Sri Samarendra Nath Das @ Samar Das Versus M/s. Bengal Central Building Society Limited and others[ALL HC CALCUTTA 2015 MAY]

KEYWORDS:-THIKA TENANCY- JURISDICTION OF CIVIL COURT-

KHC

DATE:-6th May, 2015

In the High Court at Calcutta
Civil Appellate Jurisdiction

Present: The Hon’ble Justice Nishita Mhatre And The Hon’ble Justice Asha Arora

F.M.A No. 761 of 2015 With C.A.N No. 1543 of 2015

Sri Samarendra Nath Das @ Samar Das Versus M/s. Bengal Central Building Society Limited and others

For the appellant: Mr. Biswajit Basu, Mr. Kishore Mukherjee, Mr. Soumyajit Mukherjee For the respondent no. 1: Mr. Probal Kumar Mukherjee, Mr. Suhrid Sur.
Mr. Nilanjan Hazra For the respondent no. 2: Mr. Sakti Nath Mukherjee, Mr. Shyama Prasanna Roychowdhury, Mr. Asit Baran Raut, Mr. Tuhin Subhra Raut Heard on: 28th April, 2015.

Judgment on: 6th May, 2015.

Asha Arora, J:

1.) Considering the short question for determination in this appeal, filing of Paper books has been dispensed with at the request of the learned Counsels for the parties.

2.) The present appeal at the instance of the plaintiff/appellant arises out of Order No. 13 dated 4th February, 2015 passed by the Civil Judge (Senior Division) Sealdah in Title Suit No. 48 of 2014. By the impugned order the learned Trial Court rejected the plaint of the abovementioned suit under the provisions of Order 7 Rule 11 (d) of the Civil Procedure Code as being barred by Section 21 of the West Bengal Thika Tenancy Act. The aforesaid order was passed on the basis of an application under Order 14 Rule 2 read with Order 7 Rule 11 of the Civil Procedure Code filed on behalf of the defendants which was allowed on contest.

3.) Being aggrieved, the plaintiff/appellant brought the matter in appeal. Before referring to the contentions on behalf of the appellant, let us advert briefly to the plaint case.

4.) Plaintiff filed a suit for declaration and mandatory injunction in the Court of Civil Judge (Senior Division) at Sealdah asserting that the property described in Schedule A of the plaint originally belonged to one Amrita Nath Das who died sometime in the year 1921 leaving behind his four sons namely, Anibendra Nath Das, Atindra Nath Das, Abani Nath Das and Anadi Nath Das. The said Atindra Nath Das filed a suit for partition in the Original Side of the High Court, Calcutta being Suit No. 841 of 1937 and in the final decree passed in the said suit the schedule ‘A’ property was exclusively allotted to said Atindra Nath Das. The father of the plaintiff Debendra Nath Das was a tenant under the said Amrita Nath Das in respect of demarcated 2 Cottahs of land out of the total land comprised in the schedule ‘A’ property. It is further alleged that the father of the plaintiff became a thika tenant in respect of schedule ‘C’ property as soon as the Calcutta Thika Tenancy Ordinance, 1948 came into force and the said Ordinance was replaced by the Calcutta Thika Tenancy Act, 1949. The tenancy of the plaintiff’s father in respect of schedule ‘C’ property by virtue of the said Act of 1949 became heritable and transferable, as such, on the death of the father, the plaintiff became the thika tenant in respect of the suit schedule ‘C’ property. The Calcutta Thika Tenancy Act, 1949 was repealed and replaced by Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 whereby the plaintiff became a direct thika tenant under the State of West Bengal. The said Atindra Nath Das by a Deed of Conveyance dated 9th April, 1949 sold the schedule ‘A’ property to the defendant No. 1 and delivered possession thereof excepting the areas of schedule ‘A’ property which were under the possession of the tenants of said Amrita Nath Das which includes the schedule ‘C’ property. The plaintiff started residing at Garia sometime in the year 2005. In the later period, after his shifting to Garia, on the request of the local people plaintiff allowed a local registered club under the name and style of “Roy Para Athletic Club” to use the structure on the schedule ‘C’ property as the registered office of the said club. The said club since then was in possession and enjoyment of the said structure and land appertaining thereto as the licensee of the plaintiff till dispossessed illegally and forcibly by the defendant No. 1. It is the further case of the plaintiff that on 20th March, 2014 the defendant No. 2 with some of his associates demolished the structure on the schedule ‘C’ property and has taken forcible possession of the same. Defendant No. 2 is claiming right, title and interest over the schedule ‘B’ property on the strength of a registered purchase deed executed by the defendant No. 1 on 27th July, 2011 in his favour. The schedule ‘B’ property is comprised in thika tenancy as such the transfer of such property in favour of defendant No. 2 by defendant No. 1 offends the provision of the West Bengal Thika Tenancy Act, 2001 and consequently renders the said Deed of Conveyance void. With these averments plaintiff prayed for the following reliefs:
(a) A decree for declaration that the defendant No. 3 is a licensee under the plaintiff in respect of suit schedule ‘C’ property.
(b) A decree of mandatory injunction directing the defendant Nos. 1 and 2 to restore the possession of the plaintiff and /or the defendant No. 3 over the suit schedule ‘C’ property.
(c) A decree of mandatory injunction directing the defendant No. 2 to restore the structure at the suit schedule ‘C’ property in its original shape, size and dimension at their cost.
(d) A decree of permanent injunction directing the defendant not to interfere with the possession of the suit schedule ‘C’ property.

5.) In assailing the impugned order of the Trial Court, Mr. Basu, Learned Counsel for the appellant submitted that unless the suit reaches the stage of settlement of issues, there is no scope for framing a preliminary issue regarding the maintainability of the suit. The Lower Court therefore palpably erred in allowing the application under Order 14 Rule 2 read with Order 7 Rule 11 of the Civil Procedure Code (for short referred to as the C.P.C). It has further been argued that disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 of the C.P.C as it applies only to those cases where statements made in the plaint, without any doubt show that the suit is barred by any law. Learned Counsel for the appellant also contended that the relief prayed for in the suit can only be granted by the Civil Court as the Thika Controller appointed under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (for brevity the W.B.T.T Act) is not empowered to grant such relief. So the bar under Section 21 of the Act does not exclude the jurisdiction of the Civil Court to decide the matter. It has also been canvassed that so long as the dispute or question raised before the Civil Court does not fall within the exclusive power vested in the Thika Controller under the W.B.T.T Act, the jurisdiction of the Civil Court to entertain the suit in relation to such question cannot be said to be barred. Learned Counsel for the appellant asserted that even if a statute gives finality to the order of Tribunal, it has to be considered whether the Tribunal has the jurisdiction to grant relief which is normally granted by the Civil Court. To buttress his submissions Mr. Basu placed reliance on the decision of the Apex Court reported in (2008) 15 SCC 517 (N. Padmamma and others versus S. Ramakrishna Reddy and others), AIR 1969 Supreme Court 78 (Dhulabhai versus State of Madhya Pradesh and another), (1985) 4 SCC 10 (State of Tamil Nadu versus Ramalinga Samigal Madam) and AIR 2010 Supreme Court 2897 (Ramesh Gobindram (deceased by LRs.) versus Sugra Humayun Mirza Wakf.).

