JUDGMENT 1. This is an application under Article 227 of the Constitution against an under of the appellate authority under section 5 of the Calcutta thika Tenancy Act whereby he agreed with the trial authority that the tenant is liable to be ejected on the ground that the plot of land is required for the purpose of building and also for the purpose of development of the same. 2. The landlord filed the petition under section 5 of the Calcutta Thika tenancy Act on the 28th September, 1953 on the ground that the property was within the Police Station, Tollygunj within the municipal limits of Calcutta and the opposite party was a thika tenant in respect of the same holding and that the petitioner required the holding for the purpose of building on the land and also for developing the same. The petitioner further stated that the defendant admittedly constructed a pucca structure with a privy on a portion of the holding sometime in December, 1951 and the plaintiff filed a suit for injunction and the suit was pending at the date when the application, was filed. The property in question was at the date of the application, within the Calcutta Corporation and therefore, the provision of the Calcutta Thika Tenancy Act would 'prima facie' apply. A point was taken that the application was not maintainable. The point was taken by the tenant and that point has not been seriously urged before me. I have stated that the authorities below granted an order for ejectment. Mr. Hari Prasanna Mukherjee, on behalf of the petitioner, urged that the Calcutta Thika tenancy Act would not apply. According to him, the property was outside the Calcutta Corporation and was within the Tollygunj Municipality till 31st march, 1953 and it was included within the Calcutta Corporation from 1st April, 1953. Mr. Mukherjee, therefore, contended on the basis of a decision reported in 69 CWN 843, that the application was not maintainable under the Calcutta Thika Tenancy Act. I pointed out to him that if the application under that Act was not maintainable, the tenant would not get the protection under that Act. Having considered that matter, Mr. Mukherjee did not press the point of maintainability further. Therefore, I need not consider that matter further. I pointed out to him that if the application under that Act was not maintainable, the tenant would not get the protection under that Act. Having considered that matter, Mr. Mukherjee did not press the point of maintainability further. Therefore, I need not consider that matter further. The authorities below held that the tenant in question was liable to be ejected because the conditions under section 3 of the Calcutta Thika Tenancy Act were complied with. This question is largely a question of fact and I am not inclined to interfere on that matter under article 227 of the Constitution. The only matter to be considered is whether the tenant acquired any such right under the Non-agricultural Tenancy act, as would protect him from eviction. Mr. Apurbadhan Mukherjee for the respondent urged that the point not being urged in the courts below could not be allowed to be urged. I find it was in the written statement, it was considered by the trial court and was over-ruled. It was taken in as a ground of appeal. It was not considered in the judgment of the appeal court. It was urged in this petition. Hence, that objection cannot be upheld. The question would be whether the tenant acquired any right under the non-agricultural Tenancy Act which would protect him from ejectment. It cannot be disputed that the Non-agricultural tenancy Act did apply to that area before the 1st April, 1953. But it must also be remembered that the Non-agricultural tenancy Act came into force in 1949. This may also be remembered that there was another Act in force and some calculation is to be made before it is found that the tenant is entitled to benefits under that Non-agricultural tenancy Act. That question has not been decided by the courts below. Therefore, we have to decide whether (1) because of the enforcement of the Calcutta Thika Tenancy Act the tenant would be deprived of his right, if any, acquired under the Non-agricultural tenancy Act, (ii) if he is not so deprived of such right whether he did in fact acquire any right under the Non-agricultural tenancy Act and (iii) whether he would be ejectable in spite of the acquisition of such right as he might have acquired under the West Bengal non-agricultural Tenancy Act. 3. THE last two questions are mixed questions of fact and law. 3. THE last two questions are mixed questions of fact and law. Therefore, I must send that matter to the trial court for determination on evidence. But so far as the first matter is concerned, the decision of P.B. Mukharji, J. is in favour of the tenant. It says that if the tenant acquired any right under the Non-agricultural Tenancy act, he would not be deprived of that right because of the passing of the Calcutta thika Tenancy Act. 4. THE Non-agricultural Tenancy act applies to the whole of West Bengal except Calcutta as defined in the Calcutta Municipal Act. Till the 1st April, 1953 Tollygunj was outside that area. Therefore, it would apply to tollygunj. Hence, nothing prevented the tenant from acquiring rights under the Non-agricultural Tenancy Act. If he acquired those rights the repeal of that enactment with regard to that area would not deprive the tenant of the rights that he had acquired. The relevant provision is contained in section 8 of the General Clauses Act, section 8 of the Bengal General Clauses act is as follows : "where this Act or any Bengal act made after the commencement of this Act repeals any enactment thereby made or hereafter be made then unless a different intention appears the repeal shall not affect any right, privilege, application or liability acquired or accrued or incurred under any enactment so repealed. " There has "been no repeal expressly of the provision of the West Bengal Non-agricultural tenancy Act with respect to that area. West Bengal Non-agricultural tenancy Act, has not been so amended to say that it would not apply to a particular area ; nor has there been any provision in the Calcutta Thika tenancy Act whereby it has been said the said Calcutta Thika Tenancy Act would apply to the area which formerly belonged to Tollygunj and which on the 1st April, 1953 was included in Calcutta. What was done is that an amended was made in the Calcutta Municipal act introducing a further area into 'Calcutta' which was formerly outside 'Calcutta'. Under the Calcutta Thika Tenancy Act, the said Act extends to Calcutta as defined in Clause (11) of section 3 of the Calcutta Municipal act of 