Calcutta High Court (Appellete Side)
Kamal Kumar Mitra vs Arun Kumar Chatterjee And Others on 12 November, 2014
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Asim Kumar Mondal
F.M.A. No. 441 of 1996
and
W.P.L.R.T. No. 656 of 2007
Kamal Kumar Mitra
...Appellant.
Versus
Arun Kumar Chatterjee and others.
...Respondents.
For the appellant: Mr. Haradhan Banerjee,
Mr. Asit Kumar Bhattacharyya (III).
For the respondent no. 1: Mr. Joydeep Kar,
Mr. Ayan Chakraborty.
For the Kolkata Municipal Corporation: Mrs. Smritikana Mukherjee,
Mr. Debjit Mukherjee.
For the State respondents: Mr. Tapan Kumar Mukherjee (III),
Mr. Hasanuzzman.
Judgment on: November 12, 2014.
Subhro Kamal Mukherjee, J.:
We are invited to decide an appeal against judgment and order dated February 22, 1996 passed by the learned Assistant District Judge, Eighth Court at Alipore, district - South 24 Parganas in Miscellaneous Case No. 1 of 1995 as also an application under Article 226 of the Constitution of India, challenging the judgment and order dated May 16, 2007 passed by the West Bengal Land Reforms and Tenancy Tribunal in Original Application No. 527 of 2005.
Admittedly, one Jogesh Chandra Sinha was the absolute owner and in possession of the disputed property. Jogesh Chandra Sinha died leaving behind his two sons, namely, Prabhat Kumar Sinha and Arun Kumar Sinha, and his pre-deceased daughter, namely, Prativa Mitra's three daughters and one son, as his only heirs and legal representatives.
Thus, Prabhat Kumar Sinha and Arun Kumar Sinha acquired one-third share each in the property-in-dispute, while the heirs and legal representatives of Prativa Mitra inherited one-fiftinth share each in the said disputed property.
There has been a partition suit in the court of the learned Assistant District Judge, Eighth Court at Alipore, district - South 24 Parganas in relation to the properties left by Jogesh Chandra Sinha including the disputed property. The suit was registered as Titile Suit No. 58 of 1972. The suit was decreed in preliminary form, on January 25, 1974, which was followed by a final decree, inter alia, allotting the disputed property in favour of this appellant.
The decree was put to execution and in such execution case delivery of possession was ordered, but the possession could not be delivered fully in view of the resistance by the respondent no. 1 in this appeal, namely, Arun Kumar Chatterjee.
In the aforementioned background, the said Arun Kumar Chatterjee filed an application under Order 21, rules 99 and 100 read with Section 151 of the Code of Civil Procedure in the execution case asserting his independent right. The said application was registered as Miscellaneous Case No. 1 of 1995 in the said court.
It is contended by the said Arun Kumar Chatterjee that in the year 1969, Prabhat Kumar Sinha and Arun Kumar Sinha executed a deed of lease in respect of 'A' scheduled property being 18 (eighteen) cottahs of land with structures and sheds thereon. It was contended that he had been dispossessed in relation to 'B' scheduled property, which has been part of the 'A' scheduled property, in execution of the said decree although he was not a party to such suit. It was contended that, after he was inducted as a lessee, he has been residing there with the members of his family and has been carrying on timber business, constructing building and sheds.
It is, of course, an admitted position that Prabhat Kumar Mitra and Arun Kumar Mitra executed the lease deed, but the heirs and legal representatives of their sister, namely, Pratibha Mitra were not parties to the said deed. It has been proved in the said miscellaneous case that lessors collected lease rent from the said Arun Kumar Chatterjee. It was proved that the said Arun Kumar Chatterjee, after promulgation of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, submitted his return and, thereafter, deposited rent by challans in favour of the State.
The said Arun Kumar Chatterjee, therefore, claimed that he was a thika tenant and after promulgation of the said Act, the properties stood vested in State and he became direct tenant under the State.
This appellant, however, raised an objection that he was not concerned with the deed of lease inasmuch as he was not a party to the deed of lease. The property has, since, been allotted to him and, therefore, he is entitled to take possession of the property-in-suit in execution of the said decree. It was, specifically, denied that the said Arun Kumar Chatterjee was ever a thika tenant or that the properties stood vested in State.
The learned Assistant District Judge allowed the said application filed under Order 21, rules 99 and 100 read with Section 151 of the Code of Civil Procedure holding that the decree was not executable against the said Arun Kumar Chatterjee.
There has been a proceeding before the Thika Controller, Calcutta and, ultimately, the Additional Thika Controller, by order dated December 14, 2004, inter alia, acknowledged the thika tenancy right of the said Arun Kumar Chatterjee in the disputed property.
Being aggrieved by the said order, these petitioners in the application under Article 226 of the Constitution of India challenged the same before the West Bengal Land Reforms and Tenancy Tribunal. The proceeding was registered as Original Application no. 527 of 2005.
The said tribunal, by the judgment and order dated May 16, 2007, dismissed the said original application and affirmed the order passed by the Additional Thika Controller.
Admittedly, Prabhat Kumar Sinha and Arun Kumar Sinha executed a registered deed of lease with effect from June 1, 1969 ending with May 31, 1990, that is, for more than 12 years.
