Calcutta High Court (Appellete Side)
M/S. Dipman Enterprises vs State Of West Bengal & Ors on 3 April, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
03.4.2014
sm
W.P.L.R.T. 60 of 2013
M/s. Dipman Enterprises
-versus-
State of West Bengal & Ors.
Mr. Saktinath Mukherjee,
Mr. Bhaskar Ghosh,
Mr. Haradhan Banerjee,
Mr. Tapas Kumar Sinha.
... For the Petitioner.
Mr. Nilanjan Bandyopadhyay.
... For the Respondent Nos. 3 to 8.
Mr. Rejaul Alam.
... For the Respondent No. 12.
Mr. Arun Kumar Maiti.
... For the State.
This writ petition is directed against the judgment and order passed by the Learned West Bengal Land Reforms & Tenancy Tribunal on 18th January, 2013 in O.A. No. 2708 of 2010 (LRTT) at the instance of the writ petitioner being the owner of premises no. 53/1, Hazra Road, Kolkata. Admittedly, Ramnath Shaw, the predecessor-in-interest of private respondent nos. 3 to 8 were thika tenants under Surendra Nath Das in respect of an area measuring about 9 Kottahs 18 Chittacks 18 Sq. Ft. land comprised in premises no. 53/1, Hazra Road, Kolkata. The said Surendra Nath Das died testate leaving a will appointing Sachindra Kumar Das and another as executors under the said will. The said Sachindra Kumar Das along with the other executor filed an eviction proceeding against the said thika tenant, namely, Ramnath Shaw, in the 2nd Court of Learned Munsif at Alipore. The said eviction proceeding which was registered as Misc. Case No. 207 of 1962 was disposed of by the Learned Munsif on 3rd December, 1966 with the following order :
Hence ordered - "that the misc. case be allowed on contest with consolidated costs of Rs.10/- the petitioner do get a decree for ejectment against the 2 opposite party in respect of the case land. The opposite party to vacate and take away the structures, if any, within 60 days hereof, failing which the petitioner will be entitled to take possession by execution of this order".
Being aggrieved by the said judgment and order passed in the said eviction proceeding, the said thika tenant, namely, Ramnath Shaw, preferred an appeal being Misc. Appeal No. 1030 of 1966 before the Court of the Learned Sub-ordinate Judge, 4th Court at Alipore, and the said miscellaneous appeal was ultimately dismissed on contest with costs. The order of eviction passed by the Learned Munsif was affirmed. The said order of the appellate forum was challenged in revision before the High Court by the said thika tenant, but he ultimately failed to succeed therein.
Subsequently, a money suit was filed by the executor of the will, left by the original landlord, Sachindra Nath Das, against the said Ramnath Shaw for realisation of the arrear rent for the period from December, 1962 to November, 1968. The said money suit was ultimately disposed of on compromise and the terms of settlement on which the parties settled their dispute in the said suit which are relevant for the present purpose are set out hereunder:
"(a) That the judgement debtor admits and acknowledges and shall pay the outstanding mesne profits together with the costs of the suit assessed at Rs.1000/- and as awarded in favour of the decree-holder against the judgement debtor which are hereby amicably settled and assessed at the total sum of Rs.17,640/- (being the sum of Rs. 9,360/- as mesne profits claimed in this suit from December, 1962 to November, 1968 and Rs.7,280/- being the mesne profits from December, 1968 to July, 1973 @ 130/- per month and costs Rs. 1000/- as stated above. The judgement debtor has this day made the part payment of the sum of Rs. 2270/- leaving a balance of Rs. 15,370/- only the judgment debtor hereby undertakes to pay and shall pay the said sum of Rs. 15,370/- to the plaintiff decree- holder at monthly installment of Rs. 260/- (page no. 4) per english calender month commencing from 3 the month of August, 1973 and payable within that particular month till the entire amount of the balance of Rs. 15,370/- is realised and fully satisfied and the judgment debtor hereby further undertakes to pay and shall pay the sum of Rs. 130/- per month in addition to the above installment being the monthly amount due on account of monthly mesne profits to accrue due month by month from August, 1973 i.e. to say a total installment of Rs. 390/- per month on two accounts commencing from the said month of August, 1973 to be paid monthly till the said entire balance sum of Rs. 15,370/- including to sum of Rs.1000/- amicably settled as costs, if fully paid and realised.
(b) That in default of payment of any two successive monthly installments i.e. of Rs.260/- and monthly installments i.e. of Rs. 260/- and Rs. 130/- or any part of either the decree-holder shall be entitled to execute the said decree for eviction in Misc. Case (Thika) No. 207 of 1962 and recover khas possession of the suit premises by executing the writ for delivery of possession by removing all the structures lying thereon without payment of any compensation and the decree-holder shall for the further be entitled to recover the outstanding dues mentioned in paragraph (a) above less payments made thereon and shall be entitled to recover the same by executing the said decree in due process of law.
