NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. VERSUS MANI SQUARE LTD. & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2402 OF 2015

NEMAI CHANDRA KUMAR (D) THR.

LRS. & ORS. ..……. APPELLANT(S)

VERSUS

MANI SQUARE LTD. & ORS. ……. RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

Table of Contents

Preliminary ........................................................................................................2

Statutory Provisions ..........................................................................................3

Background and Factual Matrix.......................................................................13

Findings and conclusion of the Controller .......................................................17

Findings of the Tribunal...................................................................................23

Findings of the Calcutta High Court ................................................................26

Previous decision of this appeal and review thereof .......................................34

Rival Contentions ............................................................................................35

The Appellants .............................................................................................36

The State......................................................................................................39

The respondent No. 1...................................................................................43

Analysis ...........................................................................................................48

The Structure in question .............................................................................48

The statutory scheme and the import of three enactment with their

amendments.................................................................................................50

The relevant decisions of Calcutta High Court.............................................60

Other miscellaneous but relevant factors.....................................................63

Conclusion.......................................................................................................65

Preliminary

1. This appeal is directed against the judgment and order dated

10.03.2014, as passed by the High Court of Calcutta in W.P.L.R.T. No. 325

of 2013 whereby, the High Court has allowed the writ petition filed by the

respondent Nos. 1 and 2 of this appeal and has disapproved the orders

dated 27.01.2010 and 01.08.2012 as passed by the Controller, Calcutta

Thika Tenancy1 as also the order dated 18.12.2013 as passed by the West

Bengal Land Reforms and Tenancy Tribunal at Calcutta2

1.1. By the orders aforesaid, the Controller and the Tribunal had

concluded that the present appellants were thika tenants in respect of the

property involved in this litigation and the landlord’s interest therein stood

vested in the State under the statutes governing thika tenancies. However,

in the impugned judgment and order dated 10.03.2014, the High Court

concluded to the opposite and held that the Controller and the Tribunal

were not justified in accepting the present appellants as thika tenants in

respect of the property in question.

2. Put in a nutshell, the issues involved in this appeal revolve around

thika tenancy enactments, as applicable to the property and the tenancy in

question. The nature of tenancy created in favour of the appellants and/or

their predecessors and impact/implication of the structure put up by them

on the property in question form the core of the typical and peculiar

questions involved in this matter.

1 Hereinafter also referred to as ‘the Controller’.

2 Hereinafter also referred to as ‘the Tribunal’.

3. Before proceeding further, we may point out that the consideration

herein relates to thika tenancy and undoubtedly, the word ‘thika’ in Bengali

means ‘temporary or partial’3

Statutory Provisions

4. Ordinarily, we would have commenced the discussion with relevant

factual aspects but, in the present case, even for proper appreciation of

factual matrix, an insight into the relevant provisions of law with reference

to their enactment as also chronology of their enforcement appears

necessary. Hence, before adverting to the facts of the case, we deem it

appropriate to extract the relevant statutory provisions relating to thika

tenancy, in their feasible chronology and also with reference to their objects

and reasons. We shall deal with the construction of phraseology of these

provisions and implications thereof a little later. For the present purpose,

only the relevant provisions are being reproduced.

5. In order to make better provisions in respect of the law of landlord

and tenant as also thika tenancy in Calcutta, the Calcutta Thika Tenancy

Act, 1949 (West Bengal Act II of 1949)4 came to be enacted in place of its

predecessor Ordinance and with the following Statement of Objects and

Reasons: -

“STATEMENT OF OBJECTS AND REASONS

There has been a persistent demand for legislative measures for

the protection of the thika tenants of Calcutta and the Howrah

Municipal area against arbitrary eviction and enhancement of rent.

3 Vide Sri Sri Satyanarayan & Ors. v. S.C. Chunder: (2001) 3 CHN 641- paragraph 19,

reproducing from the decision in the case of Hindustan Petroleum Corporation Ltd. v. Sashi

Bhusan Mondal, APD No. 280 of 1981.

4 Hereinafter also referred to as ‘the Act of 1949’.

Accordingly, an Ordinance was promulgated staying all decree or

orders for eviction of the thika tenants on any ground other than

non-payment of rent.

The present Bill has been framed, with a view to regulate the

rights and liabilities of the thika tenants and their landlords.”

5.1. The said enactment made various provisions as regards the extent

of thika tenancies, the grounds on which a thika tenant could have been

ejected; the procedure relating to the proceedings for ejectment; the

regulation of rent and its payment; appeals and other special matters etc.

All other provisions of this enactment are not required to be dilated but, it

is the definition of “thika tenant” occurring in clause (5) of Section 2 of the

Act of 1949, as substituted in the year 1953, which is of relevance and the

same may be reproduced as under: -

“2. Definitions. -

*** *** ***

(5) "thika tenant" means any person who holds, whether under a

written lease or otherwise, land under another person, and is or but

for a special contract would be liable to pay rent, at a monthly or any

other periodical rate, for that land to that another person and has

erected or acquired by purchase or gift any structure on such land

for a residential, manufacturing or business purpose and includes

the successors in interest of such person, but does not include a

person -

(a) who holds such land under that another person in perpetuity;

(b) who holds such land under that another person under a

registered lease, in which the duration of the lease is expressly

stated to be for a period of not less than twelve years; or

occupies such land as a khattal.”

5.1.1. The nature of structure, if put up by the tenant over the demised

premises, has a bearing over the questions relating to thika tenancy and

has its direct implication in the present case, as shall be noticed hereafter

later.

5.2. By way of Amendment Act No. XXIX of 1969, clause (4a) was

inserted to Section 2 and Section 10A was also inserted to the Act of 1949.

These two provisions could also be reproduced as under: -

“2. Definitions.-

*** *** ***

(4a) "pucca structure" means any structure constructed mainly of

brick, stone or concrete or any combination of these materials;”

*** *** ***

“10A. Right of thika tenant to erect pucca structures.-(1)

Notwithstanding anything contained in any other law for the time

being in force or in any contract, but subject to the provisions of subsections (2) and (3), a thika tenant using the land comprised in his

holding for a residential purpose may erect a pucca structure on

such land for such purpose with the previous permission of the

Controller.

(2) On an application made by a thika tenant in this behalf, the

Controller may grant him permission to erect a pucca structure, if

the Controller is satisfied that the thika tenant -

(a) is using the structure existing on the land comprised in his

holding for a residential purpose,

(b) intends to use the pucca structure to be erected on such

land for a similar purpose, and

structure from the municipal authorities of the area in which

such land is situated.

(3) No thika tenant shall be entitled to eject a Bharatia5

from the

structure of part thereof in the possession of the Bharatia for the

purpose of erecting a pucca structure:

Provided that the thika tenant may by providing temporary

alternative accommodation to a Bharatia obtain from him vacant

possession of the structure in his possession on condition that

immediately on the completion of the construction of the pucca

structure the thika tenant shall offer the Bharatia accommodation in

the pucca structure at a rent which shall in no case exceed by more

than twenty-five per centum the rent which the Bharatia was

previously paying.”

5.3. It could at once be indicated that the expression “any structure” as

occurring in clause (5) of Section 2 of the Act of 1949 as also in the

5 The definition of the term “Bharatia”, as occurring in clause (1) of Section 2 of the Act of 1949, is

not of direct application to the present case but, for a proper comprehension of the related provisions,

the same is also reproduced as under: -

“(1) “Bharatia” means any person by whom, or on whose account, rent is payable

for any structure or part of a structure erected by a thika tenant in his holding;”

successor enactments has been a matter of several debates in the High

Court and a substantial number of decisions were rendered in that regard,

essentially to the effect that the expression “any structure”, in the context

of the enactment and its purpose, only referred to a temporary structure,

more specifically called “kutcha structure” as contradistinguished from a

permanent structure, which has been referred to as “pucca structure”.

5.4. Clause (6) of Section 2 of the Act of 1949 also has a bearing in the

present case and could be noticed as under: -

“2. Definitions.-

*** *** ***

(6) all words and expressions used but not defined in this Act and

used in the Transfer of Property Act, 1882 (IV of 1882) or the Bengal

Tenancy Act, 1885 (VIII of 1885), have the same meaning as in

those Acts.”

6. The aforesaid Act of 1949 was repealed as a whole by the new

enactment initially carrying the title of ‘the Calcutta Thika Tenancy

(Acquisition and Regulation) Act, 1981’. This enactment, promulgated on

02.11.1981, came into force with effect from 18.01.1982. Later on, several

amendments were made to this enactment, including the change of its title

by way of the Calcutta Thika Tenancy (Acquisition and Regulation)

(Amendment) Act, 19936

. Significantly, the said Amendment Act of 1993

was given retrospective effect from 18.01.1982, i.e., the date of

commencement of the principal enactment. With change of name, this

enactment, being West Bengal Act No. XXXVII of 1981, came to be known

6 Hereinafter also referred to as ‘the Amendment Act of 1993’.

as ‘the Calcutta Thika and Other Tenancies and Lands (Acquisition and

Regulation) Act, 1981’

6.1. The Statement of Objects and Reasons of this enactment of the

year 1981 could also be usefully noticed as under: -

“STATEMENT OF OBJECTS AND REASONS

The bharatias under the Calcutta Thika Tenancy Act, 1949, are

vulnerable to the wishes of the thika tenants with regard to

enhancement of huts or other structures occupied by them and with

regard to ejectment therefrom. The provisions of that Act do not

provide for protection of bharatias against ejectment or

enhancement of rent at the whims of the thika tenants. Accordingly,

there has been persistent public demand for regulating the relation

between thika tenants and bharatias.

2. The thika tenants pay some rent to the Landlords who are the

owners of the land. Thus, the landlords continue to remain as

intermediaries in Calcutta and in the Municipality of Howrah. There

has also been a long-standing public demand that each system of

intermediaries should be abolished and the State Should establish

direct thika tenants so as to regulate the premises held by them.

3. The Calcutta Thika Tenancy (Acquisition and Regulation) Bill

1980 is intended to meet both these public demands which were

considered just fair and equitable. In order to give some protection

to the thika tenants and bharatias against ejectment, the Calcutta

Thika Tenancy Stay of Proceedings (Temporary Provisions) Act,

1978 was enacted. It came into force on the 19th day of July, 1978.

The life of that Act has been extended upto 18th day of July, 1981.

The object of that Act was to provide temporary protection against

ejectment pending enactment of a comprehensive legislation to

remove the public grievances as already stated. Pending

proceedings and appeals of ejectment of bharatias and thika

tenants will stand abated.

4. This bill is also intended to provide for the acquisition of the rights

of landlords in lands comprised in thika tenancies on payment of an

amount calculated at a rate not exceeding ten rupees per square

metre on the lines of the amount laid down in the Urban Land

(Ceiling and Regulation) Act, 1976 and vesting thereof in the State

free from all encumbrances. Thika tenants shall hold their lands

under the State on terms and conditions to be prescribed in the

rules, and the bharatias will enjoy the same protection against

ejectment and enhancement of monthly rent, as enjoyed by the

premise tenants under the West Bengal Premises, Tenancy Act,

1956. Since bharatias constitute a very poor section of the urban

7 Hereinafter this enactment is also referred to as ‘the Act of 1981’; and whenever contextually

required, is also referred to by its original name, i.e., Calcutta Thika Tenancy (Acquisition and

Regulation) Act, 1981.

population, it has been provided that, instead of Civil Courts,

disputes between bharatias and thika tenants will be decided by

Controller.

5. It is also proposed that the provisions of the West Bengal Land

Holding Revenue Act, 1979 shall apply to thika tenants in the matter

of payment of revenue, but with a separate schedule as shown in

clause 25 of the Bill.

6. The Bill seeks to achieve the above objects.”

6.2. The Statement of Objects and Reasons for the said Amendment

Act of 1993 had been as under: -

“STATEMENT OF OBJECTS AND REASONS.

Experience of the last few years has shown that there are some

practical difficulties in the operation of the Calcutta Thika Tenancy

(Acquisition and Regulation) Act, 1981.

2. It has therefore, been considered necessary and expedienta) to include slums and bustees within the purview of the Act;

b) to streamline the provisions regarding survey of the thika

tenanted land;

c) to make some other, changes as have been felt necessary to

remove doubts or otherwise to improve the working of the Act.

3. The Bills has been framed with the above objects in view.”

6.3. The Preamble of this Act of 1981 was also substituted by the

Amendment Act of 1993. For the present purpose, suffice would be to take

note of the existing Preamble part of this enactment as follows: -

“An Act to provide for the acquisition of interests of landlords in

respect of lands comprised in thika tenancies and certain other

tenancies and other lands in Calcutta and Howrah for development

and equitable utilization of such lands.

