Calcutta High Court (Appellete Side)
Bholanath Jaiswal vs Urmila Devi Jaiswal & Ors on 15 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 3056 of 2016
Bholanath Jaiswal
Vs.
Urmila Devi Jaiswal & Ors.
For the petitioner : Mr. Prabal Mukherjee
Mr. Sukanta Chakraborty
For the opposite parties : Mr. Aniruddha Chatterjee
Mr. Kushal Chatterjee
Judgement on : 15.03.2017
Ashis Kumar Chakraborty, J.
The revisional application, at the instance of the defendant judgment debtor no. 7 in the ejectment suit, is directed against the order no. 53 dated May 17, 2016 passed by the learned Judge, 6th Bench, Presidency Small Cause Court, Calcutta in connection with Miscellaneous Case No. 146 of 2013, arising out of Ejectment Execution Case No. 24 of 2013, in connection with Ejectment Suit No. 528 of 2002.
The short point of law raised in the revisional application is whether in view of Section 8(3) and Section 11(6) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, (hereinafter referred to as "the Act of 2001"), read with Section 21 thereof, the Civil Court lacks the jurisdiction to execute an ejectment decree passed by it under Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (hereinafter referred to as "the Act of 1981") before November 2010.
The facts, in short are that in the year 2002 the opposite party nos. 1 to 7 claiming themselves as thika tenants, filed the ejectment suit before the learned Judge, 6th Bench, Presidency Small Cause Court, Calcutta claiming a decree for recovery of possession of the suit property by evicting the proforma opposite party nos. 1 to 9 and the present petitioner, the defendant no. 7 in the suit. The ejectment suit was contested by the defendants, issues were framed and the parties adduced their respective evidence before the learned trial Judge. By a judgment dated April 24, 2009 the learned trial Judge held that the plaintiffs opposite party nos. 1 to 7, as the thika tenants of the suit property, are entitled to file the ejectment suit and decreed the suit. Against the said judgment and decree for eviction passed by the learned trial Judge the defendants preferred an appeal, being Title Appeal No. 21 of 2009 before and the same was dismissed on merit. The defendants judgment debtors, however, did not deliver vacant possession of the suit property to the plaintiffs opposite party nos. 1 to 7. In the year 2013, the plaintiffs opposite party nos. 1 to 7, the decree holders filed the Execution Case No. 24 of 2013 before the learned executing Court, that is, the learned Court below and a writ of possession was issued directing the bailiff of the Court to recover possession of the suit property by evicting the defendants judgement debtors. However, judgment debtors, including the present petitioner resisted the Court bailif to execute the decree. Therefore, the present opposite party nos. 1 to 7, as the decree holders filed an application before the learned Court below praying for, police help to the bailiff for execution of the eviction decree. During the pendency of the said application, the present petitioner filed an application under Section 151 of the Code of Civil Procedure praying for, dismissal of the execution case. In her said application the petitioner alleged that in view of the amendment of the Act 2001, in the year 2010, particularly Sections 8(3) and Section 11(6) thereof, the bar of Section 21 of the Act comes into play and the Civil Court lacks the jurisdiction to entertain the execution case filed by the plaintiffs decree holders and it is Thika Controller with whom the jurisdiction vests to execute an eviction decree obtained by a thika tenant. By order dated May 17, 2016 the learned Court below held that as per the provisions in Section 27 of the Act of 2001 the contention raised on behalf of the petitioner challenging the jurisdiction of the Civil Court to execute the aforementioned eviction decree is not tenable and rejected the application filed by the petitioner. It is the said order dated May 17, 2016 which has been assailed by the petitioner in this revisional application.
Mr. Prabal Mukherjee, learned Senior Advocate appearing for the petitioner submitted that in view of the enactment of the Act of 2001, with effect from March 01, 2003 the Act of 2001 stood repealed. According to him, as per Section 8(3) of the Act of 2001 it is the Controller appointed by the State Government with whom the jurisdiction vests to entertain and decide any eviction proceeding initiated by the thika tenant against the bharatia, and under Section 11(6) of the same Act the Controller has all the power to execute the eviction decree, if any passed against a bharatia. He further urged that Section 21 of the Act of 2001 provides an express bar to the jurisdiction of Civil Court to execute the said eviction decree passed in this case by the learned Court below. On these grounds, it was contended on behalf of the petitioner that the learned Court below committed an error of law in passing the impugned order rejecting his aforementioned application.
However, Mr. Aniruddha Chatterjee, learned advocate appearing for the opposite parties decree holders submitted that as per Section 27(2) of the Act of 2001, repealing of the Act of 1981 would not affect the right to execute the eviction decree in the present case. According to him, the impugned order passed by the learned Court below suffers from no infirmity of law. He strongly urged for dismissal of the revisional application as being devoid of any merit.
I have considered the facts of the case, as well as the arguments advanced on behalf of the respective parties. As per the Act of 1981 the suit filed by the present opposite party nos. 1 to 7, as the thika tenants of the suit property, against the present petitioner and proforma opposite parties, bharatia was well maintainable before the learned Court below and the eviction decree passed by the learned Court below in favour of the plaintiffs opposite party nos. 1 to 7 under the Act of 1981 is a valid decree. It is correct that with the commencement of the Act of 2001, the Act of 1981 stood repealed with effect from March 01, 2003.
From a meaningful reading of the provisions contained in Section 8 of the Act of 2001 it is clear that after coming into force of the said Act, it is the Controller who has been vested with the power to decide all disputes, including whether a person is a bharatia under a thika tenant, any case of eviction of a bharatia etc. and as per Section 8(5) of Act, which has been amended with effect from November 01, 2010 an order passed by a Controller under the Act is executable by him as a decree of a Civil Court. Section 11(6) of the Act of 2001 further provides for the power of the Controller to execute an order for causing delivery of possession of any premises to a thika tenant by a bharatia and to direct for necessary police assistance. Under the Act of 2001, the remedy of any person to assail any order passed by the Controller under Section 8 thereof exclusively lies in preferring an appeal, under Section 12 before the West Bengal Land Reforms and Tenancy Tribunal. A bare reading of the provisions contained in Section 21 read with provisions contained in Section 8 of the Act of 2001 goes to show that only the orders passed by the Controller under the Act of 2001 cannot be executed by or challenged before the Civil Court. None of the provisions of the Act of 2001 confers any jurisdiction on the Controller appointed under the said Act to execute a decree passed by a Civil Court under the Act of 1981.
Further and in any event, Section 27(2) of the Act of 2001 expressly provides that repealing of the Act of 1981 shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act of 1981 or affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability etc and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the Act of 2001 had not been passed. In this connection, the provisions of Section 8 of the Bengal General Clauses Act, 1899 may also be considered which provide, unless a different intention appears, the repealing of an Act shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act of 1981 or affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability etc and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act had not been passed.
In view of the clear language of the saving clause contained in Section 27 of the Act of 2001 expressing no contrary intention, there cannot be any doubt that the remedy of the opposite party nos. 1 to 7 to execute the eviction decree passed by the learned Court below, under the Act of 1981, in the ejectment suit is not affected by the repealing of the Act of 2001 and the learned Court below, as the Civil Court still has the jurisdiction to execute the eviction decree.
For the reasons as aforesaid, I find that the learned Court below committed no error of law to reject the application filed by the petitioner challenging its jurisdiction to execute the eviction decree. The revisional application is devoid of any merit and the same stands rejected.
However, there shall be no order as to costs.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)