H.K. Bose, C.J. - (1.) This is an appeal from an order of P.B. Mukharji, J. dated January 9, 1959, making a rule issued under Article 226 of the Constitution absolute and cancelling a notice issued under Sec. 10(2) of the West Bengal Estates Acquisition Act.
(2.) The Respondent Sankar Prasad Mukherji is an intermediary within the meaning of West Bengal Estates Acquisition Act, 1953, in respect of various properties in mouza Lakshmanpur in the district of Malda. The Respondent leased out some of these properties which are admittedly tank fisheries to one Nitai Charan Das for the year 1361 B.S. This lease expired by effluxion of time at the end of the year 1361 B.S. In the beginning of the agricultural year 1362 B.S., that is, on the very next day after the expiry of the lease the properties belonging to the Respondent except those exempt under the said Act, became vested in the State of West Bengal inasmuch as the said date was notified to be the date of vesting as required under, the provisions of the West Bengal Estates Acquisition Act. The Respondent thereafter notified his intention to retain the said properties including the tank fisheries let out to Nitai Charan Das, which according to the Respondent came into the khas possession of the Respondent -after the expiry of the lease and remained in his possession since then. It appears that in the month of July, 1955, the lessee Nitai Charan Das applied to the Additional Collector (Estates Acquisition), Malda, for maintaining his lease which according to the Respondent had come to an end. Thereafter an enquiry was held by the Additional Collector, Malda and in October, 1955, a notice under Sec. 10(2) of the West Bengal Estates Acquisition Act was served upon the Respondent calling upon him to give up possession of the fisheries on the 3rd of March, 1362 B.S. corresponding to January 17, 1956. On December 19, 1955, the Respondent filed a petition of objection stating, inter alia, that as the lease had come to an end after the expiry of the Bengali year 1361, the state of West Bengal could not claim to be the lessor but the Respondent had the right to retain possession of the fisheries in question. On December 21, 1955, the Additional Collector, Malda, rejected the contention of the Respondent and directed delivery of possession. This order was confirmed by a further order made On January 14, 1956. On January 30, 1956, the Respondent moved this Court under Article 226 of the Constitution and a Rule nisi was issued on that date. This Rule finally came up for hearing before P.B. Mukharji J. who, by his judgment and order dated January 9, 1959, made the Rule absolute as already stated. It is against this order that the present appeal has been preferred.
(3.) The only question involved in this appeal is the question of construction of the proviso to Sub -section (2) of Sec. 6 of the West Bengal Estates Acquisition Act. The contention of the Appellants is that on a proper interpretation of the proviso the learned trial Judge should have held that the words "immediately before the date of vesting" as occurring in the proviso to Sec. 6(2) of the Act mean and include a lease expiring on the last day of Chaitra 1361 B.S. In other words, the submission is that the conclusion of the learned Judge that the words "immediately before the date of vesting" mean a lease subsisting at the date of vesting is erroneous and is not warranted by the terms of the proviso to Sub -section (2) of Sec. 6 of the Act.;