1. Pucca structures and long-term leases exclude thika tenancy under earlier Acts — 2010 amendment is prospective — lease expiry precludes status as thika tenant under the 2001 Act. (Para 24 , 26 , 32 )
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2022 Supreme(SC) 678
SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, JJ.
Nemai Chandra Kumar (D) Thr. Lrs. & Ors. - Appellants
Versus
Mani Square Ltd. & Ors. - Respondents
Civil Appeal No. 2402 of 2015
Decided On : 27-07-2022
Advocates Appeared:
For the Appellant :Ranjeeta Rohatgi, Advocates.
For the Respondent:Pranaya Goyal, Chanchal Kumar Ganguli, Madhumita Bhattacharjee, Anant, Shekhar Kumar, Advocates.
For the Appellant :Ranjeeta Rohatgi, Advocates.
For the Respondent:Pranaya Goyal, Chanchal Kumar Ganguli, Madhumita Bhattacharjee, Anant, Shekhar Kumar, Advocates.
The court held that under the 1949 and 1981 Acts, 'any structure' refers to kutcha/temporary structures. Pucca structures were only recognized prospectively from 2010 under the 2001 Act. Thus, tenants with pucca structures or leases exceeding 12 years (under the 1949 Act) are not thika tenants.
Headnote:(A) Calcutta Thika Tenancy Act, 1949 - Section 2(5) - Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 - Sections 3(8) and 5 - West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 - Section 2(14) - Dispute regarding status of thika tenancy - High Court concluded that present appellants did not qualify as thika tenants due to erection of pucca structure violating the definition therein - Status of tenant not merely based on prior claim under previous enactments but also legal definitions post-efficacy of new legislations - Appeals dismissed with costs awarded to the respondents. (Paras 5, 9, 12, 14, 35)
Legal Category Hierarchy
- property law
-
administrative law
-
statutory interpretation
- prospective versus retrospective application
-
statutory interpretation
Table of Contents
2. Thika tenancy requires kutcha structures unless residential pucca structures are permitted; prospective amendments including pucca structures cannot benefit occupants whose leases expired prior to enforcement. (Para 26 )
3. Appeal dismissed — High Court judgment upheld — claim for thika tenancy rejected — occupancy charges ordered to be disbursed to the respondent. (Para 34 , 35 , 36 , 37 )
4. Does the expression any structure in the thika tenancy enactments include pucca structures?
Until the 2010 Amendment, any structure was interpreted as kutcha or temporary structures. Pucca structures were only recognized if constructed for residential purposes with the Controller's permission under the 1949 Act. (Para 24 )
5. Does a registered lease for a period exceeding twelve years disqualify a person from being a thika tenant?
Yes, under the Act of 1949, persons holding land under a registered lease for a period of not less than twelve years are specifically excluded from the definition of a thika tenant. (Para 16 )
6. Can a person whose lease has expired by efflux of time be declared a thika tenant?
No, once a lease expires, the occupant becomes a trespasser or tenant at sufferance. Since they are no longer liable to pay rent under a lease, they fail the foundational requirement of a thika tenant. (Para 32 )
JUDGMENT :
Dinesh Maheshwari, J.
| Table of Contents | |||
| Preliminary | |||
| Statutory Provisions | |||
| Background and Factual Matrix | |||
| Findings and conclusion of the Controller | |||
| Findings of the Tribunal | |||
| Findings of the Calcutta High Court | |||
| Previous decision of this appeal and review thereof | |||
| Rival Contentions | |||
| The Appellants | |||
| The State | |||
| The respondent No. 1 | |||
| Analysis | |||
| The Structure in question | |||
| The statutory scheme and the import of three enactment with their amendments | |||
| The relevant decisions of Calcutta High Court | |||
| Other miscellaneous but relevant factors | |||
| Conclusion | |||
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 Tenancy,1[Hereinafter also referred to as ‘the Controller’], as also the order dated 18.12.2013 as passed by the West Bengal Land Reforms and Tenancy Tribunal at Calcutta,2[Hereinafter also referred to as ‘the Tribunal’].
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.
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[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].
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[Hereinafter also referred to as ‘the Act of 1949’], 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.
Accordingly, an Ordinance was promulgated staying all decree or orders for eviction of t
