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2004 Supreme(Cal) 288
High Court Of Calcutta
D. K. SETH, RAJENDRA NATH SINHA
BHARAT PETROLEUM CORPORATION LTD. - Appellant
Versus
PRAFULLA KUMAR ROYCHOWDHURY - Respondent
A. P. D. T. 13 Of 2003
Decided On : 04/22/2004
DIPAK BASU, Maya Bhadra, P.K.MULLICK, S.N.CHAUDHARY
A tenant cannot claim to be a thika tenant and premises tenant in the same breath. The claim would be redundant in view of the characteristic of the two kinds of tenancies.
Headnote:
THIKA TENANCY - VESTING OF PROPERTY - EFFECT OF SECTION 116 OF THE TRANSFER OF PROPERTY ACT, 1882 - PREMISES TENANCY - ALTERNATIVE CASE - MAINTAINABILITY - DOCTRINE OF ELECTION - MESNE PROFITS - ENQUIRY.
Fact of the Case:
The defendant/appellant claimed that with the enactment of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (1981 Act), the suit land vested in the State under section 5 of 1981 Act and the defendant/appellant became a thika tenant under the State. Alternatively, it claimed that by reason of payment and acceptance of rent after the expiry of the period of lease in the absence of any renewal or execution of fresh lease, the defendant/appellant became a premises tenant governed under the West Bengal Premises Tenancy Act (WBPT Act).
Finding of the Court:
1. The suit land did not vest in the State under the 1981 Act and the defendant/appellant was not a thika tenant. 2. The defendant/appellant was not a premises tenant under the WBPT Act as it had not complied with the provisions of the Act. 3. The defendant/appellant was estopped from claiming the benefit of the WBPT Act as it had elected to claim the benefit of the 1981 Act. 4. The mesne profits granted by the learned single Judge were set aside and the case was remanded for an enquiry under Order 20 rule 12 of the Code of Civil Procedure, 1908.
Issues: 1. Whether the defendant/appellant became a thika tenant under the State by reason of the enactment of 1981 Act? 2. Whether the defendant/appellant became a premises tenant governed by the WBPT Act by reason of its holding over under section 116 of the Transfer of Property Act, 1882?
Ratio Decidendi: 1. The decision in a previous proceeding between the plaintiff and the State of West Bengal in which the defendant/appellant was a party, holding that the property was outside the purview of and therefore did not vest in the State under the 1981 Act, was binding on the State and the plaintiff. 2. The defendant/appellant could not claim to be a thika tenant under the State as the land had not vested in the State. 3. The defendant/appellant could not claim to be a premises tenant under the WBPT Act as it had not complied with the provisions of the Act. 4. The defendant/appellant was estopped from claiming the benefit of the WBPT Act as it had elected to claim the benefit of the 1981 Act.
Final Decision: The appeal was dismissed subject to the decision in the cross objection. The cross-objection was allowed to the extent that the part of the decree with regard to mesne profit was set aside and the suit was remanded only for the purpose of enquiry under Order 20 rule 12 for determining mesne profit.
( 1 ) THIS appeal arises out of the judgment and decree dated 13th May 2003 passed in C. S. No. 900 of 1986 by the learned single Judge decreeing the suit for recovery of possession. One Smt. Binapani Roy Chowdhury, the original plaintiff, executed a registered Deed of Leased dated 17th of September 1956 in respect of the land to the defendant/appellant for a period of 25 years effective from 15th August 1956 (expiring on 14th August 1981) with an option for renewal for a period of 5 years. In the schedule of the deed, the property was described as vacant land. Under the terms of the lease, the defendant/appellant erected structure on the land. On the expiry of 25 years, the defendant/appellant expressed its desire to exercise option for renewal of the lease for a term of 5 years informing the plaintiff/respondent that a deed for renewal of the lease would be executed. Ultimately, no deed of renewal of lease was executed. Since July 1982, the defendant/appellant stopped payment of license fee or occupation charge and denied the right title interest of the plaintiff in the property. The said Smt. Binapani Roy Chowdhury, the original plaintiff, terminated the tenancy and filed the suit for eviction and recovery of possessions as well as for mesne profits. On the death of Smt. Binapani Roy Chowdhury during the pendency of the suit, the present plaintiff/respondent became the owner and was substituted in the present suit. "1. 1. The defendant/appellant set up a claim that with the enactment of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (1981 Act) commencing from 18th of January 1982, the suit land vested in the State under section 5 of 1981 Act and the defendant/appellant became a thika tenant under the State. Alternatively, it claimed that by reason of payment and acceptance of rent after the expiry of the period of lease in the absence of any renewal or execution of fresh lease, the defendant/appellant became a premises tenant governed under the West Bengal Premises Tenancy Act (WBPT Act ). The notice purporting to terminate the tenancy was, therefore, invalid. 1. 2. This suit has since been decreed holding inter alia that the defendant/appellant was not a thika tenant and the 1981 Act has no manner of application. Similarly, it was further held that the defendant/appellant was not a premises tenant under the WBPT Act. While the decreeing the suit, it had also granted mesne profits at the rate of rent last paid. The plaintiff/respondent filed a cross-objection seeking relief on the question of mesne profits. "submission by counsel:
( 2 ) THE learned counsel for the respective parties had advanced long and erudite submissions on various points and led us through the materials on record and had discussed each of the question in threadbare. In our view, we are not called upon to answer all the question argued. We will confine ourselves only to the principal issues which would be relevant for our purpose instead of dealing with all the arguments spread over to various filed advanced by the respective counsel. Issues to be answered:
( 3 ) THE issues can be divided broadly in two principal issues - one, whether the defendant/appellant became a thika tenant under the State by reason of the enactment of 1981 Act and the other, in the alternative, whether the defendant/appellant became a premises tenant governed by the WBPT Act by reason of its holding over under section 116 of the Transfer of property Act (TP Act ). These two broad issues can be split into various sub-issues as dealt with by the respective counsel. "3. 1. Apart from the above two broad issues, a secondary issue as to the maintainability of the suit before the Ordinary Original Civil Jurisdiction of the Court was taken on two ground: pecuniary and subjective, viz. (i) that the valuation of the suit had since been enhanced to attract the jurisdiction of this Court and that the suit was not correctly valued; (ii) in view of sections 7