Whereas it is expedient to provide for the acquisition of interests

of landlords in respect of lands comprised in thika tenancies and

certain other tenancies and other lands in Calcutta and Howrah for

development and equitable utilization of such lands with a view to

subserving the common good;”

6.4. In the Act of 1981, as originally enacted, the terms “pucca structure”

and “thika tenant” were defined respectively in clauses (7) and (8) of

Section 3 in the following terms: -

“3. Definitions.-

*** *** ***

(7) "pucca structure" means any structure constructed mainly of

brick, stone or concrete or any combination of these materials, or

any other material of a durable nature;

(8) "thika tenant" means any person who occupies, whether under

a written lease or otherwise, land under another person, and is or

but for a special contract would be liable to pay rent, at a monthly

or at any other periodical rate, for that land to that another person

and has erected or acquired by purchase or gift any structure on

such land for residential, manufacturing or business purpose and

includes successors-in-interest of such person.”

6.5. In this enactment, the text of Section 5, as originally enacted, and

as later on substituted by the Amendment Act of 1993, had been materially

different and carry their own relevance for the questions at hand. We may,

therefore, usefully reproduce the text of Section 5 before and after the

Amendment of 1993 in juxtaposition, as under: -

Section 5 as originally enacted. Section 5 as substituted by the

Amendment Act of 1993.

"5. Lands comprised in thika

tenancies and other lands, etc.,

and right, title and interest of

landlords in such lands to vest in

the State.-With effect from the date

of commencement of this Act, lands

comprised in thika tenancies and

other lands held under any person in

perpetuity or under registered lease

for a period of not less than twelve

years or held in monthly and

periodical tenancies for being used

or occupied as khatals along with

easements, customary rights,

common facilities and such other

things in such thika tenancies and

khatals attached to or used in

connection with such thika

tenancies, and khatals and the right,

title and interest of landlords in such

lands shall vest in the State free

from all encumbrances:

Provided that the easements,

rights, common facilities or benefits

enjoyed by a thika tenant or an

“5. Lands comprised in thika

tenancies, khas lands, etc. to

vest in the State.-With effect from

the date of commencement of this

Act, the following lands along with

the interest of landlords therein

shall vest in the State, free from all

encumbrances, namely: -

(a) lands comprised in and

appurtenant to tenancies of

thika tenants including open

areas, roads, passages, tanks,

pools and drains;

(b) lands comprised in and

appurtenant to bustee on khas

lands of landlords and lands in

slum areas including open

areas, roads, passages, tanks,

pools and drains;

clauses (a) and (b) held under a

written lease or otherwise,

including open areas, roads,

passages, tanks, pools and

drains;

occupier of any land under any

person in perpetuity or any land

under any person under registered

lease for a period of not less than

twelve years or a khatal in khas

lands of the landlords shall not be

affected in any way by such vesting."

(d) lands held in monthly or

other periodical tenancies,

whether under a written lease or

otherwise, for being used or

occupied as khatal:

Provided that such vesting

shall not affect in any way the

easements, customary rights or

other facilities enjoyed by thika

tenants, Bharatias and

occupiers of land coming within

the purview of clauses (c) and

(d).”

6.6. The particular expression “tenant of other lands” as occurring in

Section 5 after its substitution by the Amendment Act of 1993 was also

defined in clause (7B) of Section 3 by way of the same amendment and it

reads as under8

“3. Definitions.-

*** *** ***

(7B) "tenant of other lands" means any person who occupies other

lands under another person, whether under a written lease or

otherwise, and is or but for a special contract would be liable to pay

rent at a monthly or periodical rate for occupation of such other

lands, and includes the successor-in-interest of such person;”

7. The aforesaid Act of 1981 was repealed by the West Bengal Thika

Tenancy (Acquisition and Regulation) Act, 20019

. This new enactment

came into force from 01.03.2003. Its Statement of Objects and Reasons

reads as under: -

“STATEMENT OF OBJECTS AND REASONS.

The Calcutta Thika and other Tenancies and Lands (Acquisition

and Regulation) Act. 1981 (West Ben. Act XXXVII of 1981)

(hereinafter referred to as the said Act) was amended in 1993 to

make up for certain deficiencies in the said Act. In course of

administering the said Act, it has come to the notice of the State

8 There had been several other insertions and substitutions by way of the said Amendment Act of

1993 which need not be noticed for being not relevant in respect to the questions at hand.

9 Hereinafter also referred to as ‘the Act of 2001’.

Government that certain provisions of the said Act are still defective,

leaving scope for addition to existing litigations. It is, therefore,

necessary to amend the said provisions.

2. The bill has been framed with the above object in view.”

7.1. In this enactment of the year 2001, the expression “thika tenant”

came to be defined in clause (14) of Section 2. The said clause (14) was

also amended by the West Bengal Thika Tenancy (Acquisition and

Regulation) (Amendment) Act, 201010 with effect from 01.11.2010. We may

place the text of this clause (14), as originally enacted and as amended by

the Amendment Act of 2010 in juxtaposition as under: -

Clause (14) of Section 2 as

originally enacted.

Clause (14) of Section 2 as

substituted by the Amendment

Act of 2010.

“(14) "thika tenant" means any

person who occupies, whether under

a written lease or otherwise, land

under another person, and is, or but

for a special contract, would be,

liable to pay rent at a monthly or any

other periodical rate for that land to

that another person, and has erected

or acquired by purchase or gift any

structure on such land for residential,

manufacturing or business purpose,

and includes the successors-ininterest of such persons but

excludes any resident of a structure

forfeited to the State under subsection (2) of section 6 of this Act

irrespective of the status, he may

have enjoyed earlier.”

“(14) "thika tenant" means any

person who occupies, whether

under a written lease or otherwise,

land under another person, and is,

or but for a special contract, would

be, liable to pay rent at a monthly

or any other periodical rate for that

land to that another person, and

has erected or acquired by

purchase or gift any structure

including pucca structure, if any,

on such land for residential,

manufacturing or business

purpose, and includes the

successors-in-interest of such

persons but excludes any resident

of a structure forfeited to the State

under sub-section (2) of section 6

of this Act irrespective of the

status, he may have enjoyed

earlier.”

7.2. The expression “pucca structure” came to be defined in clause (13)

of Section 2 of the Act of 2001. It is noticed that this definition of “pucca

10 Hereinafter also referred to as ‘the Amendment Act of 2010’.

structure” in the Act of 2001 was further amended by Act No. XI of 2019

but we need not refer to the said amendment for being not relevant for the

present purpose. The said clause, as originally enacted, reads as under: -

“2. Definitions.-

*** *** ***

(13) "pucca structure" means any structure constructed mainly of

brick, stone or concrete or any combination of these materials, or

any other material of a durable nature;”

7.3. Section 4 of this enactment provides for vesting of the land

comprised in thika tenancies and other particular class of lands in the State

with effect from 18.01.1982. Noticeably, this date ‘18.01.1982’ is the same

date from which the Act of 1981 came into force and even the Amendment

Act of 1993 was enforced. This Section 4, as originally enacted, reads as

under: -

“S. 4. Lands comprised in thika tenancies and other lands, etc.

to vest in the State. -With effect from the 18th day of January,

1982, the following lands along with the interest of landlords therein

shall be deemed to have vested in the State, free from all

encumbrances-

(a) lands comprised in, and appurtenant to, tenancies of thika

tenants including open areas, roads; and

(b) lands held in monthly or other periodical tenancies, whether

under a written lease or otherwise, for being used or occupied as

khatal:

Provided that any land comprised in, and appurtenant to,

tenancies of thika tenants created after the 18th day of January,

1982, shall also be deemed to be vested in the State, free from all

encumbrances with effect from the date of creation of tenancies of

thika tenants:

Provided further that such vesting shall not be deemed to have

affected in any way the easements, customary rights or other

facilities enjoyed by thika tenants, bharatias or occupiers of land

coming within the purview of this section:

Provided also that nothing contained in this section shall prevent

the State Government or the local authority from taking up any

development work on the land appurtenant to tenancies of thika

tenants for public purpose.”

7.3.1. Yet further, clause (a) of the above-quoted Section 4 was amended

by the Amendment Act of 2010 and after its amendment, coverage of the

land for the purpose of vesting in the State was comprehensively provided

with the broader expression “thika land”. This clause (a) of Section 4 of the

Act of 2001 before and after the amendment could also be placed in

juxtaposition as under: -

Clause (a) of Section 4, as

originally enacted.

Clause (a) of Section 4, as

substituted by the Amendment

Act of 2010.

“(a) lands comprised in, and

appurtenant to, tenancies of thika

tenants including open areas,

roads; and”

“(a) thika land;”

7.4. In order to specify the meaning of the expression “thika land”,

clause (15) also came to be inserted to Section 2 of the Act of 2001 by way

of the said Amendment Act of 2010 in the following terms: -

“2. Definitions.-

*** *** ***

(15) "thika land" means any land comprised in and appurtenant to,

tenancies of thika tenant irrespective of the fact whether there is any

claim of such tenancy or not and includes open areas and roads on

such land.”

8. The aforesaid are the main provisions in the statutes with reference

to the nature of tenancies and other eventualities, including those of the

nature of structure put up by the tenant. We shall refer to the other

provisions of law at the appropriate stage and to the extent requisite.

Background and Factual Matrix

9. As regards the factual matrix of the present case, a brief chronology

of events could be noticed as follows: -

9.1. One Laxmi Narayan Ghosh was owner of the land involved herein

admeasuring 2 Bighas, 10 Kottahs and 3 Chhitacks, more or less, being

Holding No. 196, Picnic Garden, Tiljala11

. The said Laxmi Narayan Ghosh

died intestate on or about 23.07.1950 leaving behind his wife Smt. Nilu

Bala Ghosh and his son Jitendra Nath Ghosh. Thereafter, Smt. Nilu Bala

Ghosh died intestate on 07.12.1970 and Jitendra Nath Ghosh became the

absolute owner of the subject property.

9.2. On 15.12.1973, by a registered deed of lease, Jitendra Nath Ghosh

leased out the subject property to Badri Narayan Kumar and Nemai

Chandra Kumar, being the partners of M/s. Kumar Industries, for a period

of 20 years commencing from 01.12.1973 and expiring on 30.11.1993 at

the rent and on the terms and conditions contained in the said registered

deed of lease.

9.3. By the said deed of lease, the lessees were also given the right to

raise construction on the subject property and to use and enjoy the same

during the tenure of the lease with a condition that on expiry of the lease

on 30.11.1993, the lessees will have to deliver vacant and peaceful

possession of the said property in the same position as it was at the time

of execution of lease to the lessor, by removing the construction thereon.

Admittedly, the lessees raised some structure over the subject property.

The nature of this structure, and its use, have also formed a part of

11 Later on, it came to be known as the premises at No.195, Picnic Garden Road, Kolkata-700 039.

This being the property involved in the present litigation, is herein referred to as the ‘subject property’

or ‘the property in question’.

contentions in this appeal. Hence, we shall elaborate on the same at the

appropriate juncture.

9.4. On 18.01.1982, the Act of 1981 came into force and immediately

thereafter, the said Jitendra Nath Ghosh (lessor) filed a writ petition in the

High Court under Article 226 of the Constitution of India challenging vires

thereof. The said writ petition, being C.R. No. 10449 (W) of 1983, was

entertained by the High Court and on 30.09.1983, an interim order was

passed therein staying the operation of the impugned Act of 1981 as well

as Rules framed thereunder insofar as the subject property was concerned.

Thereafter, from time to time, various orders were passed therein and

ultimately, the aforesaid writ petition, C.R. No. 10449 (W) of 1983, was

directed to be transferred to the Tribunal for passing appropriate orders.

9.5. In the meantime, the lease granted by the said original owner,

Jitendra Nath Ghosh, in favour of M/s. Kumar Industries, represented by

its partners Badri Narayan Kumar and Nemai Chandra Kumar, came to an

end by efflux of time on 30.11.1993.

9.6. After the Act of 2001 came into force, the said M/s. Kumar

Industries represented by its partners filed an application before the

learned Controller on or about 10.04.2003, being Return No. 67/234, for a

declaration that they were thika tenants of the subject property and claimed

that they had deposited rent with interest with the Controller for the period

from 18.01.1982 till 2007. The proceedings on this application filed by the

lessees have ultimately led to the present appeal.

9.7. Before adverting to the proceedings on the application filed by the

lessees, another relevant factual aspect is required to be noticed, which

relates to dealing with the property in question by the landlord. After

demise of the said Jitendra Nath Ghosh, his heirs, by a deed of conveyance

dated 10.09.2007, transferred the property in question to seven companies

including the respondent No. 1 Mani Square Ltd. and also informed the

Assessor, Tollygunge Tax Department, Kolkata Municipal Corporation

about such conveyance by their letter dated 13.09.2007. Pursuant to this,

the said six companies along with the respondent No. 1 applied before the

Kolkata Municipal Corporation to get their names mutated as owners of the

property in question in the Municipal records. It appears that the High Court

of Calcutta, by its order dated 19.09.2008 sanctioned the scheme of

amalgamation whereby, the said six companies were amalgamated with

the respondent No. 1 Mani Square Ltd. and consequently, all the assets

and properties of the said six companies vested in the respondent No. 1.

