Bandhu Mahto (dead) by L.Rs. AND ANOTHER Vs Bhukhli Mahatain AND OTHERS-14/02/2007

The First Appellate Court, on scrutiny of the oral and documentary evidence, recorded clear and positive finding that none of the pleading has been proved by the plaintiffs in their evidence.

On examination of the reasonings recorded by the First Appellate Court, which are affirmed by the learned Single Judge of the High Court in Second Appeal, we are of the view that the judgments of the First Appellate Court as well as the High Court are well-reasoned based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this case before the High Court. We do not find any perversity or infirmity in the concurrent findings of fact recorded by the First Appellate Court and affirmed by the learned Single Judge of the High Court to warrant interference in this appeal. None of the contentions of the learned Counsel for the plaintiffs- appellants can be sustained.

(SUPREME COURT OF INDIA)

Bandhu Mahto (dead) by L.Rs. AND ANOTHER

Versus

Bhukhli Mahatain AND OTHERS

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Whether tenant shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property? No.

As lordship of Supreme Court in case Shri Ram Pasricha v/s Jagannath AIR 1976 SC 2335 is pleased to hold that:­ ”15.. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence act. The tenant cannot deny that the landlord had no title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant, the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non­pleading of other co­ owners as such.”

Similarly,their lordship of Supreme Court in case D. Satyanarayan vs P. Jagdish, AIR 1987 SC 2192, is pleased to hold that:­ ”3…..Section 116 of the Evidenced Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words’ during continuance of the possession that was received under the tenancy in question, and the courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let RCA: 56/2012 Praveen Kumar vs Nisha Verma 10Of 12 into possession, however, defective it may be, so long as he had not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy..”

Similarly,their lordship of Supreme Court in case Vashu Deo V/s Balkrisham, I (2002) SLT 184=(2002) 1 SCR 171, their lordship of Supreme Court is is pleased to hold that:­ ”6.. Section 116 of the Evidence act, which codifies the common law rule of estoppel between landlord and tenant, provides that no, tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;(ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) section 116 of the evidence act is not the whole law of estoppel between the landlord and tenant. The principles emerging from section 116 an be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his land­lord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount title­holder…’

 

The legal position of sub-tenant under Indian Law

  1. In the case of Associated Hotels of India Ltd., Delhi vs. S. B. Sardar Ranjit Singh, AIR 1968 SC 933,Apex Court held that when eviction is sought on the ground of subletting, the onus to prove subletting is on the landlord. It was further held that if the landlord prima facie shows that the third party is in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.
  2. In Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and Others, (1987) 3 SCC 538, this Court held that in a case where a tenant becomes a partner of a partnership firm and allows the firm to carry on business in the demised premises while he himself retains legal possession thereof, the act of the landlord does not amount to subletting. It was held that whether there is genuine partnership or not must be judged in the facts of each case in the light of the principles applicable to partnership.
  3. While dealing with the mischief contemplated under Section 14(1)(b) of the Delhi Rent Control Act, 1958 providing for eviction on the ground of subletting, this Court in the case of Jagan Nath (Deceased) through LRs. vs. Chander Bhan and others, (1988) 3 SCC 57, held:

    “The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the. tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession”

  4. The question whether the tenant has assigned, sublet or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord within the meaning of Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, fell for consideration in Gopal Saran vs. Satyanarayana, (1989) 3 SCC 56, This Court held :

    “sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. vs. H.C. Sharma ((1988) 1 SCC 70) where it was held that to constitute a sub-letting, there must be a parting of legal possession, i.e., possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them to use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty vs. Desu Rangiah (AIR 1954 Mad 182) were approved by this Court in which the legal position in Jackson vs. Simons ((1923) 1 Ch 373) were relied upon. The Madras High Court had also relied on a judgment of scrutton L.J. in Chaplin vs. Smith ((1926) 1 KB 198) of the report where it was said :

    He did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession of them.

