IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Md. Shabbar Rashidi WPLRT/81/2024 SRI SANTOSH AGARWAL AND ANR.

VS.

THE STATE OF WEST BENGAL AND ORS.

For the Writ Petitioners: Mr. Supratim Dhar, learned Senior advocate Mr. Dhananjoy Nayak, Advocate For the Respondent : Mr. Tapas Kumar Sinha, Advocate Nos. 4, 5 & 6 Heard and Judgment on : April 24, 2025 DEBANGSU BASAK, J.

1. Order dated February 5, 2024 passed in OA 3133 of 2016 (LRTT) passed by the West Bengal Land Reforms and Tenancy Tribunal is under challenge in the present writ petition.

2. Learned senior advocate appearing for the writ petitioners submits that, admittedly, there was and still is a structure standing at premises No. 14/6 Turf Road, Kolkata. Consequently, premises No. 14/6 Turf Road, Kolkata cannot be construed to come within the purview of the Kolkata Thika Tenancy Act, 1949. He submits that, the same municipal number cannot be treated to be governed by the Act of 1949 as also by the West Bengal Premises Tenancy Act, 1997 at the same time.

3. Learned senior advocate appearing for the writ petitioners draws the attention of the Court to a will executed by the predecessor-in-interest of the writ petitioners and submits that such will which is of 1937 records that the subject premises contains a structure. Letters of Administration in respect of such will were issued by the Court.

4. Learned advocate appearing for the private respondents submits that, the will executed by the predecessor-in-interests of the writ petitioners is admitted by his clients. He submits that, he admits that, there is a structure standing in the subject premises. However, he submits that, the entirety of the subject premises is not covered by a structure. There is a vacant land in the subject premises which was let out to his clients where his clients erected a kutcha structure. Therefore, portion of the area of the subject premises which was let out to his clients in which his clients erected the kutcha structure, would come within the purview of the Act of 1949. In support of such contention he refers to the definition of thika tenancy as enshrined in Section 2(4) of the Act of 1949.

5. In the facts of the present case, Thika Controller proceeded to hold that premises No. 14/6, Turf Road, Kolkata is governed by the Act of 1949. Decision of the Thika Controller was assailed in an appeal. Appellate Authority concurred with such view. Being aggrieved, the writ petitioners preferred an original application before the learned tribunal being OA No. 3133 of 2016 (LRTT). Learned tribunal was pleased to concur with the view of the Thika Controller as affirmed by the Appellate Authority.

6. In (2014) 2 Cal LT 498 [Amit Basu vs. The Controller & Ors.] while dealing with the provisions of the Act of 1949, the co-ordinate Bench held as follows :-

“20. In the present case the enquiry report which was placed before the Tribunal clearly indicated that there were “10 rooms of pucca walls with asbestos and tin and tile roofs”. These structures had been erected by the tenant according to the enquiry report. However, there is no material on record to indicate that the structures were erected after obtaining the necessary permission. The existence of even one pucca structure amongst several kutcha structures on a land will remove the land from the rigours of the thika tenancy Acts. Therefore, when the occupant or the returnee has submitted a return indicating that there are 10 rooms of pucca walls and that he had acquired the structures in 1953 pursuant to a conveyance, it is obvious that such a person could not be considered as thika tenant and the lands could not be considered to be thika lands. If the structures were there prior to the conveyance then the land could not be considered as thika land. Even assuming the structures were built by the so called thika tenant, the land cannot be considered as thika land beca