Thereafter, on 15.07.2010, the respondent No. 1 applied before the Kolkata

Municipal Corporation in the prescribed form, for mutation of the subject

property exclusively in its name in the Municipal records. According to the

respondent No. 1, only at that stage, it was informed that the Controller had

declared the lessees as thika tenants over the property in question. The

respondent No. 1 raised objections whereupon, the matter was reexamined by the Controller. This has been the reason that we have two

orders passed by the Controller in this matter, respectively dated

27.01.2010 and 01.08.2012.

Findings and conclusion of the Controller

10. For the questions involved in this matter, it shall be apposite to take

note of the proceedings relating to the said application moved by the

lessees and the findings returned by the Controller in necessary details.

10.1. After moving of the application aforesaid, spot enquiry was

conducted by an enquiry officer on the subject property; and notices were

sent to the landlord Jitendra Nath Ghosh and thereafter to Asit Ghosh.

However, no objection was filed.

10.2. The Controller, in his order dated 27.01.2010, held that the

applicants qualified as thika tenants under Section 2(14) of the Act of 2001

in respect of 2B, 7K of the land in the subject property. In holding so, the

Controller perused the rent receipts issued on behalf of the then landlords

to the returnees as well as the copies of the documents endorsing M/s.

Kumar Industries as lessee. The Controller also examined the report of the

enquiry officer, which recommended thika tenancy while mentioning the

existence of structures like office rooms, asbestos sheds, storage place

etc. along with open space.

10.3. Therefore, the learned Controller declared the applicants as thika

tenants. Further to this, the legal heirs of late Badri Narayan Kumar filed an

application before the Controller for substitution of their names as thika

tenants and the learned Controller substituted them as thika tenants in

place of late Badri Narayan Kumar.

10.4. As noticed hereinbefore, on 15.07.2010, the respondent No. 1,

unaware of the abovementioned developments whereby the learned

Controller had declared the appellants as thika tenants, applied before the

Kolkata Municipal Corporation for mutation of the subject property

exclusively in its name in the Municipal records. In response to the said

application for mutation, the Kolkata Municipal Corporation, by its

communication dated 28.07.2010, asked the respondent No. 1 to submit

documentary evidence to prove as to how the said seven companies

became owners of the property in question. It had been the case of the

respondent No. 1 that in order to find out the present position of the subject

property, enquiries were made and searches were conducted; and in that

process, it was learnt that the said ex parte order dated 27.01.2010 had

been passed by the learned Controller declaring the appellants as thika

tenants.

10.5. Having noticed the said order dated 27.01.2010, the respondent

No. 1 filed an application dated 26.08.2010 before the State Government

under Section 13 of the said Act of 2001 whereupon, the Joint Secretary to

the Government in its Department of Land and Land Reforms, requested

the learned Controller to dispose of the application of the respondent No.

1 after giving an opportunity of being heard to all the concerned.

11. Having heard the parties, the Controller proceeded to deal with the

matter in his impugned order dated 01.08.2012. Though preliminary

objections regarding unexplained delay in filing the return were taken but,

the Controller considered it proper to examine the matter on merits rather

than on technical grounds.

11.1. The Controller, inter alia, observed that when the lease deed was

signed, the Act of 1949 was in force and in terms of Section 2(5) thereof,

the following four foundational facts were required to be examined: -

a. Whether the claimant was holding the land under a written lease,

or under any other person, and was paying the rent periodically.

b. Whether the claimant was holding the land under a lease whose

duration was expressly stated to be not less than 12 years.

c. Whether the claimant had erected or acquired (by purchase or

gift) any structure on the land for residential, manufacturing or

business purpose.

d. Whether the claimant was holding such land or was using or

occupying it as khatal.

11.2. The Controller observed that in the present case, the claimant was

not contending that the land was ever occupied as khatal, so point (d) was

answered in the negative. Duration of the lease was also more than 12

years, so point (c) was also negatived. The Controller further observed that

as per the assessment register of the Corporation, at all times, there were

pucca structures on the land; and since the High Court had held in Sri Sri

Satyanarayan & Ors. v. S.C. Chunder: 2001 (3) CHN 641, that for a

tenant to be considered a thika tenant, no pucca structures must have been

raised. Hence, it was found that the lessees were not thika tenants per the

Act of 1949. The relevant observations and findings of the learned

Controller could be usefully extracted from the typed copy of the order, as

placed before us as Annexure P2 (at p. 95 of the paper-book): -

“3.Admittedly, it is not the case of the applicant parties that the said

premises was ever used or occupied as a khatal. Accordingly,

clause (iv) of the aforesaid ingredients Can be answered in the

negative at the very on set. In my opinion, the test mentioned in

Clause (ii) above regarding duration of the lease has to be

answered in the negative as the duration of The Said lease was

admittedly for more 12 years. Moreover, the 1947-48 and 1982

assessment register of the Corporation as disclosed by the parties

clearly show that at all material times there were (and still are)

“places structures at the said premises within the meaning of a

“pucca structures” under the Thika Act. It is also found that there

are structures having pucca foundation, pucca floors and pucca wall

and as disclosed by the report of the said spot enquiry there exist

brick built-walls with R.T./Tin shed in the said premises. Applying

the ratio of the decision of the Hon’ble High Court at Calcutta in

2001 (3) CHN 641 (Sri Sri Satyanarayan and Ors. vs. S.C.

Chunder), for a claimant to be considered a Thika tenant under the

Calcutta Thika Tenancy Act, 1949, the structure constructed by

him/it in must not be pucca structure. I therefore find that the

applicant parties did not qualify as thika tenants under the then

existing Calcutta Thika Tenancy Act, 1949.”

(emphasis supplied)

11.3. The Controller further observed that the appellants did not qualify

as thika tenants under Section 3(8) of the Act of 1981 either, since even

after altering the definition, the exclusion of pucca structures remained.

It was also found that the lease, based on which the lessees were claiming

to be thika tenants, had expired on 30.11.1993 and there was no existing

relationship of lessor-lessee between the parties. Hence, on 01.03.2003,

when the provisions of the Act of 2001 came into force, the lessees had

become at the highest, lessees at sufferance, having no jural relationship

with the lessor; and they being essentially trespassers on the land, were

not thika tenants under Section 2(14) of the Act of 2001. It was also held

that the Act of 1949 and the Act of 1981 were not applicable to the property

in question. The Controller also observed that the stay order of the High

Court was only limited to restricting the application of the Act of 1981 and

not the Act of 2001. However, and even after having held that the

applicants were not thika tenants and there was no relationship of landlord

and tenant on the date when the Act of 2001 came into force, the Controller,

yet, proceeded to reject the objections with reference to the fact of erection

of pucca brick wall over the property in question while observing that in

view of the decision of Calcutta High Court in the case of Purushottam

Das Murarka v. Harendra Krishna Mukherjee: 79 CWN 852, subsequent

erection of brick wall will not take the applicants outside the definition of

thika tenant.

11.4. The relevant observations and conclusion of the learned Controller

could also be usefully extracted from the typed copy of the order, as placed

before us as Annexure P2 (at pp. 101-104 of the paper-book): -

“13. This authority also finds that that the lease granted by the

concerned landlords to the said lessee, on the strength of which the

applicant parties are claiming to be thika tenants, expired on 30th

November 1993. After such expiry, there was no relationship of

Lessor-Lessee between be owners of the concerned premises and

the applicant parties. Accordingly, on 1st March, 2003, when the

provisions of the West Bengal Thika Tenancy (Acquisition and

Regulation) Act, 2001 came into force, the ere-lessees (sic) had

become at the highest lessees at sufferance having no jural

relationship with the lessor. The judgment cited by the objector for

this proposition i.e. AIR 1928 Cal 753 is squarely applicable to the

facts of the case. Going by that judgment, the applicant parties

became trespassers or at the highest tenants at sufferance after

expiry of lease. Therefore, they cannot qualify as thika tenants

within the meaning of Section 2(14) of Section 2(14) of the said Act

of 2001 and the said premises cannot qualify thika land within the

meaning of Section 2(15) of the said Act of 2001. From the relevant

records which are now before this Forum, it is abundantly clear that

neither the Calcutta Thika Tenancy Act, 1949 or the Calcutta Thika

Tenancy (Acquisition and Regulation) Act, 1981 or any Rules

framed thereunder could ever be applicable to the said premises.

The receipts granted by the landlords describing the lessees as

thika proja as claimed by the applicant, parties, cannot help the

applicant parties. It appears that the said receipts are general

receipts, catering both to monthly and thika tenants and the

issuance thereof cannot ipso facto clothe the grantees-applicant

parties with the status of thika tenancy. That apart, the status of the

applicant parties has to be culled out from the provisions of law the

registered lease deed and not from the private description provided

in certain rent receipts. The claim of Thika tenancy of the applicant

parties on the basis of this rent bill / receipt is therefore doubtful.

14. The objector has referred to a writ petition filed on 30th

September, 1983 where an order of stay of operation of Calcutta

Thika Tenant (Acquisition & Regulation) Act, 1981 was Made.

According to the objector, this order is still subsisting which would

negate the application of 2001 Act to the land in question. I reject

this proposition since the Said order was expressly restricted to the

1981 Act. Therefore the order cannot be interpreted to apply to the

2001 Act and/or the 2010 Amendment Act,

15. Even though I have held that the applicant parties were

not tenants nor there was any Landlord-Tenant relationship as on

the date when the 2001 Act came into force and consequently is on

the date of the 2010 Amendment, I am constrained to reject the

application by the objector n (sic-on?) the last point urged by the

applicant parties that is malting (sic) of pucca brick wall does not

exclude the applicant parties from the definition of thika tenant. I

accept the proposition laid down in 729 CWN 852 relied on by the

applicant parties to hold that subsequent erection of brick wall will

not take the applicant parties outride (sic) the definition of thika

tenant. Therefore, the applicant parties were indeed thika tenants

and the judgment reported in 79 CWN 852 is squarely applicable to

their case. On that basis I have no option but to reject the application

of the objector.

I accordingly hold that Bari Narayan Kumar, since deceased and

Nemai Chandra Kumar were the Thika Tenants in the subject

premises.

After expiry of Badri Narayan Kumar on 06/07/2006, Sint. Jharna

Kumar, Sri Debashis Kumar, Smt. Sanchita Paul, Sudipta Kumar &

Smt. Jyotsna Roy, alongwith Sri Nemai Chandra Kumar are

declared as Jt. Thika Tenants.

Thus the earlier order of Thika Tenancy Controller dt.

27.01.2010, stands.

The matter is accordingly disposed of on contest.”

(emphasis supplied)

11.5. Hence, objections of the respondent No. 1 were rejected. It was

held that Badri Narayan Kumar and Nemai Chandra were thika tenants,

and after the expiry of Badri Narayan Kumar, his legal heirs were joint thika

tenants.

Findings of the Tribunal

12. The decision aforesaid was challenged before the Tribunal in O.A.

No. 2833/12 (LRTT) and which was decided on 18.11.2013. The Tribunal

predominantly based its decision on the Act of 2001 and made various

observations including that the unauthorised erection of pucca structure by

a thika tenant without permission of the Controller might entitle the landlord

to bring an action for removal of the unauthorised structure or for ejectment

but, the nature of tenancy was not changed; that construction of pucca

structure was not a bar to claim the status of thika tenancy; that for the

question at hand and to determine if the land vested in the State by virtue

of the Act of 2001, simply letting out of the land was to be seen and not the

nature of construction.

12.1. The Tribunal, in its elaborate judgment relied upon various

authorities and referred to various principles but the crux of its

consideration had been the overriding impact and effect of the Act of 2001.

As regards the structure in question, the Tribunal held it to be “semi-pucca”

but, again observed that all types of structures were included within the

meaning of “any structure” in the definition of thika tenant in the Act of 2001,

which was a beneficial legislation.

12.2. Some of the observations and findings of the Tribunal could be

usefully extracted from the typed copy of its judgment placed before us as

Annexure P5 (at pp. 200-207 of the paper-book), which would read as

under: -

“16.3 By such amendment confusion and ambiguity to interpret the

words "any structure" has been totally dispelled. A particular Thika

Land may now vest in the state with effect from 18.01.1982 in a suomotu proceeding, even if there is no claimant as on 01.03.2003. Any

suo-motu proceeding initiated prior to the instant O.A. the impugned

proceeding was initiated on the basis of question raised by the

applicant before the Government in the year 2010 and challenging

thereby the decision dated 27.01.2010 of the Thika Controller. We

cannot interpret the law otherwise so that the leasing out of land

becomes operative again after complete abolition of Zamindari

System by the W.B.E.A. Act, 1953.

16.4 If it is presumed that the respondents were not a Thika Tenant

in terms of the provisions of the Act, 1981, then the impugned

proceeding initiated by the Controller recognizing the occupiers on

the land taken on lease prior to 18.01.1982 is a valid proceeding as

the respondents were in possession on 18.01.1982 and again on

01.03.2003. The respondents became Thika Tenant under the Act,

2001 and the suit land vested in the state with effect from

18.01.1982.

