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2014 Supreme(Cal) 268
IN THE HIGH COURT AT CALCUTTA
JYOTIRMAY BHATTACHARYA AND ISHAN CHANDRA DAS, JJ.
Smt. Maya Sarkar
Versus
The Controller of Calcutta Thika Tenancy & Ors.
W.P.L.R.T. 153 of 2014
Decided on : 4th June, 2014
For the Appellants : Mr. Jiban Ratan Chatterjee, Mr. Gopal Chandra Ghosh, Mr. Sibasis Ghosh, Mr. Dwarika Nath Mukherjee.
For the Respondent Nos. 4, 5, 6, 8 & 9.: Mr. Animesh Mukherjee, Mr. Abdul Alim.
For the KMC : Mr. Alok Kr. Ghosh, Mr. Swapan Kr. Debnath.
For the State : Mr. Sadananda Ganguli.
The Thika Controller lacks jurisdiction to determine whether a person is a Thika Tenant under the landlord or not, as this jurisdiction is exclusively vested with the Civil Court under the relevant Acts.
Headnote:
THIKA TENANCY - JURISDICTION - SECTION 5(4), WEST BENGAL THIKA TENANCY (ACQUISITION & REGULATION) ACT, 2001; SECTION 6(3), CALCUTTA THIKA TENANCY (ACQUISITION & REGULATION) ACT, 1981 - Thika Controller lacks jurisdiction to determine whether a person is a Thika Tenant under the landlord or not.
Fact of the Case:
A dispute arose between the writ petitioner (landowner) and the private respondents (alleged thika tenants) regarding the thika tenancy rights in the disputed premises. The Municipal Corporation requested the Thika Controller to decide the status of the premises, leading to Misc. Case No. 23 of 2007 before the Thika Controller, Calcutta Thika Tenancy. The Thika Controller held that the disputed land vested in the State free from encumbrances under Section 5 of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, and Section 4 of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. The Tribunal affirmed this decision in O.A. No. 2574 of 2008 (LRTT). The landowner challenged these decisions in the instant writ petition.
Finding of the Court:
The court held that the Thika Controller lacked jurisdiction to decide whether a person is a Thika Tenant under the landlord or not. This jurisdiction was exclusively vested with the Civil Court under both the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, and the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. Therefore, the proceedings before the Thika Controller and the subsequent order by the Tribunal were declared null and void.
Issues: 1. Whether the Thika Controller had jurisdiction to determine whether a person is a Thika Tenant under the landlord or not. 2. Whether the order of the Thika Controller and the subsequent order of the Tribunal were valid.
Ratio Decidendi: 1. Inherent lack of jurisdiction cannot be cured even by consent of parties. 2. The jurisdiction to decide whether a person is a Thika Tenant under the landlord or not was exclusively vested with the Civil Court under the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981, and the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001. 3. The initiation of the proceeding before the Thika Controller was illegal, and the subsequent orders by the Thika Controller and the Tribunal were null and void.
Final Decision: The court allowed the writ petition and set aside the orders of the Thika Controller and the Tribunal.
Jyotirmay Bhattacharya, J.
A miscellaneous case being Misc. Case No. 23 of 2007 was started before the Controller, Thika Tenancy on 7th May, 2007 as per the request made by the Municipal authority of Calcutta Municipal Corporation by its letter dated 11th April, 2005, whereby the Thika Controller was requested to decide the status of the premises in question.
As a matter of fact, such a request was made by the Municipal authority to the Controller, Thika Tenancy as a dispute cropped up between the writ petitioner (land owner) and the private respondents (alleged thika tenants) as to thika tenancy right of the private respondents in respect of the premises in question. Both the writ petitioner and the private respondents participated in the hearing before the Controller, Calcutta Thika Tenancy and ultimately the said proceeding was disposed of by the Controller by declaring that the disputed land in question including open areas and roads were deemed to have been vested in the State along with the interest of the landlords therein, free from all encumbrances with effect from 13th January, 1982 by operation of Section 5 of Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 (since repealed) and Section 4 of West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001.
Thus, it was held therein that Smt. Bimala Bala Dasi will continue to be recorded as Thika Tenant even after the alleged transfer was effected in respect of certain portion of the premises in question as because no transfer was permissible under Section 5(4) of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 and/or under Section 6(3) of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981. So far as the other applicant was concerned, it was held that though the applicant 2nd party claimed himself to be grand child of the Thika Tenant Jamini Kr. Singha but inheritance of the said Thika Tenancy Right by succession through Jamani Kr. Singha has not been established.
It was thus, held that the Thika Tenancy will continue to be recorded in the name of Estate Sri Jamini Singha and Ground Rent will be realised accordingly till disposal of the succession claim, in the respective portion, area and location of the premises in question.
Being aggrieved and dissatisfied with the said order of the Thika Controller, the writ petitioner (landowner) filed a Tribunal application before the West Bengal Land Reforms and Tenancy Tribunal. The said Tribunal application which was registered as O.A. No. 2574 of 2008 (LRTT), was ultimately dismissed on contest on 6th May, 2014 and thus, the order of the Thika Controller was affirmed in the said Tribunal application.
The instant writ petition is directed against the said order of the Learned Tribunal at the instance of the petitioner viz. the owner of the land in question.
A question has cropped up as to the validity and/or legality of the judgement and/or order passed by the Thika Controller in the aforesaid miscellaneous case.
It is contended by Mr. Chatterjee, Learned senior counsel appearing for the petitioner that Thika Controller was not vested with the jurisdiction to decide the dispute as to whether a person is a Thika Tenant under the land owner in respect of any property or not either under the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 or under the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001.
It is further contended that such jurisdiction to decide the dispute as to whether a person is a Thika tenant under the landlord or not under both the aforesaid Acts, was exclusively vested with the Civil Court and it is none but the Civil Court having jurisdiction can resolve such dispute.
Mr. Chatterjee thus, contends that when the Thika Controller was inherently lacking such jurisdiction to decide such dispute, the order passed by the Thika Controller becomes nullity. He further contends that consequently the order passed by the Learned Tribunal affirming
