Judgment 1. A very important question of law arises on this application under Article 227 of the Constitution of India. It involves consideration of the impact of three statutes, namely, (1) The Calcutta Thika Tenancy Act, 1949, (. 2) The West Bengal Non-Agricultural Tenancy Act, 1949 and (3) The Calcutta Municipal Act, 1951, on the facts of this case. The facts briefly are as follows. The dispute is between landlords who are the petitioners and the tenants who are the opposite parties to this application. It is the case of the landlords that the tenants here are the Thika Tenants in respect of 19 cottahs 12 chittaks of lands within the premises Nos. 11 and 12, Swinhoe Lane, P. S. Tollygunge, Calcutta. The landlords, petitioners brought proceedings under section 5 of the Calcutta Thika Tenancy Act before the Controller, 24-Parganas at Alipore under the Calcutta Thika Tenancy Act, 1949 for ejecting the tenant from the said premises. The grounds of ejectment were that the tenants in violation of the agreement had illegally constructed pucca structures on the holding without the knowledge and consent of the landlords, that they had defaulted to pay rent since May, 1954 and that the arrears of rent on the date of filing of the petition amounted to Rs. 3,977/- and also on the ground that the land in suit was required for the own use and occupation of the landlords and for the purpose of building on the land and developing the same by discontinuing the letting out of the same to Thika tenants. The Controller who was the First Munsif at Alipore granted the prayer of the petitioners ex parte and the tenants were asked to vacate within thirty days. Against that ex parts order an appeal was filed before the District Judge, 24-Parganas who permitted the parties to adduce evidence at the appellate stage as he was entitled to do. Finally the lower appellate court allowed the appeal. The ground for allowing the appeal was that the Calcutta Thika Tenancy Act did not apply at all to the premises in question and therefore, the entire proceeding under section 5 of the Calcutta Thika Tenancy Act was misconceived. It was held in appeal by the lower Appellate court that the West Bengal Non-Agricultural Tenancy Act, 1949, applied to the facts of this case. It was held in appeal by the lower Appellate court that the West Bengal Non-Agricultural Tenancy Act, 1949, applied to the facts of this case. The tenancy in this case originally started with a registered lease for ten years from the 5th March. 1937. That lease expired on or about the 5th March, 1947. The tenants continued. At the time when the lease expired the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, was in operation. Later on the West Bengal Non-Agricultural Tenancy Act, 1949 being West Bengal Act XX of 1949 came into force on the 10th May, 1949. It was in the same year, 1949 a few months before, to be exact on the 28th February, 1949 that the Calcutta Thika Tenancy Act, 1949 was also put on the statute book. Under both these two statutes of 1949, namely, (1) The Calcutta Thika Tenancy Act and (2) The West Bengal Non-agricultural Tenancy Act, "Calcutta" meant 'Calcutta' as defined in the Calcutta Municipal Act, 1923. This 'Calcutta' did not include the present premises in question. These premises were then in Tollygunge which was outside the limits of the Calcutta Corporation and the Calcutta Municipal Act. Then came the Calcutta Municipal Act, 1951, which repealed the old Calcutta Municipal Act of 1923. 2. THIS Calcutta Municipal Act, 1951, came into force in 1952. Under this Calcutta Municipal Act of 1951 express special provisions were made in sections 594 and 595 of the Calcutta Municipal Act, 1951, for inclusion within Calcutta of the area comprised within the Tollygunge Municipality. The provisions of these two sections will be material later on. It will be enough at this stage to say that under section 594 of the Calcutta Municipal Act, 1951, the State Government may by notification in the Official Gazette, declare that the area comprised within the Municipality of Tolly-gunge shall be included within Calcutta. Such a notification was issued on the 1st April, 1953. The terms of that notification will also be material later on. Although this area in Tolly-gunge was included within the limits of Calcutta by the Calcutta Municipal Act, 1951, on the 1st April, 1953, the tenant continued. There is some dispute whether the tenant continued by holding over or whether he continued as a kind of statutory tenant or a non-ejectable tenant. Although this area in Tolly-gunge was included within the limits of Calcutta by the Calcutta Municipal Act, 1951, on the 1st April, 1953, the tenant continued. There is some dispute whether the tenant continued by holding over or whether he continued as a kind of statutory tenant or a non-ejectable tenant. The present petition by the landlords for eviction of the tenants under section 5 of the Calcutta Thika Tenancy Act was instituted on the 16th December, 1957. On those facts the lower appellate court held that the Calcutta Thika Tenancy Act did net apply, but the West Bengal Non-Agricultural Tenancy Act, 1949, applied. The landlords petitioners applied for and obtained a Rule under Article 227 of the Constitution challenging this order of the lower appellate court dismissing the petitioners' case under section 5 of the calcutta Thika Tenancy Act. The short, but difficult and complicated point, that arises in this case is; which Act applied to the facts of this case. Does the Calcutta Thika Tenancy Act, 1949 apply or does the West Bengal Non-Agricultural Tenancy Act, 1949 apply on behalf of the landlord petitioners it is contended by Mr. sen Gupta, learned Advocate, that the Calcutta Thika Tenancy Act, 1949 applied to this case. He relies on section 1 (2) of the Calcutta Thika Tenancy Act which uses the material words:- "it extends to Calcutta as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923 and such suburbs of Calcutta as may have been or may hereafter be notified under section 1 of the Calcutta Suburban Police Act, 1866 and are not included within Calcutta as so defined and also to the Municipality of Howrah." 