*** *** ***

16.5 It is an admitted fact that the structure constructed on the suit

land by the respondents was with tin shed. The tin shed structure

was made with authority given by the landlord and hence the same

was not unauthorized. The nature of the structure is undoubtedly

semi-pucca. The tin-shed structure cannot be a pucca structure

within the meaning of pucca structure in the Act, 1981 after 1993

Amendment as all the materials are not of durable nature. Again, all

types of structures are included within the meaning of 'any structure'

in the definition of Thika Tenant in the Act, 2001.

*** *** ***

17… The Act 2001 is a beneficent statute having a chequered

history making gradual headways to grant benefit to the occupier on

lands belonging to others and to sub-serve common good. Hence,

there is no doubt, whatsoever, that the substituted words "any

structure including pucca structure" operate with effect from

18.01.1982, the date given retrospective effect in the Act, 2001

before amendment Act, 2010 was brought in the Statute.

*** *** ***

18.1 …It might happen that a particular occupier could not be

declared as Thika Tenant in view of the provisions of the Act, 1981

& the Act, 1949. But in view of the provisions of Sec. 3 inserted in

the Act, 2001 conferring over-riding effect to the provisions of the

Act, fresh declaration/ determination is not a bar in the perspective

of this radically amended Act as because legislature enacted law

with retrospective effect and as because observations from a

judgment have to be considered in light of the questions which were

before the Court. But there was no scope to place before the Court

the new issues for decisions in the past as the questions / issues

were not existing at the time of past decisions prior to the enactment

of the Act, 2001. Because of subsequent legislation in 2001, there

has been effective changes of the pre-existing statutory provisions

with retrospective effect. Hence, it is well settled that the previous

judgement may be reviewed.”

(emphasis supplied)

12.3. Thus, the Tribunal proceeded on the finding that even if the

occupier could not be declared to be a thika tenant under the Act of 1949

or the Act of 1981, the decision could be reviewed because of the change

in the pre-existing statutory provisions with retrospective effect. As regards

the matter of filing of return, the Tribunal observed that such filing was

meaningless because its purpose was for taking consequential action and

it was only apprising the Controller of the particular land but, was not linked

with vesting, which occurred due to the operation of law. The Tribunal,

therefore, found no reason to interfere with the findings of the Controller

and proceeded to dismiss the appeal.

13. Aggrieved by the decisions aforesaid, the respondent No. 1

preferred a writ petition in the High Court, being W.P.L.R.T. No. 325 of

2013, which was considered and allowed by the High Court by its impugned

judgment and order dated 10.03.2014 while holding that the present

appellants did not qualify as thika tenants.

Findings of the Calcutta High Court

14. Having regard to the submissions made and the questions involved

in this matter, we may also take note of the reasoning of the High Court in

necessary details.

14.1. The High Court referred to the relevant background aspects and

findings of the Controller and the Tribunal and then, particularly noticed the

admitted position that the lessees had raised pucca structure having pucca

foundation, pucca floor and pucca wall with partly tin and partly tile shed on

the roof and used the premises, including the structure constructed thereat

for running their factory activities. The High Court also took note of the facts

relating to the enforcement of the Act of 1981 and challenge thereto by the

landlord by way of writ petition, wherein an interim order was passed,

staying operation of the said enactment qua the property in question. The

High Court also specifically took note of the fact that the lessees never

claimed themselves as thika tenants before filing the return, which they

filed on 10.04.2003, only after the advent of the Act of 2001. The High

Court, thereafter, proceeded to deal with the principal questions involved

in the matter with reference to the said three thika tenancy enactments

while pointing out that the tenancy in favour of the predecessor-in-interest

of the present appellants was created when the Act of 1949 was in

operation; was subsisting when the Act of 1981 came into operation; and

the present appellants were claiming thika tenancy rights under the Act of

2001.

14.2. Proceeding with the definition of “thika tenant”, as contained in

Section 2(5) of the Act of 1949, the High Court observed that the lease

having been granted in favour of the lessees for a period of more than 12

years i.e., for 20 years and the lessees having constructed pucca structure

having pucca foundation, pucca floor and pucca walls with tile and tin shed

on the roof in contradistinction to any kutcha or temporary structure as

contemplated under the said Act, the said lessees cannot be regarded as

thika tenants within the ambit of Section 2(5) of the Act of 1949.

14.3. Furthermore, noting that the expression “any structure” in Section

2(5) of the Act of 1949 had been interpreted to mean only temporary or

kutcha structure and not permanent or pucca structure in Jatadhari Daw

& Grandsons v. Smt Radha Debi & Anr.: 1986 (1) CHN 21, which was

also approved in the Full Bench decision of the High Court in the case of

Lakshmimoni Das and Ors. v. State of West Bengal and Ors.: AIR 1987

Cal 326, the Court cleared the clouds upon the question as to whether the

present case qualified the requirement of “any structure” by concluding in

the negative. The High Court, inter alia, observed and held as under (at p.

14 of the impugned order): -

“Considering the nature of the construction which was made mainly

of bricks as mentioned above we cannot hold that the structure

which was constructed by the then lessee was either temporary or

Kutcha structure. As such we can safely hold that this part of the

requirement of Section 2(5) of the said Act, was not fulfilled in the

instant case.”

(emphasis supplied)

14.4. On the point of applicability of Section 10A inserted to the main Act

of 1949 by way of amendment in the year 1969 which gave right to thika

tenants to erect pucca structure for residential purpose with previous

permission of the Controller, the Court noted that since the present

appellants did not qualify the requirements of being a thika tenant under

Section 2(5), they had no right to raise a pucca structure under Section 10A

of the said Act. Furthermore, the present appellants never claimed that they

raised pucca structure with the permission of the Controller. Therefore, it

was concluded that they cannot be declared as thika tenants under the Act

of 1949.

14.5. Moving on to the point as to whether the respondents would qualify

as thika tenants under Section 3(8) of the Act of 1981, the Court examined

the relevant provisions and held that the requirements under this Section

3(8) were exactly the same as were under Section 2(5) of the Act of 1949

except the exclusion parts; and thus, by deleting and/or omitting the said

exclusion parts of the Act of 1949 from the definition of thika tenant under

Section 3(8) of the Act of 1981, the lessees under a lease even for more

than 12 years were also brought under the purview of thika tenancy but,

the other essential conditions remained the same namely, those of the

tenant's liability to pay rent under a lease or otherwise as also the

requirement that such tenant had erected or acquired by purchase or gift

any structure on such land either for residential or manufacturing or

business purpose.

14.6. The High Court took note of the fact that the Act of 1981 came into

operation with effect from 18.01.1982 and then, found that as per the

admitted facts of the case, while the requirement of liability to pay rent for

the demised land continued until 30.11.1993 as per their lease deed but,

the lessees failed to fulfil the other half of requirement, i.e., of erecting or

acquiring a kutcha or temporary structure. The High Court held that the

pucca structure erected on the demised land by the lessees cannot be

considered within the ambit of “any structure”. The High Court, inter alia,

held as under (at pp.17-18 of the impugned order): -

“Since the said tenancy continued till 30th November, 1993 it

cannot be disputed that the said tenant had liability to pay rent for

the demised land to their landlord till 30th November, 1993. Thus,

this part of the requirement under Section 3 (8) of the said Act is

fulfilled in the instant case. However, the other requirement i.e.,

erection and/or acquisition by purchase or gift, any structure on

such land by the tenant for residential, manufacturing or business

purpose, is not satisfied in the instant case as admittedly the said

lessee did not raise any kutcha structure and/or temporary structure

on the demised land. We have already indicated above that the

expression "structure" used in Section 3(8) of the said Act should

be construed as "kutcha" structure and/or temporary structure in

contra-distinction to the permanent or "pucca" structure as was held

by the Division Bench of this Hon'ble Court in the case of Jatadhari

Daw & Grandsons -Vs- Smt. Radha Devi & Anr. (Supra) which was

subsequently affirmed by the Full Bench of this Hon'ble Court in the

case of Lakshmimoni Das -Vs- State of West Bengal (Supra).”

(emphasis supplied)

14.7. The High Court, thereafter, took up for consideration a somewhat

ticklish issue pertaining to this case, being related with the effect of

retrospective amendment of Section 5 of the Act of 2001. After an elaborate

reference to the unamended provisions as also the amended provisions

which were given retrospective effect from the very date of commencement

of the original enactment, the High Court also took note of all the salient

features of the pronouncement of the Full Bench in the case of Lakshmimoni

Das (supra) and then, analysed the position of law in the following words (at

pp.36-40 of the impugned order): -

“Thus we find that the Full Bench of this Hon'ble Court held in no

uncertain term in the said Lakshmimoni Das's case (Supra) that no

other land save and except the thika tenancy land and khatal land,

could be vested under the original provision of Section 5 of the Act

of 1981. Now let us consider the effect of the amended provision of

Section 5 of the Act of 1981 which the Special Bench had no

occasion to consider as the said amended provision was introduced

in the Act of 1981 after the judgment was delivered by the Special

Bench in Lakshmimoni Das's case (Supra).

On plain reading of the amended provision of Section 5 of the

said Act, it appears to us that apart from thika tenancy property

and/or the khatal land, some other land which was neither thika

tenancy land nor khatal land, was sought to be vested under

Section 5(c) of the said Act.

We feel that deep analysis of this provision is necessary to find

out the real intention of the legislature in introducing the said

amendment. Did the State Legislature really intend to vest land of

any description which was let out to tenant either under a written

lease or otherwise? Had it really been so, then while enacting a new

legislation on the very same subject in 2001, the State Legislature

would not have omitted the provision regarding vesting of other land

which was there in the Act of 1981 from the Act of 2001.

If we compare the original provision of Section 5 of the Act of

1981 with the amended provision of Section 5, then it appears to us

that the provision relating to vesting of thika land and other land

either occupied and/or used as khatal which was there in the original

provision of Section 5 was retained in the amended provision of

Section 5 of the said Act. What more was introduced in the

amended provision was vesting of Bustee land situated in the khas

land of the landlord, land in slum areas and other land which was

neither thika tenancy land nor Bustee land, nor land in slum area

nor land occupied and/or used as khatal. Then what was actually

intended by introducing the provision of vesting of other land under

Section 5 (c) of the amended provision? Other land was defined in

Section 3 (5A) which included vacant land or tank. Tenant of other

land was defined in Section 3(7B) of the amended provision which

says that tenant of other land means any person who occupies other

land under another person, whether under a written lease or

otherwise, and is or but for a special contract would be liable to pay

rent at a monthly or periodical rate for occupation of such other

lands, and includes the successor-in-interest of such person. Thus,

if Section 5 (c) is read conjointly with Section 3(5A) and Section

3(7B) then it leads us to hold that whenever any land including

vacant land or tank is let out to a tenant by the landlord even for a

day or a month at a daily or monthly rate, the landlord's interest in

such land will vest in the State under Section 5 (c) of the said Act

by overriding the provision of the Transfer of Property Act (Central

Law) governing the relationship of landlord and tenant. If we hold

as such , it will lead to absurdity. Probably the State Legislature,

after considering the absurdity and/or impossibility of

implementation of the amended provision of the Act of 1981,

dropped the idea of vesting of other land and accordingly omitted

the said provisions while legislating on the same subject in 2001.

Such intention of the legislature will be clear, if we consider the

State Legislature's choice of the date of enforcement of 2001 Act.

In fact two contradictory provisions cannot co-exist and operate

simultaneously in the same field. When the subsequent legislation

conveys a different intention relating to the laws of vesting than that

of the idea of vesting introduced in the earlier Act, it goes without

saying that the earlier Act was repealed. Having regard to the fact

that the Act of 2001 was given effect from the very same date on

which the Act of 1981 was enforced, we have no hesitation to hold

that State Legislature practically abandoned its idea of vesting of

any other land apart from thika tenancy land and khatal land as on

18.01.1982 and this conclusion is drawn by us as we find that the

Act of 2001 was given retrospective effect from the very same date

when the Act of 1981 was enforced. Again if the provisions of the

Act of 2001 is considered, then it goes without saying that the

provision relating to vesting of landlord's interest in the thika tenancy

and khatal land was made in the said statute in conformity with the

Full Bench Decision of this Court in Lakshmimoni Das's case

(Supra). Omission of the provision relating to vesting of other land

was also made in conformity with the said decision of the Full Bench

Decision in Lakshmimoni Das's case (Supra). As such, we have no

hesitation to hold that idea of vesting the landlord's interest in the

other land in the State under the Act of 1981 was abandoned by the

State. However, in view of the savings clause provided in the Act of

2001, the vesting which had already taken place under the Act of

1981 in respect of thika tenancy land and khatal land was saved.

That apart having regard to the fact that the operation of the Act of

1981 in respect of the petitioners' property was stayed by this court,

the landlord's interest in the said premises could not have vested

under 1981 Act. Then again the private respondent also did neither

submit any return under 1981 Act claiming their tenancy under the

State nor did they ever claim the landlord's interest vested under

the said Act.”