6.) Repudiating the argument advanced on behalf of the appellant, Mr. Mukherjee appearing for the respondent No. 2 in his usual fairness conceded that though the jurisdiction of the Civil Court is excluded by a statute only in exceptional cases, a meaningful reading of the plaint with reference to the reliefs prayed for by the plaintiff discloses that the suit is barred under Section 21 of the West Bengal Thika Tenancy Act, 2001. Referring to the case of T. Arivandandam versus T.V. Satyapal and another reported in AIR 1977 Supreme Court 2421 Mr. Mukherjee submitted that considering the plaint averments the Trial Court was justified in exercising its power Under Order 7 Rule 11 (d) of the C.P.C. Leading us through the relevant paragraphs 6 and 13 of the plaint, learned Counsel for the respondent No. 2 contended that as the plaintiff has challenged the transfer in favour of defendant No. 2, in view of the W.B.T.T Act, the reliefs in terms of prayer (b) and (c) cannot be granted without declaring the deed of conveyance void which is within the exclusive jurisdiction of the Controller as per Sub-Section (2) of Section 6 of the W.B.T.T Act, 2001.

7.) The core question for determination is whether the dispute raised before the Civil Court is required to be decided by the Thika Controller under the W.B.T.T Act, 2001. We are not unmindful of the provision of Section 9 of the Code of Civil Procedure which provides that the Civil Courts have the jurisdiction to try all suits of a civil nature excepting those of which their cognizance is expressly or impliedly barred. It necessarily follows that any statute which excludes such jurisdiction is an exception which cannot be readily inferred by the Courts.

8.) In our instant case a plain reading of the averments in the plaint shows that in the garb of a decree for declaration and mandatory injunction plaintiff has assailed the transfer in respect of ‘B’ schedule property in favour of defendant No. 2 by virtue of the deed of conveyance dated 27th July, 2011. In paragraph 13 of the plaint it has been stated that the schedule ‘B’ property is comprised in Thika tenancy and as such the transfer of the said property by the defendant No. 1 offends the provision of the W.B.T.T Act 2001 and consequently renders the deed of conveyance void. Manifestly, without declaring as invalid the said deed of conveyance, the reliefs sought for by the plaintiff in the suit cannot be granted. Sub-Section (2) of Section 6 of the W.B.T.T Act 2001 clearly provides that any transfer or agreement for transfer, whether oral or in writing or any activity in contravention of the provisions of Sub-Section (4) or Sub- Section (5) of Section 5 or proviso to Sub-Section (1) of this Section, shall be declared invalid under an order of the Controller. The power to declare as invalid the deed of conveyance in question which has been challenged by the plaintiff in Paragraph 13 of the plaintiff exclusively vests with the Controller in view of Sub-Section (2) of Section 6 of the Act. Therefore the jurisdiction of the Civil Court to decide the issue has been completely excluded. In Paragraph 8 of the plaint it has been mentioned that schedule ‘B’ property is a part of schedule ‘A’ property whereas the suit schedule ‘C’ property is a part of schedule ‘B’ property. The relief sought for by the plaintiff is in respect of schedule ‘C’ property which is, as per the above statement in the plaint, a part of schedule ‘B’ property which is the subject of the impugned deed of conveyance dated 27th July, 2011. Section 21 of the W.B.T.T Act clearly bars the jurisdiction of the Civil Court to deal with or to decide any question, or to determine any matter, which, by or under this Act, is required to be, or has been, decided or dealt with, or which is to be or has been, determined by the Controller, or the appellate or other authority specified in the provisions of this Act. The fact that the plaintiff has challenged the sale deed in question is also clear from Paragraph 14 of the plaint wherein it has been averred that the cause of action of the suit arose on diverse dates starting from the month of July, 2011 with the execution of the sale deed between the defendant No. 1 and the defendant No. 2. Evidently, a bare perusal of the plaint itself reveals that the crux of the dispute is the impugned deed of conveyance dated 27th July, 2011. Without declaring the aforesaid deed as void, a decree for restoration of possession in respect of schedule ‘C’ property as prayed for by the plaintiff cannot be granted. As already mentioned, Sub-Section (2) of Section 6 of the W.B.T.T Act authorises the Controller to decide the aforesaid dispute raised by the plaintiff in the suit.

9.) The decisions referred by the learned Counsel for the appellant are clearly distinguishable on facts from our present case. In the case of State of Tamil Nadu versus Ramalinga Samigal Madam reported in (1985) 4 SCC 10 it was held that the Settlement Officer’s decision regarding grant or refusal to grant ryotwari patta in respect of land would not bar or exclude the Civil Court’s jurisdiction to determine the nature of the land. This judgement differs on facts from our present case. In Dhulabhai’s case reported in AIR 1969 Supreme Court  the principles regarding exclusion of jurisdiction of the Civil Court have been laid down. It has been held in the aforesaid decision that where the statute gives a finality to the orders of the special tribunals the Civil Courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In our instant case the plaintiff/appellant’s specific case in the plaint is that the subject of the deed of conveyance dated 27th July, 2011 is schedule ‘B’ property which is comprised in thika tenancy and as such the transfer of such property offends the provision of W.B.T.T Act 2001 and consequently renders the deed of conveyance void. In Paragraph 8 of plaint it has been mentioned that schedule ‘B’ property is a part of schedule ‘A’ property whereas schedule ‘C’ property is a part of schedule ‘B’ property. In view of Sub- Section (2) of Section 6 of the W.B.T.T Act 2001, it is within the exclusive jurisdiction of the Controller to declare the impugned transfer of such property as invalid which the plaintiff virtually seeks from the Civil Court in terms of prayers (b), (c) and (d) of the plaint. Granting the aforesaid reliefs to the plaintiff would be tantamount to declaring as invalid the alleged transfer of the property in question by virtue of the impugned deed of conveyance. The above mentioned provision of the W.B.T.T Act clearly excludes the Civil Court’s jurisdiction to deal with the matter. The judgements reported in (2008) 15 SCC 517 (N. Padmamma and others versus S. Ramakrishna Reddy and others) and AIR 2010 Supreme Court 2897 (Ramesh Gobindram (deceased by LRs.) versus Sugra Humayun Mirza Wakf.) are also of no avail to the appellant for the simple reason that from the statements in the plaint itself, the suit appears to be barred by Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

10.) We are therefore convinced that the Trial Court did not err in exercising its power under Order VII Rule 11 Clause (d) of the C.P.C in rejecting the plaint of Title Suit No. 48 of 2014.

11.) The impugned order passed by the Civil Judge (Senior Division) Sealdah in Title Suit No. 48 of 2014 is hereby affirmed.

12.) The appeal stands dismissed without any order as to costs.

13.) Pursuant to the dismissal of the appeal, the connected application for interim relief being CAN No. 1543 of 2015 has become infructuous and is accordingly dismissed.

14.) Photostat certified copy of this judgement, if applied for, shall be supplied to the parties subject to compliance of requisite formalities.

(Asha Arora, J.)

(Nishita Mhatre, J.)

6th May, 2015

Ashok Kumar Mandal Appellant Versus Rabindra Nath Banerjee (D) by LRs. and Others[ALL SC 2003 DECEMBER]

KEYWORDS:-

c

DATE:-03-12-2003

(2004) 10 SCC 578

(SUPREME COURT OF INDIA)

Ashok Kumar Mandal Appellant
Versus
Rabindra Nath Banerjee (D) by LRs. and Others Respondent

(Before : Brijesh Kumar and Arun Kumar, JJ.)

Decided On: 03-12-2003

Calcutta thika tenancy (Acquisition and Regulation) Act, 1981—Sections 5 and 19.

ORDER

1. This appeal is preferred against the order of the Calcutta High Court dismissing the second appeal of the appellant in limine.

