B.N. Maitra, J.
1. The plaintiff's case is that one Hiralal Barik was recorded as a tenure-holder in rent free right in respect of 4.53 acres of land appertaining to Khatian No. 582 of mouza Sahapur. By the registered sale deed dated 8th June, 1963, he purchased a portion of that property, as noted in the Schedule Ka, from Hiralal's son. But in the R. S. Khatian the Kha Schedule land, which is a portion of the property described in the Schedule Ka to the plaint, has been assessed to rent at the rate of Rs. 94/-. This assessment of rent is illegal and without jurisdiction. The disputed property is a non-agricultural one held in Niskar right and hence it was not liable to be assessed to rent. The suit is for a permanent injunction on declaration that the entry, in the record-of-rights is erroneous and not binding on the plaintiff.
2. State of West Bengal contested the suit and stated that the assessment had been validly made.
3. The learned Munsif upheld the plaintiff's version and decreed the suit. State moved up to the appellate Court. The learned Additional District Judge stated that the original Khatian No. 938 contained non-agricultural land. Out of the property described in that khatian, Ext. 1, two khati-ans were carved out, namely, Nos. 1656 and 1655 under Section 26 of the West Bengal Estates Acquisition Act, vide the Khatians Exts. A (2) and A (3), The record-of-rights, Ext A (3), consisted of a danga plot, namely, plot No. 434 as Well. That was an agricultural land. He held that since the original property consisted of a danga land, that is, agricultural land, the case was not within the proviso to Section 42 of the West Bengal Estates Acquisition Act and hence the assessment of rent regarding the Niskar non-agricultural property had been validly made. Upon that finding the appeal was allowed and the suit dismissed. Hence this second appeal.
4. It has been argued on behalf of the appellant that the entry in the disputed Khatian No. 1656, Ext. 1 (a), shows that it consists solely of non-agricultural property. It will appear from Clause (c) of the proviso to Section 42 of the Act that regarding a rent free non-agricultural tenure, no rent is payable. So the assessment of rent regarding a rent-free tenure consisting of non-agricultural land is invalid.
5. The relevant proviso to Section 42 of the Act reads as follows:
'Provided that in the case of an intermediary, who immediately before the dateof vesting held any tenure comprising exclusively of non-agricultural lands, he shall,subject to any law for the time being inforce, for assessment or re-assessment ofrent, *** **
(c) pay no rent for the land retained by him if he held such land, rent-free immediately before the date of vesting.'
6. After the date of the vesting in the State, each tenant will have a separate tenancy regarding the land retained by him under Section 6(1) of West Bengal Estates Acquisition Act. So after preparation of the Khatian No. 1656, Ext. 1/a, regarding the disputed separate non-agricultural property, the fact that only one plot (No. 434) of the parent Khatian No. 938 was an agricultural one, cannot alter the position and take the case out of the purview of Clause (c) of the proviso to Section 42 of the Act.
7. The word 'tenure' has not been defined in the West Bengal Act (1 of 1954). Clause (p) of Section 2 of the Act says --
'Expression used in this Act and not otherwise defined have in relation to the areas to which the Bengal Tenancy Act, 1885 (VIII of 1885) applies, the same meaning as in that Act and in relation to other areas meaning as similar thereto as the existing law relating to land tenures applying to such areas, permits.'
Previously this property was situate in Behala, where the provisions of the Bengal Tenancy Act applied when the R. S. Khalian was finally published. Hence one shall have to look into the provisions of the Bengal Tenancy Act for ascertaining the meaning of the expressions 'tenure' and 'tenure-holder'. Section 3 (18) of the Bengal Tenancy Act says that 'tenure' means the Interest of a tenure-holder or an under-tenure-holder. Section 4 of the Act says that there shall be, for the purpose of the Act, the following class of tenants :
(1) tenure-holders including under-tenure-holders,
(2) raiyats, atfd
(3) undcr-raiyats, etc. ........
Section 5(1) of the Act says 'tenure-holder' means primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting cents or bringing it under cultivation by establishing tenants on it. So, a tenure-holder has the interest, as defined in that Act. Such a tenure cannot consist of non-agricultural property. So, the drafting of Section 42 of the West Bengal Estates Acquisition Act regarding the aforesaid proviso is on the face of it defective. Such reference to a 'tenure' therein is a contradiction in terms because a property cannot at the same time be agricultural and non-agricultural. While according to the Bengal Tenancy Act such a tenure will be an agricultural property, whereas according to the proviso to that section, the tenure must consist exclusively of non-agricultural property. So a harmonious construction is necessary and this anomaly calls for some solution.
8. In the case of Sita v. Harimalli in : AIR1979Cal273 (FB), it has been stated that a statute should be construed so as to prevent mischief and to advance the remedy according to the intention of its makers. It will appear from the Bench case of Prem Singh v. Dulari in : AIR1973Cal425 that the Court will not supply, add, alter or omit any word in a statute, unless it would become a matter of impelling necessity to make such harmonious construction as to render the Act effective in operation.
9. The intention of the Legislature is that rent has to be assessed regarding both agricultural and non-agricultural property, vide Section 42 of the West Bengal Act (I of 1954). There is an exception, as engrafted in the proviso to that section. If the non-agricultural property of an intermediary is field rent-free before the date of the vesting, then it shall not be liable to be assessed to rent according to the provisions of the West Bengal Estates Acquisition Act, 1953. So, in order to prevent mischief, a harmonious construction will have to be made and there is no way out except to omit the word 'tenure' from that proviso with a view to rendering the Section 42 effective in operation. The defence is that the rent in question was assessed according to the provisions of the West Bengal Estates Acquisition Act, and the decisions of the Courts below are also to that effect. The disputed separate non-agricultural property is being held by an intermediary. Hence, it must be held that such assessment of rent under that Act regarding a non-agricultural property of an intermediary, as it was held rent-free from before the date of vesting, is illegal and without jurisdiction.
10. The matter does not rest there because the aforesaid proviso uses a significant expression 'subject to any law for the time being in force for assessment or re-assessment of rent'. So this Act will have to be read along with that of the West Bengal Non-agricultural Tenancy Act of 1949. Section 29 of this Non-agricultural Tenancy Act says that where an order has been made under Section 27 of the Act for estimate of fair and equitable rent regarding non-agricultural land and for preparation of a settlement rent roll, the State Government may make an order directing the Revenue Officer concerned to --
(a) estimate fair and equitable rent of non-agricultural tenants of every class in accordance with the provisions of this Act.
11. The use of the words 'tenants of every class' in Clause (a) of Section 29 clearly indicates that the Revenue Officer can assess fair and equitable rent regarding a non-agricultural land of an intermediary even if it was held rent-free from before the date of vesting. Hence new assessment of fair and equitable rent will have to be made according to Section 29 of the West Bengal Non-Agricultural Tenancy Act. The decisions of the Courts below are wrong.
12. The appeal is allowed. The judgment and decree appealed against be hereby set aside. The suit a decreed. It is hereby declared that the assessment of the rent in question is illegal and not binding on, the plaintiff. The defendant is permanently restrained from realising such rent from the plaintiff. But the State Government will be at liberty to assess fair and equitable rent regarding the disputed property in accordance with the provisions of Chap. VI of the West Bengal Non-agricultural Tenancy Act, 1949.
13. The parties will bear their own costs throughout.