Calcutta High Court (Appellete Side)
Mani Square Limited & Anr vs State Of West Bengal & Ors on 10 March, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Ishan Chandra Das
W.P.L.R.T 325 of 2013
Mani Square Limited & Anr.
Versus
State of West Bengal & Ors.
For the petitioner : Mr. Saktinath Mukherjee, Senior Adv.
: Mr. Abhrajit Mitra, Adv.
: Mr. Arindam Banerjee, Adv.
: Mr. Debanjan Mandal, Adv.
: Mr. Biswajit Kumar, Adv.
: Ms. Shruti Swaika, Adv.
For the State : Mr. Ashok Banerjee, Senior. Adv.,
: Mr. Susovan Sengupta, Adv.
: Mr. Ramchandra Guchhait, Adv.
For the Respondent
Nos.3 to 8 : Jayanta Mitra, Senior Adv.
: Mainak Bose, Adv.
: Santanu Chatterjee, Adv.
: Abha Aley, Adv.
Heard On : 22.01.2014,18.02.2014, 19.02.2014, 21.02.2014 &
25.02.2014
Judgment On : 10th March, 2014.
Jyotirmay Bhattacharya, J.
This writ petition is directed against the judgment and/or order dated 18th November, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A No. 2833/12 (LRTT) affirming the order of the Controller, Calcutta Thika Tenancy passed on 8th August, 2012 in Misc. Case No. 89 of 2010 at the instance of the writ petitioner who was the appellant before the Tribunal. By the order dated 8th August, 2012 the Controller, Calcutta Thika Tenancy declared that Badri Narayan Kumar, since deceased and Nimai Chandra Kumar were the Thika Tenants in the said premises and after expiry of Badri Narayan Kumar on 6th July, 2006 , Smt. Jharna Kumar, Debashis Kumar, Smt. Sanchita Paul, Sudipta Kumar and Smt. Jyostna Roy along with Shri Nimai Chandra Kumar were declared as joint thika tenants. The conclusion which was so drawn by the Controller, Calcutta Thika Tenancy was contrary to his findings about their Thika Tenancy Right in respect of the premises in question i.e., premises No. 195, Picnic Garden Road, Kolkata- 700039 (hereinafter referred to as the said premises). Though the Controller, after considering the various provisions of the Calcutta Thika Tenancy Act, 1949, Calcutta Thika and Other Tenancies and Land(Acquisition and Regulation) Act, 1981 and the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001, unhesitatingly held that the Kumars could not be declared as Thika Tenants within the meaning of Thika Tenant as defined in Section 2 (14) of the said Act of 2001 and the said premises cannot qualify as thika land within the meaning of Section 2 (15) of the said Act of 2001 and neither the Calcutta Thika Tenancy Act, 1949 nor the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 nor Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001 nor any Rules framed thereunder could ever be applicable to the said premises, but still then in the concluding part of the order, the Controller, Calcutta Thika Tenancy abruptly declared those Kumars as Thika Tenants in respect of the said premises by relying upon a decision of this Hon'ble Court in the case of Purushottam Das Murarka -Vs- Harendra Krishna Mukherjee reported in 79 C.W.N 852 as the Controller found that they made pucca brick wall in the said premises and construction of such pucca brick wall, according to the Controller does not exclude them from the definition of Thika Tenancy.
Being aggrieved by the said judgement and/or order of the Controller, Calcutta Thika Tenancy dated 8th August, 2012 passed in Misc. Case No. 89 of 2010, the writ petitioners herein filed an original application challenging the said order of the Controller before the West Bengal Land Reforms and Tenancy Tribunal. The said proceeding which was registered as O.A No. 2833/12 (LRTT) was dismissed on contest on 18th November, 2013 by holding, inter alia, that the order which was impugned in the said original application was found to be impeccable. Thus, order of the Controller, Calcutta Thika Tenancy was affirmed by the Tribunal by holding that the Controller rightly declared the said property as thika property with effect from 18th August, 1982. The legality and/or propriety of the said order of the Tribunal is under challenge before us at the instance of the writ petitioners who claim themselves as the owner of the said property.
Let us now consider as to how far the Controller, Calcutta Thika Tenancy and the West Bengal Land Reforms and Tenancy Tribunal were justified in declaring the said premises as thika tenancy property and the private respondent Nos. 3-15 are joint thika tenants in respect of the said premises.
Exhaustive arguments were made by Mr. Mukherjee, Learned Senior Counsel appearing for the petitioners and Mr. Mitra, Learned Senior Counsel appearing for the private respondents in support of their respective clients. Mr. Sengupta, Learned Advocate, appearing for the State respondent also supported the order passed by the Controller, Calcutta Thika Tenancy which was affirmed by the Tribunal in the said original application. Before entering into the merit of the writ petition and/or the merit of the respective contentions of the Learned Counsel appearing for the parties, we feel it beneficial to record the following basic admitted facts which are relevant for our present purpose:-
(A) At all material times, one Laxmi Narayan Ghosh was the owner of the land measuring 2 Bigha, 10 Cottahs and 3 Chhitacks, more or less, being Holding No.195, Picnic Garden, Tiljala. The said Laxmi Narayan Ghosh died intestate on or about 23rd July, 1950 leaving behind him surviving his widow Smt. Nilu Bala Ghosh and his son Jitendra Nath Ghosh. On 7th December, 1970 the said Smt. Nilu Bala Ghosh died intestate and his son Jitendra Nath Ghosh, thereafter, became the absolute owner of the said property.
