Calcutta High Court (Appellete Side)
4 vs Santi Roy @ Santi Chandra Roy on 21 March, 2013
Author: Harish Tandon
Bench: Harish Tandon
1 21.03.20 ar 13 CO 403 of 2013 23 Tapas Dey 4 Vs. Santi Roy @ Santi Chandra Roy Mr. Tapas Kumar Mondal Mr. Anupam Bhattacharjee ... For the Petitioner Mr. Amit Chowdhury ... For the Opposite Party This revisional application is directed against Order No. 1, dated January 05, 2013 passed by the learned Additional District Judge, Sealdah, in Misc. Appeal No. 1 of 2013, by which an application for stay of the operation of the order impugned therein is rejected. The plaintiff/opposite party filed a suit for declaration that the tenancy agreement dated March 06, 2007 is binding upon the defendant/petitioner and they have no right to change the mode of user from residential to commercial purposes.
In paragraph 4 of the plaint, the plaintiff/opposite party categorically asserted that he is a thika tenant and the defendant is a bharatia under him.
The Trial Court on an application for temporary injunction passed an ad interim order 2 of injunction restraining the defendant/petitioner from changing the mode of user of the suit premises till January 21, 2013.
The Misc. Appeal was filed against the ad interim order of injunction, which is still pending.
Learned advocate, appearing for the petitioner, tried to convince this Court that any matter touching the thika tenanted property is required to be adjudicated by the Thika Controller and the Civil Court's jurisdiction is barred.
I am afraid that such is not the position under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
Section 9(1) of the said Act says that the relationship between the thika tenant and the bharatia shall be governed by the West Bengal Premises Tenancy Act, 1997.
Sub-section (2) thereof provides that any question as to whether a person is a bharatia under a particular thika tenant arises, the same would be considered and determined by the Thika Controller.
Sub-section (3) thereof relates to the determination of a dispute relating to the payment of rent by a thika tenant to the State 3 Government or a bharatia to a tenant or in case of eviction of a bharatia shall be disposed of by the Controller.
Section 28 of the said Act excludes the jurisdiction of the Civil Court relating to any matter which is required to be determined by the Controller. The Controller has not been conferred any right to grant a decree for declaration which is conferred upon the Civil Court.
The averments made in the plaint would show that the said suit is basically a suit for declaration that the defendant has no right to change the mode of user. Such situation is not contemplated under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. Learned advocate, appearing for the defendant/petitioner is not correct in contending that any matter which touches the thika tenancy is required to be heard and determined by the Thika Controller.
The Court should always upheld the jurisdiction of the Civil Court unless it is expressly and/or by necessary implication barred by Law.
Therefore, the provision, which contains the 4 ouster of the jurisdiction of the Civil Court, should be strictly construed. This Court, therefore, does not find that the submission made by the petitioner can at all be entertainable.
This Court, therefore, does not find any merit in the revisional application. The same is hereby dismissed.
However, there shall be no order as to costs. Urgent photostat certified copy of this order be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.) 5