Calcutta High Court (Appellete Side)
Alok Kumar Das vs Smt. Jhuma Roy on 24 December, 2021
24.12.2021
Ct. 21
D/L 147
AKG
C.O. 2164 of 2021
(Via Video Conference)
Alok Kumar Das
-Vs-
Smt. Jhuma Roy.
Mr. Moloy Bhattacharya
Mr. Subhrajyoti Ghosh,
Ms. Sudipa Sen Gupta,
Ms. Shufa Mondal
... for the petitioner
Being aggrieved by order of rejection of stay of the
execution proceeding in Misc. Case of 27 of 2021
arising out of Ejectment Execution Case No. 37 of 2016,
passed the Judge, 4th Bench, Presidency Small Causes
Court on 22.11.2021 Jdr. has filed the present
application under Article 227 of the Constitution of
India.
It has been contended by the learned Advocate for
the petitioner that father of the petitioner was inducted
as a Bharatia in respect of a premises no. 36/1,
Brojonath Mitra Lane, Kolkata-09 by the opposite party
a Thika Tenant by executing a Registered Deed on
14.03.2002. However, the opposite party filed an
Ejectment Suit being no. 319 of 2014 and obtained a
ex-parte decree from the learned Court below on
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10.04.2015and put such decree into execution by filling Execution Case No. 37 of 2016. In the Execution Case the petitioner filed an application under Section 47 of Civil Procedure Code and which has been registered as Misc. Case No 27 of 2021. In such Misc. Case the petitioner has prayed for stay of the Execution and which the learned Court below by passing the impugned order rejected the same.
He further contended that the property being a thika property and in view of provision of Section 8 (3) of West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 read with Rule 13 of West Bengal Thika Tenancy (Acquisition & Regulation) Rules, 2004 it is the Controller appointed under Section 9 of the Act has been vested with a power to deal with an eviction suit between Thika Tenant and Bharaitia. That petitioner has raised such issue in his application under Section 47 of Civil Procedure Code and which the learned Court below failed to take into consideration while passing the impugned order.
Let see, whether, the order impugned suffers from any illegality and material irregularity?
From the impugned order it is seen the decree of eviction which is under execution was passed ex- parte against the Bharatia. By filing an application under section47 of Civil procedure Code Bharatia has raised the issue that the decree is null and void being passed 3 without jurisdiction. The executing Court while rejecting the petition of Bharatia under section47 of Civil procedure Code, held that it cannot co beyond the decree and has to act as per the terms of the decree. It cannot decide whether the decree is valid or not.
Perused the Section 8 of West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001 and which read as: Incidents for tenancies of Bharatias-
The monthly and other periodical tenancies of Bharatias in respect of the structures occupied by them on payment of rents to the thika tenants shall, with effect from the date of coming into force of this Act, be governed by the provisions of [the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997)], in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act.
[(2) If any question arises as to whether a person is a Bharatia under a particular thika tenant, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard 4 and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question.] (3) Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.
(4) A thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller in such manner as may be prescribed.
[(5) An order passed by the Controller under the provisions of this Act shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.] (6) Notwithstanding anything contained in this Act or in [the West Bengal Premises Tenancy Act, 1997], a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency and separate water supply connection from the appropriate agency for his own use.
5(7) A Bharatia shall be liable to pay rent to the thika tenant at such rate as may be prescribed. [(8) Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed.] [(9) Notwithstanding anything contrary contained in the Act, the State Government shall not be deemed to be a landlord as defined in clause (c) of section 2 of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), but be a licenser and the Bharatia shall be a licensee under the State, where there is no thika tenant.
Rule 13 of West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004 provides :-Manner of disposal of dispute regarding payment of rent by the thika tenant or by a Bharatia or any case of eviction of Bharatia under sub-section (3) of section 8.--(1) On receiving,
(a) any application in Form B from a thika tenant or a Bharatia or any other person; or 6
(b) any information, in writing, in regard to any dispute regarding payment of rent by the thikatenant to the State Government or by a Bharatia to a thika tenant, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and, if necessary, by conducting a spot inquiry.
(2) Any dispute, relating to eviction of a Bharatia, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and after taking into account the provisions laid down in Chapter III of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), as subsequently amended and the rules framed thereunder.
On plain reading of Section 8 of the Act of 2001 it appears that a Thika Tenant and Bharatia are governed by the West Bengal Premises Tenancy Act, 1997 and they shall be deemed to be a landlord and a tenant respectively within the meaning of the Act of 1997. They will have all the protection from eviction provided in Section 6 of the Act of 1997 and also competent to exercise the benefit provided in the said Act.
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The Hon'ble Division Bench of this High Court in Krishana Shaw Vs. Netai Pandit reported in (2016) 4 WBLR (Cal) after taking into consideration section 8 (3) of the Act and Rule 13 (2) of Rules 2004 held while hearing disputes under sec. 8(3) of the Act of 2001, the Controller shall take into account the provisions of West Bengal Premises Tenancy Act, 1997 and an eviction suit filed by the Thika Tenant for evicting the Bharatia lies before the Controller appointed under Section 9 of the Act and not before Civil Court.
In view of the finding of the Hon'ble Division Bench of this High Court and in view of the law enacted in 2001, it appears an eviction suit filed by Thika Tenant against Bharatia in Civil Court is not maintainable. It is only the Controller appointed under the Act of 2001 can hear and decide an eviction suit after following the procedure laid down in West Bengal Premises Tenancy Act of 1997.
In the present case Thika Tenant has filed eviction suit against the petitioner/Bharatia in the year 2014 in the Presidency Small Causes Court, almost 13 years after enactment of The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. Therefore, in view of provision of Section 8 8(3) of the Act of 2001 read with Rule 13 (2) of The West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004, no eviction suit lies against Bharatia in a Civil Court and has to be filed before a Controller. Therefore, this Court holds that the Civil Court has wrongly usurp the jurisdiction and passed the ex-parte decree.
It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
Therefore, this Court is of view, if the execution of ex-parte decree passed without jurisdiction is allowed to proceed, and then there will be miscarriage of justice. Execution of such decree need to stay immediately and at least till the disposal of the petition of the Judgement debtor under section 47 of Civil Procedure Code.
The order impugned is set aside and Execution Case no. 37 of 2016 is stayed till the disposal of the application under Section 47 of Civil Procedure Code filed by the petitioner/Jdr. 9
Learned Court below is directed to dispose of the application under Section 47 of the Civil Procedure Code within a month from the date of receipt of this communication and without granting any adjournment to the parties.
Accordingly, C.O. 2164 of 2021 is dismissed. Interim order, if any, stands discharged. There will be no order as to costs.
All parties are directed to act on a server copy of this order duly downloaded from the official website of this Court.
Urgent Photostat certified copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
( Kesang Doma Bhutia, J.)