(B) The said Jitendra Nath Ghosh by a registered Deed of Lease dated 15th December 1973, demised the said premises to Badri Narayan Kumar and Nemai Chandra Kumar, the proprietors of Kumar industries, for a period of 20 years commencing from 1st December, 1973 for a consideration and/or monthly rent as mentioned in the said lease deed. By the said lease deed, the lessees were given the right to raise construction on said property and to use and enjoy such property during the tenure of the lease with a condition that on expiry of the lease on 30th November, 1993 the lessees will have to deliver vacant and peaceful possession of the said property in the same position as it was at the time of execution of lease to the lessor, by removing the structure which would be constructed thereon.
Admittedly, the lessees raised pucca structure having pucca foundation, pucca floor and pucca wall with partly tin and partly tile shed on the roof and used the said premises including the structure constructed therein for running its factory activities therein.
The Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 came into force with effect from 18th January, 1982. Immediately, after the said Act came into operation, the said Jitendra Nath Ghosh (Lessor) filed an application under Article 226 of the Constitution of India challenging the vires of the said Act. The said writ petition which was numbered as C.R. No.10449 (W) of 1983 was entertained by this Hon'ble Court by issuance of a writ of mandamus in terms of prayers (a), (c) and (d) of the said writ petition. An interim order was passed therein staying the operation of the provision of the impugned Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 as well as Rules framed thereunder in so far as the premises was concerned. Be it mentioned here that the petitioner's said premises which is presently in dispute before us was the subject matter of dispute in the said writ petition.
Admittedly, the lessees, namely, the Private Respondents paid rent to the then landlord up to 1993 and they never claimed themselves as thika tenant under their landlord till 9th April, 2003. It is only after the 2001 Act came into operation, the said lessees submitted a return before the Thika Controller on 10th April, 2003 claiming themselves as thika tenants in respect of the said premises and deposited rent with interest with the Controller for the period from 18th January, 1982 till 2007, at a time in 2007.
The present writ petitioners are the transferees of the said premises from the erstwhile owner thereof, namely, the landlords of the private respondents. After purchasing the said property, when they applied for mutation of their names as owners of the said property, they after searching relevant records, came to know that the said premises was recorded as thika tenanted property and the private respondents were recorded as thika tenants therein by following the declaration of their status as thika tenant in respect of the said premises given by the Controller, Calcutta Thika Tenancy vide his order dated 27th January, 2010.
Immediately, after coming to know about the aforesaid facts regarding declaration of the said property as thika tenanted property and the private respondents as thika tenants given by the Controller, the petitioners herein, being the purchasers of the said premises submitted an objection challenging the legality of such declaration of the Controller regarding the said premises as such declaration was given by the Controller without affording any opportunity of pre-decisional hearing to them. Thus, the petitioners alleged that the order of the Controller having been passed in violation of the principle of natural justice, is illegal and inoperative. The legality of the said order of the Controller Thika Tenancy passed on 27th January, 2010 followed by subsequent order passed by the Controller on 29th April, 2010 whereby the private respondents were declared as joint thika tenants, were challenged by the petitioners in their said objection.
The impugned order was passed by the Controller, Calcutta Thika Tenancy on the petitioners' said objection. The declaration which was given by the Controller in his earlier orders dated 27th January, 2010 and 29th January, 2010 remained undisturbed and the objection filed by the petitioners as stated above was rejected.
The Learned Tribunal also maintained the said order of the Controller, Calcutta Thika Tenancy dated 8th August 2012 passed in Misc. Case No. 89 of 2010.
These are the basic material facts which are presently before us for consideration. Though the private respondents never claimed that they were thika tenants under the Calcutta Thika Tenancy Act, 1949 still then we feel it necessary to consider the actual legal status of the private respondents with reference to the relevant provisions of all the three Acts namely, the Calcutta Thika Tenancy Act, 1949 (hereinafter will be called as the said Act of 1949), Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act , 1981 (hereinafter will be called as the said Act of 1981) and the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (hereinafter will be called as the said Act of 2001) as the tenancy in favour of the predecessor-in-interest of the private respondents was created at a point of time when the Calcutta Thika Tenancy Act, 1949 was in operation and their said tenancy continued to subsist when the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 came into operation and the private respondents are now claiming their Thika Tenancy Right under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
Let us first of all consider the status of those two lessees with reference to the provision of Calcutta Thika Tenancy Act, 1949. The Calcutta Thika Tenancy Act, 1949 was enacted for making better provisions relating to the laws of landlords and tenants in respect of the thika tenancies in Calcutta. The said Act came into operation on 28th February, 1949. Unlike 1981 Act and/or 2001 Act, there was no provision either for acquisition of such thika tenancy or for vesting of such thika tenancy with the State in the Act of 1949.
For deciding as to who were thika tenants under the said Act, the definition of thika tenant as defined in Section 2(5) of the said Act is required to be taken note of. Accordingly, Section 2(5) of the said Act is quoted hereunder:-
Section 2(5) - "Thika tenant" means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person -
(a) who holds such land under that another person in perpetuity; or
(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or
(c) who holds such land under that another person and uses or occupies such land as a khatal".
Let us now consider as to whether the predecessor-in-interest of the private respondents can be regarded as thika tenant in respect of the said premises with reference to definition of thika tenant under the said Act of 1949.
