State of West Bengal vs Sankar Prasad Mukherji

Bose, C.J.—This is an appeal from an order of P.B. Mukharji, J. dated January 9, 1959, making a rule issued under Article 226 of the Constitution absolute and cancelling a notice issued u/s 10(2) of the West Bengal Estates Acquisition Act.

The Respondent Sankar Prasad Mukherji is an intermediary within the meaning of West Bengal Estates Acquisition Act, 1953, in respect of various properties in mouza Lakshmanpur in the district of Malda. The Respondent leased out some of these properties which are admittedly tank fisheries to one Nitai Charan Das for the year 1361 B.S. This lease expired by effluxion of time at the end of the year 1361 B.S. In the beginning of the agricultural year 1362 B.S., that is, on the very next day after the expiry of the lease the properties belonging to the Respondent except those exempt under the said Act, became vested in the State of West Bengal inasmuch as the said date was notified to be the date of vesting as required under, the provisions of the West Bengal Estates Acquisition Act. The Respondent thereafter notified his intention to retain the said properties including the tank fisheries let out to Nitai Charan Das, which according to the Respondent came into the khas possession of the Respondent-after the expiry of the lease and remained in his possession since then. It appears that in the month of July, 1955, the lessee Nitai Charan Das applied to the Additional Collector (Estates Acquisition), Malda, for maintaining his lease which according to the Respondent had come to an end. Thereafter an enquiry was held by the Additional Collector, Malda and in October, 1955, a notice u/s 10(2) of the West Bengal Estates Acquisition Act was served upon the Respondent calling upon him to give up possession of the fisheries on the 3rd of March, 1362 B.S. corresponding to January 17, 1956. On December 19, 1955, the Respondent filed a petition of objection stating, inter alia, that as the lease had come to an end after the expiry of the Bengali year 1361, the state of West Bengal could not claim to be the lessor but the Respondent had the right to retain possession of the fisheries in question. On December 21, 1955, the Additional Collector, Malda, rejected the contention of the Respondent and directed delivery of possession. This order was confirmed by a further order made On January 14, 1956. On January 30, 1956, the Respondent moved this Court under Article 226 of the Constitution and a Rule nisi was issued on that date. This Rule finally came up for hearing before P.B. Mukharji J. who, by his judgment and order dated January 9, 1959, made the Rule absolute as already stated. It is against this order that the present appeal has been preferred.

The only question involved in this appeal is the question of construction of the proviso to Sub-section (2) of Section 6 of the West Bengal Estates Acquisition Act. The contention of the Appellants is that on a proper interpretation of the proviso the learned trial Judge should have held that the words "immediately before the date of vesting" as occurring in the proviso to Section 6(2) of the Act mean and include a lease expiring on the last day of Chaitra 1361 B.S. In other words, the submission is that the conclusion of the learned Judge that the words "immediately before the date of vesting" mean a lease subsisting at the date of vesting is erroneous and is not warranted by the terms of the proviso to Sub-section (2) of Section 6 of the Act.

In order to examine the force of this contention it is necessary to refer to certain provisions of the Act. Section 3 of the Act, inter alia, provides that the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. So the Act has the effect of overriding other laws and any contracts, instruments, usage or custom as mentioned in Section 3. Section 4(1) of the Act provides that the State Government may by a notification declare that/with effect from the date mentioned in the notifications, 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 incumbrances and Sub-section (2) provides that the date mentioned in every such notification shall be the commencement of an agricultural year and the notifications shall be issued so as to ensure that the whole area to which this Act extends, vests in the State on or before the 1st day of Baisakh of the Bengali year 1362. Section 5 of the Act provides that upon the due publication of a notification u/s 4, on and from the date of vesting, the estates and the rights of intermediaries in the estates, to which the declaration applies, shall vest in the State free from all incumbrances. Thereafter certain specific rights are enumerated in different clauses of that section which show that these specific rights will vest in the State from the date of vesting as mentioned in the notification u/s 4. The next relevant section is Section 6(1) which provides that 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 (a) land comprised in homesteads; (b) land comprised in or appertaining to buildings and structures, whether erected by the intermediary or not, (c) non-agricultural land in his khas possession, not exceeding fifteen acres in area; (d) agricultural land in his khas possession, not exceeding twenty five acres in area, as may be chosen by him; and (e) tank fisheries and there is an explanation appended to this Clause (e) explaining what tank fishery means. Then follows other clauses which are not necessary to enumerate for the purpose of this case, Sub-section (2) of Section 6 provides that an intermediary who is entitled to retain possession of any land under Sub-section (1) shall be deemed to hold such land directly undo: the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed.

