospective operation, was only to vest the interest of intermediaries in such lands in the State, as contemplated in Section 4, thus requiring a fresh notification under the said section. Under Sections 4 and 5 of the Act, estates and the rights of intermediaries in every such estates vested in the State. Under- Section 6 of the Act the intermediaries were given the right to retain certain lands. It cannot be that the lands which were allowed to be retained by an intermediary under the provision of Section 6 of the Act did not vest in the State under Sections 4 and 5 of the Act as contended by Mr. Bhattacharyya. Vesting and the right of retention are two different transactions although taking place simultaneously. It is clear that out of the lands which vested in the State the intermediaries were allowed to retain certain lands and interests as enumerated u/s 6 of the Act as tenants under the State and it would not be correct to say that lands or interests enumerated u/s 6 of the Act did not at all vest in the State. In this connection we may refer to a recent decision of the Supreme Court in Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others, . That was a case, under the Bihar Land Reforms Act and a similar contention was advanced before the Supreme Court in that case. In overruling the said contention the Supreme Court observed as follows:

Reading Sections 3, 4 and 6 together, it follows that all Estates notified u/s 3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors they retain no - interest in respect of them whatsoever. But. in respect of the lands enumerated in Section 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyat''s. rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolute, and free of all encumbrances. Then followed the deemed settlement by the State of raiyat''s rights on the quondam proprietors. Therefore, in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6.

Although the said decision of the Supreme Court in the said case was under the Bihar Land Reforms Act which, in its relevant part, was slightly differently worded, there is no doubt that the principle underlying the said Supreme Court decision would apply to the instant case. Accordingly, the contention of Mr. Bhattacharyya that the lands, which were allowed to be retained u/s 6 of the" Act, did not vest in the State must be overruled. Mr. Bhattacharyya, in support of his above argument, relied upon the decision of our learned brother P. B. Mukharji, J. (as he then was) in Tara Prasad Mukherjee v. Ganesh Chandra Mondal (1965) 70 C.W.N. 652. That, no doubt, was a decision under the West Bengal Estates Acquisition Act. But, we�do not see how that decision helps Mr. Bhattacharyya. In para. 40 of the said decision his Lordship made the following significant observation:

It is only after the estates have vested in the Government that the right of retention really arises.

It is thus clear that his Lordship was making a distinction between vesting and the right of retention which arose only after the vesting of the estates and the rights of intermediaries therein in the State Government.

As we have held that the amendment of Section 6(l)(b) of the Act with retrospective effect had nothing to do with the question of vesting as contemplated by Sections 4 and 5 of the Act, there is no merit in the contention of Mr. Bhattacharyya that the interest of the Plaintiff could not vest in the State without a fresh notification u/s 4 of the Act. Mr. Bhattacharyya relied on a decision of Sinha, J. (as he then was) in Katras Jharia Coal Co. Ltd. Vs. State of West Bengal and Others, . In that decision the effect of the amendment of the definition of the word ''intermediary'' with retrospective effect was considered. Initially, lessees and sub-lessees of mines and minerals were not intermediaries, but subsequently in 1957, by an amendment of the definition of the word ''intermediary'' with retrospective effect, the lessees and sub lessees were made intermediaries by a deeming provision. It has been held by Sinha, J. (as he then was) that the effect of the amendment of the original definition ''intermediary'' in 1957, together with- the deeming clause, is that since 1954 the State Government must be taken to have possessed the right of acquiring the estates or rights therein of all intermediaries, including that of lessees and sub-lessees of mines and minerals and that in the case of these lessees and sub lessees who have been included as a result of the amendment, a fresh notification must be issued in terms of Section 4 in order to vest their estates or rights therein in the State Government. In the instant case before us, we are not concerned with the question of vesting but we are concerned with the question of retention of the land by the Plaintiff. The decision in Katras Jharia Coal Co. (Supra ) has, therefore, no manner of application to the instant case.

Mr. Bhattacharyya''s next argument was that his client was entitled to retain the suit land upto the date when the amendment of Section 6(l)(b) with retrospective effect was made. In other words, Mr. Bhattahcaryya submitted that his client was entitled to realize the arrears of rent upto the date of amendment of the said provision. We are unable to accept the said contention of Mr. Bhattacharyya. If that contention is accepted then it would be ignoring the deeming provision whereby the amendment was made with retrospective effect. In view of the amendment of the provision of Section 6(l)(b)'' with retrospective effect by the said deeming provision and giving effect to the same literally or applying the golden rule of

literal construction, we have no other alternative than to assume that the Plaintiff had never the right to retain the suit land inasmuch as the structures were erected by the tenants holding under the Plaintiff.

All the contentions of Mr. Bhattacharyya having failed these appeals must be dismissed. The appeals are, accordingly, dismissed, but in the circumstances there will be no order for costs.

P.N. Mookerjee, J.

I agree and need only add that, the instant suits being merely suits for recovery of rent, the case of Lalji Agarwalla Jain v. Jhingu Goala would be distinguishable.