     

  5. A three-Judge Bench of this Court in Parvinder Singh vs. Renu Gautam and others, (2004) 4 SCC 794 commented upon the device adopted by tenants many a time in creating partnership as a camouflage to circumvent the provisions of the Rent Control Act. The following observations are worth noticing :

    “The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is sub-letting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack-renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sub-let the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant.

    A person having secured a lease of premises for the purpose of his business may be in need of capital or finance or someone to assist him in his business and to achieve such like purpose he may enter into partnership with strangers. Quite often partnership is entered into between the members of any family as a part of tax planning. There is no stranger brought on the premises. So long as the premises remain in occupation of the tenant or in his control, a mere entering into partnership may not provide a ground for eviction by running into conflict with prohibition against sub-letting or parting with possession. This is a general statement of law which ought to be read in the light of the lease agreement and the law governing the tenancy. There are cases wherein the tenant sub-lets the premises or parts with possession in defiance of the terms of lease or the rent control legislation and in order to save himself from the peril of eviction brings into existence, a deed of partnership between him and his sub-lessee to act as a cloak on the reality of the transaction. The existence of deed of partnership between the tenant and the alleged sub-tenant would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession or interest in tenancy premises by the tenant in favour of a third person. The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction………”

     

  6. In yet another decision, a three-Judge Bench of this Court in Mahendra Saree Emporium (II) vs. G. V. Srinivasa Murthy, (2005) 1 SCC 481 considered earlier decisions, few of which have been referred above, while dealing with a matter relating to sub-letting of the premises within the meaning of Section 21(1)(f) of Karnataka Rent Control Act, 1961 and observed as follows :

    “The term “sub-let” is not defined in the Act – new or old. However, the definition of “lease” can be adopted mutatis mutandis for defining “sub-lease”. What is “lease” between the owner of the property and his tenant becomes a sub-lease when entered into between the tenant and tenant of the tenant, the latter being sub-tenant qua the owner-landlord. A lease of immovable property as defined in Section 105 of the Transfer of Property Act, 1882 is a transfer of a right to enjoy such property made for a certain time for consideration of a price paid or promised. A transfer of a right to enjoy such property to the exclusion of all others during the term of the lease is sine qua non of a lease. A sub-lease would imply parting with by the tenant of the right to enjoy such property in favour of his subtenant. Different types of phraseology are employed by different State Legislatures making provision for eviction on the ground of sub-letting. Under Section 21(1)(f) of the old Act, the phraseology employed is quite wide. It embraces within its scope sub-letting of the whole or part of the premises as also assignment or transfer in any other manner of the lessee’s interest in the tenancy premises. The exact nature of transaction entered into or arrangement or understanding arrived at between the tenant and alleged sub-tenant may not be in the knowledge of the landlord and such a transaction being unlawful would obviously be entered into in secrecy depriving the owner-landlord of the means of ascertaining the facts about the same. However still, the rent control legislation being protective for the tenant and eviction being not permissible except on the availability of ground therefor having been made out to the satisfaction of the Court or the Controller, the burden of proving the availability of the ground is cast on the landlord i.e. the one who seeks eviction. In Krishnawati vs. Hans Raj ((1974) 1 SCC 289) reiterating the view taken in Associated Hotels of India Ltd. vs. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548) this Court so noted the settled law (SCC p. 293, para 6) :

    “(The onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence.”

