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IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya and Ishan Chandra Das, JJ.
Mani Square Limited and Another - Petitioners
Versus
State of West Bengal and Others - Respondents
W.P.L.R.T 325 of 2013
Decided on : 10-03-2014
For the Petitioner:Saktinath Mukherjee, Senior Advocate, Abhrajit Mitra, Arindam Banerjee, Debanjan Mandal, Biswajit Kumar, Shruti Swaika, Advocates.
For the State :Ashok Banerjee, Senior Advocate, Susovan Sengupta, Ramchandra Guchhait, Advocates.
For the Respondent:Jayanta Mitra, Senior Advocate, Mainak Bose, Santanu Chatterjee, Abha Aley, Advocates.
Headnote:
THIKA TENANCY - VESTING OF LANDLORD'S INTEREST - WEST BENGAL THIKA TENANCY (ACQUISITION AND REGULATION) ACT, 2001 - INTERPRETATION - EFFECT OF AMENDMENT - APPLICABILITY OF SAVING CLAUSE - VALIDITY OF ORDER DECLARING PRIVATE RESPONDENTS AS JOINT THIKA TENANTS - ANALYSIS OF RELEVANT PROVISIONS - WRIT PETITION ALLOWED.
Fact of the Case:
Petitioner challenged the judgment and order passed by the West Bengal Land Reforms and Tenancy Tribunal affirming the order of the Controller, Calcutta Thika Tenancy, declaring Badri Narayan Kumar, since deceased and Nimai Chandra Kumar were the Thika Tenants in the said premises and after expiry of Badri Narayan Kumar on 6th July, 2006 , Smt. Jharna Kumar, Debashis Kumar, Smt. Sanchita Paul, Sudipta Kumar and Smt. Jyostna Roy along with Shri Nimai Chandra Kumar were declared as joint thika tenants.
Finding of the Court:
1. The Controller and the Tribunal were not justified in holding that the private respondents were thika tenants in respect of the petitioners' said premises and the landlord's interest in the said premises vested with the State under the Act of 2001 with effect from 18th January 1982. 2. The impugned order passed by the Tribunal is thus set aside.
Issues: 1. Whether the original lessees can be regarded as thika tenants under the Calcutta Thika Tenancy Act, 1949? 2. Whether the original lessees can be regarded as thika tenants under the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981? 3. Whether the landlord's interest in the said premises vested with the State under the Act of 2001 with effect from 18th January 1982?
Ratio Decidendi: 1. The lessees cannot be regarded as thika tenants within the meaning of thika tenant as defined in Section 2(5) of the said Act of 1949 as the lease was for a period of more than 12 years and no Kutcha structure was constructed by the lessees in the demised premises. 2. The lessees cannot be regarded as thika tenants under the said Act of 1981, as they did not raise any kutcha structure and/or temporary structure on the demised land. 3. The landlord's interest in the said premises never vested in the State under the said Act of 1981 as the operation of the Act of 1981 in respect of the petitioners' property was stayed by this court, and the private respondent also did neither submit any return under 1981 Act claiming their tenancy under the State nor did they ever claim the landlord's interest vested under the said Act. 4. The landlords' interest in the said premises could not have vested in the State by treating the land comprised in the petitioners' premises as thika tenancy land as the first part of the requirement of Section 2(4) of the said Act is not fulfilled in the instant case.
Final Decision: The writ petition is allowed and the impugned order passed by the Tribunal is set aside.
Jyotirmay Bhattacharya, J.
This writ petition is directed against the judgment and/or order dated 18th November, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A No. 2833/12 (LRTT) affirming the order of the Controller, Calcutta Thika Tenancy passed on 8th August, 2012 in Misc. Case No. 89 of 2010 at the instance of the writ petitioner who was the appellant before the Tribunal. By the order dated 8th August, 2012 the Controller, Calcutta Thika Tenancy declared that Badri Narayan Kumar, since deceased and Nimai Chandra Kumar were the Thika Tenants in the said premises and after expiry of Badri Narayan Kumar on 6th July, 2006 , Smt. Jharna Kumar, Debashis Kumar, Smt. Sanchita Paul, Sudipta Kumar and Smt. Jyostna Roy along with Shri Nimai Chandra Kumar were declared as joint thika tenants. The conclusion which was so drawn by the Controller, Calcutta Thika Tenancy was contrary to his findings about their Thika Tenancy Right in respect of the premises in question i.e., premises No. 195, Picnic Garden Road, Kolkata- 700039 (hereinafter referred to as the said premises). Though the Controller, after considering the various provisions of the Calcutta Thika Tenancy Act, 1949, Calcutta Thika and Other Tenancies and Land(Acquisition and Regulation) Act, 1981 and the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001, unhesitatingly held that the Kumars could not be declared as Thika Tenants within the meaning of Thika Tenant as defined in Section 2 (14) of the said Act of 2001 and the said premises cannot qualify as thika land within the meaning of Section 2 (15) of the said Act of 2001 and neither the Calcutta Thika Tenancy Act, 1949 nor the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 nor Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001 nor any Rules framed thereunder could ever be applicable to the said premises, but still then in the concluding part of the order, the Controller, Calcutta Thika Tenancy abruptly declared those Kumars as Thika Tenants in respect of the said premises by relying upon a decision of this Hon'ble Court in the case of Purushottam Das Murarka v. Harendra Krishna Mukherjee, reported in 79 C.W.N 852 as the Controller found that they made pucca brick wall in the said premises and construction of such pucca brick wall, according to the Controller does not exclude them from the definition of Thika Tenancy.
2. Being aggrieved by the said judgement and/or order of the Controller, Calcutta Thika Tenancy dated 8th August, 2012 passed in Misc. Case No. 89 of 2010, the writ petitioners herein filed an original application challenging the said order of the Controller before the West Bengal Land Reforms and Tenancy Tribunal. The said proceeding which was registered as O.A No. 2833/12 (LRTT) was dismissed on contest on 18th November, 2013 by holding, inter alia, that the order which was impugned in the said original application was found to be impeccable. Thus, order of the Controller, Calcutta Thika Tenancy was affirmed by the Tribunal by holding that the Controller rightly declared the said property as thika property with effect from 18th August, 1982. The legality and/or propriety of the said order of the Tribunal is under challenge before us at the instance of the writ petitioners who claim themselves as the owner of the said property.
3. Let us now consider as to how far the Controller, Calcutta Thika Tenancy and the West Bengal Land Reforms and Tenancy Tribunal were justified in declaring the said premises as thika tenancy property and the private respondent Nos. 3-15 are joint thika tenants in respect of the said premises.
4. Exhaustive arguments were made by Mr. Mukherjee, Learned Senior Counsel appearing for the petitioners and Mr. Mitra, Learned Senior Counsel appearing for the private respondents in support of their respective clients. Mr. Sengupta, Learned Advocate, appearing for the State respondent also supported the or