Here is the case where we have already recorded that the predecessor-in-interest of the private respondents took a lease of the land from the original owners thereof on 15th December, 1973 for a period of 20 years commencing from 1st December, 1973 and ending with 30th November, 1993 with right to raise construction on the demised land with a condition for delivery of vacant and peaceful possession of the said land to the lessor after removing the structure therefrom on the expiry of the said lease. Pucca structure having pucca foundation, pucca floor and pucca wall with tile and tin shed on the roof was constructed by the lessees in the demised land. The lease having been granted in favour of the lessees for a period of more than 12 years i.e., for 20 years and the lessee having constructed pucca structure having pucca foundation, pucca floor and pucca walls with tile and tin shed on the roof in contra-distinction to the nature of structure i.e., kutcha or temporary structure as contemplated under the said Act, the said lessees cannot be regarded as thika tenants within the meaning of thika tenant as defined in Section 2(5) of the said Act of 1949.
The said Act provided that a person who holds whether under a written lease or otherwise, land under another person and is or but for a special contract would be liable to pay rent, at a monthly or any other periodical rate, for that land to another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose can be regarded as thika tenant, if the exclusion part of Section 2(5) is not attracted. The expression "any structure" as mentioned in Section 2(5) of the said Act has been judicially interpreted to mean a temporary or "Kutcha Structure" and not a permanent or "Pucca Structure" by the Division Bench of this Hon'ble Court in the case of Jatadhari Daw & Grandsons -Vs- Smt. Radha Devi & Anr. reported in 1986(1) C.H.N 21 which was also approved in the Full Bench decision of this Hon'ble Court in the case of Lakshmimoni Das -Vs- State of West Bengal and Ors. reported in AIR 1987 (CAL) 326. These decisions were relied upon by Mr. Mukherjee, Learned Senior Counsel, appearing for the petitioner in support of his contention that those lessees cannot be regarded as thika tenant under the said Act of 1949 firstly for the reason that the lease was for a period of more than 12 years and secondly for the reason that no Kutcha structure was constructed by the lessees in the demised premises.
Considering the nature of the construction which was made mainly of bricks as mentioned above we cannot hold that the structure which was constructed by the then lessee was either temporary or Kutcha structure. As such we can safely hold that this part of the requirement of Section 2(5) of the said Act, was not fulfilled in the instant case.
When the said Act of 1949 came into operation, the thika tenant had no right to erect any pucca structure in the demised property. However, the Section 10 A was introduced in the said Act by way of amendment in 1969 giving right to the thika tenant to erect pucca structure in the manner as provided therein. Section 10 A of the said Act is an enabling provision by which right to erect pucca structure for residential purpose on such land with the previous permission of the Controller was conferred upon a thika tenant who has taken such tenancy for residential purpose only. The said provision thus, makes it clear that in order to exercise such right to raise pucca construction, the tenant must prove that he/she is a thika tenant within the meaning of the thika tenant as defined in Section 2(5) of the said Act and once such a tenant can establish himself as a thika tenant within the meaning of Section 2 (5) of the said Act, he can exercise his right of construction of pucca structure with the permission of the Thika Controller or in other words that if some pucca construction is raised by tenant who is not a thika tenant in the demised land, simply because of the fact he raised pucca construction on the land with or without the permission of the Controller, he cannot be regarded as thika tenant. Then again it also follows from the said enabling provision that the Controller also cannot permit a tenant who is not a thika tenant to raise any pucca construction on the demised land under Section 10 A of the said Act,.
Since we have found that the original lessees were not thika tenants within the meaning of "thika tenant" defined in Section 2(5) of the said Act, they had no right to raise any pucca construction on the said property under Section 10 A of the said Act. Furthermore, the private respondents never claimed that they raised pucca construction with the permission of the Controller. As such we can safely hold that the original lessees namely predecessor-in-interest of the private respondents by no stretch of imagination can be regarded as thika tenants within the meaning of thika tenant under Section 2(5) of the Calcutta Thika Tenancy Act, 1949.
Let us now consider as to whether the original lessees can be regarded as thika tenants under the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981. Section 3(8) of the said Act of 1981 defines thika tenant which is as follows:-
Section 3 (8) "Thika tenant" means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or a any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person.
If the definition of thika tenant under Section 3 (8) of the said Act is compared with the definition of thika tenant as defined in section 2 (5) of the Calcutta Thika Tenancy Act, 1949 then it goes without saying that excepting the exclusion part as mentioned in Clause (a) and (b) of Section 2(5) of the said Act of 1949, the remaining part of Section 2(5) of the said Act of 1949 is exactly same and identical with the definition of thika tenant under Section 3(8) of Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation ) Act, 1981. By deleting and/or omitting the said exclusion part of 1949 Act from the definition of thika tenant under Section 3(8) of the Act of 1981, the lessees under a lease even for more than 12 years were also brought under the purview of thika tenancy as per the definition of Thika Tenant under Section 3(8) of the said Act provided however, the other conditions regarding the tenant's liability to pay rent under a lease or otherwise, continues and such tenant has erected or acquired by purchase or gift any structure on such land either for residential or manufacturing or business purpose. The said Act came into operation with effect from 18th January, 1982.
Thus, if a tenant can prove that he occupies land of another person under a lease or otherwise and his liability to pay rent continues and he has also erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose then he can be regarded as thika tenant.
