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

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


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
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
2
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
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’.
4
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;
or
(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
(c) who holds such land under that another person and uses 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
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
(c) has obtained sanction of a building plan to erect the pucca
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;”
6
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’.
7
as ‘the Calcutta Thika and Other Tenancies and Lands (Acquisition and
Regulation) Act, 1981’
7
.
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.
8
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.-
*** *** ***
9
(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;
(c) other lands not covered by
clauses (a) and (b) held under a
written lease or otherwise,
including open areas, roads,
passages, tanks, pools and
drains;
10
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’.
11
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’.
12
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.”
13
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: -
14
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’.
15
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.
16
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
17
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
18
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.
19
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
20
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
21
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
22
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 &
23
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”
24
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
25
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
26
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
27
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)
28
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.
29
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
30
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,
31
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.
32
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
33
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.
34
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,
35
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.
36
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
37
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;”
38
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).
39
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
40
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.
41
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
42
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
43
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
44
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
45
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.
46
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.
47
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
48
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
49
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
50
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,
51
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.
52
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.
53
(c) Sub-sections (2) and (3) of S. 8 of the impugned Act and R. 5,
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.
54
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
55
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
56
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.
57
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
58
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.
59
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
60
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
61
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
62
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.
63
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
64
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
65
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:
66
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
67
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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