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1975 Supreme(Cal) 25
High Court Of Calcutta
Salil Kumar Datta
P.K.GANGULY - Appellant
Versus
REKHA DEBI - Respondent
Civil Rule 2747 Of 1973
Decided On : 01/24/1975
BEJOY BHOSE, Dilip Kumar Benarjee, MIHIR CHAKRAVARTY, NONI COOMAR CHAKRAVARTI, P.N.MITTER, RATHINDRA NATH BHATTACHARYYA
The appellate authority under the Calcutta Thika Tenancy Act, 1949 has the power to reconsider the question of partial eviction afresh and to take additional evidence for that purpose. The tenants are not required to give their consent to partial eviction until the landlord's requirement and its extent have been determined. The appellate authority's decision to direct the landlord to construct his building on a particular part of the land, keeping the remaining part in occupation of the thika tenant, is reasonable and supported by the evidence.
Headnote:
CALCUTTA THIKA TENANCY ACT, 1949 - SECTION 3(1), 3(2), 3(3), 3(4), 27(4) - PARTIAL EVICTION - LANDLORD'S REQUIREMENT FOR OWN OCCUPATION - SUBSTANTIAL SATISFACTION - CONSENT OF TENANT - INTERPRETATION OF STATUTORY PROVISIONS - POWERS OF APPELLATE AUTHORITY - ADDITIONAL EVIDENCE.
Fact of the Case:
Landlord sought to evict thika tenants from a plot of land for construction of his residential house. The Controller allowed the application, finding that the landlord had no other house in Calcutta, bona fide required the land for his own occupation, and that the tenants did not consent to partial eviction. The tenants appealed, and the appellate authority remanded the matter for consideration of the question of partial eviction and the landlord's requirement for own occupation in light of a Will left by the landlord's father. On remand, the appellate authority allowed partial eviction, finding that the landlord's requirement could be substantially satisfied by ejecting the tenants from a demarcated area measuring 2800 sq. ft. on the western portion of the disputed holding.
Finding of the Court:
The Calcutta High Court held that the appellate authority had the power to reconsider the question of partial eviction afresh and to take additional evidence for that purpose. The Court also held that the tenants were not required to give their consent to partial eviction until the landlord's requirement and its extent had been determined. The Court further held that the appellate authority's decision to direct the landlord to construct his building on the western part of the land, keeping the eastern part in occupation of the thika tenant, was reasonable and supported by the evidence.
Issues: 1. Whether the appellate authority had the power to reconsider the question of partial eviction afresh and to take additional evidence for that purpose. 2. Whether the tenants were required to give their consent to partial eviction before the landlord's requirement and its extent had been determined. 3. Whether the appellate authority's decision to direct the landlord to construct his building on the western part of the land, keeping the eastern part in occupation of the thika tenant, was reasonable and supported by the evidence.
Ratio Decidendi: 1. The appellate authority has the power to reconsider the question of partial eviction afresh and to take additional evidence for that purpose, as it has the same powers as the Controller, including the power to take evidence and make inquiries. 2. The tenants are not required to give their consent to partial eviction until the landlord's requirement and its extent have been determined, as the question of partial eviction arises only after such determination. 3. The appellate authority's decision to direct the landlord to construct his building on the western part of the land, keeping the eastern part in occupation of the thika tenant, was reasonable and supported by the evidence, as it took into account the landlord's requirement, the substantial satisfaction of that requirement by partial eviction, and the landlord's desire to build his house close to his father's house.
Final Decision: The Calcutta High Court discharged the rule challenging the appellate authority's order, holding that there was no scope for interfering with the judgment impugned.
( 1 ) THIS rule was obtained by the landlord the petitioner in this Court on an application under Article 227 of the Constitution against an order dated May, 31, 1973 passed by the Chief Judge, Small Causes Court, Calcutta as the appellate authority under the Calcutta Thika Tenancy Act, 1949 in T. T. Appeal No. 1 of 1971. The facts are that the landlord on March 4, 1970 initiated proceedings for ejectment of the thika tenants the opposite parties before us under Section 5 of the Act in respect of a plot of land being portion of premises No. 39-B, Creek Row, Calcutta, on service of due notice as required under Section 4. The ground for ejectment was that the landlord, who had no other house or any other land in the city, required the said land for construction of his residential house as he was shortly going to retire from Government service and intended to reside therein with his family near his relatives and in a quiet surrounding in view of his heart disease and also for education of his children. The proceeding was registered as T. T. Case No. 2 of 1970 before the learned Judge Third Bench, Small Causes Court, Calcutta as the Thika Controller and was contested by the opposite parties. On a trial on evidence the learned Judge held that the notice was valid, legal and sufficient and was duly served. It was also found that the landlord did not own any house in Calcutta so that provisions of Sub-section (2) of Section 3 were not applicable. It was further found that the landlord bona fide required the disputed land for his own occupation to build his residential house thereon. The Controller further found that the tenants did not signify their consent to eviction from a part of the holding and from Ext. 9 a letter from the Corporation, and from plans it was clear that the appellant's requirement could not be substantially satisfied by ejecting the tenants from a part of the holding or that the proposed building could be constructed without dismantling the existing constructions of the tenants. The application of the landlord was accordingly allowed by order dated December 19, 1970 and the landlord was made entitled to recover possession on payment of compensation as would be agreed or determined by the Controller.
( 2 ) THE tenants preferred an appeal therefrom which was dismissed by the Chief Judge as the appellate authority by order dated August 30, 1971 and the judgment and order of the Controller was affirmed.
( 3 ) AGAINST the appellate order the tenants moved this Court under Article 227 of the Constitution and obtained a rule being C. R. No. 3197 of 1971 which was made absolute on June 7, 1972 to the extent indicated in the judgment. It was held that the notice of the ejectment was valid, legal and sufficient and was duly served. It was also held that the landlord's requirement for own occupation could be secured by building on the land and discontinuing letting out to thika tenants. In view, however, of the allegation that after the death of his father who had a residential house at Calcutta, there was a change of circumstances disentitling the landlord the relief prayed in this proceeding, the Court felt that the question should be decided by the appellate authority in the light of the provisions in the Will left by the father. As to the question of partial eviction, the Court found that the appellate authority did not consider the matter at all and this was also to be considered by the said authority as the question of own use and occupation depends on the decision on partial eviction. The Court set aside the judgment and order of the appellate authority with following directions:"the matter is now remitted back to the appellate authority which will give opportunities to the parties to adduce proper evidence only to prove the will and then proceed to decide the two points as discussed above on the evidence and materials on record and also additional evidence that may be given as indicated and