Since the said tenancy continued till 30th November, 1993 it cannot be disputed that the said tenant had liability to pay rent for the demised land to their landlord till 30th November, 1993. Thus, this part of the requirement under Section 3 (8) of the said Act is fulfilled in the instant case. However, the other requirement i.e., erection and/or acquisition by purchase or gift, any structure on such land by the tenant for residential, manufacturing or business purpose, is not satisfied in the instant case as admittedly the said lessee did not raise any kutcha structure and/or temporary structure on the demised land. We have already indicated above that the expression "structure" used in Section 3(8) of the said Act should be construed as "kutcha" structure and/or temporary structure in contra-distinction to the permanent or "pucca" structure as was held by the Division Bench of this Hon'ble Court in the case of Jatadhari Daw & Grandsons -Vs- Smt. Radha Devi & Anr. (Supra) which was subsequently affirmed by the Full Bench of this Hon'ble Court in the case of Lakshmimoni Das -Vs- State of West Bengal (Supra).
Thus, if the said lessees cannot be thika tenant as per Section 3(8) of the said Act of 1981, their tenancy in the said premises cannot be vested with the State under Section 5 of the Act. Section 5 which was initially incorporated in the said Act when the said Act was enforced on 18th January, 1982, has subsequently been substituted by the Amendment Act of 1993 giving retrospective effect from 18th January, 1982. A controversy has cropped up as to which of those two provisions namely, the provisions contained in original Section 5 or the substituted provision of Section 5 will be regarded as the guiding factor for vesting of the landlord's interest in thika tenancies and/or other lands in the State. Such controversy arose as the amended provision of 1993 was given retrospective effect from 18th January, 1982 which was also the date when the original provision of Section 5 of the said Act was made operative.
Mr. Mitra, Learned Senior Counsel, appearing for the private respondents, placed strong reliance on the following decisions of the Hon'ble Supreme Court to support his contention regarding the effect of substitution of a provision by which the old provision is replaced by new provision.
1. State of Punjab -Vs- Mohor Singh reported in AIR 1955 SC 84
2. Qudrat Ullah -Vs- Municipal Board, Bareilly reported in 1974 (1) SCC 202.
3. State of Rajasthan -Vs-Mangilal Pindwal reported in (1996) 5 SCC 60
4. Ram Das Bansal (dea) through L.R -Vs- Kharag Singh Baid & Ors. reported in (2012) 2 SCC 548.
Relying upon the aforesaid decisions of the Hon'ble Supreme Court, Mr. Mitra contended that by repeal either expressly or impliedly, the provision repealed ceases to exist with effect from the date of repeal but operation of the provision as stood prior to its repeal is not affected. In short, Mr. Mitra tried to impress upon us that the provision contained in the original Section 5 of the said Act remained in operation until it was repealed by the amending Act of 1993, notwithstanding the amended provision was given retrospective effect from 18.01.1982. He further contended that rights created in favour of the thika tenant under the original provision of Section 5 of the said Act, prior to its repealment cannot be effected by subsequent legislation on the same subject.
We have considered those decisions of the Hon'ble Supreme Court. It was uniformly held by the Hon'ble Supreme Court in those decisions that whenever an enactment is repealed, the consequences laid down in Section 6 of the General Clauses Act will follow unless a different intention appears in the repealing enactment. It was held therein that in case of simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, as to whether the new Act expressly keeps alive old rights and liabilities, or whether it may manifest an intention to destroy them. The court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also, unless the new legislation manifests an intention incompatible with or contrary to the provision of the Section. Such incompatibility would have to be ascertained from consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. The provision of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed.
For proper appreciation of this part of the submission of Mr. Mitra, we feel it necessary to quote both the original and substituted provision of Section 5 of the said Act. Accordingly, we quote both the aforesaid provisions hereunder:-
"Original provision of Section 5 of the said Act - Lands comprised in thika tenancies and other lands etc. to and right title and interest of landlords in such lands to vest in the State. - With effect from the date of commencement of this Act, lands comprised in thika tenancies and other lands held another any person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies for being used or occupied as khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and khatals attached to or used in connection with such lands shall vest in the State free from all encumbrances:-
Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years of a khatal in khas lands of the landlords shall not be affected in any way by such vesting. Substituted provision of Section 5 - lands comprised in thika tenancies, khas lands, etc. to vest in the State.- with effect from the date of commencement of this Act, the following lands along with the interest of landlords therein shall vest in the State, free from all encumbrances, namely:-
(a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains;
(b) lands comprised in and appurtenant to bustee on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains;
(c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains;
(d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:
Provided that such vesting shall not effect in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias and occupiers of land coming within the purview of clauses (c) and (d)".
Before considering the effect of repealment of the old provision by the newly substituted provision, we feel it necessary to mention that the Full Bench of our High Court while dealing with the case of Lakshmimoni Das (Supra) had the occasion to consider the provisions of the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as it stood prior to its amendment by Amendment Act of 1993 introducing various changes in the original Act by way of substitution. However, since retrospective effect of the amended provision was given from 18th January, 1982 since when the original provisions of the said Act remained operative, a confusion was created as to which one of these two provisions was to be followed for vesting of the landlord's interest in thika tenancy and/or other land used and/or occupied as khatal, on the date of vesting i.e., 18.01.1882 as contrary intention is reflected in the new legislation on the laws of vesting.
