1. The petitioner says Chat one Radha Ranjan Saha and be himself were co-sharer tenants in respect at C. S. Plot No 503 of Khatian No. 90. in Mouza Kumardanga, District Birbhum. On the death of Radha Kanjan, his widow Nirmala Bala succeeded him. She sold her share in the aforementioned plot to opposite party 1 to 3, certain strangers, by a deed dated January 30, 1959, without notice to the petitioner. The petitioner says that his status in the ptol of land was that of an occupancy raiyat and that he became entitled to exercise his right of pre-emption against the sale, under Section 26-F of the Bengal Tenancy Act Since admittedly no notice under Section 26-C of the Bengal Tenancy Act had been served upon the petitioner and since the petitioner had no exact information about the sale before he took out a certified copy of the deed of sale, on April 13, 1959, he could not apply for pre-emption before April 18, 1959.
2. There was a written objection tiled to the application for pre-emption by opposite party, No. 1 to 3, in which it was, inter alia, pleaded:-
(a) that the tenancy was not governed by the Bengal Tenancy Act and as such the application under Section 26-F was not maintainable;
(b) alternatively, pursuant to an agreement to reconveyance, the opposite party Nos. 1 to 3 re-conveyed the property to Nirmala Bala on April 9, 1959, and had the document of reconveyance registered on May 11, 1959. Since the property no longer stood conveyed to strangers, the claim for pre-emption should fail;
(c) the claim was barred by limitation.
3. After the filing of the objection, the present petitioner amended his application for preemption in the following mannen
(i) added Nirmala Bala as opposite party No. 4 to his application,
(ii) made an alternative prayer for pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act.
4. Nirmala Bala, thereupon, filed a written objection to the application for pre-emption, substantially repeating the grounds urged by opposite party Nos. 1 to 3.
5. The learned Munsiff held that the tenancy was governed by the Bengal Tenancy Act and that the application for pre-emption was not barred by limitation. He held further that the deed of reconveyance was not a real but a purposive document and was brought into existence only by way of an attempt to defeat the application for preemption. In the view that he took, the learned Munsif allowed the application.
6. The opposite party appealed against the order of the Munsif before the Court of the District Judge at Birbhum, Before the learned District Judge, it was, however, conceded that the tenancy was governed by the Bengal Tenancy Act, and that the re-conveyance did not affect the petitioner's right of pre-emption. The points which were urged in appeal were two, namely,
(a) that the claim for pre-emption must abide by the terms of the agreement for re-conveyance of the property to the vendor, Nirmala Bala, or
(b) that the claim for pre-emption must tail on the ground that such a right did not survive in respect of land retained by an intermediary, after the vesting of occupancy raiyats' tenancies in the Slate Government, under the provisions of the West Bengal Estates Acquisition Act.
The learned District Judge overruled the first contention but gave effect to the second and in that view reversed the order of the trial Court, allowed the appeal and dismissed the application for preemption.
7. Aggrieved by the appellate order, the petitioner moved this Court, under Section 115 of the Code of Civil Procedure and obtained this Rule.
8. On the point whether the right of preemption, under Section 26-F of the Bengal Tenancy Act survived the onslaught of the West Bengal Estates Acquisition Act, there are severaJ reported decisions of this Court, all by Judges sitting singly, namely, (i) Ganesh Chandra Mahata v. Sudarshan Dey, 62 CaJ WN 360 -- (per Sen, J.); (ii) Panchu Sundari Dasi v. Haripada Biswas. 65 Cal WN 354 -- (per P. N. Mookerjee, J.); (iii) Nitai Chandra Das v. Sisir Kumar Das, 67 Cal WN 633 -- (per B. N. Dutt, J.) and (iv) Dhananjoy Senapati v. Debendra Nath Senapati, 67 Cal WN 848--(per Chatterjee, J.). In all the aforementioned decisions, it was held that the right of pre-emption did subsist even after the vesting of estates, including occupancy raiyats' holdings, in the State Government. Nevertheless, when the Rule came up for hearing before Laik, J., his Lordship thought it proper to refer the case to a Division Bench for "final decision" of the point, without any indication as to how his Lordship felt disinclined to follow the decisions referred to above. This is how the Rule has been placed before us for hearing.