(emphasis supplied)

14.7.1. In view of the above, the High Court held that the landlord's interest

in the subject property never vested in the State under the Act of 1981.

14.8. Moving on to the Act of 2001, the High Court held that even

thereunder, the landlord’s interest never vested in the State. In this regard,

the Court examined the provision of Section 2(14) of the Act of 2001, again,

as originally enacted and as amended by the Act of 2010 and then, held as

under (at pp. 41-42 of the impugned order): -

“The definition of thika tenant under Section 2 (14) of 2001 Act

as mentioned above was almost identical with the definition of thika

tenant as mentioned in Section 3(8) of 1981 Act except the

exclusion part regarding structure which stood forfeited to the State

under Sub-Section 2(6) of the said Act. The definition of thika tenant

in Section 2(14) of Act of 2001 was amended by the Amendment

Act of 2010 and thereby the words "by purchase or gift any structure

on such land" was substituted by the words "by purchase or gift any

structure including pucca structure if any on such land". Thus the

expression "pucca structure" was included in the definition clause

of Section 2 (14) of the said Act for the first time by the Amendment

Act of 2010 and effect of such amendment was given prospectively

with effect from 1st November, 2010. The effect of the amendment

was not given from the date when the 2001 Act came into operation

from 18th July, 1981. Thus, existence of pucca structure on the said

land as on 1st November, 2010 will itself be of no help to the private

respondent inasmuch as on 1st November, 2010 there was no

subsisting lease and/or contract under which original lessees were

liable to pay rent to their landlords in respect of the land comprising

in the said premises. The lease dated 15th December, 1973 expired

by efflux of time on 30th September, 1993. After expiry of the said

lease, the lessees became trespassers and/or at best they may be

regarded as tenant by sufferance who had no liability to pay rent to

their landlord either under the said lease which stood expired in

1993 or under any other law. Thus, the first part of the requirement

of Section 2(14) of the said Act is not fulfilled in the instant case. As

such the land which was comprising in the said tenancy of the

predecessor-in-interest of the private respondent cannot vest with

the State under Section 4 of the said Act.”

(emphasis supplied)

14.9. The High Court agreed with the contention that the expression

“structure including pucca structure”, was included in Section 2(14) of the Act

of 2001 only for recognizing the tenancy of those thika tenants who

constructed these pucca structures with permission of the Controller under

provisions of the Act of 1949 or the Act of 1981, with the building plan

sanctioned by the Municipal Corporation. The High Court further held that the

decision in Purushottam Das Murarka (supra) was misconstrued by the

Controller while holding the present appellants to be thika tenants since

pucca structures were raised during continuance of the lease. The Court

pointed out that a different principle was laid down in that case, and both the

Controller and the Tribunal misconstrued it; and held that the impugned

orders, thus, remained wholly unsustainable in the following words: -

“In fact, this was the decision which was misconstrued by the

Thika Controller while drawing his conclusion that since thika tenant

raised pucca construction during continuance of his lease, they

became thika tenant. In our reading, we find a different principle was

laid down in the said decision which could not be properly

understood by the controller and the Tribunal which ultimately

affirmed the Controller's said order. It was simply decided therein

that if a thika tenant raises any pucca construction during the

continuance of his lease without the landlord's consent, then the

landlord may initiate action for demolition of such unauthorized

construction. It was never held in the said decision, that if tenant of

a land raises pucca structure, he will automatically be a thika tenant.

Since the said decision was the sheet anchor for coming to the

conclusion that the private respondents were thika tenant, we

cannot approve the said order of the Controller for the aforesaid

reason.”

14.10. In view of the above discussion and findings, the High Court held

that the Controller and the Tribunal were not justified in holding that the

present appellants were thika tenants in respect of the subject property and

the landlord's interest therein vested with the State under the Act of 2001

with effect from 18.01.1982. Hence, the writ petition was allowed.

14.11. Being aggrieved by the order so passed by the High Court, the

appellants have preferred this appeal.

Previous decision of this appeal and review thereof

15. Before proceeding further, we may point out that this appeal against

the said judgment and order dated 10.03.2014 was earlier considered and

decided by a co-ordinate bench of this Court by way of the judgment dated

24.02.2015. Therein, the matter was essentially considered with reference

to the provisions contained in Section 2(5) of the Act of 1949 as also the

later inserted Section 2(4a) and Section 10A to the Act of 1949; and while

holding that the intention of legislature was clear that the expression “any

structure” would include both kutcha (temporary) and pucca (permanent)

structure, it was concluded that the appellants fulfilled all the conditions of

thika tenancy as defined in Section 2(5) of the Act of 1949. In consequence

to this finding and with reference to the Act of 1981, it was held that the

property in question vested in the State along with interest of landlord free

from all incumbrances.

16. A review petition bearing No. 1483 of 2015 was filed in the matter

seeking review of the judgment aforesaid, which was considered and

allowed by us on 04.03.2021. After noticing the provisions contained in

Section 2(5) and particularly the excepted category of the lease beyond 12

years, it was observed that the judgment under review suffered from an

error apparent on the face of the record because the crucial fact, that the

period of lease in the present case was of 20 years, was not even taken

into consideration. The question as to whether the appellants were entitled

to succeed on the basis of the provisions of the Act of 1981 was, of course,

left open because the same had not been considered in the judgment under

review. Therefore, we allowed the review petition and restored the appeal

for reconsideration while observing, inter alia, as under: -

“One of the excepted categories in Section 2(5) of the 1949 Act

postulates that the definition will have no application to lease

beyond 12 years period. On this count alone, the finding of fact

recorded by this Court in the judgment under review and the

declaration given in favour of respondent No. 1 on that basis cannot

stand, being a manifest error apparent on the face of record and

also contrary to the express statutory provision.

The question whether the appellants in Civil Appeal could

otherwise succeed on the other arguments, including that they had

protection under the provisions of The Calcutta Thika and other

Tenancies and Lands (Acquisition and Regulation) Act, 1981 (for

short, ‘the 1981 Act’), of being the Thika Tenant(s) and that the

pucca structure erected by them was also protected/covered under

that provision, is a matter which needs to be examined in the revived

civil appeal.

Indeed, the judgment under review refers to the provision

Section 3(8) of the 1981 Act, but there is no analysis in the judgment

as to how the appellant (Respondent No.1 herein) would acquire

the status of thika tenant as such. It is only then the issue of vesting

under the 1981 Act can be taken forward.

Counsel for the respondent(s) was at pains to persuade us that

even if the judgment under consideration is reviewed, the

conclusion in favour of respondent No. 1 would remain the same.

Again, that is a matter to be considered in the civil appeal,

consequent to the recall of judgment dated 24th February, 2015. All

contentions available to both sides in the revived appeal can be

considered on its own merits. We order accordingly.

In view of the restoration of appeal, all interim order(s) passed in

the appeal stand revived.

The review petition is disposed of accordingly”

Rival Contentions

17. The foregoing had been the summary of the entire background in

which this appeal was heard at length by us. We may now usefully

summarise the contentions urged on behalf of the contesting parties.

The Appellants

18. Learned senior counsel for the appellants has assailed the order

impugned with a variety of submissions concerning operation and effect of

the thika tenancy enactments.

18.1. It has been submitted by the learned senior counsel that the term

“any structure”, as used in the Act of 1949, includes both kutcha and pucca

structures. The learned counsel has relied upon the decision of this Court

in Chief Inspector of Mines and Anr. v. Lala Karam Chand Thapar and

Ors.: (1962) 1 SCR 9 to contend that “any” as referred to in the term “any

structure” in Section 2(5) of the Act of 1949, means “all”. It has been

submitted that words/phrases in a statue ought to be construed as per their

plain language; and the decisions in Om Prakash Gupta v. DIG

Vijendrapal Gupta: (1982) 2 SCC 61, Bharat Aluminium Company v.

Kaiser Aluminium Technical Services Inc.: (2012) 9 SCC 552, Union of

India & Anr. v. Hansoli Devi & Ors.: (2002) 7 SCC 273 and Vijay

Narayan Thatte and Ors. v. State of Maharashtra and Ors.: (2009) 9

SCC 92 have been relied upon.

18.2. It has also been contended that the case of Monmatha Nath

Mukherjee v. Smt. Banarasi and Ors.: 63 CWN 824 had wrongly been

decided, and that there exists no other authority, apart from this case for

the proposition that the term “any structure” in Section 2(5) of the Act of

1949 is only confined to kutcha structure. It has further been submitted that

Jatadhari Daw & Grandsons (supra) merely relied on Monmatha Nath

Mukherjee (supra), and in fact, Jatadhari Daw & Grandsons has been

set aside by the Supreme Court by its order dated 27.10.2004. It has also

been contended that the judgement in Kshiroda Moyee Sen and Ors. v.

Ashutosh Roy and Ors.: 63 CWN 565 is being misread, since it was not

held that “any structure’” in Section 2(5) meant kutcha structure, but was

actually held to the contrary; and that the Act of 1949 does not restrict the

structures to kutcha structures and that the nature of these structures would

depend upon the terms of the contract between the parties. It has also been

submitted that it was held by the High Court in Kshiroda Moyee Sen

(supra) that a thika tenant was not entitled to put up pucca structures on

the land merely because he had taken the land on thika tenancy but, while

there was no right to put up pucca structures, the landlord was only entitled

to seek a decree of injunction. The learned counsel has also referred to

Jnan Ranjan Sen Gupta and Ors. v. Arun Kumar Bose: (1975) 2 SCC

526, wherein it was held that the Act of 1949 was a beneficial legislation,

and should be liberally interpreted in favour of the tenants, and that if two

interpretations were possible, the one in favour of the tenant should be

upheld.

18.3. The learned senior counsel has also submitted that the reliance on

Section 108(p) of the Transfer of Property Act, 188212

13 to interpret the Act

12 Hereinafter also referred to as ‘the Transfer of Property Act’.

13 Clause (p) of Section 108 of the Transfer of Property Act dealing with rights and liabilities of the

lessee enjoins upon the lessee that, -

“(p) he must not, without the lessor’s consent, erect on the property any

permanent structure, except for agricultural purposes;”

of 1949 is erroneous, since a special statute like the Act of 1949 overrides

a general statute like the Transfer of Property Act; and Section 108(p) of

the Transfer of Property Act does not lay down that permanent structures

cannot be constructed by a tenant.

18.4. It has been contended by the learned senior counsel that the

insertion of Section 10A by the Amendment Act of 1969 had been only to

the effect that if otherwise the thika tenant was not permitted to build pucca

structures under the terms of the lease with the landlord, he could have

done so with permission of the Controller. Section 10A shows intent of the

legislature to include lands in which the tenant has erected or acquired

permanent structures.

18.5. As regards the interpretation of thika tenant and the phrase “any

structure” under the Act of 1981, the learned senior counsel for the

appellants has argued that they are not being correctly interpreted. The

concept of thika tenancy under the Act of 1981 was much wider than the

one under the Act of 1949, wherein the temporariness of the concept of

thika tenancy was removed. The term “other lands” was not in place at the

inception, and was inserted by way of the Amendment Act of 1993. The

learned counsel would submit that the legal position on the nature of

construction is clearer after the Amendment Act of 1993, since all thika

tenancies, as defined under Section 3(8) of the Act of 1981, stood vested

with the State with effect from 18.01.1982; and the concept of “other lands”

was introduced by virtue of Section 5(c).

18.6. The learned counsel has further submitted that the property in

question continued to be under thika tenancy after the Act of 2001, since

the acquisition was carried out retrospectively; and it was expressly stated

in Section 4 that it would take effect from 18.01.1982. Furthermore, the

learned counsel has submitted that the amendment to the definition of thika

tenancy by way of the Amendment Act of 2010 was only clarificatory in

nature, and merely confirmed what was always the position, that the nature

of structures could either be kutcha or pucca.

18.7. In the other limb of submissions, the learned counsel has submitted

that the findings of fact by the Tribunal were set aside by the High Court in

its writ jurisdiction without any cogent reason. The Tribunal had

categorically held that the structures on the land were kutcha in nature, but

the High Court held that it was admitted that the structures were pucca in

nature, without any discussion on this issue.

The State

19. The learned counsel for the respondent-State has supported the

submissions made on behalf of the appellants.

19.1. The learned counsel for the respondent-State has submitted that

the order of the Controller is within the four corners of the law and is

required to be upheld. The learned counsel would submit that the definition

of thika tenant under Section 2(5) of the Act of 1949 was substituted by the

West Bengal Act VI of 1953, which indicates that, from its inception, the

definition of thika tenant clearly talked about “any structure”; and there was

no scope to read only kutcha structure into the definition. It has been

submitted that when words are clear and there is no ambiguity, there is no

reason to resort to any external aid for interpretation. The learned counsel

would also submit that after insertion of Section 10A to the Act of 1949,

thika tenants could erect pucca structures on the land with the permission

of the Controller and hence, the Act of 1949 did not contemplate a bar on

erection of pucca structures by the thika tenant.