2. The brief facts of the case are that the appellant ok a lease for a period of 10 years on 11.4.1960. It was a registered lease deed. However, on 25.5.1960 the parties executed another lease deed for a period of 20 years. Yet another lease deed was executed between the parties on 31.5.1963 for a period of 15 years, taking effect from 11.4.1960. It is indicated on behalf of the respondents that the subsequent lease deeds were in supersession of the previous ones. According the lease deeds dated 31.5.1963, the period of lease came   an end some time in 1975. Hence, a notice for eviction was served upon the appellant which was not complied with. Hence, a suit was filed on 22.8.1975. The suit was dismissed by the Trial Court. The Trial Court held that the subsequent lease deeds have not affected the original thika tenancy of the lessee. Therefore, it was held that thika tenancy could not be terminated by giving a notice. The respondent went up in appeal against the judgment and order passed by the Trial Court. The First Appellate Court by its judgment and order dated 29.4.1983 allowed the appeal. It was held the Trial Court erred in finding that in view of the first lease deed the second lease could not be executed or any further execution of lease could not change the terms of the earlier lease. It has further been held that in case of execution of a fresh lease during the currency of the earlier one, there would be implied surrender of the earlier lease deeds. Hence, the lease deed dated 31.5.1963 for a period of 15 years with effect from 11.4.1960 was a valid lease and this lease deed coming an end with efflux of time in 1975, a suit was rightly filed by the respondent. Ultimately, the Appellate Court allowed the appeal and decreed the suit. The second appeal preferred by the appellant before the High Court was dismissed in limine.

3. So far the view taken by First Appellate Court is concerned, in our view it needs no interference.

4. The learned counsel for the appellant has, however, raised a question which though it appears was not raised before the Trial Court and the First Appellate Court, the effect that the proceedings pending against the appellant had abated by virtue of the provision contained under19 of the Calcutta thika tenancy (Acquisition and Regulation) Act, 1981. appreciate the provisions we may have refer some of the provisions in thika tenancy Act, 1949 which deals with the thika tenancy and the rights of such thika tenants. The lease deed which was executed in the year 1963 was during the period when the Calcutta thika tenancy Act, 1949 was in operation. This Act, however, was replaced by the Calcutta thika tenancy (Acquisition and Regulation) Act, 1981. It was notified on 18.1.1982. By virtue of 5 of the 1981 Act as substituted by an Act of 1993 w.e.f. 18.1.1982, the following provisions was made about the pending proceedings :

“19. Proceedings including appeals and proceedings in execution of orders, etc., abate.–All proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta thika tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made.”

5. The submission made by the learned counsel for the appellant is that the suit was filed in the year 1975 and the appeal was decided on 29.4.1983. By virtue of the provisions contained under19 of the 1981 Act the proceedings in appeal sod abated. It is further submitted that even if that ground is not raised by the appellant the Court should have taken note of the fact that the pending proceeding had abated by operation of law. That being the position, there was no occasion for the First Appellate Court have interfered with the judgment passed by the Trial Court. It is submitted that this ground was raised in the second appeal but the same has not been considered and the appeal was dismissed in limine without taking note of the legal position.

6. The learned counsel for the respondent submits that the provision contained under19 of the 1981 Act is not applicable the present case. It is submitted that the parties had executed lease deed lastly in 1963 which is a registered lease deed. It was for a period of 15 years. The lease, therefore, came an end on the expiry of 15 years w.e.f. 1960. Since the appellant did not comply with the notice vacate the premises a suit was filed for his eviction under the general law namely, the provisions of the Transfer of Property Act treating the appellant as a trespasser. A perusal of19 of the 1981 Act makes it clear that all proceedings which were pending under Calcutta thika tenancy Act, 1949 sod abated. The submission is that the proceedings initiated by the respondent in the year 1975 before the Trial Court were not under the provisions of the Calcutta thika tenancy Act, 1949, rather under the general law under the provisions of the Transfer of Property Act. In this background it is not open for the appellant claim benefit of19 of the 1981 Act.

7. It is submitted that a different position sod under the 1949 Act and the tenancy would be covered under the thika tenancy Act in case it was for less than 12 years. The lease deed was executed during the period when the 1949 Act was in operation, that say in 1963. The lease was for a period of 15 years. That being the position, the provisions of 1949 Act were not attracted the facts of the case. The amendment which has been made in5 of the 1981 Act, providing that a lease deed for a period of not less than 12 years would be covered under the Act is not applicable since the period of tenancy had already expired in 1975 and the appellant had filed suit in the same year treating the appellant as trespasser. Therefore, the benefit of amended5 of the 1981 Act would not be available the appellant. Considering the legal position indicated above and provisions contained under19 of the 1981 Act in our view the eviction proceedings would not be covered by the provisions of the 1949 Act nor under the provisions of 1981 Act even after the amended5 of the said Act. That being the position, the protection of19 of the 1981 Act would not be available the appellant. We also find no force in the submission made on behalf of the appellant that it was an act of fraud on the part of the respondents   have entered in successive lease deeds by virtue of which terms of the lease kept on changing. We fail   appreciate this argument raised on the ground of fraud allegedly played by the respondents upon the appellant as they are bilateral lease deeds executed by the parties in supersession of the earlier one and duly registered in accordance with law. In the circumstances it is difficult for us entertain this plea of fraud which is sought be raised at this stage.

8. In the result, we find no merit in the appeal. It is accordingly, dismissed. There would, however, be no order as costs.

Narayan Chandra Ghosh and ORS Vs Kanailal Ghosh and ORS[ALL SC 2005 NOVEMBER]

KEYWORDS:- THIKA TENANCY- RENT- EVICTION

c

DATE:-16-11-2005

AIR 2006 SC 562 : (2005) 5 Suppl. SCR 250 : (2006) 1 SCC 175 : JT 2005 (9) SC 613 : (2005) 9 SCALE 350

(SUPREME COURT OF INDIA)

Narayan Chandra Ghosh and OTHERS Appellant
Versus
Kanailal Ghosh and OTHERS Respondent

(Before : B. N. Agrawal And A. K. Mathur, JJ.)

Civil Appeal Nos. 7091 with 7092 of 2001, Decided on : 16-11-2005.

Rent and eviction—thika tenant—Eviction on ground of default in payment of rent, nuisance caused by defendants and bona fide need due to substantial increase in number of family members—Defendant’s plea that with promulgation of Calcutta thika tenancy Act, 1984, earlier suit had abated and subsequent suits were not maintainable, sustainable—Suit decreed on ground of bona fide necessity—High Court held that plaintiffs succeeded in proving their case in relation to bona fide necessity with regard to all the four rooms including one room for which eviction was refused by lower appellate Court—Appeal dismissed.

Counsel for the Parties:

Bhaskar Prasad Gupta, Sr. Advocate, Udayan Chakravarty, Pradyot Kumar Chakravarty and Prasenjit Kumar Chakravarty, Advocates with him, for Appellants

S. B. Sanyal and Vijay Hansaria, Jeevan Dutta Chatterjee, Sr. Advocates, Rana Mukherjee, D. Bharat Kumar, Anand, Abhijit Sengupta and Ms. Indrani, Advocates with them, for Respondents.

Judgment

B. N. Agrawal, J—These appeals by the defendants arise out of common judgment rendered by the High Court in second appeals.