9. Mr. Lala Hemanta Kumar learned Advocate for the petitioner, placed strong reliance on the reported decisions above referred to, which were all in his favour and also on the language of Sub-section (2) of Section 6 of West Bengal Estates Acquisition Act read with Rule 4 of the West Bengal Estate Acquisition Rules and con-tended that the learned District Judge was wrong in dismissing the petitioner's claim for pre-emption,
10. Elaborating his argument, Mt. Lala contended that the West Bengal Estates Acquisition Act (hereinafter referred to as the Act), was enacted to "provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates". The word "intermediary" was defined in Section 2(i) of the Act as meaning "a proprietary tenure-holder, or any other intermediary above a raiyat or a non-agricultural tenant". Under Section 4 of the Act, it was provided that,
"The State Government may from time to time by notification declare that with effect from the date mentioned in the notification, all estates and tights of every intermediary in each such estate situated in any district or part of district specified in the notification, shall vest in the State tree from all incumbrances."
Such a notification was made and under the terms thereof all estates and rights of intermediaries in such estate vested in the State with effect from April 15, 1955. Raiyats, however, did not fall within the mischief of the notification because Chapter VI of the Act, providing for the acquisition of interests of raiyats and under-raiyats" was not incorporated in the statute until November 25, 1955, when West Bengal Act XXXV of 1955 came into operation, and did not come into force until the notification contemplated in Section 49, in Chapter VI of the Act, was made, on April 9, 1956, bringing into effectiveness that Chapter of the Act from the very next date. Section 52 of the Act, inter alia, provided that:
"On the issue of a notification under Section 49 the provisions of Chapters II, III, V and VII shall, with such modifications as may be necessary, apply mutatis mutandis to raiyats as if such raiyats, and under-raiyats were intermediaries and the land held by them were estates ***"
Therefore, with effect from April 10, 1956, a raiyat, such as the petitioner was, became entitled to the rights and liabilities provided for, inter alia, in Chapter II of the Act to the same extent as any other intermediary.
11. Now Section 6(1), in Chapter II of the Act, conferred upon intermediaries the right to retain certain lands, including agricultural land upto a prescribed ceiling. Sub-section (2) of Section 6, inter alia, provides that,
"An intermediary who is entitled to retain possession of 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 such rent as may be determined ***".
Section 59(2) of the Act also authorise the State Government to prescribe rules for carrying out the purposes of the Act. The word "prescribed" means "prescribed by rules under the Act." In this context, Rule 4 of the West Bengal Estate Acquisition Hules (as it stood prior to its amendment) is of relevant consideration. The said rule, in so far material for the present purpose, used to read:-
Rule 4 (1): Every intermediary who retains possession of any land by virtue of the provisions of Sub-section (1) of Section 6 shall subject to the provisions of the Act, be deemed to hold such land from the date of vesting -
(a) if it is agricultural land, other than the land comprised in a tea garden, on the same terms and conditions as an occupancy raiyat under the Bengal Tenancy Act, 1885;
Provided that in the case of an intermediary belonging to a Scheduled Tribe as notified under clause (1) of Article 342 of the Constitution of India, such retention shall be subject to the following limitations:
(1) he shall not transfer his land or any portion thereof to any person by sale, mortgage, gift, will, lease or any contract or agreement except with the previous permission of the Collector in writing, containing the terms of the transfer. No permission shall, however, be necessary in the case of a lease to another member of the Scheduled Tribe or in the case of a complete usufructuary mortgage to another member of the Scheduled Tribe for a period not exceeding seven years;
(2) his land or any portion thereof shall not be sold except for recovery of arrears of rent in, respect of that land;
(3) no transfer shall be valid unless made by a registered instrument;
(4) if a transfer of any land or a portion thereof is made in contravention of the provisions of this rule, the Collector may, on his own motion, or on an application made in that behalf, by an older in writing eject the transferee from the land or portion thereof on such terms and conditions as he thinks fit:
Provided that -
(a) the transferee whom it is proposed to eject has not been in continuous possession in contravention of this rule for twelve years or more, and
(b) he is given an opportunity of showing. cause against the order of ejectment;"
* * * *"
On September 7, 1962, Rule 4 was largely amended and the material portion of the amended Rule reads as follows:-
"4 (1) -- Any land retained by an intermediary under the provisions of Sub-section (1) of Section 6 shall subject to the provisions of the Act, be held by him from the date of vesting on terms and conditions specified below:-
Terms and conditions above referred to:
(A) * * * *
(B) (1) * * * *
(2) * * * *
(3) If the land held by the intermediary be agricultural land, then -
(1) he shall hold it mutatis mutandis on terms and conditions mentioned in Sections 23, 23-A, Clause (a) of Section 25, Sections 26 to 26-G, 52 to 55, Sub-sections (1) and (2) of Section 56, Sections 65, 67, Sub-section (1) of Section 68, Sections 73, 86-A, Sub-sections (1), (2) and (3) of Section 87, so much of Section 159 as does not relate to protected interests, Sections 161 to 163, 166, Sub-sections (1), (2) and (3) of Section 167, Section 168, Section 169 to 171 and Section 173 to 177 of the Bengal Tenancy Act 1885."