3. IT is then said that by section 608 (d) of the Calcutta Municipal Act, 1951, all references to the Calcutta Municipal Act, 1923, shall be construed as references to this Act of 1951. In other words, reference to Calcutta Municipal Act, 1923 in the Calcutta Thika Tenancy Act, 1949, is to be read as the Calcutta Municipal Act of 1951. Section 2 (1) of the Calcutta Municipal Act, 19151, expressly repeals the Calcutta Municipal Act, 1923. Section 1 (2) of the Calcutta Municipal Act, 1951 says "except as is hereinafter otherwise expressly provided, it applies only to Calcutta". Section 2 (1) of the Calcutta Municipal Act, 19151, expressly repeals the Calcutta Municipal Act, 1923. Section 1 (2) of the Calcutta Municipal Act, 1951 says "except as is hereinafter otherwise expressly provided, it applies only to Calcutta". Section 5 (11) of the Calcutta Municipal Act, 1951 says "Calcutta means the area described in Schedule i the definition of Calcutta in Schedule I of the Calcutta Municipal Act, 1951 does not and did not include Tollygunge. But then the next step in the arguments on behalf of the petitioners is that section 594 of the Calcutta Municipal Act, 1951 expressly provides that where a notification to include tollygunge has been made as aforesaid Schedule I to the Calcutta Municipal Act, 1951 shall be "deemed" to be amended accordingly. Therefore it is argued an behalf of the landlord petitioners that Calcutta under the Calcutta Municipal Act, 1951 by this deeming provision read with Schedule I of the Act includes not only Calcutta but also Tollygunge in the facts of this case. In other words, section 1 (2) of the Calcutta Thika Tenancy Act, 1949, read with the Calcutta Municipal Act 1951 as aforesaid now makes Calcutta Thika Tenancy Act applicable to areas in Tollygunge. 4. FINALLY it is also said that section 3 of the Calcutta Thika Tenancy Act makes the Act applicable notwithstanding anything contained in any other law for the time being in force. This last part of the argument, however, is irrelevant because the words "notwithstanding anything contained in any other law for the time being in force or in any contract" in Section 3 of the Calcutta Thika Tenancy Act, 1949, are, for the express purpose of overriding and not aiding the landlord's right under other laws to eject the tenant. This in brief is the whole case of the petitioners on this point. In sup-port of this interpretation Mr. Sen Gupta has relied on two decisions of this court. This in brief is the whole case of the petitioners on this point. In sup-port of this interpretation Mr. Sen Gupta has relied on two decisions of this court. The first is the Division Bench decision in (1) Bhagat Ram baika v. Prabirendra Mohan Tagori, reported in 60 C. W. N. 1 for the proposition that after the repeal of the Calcutta Municipal Act, 1923 and its re-enactment in Calcutta Municipal Act, 1951, the reference in section 1 (2) (a) of the West Bengal Non-Agricultural Tenancy Act, 1949, to "Calcutta" as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923 would have to be read as Calcutta, as defined in the Calcutta Municipal Act, 1951. This decision, however, is not a decision on the point of conflict or competition between the Calcutta thika Tenancy Act and the West Bengal Non-Agricultural Tenancy Act. It is no authority on the point now under consideration as to which Act shall apply in case of such conflict. What happened in Bhagat Ram Baika's case was that an application was made under section 72 of the West Bengal Non-Agricultural Tenancy Act, 1949 for the conversion of the land for agricultural purposes for use as a building site. That application was dismissed by the Collector on the ground that the land concerned was within Calcutta which was excluded from the operation of the West Bengal Non-Agricultural Tenancy Act. That view was finally upheld by the Division Bench of this court. It must be noted here that the application under section 72 of the West Bengal Non-Agricultural Tenancy Act, 1949, which was discussed by the Division Bench Authority was made on the 18th September, 1953, at a time when Tollygunge had already been included within the Calcutta Municipal area. It was then said that the procedure for making an application for conversion under that Act would no longer be available after that date. There was no question of any vested rights In that case, a point which will be material and important in the present case. It was then said that the procedure for making an application for conversion under that Act would no longer be available after that date. There was no question of any vested rights In that case, a point which will be material and important in the present case. The other case on which reference was made on behalf of the petitioners is the decision of a learned Single Judge in (2) Maharaja Probirendra Mohan Tagore v. Kusum Kumari Devi, reported in 60 C. W. N. 551 also in support of the proposition that as a result of the promulgation of the new Calcutta Municipal Act clause (a) of sub-section (2) of Section 1 of the West Bengal Non-Agricultural Tenancy Act stood amended by substituting reference to the relevant portions of Calcutta Municipal act and that new Calcutta Municipal Act, 1951, has in effect curtailed or taken away jurisdiction of the Special Tribunals or others, created under the Non-Agricultural Tenancy Act over areas which were originally described in sub-section 2 of the Section 1 of the Non-Agricultural Tenancy Act to be the area which was taken away. Now this again is not a decision on the point under consideration in the present case before me, namely, a point of conflict between the Calcutta Thika Tenancy Act and the West Bengal Non-Agricultural Tenancy Act. Secondly, that decision proceeded on the principle of the ordinary rule that a proceeding is usually to be governed by the law as was in force when the proceedings were started and the procedural rights will be governed accordingly in contradistinction to the substantive rights which follow a different principle. There also in that case it was a petition under section 72 of the Non-Agricultural Tenancy Act and which was filed before the promulgation of new Calcutta