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IN THE HIGH COURT AT CALCUTTA
Indira Banerjee & Sahidullah Munshi, JJ.
Sri Lalit Kumar Bagla & Others – Appellants
Versus
Rajiv Kumar Podder & Others – Respondents
A.P.D. No. 501 of 2015 with E.C. No. 90 of 2011
Decided On : 20-05-2016
Thika Tenancy Law - Calcutta Thika Tenancy Act, 1949 - Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 - West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 - Definition of 'thika tenant' - Interpretation - Evolution of law - Effect of amendments - Vesting of lands in State - Rights of thika tenants - Jurisdiction of Thika Controller - Civil Court's jurisdiction barred - Applicability to debuttar property - Res judicata - Principles of natural justice - Registered lease for over 12 years - Sub-lessee's status as thika tenant - Applicability of Order 21 Rules 97 to 99 of the Code of Civil Procedure.
Fact of the Case:
Patel Timber Industries, claiming to be a 'thika tenant' in respect of 14 cottahs and 10 chittaks of land at 149/13, J.N. Mukherjee Road, Salkia, Howrah, filed an application under Order 21 Rule 99 of the Code of Civil Procedure to intervene in execution proceedings initiated by the Baglas, the owners of the property, against the Poddars, the lessees, for recovery of possession. The Baglas had obtained a decree for eviction against the Poddars, but Patel Timber Industries was not impleaded as a party to the suit. Patel Timber Industries claimed that the land held by it vested in the State under the Thika Tenancy Laws and that it was entitled to resist dispossession.
Finding of the Court:
The Court held that: (i) The definition of 'thika tenant' under the 1949 Thika Tenancy Act, 1981 Thika Tenancy Act, and 2001 Thika Tenancy Act is similar, except that persons residing in a structure forfeited to the State under Sub-section 2 of Section 6 have been excluded from the definition of 'thika tenant'. (ii) The essential ingredient of a 'thika' tenancy is that the land should be owned by the superior landlord, but the structure thereon should be owned by another person in occupation of land, who may have erected the structure on the land held by him as occupier and/or holder of the land, or acquired the structure by gift or purchase. (iii) After 1st November, 2010, the definition of 'thika tenant' includes the owner of a pucca structure, whether the pucca structure has been acquired by gift or purchase, or erected by him from his own funds. (iv) The Thika Controller has power under Section 5(3) of the 2001 Thika Tenancy Act to decide whether any particular land is 'thika land' and whether any person claiming 'thika tenancy' is a 'thika tenant' or not. (v) The Civil Court's jurisdiction to decide or deal with any question or to determine any matter which, by or under the 2001 Thika Tenancy Act, is required to be, or has been, decided or dealt with, or is to be, or has been, determined, by the Thika Controller or the appellate or other authority specified in the provisions of the 2001 Thika Tenancy Act, is barred under Section 21 of the said Act.
Issues: 1. Whether Patel Timber Industries was a 'thika tenant' entitled to resist dispossession in execution of the decree obtained by the Baglas against the Poddars? 2. Whether the Civil Court had jurisdiction to decide the question of validity of an order passed by the Thika Controller under the 2001 Act?
Ratio Decidendi: (i) The definition of 'thika tenant' under the 1949 Thika Tenancy Act, 1981 Thika Tenancy Act, and 2001 Thika Tenancy Act is similar, except that persons residing in a structure forfeited to the State under Sub-section 2 of Section 6 have been excluded from the definition of 'thika tenant'. (ii) The essential ingredient of a 'thika' tenancy is that the land should be owned by the superior landlord, but the structure thereon should be owned by another person in occupation of land, who may have erected the structure on the land held by him as occupier and/or holder of the land, or acquired the structure by gift or purchase. (iii) After 1st November, 2010, the definition of 'thika tenant' includes the owner of a pucca structure, whether the pucca structure has been acquired by gift or purchase, or erected by him from his own funds. (iv) The Thika Controller has power under Section 5(3) of the 2001 Thika Tenancy Act to decide whether any particular land is 'thika land' and whether any person claiming 'thika tenancy' is a 'thika tenant' or not. (v) The Civil Court's jurisdiction to decide or deal with any question or to determine any matter which, by or under the 2001 Thika Tenancy Act, is required to be, or has been, decided or dealt with, or is to be, or has been, determined, by the Thika Controller or the appellate or other authority specified in the provisions of the 2001 Thika Tenancy Act, is barred under Section 21 of the said Act.