After considering the provisions of the said Thika Tenancy Act of 1981 as it stood originally in Section 5 of the said Act of 1981, the Full Bench of this Hon'ble court in Lakshmimoni Das's case (Supra) held as follows:-
Paragraph 56 (b) " Within the scope and ambit of Section 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure and/or pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease shall vest and save as aforesaid no other land and structure vest under the impugned Act".
The decision of the Full Bench of our High Court in Lakshmimoni Das's case was challenged by the State before the Hon'ble Supreme Court in a Special Leave Petition but the same was ultimately withdrawn as the Act of 1981 was repealed subsequently by the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 with a saving clause for protecting the closed chapter relating to the rights and liabilities of the landlord vis-a-vis the thika tenant already acquired, accrued or incurred under the old Act and to save the land acquisition proceeding which had already been concluded before the new Act of 2001 came into operation and/or to save the pending proceedings under the repealed Act. Thus, the decision which was ultimately taken by the Full Bench of this Hon'ble Court in the case of Lakshmimoni Das (Supra) attained its finality and/or the same has a binding effect on general public as judicial precedent of this court. Thus, if we apply the principle laid down by the Special Bench of this Hon'ble Court in the Lakshmimoni Das's case in the instant case in the context of the original provision of Section 5 of the said Act of 1981, then we have no hesitation to hold that since the private respondents were not thika teants under the Calcutta Thika Tenancy Act, 1949, their tenancy could not have vested in the State by operation of the unamended provision of Section 5 of the said Act.
Since the original provision of Section 5 of 1981 Act was amended in 1993 i.e., after the Full Bench decision was pronounced on 8th July, 1987, it is rightly pointed out by Mr. Mitra, Learned Senior Counsel, that the question of vesting of thika tenancy and other lands and khatals under the amended provision of Section 5 of the said Act is required to be reconsidered afresh in the light of the substituted provisions of the said Act.
By placing both the provisions of the original Section 5 of the said Act and the substituted provision of Section 5 of the said Act, Mr. Mitra pointed out that under the original provision of Section 5 of the said Act, land comprised in thika tenancy and the land used or occupied as khatal along with easements, etc. was vested in the State. According to him, there was no provision of vesting of landlord's interest in other land save and except the land comprised in thika tenancy and khatal lands under the original provision of Section 5 of the said Act. He, by referring to the amended provision of Section 5 of the said Act, pointed out that apart from the thika tenancy land and khatal lands, other lands, held by a tenant under a written lease or otherwise including open space, roads, passages, tanks, pools and drains also vested in the State under the amendment provision of Section 5(c ) of the said Act. He thus, contended that the private respondents' right is required to be considered in the light of the provision of Section 5(c) of the said Act.
Mr. Mukherjee, Learned Senior Counsel appearing for the petitioner refuted such contention of Mr. Mitra by submitting that the interest of the landlord in the other land as mentioned in Section 5(c) of 1981 Act never vested in the State as Act of 1981 was repealed by the subsequent Act of 2001 which provided for vesting of landlord's interest in thika tenancy land and khatal land only. By referring to the provision of Section 4 of 2001 Act, he submitted that apart from thika tenancy land and khatal land, no other land vested in the State under the Act of 1981 which was virtually made inoperative by giving retrospective effect to the Act of 2001 from 18.01.1982. He elaborated his submission by referring to the date of 18th January, 1982 which according to him was a very important date when three incidents occurred simultaneously. He submitted that on the very same day, the Act of 1981 was put into operation; again on the same day the Act of 2001 was made operative and 18th January, 1982 was chosen as the date of vesting under both the Acts, i.e., under the Act of 1981 as well as under the Act of 2001. He thus, contended that when the State Legislature, after considering the Full Bench decision of this Court in Lakshmimoni Das's case (Supra) enacted a new legislation in 2001 for vesting of the landlord's interest in thika tenancy and khatal land only in consonance with the judicial pronouncement of the Full Bench decision of this Hon'ble Court in Lakshmimoni Das's case (Supra) and subsequently the State authority withdrew the Special Leave Petition filed by the State against the said Full Bench decision in Lakshmimoni Das's case from the Hon'ble Supreme Court and also gave retrospective effect to the said Act of 2001 from 18th January, 1982, the State Legislature, according to him, did so with a definite intention of vesting of the landlords interest in thika tenancy and khatal land only under Section 4 of the Act of 2001 with effect from 18.01.1982. In support of his such contention he relied upon a Full Bench Decision of this Court in the case of Renuka Pachal -Vs- Sm. Chapa Guha Neogi and Ors. reported in AIR 1978 (CAL) 457 and contended that by enacting the Act of 2001 in the line of the Full Bench decision of our High Court in Lakshmimoni Das's case (Supra), the State Legislature in fact approved the said decision of the Full Bench by legislative action.
Let us now consider the substance of such submission of the Learned Counsel of the respective parties in the facts of the instant case.
The competence of the legislature to legislate on a repealed law is not under challenge in this writ petition. As such I do not find any necessity to deal with the said subject herein. However, we find some substance in the contention of Mr. Mitra, Learned Senior Counsel in the context of amended provision of Section 5 of the Act of 1981 whereby landlord's interest in some other land apart from the land comprised in thika tenancy and other land which was used and/or occupied by khatals, was sought to be vested under Section 5(c) of the amended provision of the said Act of 1981 w.e.f. 18th January, 1982. He rightly pointed out that under the original provision, only the landlord's interest in the land comprised in thika tenancy and the khatals lands only were sought to be vested in the State. In fact, the Full Bench of this court in Lakshmimoni Das's case (Supra) dealt with the original provision of Section 5 of the said Act and held that under the original provision, apart from thika tenancy property some other land was also sought to be vested in this State. What exactly was meant by use of the expression of other land in the original provision of Section 5 of the said Act was explained by the Full Bench of this Hon'ble Court in paragraph 42 and 43 in Lakshmimoni Das's case (Supra). The relevant part of the said paragraph is set out hereunder.