2. The short facts are that the plaintiffs filed two suits, viz., Title Suit Nos. 125 of 1978 and 146 of 1977 for eviction of defendants. Both the suits relate to eviction of defendants from different portions of a house. The former suit related to eviction from three rooms and the latter from one room. In both the suits, the plaintiffs were thika tenants whereas defendants were Bharatias. The grounds for eviction disclosed in the suits were default, causing nuisance by the defendants and bona fide need of the plaintiffs for the premises in question as number of their family members had substantially increased. When the suits were filed, The Calcutta thika tenancy Act, 1949 (hereinafter referred to as ‘the 1949 Act’) was in force. During the pendency of the aforesaid suits, The Calcutta thika tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to as ‘the 1981 Act’) was promulgated and as, according to the plaintiffs, the said suits abated under Section 19 of the 1981 Act, the plaintiffs filed another suits giving rise to Title Suit Nos. 35 of 1983 and 22 of 1983 for eviction of defendants from the aforesaid four rooms stating therein the same grounds for eviction.

3. Defendants contested the claim for eviction on grounds, inter alia, that the subsequent suits were not maintainable as earlier suits did not abate under Section 19 of the 1981 Act. They denied all the grounds for eviction.

4. In support of their respective cases, both the parties led oral and documentary evidence and upon conclusion of trial, the learned Munsiff held that the suits were maintainable as the earlier suits abated under Section 19 of the 1981 Act. So far as the grounds for eviction are concerned, the trial court decreed the suits only on the ground of bona fide necessity as, in its opinion, the plaintiffs failed to prove the other grounds. Challenging the decrees of the trial court, when appeals were preferred, the lower appellate court upheld the decree for eviction in relation to three rooms but reversed the same in relation to one room and thereby dismissed suit for eviction in relation to the same. Against the aforesaid decision, two appeals were preferred before the High Court, one by the plaintiffs and other by the defendants. High Court upheld decision of the lower appellate court affirming eviction decree in relation to three rooms. So far as decree of the lower appellate court dismissing the eviction suit in relation to one room is concerned, the same has been reversed and the decree for eviction in relation to same passed by the trial court has been restored. Hence, these appeals by special leave.

5. Mr. Bhaskar Prasad Gupta, learned Senior Counsel appearing in support of the appeals raised various points but for the disposal of the appeals, only two points are relevant. Firstly, it has been submitted that earlier two suits filed by the plaintiffs did not abate under Section 19 of the 1981 Act, as such both the suits were liable to be dismissed on the ground that the same were not maintainable. Secondly, it has been submitted that the High Court was not justified in interfering with the finding of fact in relation to one room in a second appeal. On the other hand, Mr. S. B.Sanyal and Mr. Vijay Hansaria, learned Senior Counsel appearing for the respondents in their respective appeals, submitted that present suits were maintainable as earlier two suits abated under Section 19 of the 1981 Act. Mr. Vijay Hansaria, appearing in support of the judgment of the High Court in relation to one room, submitted that the High Court was quite justified in reversing judgment rendered by lower appellate court and confirming the decree for eviction passed by the trial court.

6. Thus, the main question to be considered in the present appeals is as to whether the earlier suits abated under Section 19 of the 1981 Act? In this regard, it would be necessary to refer to the history of the legislation. The 1949 Act was enacted for making better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. The expression “thika tenant” has been defined under Section 2(5) of the 1949 Act to mean a person who holds a land under a lease or otherwise under an other person on payment of rent and has erected structure thereon or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose. The expression “Bharatia” has been defined under Section 2(1) of the 1949 Act to mean any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a thika tenant in his holding. Under Section 3 of 1949 Act, three grounds for eviction of thika tenant have been enumerated, namely, (I) using the holding in such a manner so as to render it unfit; (II) bona fide necessity of the landlord for the holding; and (III) in a case of lease, other than for residential purpose, expiry of the period of lease. Under Section 5 of the 1949 Act, procedure has been provided for eviction of thika tenant by the landlord by filing an application for ejectment before Controller appointed by the State Government as defined under Section 2(2) of the 1949 Act. At this stage, it would be useful to refer to the provisions of Sections 2(1), 2(2), 2(5), 3 and 5 of the 1949 Act which read thus:

“2(1) “Bharatia” means any person by whom, or on whose account, rent is payable for any structure or part of a structure erected by a thika tenant in his holding.

2(2) “Controller” means an officer appointed as such by the State Government for an area to which this Act extends and includes any officer appointed by the State Government to perform all or any of the duties imposed or to exercise all or any of the powers conferred by this Act, on the Controller.

2(5) “thika tenant” means any person who holds, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person –

(a) who holds such land under that another person in perpetuity; or

(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or

(c) who holds such land under that another person and uses or occupies such land as a khattal.

3. Grounds on which a thika tenant may be ejected.- (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, a thika tenant shall, subject to the other provisions of this Act, be liable to ejectment from his holding on one or more of the following grounds and not otherwise, namely:

(i) on the ground that he has used the land comprised in his holding in a manner which renders it unfit for any of the purposes mentioned in clause (5) of section 2;

(ii) except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-sections (2), (3) and (4), on the ground that the land is required by the landlord for his own occupation;

(iii) when he holds the land comprised in the holding under a registered lease for a purpose other than a residential purpose, on the ground that the term of the lease has expired.

(2) No landlord shall be deemed to require the land comprised in the thika tenant’s holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family.

(3) Where the landlord requires the land comprised in the thika tenant’s holding for his own occupation and the Controller is of opinion that such requirement may be substantially satisfied by ejecting the thika tenant from a part only of his holding and allowing him to continue in occupation of the rest, then, if the thika tenant agrees to such occupation, the Controller shall make an order accordingly and fix the proportionate rent for the portion remaining in the occupation of the thika tenant.

(4) Where the thika tenant has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the pucca structure.

5. Proceedings for ejectment.- (1) Notwithstanding anything contained in any other law for the time being in force a landlord wishing to eject a thika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof.

(2) No order allowing an application under sub-section (1) shall be made in a case where compensation is payable under the proviso to section 4 unless and until the amount of compensation so payable has been either paid to the thika tenant or deposited with the Controller.”

7. It may be also useful to refer to the provisions of Sections 10 and 10A of the 1949 Act which read thus :

“10. Consequences of the determination of interests of thika tenants in certain cases.- (1) Notwithstanding anything to the contrary contained in any contract, on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding of, or of surrender or abandonment of the holding by, the thika tenant, or otherwise, any structure standing upon such land and existing on the date of such determination shall vest in the landlord.

(2) When any structure standing on any holding of a thika tenant vests in the landlord under sub-section (1) otherwise than as a result of ejectment of the thika tenant from the holding on the ground specified in clause (ii) of sub-section (1) of section 3, any Bharatia in possession of such structure or any part thereof, shall without any application being made be entitled to continue in such possession and shall be deemed to be a tenant in respect of such structure or part thereof, as the case may be, within the meaning of the West Bengal Premises tenancy Act, 1956, holding under the landlord on the terms and conditions on which such Bharatia had been holding immediately before such structure vested in the landlord:

Provided that nothing in this sub-section shall prevent either the landlord or such Bharatia so deemed to be a tenant holding under the landlord, from proceeding under the West Bengal Premises tenancy Act, 1956, for fixing the standard rent payable in respect of such structure or part thereof, as the case may be.

10A. Right of thika tenant to erect pucca structures.- (1) Notwithstanding anything contained in any other law for the time being in force or in any contract, but subject to the provisions of sub-sections (2) and (3), a thika tenant using the land comprised in his holding for a residential purpose may erect a pucca structure on such land for such purpose with the previous permission of the Controller.

(2) On an application made by a thika tenant in this behalf, the Controller may grant him permission to erect a pucca structure, if the Controller is satisfied that the thika tenant-

(a) is using the structure existing on the land comprised in his holding for a residential purpose,

(b) intends to use the pucca structure to be erected on such land for a similar purpose, and

(c) has obtained sanction of a building plan to erect the pucca structure from the municipal authorities of the area in which such land is situated.

