Calcutta High Court (Appellete Side)
Sachindra Nath Coomar & Anr vs The Collector South 24-Parganas & Ors on 13 August, 2013
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
13.08.2013. W. P. No. 5003 (W) of 2003
dc.
Sachindra Nath Coomar & Anr.
versus
The Collector South 24-Parganas & Ors.
Mr. Kasinath De,
Mr. Sandip Kumar De ... For the Petitioners.
None appears on behalf of the State-respondents at the
time when this application is taken up for hearing. Accordingly this writ petition is taken up for consideration ex parte against the State-respondents.
Here is the case where this Court finds that the Government Khasmahal land measuring about 7 biggha 17 cottah 10 chitak 40 sq.ft. which was leased out to the petitioners' grandfather viz., Suresh Chandra Coomar expired by efflux of time on 31st March, 1935. Subsequent lease in respect of the said plot of land which was granted to the petitioners' father also expired by efflux of time on 31st March, 1965. Thereafter admittedly the State-respondents continued in realising the lease rent from the petitioners up to 31st March, 1967 by treating the said tenancy held over by the petitioners.
By the impugned notice dated 22nd November, 2002, the tenancy of the petitioners was terminated with effect from 1st April, 1967 allegedly for violation of the term of the lease 2 agreement as per the provision of Section 111 of the Transfer of Property Act, 1882.
The legality and/or propriety of the said notice issued by the Additional District Magistrate and District Land & Land Reforms Officer, South 24-Parganas appearing at page 25 of the writ petition is under challenge in this writ petition at the instance of the petitioners.
It is rightly contended by Mr. De, learned advocate appearing for the petitioners that after expiry of the lease by efflux of time with effect from 31st March, 1965, the terms of tenancy were not governed by the provisions of the said lease deed. As such, Section 111 of the Transfer of Property Act has no application in the facts of the instant case.
This Court finds substance in such contention of Mr. De as in my view the State-respondents cannot invoke the provision of Section 111 of the Transfer of Property Act for termination of the said lease for violation of the terms of the said lease agreement particularly when the tenancy of the petitioners ceased to be governed by the terms of the said lease deed with effect from 31st March, 1965. Termination of the petitioners' lease by the impugned notice, in my view, cannot be sustained in law.
That apart, here is the case where this Court finds that even after expiry of the said lease deed by efflux of time, rent was realised by the State-respondents from the petitioners herein by recognising them as tenants in respect of the demised property.
3When the names of the petitioners were mutated in the revenue record as tenants under the State and rent was realised from them in respect of the said tenancy, this Court is of the view that a new relationship of landlord and tenant between the State Government and the petitioners was created by way of payment and acceptance of such rent in respect of the said demised property.
Thus by relying upon the decision of this Hon'ble Court in the case of Panchu Molla Vs. State of West Bengal & Ors. reported in 1980 (2) CLJ 1, this Court holds that the petitioners had acquired tenancy in respect of the demised property under the State independent of the said lease.
In view of the facts and circumstances as stated above, the impugned notice appearing at page 25 of the writ petition stands quashed. The writ petition is thus allowed.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.)