SUKUMAR DUTTA Vs. GOURI SANKAR SARMA

JUDGEMENT

(1.) The suit, out of which the plaintiff's second appeal arises stands (after deletion of a prayer in the plaint) as a suit, only for permanent and mandatory injunction. The plaintiff's case in short was that on partition with his cosharers he became the full owner of the property. In August 1953, when the plaintiffs officer went to the suit land, he saw that the tenant defendant had begun to erect a masonry wall, in place of split bamboo walls, on the tenanted land, without any right. The said construction, being unlawful according to the plaintiff, the aforesaid suit was brought.

(2.) The main defence was that a non-agricultural tenant had the right to errect structures under the provisions of Section 6 of the West Bengal Non-Agricultural Tenancy Act, 1949 (hereinafter stated to be the Act) and therefore the suit was not maintainable. Both the Courts below dismissed the suit against which the instant second appeal by the plaintiff has been preferred.

(3.) Mr. Lala, the learned advocate, in support of the appeal attacked firstly the validity of the Act to the effect that Section 6, particularly Clause (a) of Sub-section (2) of the said Section is ultra vires the competence of the State Legislature because of the provisions of Article 254 read with Article 13 of the Constitution. Mr. Lala contended that it is true that Section 6(2)(a) of the Act, which admittedly is applicable to the case, authorises a tenant, holding non-agricultural land, "to erect any structure inducting any pucca structure", but as the Act is intended and only meant for a tenant holding non-agricultural land; and as the word 'land' cannot include building and structure; therefore the State Legislature cannot legislate in respect of the building and structure in the name of the land, that is to say, within the purview of the present entry No. 18 of the State List (original entry No. 21) i.e., List II of the Seventh Schedule of the Constitution. The impugned section is, according to Mr. Lala, therefore ultra vires the powers of the State Legislature as it is a piece of legislation relating to an item not in the State List.