(3) No thika tenant shall be entitled to eject a Bharatia from the structure or part thereof in the possession of the Bharatia for the purpose of erecting a pucca structure :

Provided that the thika tenant may by providing temporary alternative accommodation to a Bharatia obtain from him vacant possession of the structure in his possession on condition that immediately on the completion of the construction of the pucca structure the thika tenant shall offer the Bharatia accommodation in the pucca structure at a rent which shall in no case exceed by more than twenty-five per centum the rent which the Bharatia was previously paying.”

8. Section 10(1) of the 1949 Act lays down that upon ejectment of a thika tenant, his interest in the holding shall be determined and the structures standing thereon shall vest in the landlord. Sub-section (2) of Section 10 of the 1949 Act lays down that in case the order of eviction is on grounds (i) and (iii) of Section 3(1) of 1949 Act, in that eventuality, the Bharatia who is in possession of the structure shall be entitled to continue in such possession and shall be deemed to be a tenant in respect of such structures within the meaning of the West Bengal Premises tenancy Act, 1956 (in short ‘the Premises tenancy Act’) in which he is residing and shall be holding the same under the landlord on the terms and conditions on which such Bharatia had been holding immediately before the structures vested in the landlord. Under proviso to Section 10(2) of the 1949 Act, the landlord or the Bharatia would be entitled to make an application for fixation of standard rent in respect of such structure under the provisions of the Premises tenancy Act and to that extent only the provisions of the said Act were made applicable. According to sub-section (3) of Section 10A of the 1949 Act no thika tenant shall be entitled to eject a Bharatia from the structure for the purpose of erecting a pucca structure but in case he intends to erect pucca structure, in the premises in which a Bharatia is residing, he is required to provide temporary alternative accommodation to the Bharatia before obtaining possession for the purposes of putting pucca structure thereon and after completion thereof, such Bharatia shall be entitled to be put in possession of the pucca structure on payment of rent which shall in no case exceed more than 25% of the rent which the Bharatia was previously paying.

9. From the aforesaid provisions, it becomes plain that under the 1949 Act, procedure was specifically provided for ejectment of a thika tenant by making an application for ejectment before the Controller but not for ejectment of a Bharatia by a thika tenant. For ejectment of a Bharatia, only a suit for ejectment could be filed by a thika tenant before a Civil Court in case, he wanted to evict a Bharatia. As Legislature of the State of West Bengal was contemplating legislation providing therein for the acquisition of interest of landlords in respect of lands comprised in thika tenancy and certain other tenancies, pending its enactment, a further legislation was enacted which was named The Calcutta thika tenancy Stay of Proceedings (Temporary Provisions) Act, 1978 (hereinafter referred to as ‘the 1978 Act’) which came into force on 19th July, 1978 and continued to remain in force for a period of three years and six months from the date of its commencement. This legislation was enacted to provide for temporary stay of proceedings for ejectment of thika tenants and Bharatias holding under thika tenants. It would be necessary to refer to the provisions of Sections 3, 4 and 5 of the 1978 Act which read thus :-

“3. Stay of proceedings for ejectment of thika tenants.- Notwithstanding anything contained in the Calcutta thika tenancy Act, 1949, or in any other law for the time being in force, –

(a) all applications for ejectment of thika tenants,

(b) all appeals from orders made on such applications, and

(c) all proceedings in execution of orders for ejectment of thika tenants.

under the provisions of the Calcutta thika tenancy Act, 1949, which are pending at the date of commencement of this Act or which may be made, preferred or commenced after such date but before the expiry of this Act, in respect of any land which is not a ‘vacant land’ within the meaning of the Urban Land (Ceiling and Regulation) Act, 1976, shall be stayed for the period during which this Act continues in force.

4. Stay of suits and proceedings against Bharatias.- No thika tenant shall, while this Act continues in force, commence, or continue with, any suit, appeal or proceedings in execution of orders, for ejectment of any Bharatia and all pending suits, appeals or proceedings in execution of orders, for ejectment of a Bharatia shall remain stayed.

5. Saving of limitation.- In computing the period of limitation prescribed by any law for the time being in force for an application for the ejectment of a thika tenant or for such a suit against a Bharatia or for an appeal from an order or decree made on such application or suit or for the execution of an order or decree forejectment of a thika tenant or a Bharatia, as the case may be, the period during which this Act continues in force shall be excluded.”

10. Under Section 3 of the 1978 Act, all proceedings for ejectment of thika tenant initiated under the 1949 Act, irrespective of its stage, meaning thereby whether it was pending before the original authority or in appeal or in execution, were required to be stayed during the period of enforcement of the 1978 Act and no further proceeding could be initiated after its commencement. Under Section 4 of the 1978 Act a thika tenant was injuncted to commence any proceeding or continue such proceeding for ejectment of any Bharatia and all such proceedings if commenced stood stayed. Section 5 of the 1978 Act provided that in computing the period of limitation for making an application for ejectment of a thika tenant or for filing a suit against a Bharatia or for filing an appeal or for levying execution of an order or decree for ejectment of a thika tenant or a Bharatia, as the case may be, the period during which 1978 Act continued to remain in force had to be excluded.

11. Immediately after the 1978 Act expired, The Calcutta thika tenancy (Acquisition and Regulation) Act, 1981 (hereinafter referred to as ‘the 1981 Act’) was enacted which came into force with effect from 18th January, 1982. The said Act was enacted for the acquisition of interests of landlords in respect of lands comprised in thika tenancy and certain other tenancies. According to Section 5 of the 1981 Act, with effect from the date of commencement of said Act, interest of the landlords in lands, inter alia, comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains vested in the State free from all incumbrances but the vesting did not in any manner affect rights enjoyed by thika tenants and Bharatias. By virtue of Section 6 of the 1981 Act, in spite of vesting, the thika tenant was entitled to continue in occupation of the said land, on such terms and conditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land and he would be liable to pay land revenue directly to the State. Under Section 7 of the 1981 Act, a thika tenant was not entitled to let out the vacant land to anybody but could create lease in respect of the structures. The landlords were entitled to compensation for the lands acquired by the State of West Bengal in the manner provided under Section 8 of the 1981 Act. Section 9 of the 1981 Act lays down that monthly and other periodical tenancies of Bharatias in respect of structures occupied by them on payments of rent to the thika tenants shall, with effect from the date of coming into force of 1981 Act, i.e., 18th January, 1982, be governed by the provisions of Premises tenancy Act and for the said purpose, owners of the structures shall be deemed to be landlords and Bharatias shall be deemed to be tenants under the said Act. Section 11 of the 1981 Act lays down that tenancy of Bharatia as a tenant under thika tenant shall not be extinguished because of subsequent non-existence of the structure which the Bharatia previously occupied under the thika tenant and its tenancy shall continue. According to Section 19 of the 1981 Act, all proceedings for ejectment of thika tenants and Bharatias shall stand abated with effect from 19th day of July, 1978 as if such proceedings had never been made. It may be useful to refer to the provisions of Sections 9, 11 and 19 referred to above which read thus:

“9. thika tenants and Bharatias to be governed by West Bengal Act 12 of 1956.- (1) The monthly and other periodical tenancies of Bharatias in respect of structures occupied by them on payment of rents to 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, 1956, in all matters coming within the purview of the said Act and, for the said purpose, 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) Notwithstanding anything contained in this Act or in the West Bengal Premises tenancy Act, 1956, a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency or separate water supply connection from the appropriate agency for his own use.

