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After the death of said Shew Prosad Roy, his wife Srimati Surenga Devi made a representation before the Thika Controller praying for mutation of her name as a Thika Tenant in respect of the premises no. 9/1, Sarat Bose Road, Kolkata. Since no step was taken on the aforesaid representation of Srimati Surenga Devi by the Thika Controller, an application was filed before the learned Tribunal which was numbered as O. A. No. 1458 of 2004. The learned Tribunal by the order dated 13th July, 2004 directed the Thika Controller to dispose of the said application of Srimati Surenga Devi in accordance with law within a period of three months from the date of communication of the order.

The claim of Srimati Surenga Devi as a thika tenant over the subject premises has not been accepted by the Additional Thika Controller and also by the learned Tribunal. Therefore, we do not understand how a land can be said to be a thika land unless the same was ever occupied by a thika tenant. The learned Counsel representing Srimati Surenga Devi desperately argued before this Court that said Srimati Surenga Devi is a "Bharatia" in respect of the property in question although the alleged thika tenant, under whom said Srimati Surenga Devi purportedly claimed to be a "Bharatia" did not come forward before the Additional Thika Controller or before the learned Tribunal or even before us to substantiate the claim of Thika Tenancy.

Furthermore, Srimati Surenga Devi did not produce any document before the Additional Thika Controller or before the learned Tribunal or even before this Court in order to establish the existence of thika tenant under whom said Srimati Surenga Devi could be a "Bharatia".

In the present case the learned Additional Thika Controller as well as the learned Tribunal held that the subject land had vested in the State under West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, even in absence of existence of a thika tenant. Section 4(b) made it clear that lands held in monthly or other periodical tenancies for being used or occupied as a "Khatal" shall be deemed to have vested in the State. The Additional Thika Controller, however, admitted the existence of a "Khatal" on a portion of the property in question upon placing reliance only on the Inspection Book of Kolkata Municipal Corporation.

The learned Counsel representing Surenga Devi specifically admitted before this Court that said Surenga Devi is not a thika tenant in the subject property. However, an application, filed by the Said Srimati Surenga Devi claiming herself to be a thika tenant in the property in question, has already been rejected by the Additional Thika Controller by the order dated 20th April, 2005 and the same has been affirmed by the learned Tribunal.

The Additional Thika Controller unfortunately arrived at the conclusion that there was a "Khatal" in the subject premises upon placing reliance on the Inspection Book of the Kolkata Municipal Corporation of the year 1981, although the said Inspection Book of the Kolkata Municipal Corporation is not a public document and therefore, cannot be relied upon as document for evidence. The Additional Thika Controller in our opinion has committed serious error in law by relying on the aforesaid Inspection Book for the purpose of arriving at the conclusion that there was existence of "Khatal" in the subject premises.