Final Decision: The appeal was allowed, and the judgment and order under appeal were set aside.
Indira Banerjee, J.
1. This appeal is against a judgment and order dated 23rd September, 2015 passed by the learned Single Bench dismissing an application filed by M/s Patel Timber Industries, being G.A. No. 1034 of 2011 inter-alia for intervention in the execution proceedings being E.C. No. 90 of 2011 for execution of the eviction decree dated 11th August, 2011 in APD No. 455 of 2005, along with three other similar applications being G.A. Nos. 1035, 1036 and 1038 of 2011.
2. Patel Timber Industries, a registered partnership firm, carrying on business at Premises No. 149/13, J.N. Mukherjee Road, PS – Malipanchghora, PO – Salkia, District Howrah – 711106 claims to be a ‘thika tenant’ in respect of 14 cottahs and 10 chittaks of land at the said premises.
3. The said premises were owned by a Trust, under the control of the members of the Bagla family. It transpires that the trustees, hereinafter referred to as the Baglas, had leased out 7 bighas of land to the Poddars.
4. Patel Timber Industries claims that the Poddars sub-leased 14 cottah and 10 chittaks of land out of the said 7 bighas, to Patel Timber Industries and received rent from Patel Timber Industries, showing Patel Timber Industries as a thika tenant.
5. According to Patel Timber Industries, it erected structures at the said premises with the knowledge and consent of the Poddars. Patel Timber Industries claims to be the owner of the structures at the said premises.
6. Patel Timber Industries has further claimed that the land held by Patel Timber Industries vested in the State of West Bengal in 1981, under the Thika Tenancy Laws enacted by the State. Patel Timber Industries claims to have been paying rent (Khazna) to the State of West Bengal.
7. The Calcutta Thika Tenancy Act, 1949, hereinafter referred to as the 1949 Thika Tenancy Act, was enacted to regulate the law of landlord and tenant in respect of thika tenancies in Calcutta, and to make better provisions relating to the law.
8. The said 1949 Thika Tenancy Act was repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, hereinafter referred to as the 1981 Thika Tenancy Act. The said 1981 Thika Tenancy Act has been repealed and replaced by the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, hereinafter referred to as the 2001 Thika Tenancy Act.
9. The 1949 Thika Tenancy Act defined ‘thika tenant’ to mean a person who held land, whether under a written lease or otherwise, under another person, and was, or but for a special contract, would be liable to pay rent at a monthly or at any other periodical rate, for that land to that other person, and had erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and included successors in interest of such person.
10. The definition of ‘thika tenant’ under the 1949 Thika Tenancy Act, expressly excluded a person who held land under another person in perpetuity or a person who held land under another person, under a registered lease, for a period of not less than 12 years, or a person who held land under another person and used or occupied such land as a khatal.
11. Section 2(1) of the 1949 Thika Tenancy Act defined ‘bharatia’ to mean any person by whom, or on whose behalf, rent was payable for any structure or part of a structure erected by a ‘thika’ tenant in his holding.
12. There could only be a ‘thika’ tenancy under the 1949 Act, when the land belonged to one person and the structures thereon to another person. In other words, there would be a superior landlord, who was the owner of the land and a subservient holder being the lessee and/or tenant under the superior landlord and the owner of the structures, that is, the ‘thika tenant’, with the right to use, occupy or let out the structures. The ‘bharatia’ was the person to whom a structure so constructed and/or acquired by a ‘thika tenant’ had been let out. A ‘bharatia’ paid rent to the ‘thika
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