Municipal Act of 1951 On behalf of the tenant opposite parties Mr. Mukherjee contends that the Calcutta Thika Tenancy Act, 1949 does not apply in the facts and circumstances of this case and that the only Act that applies is the West Bengal Act XX of 1949. The West Bengal Non-Agricultural Tenancy Act. He formulates his arguments in this way. Mukherjee contends that the Calcutta Thika Tenancy Act, 1949 does not apply in the facts and circumstances of this case and that the only Act that applies is the West Bengal Act XX of 1949. The West Bengal Non-Agricultural Tenancy Act. He formulates his arguments in this way. on the date of the lease, the 5th March, 1937 the disputed land was outside the Calcutta Corporation and the Calcutta Thika tenancy Act had no application whatever to the locality where the land was situate before the 1st April, 1953, the date on which Tollygunge Municipality came under the Calcutta Corporation. It is contended for the tenants that they acquired a permanent right in. the land under the Non-Agricultural Tenancy Act before 1st April, 1953 and their rights could be defeated and they could not be ejected by proceeding under the Calcutta Thika Tenancy Act. The point of this contention is that by twelve years' continuous possession of the land as non-agricultural tenants under the landlords and by their raising a pucca structure on the land with the knowledge and consent of the land-lords, the tenants had acquired a permanent right under section 7 of the West Bengal Non-Agricultural Tenancy Act. He supports this argument by reference to section 90 of the West Bengal Non-Agricultural Tenancy Act. Section 7 (4) of the West Bengal Non-Agricultural Tenancy Act provides as follows: - "notwithstanding anything contained in any other law for the time being in force or any contract if any non-agricultural land held under a lease in writing for a period specified therein continues to be held with the express or implied consent of the landlord after the expiration of the time limited by such lease and the total period for which such land is so held is not less than twelve years. then- (i) the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by" his landlord from such land except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of the tenancy." That means that when the condition specified in section 7 (4) of the; West Bengal Non-Agricultural Tenancy Act is satisfied the tenant becomes non-ejectable except on one particular ground that the tenant had used the land in a manner which renders it unfit for the use for the purpose of the tenancy. In this connection section 90 of the West Bengal Non-Agricultural Tenancy Act lays down how this period of 12 years is to be computed. The language of section 90 of the Act is that:- "if any non-agricultural land has been held by a tenant from before the commencement of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940- (a) Under a lease in writing and the time limited by such lease has; expired either before such commencement or at any time during the period the said Act has been in force and the tenant has continued! to hold such land during such period, or (b) under a lease in writing but no term is specified in such lease, or (c) without a lease in writing, then in calculating for the purposes of sections 7 and 9 the period for which such land has been held by such tenant,- (i) in the case where the land has been held under a lease in writing and the time limited by such lease has expired at any time during the continuance in force of the said Act, the period for which such lands has been held during such continuance after the expiration of the time limited by such lease, and (ii) in other cases, the period for which the said Act has been in force, shall be excluded." 5. IN view of sections 7 and 90 of the West Bengal Non-Agricultural Tenancy Act, it is plain on the facts and the dates stated above that the tenant;; here completed twelve years' possession within the meaning of the West Bengal Non-Agricultural Tenancy Act before the Tollygunge Municipality was brought within the municipal limits of Calcutta under the Calcutta Corpora-ion. That is the finding of fact also of the lower appellate court. It is, therefore, contended by Mr. Mukherjee for the tenants that such a substantial right acquired by the tenants under the West Bengal Non-Agricultural Tenancy Act cannot be defeated by the application of the Calcutta Thika Tenancy Act. It is contended that these are substantive rights and unless the satute expressly or by necessary implication takes them away they cannot be affected and even if they are to be affected these substantive rights arc property rights, they cannot be defeated without compensation under the Constitution of India. The point is of far reaching importance. It is contended that these are substantive rights and unless the satute expressly or by necessary implication takes them away they cannot be affected and even if they are to be affected these substantive rights arc property rights, they cannot be defeated without compensation under the Constitution of India. The point is of far reaching importance. It is necessary to have a review of these three different statutes. The Calcutta Thika Tenancy Act, The West Bengal Non-Agricultural Tenancy Act and The Calcutta Municipal Act, so far as they bear on the subject in order to come to a correct conclusion. The Calcutta Thika Tenancy Act, 1949, by its preamble expressly makes it clear that it is an Act "to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta". This much is, therefore, clear from the very preamble that in its origin it was only intended for Thika tenants in Calcutta and not elsewhere. Calcutta of 1949 did not include Tolly-gunge. The Calcutta Thika Tenancy as the name implies was essentially for Calcutta as then understood and not for the entire State or for different districts outside Calcutta. It, therefore, expressly says in section 1 (2) that it extends to Calcutta as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923. It does not say there or any other suburbs of Calcutta which may be notified under the Calcutta Municipal Act, such as it does in the case of