(c) That a court fee of the sum of Rs.232/50p. due and payable on the balance sum of Rs. 5010/- as mentioned in paragraph (a) above (inasmuch as the court fees payable on the sum of Rs. 9,360/- has already been paid) is paid this day for the application for amendment of plaint.
(d) That on payment being made of the entire balance month by month as stated above and not otherwise, the defendant judgement debtor shall be entitled to occupy on the suit premises (page no. 5) as a monthly tenant under the plaintiffs decree holders at a rent of Rs. 175/- per month according to english calender month and the decree for ejectment shall cause to have any force thereon and the rent so fixed shall be periodically increased rent so fixed shall be periodically increased @ Rs.25/-
Rupees twenty five per month of the expiry of every ten years so long the tenancy continues. The defendant shall also pay the entire taxes both occupiers and owners shares."
4Subsequently, on a return submitted by Ramnath Shaw, the judgment debtor of the said eviction proceeding, the Controller, Kolkata Thika Tenancy initiated a proceeding for deciding as to whether the said Ramnath Shaw continued to be a thika tenant in respect of the said premises; upon payment of the decretal dues in compliance of the compromise decree passed in the Money suit and further as to whether the land comprised in the said holding vested in the State or not. Ultimately the said proceeding being Misc. Case No. 67 of 2008 was disposed of by the Controller, Calcutta Thika Tenancy on 1st October, 2010 by holding interalia that, after the death of Ramnath Jaiswal, his widow Sabitri Devi Jaiswal became the thika tenant in respect of the subject premises. Such conclusion was arrived at by the Thika Controller as he found that the eviction decree dated 3rd December, 1966 was not put into execution and the compromise decree dated 20th August, 1973 passed in Money Suit No. 31 of 1968 was satisfied by the judgment debtor therein namely, Ramnath Shaw by paying the entire decretal dues by installments as per the terms of the said compromise decree. The Controller, thus held that Shri Shaw continued his possession in the land on payment of periodical rents without any break till coming into force of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 on 18th January, 1982.
Being aggrieved by and dissatisfied with the said judgment and/or order of the Controller, Calcutta Thika Tenancy, the petitioner herein filed an original application being O.A No.2708 of 2010 (LRTT) which was disposed of by the Learned Tribunal on 18th January, 2013. By the said order the tribunal application filed by the petitioner, was dismissed on contest and the order of the Thika Controller passed in the Misc. Case No.67/2008 under Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 was affirmed. The Learned Tribunal held that the Controller rightly declared the said property as thika property and the respondents being 5 the heirs of the original thika tenants became tenants directly under the Government w.e.f. 1st March, 2003. While disposing of the said original application, the Learned Tribunal held that all the ingredients necessary to be satisfied for declaring the said land as thika land as per the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter referred to as the said Act of 2001) exist in the present case and also for declaring Ramnath Shaw/his successors as thika tenants under the Government w.e.f. 18th January, 1982 when the suit land vested in the State under the Calcutta Thika & other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (hereinafter referred to as the said Act of 1981).
The Learned Tribunal further held that the decree dated 3rd December, 1966 became inexecutable after 1st March, 2003 as the suit land became the Government's property w.e.f. 18th January, 1982 as per the provision of Act of 2001 which nullified the rights of the erstwhile landlord in respect of the vested land with effect from 18th January, 1982.
The legality and/or propriety of the said order of the Learned Tribunal is under challenge in this writ petition before us.
Let us now consider as to how far the Controller under the Calcutta Thika Tenancy and/or the Learned Tribunal were justified in holding that the Thika Tenancy Right of Ramnath Shaw/his successors continued even after passing of the order of eviction against Ramnath Shaw by the Learned Munsif in Misc. Case No.207 of 1962. We have already indicated above that the said eviction proceeding being Misc. Case No.207/1962 was disposed of by the Learned Munsif on 3rd December, 1996 by passing an order of eviction against the thika tenant namely, Ramnath Shaw. The said order of eviction of the original thika tenant namely, Ramnath Shaw was affirmed up to this Hon'ble Court. As such we have no hesitation to hold that the thika tenancy held by Ramnath Shaw in respect of the land comprised 6 in the said premises No.53/1 Hazra Road, Kolkata ceased to exist with the passing of the eviction order against him in the said eviction proceeding. After passing of the order of eviction the said Ramnath Shaw continued his possession therein as a judgment debtor who was obliged to give vacant possession of the suit land to the landlord within 60 days from the date of passing of the eviction order and his landlord became the decree holder who was conferred with the right to recover possession of the decretal property in execution of the said decree if the said judgment debtor failed to vacate the decretal property by taking away structure if any therefrom within the time granted to him for vacating said premises in the said decree.
The aforesaid rights and obligations of the decree holder vis-à-vis the judgment debtor were ultimately adjusted between them and such adjustment of their rights was ultimately culminated into the compromise decree passed in the Money suit filed by the said decree holder against the said judgment debtor for realization of the arrears of rent from him.
