Calcutta High Court
Shree Shree Iswar Satyanarayanjee vs Shree Rani Sati Jute Pvt. Ltd on 17 March, 2017
Author: Soumen Sen
Bench: Soumen Sen
OD-21
ORDER SHEET
EC 71 of 2004
GA 204 of 2017
GA 2295 of 2016
With
GA 486 of 2005
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
SHREE SHREE ISWAR SATYANARAYANJEE
VERSUS
SHREE RANI SATI JUTE PVT. LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 17th March, 2017.
Appearance:
Mr.Debnath Ghosh, Adv.
Ms.Monika Ghosh, Adv.
Mr.Arnab Mukherjee, Adv.
Mr.Puspendu Chakraborty, Adv.
Mr.Surjodipta Seth, Adv.
Mr.Rapayan Deb, Adv.
Mr.S.S. Bhutoria, Adv.
The Court:- The applicants are 119 in number.
The applicants resist the execution of the decree passed against
Rani Sati Jute Mills.
2
The principal defence taken to resist the execution application is
that the applicants are bharatiyas under 13/14 thika tenants.
The applicants never dispute that the decree-holder has become
the owner of the property in question by virtue of a Court sale
conducted in the year 1895 along with the structures and they were
inducted as tenants in respect of the property by 13/14 persons whom
they described as thika tenants in their counter-affidavit filed before
the Hon'ble Supreme Court.
Lest I make a mistake in appreciating the defence professed
before the Hon'ble Supreme Court in the counter-affidavit of the said
applicants, I quote the averments made in the said proceeding by the
applicants.
" 4.That the respondents herein have paid monthly rents for occupying
their respective portions to the respective 13/14 original tenants till the year 2004 and thereafter had not paid any rents since the respective 13/14 original tenants have never requested and/or collected the same from the respondents herein.
6.That the respondents herein submit that as a matter of fact the petitioners/owners had purchased the land along with the then existing buildings and other pucca structures by a court sale in the year 1895 in Suit No. 8 of 1887 and thereafter the said property was dedicated to the deities admittedly was a part of an absolute debuttar property held by the deities consecrated by Late Raja Rai Bahadur Shewbux Bagla for religious endowment creating absolute debuttar property and was so recorded in the 3 owners column of the municipal records of the Kolkata Municipal Corporation. It was also held by the judgment passed on 8/11 July, 1988 in writ petition being matter no. 829 of 1985 reported in 1988(2) CLJ 314 (a copy of the said judgment is already annexed in the petition at page nos. 52 to 62 and marked as annexure "P-4" therein), that the property was dedicated to the deities and/or held to be absolute debuttar property. The rents collected from the 13/14 original tenants were utilised to meet the expenses of the deities, under a religious and charitable trust.
8.That while entertaining the said application being G.A. 486 of 2005 along with G.A. 517 of 2005 and G.A. 518 of 2005, the Hon'ble High Court at Calcutta vide an order dated March 23, 2005 granted interim order in G.A. 486 of 2005 and ordered eviction of the 57 respondents herein and 6 original tenants within a fortnight and the remaining 62 respondents herein to pay @Rs. 3/- per sq. ft. per month and the other 7 original tenants to pay @Rs. 3000/- per month. Being aggrieved by the above order an application being G.A. 979 of 2005 was preferred as also the appeal being A.P.O.T No. 185 of 2005 was preferred. The Hon'ble Division Bench of the High Court at Calcutta, while entertaining the said appeal vide an order dated April 07,2005, stayed the operation of the reasoned judgment in E.C. No. 71 of 2004 dated March 23, 2005 only as far as the eviction of the respondents/occupiers of the premises in question is concerned in the said judgment dated March 23, 2005.
