Calcutta High Court (Appellete Side)
Debasish Banerjee vs Maya Sarkar & Ors on 11 March, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
11.03.2016.
d.p.
R.V.W. 278 of 2014
(CAN 11195 of 2014)
in
W.P.L.R.T. 153 of 2014
Debasish Banerjee
-versus
Maya Sarkar & Ors.
Mrs. Monika Ghosh
...For the Petitioner.
Mr. Jiban Ratan Chatterjee,
Mr. Gopal Chandra Ghosh,
Mr. Piyush Kanti Hazra,
Mr. Sibasish Ghosh,
Mr. Dwarika Nath Mukherjee,
Ms. Sucharita Roy.
...For the Respondent No.1
This application for review was filed by the respondent no.5 praying for review of the order passed by this Court on 4th June, 2014 in WPLRT 153 of 2014 on the grounds as mentioned in the review petition. It is stated therein that the order passed by this Court on 4th June, 2014 is required to be reviewed in the light of the provision contained in Section 5(3) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
According to the petitioner, under the provision contained in Section 5(3) of the said Act, exclusive jurisdiction was vested with the Thika Controller for deciding an issue as to whether a person is a thika tenant or not and/or the land is a thika tenancy land or not. It is further contended that Section 21 of the said Act imposes 2 a bar on the jurisdiction of the civil court to decide any issue which is required to be decided by the Thika Controller and/or its appellate authority.
Mrs. Ghosh, learned advocate appearing for the review petitioner submits that since this Court while disposing of this tribunal application, considered the issue involved therein in the light of the decisions of this Hon'ble Court passed under the old Act i.e. Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, though at the relevant time, 2001 Act came into operation, the order passed in the said tribunal application on 4th June, 2014 is required to be recalled and the issue involved in this tribunal application is required to be reconsidered in the light of the provisions contained in 2001 Act.
It is rightly pointed out by Mrs. Ghosh that under 1981 Act, jurisdiction to decide such a dispute was not vested with the Controller and such dispute was required to be resolved before the Civil Court, but under 2001 Act, such jurisdiction to resolve the dispute as to whether a person is a thika tenant or not and/or the land is a thika tenanted property or not was vested exclusively with the Thika Controller under Section 5(3) of the said Act.
Let us now consider the impact of such submission of Mrs. Ghosh in the light of the provision contained in 2001 Act by keeping in mind the restricted scope of consideration in review which is not an appeal in disguise.
Here is the case where we find that in course of a mutation proceeding before the Kolkata Municipal Corporation, the Kolkata Municipal Corporation referred the matter to the Thika Controller 3 for submission of its report as to whether the land in which the respondents are claiming to be thika tenants, comprises in thika tenancy or not.
Pursuant to such reference, the Thika Controller held that the land comprises in the tenancy of the respondents is thika tenanted land and the respondents viz., Sri Narayan Chandra Banerjee, Jamini Kumar Singha and Bimala Bala Dasi are Thika tenants.
The legality of such order passed by the Thika Controller was challenged by Mr. Chatterjee's client Ms. Maya Sarkar before the West Bengal Land Reforms and Tenancy Tribunal and after she failed to succeed therein, she came before this Court by filing this tribunal application which was disposed of by this Hon'ble Court on 4th June, 2014.
For appreciating the impact of the submission of Mrs. Ghosh, we feel it necessary to record the reason for initiation of such a proceeding before the Thika Controller and the date of its disposal.
From the order passed by the Thika Controller, we find that the said reference made by the Kolkata Municipal Corporation was registered as a Misc. Case No. 23 of 2007 and the said miscellaneous case was disposed of by the Thika Controller on 30th April, 2008. Thus, when the said proceeding was initiated, the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into operation.
4Let us now consider the provision contained in Section 5(3) of the said Act which was there originally in 2001 Act when it came into operation.
In 2001 Act of Section 5(3) runs as follows:-
"Section 5(3) - if any question arises as to whether a person is a thika tenant or not, the matter shall be decided by the controller.
The provision contained in the said Section 5(3) of the said Act was amended subsequently and the amended provision came into operation with effect from 1st November, 2010."
The said Section was amended in 2010 and after its amendment, the said provision now stands as follows:-
Section 5(3):- if any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the controller, either on its own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particular as may be considered necessary, enquire upon and decide such question.
We thus, find that at the relevant time when the Thika Controller decided the issue, the amended provision of Section 5(3) of the said Act was not in existence. The amended provision of Section 5(3) of the said Act was in operation at the relevant time.
Thus, we are required to consider the dispute involved in the tribunal application in the light of the unamended provision of the 5 said Act to find out as to whether the order passed by the Controller was a nullity due to lack of his jurisdiction or not.
As a matter of fact, the impact of such amendment which came into operation with effect from 1st November, 2010, was considered by the Division Bench of this Hon'ble Court in the case of Koley Properties -vs- State of West Bengal & Ors. and it was held therein that under the unamended provision of 2001 Act, the Thika Controller had no jurisdiction to consider as to whether the land in question was thika land or not. The relevant portion of the said judgement is set out hereunder:-
Paragraph 62:-"On behalf of the private respondents, learned Counsel Mr. Bhattacharya submitted that even before amendment of sub-section (3) of section 5 of 2001 Act Controller was authorised to decide whether a person is a Thika Tenant or not. However, it is not in dispute that before the amendment of said sub-section (3) of section 5 of 2001 Act Controller had no right to decide whether the land in question is thika land or not. The Controller has declared the private respondents as Thika Tenants in respect of the lands in question ignoring that fact that the structures erected thereon were not a Kutcha structure. Furthermore, the said private respondents filed the return in Form-a under Rule 3 of 1982. Rules after the expiry of the prescribed time-limit when the said Controller had no authority to accept the said return in absence of any application for condonation of delay and also without furnishing reasonable grounds in view of the specific provisions of said Rule 3 of 1982 Rules."
By referring to the provision contained in Section 5 of 1981 Act, Mrs. Ghosh tried to impress upon us that land appurtenant to 6 thika tenancy will be a part of thika tenancy but we hold that since at the relevant time 2001 Act was in operation, we need not consider the provision contained in 1981 Act, while considering this review application wherein the only issue is as to the authority which is competent to adjudicate the issue as to whether any land is a thika land or not.
Thus, we hold that the review application deserves no merit for consideration as we, while deciding the tribunal application rightly held that the Thika Controller had no jurisdiction to resolve the said dispute under the unamended provision of Section 5(3) of 2001 Act as to whether land in question was a part of thika tenancy property or not.
The review application thus, stands dismissed.
Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance with all formalities immediately.
(Jyotirmay Bhattacharya, J.) ( Ishan Chandra Das, J.)