notifying suburbs of Calcutta in that very section namely, section 1 (2) of the Act when it speaks of Calcutta Suburban Police Act, 1866. It, therefore, appears from the preamble and by this distinction in section 1 (2) between the Calcutta Municipal Act and the Calcutta Suburban Police Act, 1866, that so far as the Calcutta Municipal Act is concerned it was the Act of 1923 which has to be referred to find out the area of Calcutta. Section 2 of the Calcutta Thika Tenancy Act gave certain definitions. It defines by Section 2 (5) what a "thika tenant" means and excludes a person who holds such land under that another person in perpetuity. It has been con tended on behalf of the tenants that Calcutta Thkia Tenancy Act was intended to apply only to Thika tenants and not tenants who hold land under another person in perpetuity. It defines by Section 2 (5) what a "thika tenant" means and excludes a person who holds such land under that another person in perpetuity. It has been con tended on behalf of the tenants that Calcutta Thkia Tenancy Act was intended to apply only to Thika tenants and not tenants who hold land under another person in perpetuity. Holding any land in perpetuity, therefore, is an expression which has to be construed in this context in order to find out who actually is excluded from the definition of a Thika tenant in Section 2 (5) (a) of the Act. Section 105 of the Transfer of Property Act which normally applies to Calcutta contains the expression "in perpetuity" in the definition of lease under that section which reads as follows : "a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity etc. " 6. THERE the words "in perpetuity" appear to have been used in contrast with the expression ''a certain time". Therefore, a lease which is not for a certain time and which is not limited in time may be a lease in perpetuity. But this definition naturally relates to a lease intervivos and a transfer interparties. In the fourth Edition of Sir D. F. Mulla's Transfer of Property Act at pages 603 to 608, it is said that a lease in perpetuity is unknown in English Law, but in India such a lease is created either by an express grant or by a presumed grant. It is pointed out that such leases are generally agricultural leases or they are leases executed before the Transfer of Property Act. The law on the subject is burdened with many cases and decisions. The word such as "mourashi" is said to indicate permanent tenancy. At the same time it has been laid down that a lease can be said to be permanent even though there is a right to enhance rent. In other words, permanancy of a lease does not necessarily imply both fixity of rent and fixity of occupation and a provision of enhancement of rent does not necessarily militate against the tenancy being a permanent one (See (3) Bijoy Gopal Mukherji v. Prafulla Chandra Ghose (1953) S. C. R. 930. In other words, permanancy of a lease does not necessarily imply both fixity of rent and fixity of occupation and a provision of enhancement of rent does not necessarily militate against the tenancy being a permanent one (See (3) Bijoy Gopal Mukherji v. Prafulla Chandra Ghose (1953) S. C. R. 930. Indeed it has also been held that a lease does not cease to be a lease in perpetunity because there is a forfeiture clause, for such a provision is merely a security for payment of rent as in (4) Mogh Lal Pandey v. Rajkumar Ghakur Giridhari Singh, reported in I. L. R. 34 Cal. 358. Again a permanent tenancy has been held to be acquired by prescription for it is a well established rule that there can be adverse possession of a limited interest in property as well as of the full title of the owner. (See the cases quoted at page 607, of the Fourth Edition of Sir Dinsha Mulla's Transfer of Property Act. Further a permanent tenancy may also be acquired by estoppel or by implied contract as in (5) Forbes v. Ralli, 52 I. A. 178 and (6) Lala Beni Ram v. Kundan Lall, 26 I. A. 58. Section 2 (6) of the Calcutta Thika Tenancy Act, however, provides that all words and expressions used but not defined in this Act and used in the Transfer of Property Act, 1882, or the Bengal Tenancy Act, 1885, have the same meanings as in those Acts. From that point of view it may just as well be that the word "perpetuity" may be inspired by the meaning and construction of the same word "perpetuity" in section 105 of the Transfer of Property Act. The Bengal Tenancy Act does not actually use the word 'in perpetuity'. Section 3 (9) of the Bengal Tenancy Act uses the expression "permanent tenure" and defines to mean as "a tenure which is heritable and which is not held for a limited time." It is just possible and appropriate to construe the words 'in perpetuity' to mean a tenancy which is permanent in the above sense, that is heritable and not limited in time. An incident of such a permanent tenancy under the Bengal Tenancy Act is mentioned in section 10 of that Act which provides:- "a holder of a permanent tenure shall not be ejected by his landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected provided that where the contract is made after the commencement of this Act, the condition is consistent with the provisions of this Act." Holding land under another person, therefore, under section 2 (5) (a) of the Calcutta Thika Tenancy Act may be holding land not only by contract but also by operation of law or by custom, grant (express or implied) or usage. If a tenant cannot be ejected under section 7 (4) (i) of the West Bengal Non-Agricultural Tenancy Act except on the ground that he is using the land in a manner which renders it unfit for use for the purposes of the tenancy, he is for all practical purposes a tenant in perpetuity. The word 'lease' is not used in connection with the word 'perpetuity' in 2 (5) (a) of the Calcutta Thika Tenancy Act and the language of the exception is "but does not include a person who holds such land under that another person in perpetuity". I am of the view that such 'holding' may be by operation of law as under the West Bengal Non-agricultural Tenancy Act. A person who cannot be ejected for all practical purposes except when he makes the land itself unfit for the purpose of the tenancy