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.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present challenge has been preferred against a judgment passed by the Land Reforms and Tenancy Tribunal, thereby affirming an order of the Thika Controller under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

2. The Thika Controller, by the impugned order, turned down an application filed by the present petitioners claiming that the subject property is not a thika tenancy land and seeking an adjudication of the said question.

3. While dismissing the said application, the Thika Controller held that by a previous order dated August 31, 2010, the Thika Controller had already decided that the private respondent was a thika tenant in respect of the land.

4. The learned Tribunal affirmed such finding by coming to the conclusion that under the provisions of Section 5 (3) of the 2001 Act, which was in force at the relevant point of time when the previous order was passed, the Thika Controller was very much empowered to decide the question as to whether a person is a thika tenant or not, and, as such, the same issue cannot be permitted to be re-agitated under the garb of an application to decide whether the land is a thika property or not.

5. Learned Senior counsel appearing for the petitioner places reliance on a coordinate Bench judgment in the matter of Kolay Properties (P) Ltd. vs. The State of West Bengal & Ors. reported at AIR 2012 CAL 188 in support of the proposition that the Thika Controller, under the original sub-section (3) of Section 5 of the 2001 Act as it stood prior to the amendment of 2010, was empowered only to decide as to whether a person was a thika tenant or not. The power to decide whether the land-in-question is a thika land or not was not vested in the Controller and as such, the declaration to that effect in the said matter was reopened by the Division Bench by holding that the Controller had ignored the fact that the structures erected were not kutcha structures.

6. Learned Senior counsel further places reliance on an unreported Coordinate Bench judgment of this court in the matter of Debasish Banerjee vs. Maya Sarkar & Ors. (R.V.W. 278 of 2014 in connection with W.P.L.R.T. 153 of 2014) where the said Division Bench relied on and reiterated the proposition laid down in Kolay Properties (P) Ltd. (supra).

7. However, in his usual fairness, learned Senior counsel also cites another Coordinate Bench judgment in the matter of Ballav & Sawoo (Calcutta Properties) Pvt. Ltd. & Ors. vs. The State of West Bengal & Ors. (W.P.L.R.T. 22 of 2018) where both the aforesaid Division Bench judgments were considered by another Coordinate Bench. The Coordinate Bench, however, arrived at a finding that prior to the 2010 amendment, the Thika Controller had the power to decide the issue as to whether a person is a thika tenant or not.

8. The Coordinate Bench, while coming to such finding, took into consideration the definition of “thika land” under Section 2 (15) of the un-amended 2001 Act as well as the definition of “thika tenant” under (14) of the un-amended 2001 Act.

9. Learned Senior Government advocate, appearing for the State, contends that the learned Tribunal was justified in passing the impugned judgment, since under the un-amended provisions of the 2001 Act, the Thika Controller was empowered to decide as to whether a person is a thika tenant or not. It is submitted that such adjudication, by necessary implication, also took within its fold the question as to whether the concerned property was thika land or not, since unless there was a thika tenancy thereon, the land could not be characterized as a thika land.

10. The limited question which falls for consideration before us is the interplay between the amended provisions of Section 5 (3) of the 2001 Act with effect from November 1, 2010, as opposed to the said un-amended provision on and from the commencement of the 2001 Act on March 1, 2003.

11. As held in Kolay Properties (supra) and Debasish Banerjee (supra),