The manner in which the admitted dues of the judgment debtor were to be paid by him was provided in the said comprise decree which also provided the consequence of payment and/or non-payment of the decretal dues by instalments. It was provided therein that if the entire admitted decretal dues are paid by the judgment debtor as per the terms of settlement then a tenancy will be granted in favour of the said judgment debtor in respect of the said premises at a monthly rental of Rs.175/- and the eviction order passed in the Misc. Case No.207 of 1962 will then become inexecutable .
A controversy cropped up between the parties before the Controller, Calcutta Thika Tenancy as to whether decretal dues was paid by the said judgment debtor in terms of the compromise decree, or not. The Controller ultimately resolved the said controversy by holding that the decretal dues were all 7 paid by the judgment debtor in compliance of the said compromise decree. The Controller thus held that since the said judgment debtor continued his possession in the said premises, by paying the agreed monthly rent to the decree holder, the Thika Tenancy Right which the judgment debtor had in the said premises stood revived and his said Thika Tenancy Right in the said premises continued till Act of 1981 came into operation. The Controller thus, held that with the enforcement of the provision of the said Act of 1981, the landlord's interest in the said thika tenanted property vested with the State and the successors of the said Ramnath Shaw became the thika tenant directly under the State. The learned Tribunal also affirmed the said finding of the Thika Controller.
In our considered view such findings of the Learned Tribunal is incorrect as in our view with the passing of the decree of eviction by the Learned Munsif in Misc. Case No.207 of 1962 on 3rd December, 1966 the relationship of landlord and thika tenant between them ceased to operate. Thus, the Thika Tenancy Right which Ramnath Shaw had in the said property ceased to exist with effect from the date of passing of the order of eviction. However, the said order of eviction was not put into execution even though the said judgment debtor did not vacate the said premises as both the decree holder and the judgment debtor subsequently adjusted their rights under the said decree in respect of the said decretal property by entering into a compromise which ultimately formed the basis of the compromise decree passed in money suit No.31 of 1968. Clause
(d) of the terms of settlement is very significant in the facts of the instant case and in our view the adjusted rights of the parties are now required to be considered with reference to such agreement arrived at between the parties as recorded in Clause (d) therein, which is reproduced herein:-
(d) "That on payment being made of the entire balance month by month as stated above and not otherwise, the defendant judgement debtor shall be entitled to occupy on the suit premises (page no. 5) as a monthly tenant under the plaintiffs decree 8 holders at a rent of Rs. 175/- per month according to english calender month and the decree for ejectment shall cause to have any force thereon and the rent so fixed shall be periodically increased rent so fixed shall be periodically increased @ Rs.25/-
Rupees twenty five per month of the expiry of every ten years so long the tenancy continues. The defendant shall also pay the entire taxes both occupiers and owners shares."
After giving our anxious consideration to the said terms of settlement particularly the terms contained in Clause (d) thereof, we have no hesitation to hold that it was agreed between the parties that on such payment being made by the judgment debtor month by month as per the said terms of settlement and not otherwise, the judgment debtor shall be entitled to occupy on the suit premises as a monthly tenant under the decree holder at a rental of Rs.175/- payable according to English calendar month. Emphasis is supplied to the underline portion i.e., monthly tenant.
Thus, the parties agreed to create a new relationship of landlord and tenant between them in respect of the said premises. The parties never intended to continue the thika tenancy which Ramnath Shaw had in the land comprised in the said holding and as such instead of mentioning that the Thika Tenancy Right which Ramnath Shaw had in the land comprised in the said premises will continue, it was specifically mentioned that Ramnath Shaw will occupy the suit premises meaning thereby both pucca and kutcha construction standing in the said premises as a monthly tenant under the decree holder. The new relationship which was created between those two compromising parties in respect of the said premises, in our view was nothing but a tenancy which was governed by the West Bengal Premises Tenancy Act, 1956 and the thika tenancy which Ramnath Shaw had in the said premises ceased to exist with the passing of the order of eviction on 3rd December, 1966 and their earlier relationship of landlord and thika tenant was neither agreed by them to be continued nor their old 9 relationship ever stood revived subsequently. Thus, we have no hesitation to hold that the thika tenancy which Ramnath Shaw had in the said premises did not continue till the enforcement of the Calcutta Thika Tenancy Act of 1981 as held by the Controller as well as the Learned Tribunal.
We thus, hold that both the Controller and the Learned Tribunal were not justified in coming to the conclusion that the Thika Tenancy which Ramnath Shaw had in the said premises continued till 18th January, 1982 when the Act of 1981 came into operation and the interest of the landlord in the land comprised in the said holding vested with the State under the said Act w.e.f. 18th January, 1982.
Accordingly, the judgment and order passed by the Thika Controller which was affirmed by the Learned Tribunal in the impugned order stand set aside.
We declare that the tenancy which is presently held by the successors of Ramnath Shaw under the original landlord and/or his transferee being the writ petitioner herein, is presently governed by the West Bengal Premises Tenancy Act, 1997 and the private respondents are premises tenant and not thika tenants in respect of the said premises under the writ petitioner herein.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
( Jyotirmay Bhattacharya, J ) ( Ishan Chandra Das, J.) 10