Mr. Lala contended that the amended Rule 4, which expressly conferred on intermediaries the right of pre-emption, as in Section 26-F, did not confer any new right. The amendment merely made express what was always implied in Rule 4. He, therefore, contended that under Section 6(2) of the Act read with Rule 4 of the Rules, the petitioner remained entitled to pre-empt and that the enforcement of the provisions of West Bengal Estates Acquisition Act over occupancy raiyati holdings did not take away such right.
12. Mr. Apurbadhan Mukherjee, learned Advocate for the opposite party, tried to repel the arguments of Mr. Lala with the contention that the expression "same terms and conditions as an occupancy raiyat" was not wide enough to include the right of pre-emption of occupancy raiyats against stranger purchasers because such a right was not a term or condition of the tenancy but only an incident of occupancy right. According to his contention "term" of a tenancy meant the period for which the tenancy was created and "condition" of a tenancy signified, firstly, some quality annexed to an estate by virtue of which the estate may be defeated, enlarged or re-created, e. g., a condition as to re-entry, or a condition containing an option for renewal of the lease in the tenant or a condition as to holding over and, secondly, condition governing the relationship of landlord and tenant in matters of user, succession, enhancement or reduction of rent, eviction and the like. He, however, argued that an incident of occupancy right which entitled a co-sharer occupancy raiyat to preempt a sale, if not made to another co-sharer, can never be treated as a term and condition of occupancy right and in so far as the amended Rule 4 of the West Bengal Estates Acquisition Rules attempted to incorporate such a right within its ambit, it went beyond the provisions of Sub-section (2) of Section 6 read with Sub-section (2) of Section 59 of the Act and deserved to be ignored. He lastly, contended that the four reported decisions, on which Mr. Lala relied, did not consider this aspect of his argument and for that reason were distinguishable.
13. We take up for consideration the last branch of the argument of Mr. Mukherjee first of all.
14. In the case of Ganesh Chandra', 62 Cal WN 360 (supra), Sen, J., upheld the right of preemption of occupancy raiyats on the following line of reasoningr:-
"** under the terms of the notification the right of every raiyat in his land has vested in the State Government, but there is no tiling in the notification to show that his right to apply as a co-sharer for pre-emption in land which was not in his possession has also, vested in the State Government. The notification no doubt says that the land of the raiyat shall vest in the State Government free from all encumbrances, but the right to apply for and enforce pre-emption in respect of a plot of land sold is not an encumbrance. * * * * *
The Bengal Tenancy Act has not been repealed neither has the Land Reforms Act come into force. At the present time, in spite of the vesting in the State Government, therefore, the provisions of the Bengal Tenancy Act must be deemed to continue to govern the rights and incidents of the tenancy for agricultural purposes, and therefore Section 26-F of the Bengal Tenancy Act has not become obsolete and the rights thereunder can be exercised until in any case the Bengal Tenancy Act has been repealed and the Land Reforms Act has been brought into force in its entirely."
In the case of Panchu Sundari, 65 Gal WN 354 (supra), the question before P. N. Mookerjee, J., was the effect of vesting under the Act on the status of persons who were under-raiyats with occupancy right. His Lordship held that this type of under-raiyats became elevated to the status of raiyats and there was nothing contained in the amended Section 116 of the Bengal Tenancy Act (as amended by West Bengal Act XIX of 1958) which would have the effect of depriving such holdings or the holders thereof of the benefits of occupancy right under Chapter V of the Bengal Tenancy Act. In this context his Lordship observed that such persons remained entitled to preempt transfers of undivided share in such holdings, to outsiders.