9.That the respondents herein submit that the forum for deciding any question arising as to whether a person is a thika tenant or otherwise is to be decided by the controller appointed under the West Bengal Thika 4 Tenancy (Acquisition and Regulation) Act, 2001, in terms of Section 5(3) of the said Act and the jurisdiction of the Civil Court was barred in terms of the provision of the Section 21 of the said Act but the Hon'ble Division Bench of the High Court at Calcutta on 27th June, 2011 held that "After the amendment of the Code of Civil Procedure in the year 1977 by which separate suit by third party to a decree has become barred after initiation of execution proceedings, if a third party to asserts before an Executing Court that he is not bound by the decree and has independent right over the property or in other words, has better title than of decree-holder, a duty is cast upon the Executing Court to adjudicate such right of the third party before passing direction for eviction."
11.That as stated above the respondents herein are in possession of various portions of the suit premises and their right are through their respective 13/14 original tenants. The respondents herein are aware that by and under a lease agreement between the petitioners and one Rani Sati Jute Mills Pvt Ltd, the petitioners had leased the said premises to them but due to several defaults as per the records, the lease was terminated. The respondents herein submit that the respondents herein became aware of the said lease agreement by the letters of attornements. So it is only the humble submission of the respondents herein that the respondents herein are ready and willing to pay the monthly rents as per the present market rate but only as direct tenants, since the respondents herein are now aware of the entire proceedings.
12.That the respondents herein submit that they are poor persons, mostly hawkers occupying rooms of 21 to 224 sq. ft. a little more or less 5 each on monthly rent in the three storeyed pucca building and to the best of the knowledge, the pucca structures are from inception in which the respondents herein are occupying. It is also submitted that one out of the 13/14 tenants namely Chandan Choudhury has been occupying space of only 215 sq. ft. in the suit premises building and none of the other 12/13 tenants reside in the suit premises building in question. Hence, it is the respondents herein that they are occupying 98% approximately the space of the pucca structure and building in the suit premises and eviction would impact/affect most of these respondents herein. The respondents herein further submit that they have been in occupation of the suit premises for a period much prior to the institution of the suit. Furthermore, it is pertinent to mention that the 13/14 original tenants had compelled the respondents herein to pay and/or to bear the Kolkata Municipal Corporation rates and taxes on the pretext of continuous peaceful possession, but thereafter the respondents herein had stopped paying as they became aware that in case the suit premises is to be vacated it will be an unnecessary burden on the respondents herein."
The applicants, having realised that it would be difficult for them to sustain a plea of bharatiya, made an averment in the said affidavit that they are willing to pay the then present market rent to the decree-holder should it accept them as tenants. The applicants notwithstanding the amendment of the Thika Tenancy Act, 2003 did not approach the Thika Controller until recently and after the order passed by this Court on 10th January 2017, dismissing the application 6 of the so-called thika tenants to claim adjudication of their alleged rights in this proceeding which however was dismissed due to non- compliance of the order passed by the Hon'ble Supreme Court on 22nd September, 2015 while disposing of the Special Leave Petition.
In view of the clear admission in the counter affidavit before the Hon'ble Supreme Court and the very fact that the said applicants did not approach the controller for all these years when they had a clear right to approach under Section 8(2) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 to the controller on an after November 2010 clearly show that they have throughout considered themselves to be the tenant not under the Thika Tenancy Act.
Moreover, by reason of the order passed by a learned Single Judge in a matter no. 829 of 1985 (Shri Shri Iswar Satyanarayanjee & ors. vs. Administrator Corporation of Calcutta & Ors.) reported at 1988(2) CLJ 314 holding that the said property is a debuttar estate and hence, the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 would not apply following the Special Bench decision of this Court in (Lakshimoni Dasi & Ors. vs. State of West Bengal) reported at 1987(2) Calcutta Law Journal 53, has remained unchallenged. The 13/14 applicants who claim status of thika tenants also forfeited their right to claim such adjudication in view of the order dated 10th January, 2017.
7
It is obvious that the defence now raised on the basis of a recently filed Form-B by the applicants before the Thika Controller is a clear after-thought and contrary to the stand they have taken before the Hon'ble Supreme Court inasmuch as by reason of the order passed by this Court, in the writ petition they did not have any right to claim protection under the said Act. The application filed by the so called thika tenants in the said writ petition was also dismissed.