is a person who holds under another in perpetuity by operation of the statute and by force of law which came into being. The provisions of enhancement of rent such as in section 11 of the West Bengal Non-Agricultural Tenancy Act or such provisions for the renewals of lease of tenancies as in section 8 of the Act or special incidents in case of misuse of non-agricultural land as in section 10, do not make such holding under the West Bengal Non-Agricultural Tenancy Act, any the less perpetual or permanent or non-ejectable within the meaning of those expressions. On the facts of this case, therefore, when the tenant has acquired a non-ejectable right under section 7 (4) (i) of the West Bengal Non-Agricultural Tenancy Act he, in my view, comes within the exception of a person holding land under another person in perpetuity within the meaning of section 2 (5) (a) of the Calcutta Thika Tenancy Act. Before leaving the Calcutta Thika Tenancy Act it may not be out of place to mention once again section 1 (2) of that Act which makes that Act extend to "Calcutta" as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923. In that Calcutta Municipal Act of 1923 there was no provision like section 594 of the Calcutta Municipal Act, 1951 by which Schedule I of the Calcutta Municipal Act would be deemed to be amended. In other words, the Calcutta Thika Tenancy Act by that definition of Calcutta in Section 1 (2) of the Act limiting it to the Calcutta Municipal Act, 1923, did not contemplate any extended area of Calcutta or any the added area which might come to Calcutta in future. Now leaving aside the Calcutta Thika Tenancy Act it would be necessary to come to the West Bengal Non-Agricultural Tenancy Act, 1949. This Act in its preamble says it is "an Act to make better provision relating to the law of landlord and tenant in respect of certain non-agricultural tenancies in West Bengal". In other words, it relates to non-agricultural tenancies in West Bengal. This is also a landlord and tenant statute, just as much as the Calcutta Thika Tenancy Act is also a landlord and tenant statute. Now this West Bengal Non-Agricultural Tenancy Act, extends to the whole of West Bengal except- "(a) Calcutta as defined in clause (II) of Section 3 of the Calcutta Municipal Act, 1923." This again shows that what was intended to include only Calcutta as defined in the Calcutta Municipal Act of. 1923 and not to its subsequent modifications. Again this can be contrasted by the provisions in section 1 (2) (b) where Calcutta Suburban Police Act, 1886, was again referred to and in doing so it expressly says that suburbs of Calcutta as may have been or may hereafter be notified under section 1 of the Calcutta Suburban Police Act, 1886. 1923 and not to its subsequent modifications. Again this can be contrasted by the provisions in section 1 (2) (b) where Calcutta Suburban Police Act, 1886, was again referred to and in doing so it expressly says that suburbs of Calcutta as may have been or may hereafter be notified under section 1 of the Calcutta Suburban Police Act, 1886. Such words as "may hereafter be' notified" are singularly and significantly absent with reference to Calcutta under the Calcutta Municipal Act, 1923. It follows, therefore, that it was not intended that if any suburbs were added to Calcutta under the Calcutta Municipal Act then those added suburbs should also come within the purview of Calcutta. 7. AS the name implies the West Bengal Non-Agricultural Tenancy Act, 1949, does not apply to Agricultural Tenancies and non-agricultural land as denned in section 2 (4) of that Act to mean land which is used for purposes; not connected with agriculture or horticulture and section 2 (5) defines a non-agricultural tenant to mean a person who holds non-agricultural land under another person and is or but for a, special contract would be, liable to pay rent to such person for that land but, does not include a person who holds; any premises or part of any premises. situated on non-agricultural land and erected or owned by another person, and who is, or but for a special contract would be, liable to pay rent for such premises or such part of the premises to such person". This definition; has some similarity with the definition of the Thika tenant in section 5 of the Calcutta Thika Tenancy Act and where the words "residential, manufacturing; or business purpose" would seem to exclude agricultural lands. Section 71 of the West Bengal Non-Agricultural Tenancy Act, 1949 expressly says that the provisions of the Transfer of Property Act, 1882 and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not in-consistent with the provisions of this Act, shall continue to apply to all tenancies to which the provisions of this Act apply. Now this is a significant provision. It makes it expressly clear that other laws will not apply in so far as they are inconsistent with the pro-visions of this Act. Now this is a significant provision. It makes it expressly clear that other laws will not apply in so far as they are inconsistent with the pro-visions of this Act. In other words, if any other law can eject ft tenant the that law will be inconsistent with the West Bengal Non-Agricultural Tenancy Act which prevents ejectment except on its own terms. Section 3 of the Calcutta Thika Tenancy Act specifies the grounds on which ejectment proceeding can be brought and they on a comparison are far less beneficial to the tenant than the much so far position guaranteed to the tenant under the West Bengal Non-Agricultural Tenancy Act. A tenant has better rights under the West Bengal Non-Agricultural Tenancy Act than under the Calcutta Thika Tenancy Act, at least from the point of view of the liability to ejectment. The provision in section 7 (4) (i) of the west Bengal Non-Agricultural Tenancy Act gives a far more extensive right of protection to the tenant and he is not ejectable except on the limited ground I have mentioned above and this is in contrast with the far lesser protection that the tenants are given under section 3 of the Calcutta Thika Tenancy Act. It will be unnecessary to make any more comparison between the two different statutes for the purpose of this