    Thus, in the case of sub-letting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged sub-tenant was in exclusive possession of the premises or, to borrow the language of Section 105 of the Transfer of Property Act, was holding right to enjoy such property. A presumption of sub-letting may then be raised and would amount to proof unless rebutted. In the context of the premises having been sub-let or possession parted with by the tenant by adopting the device of entering into partnership, it would suffice for us to notice three decisions of this Court. Murlidhar vs. Chuni Lal (1970 Ren CJ 922) is a case where a shop was let out to a firm of the name of Chuni Lal Gherulal. The firm consisted of three partners, namely, Chuni Lal, Gherulal and Meghraj. This partnership closed and a new firm by the name of Meghraj Bansidhar commenced its business with partners Meghraj and Bansidhar. The tenant-firm was sought to be evicted on the ground that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm amounted to sub-letting. This Court discarded the contention as “entirely without substance” and held that a partnership firm is not a legal entity; the firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. The two firms, old and new, had a common partner, namely, Meghraj, who continued to be in possession and it was fallacious to contend that earlier he was in possession in the capacity of partner of the old firm and later as a partner of the new firm. The landlord, in order to succeed, has to prove it as a fact that there was a sub-letting by his tenant to another firm. As the premises continued to be in possession of one of the original tenants, Meghraj, then by a mere change in the constitution of the firm of which Meghraj continued to be a partner, an inference as to sub-letting could not be drawn in the absence of further evidence having been adduced to establish sub-letting. In Helper Girdharbhai vs. Saiyed Mohd. Mirasaheb Kadri ((1987) 3 SCC 538) the tenant had entered into a partnership and the firm was carrying on business in the tenancy premises. This Court held that if there was a partnership firm of which the appellant was a partner as a tenant, the same would not amount to sub-letting leading to forfeiture of the tenancy; for, there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that another person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere facturn of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam ((2004) 4 SCC 794) (Para 8) a three-Judge Bench of this Court devised the test in these terms (SCC p. 799, para 8) :

    “If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of subtenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant”.”

     

  7. In Nirmal Kanta (Dead) Through L.Rs. vs. Ashok Kumar and another, (2008) 7 SCC 722, this Court held thus :

    “What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/ or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of sub-letting stands established.”

    28. The legal position that emerges from the aforesaid decisions can be summarised thus :

    (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

    (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the Court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

    (iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

    (iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

    (v) Initial burden of proving sub-letting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

    (vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

     

  8. In State through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641 this Court explained the power of the High Court under Article 227 thus :

    “Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.”

    The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447; State of Maharashtra vs. Milind and others (2001) 1 SCC 4, Ranjeet Singh vs. Ravi Prakash, (2004) 3 SCC 682, came to be considered by this Court in the case of Shamshad Ahmad and others vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others, (2008) 9 SCC 1 and this Court held :

    “Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re-appreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.”

 

Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession.

These questions are manifestations of the concepts of property know as “joint tenancy” and “tenancy-in-common”. They are marked by distinct features. Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession. Even among Hindus a joint gift or bequest creates tenancy-in-common. (Principles of Hindu Law Sir D.F Mulla, Fourteenth Edition, Pge 471).

Joint tenancy can be created by the joint tenants at the same time, usually through a deed. For example, an unmarried couple purchases a house. At the time of purchase, the real estate agent asks the couple how they want to own the home. If they opt for joint tenancy, the deed to the property will then name the two owners as joint tenants. Then if one person dies, the other person will automatically become the full owner of the property.When a property is owned by joint tenants, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. A joint tenancy can be broken if one of the tenants transfers or sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties

It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased-tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased-tenant. In other words, the heirs succeed to the tenancy as joint tenants.

In the case of coparceners of a Joint Hindu Family governed by the Mitakshara School of Hindu Law, persons inheriting a property, take the same as tenants-in-common and not as joint tenants. There is also no doubt that the estate of a lessee or a monthly tenancy is property within the meaning of Section 19 of the Hindu Succession Act. The defendants, therefore, inherited the property, namely, the monthly tenancy of their predecessor-in-interest as tenants-in-common and not as joint tenants. Section 19 of the Hindu Succession Act, 1956 states inter alia, that if two or more heirs succeed together with a property of an intestate, they should take the property save as otherwise expressly provided in the Act, per capita and not per stirpes and as tenant-in-common and not as joint tenants.

In this context, the general provisions relating to Hindu succession envisaged in the Hindu Succession Act, 1956 has significance. Section 19(b) of the said Act provides as under:

“if two or more heirs succeed together to the property of an intestate, they shall take the property , as tenants in common and not as joint-tenants”.

 joint tenancy is, that it connotes unity to title, possession, interest and commencement of title but in a case of tenancy-in-common or co-tenancy, there may be unity of possession and commencement of title, but the other two features would be absent. The Allahabad High Court in its Full Bench decision in the case of Ram Awalamb v. Jata Sankar, (FB) has explained such differences between joint tenancy and tenancy-in-common or co-tenancy in a very lucid way in paragraph 41 at pages 534-535 of the said decision in the following manner:

“41. ……. …….. …….. ……..

