Calcutta High Court (Appellete Side)
For The vs Kanailal Ghosh & Ors.) on 25 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 25.04.2012 r.
C.O. 2471 of 2011 With C.O. 206 of 2011 Mr. Souradipta Banerjee, Mr. P.C. Mitra, Mr. C. Chakraborty .... For the petitioner.
( in C.O. 2471 of 2011).
Ms. Sabita Mukherjee , ..... for the O.P. ( in C.O. 206 of 2011) Mr. S. Talukdar ..... for the Ld. Advocate General. In this revisional application the jurisdiction of the Small Causes Court at Calcutta to decide the suit for recovery of possession filed by a thika tenant against the bharatia before the Small Causes Court at Calcutta. It appears that on an earlier occasion while admitting the revisional application, the learned Advocate General was invited to assist the court to resolve the dispute that have arisen in the revisional application in view of the apparent magnitude in the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001.
It appears that certain issues were raised and handed over to Mr. Talukdar, learned advocate appearing on behalf of the learned Advocate General of the West Bengal and two weeks time was granted to respond to such issues.
Mr. Souradipta Banerjee, learned advocate appearing on behalf of the petitioner handed over the issues that was suggested during the hearing of the matter on 1st December, 2011 to which Mr. Talukdar was to respond. Such issues were placed before His Lordship and also duly communicated to Mr. Talukdar in Court. The said issues are as follows:
"1. Whether Section 8(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is in contravention to the spirit of the entire Act.
2. Whether the learned Judges hearing out eviction suits under the provisions of the West Bengal Premises Tenancy Aft, 1997 are competent to decide the eviction suits in respect of 2 properties which are covered under provisions of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
3 Whether the dispute between the Thika Tenant and Bharatia regarding the payment of rent, eviction, etc. shall be heard and decided by the concerned Judges hearing matters arising out of West Bengal Premises Tenancy Act, 1997.
4. Whether the provisions of Section 21 of the West Bengal Thika Tenancy(Acquisition and Regulation) Act, 2001 are in contravention of provisions of West Bengal Premises Tenancy Act, 1997.
5. What would be the forum of appeal and second appeal if a Controller under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 decides the dispute regarding eviction between the Bharatia and Thika Tenant.
6. Kindly consider the ratio laid down in 2006 (Vol-1) SCC-175 (Narayan Chandra Ghosh & Ors. -vs- Kanailal Ghosh & Ors.), 1982 (Vol-2) Calcutta Law Journal-143 (Mrs. Qaiser Jahan -vs- Mahammad Yawoob) and 2009 (Vol-1) Calcutta Law Journal (Calcutta)-990 (Smt. Samsunnessa -vs- Sher Khan & Ors.)
7. What would be the fate of the pending ejectment suits concerning thika tenanted properties now pending before the various Courts specially empowered to take up eviction suits under the West Bengal Premises Tenancy Act, 1997."
Mrs. Sabita Mukherjee(Roychowdhury), learned advocate appearing on behalf of the opposite party of the plaintiff/thika tenant raised three additional issues, which are as follows:
"I. Whether by amendment of the Thika Tenancy Act a Controller can be considered to be a Civil Judge empowering them to exercise the jurisdiction vested in such Civil Judge regarding the dispute relating to eviction of tenant which dispute is legally required to be tried and disposed of by a Civil Judge?
II.) Whether the provisions contained in Sub-section 1 and Sub-Section 3 of Section 8 of the said Thika Tenancy Act are self contradictory? 3
III) Whether an officer (Executive) can be designated as a Civil Judge for deciding those questions of law and fact which are mandatorily required to be heard, tried and disposed of by a Civil Judge of competent jurisdiction?"
Mr. Talukdar, learned advocate appearing on behalf of the learned Advocate General submitted that the matter may be fixed on a date so that the learned Advocate General could respond to such issue raisedand to make necessary submission in this regard and assist the Court.
In view thereof, let this matter appear in the list on 10th May, 2012 at 2 P.M. under the same heading.
Let a photostat plain copy of this order duly countersigned by the Assistant Registrar(Court) be handed over to the learned advocate for the parties on usual undertaking.
(Soumen Sen, J.)