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2003 Supreme(Cal) 237
High Court Of Calcutta
Asit Kumar Bisi
PRAFULLA KUMAR ROY CHOWDHURY - Appellant
Versus
BHARAT PETROLEUM CORPORATION LTD - Respondent
C. S. 900 Of 1986
Decided On : 05/13/2003
BIMAL KRISHNA CHATTERJI, D.BASU, P.K.MALICK, S.K.KAPOOR, SABYASACHI CHOWDHURY
The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 applies only to temporary structures and not to permanent structures.
Headnote:
CALCUTTA THIKA TENANCY (ACQUISITION AND REGULATION) ACT, 1981 - VESTING OF LANDS - EFFECT - LEASE OF LAND - CONSTRUCTION OF LEASE DEED - OPTION OF RENEWAL - EXERCISE OF OPTION - CREATION OF FRESH LEASE - NECESSITY - HOLDING OVER - SECTION 116 OF THE TRANSFER OF PROPERTY ACT, 1882 - APPLICABILITY - EVICTION OF TENANT - RIGHT OF LANDLORD - OCCUPATION CHARGES AND MESNE PROFITS - ENTITLEMENT OF LANDLORD.
Fact of the Case:
The suit premises were leased to the defendant for a period of 25 years with an option of renewal for a further period of 5 years. The defendant exercised the option of renewal and continued in possession of the suit premises after the expiry of the original lease term. The plaintiff, the owner of the suit premises, filed a suit for eviction of the defendant and for recovery of possession, occupation charges, and mesne profits.
Finding of the Court:
The Court held that the suit premises did not vest in the State under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, as the structures on the demised premises were permanent and not temporary. The Court further held that the defendant continued in possession of the suit premises in terms of the renewal clause of the original lease deed and the relationship between the plaintiffs and the defendant was governed by the Transfer of Property Act, 1882. The Court also held that the defendant did not hold over a monthly tenancy under section 116 of the Transfer of Property Act and was not entitled to any protection under the West Bengal Premises Tenancy Act, 1956.
Issues: 1. Whether the suit premises vested in the State under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981? 2. Whether the defendant continued in possession of the suit premises in terms of the renewal clause of the original lease deed? 3. Whether the relationship between the plaintiffs and the defendant was governed by the Transfer of Property Act, 1882? 4. Whether the defendant held over a monthly tenancy under section 116 of the Transfer of Property Act? 5. Whether the defendant was entitled to any protection under the West Bengal Premises Tenancy Act, 1956? 6. Whether the plaintiffs were entitled to get decree for possession of the suit premises by evicting the defendant therefrom? 7. Whether the plaintiffs were entitled to get decree for occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986 against the defendant? 8. Whether the plaintiffs were entitled to get decree for mesne profits at the rate of Rs. 1350/- per month from 15th August, 1986 till delivery of vacant possession of the suit premises to them?
Ratio Decidendi: 1. The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 applies only to temporary structures and not to permanent structures. The structures on the demised premises were permanent and therefore the suit premises did not vest in the State under the provisions of the Act. 2. The defendant exercised the option of renewal of the lease and continued in possession of the suit premises after the expiry of the original lease term. The renewal of the lease was done in terms of the renewal clause of the original lease deed and therefore the relationship between the plaintiffs and the defendant was governed by the Transfer of Property Act, 1882. 3. The defendant did not hold over a monthly tenancy under section 116 of the Transfer of Property Act as there was no intention on the part of the parties to create a new tenancy.
Final Decision: The Court decreed the suit in favor of the plaintiffs and granted them possession of the suit premises, occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986, and mesne profits at the rate of Rs. 1350/- per month from 15th August, 1986 till delivery of vacant possession of the suit premises to them.
( 1 ) IN the instant suit instituted against the defendant Bharat Petroleum Corporation Ltd. the present plaintiffs have sought decree for possession of premises No. 3 Ganesh Chandra Avenue, Calcutta (hereinafter referred to as the suit premises), damages or occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986, mesne profits at the rate of Rs. 1,000/- per day from 15th August, 1986 till delivery of vacant possession of the suit premises to the plaintiffs and some other incidental reliefs.
( 2 ) BRIEFLY stated the case set out in the plaint is that the original plaintiff Binapani Roy Chowdhury was the owner of the suit premises. By a registered indenture of lease dated 17th September, 1956, the suit premises had been leased out to M/s. Burmah Shell Oil Storage and Distributing Co. for a period of 25 years with effect from 15th August, 1956. The said lease deed contains a clause for option of renewal for a period of 5 years after expiry of the term of the original lease. The original plaintiff handed over possession of the suit premises to the said Burmah Shell Oil Storage and Distributing Co. in terms of the said lease deed on or before 15th August, 1956. In the month of January, 1976 the said Burmah Shell Oil Storage and Distributing Co. had been taken over by the Central Government of India under the Burmah Shell (Acquisition of Undertaking in India) Act, 1976, with effect from 24th January, 1976. Subsequently, Bharat Petroleum Corporation Ltd. had taken over the assets and liabilities of Burmah Shell Oil Storage and Distributing Co. The said period of 25 years expired on 14th August, 1981 and defendant No. 1 expressed the desire to exercise the option for taking the right of tenancy for 5 years in terms of the original lease deed. Defendant No. 1 also informed that it would enter into a fresh written agreement for the said 5 years but did not do so. Since July, 1982 defendant No. 1 failed and neglected to pay the licence fee or occupation charges and is now denying the right, title and interest of the plaintiff in respect of the suit premises. By the written notice dated 18th April, 1983 the original plaintiff terminated the licence or any relationship or right of the defendant to use or occupy the suit premises and/or rescinded the agreement between the plaintiff and the defendant for occupation of the suit premises. The defendant is claiming to be a tenant of the State of West Bengal under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. It has been alleged by the plaintiff that the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 has not affected the right, title and interest of the plaintiff in respect of the suit premises and that the rights and liabilities of the parties are governed by the Transfer of Property Act, 1882. In any event the period of option to renew the lease in terms of the lease deed dated 17th September, 1956 expired on 14th August, 1986 and as such the plaintiff is entitled to get vacant possession of the suit premises. Since the defendant is in wrongful and illegal occupation of the suit premises, the plaintiff is also entitled to get measure profits at the rate of Rs. 1,000/- per day for the use and occupation of the suit premises by the defendant. The original plaintiff Binapani Roy Chowdhurani died during pendency of the suit and after her demise the present plaintiffs became the owner of the suit premises each in equal shares.
( 3 ) THE defendant Bharat Petroleum Corporation Ltd. has contested the suit by filing the written statement and two additional written statements wherein the material allegations contained in the plaint have been denied. The specific case of the contesting defendant may briefly be stated thus. The tenancy in the suit premises was in nature of Thika Tenancy and/or was essentially a Thika Tenancy. The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 ca