19.2. As regards the definition of “any structure” under the Act of 1981, it

has been submitted by the learned counsel that a provision for “any

structure” had been made in the Act of 1981, but the persons who were

excluded from the definition under the Act of 1949 were brought within the

ambit of the Act of 1981; and lands which were earlier excluded from the

definition of thika tenancy, were also brought within the ambit in the Act of

1981. The learned counsel has referred to the decision of this Court in

Ramdas Bansal (Dead) Through LR v. Kharag Singh Baid & Ors.:

(2012) 2 SCC 548.

19.3. It has also been submitted that Section 6(4) of the Act of 1981

permitted a thika tenant to construct pucca structures in accordance with

the building plans sanctioned under the Calcutta Municipal Corporation

Act, 1980 or the Howrah Municipal Corporation Act, 1980 but, the

requirement of prior permission from the Controller for erection of pucca

structures had not been provided for under the Act of 1981.

19.4. It has been contended by the learned counsel for the State that the

High Court, in Monmatha Nath Mukherjee (supra), erred in concluding

that the Act of 1949 did not include pucca structures, since no external aid

was required for the purpose of interpreting the definition of thika tenant,

and the Courts could not have gone behind the language of the statute, or

add or subtract from it. It has been submitted that the Courts cannot rewrite,

recast or reframe the legislation; and reliance is placed on the decisions of

this Court in Hardeep Singh v. State of Punjab & Ors.: (2014) 3 SCC 92

and Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction

Company Private Limited & Ors.: (2010) 8 SCC 24.

19.5. As regards the effect of repeal and re-enactment of Acts, it has

been submitted by the learned counsel for the respondent-State that when

an Act is repealed, it is treated as revoked or abrogated and removed from

the statute book. It has been argued with reference to the decision in Gajraj

Singh & Ors. v. State Transport Appellate Tribunal & Ors.: (1997) 1

SCC 650 that whenever an Act is repealed, it must be considered as if it

had never existed, except when pertaining to past and closed transactions.

The learned counsel would submit that per Section 21 of the Act of 1981,

the Act of 1949 was completely repealed without a savings clause, and the

Act of 1981 was given a special overriding effect by virtue of Section 4. The

Act of 2001 further repealed the Act of 1981, and came into force with effect

from 01.03.2003, while being retrospectively applied with effect from

18.01.1982. Since an overriding effect was provided while repealing the

Act of 1949, any determination under the Act of 1949 required review in

light of the provisions of the repealing Act, being the Act of 1981. By placing

reliance on such overriding effect, it has been contended that the

appellants became thika tenants by virtue of the operation of the Act of

1981, with the subject property having vested with the State from the date

of commencement of the Act of 1981. It has also been contended that the

respondent Nos. 1 and 2, who have stepped into the shoes of landlord,

have no right, title or interest in the property in question and hence, the

impugned judgment is not sustainable in the eyes of the law.

19.6. It has additionally been submitted by the learned counsel that under

the Act of 1949, the two main factors to determine the claim of thika tenancy

were the nature of the structure on the land and the length of the lease, but

these exclusions were not present in the Act of 2001, which was also given

an overriding effect in terms of Section 3 read with Sections 2(14) and 2(15)

thereof. Hence, it has been submitted by the learned counsel that

disqualification under the Act of 1949 could not be used as a shield against

the application of the provisions of the Acts of 1981 and 2001, with the Act

of 2001 being a complete and independent code in itself.

19.7. It has also been contended that a decision taken on the basis of a

previous enactment is liable to be changed on the basis of existing

enactment, and the status of thika tenancy is required to be examined

afresh in light of the Act of 2001, irrespective of the status a tenant might

have enjoyed under the previous enactments. Reliance is placed on the

decision of the High Court in the case of Ram Krishna Shaw v. Tachmani

Devi: (1994) 1 CAL 394. Hence, it has been the stand of learned counsel

for the respondent-State that the registered deed of lease dated

15.12.1973 for a period of 20 years would not be a bar in considering the

claim of thika tenancy.

The respondent No. 1

20. Learned senior counsel for the respondent No. 1 has countered the

submissions aforesaid and has supported the order impugned, again with

a variety of propositions.

20.1. In the first limb of submissions, the learned senior counsel has

contended that the appellants do not qualify as thika tenants under the Act

of 1949 and even under the Act of 1981.

20.2. As regards the status of the tenancy of the appellants under the Act

of 1949, it has been submitted that leases beyond 12 years were excluded,

and the term “any structure” has been interpreted to mean kutcha structure

in a series of decisions by the High Court of Calcutta. The term “thika”

means “temporary” or “non-permanent”, and hence, only deals with

temporary tenancies.

20.3. The learned senior counsel for the respondent No. 1 has referred

to the decision in Lakshmimoni Das (supra), where it was held that within

the scope and ambit of Act of 1981, only the lands comprised in thika

tenancies within meaning of Act of 1949, comprising kutcha structure, or

pucca structure constructed for residential purpose with permission of

Controller, or khatal lands held under lease vested in the State; and save

as aforesaid, no other land and structures vested under the said

enactment. The case of Sri Sri Satyanarayan (supra) has been relied

upon, where it was observed that thika in Bengali meant temporary or

partial. Reliance has also been placed on the decision in the case of

Kshiroda Moyee Sen (supra), where it was held that a tenant was not

entitled to put any permanent structure on the land under the Transfer of

Property Act or the Thika Tenancy Act. Furthermore, by placing reliance on

Monmatha Nath Mukherjee (supra), it is contended that nothing in the Act

of 1949 entitled a tenant to erect a pucca structure. It has also been pointed

out that the decision in Monmatha Nath Mukherjee was affirmed by the

Division Bench of the High Court in Annapurna Seal v. Tincowrie Dutt

and Anr.: 66 CWN 338, wherein the High Court held that a pucca building

could not come under the purview of the Act of 1949, since it dealt with

concepts of temporary natures like the “thika tenant”, a “bharatia” and

“structures”. It has also been submitted that the Statement of Objects and

Reasons of the Act of 1949 makes it clear that the Act was brought into

force to protect tenants having kutcha or temporary structures from eviction

and against charging of exorbitant amounts of rent by the landlord. The

learned counsel has also submitted that the term “pucca structure” was

only added for the first time in the Act of 2001.

20.4. As regards the Act of 1981, the learned senior counsel has argued

that it was not the intention of the legislature that land in all leases of vacant

land of any tenure upon which tenant constructed a structure would vest in

State. By placing reliance on the Statement of Objects and Reasons, it is

submitted that the Act of 1981 is an appropriatory and confiscatory

enactment, which contemplated acquisition and had not been for creation

of thika tenancies. Furthermore, it has been contended that even if one

became a thika tenant under the State, he would have to obtain permission

to construct pucca structure in accordance with building plan sanctioned

under the Calcutta Municipal Corporation Act, 1980. Support has also been

sought from the affirmation of the decision in Monmatha Nath Mukherjee

(supra) by the Division Bench in Jatadhari Daw & Grandsons (supra). It

has been submitted by the learned counsel that some questions were

referred to the Full Bench of the High Court of Calcutta in Lakshmimoni

Das (supra), where it was held that per Section 5 of the Act of 1981, only

those lands which had kutcha structures, or pucca structures constructed

with permission of the Controller under the Act of 1949, and khatal lands

held under a lease, would vest with the State under the Act of 1981.

20.5. The learned counsel for the respondent No. 1 has submitted that

the decisions aforementioned have been consistently followed by the High

Court, even as recently as 2016; and a view which has been consistently

adopted by the High Court for more than 60 years, deserves not to be upset

at the instance of the appellants. Reliance is placed on the decision of this

Court in Shanker Raju v. Union of India: (2011) 2 SCC 132.

20.6. The learned senior counsel has further submitted that repeal of the

Act of 1949 and simultaneous re-enactment of the law, being the Act of

1981, is an affirmation of the old law in the Act of 1949. Therefore, the Act

of 1981 is required to be read in conjunction with the Act of 1949, as the

legislature was aware about the consistent judicial interpretation of the term

“any structure”, but still did not change it. This shows the intent of the

legislature to keep the meaning of the term “any structure” in line with the

judicial pronouncements and the Act of 1949. This definition was only

amended prospectively under the Act of 2001 by way of the Amendment

Act of 2010. Reliance is placed on various decisions of this Court including

those in Bengal Immunity Company Limited v. State of Bihar and Ors.:

(1955) 2 SCR 603 and Gammon India Ltd. v. Special Chief Secretary &

Ors.: (2006) 3 SCC 354.

20.7. As regards the Amendment Act of 2010, inserting pucca structures

in the term “any structure”, the learned counsel has submitted that this

amendment is prospective in nature, and not clarificatory, since the

amendment was made applicable from 01.11.2010, prospectively. The

intention could be ascertained from the fact that when the Act of 1981 was

repealed by the Act of 2001, some provisions of the Act of 2001 were

applied retrospectively with effect from the date of commencement of the

Act of 1981, i.e., 18.01.1982, while the Amendment Act of 2010 was

applied prospectively.

20.8. It has also been submitted by the learned counsel for the

respondent No. 1 that the appellants did not pay rent to the landlords after

expiry of the lease on 30.11.1993 and as such, their occupation after the

expiry of the lease is tenancy at sufferance; and a tenant at sufferance is

liable to pay mesne profits/damages, and not rent. Therefore, after

30.11.1993, the appellants could not be thika tenants, since they were not

liable to pay rent. The learned counsel has referred to various decisions in

this regard including that in Nand Ram (Dead) Through Legal

Representatives v. Jagdish Prasad (Dead) Through Legal

Representatives: (2020) 9 SCC 393.

20.9. The learned senior counsel has also submitted that the operation

of the Act of 1981 as regards the property in question was stayed by the

High Court of Calcutta by the order dated 30.09.1983 in WP Civil Rule No.

10449(W) of 1983. Therefore, the appellants could not be thika tenants

under the Act of 1981 and the said land could not vest with the State; and

significantly, the appellants filed Return in Form A on 10.04.2003 under the

Act of 1981 when the said Act had been repealed and additionally, the

return filed was much after the expiry of lease.

20.10. In the last limb of arguments, the learned senior counsel for the

respondent No. 1 has submitted that the findings of the High Court of

Calcutta are correct; that in rejoinder submissions, learned senior counsel

for the appellants had conceded that it was not appellants’ case that any

new thika tenancy was created under the Act of 1981 and since the

appellants were admittedly not thika tenants under the Act of 1949, this part

of submissions on behalf of the appellants clarifies that they are not thika

tenants, and hence, the judgement of High Court deserves to be upheld.

21. We have heard the learned counsel for the parties at sufficient

length and have examined the record of the case with reference to the law

applicable.

Analysis

22. Having given anxious consideration to the entire matter, we are

satisfied that the High Court has taken an eminently just and proper view

of the matter in setting aside the untenable orders passed by the Controller

and the Tribunal; and no case for interference is made out.

22.1 A long length of arguments has been advanced before us by the

contesting parties, particularly in view of the peculiarities associated with

the three enactments and their amendments from time to time. Having

regard to the subject matter, it appears appropriate only to deal with the

material propositions and factors while analysing the submissions. This

analysis could be broadly sub-divided into four parts namely, the nature of

the structure in question; the statutory scheme and import of three

enactments with their amendments; the relevant decisions; and other

miscellaneous but relevant factors.

The Structure in question

23. We may, in the first place, clear one of the unnecessary

submissions made on behalf of the appellants as if the High Court has

unjustifiably stated that the structures in question were admittedly pucca in

nature. This submission is unnecessary as also incorrect. The High Court

has made the relevant observations about the nature of structure and has

returned its findings in that regard only after proper comprehension of all

the relevant factual aspects.

23.1. The fact that the structure in question was pucca in nature could not

have been put to any issue by the appellants. As noticed, the learned

Controller, in paragraph 3 of his findings in the order dated 01.08.2012,

categorically recorded the facts that even from the assessment register of

the Corporation, it was clearly shown that at all material times, there were

placed such structures at the subject property which fell within the meaning

of “pucca structures”. The Controller also found with reference to the

enquiry report that there were structures having pucca foundation, pucca

floors and pucca walls as also brick walls with tin shed. The Tribunal, in its

findings, made rather strange observations that the structure in question

was a “semi-pucca” one and for that purpose, referred only to tin shed and

not the other structures as noticed and mentioned by the Controller. In fact,

the Tribunal diverted its attention more to its proposition that after the

Amendment Act of 1993, all types of structures were included within the

meaning of “any structure”. In any case, the Tribunal also could not return

a specific finding that it had been a kutcha structure. The classification of

semi-pucca, as attempted to be carved out by the Tribunal, was neither

envisaged by the statute nor could have been countenanced in view of the

specific facts noticed by the Controller.