application. It is enough to note this difference and when this difference is there then section 71 of the West Bengal Non-Agricultural Tenancy Act must apply to eliminate and override other laws which are inconsistent with the provisions of this West Bengal Non-Agricultural Tenancy Act. Reference may also be made in this connection and on this point to section 86 of the West Bengal Non-Agricultural Tenancy Act which clearly lays down that nothing in any contract between a landlord and a non-agricultural tenant made after the commencement of this Act shall take away or limit the rights of such tenant as provided for by this Act, and any contrast which is made in contravention of the provisions of this section or which is inconsistent with, or purports to alter the effect of, any of the provisions of this Act, shall to the extent of such contravention or inconsistency or to the extent it purports to alter such effect, be void and without effect. In other words no contract between the landlord and the non-agricultural tenant can defeat this Act. Reading the effect of section 71 and section 86 of the West Bengal Non-Agricultural Tenancy Act, 1949 it is abundantly clear that the rights acquired under the Non-Agricultural Tenancy Act cannot be defeated either by any other provision of law inconsistent with this or by any contract inconsistent with this Act. Section 86 of the West Bengal Non-Agricultural Tenancy Act, 1949 may however, be compared to section 31 of the Calcutta Thika Tenancy Act but section 71 of the West Bengal Non-Agricultural tenancy Act cannot by compared with any other section of Calcutta Thika Tenancy Act. 8. IT is necessary now to turn to the provisions of the Calcutta Municipal Act, 1951. The landlord petitioners place reliance upon this Act and they use this Act to make the Calcutta Thika Tenancy Act applicable to the added area of Tollygunge. The arguments advanced on behalf of the petitioners have been noticed at the beginning of the judgment. It is necessary now to construe the relevant provisions of that Act. Now section 594 of the Calcutta Municipal Act provides as follows:- "the State Government may, at any time by notification in the official Gazette declare that the area comprised within the Municipality of Tollygnuge shall be included within Calcutta and shall be administered under this Act and thereupon schedule I of this Act shall be deemed to be amended accordingly." The orders for the Tollygunge Municipality, newly included within Calcutta as published in Notification No. M. IM-79/52 (II) dated the 31st March, 19ej3, as set out below also show that there is no other effect of this inclusion : "whereas a notification under section 594 of the Calcutta Municipal Act, 1951 (West Bengal Act XXXIII of 1951) declaring that the area comprised within the Municipality of Tollygunge shall be included within Calcutta and shall be administered under the said Act on and from the 1st April 1953, here -. In after referred to as the said date, has been published : now, therefore, in exercise of the power conferred by section 595 of the Calcutta Municipal Act, 1951 (West Bengal Act XXXIII of 1951), the Governor is pleased to make the following orders namely: - (1) for a period of five years with effect on and from the said date: - (a) the annual valuation of holdings in the said area has in force under the Bengal Municipal act, 1932 (Bengal Act XV of 1932)immediately before the said date shall continue to remain in force (b) The Municipal rates determined under the Bengal Municipal act, 1932 (Bengal Act XV of 1932)for the said area in the financial year immediately preceding the (a)said date shall continue to remain in force on the same basis, so, however, that the Corporation shall be competent at any time to revise the said rates so as not to increase (1)holding rates beyond ten per cent, of the annual valuation referred to in clause (a), (ii) conservancy rates beyond ten per cent, of such valuation, (iii) water rates beyond seven per cent, of such valuation and (iv) lighting rates beyond three per cent, of such valuation., (c) the recovery of the Municipal rates, referred to clause (b (l or clause (d) shall be made by the corporation in accordance with the provisions of the Calcutta Municipal Act, 1951 (West Bengal Act xxxii of 1951), except that for each quarter a single rate bill shall be presented to the owner of each holding in the manner applicable immediately before the said date to the presentation of such rate bills under the Bengal Municipal Act,, 1932 (Bengal Act XV of 1932) (d) all new valuation or revaluation of holdings and levy of municipal rates within the said areas shall be made under and in accordance with the provisions of the Bengal Municipal Act, 1932 (Bengal Act XV of 1932. (2) all assets and liabilities of the Commissioners of the Municipality of Tollygunge shall, on and from the said date, vest in and devolve on the Corporation : (3) all legal proceedings by or on behalf of the Commissioners of municipality of Tollygunge and pending on the said date shall be continued by the Corporation. (2) all assets and liabilities of the Commissioners of the Municipality of Tollygunge shall, on and from the said date, vest in and devolve on the Corporation : (3) all legal proceedings by or on behalf of the Commissioners of municipality of Tollygunge and pending on the said date shall be continued by the Corporation. (4) all applications for review of assessment or valuation and other matters pending on the said date with the Administrator of the municipality of Tollygunge shall stand transferred to the Commissioner for disposal by him and (5) the staff of the Commissioners of the Municipality of Tollygunge shall on and from the said date be taken over by the Corporation and shall continue to serve under the Corporation under the terms and conditions of their service as in force immediately before the said date unless the terms and conditions of service applicable to other employees of the Corporation of comparable or equivalent status, but no such option shall take effect until after one year from the said date." As I read this section I am of the opinion that this addition of Tollygunge to