The Thika Controller lacked jurisdiction under the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 to adjudicate thika tenancy rights.

Pratap Kumar Ray, J.

Heard learned Advocates appearing for the parties.

2. Assailing the judgement and order dated 4th November, 2008 passed in O.A. No. 528 of 2008 (LRTT) with O.A. No. 529 of 2008 (LRTT) by the West Bengal Land Reforms and Tenancy Tribunal, these writ applications has been filed. Those are taken up for hearing analogously.

3. Learned Tribunal below considered different points raised in the original application filed assailing the order passed by Thika Controller determining right of respondent no. 5 herein as a thika tenant and mutation of name of the alleged thika tenant and correction of record of rights accordingly.

4. In the writ application, a positive question has been raised about the jurisdiction of Thika Controller to decide thika tenancy right of any person who allegedly filed the return under the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. By the said Act of 1981, the Calcutta Thika Tenancy Act, 1941 was repealed. Under the earlier Act of 1941 as well as the Act of 1981, there is no provision for determination of thika tenancy right by adjudicating lis in between the owner and the alleged thika tenant, by the Thika Controller. Such power of adjudication to determine thika tenancy has been brought in statute being Act of 2001 which is named as the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. The relevant section is Section 5 (3) which was substituted with effect from 1st November, 2010 by the West Bengal Amendment Act XXV of 2010. Sub-section (3) of Section 5 reads such:-

“5. Incidents of tenancies in respect of lands vested in the State.

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(3) If any question arises as to whether a person is thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particular as may be considered necessary, enquire upon and decide such question.”

5. Since there was no provision earlier to adjudicate thika tenancy right, civil court had the jurisdiction to determine it. It appears from the document as filed before us particularly the order-sheet of Thika Controller with reference to Case No. G-47 to 51 of 1982-83 that the concerned case was initiated on the basis of the return filed by respondent no. 5 in terms of Rule 3(a) of the Calcutta Thika Tenancy (Acquisition and Regulation) Rule, 1982. The relevant provision of Rule 3 reads such:-

“3. Terms and conditions of occupation of land directly under the State under section 6(1).- Every thika tenant and any tenant in respect of other lands which vest under section 5, occupying any land under a landlord on the date of commencement of the Act, shall occupy such land directly under the State on the following terms and conditions:

(a) every thika tenant, or tenant as the case may be, shall furnish to the Controller a return in Form A showing the particulars of his total land within two hundred and forty days from the date of commencement of the Act. The Controller may, on a written application from such thika tenant or extend the date for furnishing the return by a period not exceeding sixty days:”

6. The condition-precedent of filing the return is vesting of the land under Section 5 Chapter II of the said Act, 1981 to the State. Under Section 6 of the said Act, 1981, thika tenant’s occupancy status came under the State in view of vesting of land under Section 5 of the said Act. Since from the records, it appears that the proceeding initiated in the year 1982-83, on the basis of the return filed by respondent no. 5 and adjudication made declaring respondent no. 5 as a thika tenant by the Thika Controller though Thika Controller at the relevant time had no jurisdiction under the Act 1981 to adjudicate the issue, the impugned order before the learned Tribunal passed by the Thika Controller on 31st Janu