J. N. HOSE, J. ( 1 ) -THE instant appeal is directed a against the judgment and decree dated 10th August, 1977 passed by the learned Additional District Judge, 1st Court at Jalpaiguri in O. C. Appeal No. 48 of 1976 reversing the judgment and decree of dismissal dated 21st June, 1976 passed in O. C. Suit No. 82 of 1971 passed by the learned Munsif, Jalpaiguri. ( 2 ) PLAINTIFF/respondents brought the said O. C. , Suit No. 82 of 1971 against the appellant/defendant for ejectment. The plaintiff case was that he purchased the suit land by a registered deed dated 27. 2. 68 and became the owner of the same. The plaintiff's dwelling house is on a portion of the disputed land. A portion of the land was lying vacant. In the early part of 1968, the defendant approached the plaudit to allow him occupy the vacant land for the purpose of running a coal depot. The defendant assured the plaintiff that he would vacate the same whenever he demanded. The tenancy agreed upon in respect of the suit land commenced on and from 1st April 1968 and the rent was fixed at Rs. 20/- and it was increased to Rs. 28/ -. The defendant raised a structure on the land en condition that he would dismantle the same when he would vacate the suit land. The defendant was a defaulter from April 1969. The plaintiff required the suit, land for guilds his own house so the plaintiff issued a nonce through his lawyer on 23. 9. 70 under the West Bengal Non-Agricultura1 Tenancy Act determining the tenancy but inspite of the notice the defendant did not vacate the land. Hence the suit. ( 3 ) THE defendant contested the suit by filing a written statement in which it was contended inter alia that the plaintiff let out to the defendant not only a vacant land but also structure in a dilapidated condition thereon at a monthly rent 6f Rs. 20/- arid it was agreed that the defendant would dismantle the structure and build a new structure for the purpose of running the business of store and selling soft coke etc. and would construct suitable culvert and partway at his own cost. The rent was enhanced to Rs. 28/ -. The alleged default in payment of rent was denied. 20/- arid it was agreed that the defendant would dismantle the structure and build a new structure for the purpose of running the business of store and selling soft coke etc. and would construct suitable culvert and partway at his own cost. The rent was enhanced to Rs. 28/ -. The alleged default in payment of rent was denied. It was further pleaded that the plaintiff previously served n combined notice through his lawyer under the provisions of the West Bengal Premises Tenancy Act, admitting thereby that the tenancy was governed by the West Bengal Premises Tenancy Act. It was contended that the tenancy was governed the provisions of the West Bengal Premises Tenancy Act and the notice was, therefore, ba5 in law and the suit was not maintainable. ( 4 ) DURING the pendency of the suit the original plaintiff died and her legal heirs were substituted who contested the suit. ( 5 ) THE learned Munsif held that land with structure was let out to the defendant and accordingly tenancy was governed by the West Bengal Premises Tenancy Act and the notice been given under the Non-Agricultural Tenancy Act, the suit was not maintainable. The learned Munsif accordingly dismissed the suit. ( 6 ) THE plaintiff preferred an appeal against the judgment and decree passed by the learned Munsif being O. C. Appeal No. 48 of 1976 which was heard by the learned Additional District Judge, 1st Court, Jalpaiguri. Upon a consideration of the evidence on record both oral and documentary he held in disagreement with the learned Munsif that only vacant land was let out to the defendant and net any premises. The learned Additional District Judge was of the opinion that even if land with a dilapidated structure was let out to the defendant and the defendant was given a right to dismantle the same and constructed a new structure as the defence case was, the defendant would because a non-agricultural tenant from the time when the structure was demolished. In view of the Division Bench decision of this court in a case reported in A. I. R. 1956, Cal. In view of the Division Bench decision of this court in a case reported in A. I. R. 1956, Cal. 168 it has been held in that case that where at the inception of the tenancy is given in respect of the land as also the structure standing thereon, but the tenancy is given a right to demolish the structure and hold the land with his own structure thereon and for this there is to be no deminution of rents even if it be assumed that at the inception of the tenancy he was not a non-agricultural tenant still from the time when the structures were demolished he became a non-agricultural tenant as defined by the act. The learned Judge also held that the non-agricultural tenancy of the defendant was legally and validly terminated by the notice (Ext. 5) and that the substituted the plaintiff required the disputed land for construction of their own house. He accordingly allowed the appeal passed a decree for eviction and khas possession against the appellant/defendant. The defendant was directed to remove the structures and deliver the vacant possession of the suit land to the plaintiff within 2 months failing which the plaintiff/appellant would be at liberty to exclude the decree. Being aggrieved by the said judgment and decree the defendant/respondent has preferred this appeal. ( 7 ) MR. Moitra, the learned Counse1 for the appellant