The Concept of Thika Tenancy
West Bengal Thika Tenancy Act 2001 is a beneficial legislation
Prior to 1949, within the municipal limits of Calcutta and Howrah in the State of West Bengal, there existed a category of tenancy known as “Thika Tenancy”. Under such system of tenancy, vacant land was leased by the landlord to a tenant with liberty to erect structures thereupon of a temporary nature, which were referred to as “Kutcha Structures”. The structures would be owned by the tenant of the land and the tenant was further entitled to grant lease of the structure or portion thereof in favour of subtenants. In this kind of tenancy, the tenant of the land was referred to as the “Thika Tenant” and the subtenant was referred to as “Bharatia”. Such tenancies were unregulated and came to be regulated for the first time by the Calcutta Thika Tenancy Act, 1949
The aforesaid 1949 Act dealt only with the rights and obligations of the landlord, Thika Tenant and Bharatia, in relation to each other.
In 1981, there were fresh developments in relation to Thika Tenancies in Calcutta with the enactment of the Calcutta Thika and Other Tenancies and Land (Acquisition & Regulation) Act, 1981. The said Act was for the acquisition of the interest of landlords in relation to the lands comprised in Thika Tenancies and certain other tenancies and other lands in Calcutta and Howrah, for development and equitable utilization of such lands. In the 1981 Act,
The relationship between the Thika Tenant and Bharatia came to be governed by the provisions of the West Bengal Premises Tenancy Act, 1956
Chapter 1-Preliminary [s 1-3]
Chapter 2- Acquisition of lands comprised in thika tenancies and the rights of the landlords in such lands [s 4-7]
Chapter 3-Incidents for tenancies of Bharatias in structures [s 8-10]
Chapter 4-Miscellaneous and supplemental provisions [s 11-27]
- Definitions. – In this Act, unless there is anything repugnant in the subject or context, –
(1) “Bharatia” means any person by whom or on whose account, rent is payable to “for any structure or part thereof,” owned by a thika tenant, but excludes any person paying rent to a Bharatia and any “resident of a structure” forfeited by the State Government under sub-section (2) of section 6, irrespective of the status, the said person may have enjoyed earlier;
(3) “holding” means a parcel or parcels of land occupied by a thika tenant under one set of conditions along with any tank included in such land.
(4) “hut” means any building or structure, the roof or the floor of which, excluding the floor at the plinth level, is not constructed of masonry or reinforced concrete.
(6) “land appurtenant” includes any easement, right, or any common benefits or facilities, or access, passage, drains, tanks and pools which were owned by the landlord and were enjoyed by the thika tenant and the Bharatia, if any, before the date of vesting.
(7) “landlord” means any corporation, charitable or religious institution or person who, for the time being, is entitled to receive or, but for a special contract, would be entitled to receive the rent for any land comprised in the tenancy of a thika tenant or in a khatal, tank or hut owned by him, and includes any corporation, institution or person having superior interest in such thika tenancy;
(13) “pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature.
(14) “Thika tenant” means any person who occupies, 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 any other periodical rate for that land to that another person, and has erected or acquired [by purchase or gift any structure including pucca
structure, if any, on such land] for residential, manufacturing or business purpose, and includes the successors-in-interest of such persons but excludes any resident of a structure forfeited to the State under subsection (2) of section 6 of this Act irrespective of the status, he may have enjoyed earlier;”
(15) “thika land” means any land comprised in and appurtenant to, tenancies of thika tenant irrespective of the fact whether there is any claim of such tenancy or not an includes open areas and roads on such land.”
3. 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.
4-Lands comprised in thika tenancies and other lands, etc. to vest in the State. – With effect from the 18th day of January, 1982, the following lands along with the interest of landlords therein shall be deemed to have vested in the State, free from all encumbrances:-
(a) Lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads and;
(b) Lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:
Provided that any land comprised in, and appurtenant to, tenancies of thika tenants created after the 18th day of January, 1982, shall also be deemed to be vested in the State, free from all encumbrances with effect from the date of creation of tenancies of
Provided further that such vesting shall not be deemed to have affected in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias or occupiers of land coming within the purview of this section:
Provided also that nothing contained in this section shall prevent the State Government or the local authority from taking up any development work on the land appurtenant to tenancies of thika tenants for public purpose.
Status of Tenancy
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 his 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 particulars as may be considered necessary, enquire upon and decide such question.