Calcutta is for the limited specific purpose of Municipal affairs and not for non-municipal affairs and cannot affect non-municipal laws and rights there under of persons such as tenants and landlords. That purpose is to be gathered by the use of the significant expressions in that section, namely (1) "shall be included within Calcutta" (2) "and shall be administered under this Act" (3) "and thereupon schedule i to this Act shall be deemed to be amended accordingly. " These three are conjunctive and should be read together. The inclusion of Tollygunge is to be made only for the purpose of the administration under the Calcutta Municipal Act and the amendment to the schedule I of the Act in respect of the (1)area of Calcutta has also to be read as only a deeming provision and the amendment should be read 'accordingly' i.e., for the purpose of administration of the Act. The Calcutta Municipal Act, 1951 in its preamble expressly makes it clear that this is to amend and consolidate the law relating to the Municipal affairs of Calcutta. It does not pretend to do anything beyond that. The Calcutta Municipal Act, 1951 in its preamble expressly makes it clear that this is to amend and consolidate the law relating to the Municipal affairs of Calcutta. It does not pretend to do anything beyond that. It does not pretend to affect and cannot affect laws and rights acquired under other substantive Laws such as between landlords and tenants which have nothing to do with the Municipal affairs. The inclusion of Tollygunge in Calcutta is therefore for the limited purpose of the "municipal affairs" of Calcutta. That is the first part of my construction of this relevant provision under section 594 of the Calcutta Municipal Act on which so much reliance has been placed. The amendment of Schedule I in enlarging the area of Calcutta is also a very limited amendment because in the first place, it is only a deeming amendment but not a real amendment and in the second place, it is an amendment "accordingly" which means only for the purpose of the municipal administration and not for the purpose of overriding other acts such as the West Bengal Non-Agricultural Tenancy Act which has nothing to do with the "municipal affairs of Calcutta. " but the section which in my view goes more against the petitioners' contention is sec. 595 of the Calcutta Municipal Act, 1951. That section describes the effect of the inclusion of the Tollygunge Municipality. From the terms of that inclusion as provided by that section, it will be clear that inclusion of Tollygunge within Calcutta can-not mean that the area so included we come within the operation of Calcutta Thika Tenancy Act which has nothing to do with the Municipal affairs of Calcutta or with the administration of the Corporation of Calcutta under the Calcutta Municipal Act, 1951. Now Section 595 of the Calcutta Municipal Act, 1951 provides as follows: - "upon the publication of notification under Section 594- (a)the Bengal Municipal Act, 1932, shall be deemed to be repealed in the area comprised within the Municipality of Tollygunge (b)Except as the State Government may, otherwise by notification in the official Gazette, direct all rules, by-laws, regulations, orders, directions and powers made, issued or conferred under this Act and in force at the date of the notification shall apply to the area comprised within the Municipality of Tollygunge in super-session of all corresponding rules, by-laws regulations, orders, directions and powers (if any) made, issued or conferred under the Bengal Municipal Act, 1932, (c)the State Government may issue such orders as may be necessary to give effect to the inclusion within Calcutta of the area comprised within the Municipality of tollygunge and any matters incidental or ancillary thereto a glance at this section will at once disclose what is the total statutory effect of inclusion of Tollygunge in calcutta. It only repeals the application of Bengal Municipal Act to Tolly-gunge. That confirms the view that. 1 have already taken that it is only the 'municipal affairs' that were intended to be regulated by this change of law. It then applies rules, by-laws, regulations, orders, directions and powers under the Calcutta Municipal Act, 1951 to Tollygunge and empowers the State to make incidental or ancillary orders to give effect to this inclusion. Section 595 does not say that this inclusion will also repeal any other laws such as West Bengal Non-Agricultural Tenancy Act in Tollygunge and the lands situated therein. Hence rights acquired under that Act could not possibly be affected in any manner by inclusion of Tollygunge in Calcutta for municipal affairs. In that context section 608 (d) of the Calcutta Municipal Act, 1951, cannot be any assistance to the landlord petitioners. Hence rights acquired under that Act could not possibly be affected in any manner by inclusion of Tollygunge in Calcutta for municipal affairs. In that context section 608 (d) of the Calcutta Municipal Act, 1951, cannot be any assistance to the landlord petitioners. That section in its material portion inter alia reads as follows:- "in every enactment in force at the commencement of this Act, unless a different intention appears all references to, or to any chapter or section of the Calcutta Municipal Act, 1899 or the Calcutta Municipal Act, 1923, shall so far as is possible, be construed as references to this Act or to its corresponding chapter or section." The contention on this point and on this section by the landlords is that therefore read Calcutta Municipal Act, 1923 in Section 1 (2)of the Calcutta Thika Tenancy Act as the Calcutta Municipal Act, 1951. 