Bijayesh Mukherji, J.@mdashThis is an appeal by the Plaintiff whose suit for a declaration that Ram Chandra Sadhukhan, a non-agricultural tenant, has no right to erect pucca structures on the land demised, as also for injunction, permanent and mandatory, fails in the Court of first instance. An appeal taken against that comes to little. Hence this second appeal.
2. The origin of a non-agricultural tenancy as this lies in a bemeadi kabuliyat dated Magh 8, 1311 B.S., corresponding to January 23, 1905, Ex. 1, in favour of one Nani Lai Chunari, the predecessor-in-interest of Sadhukhan.
3. It is hardly necessary to notice the vicissitudes through which this litigation launched 20 years back in May 1948 has passed. Suffice it to say that the disputes between the parties have once been carried to this Court leading to a leading case on the true construction of Section 88 and Section 6 of the West Bengal Non-Agricultural Tenancy Act, XX of 1949: Mritunjoy Pal v. Ram Chandra Sadhukhan (1959) 59 C.W.N. 1039. More, by this decision a Division of this Court overruled an earlier decision of a single Judge on what the construction of Section 88 should be like: Sarat Chandra Mondal v. Satish Chandra Baidya (1954) 59 C.W.N. 434.
4. To return to this appeal, the first point on which it has been opened is: Section 86 of the Act strikes down contracts between a landlord and a non-agricultural tenant made after the commencement of the Act in so far as'' they infract the provisions of the Act. But the contract here is a pre-Act contract in terms of which the suit has been brought by the landlord, the Appellant before me, and is, therefore, bound to succeed, the contract conferring no right whatever upon the tenant to erect a pucca structure.
5. True it is that Section 86 confines itself to post-Act contracts. So what? Section 7, which bulks so large here, has a non obstante Clause which, in so far as it is material here, bears: ''Notwithstanding anything contained...in any contract''. ''Any contract'' is too compendious an expression to include the contract here--a pre-Act contract of 1905. If there is, therefore, a conflict between the contract in this litigation and Section 7, the contract yields, as it must, in favour of Section 7. The enacting part of Section 7 is clarity itself. That being so, it controls the non obstante part. To give but one example in the context of facts here, the mandate of the enacting part when worked out stands thus: the non-agricultural land in controversy is being held for a term of not less than 12 years under a lease in writing, but no term is specified in such lease. That being so, the tenant shall not be ejected by his landlord except on the ground that he has used such land in a manner which renders it unfit for the purposes of the tenancy.
6. Now, look to the contract here, Ex. 1. By the very terms of the contract, the lessee is authorised to erect kharua ghar and not anything pucca. No matter that the contract is so, Section 7 prevails and the contract does not, when both cannot be read harmoniously. If the tenant does build a pucca structure, surely it cannot be said that he is using the land in a manner which renders it unfit for the purposes of the tenancy. On the contrary, he is using it in a manner which makes the land far more habitable and far more fit for the purposes of the tenancy itself. Still, going strictly by the terms of the contract, he becomes ejectable. Going by the terms of Section 7, he does not become ejectable at all. Hence, be it said at the risk of repetition, Section 7 prevails and that the contract does not.
7. Such, indeed, is the approach to be made in reading a non obstante clause, as laid down by the majority decision of the Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose (1952) S.C.A. 683, overruling a Special Bench decision of this Court: Aswini Kumar Ghosh v. Arabinda Bose (1951) 56 C.W.N. 145.
8. In sum, what Section 86 does not do to the contract in hand, Section 7 does abrogating it, in so far as it is inconsistent with Section 7''s mandate. It is, however, said that the Legislature expresses its intention and a clear intention at that in having enacted Section 86. I agree. No doubt, that is the intention--and a clear intention too of the Legislature--of voiding all post-Act contracts between a landlord and a non-agricultural tenant, in so far as they are inconsistent with the Act''s provisions. But, is that the only intention be gathered from the whole of the Act? Does not the Legislature also express its intention in having enacted Section 7 and in having incorporated there a non obstante Clause providing that Section 7 shall prevail notwithstanding anything contained in any contract? That intention also is too clear to be missed. The Act must be viewed as a whole and not piecemeal. It appears, therefore, that Section 7 applies to the non-agricultural tenancy here. Section 7 applying, by virtue of Sub-section (2), Clause (a) of Section 6, the non-agricultural tenants before me shall be entitled as of right to erect any structure including a pucca structure.
9. But it is said and this is the next point on which this appeal has been opened--that the first part of Section 7 being satisfied, as it is satisfied here in terms of Clause (Hi) thereof, the following consequences, excluding matters not material here, follow in terms of the second part thereof--
(i) The tenant becomes non-ejectable except on the ground just noticed.
(ii) The interest of the tenant becomes heritable.
(iii) The tenancy becomes transferrable as a whole.
10. The suit, however, does not concern any one of these incidents. Hence, the contention concludes, Section 7 cannot apply. What for the suit is or is not is, in my judgment, of the least materiality here. Indeed, it appears to be irrelevant. What is of the utmost materiality is do the provisions of Section 7 apply to the non-agricultural tenancy I see in this appeal? The answer is: they do. So soon as that is found--and it is found so--the non-agricultural tenants before me have every right to erect pucca structures on the land in controversy here, as so clearly provided for by Section 6, Sub-section (2), Clause (a). Section 6 does not say anything about Section 7 applying to a suit or a class of suits. It says about Section 7 applying to a non-agricultural-tenancy which, indeed, it does to the tenancy in hand.
11. The fact that Section 6 is empty of a non obstante clause--a point emphasized on behalf of the Appellant--appears to be neither here nor there. Once Section 7 applies to a tenancy as this, the non obstante Clause there comes in as a matter of course. And that is enough. What does it matter, therefore, that there is no non obstante Clause in Section 6?
12. The applicability of Section 7 to the non-agricultural tenancy in controversy here is sought to be prevented by reference to legislative intent again. The legislative intent is there in Section 7. Once the contract of 1905 is read closely enough, it becomes clear that, going by the contract alone, the non-agricultural tenants before me are eject-able so easily. Confining myself to the facts here, if they erect a pucca building instead of limiting their activities to kharua ghar, they become ejectable at once. But the legislative intent as manifest from Section 7 is there to prevent that. The non-agricultural tenants cannot be ejected except on the ground that they have used the land in controversy so as to render it unfit for the purposes of the tenancy. So, in recognising the tenants'' right here to build pucca structures, no more is done than effect being given to the very legislative intent in Section 7.
13. The last point on which I have been addressed is that the Respondents did not carry out any amendment of the written statement in the Court of first instance, as directed by the Court of Appeal below, the Court of Appeal''s decision having been affirmed by this Court. When, however, it is pointed out that all that the Court of Appeal below directed was to confer an opportunity to the parties to amend the pleadings, this point is not pressed any further.
14. Thus, all the points urged before me fail the Appellant.
15. In the result, the appeal fails and is dismissed with costs.
