P.B. Mukharji, J.
1. This is an application under Article 226 of the Constitution. The petitioner obtained the Rule nisi on 30-1-1956 calling upon the State of West Bengal why writs of mandamus and certiorari should not issue directing the State to forbear from giving effect to a notice upon the petitioner under Section 10(2) of the West Bengal Estates Acquisition Act, 1953, to deliver possession of a tank fishery generally known as 'Chang Beel Betimari', and for quashing the said notice. The petitioner also obtained an interim stay of the order to deliver possession issued by the Government upon the petitioner.
2. The application raises a short but interesting and important point of law concerning the construction of the proviso to Section 6(2) of the West Bengal Estates Acquisition Act, 1953. The facts of the case are simple and must be stated before I proceed to a determination of the question of construction.
3. The properties are admittedly tank fisheries. They were let out to a lessee Sri Nitai Chandra Das for the Bengali year 1361 B.S. with the expiry of that year, the petitioner obtained khas possession of the tank fisheries and was in such possession of such tank fishery when he was called upon by a notice under Section 10(2) of the West Bengal Estates Acquisition Act, 1953, to deliver possession to the State. This notice is dated October 1955 and required the petitioner to deliver possession by the 3rd day of Magh 1362 B. S. corresponding to 17-1-1956. The petitioner objected to such notice but his objection was overruled and' by an order dated 20-12-1955, it was held that the petitioner could not retain possession of the tank fisheries. That was finally confirmed by the Additional Collector of Malda who ordered on 14-1-1956 :......'the jalkar in question cannot be retained by you under Section 6(1)(e) of the Act.'
4. These are briefly the relevant facts. The lease expired on the very last date before the vesting of the estates under the West Bengal Estates Acquisition Act. In other words, the lease expired on the 31st Chaitra 1361 B.S. and the date of State vesting under the Act was the 1st day of Baisakh of the Bengali year 1362.
5. The short point is whether a lease which expired on the 31st Chaitra 1381 B. S. corresponding to 13-4-1955 is hit or protected by the proviso to Section 6(2) of the West Bengal Estates Acquisition Act, 1953.
6. Section 6 of the Act provides for the right of the intermediary to retain certain lands. Leaving out those parts of the section which are not relevant for the purposes of the present application, the section reads as follows :
'6(1). Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to Sub-section (2) but subject to the other, provisions of that sub-section be entitled to retain with effect from the date of vesting-
(e) tank fisheries;'
For a proper construction of Section 6(1) of the Act, it is plain, therefore, that reference has to be made to Sections 4 and 5 of the Act and to the exception provided in the proviso of Sub-section (2) of Section 6. Section 4 of the Act provides for a notification vesting all estates and rights of every intermediary in the State free from all incumbrances. Section 5 provides that upon the due publication of such notification and from the date of vesting, all the estates and the rights of intermediaries in the estates to which the declaration applies shall vest in the State free from all incumbrances. The first part of Section 6(1) of the Act, therefore, must mean that notwithstanding the acquisition of the estates and rights of the intermediaries, an intermediary is given the right to retain certain lands mentioned therein and including tank fisheries which are the subject matter of the present application.
7. The next step in the construction is to find out the meaning of the word, 'intermediary.' Section 2(i) of the Act defines 'intermediary' to mean a proprietor, tenure-holder, under-tenure-holder or any other intermediary above a raiyat or a non-agricultural tenant and includes a service tenure-holder and, in relation to mines and minerals, includes a lessee and a sub-lessee. It is undisputed that the present petitioner is an intermediary within the definition of this Act. It is undisputed also that he was the proprietor of this tank fishery which was let out to his lessee and which lease expired on 13-4-1955.
8. Thereafter the point to emphasise in the construction of Section 6(1) of the Act is that the right of the intermediary to retain a tank fishery is qualified by the exception mentioned in the proviso to Sub-section (2) of Section 6 and subject to other provisions of that sub-section. The proviso to Section 6(2) of the Act reads as follows :
'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 a lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date.'
This is the exception mentioned in Section 6(1) of the Act. Right to retain a tank fishery under Section 6(1) of the Act, therefore, must be read subject to this exception. This means that if a tank fishery comes within the proviso to Section 6(2) of the Act, then the intermediary will lose the right to retain the tank fishery which he otherwise would have under Section 6(1)(e) of the Act. In other words, the general right of an intermediary to retain a tank fishery under Section 6(1)(e) excludes tank fisheries under a lease of the class and type mentioned in the proviso to Section 6(2) of the Act.