5(5) The thika tenants holding directly under the State under sub-section (1) shall be entitled [to construct pucca structures or to change the nature, character and dimension of an existing structure on the land] in accordance with the building plans sanctioned under the Kolkata Municipal Corporation Act, 1980, (West Ben. Act LIX of 1980), and the rules made thereunder, or the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980), and the rules made thereunder, according as the land may be situated within Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980 (West Ben. Act LIX of 1980), or Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980, (West Ben. Act LVIII of 1980), for
(a) residential and business purposes for themselves and the Bharatias under them; and
(b) essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and similar other purposes:
Provided that the thika tenants holding directly under the State under sub-section (1), shall obtain a no objection certificate from the Controller before making any pucca construction or changing the nature, character and dimension of an existing structure on the land, irrespective of the area of the land.
(6)The thika tenant holding directly under the state under sub-section (1), shall be liable to pay rent to the state government at such rate and in such manner as may be prescribed.
Status of Bharatiya
8 (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 and after examing 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
(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
Tenancy of the Bharatiya 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 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-incharge 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.
Appeal. – (1) Any person aggrieved by an order of a Controller may, within 30 days from the date of the order, prefer an appeal in writing before the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (West Ben. Act XXV of 1997).
(2) Subject to provisions of this Act and rules made thereunder, any order passed by the Land Reforms and Tenancy Tribunal may, in the manner prescribed, be reviewed by the said Tribunal on account of some mistake or error apparent on the face of the record or for any other sufficient cause of like nature.
18. Penalty– (1) Whoever contravenes any provision of this Act which may facilitate the commission of an offence, shall be punishable with imprisonment for a term which may extend to five years and also with fine which may extend to ten thousand rupees:
(2) Whoever voluntarily causes any resistance or obstruction to the lawful discharge of duties of the Controller or his representative, shall be punished with imprisonment for a term which may extend to one year and also fine which may extend to five thousand rupees:
(3) Offences under this section shall be bailable and cognizable. (4) No court shall take cognizance of any offence punishable under this section except on a complaint made in writing by a Controller or by an officer authorized by him in this behalf.
(5) An offence under this section shall be triable by a Judicial Magistrate of first class having jurisdiction over the places of occurrence of such offence”
S 21-Bar to jurisdiction – No civil court shall have jurisdiction to decide, or to deal with, 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, and no order or judgment passed, or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any civil Court.
27- Repeal and savings – (1) With effect from the date of commencement of this Act, the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Ben. Act XXXVII of 1981), shall stand repealed. (2) Notwithstanding the repeal of the said Act, such repeal shall not –
(a) Affect the previous operation of the said Act or anything duly done or suffered thereunder; or
(b) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act;
(c) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the said Act; or
(d) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed
The Calcutta Thika Tenancy Act, 1949, hereinafter referred to as the 1949 Thika Tenancy Act, was enacted to regulate the law of landlord and tenant in respect of thika tenancies in Calcutta, and to make better provisions relating to the law.The said 1949 Thika Tenancy Act was repealed by the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, hereinafter referred to as the 1981 Thika Tenancy Act. The said 1981 Thika Tenancy Act has been repealed and replaced by the 2001 Thika Tenancy Act (West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001) Some of the provisions of the 2001 Thika Tenancy Act were amended with effect from 5th October, 2010, by the West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010, hereinafter referred to as the Amendment Act of 2010.
Object of Legislation
West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.
Definition of Thika Tenancy
The essential ingredient of a Thika tenancy is that the land should be owned by the superior landlord, but the structure thereon should be owned by another person in occupation of land, ordinarily on payment of rent, who may have erected the structure on the land held by him as occupier and/or holder of the land, or acquired the structure by gift or purchase. After 1st November, 2010, the definition of “thika tenant” includes the owner of a pucca structure, whether the pucca structure has been acquired by gift or purchase, or erected by him from his own funds. The thika tenant must, however, be the owner of the structure, but not the land on which the structure is erected.