According to Halsbury’s Laws of England (Vol. 32, page 332) joint tenants are those who form one body of ownership. Each tenant has an identical interest in the whole land and every part of it. The title of each arises by the same act. The interest of each is the same in extent, nature and duration. Thus joint tenancy connotes four ideas — unity of title, unity of possession, unity of interest and unity of commencement of title. In a tenancy-in-common also there may be unity of possession and where title is derived from a common sale deed or by inheritance from one person it might very well commence at one and the same time. However, other ingredients which would be the main ingredients of the joint tenancy would be missing.”

Supreme Court itself in the case of Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri, . In paragraph 12 at page 2188 of its said decision, the Supreme Court observed inter alia, as follows :–

“…….. The estate of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants-in-common in specific shares. Where the heirs continue to hold the estate as tenants-in-common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule-I to the Limitation Act, 1908 would be the relevant Article.”

Tenancy rights are property rights, therefore, the same has been the subject of inheritance and rent control laws. Fundamentally, the legal relationship of the landlord and tenant are regulated and controlled by the specific statue such as the Rent Control Act. If the tenant or landlord dies intestate, the rights and obligations of the landlord and tenant, respectively, shall be governed by the provisions of Rent Control Act being a special statute. Moreover, if the special statute does not provide the method and manner in which the right of survivorship or devolution with respect to the legal heirs of landlord or tenant, as the case may be; naturally, then the provisions of Succession Act would be applicable, depending on the religion of the landlord or tenant.

 H.C. Pandey v. G.C. Paul, 1989 SC 1470. Therefore, the observations and reports in H.C. Pandey (Supra) are important which reads as under:

“It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidences of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.

Eviction of a tenant can be maintained by one of the co-owners

 Supreme Court  in the case of Om Prakash & Anr. v. Mishri Lal (Dead)
Represented by his Lr. Savitri Devi [Civil Appeal No.4309 of 2017], it was held that
“a suit for eviction of a tenant can be maintained by one of the co-owners and it
would be no defence to the tenant to question the maintainability of the suit on the
ground that the other co-owners were not joined as parties to the suit. The judicially
propounded proposition is that when the property forming the subject matter of
eviction proceedings is owned by several co-owners, every co-owner owns every
part and every bit of the joint property along with others and thus it cannot be said
that he is only a part owner or a fractional owner of the property and that he can
alone maintain a suit for eviction of the tenant without joining the other co-owners if
such other co-owners do not object.” [On 21st March, 2017]

The West Bengal Premises Tenancy Rules, 1999

LAW LIBRARY

WB LEGISLATIVE ASSEMBLY

1. Short title. – These rules may be called the West Bengal Premises Tenancy Rules, 1999.

2. Definitions. – In these rules, unless the context otherwise requires, –

(a) the expression “the Act” means the West Bengal Premises Tenancy Act, 1997 (West Bengal Act XXXVII of 1997);

(b) “Form” means a Form appended to these rules;

(c) “section” means a section of the Act;

(d) words and expressions used in these rules and not defined shall have the meanings respectively assigned to them in the Act.

3. Form of receipt for rent and charges relating to maintenance of premises. – The receipt referred to in sub-section (1) of section 4 shall be in Form 1.

4. Period within which rent is payable. – Rent shall be paid within the time fixed by contract or, in the absence of such contract, by the fifteenth day of the month following the month for which it is payable:Provided that a tenant may pay the rent payable for any month at any time during such month before it falls due.

5. Manner of making application for eviction of tenant. – An application under sub-section (1) of section 6 for the recovery of possession of any premises shall be made in writing to the Controller by the landlord stating fully the grounds on which the recovery of possession of the premises is sought. Every such application shall contain the following particulars :-

(i) particulars of the premises with description thereof sufficient for identifying the premises (for example, number of the premises and description thereof, if there is any, name of street, postal zone, and name of police station);

(ii) name of the tenant;

(iii) rent payable by the tenant;

(iv) date of creation of the tenancy; and

(v) any other relevant information.