9. Proceeding with the steps of reasoning in the process of construction, it is now necessary to refer to the main part of Sub-section (2) of Section 6 of the Act. Sub-section (2) provides :
'An intermediary who is entitled to retain possession of any land under Sub-section (1) shall be deemed to hold such land directly under the State from the date of vesting as a tenant, subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this Act and as entered in the record-of-rights finally published ....... ....... ....... ....... .......'
Then follows the proviso which I have already quoted. The plain meaning of this part of Sub-section (2) of Section 6 of the Act is that an intermediary who retains possession of a tank fishery shall be deemed to hold such tank fishery directly under the State from the date of vesting as a tenant under the State. The petitioner here is an intermediary who is admittedly in possession of the tank fisheries. It cannot be contended here by the Government that it is a case where although the lease has expired, the lessor has not obtained possession and the tenant under the expired lease is holding over or continuing in possession. In paragraph 3 of the petition, the petitioner has pleaded khas possession; The notice under Section 10(2) from the Government upon the petitioner states:
'Whereas you have not given up possession of the interest specified in the Schedule below. Now, therefore, I do hereby require you under Section 10(2) of the said Act--To give no possession on the 3rd day of Magh ........ 1362' ......
Therefore, the petitioner's possession of the Jalkar as an intermediary is an acknowledged and accepted fact in the present case. The reason for my emphasising this aspect of the fact is to distinguish-on that ground some of the cases which have been cited at the Bar and with which. I shall presently deal.
10. On behalf of the Government, the learned Government Pleader argues that the words, 'immediately before the date of vesting' in the proviso to Section 6(2) of the Act answers the description of this lease in the present case. His submission is that this lease expired immediately before the 1st of Baisakh 1362 B.S. In fact it expired only a day before. The question here is what is the meaning of the words, 'immediately before', in the context of this proviso to Section 6(2) of the Act, I have come to the conclusion that the words, 'immediately before', in the proviso to Section 6(2) of the Act mean a lease subsisting on the date of vesting. They do not mean leases which have expired before the date of vesting.
11. The reasons for coming to that conclusion arc many. First, the policy of the Act is that the State should acquire the interests of all classes of rent receivers and intermediaries with permission to the intermediaries to retain possession of actual khas lands upto certain limits and to treat such intermediaries as tenants directly under the State. In other words the Statutory policy is to protect limited possession and abolish middlemen farming on the revenue.
12. Secondly, Section 6(1) of the Act expressly recognises an intermediary's right to retain tank fisheries, one of the limited possessions permitted by the statute notwithstanding the acquisition of all estates and rights of intermediaries. That right to retain accrues to every intermediary under the Act. This right to retain a tank fishery can only be defeated if the tank fishery is under a lease within the scope and meaning of the proviso to Section 6(2) of the Act.
13. Thirdly, having regard to the principle and policy of the Act, it follows that the proper interpretation of the proviso of Section 6(2) of the Act must have regard to the consideration that the intermediary is not in possession of the tank fishery but has let it out to a tenant under a lease before it can be applied to acquire such a fishery. In this case, as I have already stated in my account of the facts that the intermediary is himself in possession of the tank fishery and, therefore, as such, prima facie, entitled to retain possession under Section 6(1)(e) of the Act unless he can be defeated in that right by the application of the proviso, In this view, the proper construction of the proviso is that when the intermediary has lost possession of the tank fishery by letting it out to a tenant, then the lease will be deemed to have been given by the State Government on the same terms and conditions.
14. Fourthly the words, 'such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date', in the proviso to Section 6(2) of the Act, appear to me to be the further reason to indicate that the lease must be subsisting and not an expired lease on the date of vesting; for if it were an expired lease, then there would be no point in continuing that lease. It is only when that the lease is subsisting that the lease has to be continued by substituting the State Government for the lessor and by continuing the same terms and conditions. If the lease has expired, as it has in this case and what is more as the intermediary is himself in possession of the tank fishery, no question of continuing an expired lease and also of dispossessing the intermediary can arise under the proviso. The words, 'deemed to have been given,' in the proviso mean that a subsisting lease which would otherwise have been interrupted by acquisition and nationalisation, will be continued in the name of the State as the lessor. This construction is in keeping with the policy of the Act to permit intermediaries to retain possession of certain lands including tank fisheries.
15. My attention has been drawn to the decision of Purna Chandra Ganguly v. Sridhar Bishnu Salagram, reported in 60 Cal WN 979 where it was held that by using the word, 'retain', in Section 6(1) of the West Bengal Estates Acquisition Act, 1954, the legislature intended that the intermediary must be in possession of whatever lands ho was entitled to retain under Section 6 of the Act and that the intermediary was entitled to retain only such lands as were in his possession and not lands which were let out to tenants and which were in possession of such tenants. As the intermediary is himself in possession of the tank fishery in this case, this decision is not against the petitioner but, in fact, supports him. It may be that the word, 'possession', has to he further construed in future to find out, if, it means that the possession must be a lawful and not wrongful possession. Because the statute tries to preserve possession or protect possession of tenants, it docs not follow necessarily that persons in wrongful possession or tenants whose leases have expired and continue to be in wrongful possession ate protected.