15. In the case of Dhananjoy Senapati, 67 Cal. WN 848 (supra), the question for decision before Chatterjee, J., was whether persons who had been former co-sharers and also retained their agricultural land under Section 6(1) of the Act and thus became-co-sharers occupancy raiyats under the State, under the provisions of Section 6(2) of the Act read with Rule 4 of the Rules thereunder framed, would be entitled to pre-emption under Section 26-F of the Bengal Tenancy Act. In that context his Lordship observed :-
" * * if the former co-sharers retained their interest in the land and became co-sharers by virtue of the aforesaid Act and the rules thereunder, the right of pre-emption would accrue because of Rule 4 of the Estate Acquisition Rules which attracts Section 26-F of the Bengal Tenancy Act. In that view of the matter I would be inclined to hold that the opposite parties 1-3 not being co-sharers of the new tenancy by purchase but having become co-sharers by operation of law, they would not be deemed to be co-sharers by purchase within the meaning of Section 26-F of the Bengal Tenancy Act, but they would simply be considered to be co-sharers, otherwise than by purchase and in that case there would be no pre-emption."
16. None of the above three cases dealt with the scope and effect of the expression "same terms-and conditions."
17. In the case of Nitai Chandra Das, 67 Gal WN 633 (Supra), R. N. Dutt, J., for the first time, considered the scope and effect of the expression "same terms and conditions" in the following, language:-
"Rule 4 states that the lands shall be held by the tenant on the specified terms and conditions from the date of vesting. *** Mr. Roy Chou-dhury argues that these words do not mean all the incidents attaching to an occupancy raiyat but some of the incidents viz., transferability, heritability and so on. The words used were "same terms and conditions". If the intention was to limit the terms and conditions to some of the incidents of an occupancy raiyat, the rules would have made that clear. The fact that the rule was framed in general terms saying that the lands should be held on the same terms and conditions as an occupancy raiyat, indicates that all the rights attaching to an occupancy holding including Section 48-F Bengal Tenancy Act must continue to be attached to the new tenancy. The right of preemption was given to a co-sharer occupancy raiyat with a view to prevent outsiders from coming into the holding if the other co-sharers wanted to retain the same for themselves. This necessity has not ceased to exist. Even under the present conditions there is the same necessity for preventing outsiders from coming into a particular tenancy when the other co-sharers want to retain it. Thus in any view of the matter i. e., either under the old Rule 4 or under the amended Rule 4, Section 26-F Bengal Tenancy Act is attracted. I cannot therefore, agree with Mr. Roy Choudhury's argu-ment that Section 26-F of the Bengal Tenancy Act 's no longer applicable to the case of a tenancy held directly under the State after the vesting under Chapter VI of the Estates Acquisition Act 1953."
The interpretation of the expression "same terms and conditions" which Mr. Mukherjee contended for in this Rule, was, however, not considered by R. N. Dutt, J. We have, therefore, to consider the principal argument of Mr. Mukherjee unaided by any of the case laws cited before us.
18. In our opinion, the construction which Mr. Mukherjee seeks to put on the expression same terms and conditions" is a some what technical construction. The word "term", when used in the habendum clause of a lease, no doubt means the period of the lease or the term granted to the lessee. The word "condition" used in a lease means a bridle or a restraint on the estate and may be contrasted with the word 'covenant', which imports an agreement. Thus a deed of lease which stipulates that the lessee would not assign the lease to anybody except his wife and children indicates that the lease may he determined for breach thereof and is a condition of the lease. But if a lessee undertakes not to underlet the lease-hold premises, without the consent in writing of the landlord, the words of restraint indicate a covenant and the breach of the covenant entitles the landlord to sue For recovering damages or obtaining injunction.
19. Technical rules of construction of documents are not, however, always the safest guide for construction of statutes. The expression "terms and conditions", apart from its restricted meaning indicated above, may also have a wider import and may, in a particular context, mean incidence of a tenancy. Four reasons induce us to hold that it was in this wider meaning that the expression "terms and conditions" was used in Rule 4, as it stood unamended, namely.
(i) that pre-emption was a well-known characteristic of occupancy raiyats under the Bengal Tenancy Act. There is no indication in West Bengal Estates Acquisition Act and in rules thereunder framed that a new type of occupancy raiyats, not possessing the right of pre-emption, was intended to be created under the Act.
