C.N. Laik, J.
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.
4. The said argument though not made in the Courts below was allowed to be raised being a pure question of law. The contention, however, cannot be accepted on merits for the following reasons:
(a) The Act, as the Preamble shows, is meant for making better provisions relating to the law of landlord and tenant in respect of certain non-agricultural 'tenancies'. It is not restricted only to non-agricultural land'.
(b) Assuming it was so restricted, 'land' in the original entry No. 21 (present entry No. 18) of a State List of the Constitution should be given the widest meaning. See the Special Bench decision of this Court in the case of Sukumari Devi v. Rajdhari Pandey. : AIR1942Cal49 and the Federal Court decision in the case of Meghraj v. Allah Rakhia, 46 Cal WN (FR) 61: 1942 FCR 53: (AIR 1942 FC 27) affirmed by the Judicial Committee of the Privy Council in Meghraj v. Allah Rakhia, 74 Ind App 12: 51 Cal WN 523: AIR 1917 PC 72. The decision of the Patna High Court in Mangtulal v. Radhashyam, : AIR1953Pat14 cited by Mr. Lala, could be distinguished, as the impugned Act challenged in the said decision, did not receive the assent of the President under Article 254(2) of the Constitution. It is true that Wanchoo C. J. (as his Lordship then was) even after discussing the said Privy Council decision in the case of Meghraj, 74 Ind App 12: 51 Cal WN 523: AIR 1947 PC 72 (supra) felt difficulty, in the Rajasthan case of Millap Chand v. Dwarka Das, , in accepting that the word 'land' would include building houses but neither Mudholkar J. (as his Lordship then was) in the Bench decision of Manohar Ramchandra v. G. G. Desai, AIR 1951 Nag 33 (see paragraphs 10 at pp. 35 and 36) nor B. P. Sinha, C. J. (as his Lordship then was) in another Bench decision of the Nagpur High Court, Mangilal Karwa v. State of Maahya Pra-desh (S) AIR 1955 Nag 153 (see paragraph 7 at p. 156) nor Chagla C. J, in the Bench decision of the Bombay High Court of A. C. Patel v. Viswanath, : AIR1954Bom204 , felt any such difficulty. Their Lordships held that land' in the said item would include houses and buildings'. It might be stated that in the Allahabad Full Bench decision of Bamandas v. State of U. P., : AIR1952All703 (FB) the learned counsel did not contend that land' in item 21 is not wide enough to include house or house property.
(c) The provision for building and structure is not an independent provision. In my view, it is mere ancillary in character, enacted for carrying out the objects of the Act more effectively. The inclusion of building within the aforesaid item land' would subserve the purpose of the Act and the provision for it would, therefore, be an integral part of the Act, though ancillary to its main object. See Raghubir Singh v. State of Ajmer, : AIR1959SC475 .
(d) The said entries (old 21 and present 18) in the State List, authorise the State Legislature to legislate for determination of the relationship of a landlord and a tenant.
(e) Article 13 dealing with laws inconsistent with or in derogation of the fundamental rights in Part III of the Constitution has got no manner of application to such cases including the instant case.
In my judgment, therefore, Section 6(2)(a) of the West Bengal Non-Agricultural Tenancy Act, 1949 is intra vires the competence of the State Legislature and the said provision cannot be struck down for legislative incompetence.
5. On merits also, the appeal has no substance. The original tenant was inducted in July 1923 on the strength of a document whichwas a Bemeyadi Kabuliyat (Ext. A). It was a unilateral document which came into existence before the amendment of Section 107 of the Transfer of Property Act in the year 1929. providing that the registered instrument should be executed by both the lessor and the lessee. On the construction of the said document, it appears to me, that there is no restriction on me tenant from constructing any pucca structures. The facts, in the case of this Court of Sen J. namely, Indian Iron and Steel Co. Ltd. v. Ganesh Chandra Bose, 64 Cal WN 365 cited by Mr. Lala, are different. The lease there was for one year; and there was a specific term in which the tenant was prohibited from erecting pucca structure but then on the expiry of the term of the lease he began to erect pucca structure which is not the case here. Oral evidence again substantiates in the instant case that the constructions were carried on with the knowledge of the plaintiffs.
For these reasons, this appeal fails and consequently the suit also fails. There will be noorder as to costs in this appeal.