1923, which would now mean Calcutta as defined in section 3, clause (11) of the Calcutta Municipal act of 1951. Under the Calcutta Thika Tenancy Act, the said Act extends to Calcutta as defined in Clause (11) of section 3 of the Calcutta Municipal act of 1923, which would now mean Calcutta as defined in section 3, clause (11) of the Calcutta Municipal act of 1951. Therefore, The Calcutta thika Tenancy Act would with effect from 1st April 1953 apply to Tollygaunj area. West Bengal Non-agricultural tenancy Act extends to the whole of west Bengal except 'Calcutta' as defined in clause 11, section 3 of the Calcutta municipal Act of 1923. Hence, Calcutta thika Tenancy Act applies to 'Calcutta' as defined under that Act and the West Bengal Non-agricultural tenancy Act does not apply to the very same area. Hence, the Calcutta Thika tenancy Act would apply with regard to the area which was formerly under the Tollygaunj Municipality after the 1st April 1953 and West Bengal Non-agricultural tenancy Act will cease to apply to that area with effect from that date. Hence, in substance, the west Bengal Non-agricultural Tenancy act has been impliedly repealed with respect to that area and therefore, section 8 of the West Bengal General Clauses act would apply to keep alive all rights acquired under the enactment so repealed, namely, under the West Bengal Non-agricultural Tenancy Act. In the case between Shafiuddin v. Gopal Chandra Banerjee, reported in 69 CWN 842, P. B. Mukharji, J. has held as follows : "the status acquired by the tenants in Tollyganuj under the West Bengal non-agricultural Tenancy Act cannot now be prejudiced or affected by the Calcutta Thika Tenancy Act. " I entirely agree with this conclusion. The decision of Mukharji, J., is in agreement with a decision of the division Bench of this Court in the case of Jyotiram Khan v. Janakiram Ghose reported in 20 CWN 258. A person who has acquired certain rights under the West Bengal Non-agricultural Tenancy act would not be deprived of those rights if the provisions of the Calcutta Thika Tenancy Act applies to him. But if the effect of such acquisition of rights is that the provision of the Calcutta Thika Tenancy Act would not apply, in that case the application of the Calcutta Thika Tenancy Act may not be maintainable. P. B. Mukharji, j., held that the tenant in that case acquired a right to hold in perpetuity. But if the effect of such acquisition of rights is that the provision of the Calcutta Thika Tenancy Act would not apply, in that case the application of the Calcutta Thika Tenancy Act may not be maintainable. P. B. Mukharji, j., held that the tenant in that case acquired a right to hold in perpetuity. If he did acquire that right then the provision of the Calcutta Thika Tenancy act would not apply because of section 2 (5) (a) which excludes any person who acquires a right to hold the land in perpetuity from the operation of the Calcutta Thika Tenancy Act. It may also be that the West Bengal non-agricultural Tenancy Act does not apply to persons who hold land in perpetuity and, therefore, there is no question of acquisition of any right by such a person under the Non-agricultural tenancy Act. It may also be that the tenant in this case has acquired rights under section 7 of the Non- agricultural tenancy Act. It may be that he has acquired rights merely under section 9 of the Non-agricultural tenancy Act but in the latter cases the application of the Calcutta Thika Tenancy act would be maintainable but he will get a double protection - a protection as under the Calcutta thika Tenancy Act and another protection under the Non-agricultural Tenancy act. In this case it has been urged that the tenant in question has acquired rights under section 7 of the non-agricultural Tenancy Act. It was not urged by Mr. Mukherji that the tenant had acquired right to hold land in perpetuity ; as such section 2 (5) (a)of the Calcutta Thika Tenancy Act would not apply to the facts of the case. According to Mr. Mukherjee, the tenant has acquired rights under sec. 7 of non-agricultural Tenancy Act. If he has acquired rights under section 7 of the said Act, he does not acquire permanent right. In that case, he has acquired a heritable and transferable right under the West Bengal Non-agricultural tenancy Act. Further, he has acquired under section 7 (1) a right 'not to be ejected except on the ground that he uses such land in a manner which renders it unfit for the purpose of the tenancy'. In that case, he has acquired a heritable and transferable right under the West Bengal Non-agricultural tenancy Act. Further, he has acquired under section 7 (1) a right 'not to be ejected except on the ground that he uses such land in a manner which renders it unfit for the purpose of the tenancy'. Therefore, the court below has to enquire whether the tenant has used the land in a manner which rendered it unit for the purpose of tenancy and that right he would be entitled to get provided he has satisfied the conditions referred to in sections 7 (i) or (ii) or (iii) or (iv) or (v). Therefore, it has to be enquired by the court of fact whether the conditions as referred to in section 7 (i), (ii), (iii), (iv) or (v) have been satisfied and in considering that, the court will take into consideration the method of computation under that Act. The court will take into consideration sections 89 and 90 of the said Act. 5. HENCE, I affirm the finding of the court below that the conditions referred to in the Calcutta Thika Tenancy act have been complied with and therefore, the tenant is not entitled to the protection under the Calcutta Thika tenancy Act. But the trial court will enquire (a) whether the tenant acquired any right under the Non-agricultural tenancy Act and (b) if so, whether the tenant is still protected from eviction on acquisition of such right. Parties will adduce such evidence as the trial court below think fit. 6. IF the authority comes to a finding that the tenant is not entitled to any protection under Non-agricultural tenancy Act, the authority will pass an order that the landlord is entitled to an order of eviction. But there will be no order for eviction until the landlord deposits compensation as required in accordance with section 5 (2) of the Calcutta Thika Tenancy Act. If the authority comes to a finding that the tenant is entitled to protection from eviction under the Non-agricultural tenancy Act, the authority will dismiss the application. The Rule is disposed of the matter is sent back to the trial authority below to deal with the case in accordance with law and in accordance with the observations aforesaid made. There will be no order for costs.