(ii) that there is a scheme of land reform envisaged in the West Bengal Land Reforms Act 1956, which is an Act passed to reform the law relating to land tenure consequent upon the vesting of all estates and of certain rights therein in the State under the West Bengal Estates Acquisition Act. The Act has not been brought into operation, in its entirety as yet. When the Act in its entirety will be brought into operation, it will, inter alia, repeal the Bengal Tenancy Act and will create a form of pre-emption similar to that as in Section 2G-F of the Bengal Tenancy Act (vide Section 59 and Section 8 of the West Bengal Land Reforms Act). In this perspective, it may not be reasonable to think, that during the period that West Bengal Land Reforms Act remained dormant, it was intended to create a type of occupancy raiyats not having the right of pre-emption;
(iii) that the intention was always present otherwise appears from the amendments made in Rule 4, on September 7, 1962, which expressly conferred the right of pre-emption on occupancy raiyats, coming into being under West Bengal Estates Acquisition Act;
(iv) that it appears from the proviso to Rule 4 (1) (a) that the words 'terms and conditions' were also meant to include limitations. In conveyances, it is well-known conditions arc distinguished from limitations, the latter being "the definition or circumscription of the interest which a grantee is in-tended to take" (vide the observations In re, Machu (1882) 21 Ch D 838 at pages 842-43 -- per Chitty, J.) Since Rule 4 (1) (a) used the word 'condition' and not 'limitation' and since the proviso thereto used the word 'limitation', it must be presumed that the 'condition', as used in the main part of the Rule, was meant to include limitations as well, because the effect of an exception or qualifying proviso is to except out of the preceding portion of the enactment, or to qualify some thereby enacted therein, which but for the proviso would be within it."
For the reasons aforesaid we feel that the word "condition" in Rule 4 was used in its general sense and included all the definitions of an occupancy raiyati holding, be the same as between the landlord and the occupancy tenant or between the occupancy tenant and his co-sharers. Thus the expression "terms and conditions" would include or was intended to include the right of pre-emption' of an occupancy raiyat.
20. In the view that we take, we hold that the learned District Judge acted illegally in the exercise of his jurisdiction in setting aside the order of the trial Court for the reasons he did. We, therefore, make the Rule absolute, set aside the order of the District Judge and restore the order made by the learned Munsif.
21. There will be no order as to costs.
22. Let the records be sent down as early as possible.
Durga Das Basu, J.
23. Agreeing with the judgment of my Lord, I would like to add a few words on the point of ultra vires which was collaterally raised by Mr. Mukherjee, on behalf of the Opposite Party, apart from his contention that the expression 'terms and conditions' in Rule 4 of the West Bengal Estates Acquisition Rules, 1954, could not, on a proper interpretation, include the right of pre-emption of a co-sharer in an occupancy holding when his co-sharer transfers it to a stranger. His argument on this point may be formulated as follows:-
24. The West Bengal Estates Acquisition Rules (hereinafter referred to as the 'Rules') have been framed by the State Government in exercise of the rule-making power conferred by Section 59 of the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the 'Act'), which is in these words -
"(1) The State Government may, after previous publication, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters which, under any provision of this Act, are required to be prescribed or to be provided for by rules."
25. Rule 4 of the Rules, with which we are concerned in this case, has been apparently made in pursuance of Sub-section (2) of Section 59, read with Sub-section (2) of Section G of the Act, since the latter provision specifies a matter which may be 'prescribed' by the rules, namely, the 'terms and conditions' subject to which an intermediary will hold the land, which be is entitled to retain by virtue of Sub-section (1) of Section 6, directly under the State. Sub-section (2) of Section C says-
"(2) 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 Slate 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 under Chapter V except that no rent shall be payable for land referred to in Clause (h) or (i)."
26. The object of the Act, as its Preamble shows, is -
"to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under-raiyafs and of the rights of certain other persons in lands comprised in estates."
27. The argument of Mr. Mukherjee is that the Act is concerned with the acquisition of estates by the State and with the rights or liabilities as between the State and the persons whose interests are so acquired by the State but shall hold as tenants directly under the State such parcels as they are allowed by the Act to retain after such acquisition. In other words, the Act is concerned with the relation as between the State (as landlord) and such intermediaries (as tenant), and not with any relation as between the intermediaries themselves or the rights of any other person which do not affect the relationship between the State and the intermediaries qua landlord and tenant. If this contention be correct, the amendment of Rule 4 on 7-9-62, which has specifically inserted Section 26-F of the Bengal Tenancy Act, as a 'term and condition' of the tenancy held by the intermediary under the State in respect of the retained land, would be clearly ultra vires, because it gives to a co-sharer tenant a right against a stranger and not against his landlord, i. e., the State. On the same principle, the pre-amendment Rule 4, with which we are concerned in this case, cannot he so interpreted as to include the incident of pre-emption conferred by Section 26-F, because the Court cannot interpret a Rule in such manner that it will be ultra vires.