We believe the point is no longer res integra.
In Bharat Petroleum Corporation Limited versus Aarvee Finvest Primate Limited reported in (2013) 4 Calcutta Law Times 386(HC), it has been held that the amended definition of the West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010, did not redefine the thika tenancy as defined in the Calcutta Thika Tenancy Act of 1949, in the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 or as originally in the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. The amended Act of 2010 amended the definition of thika tenant under Section 2(14) of the said Act of 2001 only and that too with effect from November 1, 2010.
The thika tenancy dealt with by the said Act of 1981 or by the said Act of 2001 was a thika tenancy as it existed on January 18, 1982 when both the Acts were brought into force.
The said Act of 1949 was introduced to protect the interests of the thika tenants. The thika tenant was defined under Sub-section (5) of Section 2 of the said Act, 1949, which runs as under:
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 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 khattal."
Therefore, under the said Act of 1949, the said Arun Kumar Chatterjee could not be treated as a thika tenant as he was holding the land under a registered lease executed in 1969 for a term of more than 12 years.
In Lakshmi Moni Dasi versus State of West Bengal reported in (1987) 2 CHN 148, a special division bench of this Court held:
"(a) The impugned Act is not protected under Article 31C of the Constitution of India as it is found on scrutiny of different provisions of the impugned Act that the impugned Act has not been enacted to give effect to provisions of Articles 39(b) and (c) of the Constitution and the impugned Act is open to challenge on the score of violations of part III of the Constitution.
"(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 a 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 vests under the impugned Act."
However, the decision of the said special division bench was challenged before the Supreme Court of India. We are, now, informed that with the enactment of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001, the appeal has been withdrawn.
During the pendency of the matter before the Apex Court, the next Act, namely, the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 was enacted. The Act of 2001 repealed said Act of 1981. The said Act of 2001 was given effect from January 18, 1982, that is, from the same date on which the said Act of 1981 was brought into force.
The said Act of 2001 has wider application. Apart from the Kolkata and the Howrah Municipal Corporations, the lands within other municipalities in West Bengal were brought under the applicability of the said Act.
Sub-section (14) of Section 2 of the said Act of 2001 originally defined the thika tenant as follows:
"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 the successors-in-interest of such person..."
The above quoted original definition of thika tenant was amended by the West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010. By the said amendment Act, the following words "by purchase or gift any structure on such land" occurring in the original definition were substituted by the words "by purchase or gift any structure including pucca structure, if any, on such land."
The 2010 Amendment Act was a piece of conditional legislation. The amending legislation became an Act with the publication of the assent on October 5, 2010.
Section 1(2) made the Amending Act conditional in the sense that it provided that it would come into force on such date as the State Government by notification in the Official Gazette appoint. The Amending Act did not at all provide for any retrospective operation for the amended provisions. It is admitted that the Amending Act was enforced with effect from November 1, 2010.
The result is that the substitution in the definition of thika tenant became operative only with effect from November 2010 and not earlier.
The amended definition of 2010 did not redefine the thika tenancy as defined in the said Act of 1949, in the said Act of 1981 or as originally in the said Act of 2001. The amendment Act of 2010 amended the definition of thika tenant under section 2 (14) of the said Act of 2001 only and that too with effect from November 1, 2010.
The thika tenancy dealt with by the said Act of 1981 or by the said Act of 2001 was a thika tenancy as it existed on January 18, 1982 when both the Acts were brought into force.
The said Act of 2001 like the said Act of 1981 provided for continuance of thika tenants after vesting of the lands along with the landlord's interest. Several incidences of tenancies in respect of lands vested in the State were indicated in both the Acts.
The amendment definition of thika tenancy under the said Act of 2001 has nothing to do with the thika tenancies, which were liable to be vested with the coming into force of the said Act of 1981 on January 18, 1982. The amended definition deals with a post-vesting thika tenant continuing to hold under the State with the extended right to make pucca structures.
With the expiry of the lease on May 31, 1990, the said Arun Kumar Chatterjee became a trespasser of the premises and, therefore, he has no legal right to possess the property.
Thus, we hold that the court below as also the tribunal erroneously held that Arun Kumar Chatterjee has become a direct tenant under the State and, thus, was not liable to be evicted in execution of the decree passed in the said partition suit.
The order dated February 22, 1996 passed by the learned Assistant District Judge, Eighth Court at Alipore, district - South 24 Parganas in Miscellaneous Case No. 1 of 1995, is set aside.
The order dated May 16, 2007 passed by the West Bengal Land Reforms and Tenancy Tribunal in Original Application No. 527 of 2005 and the order passed by the Additional Thika Controller dated December 14, 2004 are, also, set aside.
The application filed by the said Arun Kumar Chatterjee under Order 21, rules 99 and 100 read with Section 151 of the Code of Civil Procedure is rejected and the executing court is directed to execute a decree at once.
Thus, the appeal and writ petition are allowed.
We make no order as to costs.
(Subhro Kamal Mukherjee, J.) Asim Kumar Mondal, J.
I agree.
(Asim Kumar Mondal, J.)