The definition of ‘Thika tenant’ under the 1949 Thika Tenancy Act, expressly excluded a person who held land under another person in perpetuity or a person who held land under another person, under a registered lease, for a period of not less than 12 years, or a person who held land under another person and used or occupied such land as a ‘khatal’. Section 2(1) of the 1949 Thika Tenancy Act defined ‘Bharatiya’ to mean any person by whom or on whose behalf, rent was payable for any structure or part of a structure erected by a ‘thika’ tenant in his holding There could only be a ‘thika’ tenancy under the 1949 Act, when the land belonged to one person and the structures thereon to another person. In other words, there would be a superior landlord, who was the owner of the land and a subservient holder being the lessee and/or tenant under the superior
landlord and the owner of the structures, that is, the ‘thika tenant’, with the right to use, occupy or let out the structures. The ‘Bharatiya’ was the person to whom a structure so constructed and/or acquired by a ‘thika tenant’ had been let out. A ‘Bharatiya’ paid rent to the ‘thika tenant’ only for the structure, of which he was ‘bharatia’.
Section 3(8) of the 1981 Thika Tenancy Act defined ‘thika tenant’ to mean any person who occupied, whether under a written lease or otherwise, land under another person, and was, 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 had erected or acquired by purchase or gift, any structure on such land for residential, manufacturing or business purpose and included successors in interest of such person.The definition of ‘thika tenant’ in the 1981 Act was almost identical to the definition of ‘thika tenant’ in the 1949 Act, except that, persons holding land in perpetuity, persons holding land under registered lease for a period of 21 not less than 12 years and persons using land for the purpose of khatals were no longer excluded from the definition of ‘thika tenant’.
Definition of Structure
The expression ‘structure’ in the Thika Tenancy Act of 1949, had all along been judicially interpreted to mean a “kuccha” and/or temporary structure. However, a different view has been taken by the Hon’ble Supreme Court, by its judgment and order dated 24th February, 2015, in Civil Appeal No. 2402 of 2015 arising out of SLP (C) 8297/2014 (Nemai Chandra Kumar & Ors. Vs. Mani Square Ltd. & Anr.).
In 1969 the Thika Tenancy Act of 1949 was amended to include the definition of ‘pucca structure’ which was defined to mean any structure constructed mainly of brick, stone or concrete or any combination of these materials. By amendment in 1969, Section 10A was incorporated in the 1949 Thika Tenancy Act. Section 10A provided that notwithstanding anything contained in any other law for the time being in force, or any contract, but subject to the provisions of Sub-section (2) and (3), a thika tenant using the land comprised in his holding for a residential purpose, might erect a pucca structure on such land, for such purpose, with the previous permission of the Controller. Sub-section 2 of Section 10A provided that the Controller might grant permission to erect a pucca structure, if the Controller was satisfied that the thika tenant had been using the structure on the land comprised in his holding for a residential purpose, intended to use the pucca structure to be erected on such land for a similar purpose and had obtained sanction of a building plan to erect the pucca structure from the municipal authorities of
the area. Section 10A incorporated in 1969 makes it patently clear that a thika tenant using a structure for residential purpose, might erect a pucca structure in place of the existing “kuccha” structure, with permission of the Controller and for similar purpose, that is, residential purpose, subject to sanction of the municipal authorities. Thus, under the 1949 Thika Tenancy Act, no pucca structure for business or manufacturing purpose would come within the purview of thika tenancy.
As per the definition of ‘bharatia’ in the 2001 Thika Tenancy Act, ‘bharatia’ is one by whom or on whose account rent is payable for any structure including pucca structure if any, or any part thereof, owned by a thika tenant, but excludes any person paying rent to a ‘bharatia’.
The term ‘Bharatia’ was defined under Section 2(1) of the Act. Essentially therefore the Act governed the relationship of thika tenants with their landlords on the one hand and with the Bharatias on the other. The grounds on which a thika tenant could be ejected
were prescribed under the Act of 1949. The proceedings for ejectment were to be conducted before the Controller appointed under the Act. Provisions relating to payment of rent of thika tenancies, rights and duties of a thika tenant vis-à-vis the landlord and the Bharatias were also enumerated under the Act.
Under Section 8 (2) of the said Act of 2001 with regard to the question as to whether a person is a Bharatia under a particular thika tenant, the Controller may either on his own motion or upon receiving any information and after giving the persons interested an opportunity of being heard and examining all necessary documents and particulars enquire upon and decide such question. Under Section 5(3) of the said Act of 2001 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 may similarly enquire upon and decide such question.
Bharatiya is different form ‘Tenant’ under West Bengal Premises Tenancy Act 1997 :
2[g]”tenant” means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and [in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him or a person authorised by the tenant who is in possession of such premises,] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction:
Provided that the time limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises:
Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises [on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose.