42. After considering the respective contentions of the learned counsels appearing for the parties it appears to us that for construing the provisions of Section 5 of the impugned Act, the meaning of the expressions 'thika tenancy' and 'other lands' is to be ascertained. According to the submissions of the learned Advocates of the petitioners only thika tenancy lands having temporary or kutcha structure and lands comprising thika tenancies with kutcha structures used as a 'Khatal' are intended to be vested and if in addition to such lands "other lands" unconnected with thika tenancies are also to vest under Section 5 of the impugned Act as sought to be contended by the learned Additional Advocate General, by giving a wide import to the aforesaid expressions such vesting of various categories of lands and structures will lead to a result in some palpable and evident absurdity. The principle of interpretation in such a situation can be found out in the case of A. G. v. Lackwood, reported in (1842) 9 M & W 378 at p. 398. The relevant observation may be quoted as follows : --
"The rule of law I take it upon the construction of all statutes is, whether they be penal or remedial, to construe them according to the plain, literal and grammatical meaning of the words in which they are expressed unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable or evident absurdity."
In Seafore Court Estate Limited v. Asher, reported in (1949) 2 KB 481 at p. 499, Denning L.J. held "We do not sit here to pull the language of Parliament to pieces and make nonsense of it, that is an easy thing to do and it is a language to which lawyers are too often prone. We sit here to find out the intention of the Parliament and the Ministers and carry out duty and we do them proper by filling in the gaps making sense of the enactment than by opening it up by destructive analysis."
43. Keeping in mind of the principle of interpretation indicated hereinabove, an attempt should be made to ascertain what was the mischief sought to be remedied by the impugned legislation. If the interpretation put forth by Mr. Gupta, the learned Additional Advocate General appearing for the State Respondents is accepted in toto, it appears to us that the same would undoubtedly produce palpable injustice, anomaly, contradiction and lead to absurd results and in order to avoid such peculiar situation, a reasonable meaning to those words should be given which does not cause any ambiguity and/or absurdity and the mischief sought to be remedied is also properly achieved. In this connection, the title of the impugned Act may supply some guidance to the construction of Section 5 of the impugned Act. Although, the title does not override the plain meaning of the section but in case of ambiguity and doubt, the title serves as a good guideline. The title of the impugned Act only refers to acquisition and regulation of thika tenancy (by repealing the Calcutta Thika Tenancy Act, 1949). Looking into the history of the legislation and purpose of the legislation, it appears to us that the impugned legislation is plainly to abolish the rights of the landlord over the lands held by thika tenants which were so long governed by the provisions of Calcutta Thika Tenancy Act, 1949. The passage quoted from Cooley's 'A Treatise on the Constitutional Limitations' at pages 143 and 149 since referred to by Mr. Pal appearing for same of the petitioners may not be wholly applicable while construing a provision of statute in our country. The legislation in our country is not bound by the title to an Act strictly and the legislature can travel beyond the title but at the same time Constitution makers did not intend that the legislature will pass an altogether different Act under the cover of a title thereby misleading the legislators themselves and also the authority requiring to give assent to the legislation. In our view, it should be the endeavor for the Court to strike a balance by giving a meaning which has connection with the title of the Act and the intention of the legislature and the evil sought to be remedied. At the same time, the Court has to interpret the Act in such a manner so that it may not lead to any destructive result and/or absurd or inconsistent situation. In our view, while interpreting the words "other lands" after the words 'thika tenancy' the legal maxim ejusdem generis (of the same kind) and the maxim 'noscitur a sociis' (a thing is known by its companion) should be borne in mind.
Applying these legal maxims, it appears to us that 'other land' appearing in Section 5 of the impugned Act must mean land falling under the category of thika tenancy land. This general word following a specific word must apply not to different objects of a widely differing character, but something which can be called a class or kind of objects. In this case, from the title, preamble of the Act, the intention of the legislature as also on consideration of the mischief sought to be remedied by the impugned Act it must be held that 'other land' must be land coming within the category of thika tenancy land. If however appears that besides the lands comprising thika tenancies lands used as khatals and the right, title and interest of landlord in such khatals are intended to be vested under Section 5. Lands comprising pucca and permanent structures erected by the tenant for user of the land for khatals and lands used for khatals held under a lease for a period beyond twelve years cannot comprise thika tenancy within the meaning of 'thika tenancy' under the Calcutta Thika Tenancy Act. It also appears to us that the expression 'thika tenancy' under the aforesaid Act has been judicially noted in various decisions of this court as referred to by Mr. Pal and it must be accepted that the Legislature is aware of the meaning of such expression and has, therefore, used the expression on the basis of the said accepted meaning. But it appears to us that Section 5 expressly envisages vesting of khatals although all khatals may not conform to 'thika tenancy' within the meaning of thika tenancy under the Calcutta Thika Tenancy Act, 1949 which is repealed by the impugned Act. In view of express reference of khatal without any reservation in Section 5, we are inclined to hold that although the impugned act is essentially a piece of legislation for vesting of thika tenancy lands and temporary or kutcha structures thereon and for regulation of such lands and structures and the title of the Act and the provision for repealing the Calcutta Thika Tenancy Act, 1949 also conform to such intention and purpose of the impugned legislation, khatal lands held on lease even if such lands do not comprise thika tenancy within the meaning of thika tenancy under the Calcutta Thika Tenancy Act also vest under Section 5. It appears to us that most of the khatals comprise kutcha or temporary structure and they also comprise thika tenancies within the meaning of 'thika tenancy' under the said 1949 Act. We may also take judicial notice that in majority cases, thika tenancies comprise bustees and/or slums and the legislature has intended to vest thika tenancies and structures thereon for regulating such thika tenancy lands. It therefore appears to us that with an intention to regulate khatal lands, along with other underdeveloped lands and structures mainly comprising bustees or slums, the legislature has expressly included khatals in Section 5 for the purpose of vesting of such khatals and consequential control and regulation of khatals. We therefore approve the interpretation of Section 5 of the impugned Act as made in the Bench decision of this Court in Jatadhari Daw's case, Appeal No. 239 of 1978 reported in (1986) 1 Cal HN 21. Save as aforesaid, no other land or structure vest under the impugned Act.