28. Let us first see whether the Legislature itself could have included the right of pre-emption of a co-sharer tenant in the land acquired, while professing to exercise its legislative power over 'acquisition of property'. The answer should be in the affirmative, for, since the Federal Court decision in United Provinces v. Mr. Atiqa Begum down to the recent Supreme Court decision in State of West Bengal v. Union of India, , it is settled that the legislative power conferred by an Entry in the Legislative Lists of the 7th Schedule of our Constitution should be "held to extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended in it."
29. So, interpreted, it can hardly be contender that the provision for all the rights of the direct tenant in a part of the land acquired which the intermediary is allowed to hold under the State as a tenant, including a right in relation to a third party is not an 'ancillary or subsidiary matter' which can reasonably be comprehended in the legislative subject of acquisition. It must, therefore, be concluded that the provision for such a matter is within the scope of the 'purposes of the Act', which professes to legislate on the acquisition of estates, and the expression 'terms and conditions' in Section 6(2) of the Act should be so interpreted as to include a provision for such rights.
30. Once we proceed so far, it follows that the Rule-making authority would also have the power to make such a provision in exercise of the generality of power conferred by Sub-section (1) of Section 59 -- if not Sub-section (2) thereof. It is now well settled that when a statute confers a general power to make rules as that conferred by Sub-section (1) of Section 59 as well as a particular power to make rules relating to specified matters, the particular power cannot be held to curtail the width of the general power, (vide Emperor v. Sibnath, AIR 1945 PC 150). In fact, Sub-section (2) of Section 59 expressly safeguards the general power' conferred by Sub-section (1). Hence, even though Sub-section (2) of Section 6 be so construed as to be restricted to the relation between the landlord and tenant, Rule 4 may still be upheld as valid, being covered by Sub-section (1) of Section 59, so as to include the right of pre-emption within the expression 'terms and conditions', as interpreted in the judgment delivered by my Lord, because it is a matter covered by the 'purposes of the Act'.
31. The scope or purposes of the Estates Acquisition Act cannot be circumscribed with reference to the Preamble though, in case of doubt, the Preamble may be referred to in order to ascertain the mind of the Legislature. This- view is confirmed by the Bengal Tenancy Act itself in relation to Section 26-F as it now stands after the amendment of 1938. The Preamble of the Bengal Tenancy Act says that it is an Act to amend and consolidate the law "relating to landlord and tenant". If so, it may prima facie be contended that its scope is confined to govern the relationship between landlord and tenant. When Section 26-F was first introduced in 1928, it gave the right of pre-emption to the landlord, and was thus consistent with this primary interpretation of the scope of the Act. But in 1938, the section was amended with a view to giving the right of pre-emption to a co-sharer tenant. The landlord was not apparently concerned with this and this amendment was thus prima facie outside the purview of the Preamble of the Act. But, as stated by me earlier, it could come within the scope of the Act by applying the doctrine of liberal interpretation and ancillary powers.
32. Besides, it cannot be said that the landlord was altogether unconcerned in the matter. The original section of 1923 gave the right of pre emption to the landlord in order to prevent an 'undesirable person' from getting into the holding. The amendment of 1938 gave the right to a co- sharer tenant to prevent an undesirable person or stranger to come upon his holding. The landlord still has an indirect interest in the matter, in seeing that an original tenant retains a parcel or share which is alienated to a stranger by a co-sharer tenant. The landlord is also interested in seeing that the holding is not fragmented. So viewed, the amendment of Section 26-F in 1938 cannot be contended to have been outside the scope of the Bengal Tenancy Act which was ostensibly concern ed with the relationship between landlord and tenant.
33. When the Estates Acquisition Act was enacted in 1953, the amended Section 26-F was in the Bengal Tenancy Act for some fifteen years as a term and condition' upon which an occupancy raiyat was to hold his holding under his landlord. It is with this view in the background that Section 6(2) of the Estates Acquisition Act was enacted and the Rule-making authority exercised its power to make rules under the Act. By the words 'the same terms and conditions' in the pre-amendment Rule 4, thus, the State Government intended to include all the incidents of an occupancy raiyat under the Bengal Tenancy Act, including Section 26-F, as it then stood. The interpretation of the expression 'terms and conditions' as given in my Lord's judgment, with which I concur, is thus fortified by the legislative history as just analysed by me. I have, accordingly, no doubt that Rule 4, after the amendment, is not ultra vires nor would it be ultra vires prior to that amendment if it is so interpreted as to have included the right conferred by Section 26-F.