Vesting of Thika Land
The 1949 Thika Tenancy Act was repealed and replaced by the 1981 Thika Tenancy Act, under which the interests of landlords in lands comprised in thika tenancies, and certain other lands in Calcutta and Howrah, vested in the State.
Under Section 5 of the 1981 Act, lands comprised in ‘thika’ tenancies and other lands held under any person in perpetuity, or under registered lease for a period of not less than 12 years or held in monthly and periodical tenancies for being used and occupied as khatals, along with easements, customary rights, common facilities and such other things in such ‘thika’ tenancies and khatals, attached to or used in connection with such ‘thika’ tenancies and khatals, and the right, title and interest of landlords in such lands were to vest in the State free from all encumbrances, with effect from the date of commencement of the 1981 Act.
The proviso to Section 5 of the 1981 Act clearly provided that easements, rights, common facilities or benefits enjoyed by a ‘thika tenant’ or an occupier of any land under any person in perpetuity or any land under any person under a registered lease for a period of not less than 12 years or a khatal in khas lands of the landlords, were not to be affected in any way by such vesting.
Only thika tenancies as defined by the 1949 Thika Tenancy Act, vested in the State under the 1981 Thika Tenancy Act, apart from Khatals.
Status of Rayat
After the enactment of the 1981 Thika Tenancy Act, every thika tenant and other tenant occupying land directly under the State, became liable to pay to the State an amount of revenue determined in accordance with the provisions of the West Bengal Land Holding Revenue Act, 1979 and for this purpose, such tenant was to be deemed to be a ‘raiyat’ under that Act. The revenue payable by the tenant was not to be less than what he was paying to the landlord, before the coming into force of the said Act.
Sub-section 3 of Section 6 of the provided that the rights of a thika tenant and other tenants occupying land directly under the State, subject to the provisions of the said Act, would be heritable but not transferrable. The 1981 Act and particularly Sub-section 3 of Section 6 thereof clearly provided that no tenant was to construct a pucca structure without submitting a comprehensive development plan or improvement scheme for the holding. Any such scheme was to provide for alternative accommodation for bharatias in
accordance with Sub-section 2 of Section 11. An exception was made by the proviso to Section 6 enabling a thika tenant or a tenant of lands which vested under Section 5 to construct a pucca structure for essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and other similar purposes.
Power of the Controller
Controller has power under Section 5(3) of the 2001 Thika Tenancy Act to decide whether
any particular land is thika land and whether any person claiming ‘thika tenancy’ is a ‘thika tenant’ or not. However, the Controller, on preliminary examination of the return/claim would have to be prima facie satisfied of the existence of a thika tenancy. Where a return and/or the documents appended thereto and/or any pleadings filed in support thereof ex facie reveal that the land in question is not a ‘thika’ land, the Controller cannot exercise jurisdiction/further jurisdiction to proceed with an enquiry under Section 5(3) of the 2001 Thika Tenancy Act. An order of the Controller was appealable to the Tribunal under Section 12 of the 2001 Thika Tenancy Act
Jurisdiction of High Court
The Tenancy Tribunal Act has not, however, excluded the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India exercised by a Division Bench. Rather the jurisdiction of the High Court under Article 226 of the Constitution has expressly been saved, subject to the condition that the jurisdiction is exercised by a Division Bench.
The power of the High Court under Article 226 of the Constitution of India is unfettered. The existence of an alternative remedy of appeal does not debar the Writ Court from entertaining an application. However, the Courts as a self imposed measure of discipline, decline to exercise jurisdiction when there is an equally efficacious alternative remedy.
There are, however, at least four well-known exceptions to the rule of alternative remedy. The Writ Court may interfere notwithstanding the existence of an alternative remedy, where proceedings, are without jurisdiction, where the proceedings are conducted under the provisions of an ultra vires law, where the proceedings are in violation of the principles of natural justice and where the action is in breach of fundamental rights conferred by Article 14 of the Constitution of India. But Judicial review is not the same as an appeal. In Calcutta Discount Company Ltd. vs. Income Tax Officer the Supreme Court held that the existence of an alternative remedy is not generally a bar to issuance of the writ of prohibition
Supreme Court judgments
Held: The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years’ duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.
Held : Rent and eviction—THIKA tenancy—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.
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