MAHINDRA NATH BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner Manindra Nath Bose was the owner of certain lands in Mouza Hingulganj, P. S. Hasnabad in the district of 24-Parganas. This land with which we are concerned in this case, was known as the Hingulganj Hat. The lands comprised within the said Hat measure more or less 14. 61 acres. Upon this land, there are 350 Chandina tenants, that is to say, monthly tenants of Chandina interests. On this Hat land there are homestead lands and other khas lands upon which there are structures constructed by the petitioner. We are not directly concerned in this application with that part of the property. The Chandina tenants have also erected structures on the land of the petitioner let out to them. On the 11th November, 1954 a notification was published under section 4 of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954), declaring that all estates and the rights of every intermediary in such estates, situated in the district of 24-Parganas except, areas described in Schedule I of the Calcutta Municipal Act, 1951, shall vest in the State free from all incumbrances. On or about the 5th March, 1956 the petitioner submitted a return in Form No. 'b' as prescribed by the West Bengal Estates Acquisition Rules, in respect of all the lands comprised within the said Hat, for retaining the same under the provisions of section 6 of the said Act. Meanwhile, the Land Reform Officer, Basirhat, had served notices on the Chandina tenants directing them to pay rents to the State. In March, 1956 the petitioner made an application before the Collector, 24-Parganas, requesting him to direct the respondent No. 3 to retrain from collecting rents from the said tenants. Thereafter, the petitioner received a letter from the respondent No. 2 dated April 20, 1956 informing him that he is not entitled to retain the said lands on which structures were constructed by the tenants under section 6 (1) (b) of the said Act, because the tenants were liable to pay rents to the State. Thereafter, correspondence passed between the parties, the respondents insisting on realising rents from the tenants and the petitioner resisting it. This rule was issued on the 15th May, 1956. The application is confined to a single point only as to whether the petitioner was entitled to retain the land upon which his Chandina tenants built structures under section 6 (1) (b) of the said Act. We are not concerned in this application with the other portion of the Hat, upon which the petitioner himself constructed any structure, or where there Was no structure. Such questions have, not been agitated in this application. The relevant provisions contained in section 6 of the said Act, are set out below:-

(2.) 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.

(3.) ACTUALLY speaking, we are concerned in this application with the provisions of section 6 (1) (b), but I have set out several other sub-sections with a purpose which will be evident presently. It will appear from a plain reading of the provisions contained in section 6 (1) (b), that the land appertaining to structures built by the Chandina tenants of the petitioner is covered. It will be observed that while a limit of the total area of land that can be retained has been imposed under clauses (a) and (c), there is no such limit in respect of clause (b) that is to say, all lands relating to structures, whether built by the intermediary or his tenants, can be retained. In this case, no point has been taken with regard to the extent or the area of the land that is sought to be retained. Although a plain reading supports the contention of the petitioner, namely, that the land upon which his Chandina tenants built structures can be retained by him, it is argued by the respondents that the provisions of section 6 (1) (b) should be read in a special way. It is argued that only such land comprised in or appertaining to buildings and structures can be retained as are in the khas possession of the intermediary. In other words, if the structures have been built, whether by the intermediary or not, on land which is not in the khas possession of the intermediary, then he cannot retain the same. If this is correct, then the petitioner cannot retain the land upon which his Chandina tenants have built structures, because the land on which the structures have been built, were not in the khas possession of the petitioner, but in the possession of the tenants on the date of vesting. In support of this interpretation of section 6 (1) (b), reliance is placed on a Single Bench judgment of this Court, Puma Chandra Ganguly v. Sridhar B. S. Thakur (1) 60 C. W. N. 979. In that case, the land was comprised in a mill which was let out by the intermediary to tenants. It was held by the learned Judge that the matter fell under the proviso to subsection (2) of section 6, and as such, the actual tenant became a tenant under the State Government and so, the intermediary lost his rights. This would have been sufficient to dispose of the case, but the learned Judge also held that in order to retain any land under section 6 of the Act, the intermediary must be in khas possession. The learned Judge thought that the dictionary meaning of the word "retain" was to keep possession of, or to keep in possession, and so the use of this word indicated that the legislature intended that the intermediary must be in khas possession of whatever lands he is entitled to retain under section 6. The learned Judge also referred to the language used in sub-section (2), which provided that the intermediary who was entitled to retain