11. tenancy of Bharatia to continue.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the tenancy of a Bharatia as a tenant under a thika tenant shall not be extinguished because of subsequent non-existence of the structure or a part thereof which the Bharatia previously occupied under the thika tenant.

(2) If any structure or part thereof which was in the occupation of a Bharatia as a tenant under a thika tenant ceases to exist except under an order of a court under section 18A of the West Bengal Premises tenancy Act, 1956, the thika tenant shall reconstruct similar accommodation and restore possession to the Bharatia and put the Bharatia in possession of such accommodation within one month of such structure ceasing to exist, failing which the Bharatia may make an application to the Controller in the prescribed manner.

(3) On an application made by the Bharatia under sub-section (2), the Controller shall, after giving the thika tenant and the Bharatia an opportunity of being heard, direct the thika tenant to reconstruct similar accommodation and restore possession to the Bharatia within such time as Controller may decide.

(4) If the thika tenant fails to comply with the orders of the Controller under sub-section (3), the Bharatia shall be entitled to reconstruct the structure and, for that purpose, may make an application to the Controller who shall, after giving the Bharatia and the thika tenant an opportunity of being heard, approve such cost of reconstruction as may appear to him to be fair and reasonable and, after such reconstruction, allow adjustment of the cost of such reconstruction from the rent payable by the Bharatia in such monthly instalments as the Controller may think fit.

(5) If there is any unlawful resistance by or on behalf of the thika tenant to the reconstruction by the Bharatia under sub-section (4), the Officer-in-charge of the local police station shall, on receipt of any requisition of the Controller in writing in this behalf, render all necessary and lawful assistance to the Bharatia.

19. Proceedings including appeals and proceedings in execution of orders, etc. to abate.- All proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta thika tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never been made.”

12. In view of the aforesaid provisions, now the question to be examined is as to whether in the present case, the earlier suits for ejectment filed by the thika tenants for ejectment of Bharatias abated under Section 19 of the 1981 Act? Under 1949 Act, procedure was provided for ejectment of a thika tenant only and no procedure whatsoever was prescribed for ejectment of a Bharatia by a thika tenant. Therefore, a suit for ejectment could be filed by a thika tenant for ejectment of a Bharatia before an ordinary civil court and such Bharatia during the continuance of 1949 Act was not entitled to claim protection under the Premises tenancy Act and could be evicted upon determination of his tenancy by giving a notice under Section 106 of the Transfer of Property Act. Under 1981 Act, it has been specifically provided that Bharatias are entitled to claim protection of the Premises tenancy Act meaning thereby that now they cannot be evicted unless grounds for eviction enumerated under the Premises tenancy Act are proved and they cannot be ejected merely upon determining their tenancy by giving a notice under Section 106 of the Transfer of Property Act.

13. Section 9 of the 1981 Act specifically lays down that from the date of coming into force of 1981 Act, i.e., 18th January, 1982, the tenancies of Bharatias shall be governed by the Premises tenancy Act. On that date, both the suits earlier filed by the thika tenants for ejectment of Bharatias were pending and when the same were filed, it was not required of the thika tenant to prove the grounds for eviction enumerated under the Premises tenancy Act, but with effect from 18th January, 1982 even in those suits a thika tenant was required to prove grounds for ejectment under the Premises tenancy Act in case it is held that the same did not abate.

14. Learned Senior Counsel appearing on behalf of the appellants has placed reliance upon three decisions of Calcutta High Court in the case of Ranjit Kumar Saha vs. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1071, Ranjit Kumar Saha vs. Sudhir Kumar Dey 91 Calcutta Weekly Notes 1090 and Mrs. Qaiser Jahan vs. Mohammad Yawoob 1982 (2) Calcutta Law Journal 143. In these three decisions, it has been laid down that the provisions of Section 19 of the 1981 Act shall apply only in relation to those suits for eviction which were filed before the Controller under the provisions of 1949 Act and were pending on the date of commencement of 1981 Act. It was further laid down therein that the said provisions shall have no application to the suits for ejectment filed before the civil court by a thika tenant for ejectment of a Bharatia and pending on the date of commencement of 1981 Act. In none of these three cases, the provisions of Sections 9 and 11 of the 1981 Act have been considered. In case it is held that such suits would not come within the mischief of Section 19 of the 1981 Act, the provisions of Section 9 of the 1981 Act would not apply to it although expressly Section 9 provides that from the date of commencement of 1981 Act, i.e., 18th January, 1982, the provisions of the Premises tenancy Act would apply to Bharatias. Such suits cannot be effectively disposed of after the commencement of 1981 Act as earlier it was not necessary to prove the grounds for eviction enumerated under the Premises tenancy Act and the Bharatia would be thereby denied the protection granted to him under the Premises tenancy Act although he was entitled to such protection even in pending suits. This being the position, we are clearly of the view that suits for ejectment filed by the thika tenants for ejectment of Bharatias which were pending before a civil court abated under Section 19 of the 1981 Act, as such High Court was quite justified in holding that the present suits were maintainable.

15. Learned Senior Counsel appearing on behalf of the appellants next submitted that the High Court was not justified in reversing the finding of fact recorded by the lower appellate court that plaintiffs failed to prove the bona fide necessity in relation to one room. In this regard, it may be stated that from the judgment of the High Court, it would appear that the lower appellate court affirmed finding of the trial court in relation to personal necessity of the plaintiffs with regard to three rooms which finding was assailed by the defendants before the High Court. The building is one in which eviction was sought by the plaintiffs from four rooms and evidence is also common. While considering correctness of finding of the lower appellate court in relation to three rooms, High Court came to the conclusion that the plaintiffs were having only two rooms and they required in all seven rooms, meaning thereby that they required five more rooms and in those circumstances, it was held that the plaintiffs succeeded in proving their case in relation to bona fide necessity with regard to all the four rooms, including one room for which eviction was refused by the lower appellate court. In view of the aforesaid facts, we are not inclined to interfere with the impugned judgment rendered by the High Court even with regard to eviction of the defendants from one room, in the exercise of powers of this Court under Article 136 of the Constitution of India.

16. In the result, the appeals fail and the same are dismissed but in the circumstances of the case, we direct that there shall be no order as to costs.

Howrah Mills Co. Ltd. and ANOTHER Vs Md. Shamin and ORS[ALL SC 2006 MAY]

KEYWORDS:- THIKA TENANCY-supervision of the BIFR –

c

DATE:-12-05-2006

(2006) 6 SCALE 50 : (2006) 5 SCC 539 : (2006)Supp(2) SCR 692

(SUPREME COURT OF INDIA)

Howrah Mills Co. Ltd. and ANOTHER Appellant
Versus
Md. Shamin and OTHERS Respondent

(Before : S. B. Sinha and P. K. Balasubramanyan, JJ. )

Civil Appeal No. 2639 of 2006 (Arising out of SLP (C) No. 21979 of 2004) with I.A. Nos. 4 and 5/2006; Decided On: 12-05-2006

Constitution of India, 1950—Article 226—Calcutta thika tenancy (Acquisition and Regulation) Act, 1981—Section 5—Police Regulations, Bengal 1943—Regulations 666 and 669.

Counsel for Parties:

Mukul Rohtagi, Sr. Adv., Utpal Majumdar, Sanjay Sen, Dipak Kumar Jena, Pabitra Kumar Biswal, Ghanshyam Joshi and Minakshi Jang (Ghosh), Advs

Tarun K. Roy, R.F. Nariman and Anupam Chatterjee, Sr. Advs., Tara Chandra Sharma, Neelam Sharma, Abhijat P. Medh, Rauf Rahim and Mahmud, Advs.

