Monohar Kaibarta And Ors. vs Jagadish Chandra Banerjee And Ors. on 12 December, 1941
6. Mr. Chakravarti may be right in his contention that the words "subject to the special provisions specified in Clause (1) of this section," upon which Mr. Das lays so much stress do not by themselves attract the operation of the substantive part of Clause (1). A similar expression occurs in Clause (4) and it has been held in such oases that the word "provisions" refers not to the substantive part but to the provisos attached to Clause (1) : Prokash Chandra Sil v. Abdul Jabbar and Naku Sheik v. Harish Chandra . But as I have already pointed out there is nothing in Clause (3). para. 2 which would go to show that the right to such an island char vests on the proprietor alone. Mr. Chakravarti has in this connection drawn our attention to the provisions of Section 2 of Bengal Act 31 of 1858 (the Bengal Alluvion Land Settlement Act). Section 1 of the Act provides that in case of land added by alluvial accession to an estate paying revenue to Government, the revenue assessed upon the alluvial lands may be added to the jama of the original estate by an agreement between the proprietor and the Revenue authorities; and if there is no such agreement or if the Revenue authorities decide otherwise it may be settled as a separate estate with a separate jama. Section 2 then lays down that nothing in the preceding section shall affect the rights of an under tenant in any alluvial land under the provisions of Clause (1), Section 4, Regulation 11 of 1825. Mr. Chakravarti argues that this section protects the rights of undertenants under Clause (1) of Section 4 of Regulation 11 of 1825 and if under-tenants had any rights under Clause (3) they would certainly have been mentioned in the section. This argument does not impress me much. A mere omission in a later Act cannot take away a right created by an earlier statute. I think further that it was not necessary to refer to Clause (3), Section 4 of Regulation 11 of 1825 in Section 2, Bengal Alluvion Land Settlement Act. Section 1 of this Act contemplates only alluvial accessions which are dealt with under Clause (1) of Section 4 of Regulation 11 of 1825 and it does not speak of any island char formed on the bed of a river. It is true that island chars with fordable channels are assessed to revenue in the same way as alluvial accretions but that is because they are regarded as accessions by reason of the express words used in Clause (3), Para. 2 of Section 4. My conclusion, therefore, is that the plaintiff who is an occupancy raiyat is entitled to the disputed lands if they are found to be island chars most contiguous to his holding and if the intervening channel between the new formation and the main land is fordable.