possession of any land under sub-section (1), shall hold the said land as tenant of the State, subject to payment of rent. According to the learned Judge, this could not happen unless and until the intermediary was in khas possession of the land which he. intended to retain. With great respect, I am unable to agree with this conclusion. The dictionary meaning of the word, "retain" is not merely to keep possession of or to keep in possession. There are other meanings. For example, in the Chamber Dictionary, the word "retain" means "to keep, to hold back, to continue to hold". The Oxford Dictionary also gives the same meaning. In Stroud's Legal Dictionary, (Vol. 3), it is stated that "to retain property means to keep it". Reference may be made to the case of Glaholm v. Rowntree (2) 112 E. R. 273 at 275, where the word "retain" has been construed as meaning "to keep". When a person is in khas possession of land, then of course, he is actually in possession. But there may be other kinds of constructive possession, e. g. , through tenants. I do not see why the particular statute does not intend that an intermediary in such a case should retain such possession as he has. Now I come to the other indications contained in the section itself which supports this view. It will be found that in some of the clauses in section 6, the word, "khas possession" is mentioned, whereas in others it is not mentioned, "khas possession" is mentioned in clauses (c), (d) and its proviso, (h), (i) and (j), whereas it is not mentioned in the other clauses. This use of the word "khas possession" in some clauses and not in others, must be taken to be deliberate and not accidental. If we have to introduce the word "khas possession" into clause (b), that would be adding to the words of the statute. It would be an instance of supplying a "casus omissus" which is not permissible. See Robert v. Richard Spooner (3) (1846) 6 Moore P. C. 1 at 9. In a Supreme Court decision Hira Devi v. District Board, Shajahanpur (4) (1953) S. C. A. 6 it has been held that it is not the duty of the courts to stretch the meaning of the words in a statute, or of filling gaps, or supplying words. In Kumar Kamala Ranjan v. Secretary of State (5) 66 LA. 1 at 10 it has been laid down that the court would not put into an Act the words which are not expressed, and which cannot be reasonably implied on any recognised principles of construction. Coming back to clause (b), we find that in the very next clause, namely (c), the words "khas possession" have been used. In my opinion, it can not be argued that the legislature had not the intention of making a distinction between the case of clause (b) and clause (c ). In order to support the interpretation made by the learned Judge, in the above-mentioned case, two things would have to be accomplished. Firstly, we have to ignore the use of the words. , "khas possession" in some of the clauses: and not in others, and secondly, we would have to introduce certain words in clause (b) which are not there. There are other internal indications Why this can not be done. As I have mentioned above, the words, "khas possession" do not appear in clauses (f) and (g ). If it is to be considered that in all the clauses the legislature; intended to allow the retention of land only in the khas possession of the intermediary, then in the case of clauses (f) and (g) also, it was intended that only such lands can be retained which are in the khas possession of the intermediary. If that be the right construction, then the introduction of the proviso to sub-section (2) of section (6) would be wholly unnecessary and redundant. As I have stated above that proviso lays down that in the case of a tank fishery or any land comprised in a tea garden, orchard, mill, factory or workshop, if the land was under a lease, that is to say, not in the khas possession of the intermediary, then the lessee in possession will hold directly under the State. If the intention under clauses (f) and (g) was that only such lands should be retained which were in the khas possession of the intermediary, then the lands in the possession of the lessees would be automatically excluded. So, what was the necessity of introducing the proviso. This shows that the lands that could be retained under clauses (f) and (g) were not necessarily the lands in the khas possession of the intermediary. It Will also be observed that the proviso to sub-section (2) does not include all kinds of lands described in clauses (f) and (g ). That also indicates the absence of any intention of providing that all lands retained should be in the khas possession of the intermediary. I do not see why it has been held that sub-section (2), whereby possession can be retained of any land as provided under sub-section (1), as a tenant under the State, makes it impossible for the intermediary to have a tenant himself upon the land. So far as the land is concerned which he held previously as an intermediary, that is to say, as the owner thereof, it vests in the State in ownership and he becomes a tenant. I cannot see any objection to his having a tenant under him if the law permits him to do so. Sub-section (2) of section 6 has laid down that the tenancy would be subject to such terms and conditions as may be prescribed. What would happen if it is prescribed that no such land could be sub-let, is more than I can say. In that event, I suppose the intermediary would have to eject the tenant and resume possession himself. So far as the rules have been framed upto date, there is no difficulty in this behalf, since there is no provisions against sub-letting.