Judgment

SARKARIA, J.:- This appeal by special leave is directed against a jugment, dated March 14, 1969, of the High court at Calcutta.

2. The appellant had the interest of a Darpatindar in the land in suit, measuring 9 acres (27 bighas). The plantiff by a lease-deed (Ex. A) dated July 10, 1941, granted to the defendant respondents a lease of this land for the purpose of raising and taking sand out of the land for a period of 9 years ending on July 13, 1949. In this lease deed, the property was described to be Patni Mahal. Under the terms of this lease, the lessee had an option of renewal for another 9 years. Subsequently on April 27, 1950, appellant made a similar grant (Ex. I) for another 9 years expiring on April 13, 1959, but this grant was called a "licence".

3. The respondents did not pay the licence fee for the period from 1362 (14-4-1955) to 1365 B. S. The plaintiffs thereupon issued notice, dated March 31, 1966, terminating the licence and then filed Suit No. 37 of 1960 for ejectment in the Court of the Munsif, Second Court, Chandernagore.

4. The suit was resisted by the defendant-respondent, inter alia, on the ground that the land had vested in the State under the West Bengal Estate Acquisition Act, 1954 (herein after referred to as the Acquisition Act); that they were tenants, and not licensees, under the plantiff and after the date of vesting with effect from April 14 1955, became direct tenants under the state in respect of suit land and were paying rent to the state.

5. The trial Court dismissed the suit holding:

(i) that the defendants were not licensees, but were tenants; and (ii) that the plantiff was not in khas possession on the date of the vesting (April 14, 1955), so he could not retain the land under Section 6 (1) (i) of the Act. In the result, the suit was dismissed.

6. The first appellate Court reversed the decision of the trial Court and decreed the suit with the finding that the grant being a licence, the plantiff intermediary was entitled to retain the holding under Section 6 (1) (i) of the Act.

7. Allowing the second Appeal by the defendants, the High Court held:

(a) that if the lease (Ex. A), being a lease for 9 years, was void under Section 107 of the Transfer of Property Act, it would still operate as a lease from month to month;

(b) it was not a licence; and

(c) Section 28 of the Act applied and, as the plantiff was not directly working the mine in the land, he could not retain it.

8. Aggrieved, the plantiff has come in appeal by special leave to this Court.

9. The principal question that falls to be determined is: Whether Sec. 6 or Section 28 of the Acquisition Act governs the case? The High Court has held that it is Section 28, and not Section 6, which is applicable while the appellant contends that Section 6 is applicable by virtue of which he is entitled to retain the holding.

10. Section 6, so far as relevant for our purpose, is in these terms:

"6. Right of intermediary to retain certain kinds.-

(1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-section (2) but subject to the other provisions of that sub- section, be entitled to retain with effect from the date of vesting..........

(i) Where the intermediary is ....... an institution establised exclusively for a religious or a charitable purpose, or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both - land held in khas by such ......... institution or person, not being a tenant, by leave or licence of such ... institution or person."

11. The contention of the learned counsel for the appellant is that since the suit land was held by the appellant-intermediary in khas for a religious purpose through a licensee - the defendant being a licensee, and not a tenant - he would be entitled to retain and hold this land from the date of vesting by virtue of clause (i) of sub- s