9. THIS argument to my mind is wholly untenable. I shall give my reasons briefly. My first reason is that two significant expressions occur in section 608 of the Calcutta Municipal Act, 1951. They are (a) "unless a different intention appears" and (b) shall so far as is possible. Therefore, it has to be seen whether a different intention appears or not. Therefore, it has to be seen whether it is possible to make reference to the later Calcutta Municipal Act of 1951. The preamble of the Calcutta Municipal Act and its purpose are only concerned with the Municipal affairs of Calcutta and therefore, the laws which have nothing to do with the Municipal affairs cannot be affected by this provision of the Calcutta Municipal Act. Secondly, the Calcutta Thika Tenancy Act has been amended even after the Calcutta Municipal Act, 1951, for instance, the Thika Tenancy Act was amended in 1953 and even in 1959, but it did not amend Section 1 (2) of the Act by changing the Calcutta Municipal Act, 1923 into Calcutta Municipal Act, 1951. In that context to rely con section 608 (d) of the Calcutta Municipal Act, 1951 to amend section 1 (2) of the Calcutta Thika Tenancy Act seems to> me unreasonable and not in accordance with the intention of the Calcutta Tihika Tenancy Act. In that context to maintain reference to a repealed Act pima facie carries with it eloquent implication of a different intention. In that context to maintain reference to a repealed Act pima facie carries with it eloquent implication of a different intention. Thirdly, section 610 of the Calcutta Municipal Act, 1951, makes the clear and express provision in the following tems: - "except as in this Act other-wise expressly provided nothing in this Act shall be deemed to affect the provisions of any other enactment. " 10. I should, therefore, read this provision) to mean that unless it is expressly provided in the Calcutta Municipal Act, that Calcutta Thika Tenancy Act will be affected by extending the operation of the area of that Act to localities which are outside Calcutta, I would not read that effect by implication when the statute says that it can only be done by express provision. To my mind it will be insensible and inappropriate to allow the Calcutta Municipal Act to affect and alter and prejudice the substantive rights under other Jaws which have nothing to do with the Municipal administration of Calcutta such as the law of tenancy for non-agricultural tenants. A somewhat similar problem came up before this court many years ago in the case of (7) Jotiram Khan v. Jonaki Nath Chose, reported in 20 C. W. N. 258. This was in connection with another suburban area Cosspiore which came later on to be included in the town of Calcutta. The facts in that case are interesting. There the defendant on 16th December, 1898, took a five years' lease from the plaintiff of an agricultural holding situated within the then Municipal limits of Calcutta but beyond the limits of the town of Calcutta as determined by the proclamation of the Governor-General in Council dated the 10th September, 1794. The plaintiff on the 9th November, 1910, filed a suit to eject the defendant. A Division Bench of this Court came to the following finding. The plaintiff on the 9th November, 1910, filed a suit to eject the defendant. A Division Bench of this Court came to the following finding. It holds that until the Bengal Tenancy Amendment Act of 1907 came into force, the Bengal Tenancy Act applied to the case and the defendant had in consequence acquired the status of a non-occupancy raiyat when the Amendment Act came into force, and his status was not affected by the provisions of section 3 of the Amendment Act which gave a new definition of the expression Town of Calcutta as used in Section 1 of the Bengal Tenancy Act, making it coextensive in area with the present Municipal limits of Calcutta. The Division Bench comes to this conclusion in that case that the explanation added to sub-section (3) of Section 1 of the Bengal Tenancy Act by Sec. 3 of Act 1 B. C. of 1907 is an amending statute and not merely one of a declaratory character and cannot, therefore, be given retrospective operation. The Statutes which are properly of a declaratory character have a retrospective effect. But: the nature of the statute must be determined from its provisions and the me fact that the expression "it is declared" has been used, is by no means conclusive as to the true character of the Legislation. The following remarks in He decision of the Division Bench at page 260 appear relevant on the point under discussion in the instant case before me. "it is further plain that another addition which has been made to the same sub-section of section 1 and refers to areas comprised within a Municipality constituted under the Bengal Municipal Act, 1884 also effects a fundamental alteration in the law. In other opinion, there is no room for serious controversy, that the law was materially altered by the legislation of 1907 and that the provisions of sec. 3 cannot be given a retrospective operation. Thus view is supported to some extent by the provisions of sec. 9, Sub-sec. (3) (See Sec. 19 (2) of the Bengal Tenancy Act. In other opinion, there is no room for serious controversy, that the law was materially altered by the legislation of 1907 and that the provisions of sec. 3 cannot be given a retrospective operation. Thus view is supported to some extent by the provisions of sec. 9, Sub-sec. (3) (See Sec. 19 (2) of the Bengal Tenancy Act. We hold accordingly that the status of the defendant was not affected by the Legislation of 1908 which have gave a new definition of the expression town of Calcutta as used in Sec. 1 of the Bengal Tenancy Act." for these reasons it must follow that the status acquired by the tenants a Tollygunge under the West Bengal Non-Agricultural Tenancy Act, 1949, cannot now be prejudiced and affected by the Calcutta Thika Tenancy Act, 1949. It must also, therefore, follow that the landlords petitioners are not entitled to any order of ejectment of the tenants under the Calcutta Thika Tenancy Act which, in my view does not apply to the facts and circumstances of this case to the land in question in Tollygunge. I, therefore, uphold the order and judgment of the lower appellate court of this particular point. It is unnecessary to express any view as to what would happen if the Calcutta Thika Tenancy Act had applied and I do not propose to express such opinion at all or any view on the decision that the lower appellate court made on this point as to what would have happened if the Calcutta Thika Tenancy Act had applied. For reasons stated above this Rule must fail and is discharged. There will be no order as to costs of this Rule,