Calcutta High Court (Appellete Side)
2471/2011 on 10 May, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 2012 70 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).
Mr. Hahar Chakraborty, Ms. Sabita Mukherjee , ..... for the O.P. ( in C.O. 206 of 2011) Mr. Aninda Mitra, Adv. General.
Mr. S. Talukdar ..... for the State.
In the first paragraph of the order dated 25th April, 2012 the word "magnitude" should be replaced by the word "ambiguity" and such correction be incorporated in the said order.
The learned Advocate General appeared and submitted that there is no apparent inconsistency between Section 8(1) and Section 8(3) of the West Bengal Thika Tenancy Laws. It is submitted that under the scheme of the Act, the State is the landlord and the interest of the landlord that has been taken away. The Act contemplates a eviction proceeding initiated by a thika tenant against bharatia. He refers to the preamble of the said statute and the definition of thika tenant in Section 2(14) and submitted that the interest of the landlord is vested in the State. However, any dispute relating to rent and eviction initiated by thika tenant against the bharatia, the same is to be governed by West Bengal Premises Tenancy Act, 1997. It is argued the expressing "provision" used in Section 8 is followed by the "West Bengal Premises Tenancy Act, 1997" which means that scope of the said provision has been narrowed down only in relation to the matters relating to payment of rent and eviction proceeding initiated by the Thika Tenant against the bharatia and not in relation to any other matters. It is submitted that in making reference to the West Bengal Premises Tenancy Act, the legislatures intended to convey that the substantial provision of the West Bengal Premises Tenancy Act would govern a proceeding 2 initiated by a thika tenant against the bharatia only in relation to the said matters, namely, payment of rent and eviction of thika tenant and not in respect of any other matter. The learned Advocate General submits that Section 21 of the said Act creates exclusive jurisdiction in relation to such matters by conferring a jurisdiction upon the Controller to decide only the said two issues and no other matter and in view of the such exclusive jurisdiction, the Controller is the authority to decide any dispute relating to payment of rent and eviction by taking into consideration the substantive provisions of the West Bengal Premises Tenancy Act. The pr0vision of W.B.P.T. Act for payment of rent and grounds for eviction would be the guiding principles and of assistance to the Controller in deciding a dispute arising under the provisions of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 in relation to the aforesaid issues and accordingly it cannot be said that there is any conflict or contradiction between the two provisions, namely, Section 8(1) and 8(3) of the said Act. In referring to Section 2(e) and 3 of the West Bengal Premises Tenancy Act 1997, it is submitted that it would appear that certain premises has been exempted from the purview of the West Bengal Premises Tenancy Act. The interest of the landlord by reason of Thika Tenancy Act is now vested in the state and only a special right is created in favour of the thika tenancy and bharatia in relation to payment of rent and eviction proceeding which is to be governed by the provisions of West Bengal Premises Tenancy Act, 1997. It is submitted that Section 8(1) refers to the provision of the West Bengal Premises Tenancy Act 1997 only with regard to payment of rent and eviction proceeding by way of reference only and he refers to the decision reported in 2007(4) SCC 685 with regard to the implication of reference of a statue in another statute. There is a distinction between incorporation and reference. It is submitted that the mentioning of the applicability of the provision of the West Bengal Thika Tenancy Act is by way of reference. It is submitted that Section 21 of the Thika Tenancy Act starts with a non-substantive clause and accordingly it is the Controller who would be competent to decide such matter and any other earlier statute containing such non obstante clause in relation to such matters would not be applicable in view of the Thika Tenancy Act which is a later statute starting with a non-obstante clause. He relied 3 upon a decision reported in 2008(8) SCC 667 for the proposition that in case both the statutes contain non obstante clause in case of any conflict the later statute would prevail.
Let this matter appear on 12th June 2012 under the heading "part-heard contested application" at 2 p.m. (Soumen Sen, J.)