Thus we find that the Full Bench of this Hon'ble Court held in no uncertain term in the said Lakshmimoni Das's case (Supra) that no other land save and except the thika tenancy land and khatal land, could be vested under the original provision of Section 5 of the Act of 1981. Now let us consider the effect of the amended provision of Section 5 of the Act of 1981 which the Special Bench had no occasion to consider as the said amended provision was introduced in the Act of 1981 after the judgment was delivered by the Special Bench in Lakshmimoni Das's case (Supra).
On plain reading of the amended provision of Section 5 of the said Act, it appears to us that apart from thika tenancy property and/or the khatal land, some other land which was neither thika tenancy land nor khatal land, was sought to be vested under Section 5(c) of the said Act.
We feel that deep analysis of this provision is necessary to find out the real intention of the legislature in introducing the said amendment. Did the State Legislature really intend to vest land of any description which was let out to tenant either under a written lease or otherwise? Had it really been so, then while enacting a new legislation on the very same subject in 2001, the State Legislature would not have omitted the provision regarding vesting of other land which was there in the Act of 1981 from the Act of 2001.
If we compare the original provision of Section 5 of the Act of 1981 with the amended provision of Section 5, then it appears to us that the provision relating to vesting of thika land and other land either occupied and/or used as khatal which was there in the original provision of Section 5 was retained in the amended provision of Section 5 of the said Act. What more was introduced in the amended provision was vesting of Bustee land situated in the khas land of the landlord, land in slum areas and other land which was neither thika tenancy land nor Bustee land, nor land in slum area nor land occupied and/or used as khatal. Then what was actually intended by introducing the provision of vesting of other land under Section 5 (c) of the amended provision? Other land was defined in Section 3 (5A) which included vacant land or tank. Tenant of other land was defined in Section 3(7B) of the amended provision which says that tenant of other land means any person who occupies other land under another person, whether under a written lease or otherwise, and is or but for a special contract would be liable to pay rent at a monthly or periodical rate for occupation of such other lands, and includes the successor-in-interest of such person. Thus, if Section 5 (c) is read conjointly with Section 3(5A) and Section 3(7B) then it leads us to hold that whenever any land including vacant land or tank is let out to a tenant by the landlord even for a day or a month at a daily or monthly rate, the landlord's interest in such land will vest in the State under Section 5 (c) of the said Act by overriding the provision of the Transfer of Property Act (Central Law) governing the relationship of landlord and tenant. If we hold as such , it will lead to absurdity. Probably the State Legislature, after considering the absurdity and/or impossibility of implementation of the amended provision of the Act of 1981, dropped the idea of vesting of other land and accordingly omitted the said provisions while legislating on the same subject in 2001. Such intention of the legislature will be clear, if we consider the State Legislature's choice of the date of enforcement of 2001 Act. In fact two contradictory provisions cannot co-exist and operate simultaneously in the same field. When the subsequent legislation conveys a different intention relating to the laws of vesting than that of the idea of vesting introduced in the earlier Act, it goes without saying that the earlier Act was repealed. Having regard to the fact that the Act of 2001 was given effect from the very same date on which the Act of 1981 was enforced, we have no hesitation to hold that State Legislature practically abandoned its idea of vesting of any other land apart from thika tenancy land and khatal land as on 18.01.1982 and this conclusion is drawn by us as we find that the Act of 2001 was given retrospective effect from the very same date when the Act of 1981 was enforced. Again if the provisions of the Act of 2001 is considered, then it goes without saying that the provision relating to vesting of landlord's interest in the thika tenancy and khatal land was made in the said statute in conformity with the Full Bench Decision of this Court in Lakshmimoni Das's case (Supra). Omission of the provision relating to vesting of other land was also made in conformity with the said decision of the Full Bench Decision in Lakshmimoni Das's case (Supra). As such, we have no hesitation to hold that idea of vesting the landlord's interest in the other land in the State under the Act of 1981 was abandoned by the State. However, in view of the savings clause provided in the Act of 2001, the vesting which had already taken place under the Act of 1981 in respect of thika tenancy land and khatal land was saved. That apart having regard to the fact that the operation of the Act of 1981 in respect of the petitioners' property was stayed by this court, the landlord's interest in the said premises could not have vested under 1981 Act. Then again the private respondent also did neither submit any return under 1981 Act claiming their tenancy under the State nor did they ever claim the landlord's interest vested under the said Act.
