The proviso to Section 7(1) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 does not prohibit the letting out of structures on thika tenancy land.

The case of the petitioners is that the thika tenants namely Biswanath Prosad Gupta granted lease in respect of structures standing at premises No. 9, Kalimuddin Lane to the petitioners by a Deed of Lease dated 18th of December, 1989. By the aforesaid lease only the structures mentioned in the schedule to the said lease deed were let out to the writ, petitioners for a period of 99 years with the option for renewal for a further period of 99 years. The terms of the aforesaid lease stipulate that in consideration of payment of Rs. 50,000/- at a time by the lessee petition to the lessor as aforesaid the lessees will be entitled to realise rents from the Bharatias of the said structures. In these state of things, the respondent authority viz., the Thika Controller, Calcutta by its order dated 20.8.1991 held that the aforesaid thika tenant violated the provision of Section 6(3) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 by transferring the structures comprised in thika tenancy by the aforesaid Lease Deed and accordingly terminated the thika tenancy of the said Biswanath Prosad Gupta and declared the structures standing on the said premises as vested to the State Government. The said order was challenged by the petitioners lessees in a writ petition in this Hon'ble Court by contending that the proviso to sub-section (1) of Section 7 of the said Act did not prohibit letting out of, the whole or any part of the structure standing on the thika tenancy land and also on the ground that the aforesaid order of termination of the thika tenancy of said Biswanath Prosad Gupta and consequential declaration of vesting of those structures as aforesaid were made without giving any opportunity of hearing to the affected parties.

2. This Court by an order dated 28.2.92 disposed of the writ petition by directing the respondent authority to reconsider the matter afresh by giving due notice to the petitioners lessees and their lessor and also by giving an opportunity of hearing to the parties and further by passing a reasoned order as contemplated under Section 7(2) of the said Act. Pursuant to the order of this Court the concerned respondent authority disposed of the matter by its order dated 21.5.93 which is the subject-matter of challenge in this writ petition.

3. In disposing of the said matter the concerned respondent authority held that since Section 105 of the Transfer of Property Act, 1882 provides for transfer of the immovable property by was of lease, so the aforesaid lease should be treated as the transfer of immovable property, viz., the structures standing on the disputed premises in favour of the petitioners lessee and further since sub-section (3) of Section 6 of the said Act prohibits transfer of thika tenancy right, so the thika tenancy of the said Biswanath Prosad Gupta stood determined under sub-section (2) of Section 7 of the said Act and all the structures standing thereon should vest is the State free from all encumbrances.

4. In coming to the aforesaid conclusion the concerned respondent authority lost sight of the proviso to sub-section (1) of Section 7 of the said Act and further proceeded on the misconception of Section 105 of the Transfer of Property Act. Proviso to sub-section (1) of Section 7 of the said Act does not stipulated any prohibition against letting out whole or any part of the structure standing in the thika tenancy land. Section 105 of the Transfer of Property Act provides for lease of the immovable properties which may include the structure standing on the land. Lease as defined in Section 105 of the Transfer of Property Act essentially is for the purpose of transferring the right to enjoy the immovable property in consideration of a price paid or promised for a certain time, which may in cases in perpetuity. In this particular case it is not disputed that the structures in the land in question were let out by the aforesaid lease for a period of 99 years and the terms stipulate t