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IN THE HIGH COURT AT CALCUTTA
DEBANGSU BASAK, MD. SHABBAR RASHIDI, JJ.
Sri Nawal Sultania & Anr. - Petitioners
Versus
State of West Bengal - Respondent
W.P.L.R.T. No. 76 of 2022
Decided On : 05-07-2023
THIKA TENANCY - WEST BENGAL THIKA TENANCY (ACQUISITION AND REGULATION) ACT, 2001 - Section 2 (13), 2 (14), 2 (15), 4, 12 - WEST BENGAL LAND REFORMS AND TENANCY TRIBUNAL ACT, 1997 - Section 6, 16 - CODE OF CIVIL PROCEDURE, 1908 - Order 41 Rule 24, 27 - Whether the land in question is a thika land and whether the petitioners are thika tenants under the private respondents.
Fact of the Case:
1. Petitioners challenged the order of the West Bengal Land Reforms and Tenancy Tribunal dismissing their application under Section 12 of the West Bengal Thika Tenancy (Acquisition and Requisition) Act, 2001, assailing the order of the Thika Controller dismissing their application seeking declaration that the properties in question were vested with the State under the Act and that they were thika tenants. 2. Petitioners claimed to have entered into possession of the immovable property by virtue of a written agreement dated September 20, 1997, which they contended granted them a tenancy, not a license, and that they had constructed permanent structures on the property. 3. Private respondents contended that the petitioners were licensees under them and that the written document did not establish exclusive possession by the petitioners. 4. State contended that the land in question was not a thika land and not governed by the Act of 2001.
Finding of the Court:
1. The written documents between the parties created a license, not a tenancy, as they described the petitioners as licensees and the private respondents as licensors, and there was no exclusive possession by the petitioners. 2. Petitioners' stand that the premises was governed by the West Bengal Premises Tenancy Act, 1997 in three different civil suits, two filed by them and one against them, estopped them from taking a different stand before a different forum. 3. The Tribunal had the power to apply principles of the Code of Civil Procedure, 1908, to regulate the procedure of the proceedings before it, but it was not bound by the provisions of the Code save and except the 7 matters specified in Section 16 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. 4. The definitions of “pucca structure”, “thika tenant”, and “thika land” under the Act of 2001 had to be considered in the factual matrix of an individual case to determine whether the provisions of the Act were attracted. 5. In this case, no tenancy was created in favor of the petitioners, and they had been licensees all along, so the provisions of the Act were not attracted.
Issues: 1. Whether the land in question was a thika land? 2. Whether the petitioners were thika tenants under the private respondents? 3. Whether the petitioners were estopped from taking a different stand before a different forum after having taken a stand of tenancy under the governing premises tenancy laws in three civil suits?
Ratio Decidendi: 1. The interpretation of the written documents between the parties, in the light of the Transfer of Property Act and the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, led to the conclusion that the documents created a license, not a tenancy. 2. The petitioners' stand of tenancy under the West Bengal Premises Tenancy Act, 1997 in three civil suits estopped them from taking a different stand before the Tribunal. 3. The Tribunal had the power to apply principles of the Code of Civil Procedure, 1908, to regulate the procedure of the proceedings before it, but it was not bound by the provisions of the Code save and except the 7 matters specified in Section 16 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. 4. The definitions of “pucca structure”, “thika tenant”, and “thika land” under the Act of 2001 had to be considered in the factual matrix of an individual case to determine whether the provisions of the Act were attracted. 5. In this case, no tenancy was created in favor of the petitioners, and they had been licensees all along, so the provisions of the Act were not attracted.
Final Decision: The writ petition was dismissed.
JUDGMENT :
Debangsu Basak, J.
1. Writ petitioners have assailed the order dated May 17, 2022 passed by the West Bengal Land Reforms and Tenancy Tribunal in OA No. 393 of 2015 (LRTT).
2. By the impugned order, the learned Tribunal has dismissed the original application being OA No. 393 of 2015 filed by the writ petitioner. The appellants had approached the learned Tribunal under Section 12 of the West Bengal Thika Tenancy (Acquisition and Requisition) Act, 2001 assailing the order in original dated December 31, 2014 of the Thika Controller dismissing the application of the appellants seeking declaration that the properties in question were vested with the State under the provisions of the West Bengal Thika Tenancy (Acquisition and Requisition) Act, 2001 and that the appellants were thika tenants in respect of the properties concerned.
3. Learned advocate appearing for the writ petitioners has submitted that, the appellants entered into possession of the immovable property concerned by virtue of a written agreement dated September 20, 1997. He has referred to such written agreement. He has submitted that, although the written agreement claims that license was granted to the writ petitioners in respect of the immovable property concerned, in effect, the writ petitioners were tenants under the private respondents. He has contended that, the private parties executed subsequent documents and such documents, according to him, established that a tenancy had been given to the writ petitioners by the landlord, in respect of the immovable property concerned. He has contended that, the terms of the written agreement permitted the writ petitioners to construct structures on the immovable property concerned. The writ petitioners had constructed permanent structures on the property concerned.
4. Learned advocate appearing for the writ petitioners has referred to the provisions of the Act of 2001. He has referred to Section 4 of the Act of 2001 and contended that, with effect from January 8, 1982, lands governed by the Act of 2001 vested in the State free from all encumbrances. He has contended that, by reason of the deeming fiction created under Section 4 of the Act of 2001, and in the factual matrix as obtaining in the present case, the writ petitioners became thika tenants under the private respondents and that the land comprised in the thika tenancy stood vested with the State.
5. Learned advocate appearing for the writ petitioners has drawn the attention of the Court to the definition of “pucca structure” defined in Section 2 (13) of the Act of 2001 and also to the definition of “thika tenant” defined in Section 2 (14) thereof. He has contended that, referring to the terms and conditions of the written agreement entered into between the private parties that the land in question is a thika land and that the writ petitioners are thika tenants in respect of such land. Since the land in question was vested with the State under the provisions of the Act of 2001, the private respondents have lost all right title and interest in respect of the same. He has contended that, subsequent to the writ petitioners having entered the property in question lawfully by virtue of the written document, they had constructed pukka structure on the property concerned. Construction of structure had brought the land in question under the purview of the Act of 2001.
6. Learned advocate for the writ petitioners has referred to the sequence of events leading up to the writ petitioners filing an application under form A of the West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004 before the Controller. He has contended that, initially the writ petitioners were put into possession in respect of the subject property by virtue of a written agreement dated September 20, 1997. Thereafter, the private parties had executed further agreements extending the period of tenancy of the petitioners. The writ petitioner No. 1 along with others had filed a suit for declaration
The provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, are not attracted where no tenancy is created and the parties are merely licensees.
If a property has even one pucca structure, it cannot be classified as Thika tenancy under relevant acts, reaffirming established law on tenancy qualifications.
The main legal point established in the judgment is that the absence of a thika tenancy at the time of the suit and the continuation of the tenancy on a month-to-month basis rendered the suit for evi....
The main legal point established in the judgment is that the West Bengal Land Reforms and Tenancy Tribunal had exclusive jurisdiction to entertain disputes touching the provisions of a 'specified Act....
The Thika Controller's jurisdiction post-2010 amendment allows adjudication on whether land is thika land, which was not within its power before this amendment.
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