JUDGMENT

P.K. Balasubramanyan, J—

Leave granted.

1. The appellants approached the High Court of Calcutta praying for the issue of a writ of mandamus directing the State and its police authorities to give the appellants the necessary protection in respect of the property of the first appellant, the Howrah Mills Co. Ltd. The appellants pointed out that the company was before the Board for Industrial and Financial Reconstruction (in short “the BIFR”) for its reconstruction and a proposal to sell away a portion of its land as a means to revive the industry, has been approved by the BIFR, especially since the State of West Bengal had also agreed before it to such a course. The company owned a vast extent of land out of which a portion was to be sold and the process for sale is at an advanced stage. Meanwhile, attempts were being made to interfere with the possession of the appellants over the property and in spite of requests in that behalf, the police authorities were not rendering the necessary help to the appellants. The company employed about six thousand workers and a revival of the company, which was still working, would be for the benefit of such a work force also and it was all the more reason for the respondents to give the necessary protection to the appellants to protect the property from unauthorized trespassers. There was also a prayer for affording protection for the purpose of repairing the compound wall of the property and for putting up a separate boundary wall protecting the portion to be alienated. The appellants offered that they would meet the expenses for the affording of such protection.

2. While entertaining the writ petition, a learned Single Judge of the High Court of Calcutta granted an interim order of protection. The learned Judge found that there was prima facie failure on the part of the police to perform their duty and in the circumstances it was just and proper to issue a direction to the Superintendent of Police, Howrah to ensure that the officer in charge of the Shibpur Police Station strictly complied with the direction given to him to see to it personally that no one, in any manner, stepped into the property in question, without specific permission being granted by the appellants. The writ petition was directed to be listed for final hearing.

3. An appeal was filed by three persons claiming to be assignees of a fraction of a share from a fraction shareholder challenging the direction issued by the learned Single Judge on a claim that they were co-owners of the property and hence were entitled to exercise rights as such and their right to give permission for use of the property cannot be interfered with, that too, by a direction in a writ petition seeking a mandamus for what can be called police protection. They contended that intricate questions of title and right over the land were involved and when it was so, the Single Judge or the High Court could not exercise jurisdiction under Article 226 of the Constitution of India to issue a direction like the one issued by the leaned Single Judge purporting to protect the disputed rights of the writ petitioners. The Division Bench without paying proper attention to the circumstances obtaining in the case and the need to protect the property in the interests of one and all, set aside the order of the learned Single Judge on the view that disputed questions were involved and hence no such direction as the one given by the learned Single Judge could have been granted. The interim direction of the learned Single Judge was, thus, set aside and the prayer for interim relief was rejected.

4. The appellants challenged this order of the Division Bench in this Court and while directing the listing of the case, this Court stayed the order of the Division Bench. Subsequently on 1.11.2004 this Court issued notice, continued the interim order of stay of operation of the judgment of the Division Bench of the High Court and directed that the police protection sought for by the appellants would be given at the cost of the appellants. Thus, the protection which was granted pursuant to the direction of the learned Single Judge continued, pursuant to the order of this Court. The position now is that the protection is now being offered to the appellants on their liability to pay the costs for such protection.

5. Learned senior counsel for the appellants submitted that the protection being granted may be continued until the portion of the property directed to be sold by the BIFR is sold and the purchaser put in possession and the industry is in a position to move ahead in full steam with the purchase price that will be available to it for such resurrection. Counsel further submitted that a direction may be issued to the police to grant protection to the appellants to erect the compound wall separating the plot earmarked for sale so as to separate it from the rest of the property and protection may also be ordered for enabling the appellants to repair and renovate the boundary of the property of the company. Counsel also pointed out that the appellants have filed I.A. No. 6 of 2005 praying that they may not be compelled to pay the astronomical sums claimed by the police department towards the charges for protection given thus far. Counsel submitted that it was in the interest of everyone, including the six thousand workers and the economy of the State, to have the working of the industry fully revived and in that context, the State had also a duty to ensure that the scheme before the BIFR was worked out under the supervision of the BIFR. Counsel pointed out that if the appellants are compelled to pay huge sums as costs of protection as demanded by the State, substantial portion of the proceeds of sale of a portion of the property permitted to be sold with the consent of the State, would be dissipated in such costs and there would be no adequate funds available for revival of the industry fully. In answer, Mr. R.F. Nariman, learned Senior Counsel for Respondents 1 to 3, the appellants before the Division Bench, argued that as disputed questions of title and possession were involved, it was not appropriate for the Court to exercise its jurisdiction under Article 226 of the Constitution of India to protect the alleged rights of the appellants by issuing a writ of mandamus. Counsel further raised a contention that the appellants are, at best, thika tenants and the appellants have no rights over the land, the same having vested in the Government and their rights were confined to the super structures. It appears that such a contention was not raised earlier. But even assuming that such a contention can be looked into by us, the position would be that so long as the thika tenancy continues, respondents 1 to 3 as alleged assignees of fractional title in the property, would have no right to interfere with the possession of the property. If there is a vesting under Sections 5 and 6 of the Calcutta thika tenancy (Acquisition and Regulation) Act, 1981, then it will be a complete vesting of all rights and the rights of the landlord would also stand vested in the State. We may notice that Mr. Tarun K. Roy, learned Senior Counsel appearing for the State of West Bengal submitted that the State had not made any claim of right under the thika tenancy Act, no such claim was put forward before BIFR also and that, as a matter of fact, the State had all along supported the cause of the appellants for the rehabilitation of the industrial undertaking before BIFR and the sale of a portion of the land proposed to be sold under the supervision of the BIFR. This argument, therefore, cannot carry respondents 1 to 3 herein, far. Even otherwise, if there is a thika tenancy in favour of the appellants, it would not be open to respondents 1 to 3 herein to interfere with the possession or right of the appellants so long as the tenancy continues. In purported exercise of their fractional right in reversion, they cannot seek to interfere with the possession of the thika tenant. This argument, therefore, deserves to be overruled.

6. Learned counsel further submitted that in any event respondents 1 to 3 herein were disputing the title and possession claimed by the appellants and were setting up rights in themselves including a claim of possession over portions of the property and in such a situation, a direction for police protection should not or could not be granted. Learned counsel reiterated the submissions made before the Division Bench of the High Court and accepted by that Court.

7. On behalf of the State of West Bengal, learned Counsel submitted that the appellants have not paid even the agreed charges for grant of protection which they had agreed to pay. Learned counsel pointed out that earlier and before this Court also the appellants had agreed to pay at the rate of ` 16,413/- per day and the amount is due from 24.12.2004 till date. Counsel submitted that the State would be willing to give necessary protection provided the charges are paid and they are continued to be paid as demanded by the State.

8. We do not see much force in the submission for counsel for respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, respondents 1 to 3 herein are assignees of undivided shares from a co- owner, and prima facie, their right, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then, they can work out their rights without obstruction.

9. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the police.