23.2. The High Court has, obviously, taken into comprehension the

findings of the Controller which were never challenged by the appellants

and hence, made the observations that the lessees had admittedly raised

pucca structure. Even if the appellants seek to dispute such findings, such

a dispute is required to be rejected, particularly with reference to

indisputable findings of the Controller. The structure in question had been

a pucca structure. Its implication shall unfold hereafter.

The statutory scheme and the import of three enactment with their

amendments

24. A quick but comprehensive recap of the entire environment

surrounding the enactments in question would make it clear that by the Act

of 1949, essentially the thika tenancies were sought to be regulated, more

particularly against arbitrary eviction and enhancement of rent. Therein, by

the Amendment Act No. XXIX of 1969, the thika tenant was given the right

to erect pucca structure in case the land comprised in the holding was

being used for residential purposes, of course, with previous permission of

the Controller. Bharatias, being essentially the persons paying rent in

respect of the structure erected by the thika tenant, were also given

protection so that thika tenant would not eject them for erecting a pucca

structure. The legislature duly took note of the requirements of giving

protection to thika tenants and bharatias against ejectment and thus, the

Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act,

1978, was enacted, whose life was extended upto 18.07.1981. As specified

in the Statement of Objects and Reasons for the Act of 1981, the object of

the said Act of 1978 was to provide temporary protection against ejectment

until a comprehensive legislation was enacted to deal with the public

grievances.

24.1. The various features of the Act of 1949 had been the subject-matter

of debates in various decisions of Calcutta High Court, particularly after

amendment in the year 1953 in the definition of thika tenant. One of the

consistent lines of thought remained in various decisions like those in the

case of Kshiroda Moyee Sen, Monmatha Nath Mukherjee and

Annapurna Seal (supra), that the expression “any structure”, as referred

to in Section 2(5) though ordinarily could be interpreted as “all structures”

but, while harmonising the said provision with Section 108(p) of the

Transfer of Property Act, the term “structure” in this definition could refer

only to a “kutcha structure”.

25. Then, in the Act of 1981, the State Legislature introduced the

provisions for acquisition of the rights of landlords in the land comprised in

thika tenancies by payment of certain amount on the lines of the then

operating Urban Land Ceiling (Ceiling and Regulation) Act, 1976. This

acquisition was to result in vesting of all the rights in the land comprised in

thika tenancies in the State free from all encumbrances; and the thika

tenants were to hold the land under the State on prescribed terms and

conditions. Protection against ejectment was also granted to bharatias.

25.1. Again, the salient features of the Act of 1981, as originally enacted,

had been the subject-matter of several debates in the High Court with same

consistent line of thought that the “structure” referred to in the definition of

“thika tenant” meant only kutcha structure; and it related to pucca structure

only when the same was for residential purposes.

25.2. In the Act of 1981, the legislative intent, on one hand being of

protecting the interest of vulnerable class of tenants/occupants but on the

other hand, the fiat being of exaction of the landlord’s property to the State,

obviously, the provisions were required to be construed in a balanced

manner and were so construed by the Calcutta High Court in several of its

decisions and the matter was ultimately dealt with by the Full Bench of the

High Court in the case of Lakshmimoni Das (supra) wherein, the Full

Bench approved the interpretation of Section 5 of the Act as put by the

Division Bench in the case of Jatadhari Daw & Grandsons (supra). The

Full Bench answered the reference in the following terms: -

“56. For the reasons aforesaid we hold as follows:—

(a) The impugned Act is not protected under Art. 31C of the

Constitution as it is found on scrutiny of different provisions of the

impugned Act that the impugned Act has not been enacted to give

effect to provisions of Arts. 39(b) and (c) of the Constitution and the

impugned Act is open to challenge on the score of violations of Part

III of the Constitution.

(b) Within the scope and ambit of S. 5 of the impugned Act only

lands comprised in thika tenancies within the meaning of the

Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure

and/or a pucca structure constructed for residential purpose with the

permission of the Controller under the Calcutta Thika Tenancy Act,

1949 and khatal lands held under a lease shall vest and save as

aforesaid no other land and structure vest under the impugned Act.

Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982

are ultra vires the Constitution.

(d) Rule 3(b) of the Calcutta Thika Tenancy (Acquisition and

Regulation) Rules, 1982 excepting the following portion “every thika

tenant or tenant shall pay to the Controller annual revenue being

not less than what he was paying to the landlord before the coming

into force of the Act” Rules 3(h), 3(i) and 3(j) of the said rules are

ultra vires.

(e) Section 19 of the impugned Act in so far as it purports to abate

any pending appeal preferred by a thika tenant against a decree for

eviction of thika tenant under the Calcutta Thika Tenancy Act, 1949

and any execution proceeding for eviction of a thika tenant against

whom a decree for eviction had been passed under the Calcutta

Thika Tenancy Act, 1949 before the enforcement of the impugned

Act is illegal and ultra vires.

(f) Section 6(2) of the impugned Act excepting the proviso

thereunder and Ss. 26 and 27 of the impugned Act are declared

ultra vires.”

25.3. We are essentially concerned with the sub-paragraph (b) aforesaid

as regards the construction of Section 5 of the Act of 1981. Interestingly,

while the said decision in Lakshmimoni Das (supra) was challenged in

this Court but, even during the pendency of such challenge, the legislature

made amendments to the Act of 1981 by virtue of the Amendment Act of

1993 which was intended to remove the practical difficulties in operation of

the Act of 1981. By this Amendment, even the Title and the Preamble of

the Act of 1981 as originally enacted were amended. In fact, such

amendment of title etc. had its foundation in the observations occurring in

Lakshmimoni Das (supra) wherein the Full Bench of the High Court, inter

alia, took into consideration the original title of the enactment, i.e., the

Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 while

construing its provisions where the expression “other land” was not there.

25.4. However, it could be readily seen that the amendment of Section 5

by the Amendment Act of 1993, rather than removing the difficulties and

clarifying the position of law as also rather than removing the basis of the

decision in Lakshmimoni Das (supra), only created more complexities and

unworkable situation where the effect of newly inserted clause (c) of

Section 5 was going to be as if any land given on lease in any manner was

to result in vesting of the interest of the landlord in the State. If we could

say so, the shortcomings in the originally enacted Section 5 of the Act of

1981, which were indicated in Lakshmimoni Das (supra) by the Full Bench

of the Calcutta High Court, rather than being removed, became more

prominent with complexities because of the Amendment Act of 1993.

25.5. In our view, the High Court has rightly held in the order impugned

that the confusions and anomalies were dealt with in the Act of 2001; and

because of the larger part of absurdity having been removed in the Act of

2001, the challenge in this Court to the judgment in Lakshmimoni Das

was not taken forward.

26. The object and purpose of these enactments and text of the

relevant provisions, when examined with reference to their texture and

context, the provisions of vesting as evolved by way of originally enacted

Section 5 of the Act of 1981 and as provided for in Section 4 of the Act of

2001 read with the Amendment Act of 2010 put it beyond the pale of doubt

that until the advent of the Amendment Act of 2010 w.e.f. 01.11.2010,

erection of pucca structure on the leased land did not bring the tenant within

the definition of thika tenant and thus, there could not have been any

vesting in the State under Section 5 of the Act of 1981 (whether originally

enacted or amended) or under Section 4 of the Act of 2001, as originally

enacted.

27. We may also observe that ordinarily, a later enactment may not be a

safe external aid for interpreting the preceding enactment on the same

subject but the object and purport of the enactments dealing with thika

tenancies commencing from the year 1949 and continuing with successive

enactments of 1981, its amendment in 1993, then the enactment of 2001 and

its amendment in the year 2010, formed a series of legislative exercises

towards the same subject, i.e., protection of thika tenants. Hence, the later

promulgation of the Act of 2001 and its amendments could have been

referred to, and have rightly been referred to, by the High Court in the

impugned judgment while construing the Act of 1981.

27.1. There are other strong reasons for which too, the successor

enactment is required to be taken in aid for construing the provisions of the

preceding enactment in the present case. It is a fact that even when the Act

of 2001 came into force from 01.03.2003, the vesting of the land comprised

in thika tenancies and other land etc. was deemed to have occurred w.e.f.

18.01.1982; that being the very date of enforcement of the Act of 1981.

Learned counsel for the respondent No. 1 appears right in his submissions

that the Act of 1981 having been simultaneously enacted while repealing the

Act of 1949, it had to be read in conjunction with the preceding enactment

and the legislature would be deemed to be aware of the judicial

pronouncements as regards the material terms of the Act of 1949 which were,

with same frame and phraseology, retained in the new enactment. The

decisions referred to by the learned counsel for the respondent No. 1 in the

cases of Bengal Immunity Co. Ltd. and Gammon India Ltd. (supra)

provide enough guide on the principle that repeal and simultaneous reenactment is to be considered as reaffirmation of the old law. The submission

on behalf of the appellants and the State, that the interpretations put to the

expression “any structure”, as occurring in relation to the Act of 1949, cannot

be imported for the purpose of the interpretation of the same expression in

similar enactment with similar phraseology, which was made in replacement

of the earlier one, is required to be rejected. The exclusion aspects of the Act

of 1949 had, of course, not been continued in the Act of 1981 but the basic

elements for a tenancy to become thika tenancy remained the same namely,

requirement of payment of rent and construction/acquisition of any structure

thereat by the tenant. There is nothing in the Act of 1981 for which the

interpretation of the expression “any structure” could have been made

different than the interpretation of the same expression in regard to the Act

of 1949.

28. The suggestion that the expression “any structure”, in its plain

meaning ought to be construed as inclusive of all structures whether kutcha

or pucca, needs to be rejected for a variety of reasons.

28.1. In the Act of 1949 as originally enacted, even though the

expression “any structure” had been used but, it was consistently

maintained by the Calcutta High Court with reference to the object and

purpose of Act of 1949 and its frame that, the definition of “thika tenant”

would not include pucca structure because the enactment was otherwise

not dealing with the rights and liabilities of the tenant, for which the

provisions of Transfer of Property Act were required to be referred to; and

such a proposition was also in accord with Section 2(6) of the Act of 1949;

and per Section 108(p) of the Transfer of Property Act, a pucca structure

was not permissible. In Jatadhari Daw & Grandsons (supra), the Division

Bench of the High Court, even while construing the Act of 1981, proceeded

on the same lines and held that the expression “structure” in the statute did

not include permanent structure.

28.2. The Full Bench of the High Court in Lakshmimoni Das (supra)

meticulously examined variegated aspects of the matter and various

provisions of enactments and also different pronouncements while holding

that construction of kutcha structure on the lease hold land was a sine qua

non for constituting thika tenancy. We find such interpretation to be in

accord with the very object and purpose of these enactments, at least until

the enforcement of the Amendment Act of 2010 w.e.f. 01.11.2010; and the

submission of learned counsel for the respondent No. 1 based on the

doctrine of stare decisis deserves to be accepted that the interpretation of

this particular term “any structure”, which has been holding field for more

than half a century ought not to be disturbed or unsettled. In Shanker Raju

(supra) this Court had held that: -

“10. It is a settled principle of law that a judgment, which has held

the field for a long time, should not be unsettled. The doctrine of

stare decisis is expressed in the maxim stare decisis et non quieta

movere, which means “to stand by decisions and not to disturb what

is settled”. Lord Coke aptly described this in his classic English

version as “those things which have been so often adjudged ought

to rest in peace”. The underlying logic of this doctrine is to maintain

consistency and avoid uncertainty. The guiding philosophy is that a

view which has held the field for a long time should not be disturbed

only because another view is possible….”

28.3. There are several indications which unfailingly lead to the

conclusion that “any structure” which was employed in the Act of 1949 and

was further employed in the Act of 1981 and also in the Act of 2001 for the

purpose of creation of thika tenancy referred only to kutcha structure until

the year 2010. The first and foremost indication comes from the

amendment of the Act of 1949 by Act of XXIX of 1969 whereby clause (4a)

was inserted to Section 2 and then Section 10A was inserted to the

enactment which, in effect, invested a right in the thika tenant to erect a

pucca structure when using the land in question for a residential purpose

but only with permission of the Controller. If pucca structure was a part of

the definition of thika tenant in clause (5) of Section 2, Section 10A was

never required to be inserted to the Act of 1949. Then, in the Act of 1981,

even when the legislature provided for acquisition of land comprised in

thika tenancy and other lands, the principal part of the definition of thika

tenant remained the same; only the other three exclusion conditions, as

occurring in clause (5) of Section 2 of the Act of 1949 were removed.

However, the Act of 1981, as originally enacted, never provided for creation

of thika tenancy by the event of tenant erecting or acquiring by purchase

or gift, any pucca structure.

28.4. Of course, by amendment of Section 5 by the Amendment Act of

1993, it was introduced that even “other land” under lease could be

acquired but, the purpose and object of the enactment did not provide for

such a broad and all-pervading legislative fiat. This aspect of the matter

does not require any further elaboration in the present case for the

fundamental reason that claim of the appellants had only been of thika

tenancy and when they do not answer to the description of thika tenant,

there would arise no question of operation of Section 5 of the Act of 1981,

whether in its unamended form or in its amended form.

