If a property has even one pucca structure, it cannot be classified as Thika tenancy under relevant acts, reaffirming established law on tenancy qualifications.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present writ petition emanates out of an order dated July 6, 2009, passed by the Thika Controller holding that the subject-property is not a Thika property.

2. The respondent no.1 herein preferred a challenge against the said order before the Land Reforms and Tenancy Tribunal (LRTT) giving rise to OA No.1894 of 2009, which was allowed by the learned Tribunal by its order dated November 12, 2013, holding that the let- out portion of the subject-premises is a Thika tenancy under the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as “the 2001 Act”).

3. The present challenge has been preferred against the said order of the Tribunal.

4. The learned Senior Advocate appearing for the petitioner submits that the lease in respect of the vacant portion of Premises No.236, A.G.C. Bose Road (formerly Lower Circular Road), Kolkata – 700 017 was granted in the year 1938. At that juncture, the property already consisted of land with pucca structures. The said property was undemarcated and, as such, was not segregated between a vacant land and a structure.

5. The original lessee, namely, Caltex (India) Pvt. Ltd., the predecessor-in-interest of the respondent no.1, had allegedly constructed a kutcha structure at the time of its induction and later on raised pucca structures in the let-out portion.

6. Moreover, the property was let out for a period of more than 12 years with option of renewal.

7. It is argued that on both counts, the said property is excluded from the purview of the Calcutta Thika Tenancy Act, 1949 (for short, “the 1949 Act”) as well as the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (in brief, “the 1981 Act”) and the 2001 Act.

8. The petitioner argues that, in order to determine the subsistence of a Thika tenancy on the date of commencement of the 1981 Act, it is to be seen whether the respondent no.1 was a Thika tenant under the 1949 Act. For such proposition, learned senior counsel cites Bimal Chandra Mitra v. Nemai Palit , reported at (2003) 3 CalLT 511 (HC).

9. In Nemai Chandra Kumar (D) Thr. Lrs. and others v. Mani Square Ltd. & Others, reported at 2022 SCC OnLine SC 920, the Hon'ble Supreme Court held that the 1981 Act and the 2001 Act do not apply retrospectively. It was further held that repeal and simultaneous re-enactment is to be considered as the reaffirmation of the old law. Thus, the position of Thika tenancy provided in the 1949 Act was reiterated by the 1981 Act.

10. Learned senior counsel controverts the arguments of respondent no.1 that the Article 141 of the Constitution of India does not provide that a judgment will act as a precedent if the Hon'ble Supreme Court has not considered the relevant provisions of law. In any event, it is submitted, the Hon'ble Supreme Court, in the matter of Mani Square Ltd. (supra), passed its judgment upon consideration of all relevant aspects of the governing statutes of 1949,