has not disputed the finding of the lower appellate court that the disputed tenancy governed by the West Bengal Non-Agricultural Tenancy Act. He has, however, contended that the provisions of the new section 3a of West Bengal Land Reforms Act 1955 as introduced by the West Bengal Land Reforms (Third Amendment) Act 1986. The interest of the plaintiff/defendant as non-agricultural tenant have vested in the State free from all incumbrances and the plaintiffs are not, therefore, entitled to khas possession of the suit land by evicting the defendant therefrom. ( 8 ) THERE is considerable force in this contention which must be accepted. The interest of the plaintiff/defendant as non-agricultural tenant have vested in the State free from all incumbrances and the plaintiffs are not, therefore, entitled to khas possession of the suit land by evicting the defendant therefrom. ( 8 ) THERE is considerable force in this contention which must be accepted. ( 9 ) SUB-SECTION 1 of the amended section 34 provides that the right and interest of all non-agricultural tenants and under-tenants under the West Bengal Non-Agricultural Tenancy Act 1949 shall vest in the state free from all incumbrances and the provisions of sections 5 and 5a of the West Bengal Estate Acquisition Act 1953 shall apply, with such modifications as may be necessary mutate and mutandis to all such non-agricultural tenants and under tenants as if such non agricultural tenants and under tenant or intermediaries and the land held by them were states and a person holding under non-agricultural tenant or under tenants were a raiyat. Sub-section 5 lays down that the section shall be deemed to have come into force on and from 9th day of September 1980. Sub-section 2 contains provisions for retention of land held in khas possession by the tenant or under tenants not exceeding selling area under section 14m. Sub-section 3 provides for compensation of the land vested in the state. ( 10 ) IT is clear, therefore that on and from 9th September, 1980 the right and interest of all the non-agricultural tenant or under tenants under the West Bengal Non-Agricultural Tenancy Act 1949 stood vested in the State free from all incumbrances as if they were intermediaries and the land held by them were State. ( 11 ) MR. Ghosh Roy, learned Advocate for the respondents has contended that the provisions of section 3a of the West Bengal Estates Acquisition Act 1953 have been made applicable by the new section 3a and section 5 of the West Bengal Estates Acquisition Act which contains the provisions with regard to the effect of notification published under section 4 and the effects of vesting refers to due publication of a notification under section 4 and so unless a notification in accordance with the provisions of section 4 is issued the provisions of the new section 3a regarding vesting of the interest of the non-agricultural tenants and under tenants would not apply. This contention cannot be accepted in view of the Explanation to section 3a (1) which is as follows "nothing in sections 5 and 5a of the West Bengal Estates Acquisition Act, 1953 shall be considered to affect in any way the vesting of the construed rights and interests of a non-agricultural tenant or under tenants under West Regal Non-Agricultural Tenancy Act 1949 in the States under Sub-section 1 of this section. " Moreover, there is no reference to section 4 of the West Bengal Estates Acquisition Act 1953 and the new section 3a does not envisage any notification in accordance with the provisions under sanction 4 of the Estate Acquisition Act. The vesting of the interest of the agricultural and non-agricultural tenants under section 3a does not depend upon issuance of any notification. The effect of provisions of sub-section 5 is that such interests of non-agricultural tenants and under tenants stood vested on and from 9th day of September 1980 and there is therefore no question of any notification vesting estates and rights of intermediaries in accordance with the provisions of section 4 of the West Bengal Estates Acquisitions Act. It may be mentioned here that in the old section 3a introduced by the West Bengal Land Reforms (Amendment) Act, 1981, there is specific reference to the provisions of section 4 of the West Bengal Estates Acquisition Act which would apply mutatis and mutandis. The Explanation to new section 3a (1) has also not there, so under the old section 3a as introduced by the West Bengal Land Reforms (Amendment) Act 1981, notification in accordance with the provisions of section 4 mutatis and mutandis was necessary before vesting of the interests of the agricultural and non-agricultural tenants. There is no reference to section 4 in the new section 3a (1) the provisions of section 4 are not made applicable in the new section 3a (1) and the Explanation as referred to above has been added. It is clear, therefore, no notification for vesting of the rights and interests of the non-agricultural tenants and under tenants under the West Bengal Non-Agricultural Tenancy Act 1949 is necessary and the provisions of the new section 3a clearly indicate that the rights and interests of all non-agricultural tenants and under tenants under the West Bengal Non Agricultural tenancy Act 1949 vested free from all encumbrances on and from 9th September 1980. ( 12 ) IN the result, the appeal is allowed and the decree passed by the court below is set aside. The suit stands dismissed. Parties would bear their costs throughout. Appeal allowed.