...Then follows the proviso to Sub-section (2) which is very material for the purpose of this case and which is as follows:

Provided that if any tank fishery or any land comprised in a tea-garden, orchard, mill, factory or workshop was held immediately before the date of vesting under a lease, such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date, subject to such modification therein as the State Government may think fit to make.

Section 10(5) provides that nothing in this section shall authorise the Collector to take khas possession of any estate of any right of an intermediary therein, which may be retained u/s 6.

Section 42 provides that when an intermediary is entitled to retain possession of any land under Sub-section (1) of Section 6, then except in cases of land retained under Clauses (h) or (i) and except in the cases referred to in the proviso to Sub-section (2) of Section 6, the Revenue Officer shall determine the rent payable in the prescribed manner and in accordance with the principles laid down in that section.

It will thus be clear from a perusal of these relevant sections that Section 6 is in the nature of a proviso or exception to Section 5. Sub-section (1) of Section 6 allows an intermediary to retain certain lands or properties which are mentioned in the different clauses of this section. It is also clear from Sub-section (1) that it is only in respect of properties which are in the possession of the intermediary that the latter is entitled to retain under the provisions of Sub-section (1) of Section 6. Sub-section (2) of Section 6 indicates that the proviso to this section overrides the provisions of Sub-section (1). In respect of cases coming under the proviso the intermediary is not entitled to retain the land. In such a case the lessee would be a tenant directly under the State Government. The intention of the Legislature as manifested in Section 6(1) of the Act is that with regard to properties which are in the possession of the intermediary he has a right to retain such properties. But if he has parted with possession of any such property and the lessee remains in possession immediately before the date of vesting on the basis of a lease under the intermediary, then Section 6(1) of the Act would not be applicable to such a case and the intermediary could not have any right to retain possession of such land. In such a case the lessee would become a tenant directly under the State Government.

It has been argued by the learned Government pleader appearing for the Appellants with considerable force that as in the present case the lease which was granted for the Bengali year 1361 expired only on the day preceding the date when the vesting took place pursuant to notification u/s 4 of the Act, it must be held that the tank fishery was held by the lessee immediately before the date of vesting under a lease and accordingly such lease shall be deemed to have been given by the State Government as contemplated by the proviso to Sub-section (2) of Section 6 and the Respondent intermediary would not have any right to retain such land under the provisions of Section 6(1)(e) of the Act. It is argued that the learned trial Judge''s interpretation of the proviso that in order that the terms of the proviso might be attracted it must be shown that the lease under which the lessee was holding the tank fishery in question or the land in question was a lease subsisting at the date of vesting, is not warranted by the words used in the section. It is submitted that the learned Judge was not justified in importing words into the proviso namely the word subsisting which is not to be found in the section. It is further argued that the effect of the construction put by the learned Judge is that he has interpreted the words tank fishery or land etc. held immediately before the date of vesting as meaning tank fishery or land held at the date of vesting and this is not warranted by the language of the proviso. Attention of the Court has been drawn to Section 29(1) of the Act which provides as follows:

29(1). All leases of mines and minerals in a notified area granted by an intermediary and subsisting immediately before the date of vesting shall with effect from such date, be deemed to have been granted by the State Government to the holder of the said subsisting lease on the same terms and conditions as of the subsisting lease....

It is pointed out that where the Legislature intended to use the expression subsisting, it has done so expressly as in this Section 29, but no such expression occurs in the proviso to Sub-section (2) of Section 6. Therefore it is clear that it was not the intention of the framers of the West Bengal Estates Acquisition Act to make the proviso applicable only in cases where a lease was subsisting or continuing at the date of vesting notified u/s 4 of the Act.

It appears to us, however, that the contention of the learned Advocate for the Appellants cannot be accepted as sound. Structure of Section 26 is such that the word ''subsisting'' had necessarily to be used by the framers of this section for the purpose of manifesting the real intention as embodied in the section. Sub-section (1) of Section 29 opens with the words ''all leases'' and for the purpose of showing the existence of such leases the word ''subsisting'' had to be used in the section. But the proviso appended to Sub-section (2) of Section 6 begins with the words "if any tank fishery or any land" and so it was necessary to use the words "held immediately before the date of vesting under a lease". The use of the word ''subsisting'' would not be appropriate and would not fit in with the structure of the proviso. The holding of a tank fishery or any land under a lease would be the more appropriate expression to use and accordingly, the language of the proviso is as it appears therein. It appears to us that the construction put by the learned trial Judge is correct. It is only if a tank fishery is held by a lessee under an intermediary on the date of vesting, then under the proviso to Sub-section (2) the intermediary would not be entitled to retain it and the lessee shall hold the same under the State Government on the same terms and conditions as immediately before the date of vesting subject to such modification thereof as the State Government may think fit to make. If the lease has expired before the date of vesting and if the lessee is unwilling to renew the lease or to continue the lease, can it be suggested that even then such a lessee would be compelled to take a lease under the State Government on the same terms and conditions on which he was holding the land or the tank fishery immediately before the date of vesting? I do not think that such was the intention of the Legislature when framing the proviso to Sub-section (2) of Section 6. The proviso clearly contemplates a case where the lessee was holding the land or the tank fishery at the date of vesting. The learned trial Judge has given various reasons for supporting his conclusion and we are generally in agreement with his reasonings. Merely because the lease in i.e. present case was subsisting till the last day of Chaitra, 1361 B.S. that is the date previous to the date of vesting, does not bring the case within the mischief of the proviso. It is true that in the present case the lessee made an attempt to revive his lease in July, 1955, as appears from para. 5 of the petition of the Respondent under Article 226 of the Constitution. But that fact will not in our view bring the case within the mischief of the proviso and extinguish the right of the intermediary to retain possession of the tank fishery in question u/s 6(l)(e) of the Act.