10. At the same time, we think that only a reasonable amount should be fixed so that the endeavour made to revamp the industry is not frustrated by too heavy a slice of the price of the land to be sold under the supervision of the BIFR for the resurrection of the industry being spent on this score. It is no doubt true that the appellants had agreed to pay a sum of ` 16,413/- per day for the protection. It is seen from I.A. No. 4 of 2006 filed by respondents 4 to 7 in the appeal that they have now computed the amount payable at ` 9, 195/- per day from 1.10.2005 till this date and for the earlier period between 31.1.2005 to 30.9.2005 they had proposed to claim a sum of ` 15,678/- per day though for an earlier period between 24.12.2004 and 3 0.01.2005 they have proposed to claim @ ` 41,520/- per day. Since the protection for the property from trespassers is also to enure to the benefit of the industry as a whole including its workforce of about six thousand, we think that a sum of ` 10,000/- per day for the entire period for which the appellants have not paid would be adequate compensation to the State. We, therefore, direct the appellants to pay the entire arrears calculated at the rate of ` 10,000/- per day for the entire period set out in I.A. No. 4 of 2006 within a period of two months from this date. The appellants would also be liable to pay at the rate of ` 10,000/- per day from the last date referred to in I.A. No. 4 of 2006 till this date within that period and will continue to pay the said sum per day from today till the plot to be sold is separately demarcated and bounded and boundary of the balance property repaired or rebuilt. The current payments have to be made by the appellants at the rate of ` 10,000/- per day, once in 15 days, starting from today.

11. Respondents 4 to 7 are directed to continue to give the requisite protection to the appellants in respect of the property of the first appellant – company and also to give necessary protection to enable the company to repair or renovate its boundary walls as also for construction of separate boundary walls for the plot of land proposed to be sold under the supervision of the BIFR.

12. Mr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant – Company in discharge of the statutory duties of the State and the Police. In this context, the Authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property. That would enable a reduction in the cost of protection to be paid by the appellants and the State would be free to reduce the charges payable by the appellants for protection of the properties. In the light of the directions as above and the observations, I.A. Nos. 4 and 5 of 2006 will stand disposed of.

13. The appeal is allowed in the above manner and the Interlocutory Applications are disposed of in the light of the directions contained above. There will be no order as to costs.

Rozan Mian Versus Tahera Begum and OTHERS[ALL SC 2007 AUGUST]

KEYWORDS:- THIKA TENANCY

c

DATE:-14-08-2007

AIR 2007 SC 2883 : (2007) 8 SCR 1013 : (2007) 12 SCC 175 : JT 2007 (10) SC 134 : (2007) 10 SCALE 20

(SUPREME COURT OF INDIA)

Rozan Mian Appellant
Versus
Tahera Begum and OTHERS Respondent

(Before : H. K. Sema And Lokeshwar Singh Panta, JJ.)

Civil Appeal No. 814 of 2005, Decided on : 14-08-2007.

Calcutta thika tenancy (Acquisition and Regulation) Act, 1981—Sections 6(3), 7(1) and 7(2)—Contract Act, 1872—Section 56.

Counsel for the Parties:

S. B. Sanyal, Sr. Advocate, Rauf Rahim Md. Iqbal, for Appellant

Jaideep Gupta, Tapash Ray, Sr. Advocates, G. S. Chatterjee, Sachin Das, Ms. Alean Moohuri, Satish Vig, Pijush K. Roay, G. Ramakrishna Prasad, for Respondents.

Judgment

H. K. Sema, J—This appeal preferred by the plaintiff is directed against the judgment and order dated 13.11.2003 passed by the High Court in F.A.No.103 of 1988, dismissing the suit of the plaintiff, by reversing the decree granted by the Trial Court.

2. Briefly stated the facts are as follows :-

An agreement was entered into between the plaintiff and the defendant on 3.12.1973 for sale and purchase of thika tenancy. The agreement having not been carried out, the plaintiff filed a suit on 7.2.1974 for specific performance of agreement for sale. The Trial Court decreed the suit on 24.4.1990. However, the High Court upset the decree and hence the present appeal. The undisputed fact is that the aforesaid agreement was entered into between the parties while the Calcutta thika tenancy Act, 1949 was in vogue. The agreement was to sell structure without the land. There was no bar in transferring structure without the land under 1949 Act and a person purchasing the structure would have become a thika Tenant. However, during the pendency of the suit, West Bengal Act 37 of 1981, The Calcutta thika tenancy (Acquisition and Regulation) Act, 1981 (hereinafter the 1981 Act) was promulgated.

3. Section 5 of the Act provides that with effect from the date of commencement of this Act, lands along with the interest of the landlords therein shall vest in the State, free from all encumbrances.

4. Sub-Section (3) of Section 6 prohibits the transfer of the interests of thika tenants and tenants of other lands holding directly under the State except the transfer amongst the heirs and existing co-sharers-interest or to the prospective heirs, subject to the provisions of sub-section (1) of Section 7.

5. By reason of sub-section (2) of Section 7 any transfer or agreement for transfer, whether oral or in writing in contravention of the provisions of sub-section (3) of Section 6 or sub-section (1) of Section 7 shall be void and be of no effect whatsoever and the land and structure shall stand vested in the State in accordance with the prescribed procedure.

6. Section 4 of the Act has an overriding provision. It reads :-

“4. Act to override other laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom, usage or agreement or in any decree or order of a court, tribunal or other authority.”

7. In the background of the position of law, the question to be determined in this appeal is as to whether the specific performance of the agreement for sale becomes impossible of performance by reason of promulgation of the West Bengal thika tenancy (Acquisition and Regulation) Act 1981, during the pendency of the suit. As already noticed, the plaintiff’s suit was filed on 7.2.1974 for specific performance of agreement for sale-dated 3.12.1973. The suit was decreed on 24.4.1990. During the pendency of the suit, 1981 regulation was promulgated. By virtue of Section 5, all lands and interests of the landlords vested with the Government. By virtue of sub-section (3) of Section 6 of the Act, transfer of thika tenancy is prohibited. By virtue of sub-section (2) of Section 7, any transfer in contravention of sub-section (3) of Section 6 is void. Section 4 provides overriding effect on all laws including the agreement or any decree or order of a court, tribunal or other authority.

8. It is noticed that the 1981 Act has brought about drastic changes in the concept of thika tenancy. The superior interest of the landlord holding under the State stands vested in the State by operation of law. The land having been vested in the State and the thika Tenant occupying the land under the landlord became a thika Tenant holding the thika tenancy directly under the State.

9. Section 56 of the Indian Contract Act, 1872 (in short “the Act”) provides that an agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. In the present case, by virtue of 1981 Act, the land under the landlord has been vested in the State and the thika Tenant under the landlord becomes the thika Tenant under the State.

10. Mr. S.B. Sanyal, learned senior counsel appearing for the appellant, contended that the right accrued by an agreement dated 3.12.1973 under the 1949 Act still subsists and could not have been taken away by 1981 Act, as the application of the Act itself was not made retrospectively. This contention, in our view, is thoroughly misplaced. We have already pointed out various Sections of the Act, by which the agreement dated 3.12.1973 itself becomes void. No such right as contended by learned counsel for the appellant was accrued under the 1949 Act, as the suit for specific performance of agreement for sale was decreed only on 24.4.1990, by the Trial Court, after the agreement itself became void, by virtue of 1981 Act. In support of his contention Mr. Sanyal referred to various decisions of this Court; K. S Paripoornan v. State of Kerala, (1994) 5 SCC 593, R. Rajagopal Reddy v. Padmini Chandra-sekharan, (1995) 2 SCC 630; Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24; Narayan Chandra Ghosh v. Kanailal Ghosh, (2006) 1 SCC 175. The aforesaid decisions are not at all relevant for the purpose of disposal of the present appeal.

11. The High Court was of the view that after the promulgation of 1981 Act by reason of operation of law, the contract has become void, the plaintiff is entitled only to the refund of the consideration together with interest and cost of the suit at the rate assessed by the High Court.

12. We see no reason to interfere with the views of the High Court. This appeal being devoid of merits is, accordingly, dismissed with no order as to costs.