28.5. Significant it is to notice that even in the Act of 2001, as originally

enacted, the definition of thika tenancy in clause (14) of Section 2 thereof

retained more or less the same expressions as were there in the Act of 1981;

and the expression “any structure including pucca structure” came to be

inserted to this clause only by the Amendment Act of 2010. Moreover, the

Amendment Act of 2010 was given only prospective effect from 01.11.2010

and not the retrospective effect, as was earlier given to the original Section 4

of the Act of 2001. Thus, acquisition of the land comprising thika tenancy with

even erection or acquisition of pucca structure by the thika tenant came to be

provided for in specific terms by the legislature only from 01.11.2010 and not

before. As noticed, before 01.11.2010, so far as the lease in question was

concerned, the same had ceased to subsist and there was no existing lease

which could have taken the appellants within the frame of thika tenancy on

01.11.2010.

The relevant decisions of Calcutta High Court

29. Though a large number of decisions concerning the three enactments

in question, more particularly in relation to thika tenancy and the implication

of structure on the demised property, have been cited but instead of

elongating this discussion with multiple authorities, it appears appropriate to

take note of the considerations of the Full Bench of Calcutta High Court in

the case of Lakshmimoni Das (supra) wherein the Court dealt with the

provisions of the Act of 1981 as originally enacted. Therein, the Full Bench

expressed its relevant reasoning and ratio, inter alia, in the following terms: -

“43. Keeping in mind of the principle of interpretation indicated

hereinabove, an attempt should be made to ascertain what was the

mischief sought to be remedied by the impugned legislation. If the

interpretation put forth by Mr. Gupta, the learned Additional

Advocate General appearing for the State Respondents is accepted

in toto, it appears to us that the same would undoubtedly produce

palpable injustice, anomaly, contradiction and lead to absurd results

and in order to avoid such peculiar situation, a reasonable meaning

to those words should be given which does not cause any ambiguity

and/or absurdity and the mischief sought to be remedied is also

properly achieved. In this connection, the title of the impugned Act

may supply some guidance to the construction of S. 5 of the

impugned Act. Although, the title does not override the plain

meaning of the section but in case of ambiguity and doubt, the title

serves as a good guideline. The title of the impugned Act only refers

to acquisition and regulation of thika tenancy (by repealing the

Calcutta Thika Tenancy Act, 1949). Looking into the history of the

legislation and purpose of the legislation, it appears to us that the

impugned legislation is plainly to abolish the rights of the landlord

over the lands held by thika tenants which were so long governed

by the provisions of Calcutta Thika Tenancy Act, 1949. The

passage quoted from Cooley's 'A Treatise on the Constitutional

Limitations' at pages 143 and 149 since referred to by Mr. Pal

appearing for same of the petitioners may not be wholly applicable

while construing a provision of statute in our country. The legislation

in our country is not bound by the title to an Act strictly and the

legislature can travel beyond the title but at the same time

Constitution makers did not intend that the legislature will pass an

altogether different Act under the cover of a title thereby misleading

the legislators themselves and also the authority requiring to give

assent to the legislation. In our view, it should be the endeavour for

the Court to strike a balance by giving a meaning which has

connection with the title of the Act and the intention of the legislature

and the evil sought to be remedied. At the same time, the Court has

to interpret the Act in such a manner so that it may not lead to any

destructive result and/or absurd or inconsistent situation. In our

view, while interpreting the words "other lands" after the words 'thika

tenancy' the legal maxim ejusdem generis (of the same kind) and

the maxim 'noscitur a sociis' (a thing is known by its companion)

should be borne in mind.

Applying these legal maxims, it appears to us that 'other land'

appearing in S. 5 of the impugned Act must mean land falling under

the category of thika tenancy land. This general word following a

specific word must apply not to different objects of a widely differing

character, but something which can be called a class or kind of

objects. In this case, from the title, preamble of the Act, the intention

of the legislature as also on consideration of the mischief sought to

be remedied by the impugned Act it must be held that 'other land'

must be land coming within the category of thika tenancy land. If

however appears that besides the lands comprising thika tenancies

lands used as khatals and the right, title and interest of landlord in

such khatals are intended to be vested under S. 5. Lands

comprising pucca and permanent structures erected by the tenant

for user of the land for khatals and lands used for khatals held under

a lease for a period beyond twelve years cannot comprise thika

tenancy within the meaning of 'thika tenancy' under the Calcutta

Thika Tenancy Act. It also appears to us that the expression 'thika

tenancy' under the aforesaid Act has been judicially noted in various

decisions of this court as referred to by Mr. Pal and it must be

accepted that the Legislature is aware of the meaning of such

expression and has, therefore, used the expression on the basis of

the said accepted meaning. But it appears to us that S. 5 expressly

envisages vesting of khatals although all khatals may not conform

to 'thika tenancy' within the meaning of thika tenancy under the

Calcutta Thika Tenancy Act, 1949 which is repealed by the

impugned Act. In view of express reference of khatal without any

reservation in S. 5, we are inclined to hold that although the

impugned act is essentially a piece of legislation for vesting of thika

tenancy lands and temporary or kutcha structures thereon and for

regulation of such lands and structures and the title of the Act and

the provision for repealing the Calcutta Thika Tenancy Act, 1949

also conform to such intention and purpose of the impugned

legislation, khatal lands held on lease even if such lands do not

comprise thika tenancy within the meaning of thika tenancy under

the Calcutta Thika Tenancy Act also vest under S. 5. It appears to

us that most of the khatals comprise kutcha or temporary structure

and they also comprise thika tenancies within the meaning of 'thika

tenancy' under the said 1949 Act. We may also take judicial notice

that in majority cases, thika tenancies comprise bustees and/or

slums and the legislature has intended to vest thika tenancies and

structures thereon for regulating such thika tenancy lands. It

therefore appears to us that with an intention to regulate khatal

lands, along with other underdeveloped lands and structures mainly

comprising bustees or slums, the legislature has expressly included

khatals in S. 5 for the purpose of vesting of such khatals and

consequential control and regulation of khatals. We therefore

approve the interpretation of S. 5 of the impugned Act as made in

the Bench decision of this Court in Jatadhari Daw's case, Appeal

No. 239 of 1978 reported in (1986) 1 Cal HN 21. Save as aforesaid,

no other land or structure vest under the impugned Act.”

29.1. In the passing, we may also observe that the suggestions made on

behalf of the appellants and the State that the decision of Jatadhari Daw &

Grandsons (supra) has been set aside by this Court by its order dated

27.10.2004 is not correct as such. By the said order dated 27.10.2004, the

matters were remitted to the High Court, particularly in view of subsequent

legislations in the form of Amendment Act of 1993 as also the Act of 2001,

without this Court having pronounced on the question of law either way.

Similarly, the decision in Lakshmimoni Das (supra) has also not been

examined on its ratio and merits by this Court earlier.

30. Apart that we have no hesitation in giving our imprimatur to the

enunciation aforesaid, we are also at one with the observations of the High

Court in the impugned order that even after amendment of the Act of 1981

by the Amendment Act of 1993, vesting indiscriminately of every parcel of let

out land, in the broad expression “other land”, could not have been bought

about and hence, ultimately this enactment, as such, was given up and was

substituted by the Act of 2001.

Other miscellaneous but relevant factors

31. Apart from the aforesaid view taken by us, so far as the present

matter is concerned, a fundamental reason operates against the

applicability of the Act of 1981. As noticed, after coming into force of the

Act of 1981, the same was indeed challenged by the landlord in the High

Court and indisputably, operation of the enactment qua the subject

property was stayed by the High Court. The correctness or otherwise of the

order so passed by the High Court is not a matter of question before us.

The fact of the matter remains that the said Act was under total eclipse qua

the subject property pursuant to the binding order of the High Court.

Therefore, any suggestion about the operation of the said enactment and

thereby vesting of the subject property in the State pursuant to Section 5

of the Act of 1981 is rather redundant.

32. Then, the lease in question came to an end on 30.11.1993.

Thereafter, the appellants ceased to be persons liable to pay rent at

monthly or in any other periodical rate. In that position, they ceased to

answer to the definition of thika tenant within the meaning of Section 3(8)

of the Act of 1981. Similarly, they did not answer to the description of thika

tenant within the meaning of Section 2(14) of the Act of 2001. As a

necessary corollary, neither Section 5 of the Act of 1981 applied to the

tenancy in question nor Section 4 of the Act of 2001. The application made

before the Controller in the month of April, 2003 for accepting the

appellants and/or their predecessors as thika tenants was, therefore,

fundamentally misconceived and could have only been rejected.

33. It is also significant to notice that the Controller, in his detailed order

dated 01.08.2012, even after examining all the facts of the case and also

the provisions of law applicable, repeatedly held that the appellants could

not have been treated as thika tenants under the Act of 1949 or under the

Act of 1981. It was only in the last part of the impugned order dated

01.08.2012, the learned Controller abruptly picked up the decision in

Purushottam Das Murarka (supra) and held on that basis that since

construction of pucca structure was not prohibited, therefore, the applicants

could be taken as thika tenants. Such a proposition was not compatible

with the findings in the earlier part of the same order and with the statute

as also with the purport and effect of the decision in Purushottam Das

Murarka.

33.1. In the case of Purushottam Das Murarka (supra), the two major

questions had been about the period of lease with reference to the initial

period of five years and renewal of seven years; and about the effect of

thika tenant constructing or attempting to construct pucca structure on the

demised land. The period of tenancy is not relevant for the present

purpose. As regards the aspect relating to the structure, the Court noticed

the decisions in Monmatha Nath Mukherjee and Annapurna Seal (supra)

but then, observed that if during pendency of lease, a thika tenant

constructs or attempts to construct pucca structure on demised land

without permission of landlord, he does not cease to be the thika tenant.

Thus, the lessee being a thika tenant was an existing fact in said case. The

High Court has rightly observed that it was never held in Purushottam Das

Murarka (supra) that if tenant of a land would raise pucca structure, he

would automatically become a thika tenant. The conclusion drawn on the

basis of the said decision by the Controller could have only been

disapproved.

33.2. Then, the Tribunal, in its impugned order, attempted to inject

various such philosophies which were simply beside the point. In our view,

the High Court has meticulously examined the matter in its right perspective

and, with apt analysis of all the three enactments vis-à-vis the facts of the

case, has rightly concluded against the claim of the thika tenancy of the

appellants and/or their predecessors.

34. In the aforesaid view of the matter, we do not consider it necessary

to enter into any further or finer analysis of other contentions urged and

decisions cited by the learned counsel for the respective parties. In our

view, the impugned order deserves to be upheld because neither the

appellants became thika tenants under the enactments aforesaid nor there

had been any vesting of the subject property thereunder.

Conclusion

35. In summation of what has been discussed hereinabove, we could

broadly say:

1. The Full Bench decision of Calcutta High Court in Lakshmimoni

Das (supra) is affirmed.

2. The structure, as put up by the appellants and/or their

predecessors, had been pucca structure on the property in question.

3. For the structure being pucca in character and the term of lease

being 20 years, the appellants and/or their predecessors were not

thika tenants within the meaning of Section 2(5) of the Act of 1949.

4. The appellants and/or their predecessors were not thika tenants

within the meaning of the Act of 1981 for two major reasons:

a. that the structure in question was a pucca structure; and

b. that the Act of 1981 was not operative in relation to the property

in question because of the stay order passed by the High Court.

5. On the date when lease expired in the month of November, 1993,

the appellants and/or their predecessors were not thika tenants and,

therefore, the Act of 2001 does not enure to their benefit.

6. The impugned decision of the High Court, therefore, calls for no

interference.

36. Before closing, we may also take note of the fact that by way of

interim orders dated 15.04.2014 and 22.07.2014, the appellants were

directed to make payment towards occupancy charges. The appellants

have made certain deposits and by the order dated 27.08.2021, we had

directed the appellants to deposit further an amount of Rs. 20,00,000/-

(Rupees twenty lakhs) in the Registry of this Court of which, the contesting

respondents were held entitled to withdraw an amount of Rs. 16,50,000/-

(Rupees sixteen lakhs fifty thousand) by way of the occupancy charges;

and the remaining amount was ordered to be invested in a fixed deposit

with periodical renewal, to be disbursed subject to the outcome of this

appeal. The said deposited amount together with accrued interest is

ordered to be disbursed to the respondent No. 1 while we otherwise leave

it open for the said respondent in taking recourse to appropriate remedies,

strictly in accordance with law, in relation to any other claim/relief.

37. Accordingly and in view of the above, this appeal fails and is,

therefore, dismissed subject to the observations foregoing. All pending

applications also stand disposed of. No order as to costs.

……....…………………….J.

(A.M. KHANWILKAR)

……....…………………….J.

(DINESH MAHESHWARI)

NEW DELHI;

JULY 27, 2022.

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