In a Bench decision of this Court Reliance Development and Engineering Ltd. v. The Corporation of Calcutta (1957) 61 C.W.N. 533 (337-38) it has been held that if a lease had come to an end before the date of vesting, then Sub-section (2) of Section 6 would not apply to such a case. The relevant observations of S.R. Das Gupta, J. who delivered the judgment in that case may be set out hereunder:

Mr. Roy contended before us that the said proviso is not applicable to the present case, because at the date in question, that is to say, immediately before the date of the vesting order, there was nobody holding under a lease from the intermediary, that is to say, the Corporation. The lease which was in existence had already come to an end and that being so the proviso to Sub-section (2) does not apply to the facts of this case. This contention of Mr. Roy, in my opinion, should be accepted. From the facts stated by me it appears clearly that the lease given by the Corporation had come to an end long before the West Bengal Estates Acquisition Act had come into force. It is true that the Corporation could not get physical possession of the land in question for a long number of years but that does not mean that the Appellant company was holding the land under a lease from the Corporation. In my opinion, in the facts of this case the proviso to Sub-section (2) of Section 6 does riot apply.

Although the facts of this case, Reliance Development if Engineering Ltd. v. The Corporation of Calcutta (1957) 61 C.W.N. 533 (337-38), show that the lease had come to an end long before the date of vesting and in the case before us the lease came to an end only on the date previous to the date of vesting, that will not in our opinion make any difference in the ultimate conclusion with regard to the construction to be put upon the proviso to Sub-section (2) of Section 6 of the Act. The case of the Respondent is that he had resumed possession of the tank, fisheries which had been let out to the lessee upon the expiry of the lease and it was only in July, 1955, that the lessee made an attempt to revive the lease by putting forward his claim before the Additional Collector, Malda, to maintain the lease. So it is quite clear that the lessee was not holding the tank fishery at the date of vesting and so the question of the State Government giving a lease to the lessee on the same terms and conditions on which he was holding the tank fishery immediately before the vesting cannot possibly arise and the proviso cannot be attracted to such a case. The expression "shall be deemed to have been" occurring in the proviso clearly suggests that the lease must be continuing at the date of vesting. If a lease has come to an end at the date of vesting and the State Government renews the lease or grants afresh lease, that will be a new lease granted by the State Government. The deeming provision is inapplicable to such a case. The learned Government pleader referred to Crawford v. Spooner (1846) 4 M.I.A. 179; Garland v. Carlisle (1857) 4 Cl. & Fin. 693; Corporation of Calcutta v. Province of Bengal ILR (1940) Cal. 168 (178); British India General Insurance Co. Ltd. v. Captain Itbar Singh AIR 1959 S.C. 1351 (para. 13); Bejoy Krishna Mookherjee v. Lakshmi Narain Jiu (Idol) (1919) 30 C.L.J. 433; Benoy Krishna Das v. Salsiccioni (1932) 37 C.W.N. 1 (P.C.) and Craies on Statutes, 5th ed., 103 and Maxwell''s Interpretation of Statutes, 11th ed., Edn. 3, in support of his contention that the construction put by the learned trial Judge is not right. The attention of the Court was also drawn to Tirath Singh Vs. Bachittar Singh and Others, , State of Rajasthan Vs. Leela Jain, , Sheikh Gulfan and Others Vs. Sanat Kumar Ganguli, and The Morvi Mercantile Bank Ltd. and Another Vs. Union of India (UOI), , but it is not necessary to deal with these cases at any length. We are of the view that the decision of the learned trial Judge is right and it should be upheld.

In the result, this appeal must fail and it is accordingly dismissed. Each party will pay and bear its own costs.

B.C. Mitra, J.

I agree.