However, it would have been difficult for these applicants to resist the claim for eviction, had there been no acknowledgement of the decree-holder in the Letter of Attornement dated 22nd August, 1991 assigning the rights to recover arrears rent as well as the occupational charges from the said applicants in favour of the Rani Sati, the lessee inducted in the said premises on the basis of a lease agreement dated August 22, 1991. The said letter states that the tenancy of the parties occupied by the present applicants were terminated by notice of eviction on the expiry of April, 1988 by the said Deities. The relevant extract of the said letter are mentioned below:
"In this connection please note that the tenancy of and the said portion now occupied by you as represented to the Hon'ble High Court in the aforesaid proceedings was terminated by notices of eviction on the expiry of April, 1988 by said Deities and no amount was received by Deities due at the time of termination or thereafter, but pursuant to the said order dated 10th 8 May, 1988, you from time to time paid certain amounts which were without prejudice as stipulated in the said order but failed and neglected to pay any more and the amount due and outstanding on the above basis calculated upto June, 1991 comes to Rs.2394/-. The Corporation taxes of the above portion had not also been paid by you being liable to pay same or proportionate share of the portion as well.
By Deed of Lease and assignment made and executed on 22nd August, 1991 and duly registered with the Sub-Registrar of Assurance at Calcutta, the said Deities by the sole Shebayet and Trustee Sri Satyanarayan Bagla has duly demised and let out the aforesaid premises as amalgamated to and in favour of M/s Shree Ranisati Jute Private Limited of No.29-B, Rabindra Sarani, Calcutta-7 for a term with effect from 1st July, 1991 and as expressly mentioned and provided therein and conveyed, transferred and assigned absolutely to the said Lessees all the arrears of rents, claims and/or damages and possession and taxes payable by you and all the occupiers or tenants upto and including those for June, 1991 fully to the said Lessees/Assignees, duly entitled to have received and realise and take the same for their sole use and benefit.
These intimations are given to you as above for record and you are hereby attorned to deal with the said Lessees henceforth in all matters of your occupation and arrears in respect of portions of the said premises."
Rani Sati admittedly did not file any eviction proceeding. The applicants continue to occupy the said land and claimed to have paid rent to 13/14 thika tenants till the year 2004.
9
The fact remains that they continued to be in occupation of the premises prior to the execution of the lease in August, 1991 and their fate is not dependent upon any breach of covenant between the decree-holder and Rani Sati. The right of the applicants to continue in occupation is not restricted to the tenure of the lease. Rani Sait did not file any suit for eviction against the occupants on the ground of default in making payment of rent by any of the applicants. Admittedly, in terms of Letter of Attornement dated 22nd August, 1991, the applicants were not required to pay any rent to the decree-holder. Whether the status of the respondents are of occupants or tenants under the decree-holder, is a matter to be decided in an appropriate proceeding, but having regard to fact that in this proceeding, they have been able to establish that they have a right to occupy the property notwithstanding the termination of lease of Rani Sati they cannot be evicted from the property in question on the strength of the decree dated 16th September, 2004 obtained by the decree-holder against Rani Sati.
Under such circumstances, the applicants who are 119 in number cannot be evicted on the basis of the said decree. The decree- holder may be at liberty to take appropriate steps in accordance with law against the said applicants.
This order is only for the benefit of 119 persons who were applicants in Special Leave Petition (Civil No. 663-64 of 2014). The 10 arrear occupational charges deposited with the Registrar, Original Side, High Court shall be made over by the Registrar to the decree- holder within two weeks from the date of communication of this order to the Registrar, High Court. The applicants shall also pay the arrear occupational charges and taxes from April, 2016 till March, 2017 to the decree-holder within four weeks from date. In the event the said arrears of occupational charges are not paid, it would be open for the decree-holder to execute the said amount as a money decree of this Court.
Each of the receivers shall receive a final remuneration of 2000 GMs and shall stands discharged.
EC No.71 of 2004, GA No.204 of 2017, GA No.2295 of 2016 and GA No.486 of 2005 are disposed of.
(SOUMEN SEN, J.) Dg2