The assessment of rent for non-agricultural land must comply with the mandatory provisions of the proviso to Section 11(2) of the West Bengal Non-Agricultural Land Act, 1949, which limits the enhancement of rent to a maximum of 12 1/2% of the rent previously paid by the tenant.

( 1 ) THE plaintiff's case is that the disputed property was khas mahal land appertaining to a jama of Rs. 10-1-2 ps. Nibaran and Brojomoyee used to occupy 2 cents of land of sub-khatian No. 96 and 59 cents of plot No. 156 appertaining to Khatian No. 95. The plaintiff is Nibaran's only heir. Subsequently that jama was divided among the co-sharers and thereby the plaintiff used to pay Rs. 4-8-5 ps. as proportionate rent in his share. In the R. S. Khatian the plaintiff's share was recorded in Khatian No. 781 and Brojomoyee's share in Khatian No. 780. Further in those khatians the rental was recorded as Rs. 40-5-0 and Rs. 25-12-0 respectively. Those properties cannot be arbitrarily assessed to such high rent. Such assessment is entirely illegal and unfair and the rental would be Rs. 2-12-2 and Re. 1-12-3 ps. respectively. After service of notice under Section 80 of the Civil P. C. the plaintiff has asked for a declaration that such assessment of rent is illegal and for an injunction.

( 2 ) THE State, defendant No. 1 alone contested the suit denying the plaintiff's allegations. It has been stated that the suit is not maintainable. The assessment made is a valid one.

( 3 ) THE learned Munsif stated that the plaintiff could not prove his case. The suit was, therefore, dismissed. The plaintiff preferred an appeal. The appellate court stated that the plaintiff was an intermediary within the meaning of Section 42 of the West Bengal Act 1 of 1954 and the property consisted of both agricultural and non-agricultural land. The appeal was, therefore, dismissed. Being aggrieved by that decision, the present appeal has been filed.

( 4 ) IT has been contended on behalf of the appellant that in the R. S. Khatian Exts. 5 (a) and 5 (b) in respect of the bastu appertaining to Khatian No. 156 the plaintiff is a non-agricultural tenant (vernacular ). The original plot No. 156 of the C. S. Khatian has been recorded in 2 khatians during the R. S. operations. The rental has been enhanced from Rs. 10-00 odd to Rs. 65. 00 odd. In any view of the matter, in view of the provisions of Section 42 of the West Bengal Estates Acquisition Act or of Section 11 of the West Bengal Non-Agricultural Act, 1949, such illegal enhancement is not permissible. The cases of Umrao Bibi v. Md. Rajabi, (1900) ILR 27 Cal 205 and of Shyam Rangini in ILR (1949) 1 Cal 165 at p. 170 have been cited to show that the mere fact that a lessee is empowered to collect rent would not make him a tenure holder, The user of the land determines the character of the tenancy and so it can never be tenure unless these are agricultural lands. A non-agricultural property does not vest in the State. In the plaint it was loosely stated that it was recorded as tenure in the C. S. Khatian. The court should not strictly construe the loose statements made in mofussil pleadings. Hence the appeal should be allowed.

( 5 ) THE learned Advocate appearing on behalf of the State respondent has contended that in view of the principles laid down by Maxwell in his Interpretation of Statutes, when there is special law in this respect, the general law of the land will not apply. Moreover, Section 3 of the Act I of 1954 will clinch the issue because according to that section the provisions of the Act will override all other laws on the subject. At best it can be stated that there is a conflict between the provisions of Section 42 of the West Bengal Estates Acquisition Act and of Section 11 of the West Bengal Non-Agricultural Act, 1949. In case of such conflict the provisions of the later Act will apply. The Act of 1954 is the later Act. and so it will apply. The case in AIR 1978 NOC 42 (Cal) has been cited to substantiate this contention. Moreover, the Civil Court has no jurisdiction to try the suit and the provisions of Section 57-B of the Act are clear on the point. It has also been stated that the plaintiff did not exhaust all these remedies provided for in the Act. Section 42-A (2) of the A