6. Execution of order passed by the Controller as referred to in section 9. – An order passed by the Controller shall be executable by the Controller as a decree of a Civil Court and, for this purpose, the Controller shall have all the powers of a Civil Court.

7. Manner of obtaining permission of the Controller for re-letting premises under section 10. – (1) A landlord who desires to obtain the permission of the Controller under section 10 for re-letting any premises within six months of the date of his occupation of the premises to any person other than the previous tenant, shall make an application in writing to the Controller stating fully the reasons for re-letting the premises and also furnish such other evidence in support of his prayer as the Controller may require.(2) On receipt of the application under sub-rule (1), the Controller shall cause a notice together with a copy of the application to be served on the previous tenant by registered post with acknowledgment due, requiring such tenant to appear before him and to file objections, if any, on such date and at such time as may be specified in the notice, or, if the address of the previous tenant be not known, the Controller shall publish the notice in any local newspaper and affix a copy of the notice in the premises in question and another copy in a conspicuous place in the office of the Controller. The cost of transmission by post and the cost of publication of such notice shall be borne by the applicant landlord.

8. Manner of making applications under section 17 for fixation of fair rent. – An application under section 17 for fixation of fair rent shall be made in writing to the Controller stating fully the facts of the case and the provisions under which fixation of fair rent is claimed. Every such application shall be accompanied by as many true copies thereof as there are parties on whom notices are to be served along with the process-fees as provided in these rules for service of such notices. The applications shall be signed and verified in the manner provided In sub-rules (2) and (3) of rule 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

9. Deposit of rent. – (1) Where the landlord does not accept any rent tendered by the tenant within the period specified in rule 4, the tenant shall remit the rent to the landlord by postal money order within fifteen days of such refusal. If the postal money order is returned to the tenant by the postal authority as undelivered, either on account of the landlord having refused to accept the payment thereof or for any other reasons, the tenant himself or by any person on his behalf may deposit such rent in the office of the Controller within fifteen days from the date on which it is so returned to the tenant.(2) Where there is a bona fide doubt as to the person or persons to whom rent is payable, the tenant himself or any person on his behalf may deposit such rent in the office of the Controller.(3) In Kolkata, the deposit of rent may also be made, if the amount does not exceed rupees 100, in the KolKata Collectorate, and, in other cases, in the Reserve Bank of India, Kolkata. In the case where the amount is deposited in a Treasury linked agency bank or in the Treasury of the Kolkata Collectorate or in the Reserve Bank of India, the Officer-in-charge of the Treasury of the Kolkata Collectorate or the Reserve Bank of India, Kolkata, or the Treasury linked agency bank, as the case may be. shall forward forthwith one copy of the challan to the Controller and retain one copy for its record. The third copy of the challan shall be made over to the party depositing the amount.(4) The application referred to in sub-section (4) of section 21 shall be filed in Form 2 and shall be signed and verified in the manner provided in sub-rules (2) and (3) of rule 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), by the tenant or the person, as aforesaid, and shall be accompanied by challans prepared in triplicate in Form 3. Every such application shall be accompanied by as many true copies thereof as there are landlords or persons claiming the rent along with the process fees as provided in these rules for sending such copy or copies to the landlords or such persons by registered post with acknowledgement due.(5) Landlordwise/tenant-wise register shall be maintained in the office of the Controller in respect of deposit of rent by each tenant.

10. Copy of application for deposit to be sent to the person to whom rent was last paid and to certain other persons. – On receipt of deposit, the Controller shall cause a copy or copies of the application for deposit to be sent by registered post with acknowledgement due to the person to whom the rent was last paid as also to the person or persons mentioned in the application.