16. The other decision to which my attention is drawn is the case of The Reliance Development and Engineering Ltd. v. The Corporation of Calcutta, reported in 61 Cal WN 533. The observations there at page 538 appear to show that an expired lease and wrongful possession of a tenant thereunder would not be of much assistance. If anything this decision also is in favour and not against the petitioner here and tends to support what I have just said about lawful and not wrongful possession. As the learned Judge observed there :
'From the facts stated by the it appears clearly that the lease given by the Corporation had come to an end long before the West Bengal Estates Acquisition Act had come into force. It is true that the Corporation could not get physical possession of the land in question for a long number of years but that does not mean that the appellant company was holding the land under a lease from the Corporation.'
17. Section 6(2) of the Act opens with the words, 'An intermediary who is entitled to retain possession' etc. The question of an intermediary retaining possession can only arise when he himself has possession. He can have possession under a lease as a lessee. He can also have possession 33 a proprietor. If he has possession as a lessee and the lease is subsisting at the date of vesting then the intermediary as a lessee in possession of the tank fishery will be entitled to continue the lease on the same terms and conditions but with the State as the lessor substituted for the original lessor. If he is a proprietor and there is no current or subsisting lease, then as a proprietor, intermediary in possession of the tank fishery he is entitled to retain it under Section 6(1)(e) of the Act and no question of lease or proviso under Section 6(2) of the Act arises in that event.
18. Fifthly the words, 'deemed to have been given by the State Government', in the proviso to Section 6(2) of the Act, cannot mean a legal fiction to the extent that where a lease itself has expired and there is in fact no lease, then also it can be continued by bringing in the State as the lessor. The legal fiction denoted by the word 'deemed' is only to this extent that the subsisting lease, which under the ordinary law of tenancy could not have been disrupted, is disrupted by the acquisition under the Act, and with a view to cause the least and minimum inconvenience, caused by such acquisition the law provides for the continuance of the lease on the same terms and conditions by substituting the State for the private lessor.
19. To accord any other interpretation, would lead not only to anomalies but also will defeat the purpose and policy of the Act. If a lease which expired on the 31st Chaitra 1361 B. S. is also to be included in the proviso because of the words, 'immediately before,' then the question will arise, what is the scope of the words, 'immediately before'. How 'immediately' will it be? Will it be a day or a week or a fortnight or a month or two months or any reasonable time before the date of vesting? It would be odd indeed if a lease which expired two months before the date of vesting, which may be a reasonable time under legal notions, could still be regarded as ''immediately Before' and continued by the State Government as the lessor. That will mean that if the tenant who had been in wrongful possession even after the expiry of the lease for two months, the law would confirm such wrongful and illegal possession. I do not conceive the intention of law to legalise illegal and wrongful possession. The possession that the law here intends to protect is lawful possession. In the context of this proviso, it is necessary to construe the words, 'immediately before', not merely by themselves but in association with the words that precede and follow them, namely, 'such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date', and also by the policy of the Act to protect tenants in lawful possession and defeat intermediary rent receivers without possession.
20. Lastly, even on general principles of construction, this is the conclusion which appears to me to be justified. Sections 4 and 5 of the Act acquire the estates and rights of intermediaries. Section 6 of the Act gives them certain reliefs and exemptions. The reliefs are by no means large and the construction of such reliefs should be liberal, not in the sense of defeating the Act but in the sense of giving a fair, proper and due interpretation to the words used. It is the express and acknowledged policy under Section 6 of the Act to give a right to the intermediary to retain tank fisheries. That policy must be respected and given effect to wherever possible. The exception occurring in the proviso to Section 6(2) which denies him that right must, therefore, be strictly construed against the State in favour of the intermediary in lawful possession, in the sense that the State must bring the lease clearly within the letter and spirit of the exception before, it can acquire.
21. I, therefore, make the Rule For mandamus and certiorari absolute. I set aside the notice calling upon the petitioner to deliver possession of the tank fisheries and the order requiring him to deliver possession of the tank fisheries. The interim order is made final. There will be no order as to costs.
22. Civil Revision Case No. 282 of 1956 raising the identical points is, by consent of parties and learned Advocates, disposed of in terms of the order passed in Civil Revision Case No. 281 of 1956 today for the reasons staled therein.