Thus, we hold that the landlord's interest in the said property never vested in the State under the said Act of 1981.
Then again if 2001 Act is taken into consideration then also we hold that the landlords' interest in the said premises could not have vested in the State by treating the land comprised in the petitioners' premises as thika tenancy land for the following reasons:-
Definition of thika tenant as contained in Section 2 (14) of the Act of 2001 and the subsequent amendment thereof are required to be considered in this regard.
Sec. 2(14) "thika tenant" means any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such persons but excludes any resident of a structure forfeited to the State under sub-section 2 of Section 6 of this Act irrespective of status, he may have enjoyed earlier.
The definition of thika tenant under Section 2 (14) of 2001 Act as mentioned above was almost identical with the definition of thika tenant as mentioned in Section 3(8) of 1981 Act except the exclusion part regarding structure which stood forfeited to the State under Sub-Section 2(6) of the said Act. The definition of thika tenant in Section 2(14) of Act of 2001 was amended by the Amendment Act of 2010 and thereby the words "by purchase or gift any structure on such land" was substituted by the words "by purchase or gift any structure including pucca structure if any on such land". Thus the expression "pucca structure" was included in the definition clause of Section 2 (14) of the said Act for the first time by the Amendment Act of 2010 and effect of such amendment was given prospectively with effect from 1st November, 2010. The effect of the amendment was not given from the date when the 2001 Act came into operation from 18th July, 1981. Thus, existence of pucca structure on the said land as on 1st November, 2010 will itself be of no help to the private respondent inasmuch as on 1st November, 2010 there was no subsisting lease and/or contract under which original lessees were liable to pay rent to their landlords in respect of the land comprising in the said premises. The lease dated 15th December, 1973 expired by efflux of time on 30th September, 1993. After expiry of the said lease, the lessees became trespassers and/or at best they may be regarded as tenant by sufferance who had no liability to pay rent to their landlord either under the said lease which stood expired in 1993 or under any other law. Thus, the first part of the requirement of Section 2(14) of the said Act is not fulfilled in the instant case. As such the land which was comprising in the said tenancy of the predecessor-in-interest of the private respondent cannot vest with the State under Section 4 of the said Act.
We fully agree with the contention of Mr. Mukherjee, Learned Senior Counsel that the expression "structure" including pucca structure was included in Section 2(14) of the said Act only for recognizing the tenancy of those thika tenants who constructed such pucca structure with the permission of the Thika Controller either under the provision of Section 10 A of the Calcutta Thika Tenancy Act, 1949 or constructed such pucca structure as per the provision contained in sub-section 6 of Section 4 of the Act of 1981 in accordance with a building plan sanctioned by the Calcutta Municipal Corporation and/or Howrah Municipal Corporation as the case may be, so that the penal provision for raising such unauthorized pucca structure is not attracted against the thika tenants by following the Division Bench decision in the case of Purushottam Das Murarka -Vs- Harendra Krishna Mukherjee (Supra). The relevant part of the said decision is set out hereunder:-
"But there cannot be any doubt and it is also not disputed on behalf of the appellant that, if during pendency of his lease, a thika tenant constructs or attempts to construct pucca structures on the demised land without the permission of the landlord, he does not cease to be a thika tenant. The landlord will have the right to bring an action against the thika tenant for the purpose of restraining him from constructing a pucca structure on the demised land or a mandatory injunction dire ting the tenant to demolish the pucca structures which he constructed during the pendency of his lease without the consent of the landlord".
In fact, this was the decision which was misconstrued by the Thika Controller while drawing his conclusion that since thika tenant raised pucca construction during continuance of his lease, they became thika tenant. In our reading, we find a different principle was laid down in the said decision which could not be properly understood by the controller and the Tribunal which ultimately affirmed the Controller's said order. It was simply decided therein that if a thika tenant raises any pucca construction during the continuance of his lease without the landlord's consent, then the landlord may initiate action for demolition of such unauthorized construction. It was never held in the said decision, that if tenant of a land raises pucca structure, he will automatically be a thika tenant. Since the said decision was the sheet anchor for coming to the conclusion that the private respondents were thika tenant, we cannot approve the said order of the Controller for the aforesaid reason.
Thus, we conclude by holding that the Controller and the Tribunal were not justified in holding that the private respondents were thika tenants in respect of the petitioners' said premises and the landlord's interest in the said premises vested with the State under the Act of 2001 with effect from 18th January 1982. The impugned order passed by the Tribunal is thus set aside. The writ petition is thus allowed.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) I agree (Ishan Chandra Das, J.) Later After delivery of the judgment, Mr. Bose, Learned Advocate, appearing for the private respondents, prays for stay of the operation of the order for a period of six weeks for enabling his clients to challenge this order before the higher forum.
Mr. Mukherjee opposes such prayer for stay.
Considering such prayer and having regard to the fact that the status-quo with regard to the possession of the private respondent was directed to be maintained all through out during the pendency of this proceeding, we direct that the operation of the order will remain stayed for a period of four weeks from date.
On prayer of Mr. Mukherjee, Learned Senior Counsel appearing for the petitioner, leave is granted to the Learned Advocate-on-record of the petitioner to correct the prayer portion of the writ petition.
(Jyotirmay Bhattacharya, J.) I agree (Ishan Chandra Das, J.)