11. Manner of withdrawal of deposit of rent. – (1) The application for withdrawal of rent deposited under section 21 shall be filed in Form 4 by the landlord or by the person claiming to be entitled to the rent, either personally or through an agent duly authorised by a power of attorney registered under the provisions of the Registration Act, 1908 (16 of 1908), or through a legal practitioner. Where the application for withdrawal of rent is filed personally by the landlord or by the person claiming to be entitled to the rent or by a duly authorised agent as aforesaid, such landlord or person claiming to be entitled to the rent or duly authorised agent, as the case may be, shall get himself identified before the Controller by a legal practitioner.(2) The name and address of the legal practitioner through whom an application for withdrawal of rent is filed or who identifies the landlord, the person claiming to be entitled to rent, or the duly authorised agent as aforesaid, as the case may be, shall be entered in the registers maintained in the office of the Controller. Such legal practitioner shall, if required by the Controller, produce his licence along with his specimen signature attested by the Secretary or the President of the Bar Association of which he is a member under the office seal, before him and, in such cases, the particulars of the licence and the name of the authority granting the same shall also be entered in the said registers.(3) Payment of rent made to the applicant under the order of the Controller shall be made in the manner provided in Form 4.(4) Before passing an order for payment of deposited rent to the applicant, the original entry in the cash book and in the register of challans for deposits shall be traced and necessary entry with reference to the payment voucher shall be made against the original entry in both the cash book and the register for challans so as to avoid entertainment of double or erroneous payment.

12. Manner of giving notices relating to sub-tenancies under section 26. – Notices of creation and termination of sub-tenancies under sub-section (1) of section 26, and where, before the commencement of the Act, a tenant has sub-let any premises, notices of such sub-letting and the termination of such sub-tenancies under sub-section (2) of that section shall be given by the tenant and the sub-tenant to the landlord by registered post with acknowledgement due and shall contain the following particulars :-

(a) location of the premises let to the tenant with description thereof sufficient for identifying the same (for example, number of the premises and description thereof if there is any, name of the street, postal zone, and police station);

(b) name of the tenant;

(c) name of the sub-tenant;

(d) details of the portion sub-let;

(e) rent payable by the sub-tenant;

(f) date of creation/termination of the sub-tenancy; and

(g) any other relevant information.

13. Manner of payment of fine or sum ordered to be paid under the Act, referred to in Chapter VIII of the Act. – (1) The Controller shall issue a notice of demand to the person on whom a fine is imposed or who has been ordered to pay any sum under the Act. The amount shall be paid by the person fined or ordered to pay the same within such time as may be allowed by the Controller and the Controller may, for good and sufficient reason, extend the time allowed by him. In default of making such payment, the amount shall be recoverable as a fine under the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), and the Controller shall be deemed to be a Judicial Magistrate under the said Code for the purpose of such recovery.(2) The fine or the sum, as the case may be, ordered to be paid under the Act, shall be paid by such person in cash in the office of the Controller and the same shall be deposited with the Controller as civil deposit.

14. Manner of service of notices by the Controller. – All notices to be served under the Act by the Controller shall be served by registered post with acknowledgement due or, where this cannot be effected or is not feasible, in such manner as the Controller may deem fit in the circumstances of the case.

15. Manner of service of notice by the tenant under section 36. – Any notice to be served under sub-section (1) of section 36 by the tenant shall be served by registered post with acknowledgement due or, where this cannot be effected or is not feasible, in such manner as the tenant may deem fit in the circumstances of the case.

16. Grant of temporary injunction as referred to in sub-section (6) of section 39. – The Controller may grant temporary injunction in cases which come within the purview of rule 1 and rule 2 of Order XXXIX of the Code of Civil Procedure, 1908 (5 of 1908), and, in such cases, the principles laid down in subsequent rules of Order XXXIX of the said Code shall apply mutatis mutandis.17. Procedure for enquiries. – In making enquiries under the Act, the Controller or the Tribunal shall follow, as nearly as may be, the procedure laid down:

(a) in the case of enquiries relating to offences, in the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of cases, and

(b) in the case of all other enquiries, in the Code of Civil Procedure, 1908 (5 of 1908), for the trial of suits, recording a memorandum of the substances only of the evidence and the reasons for his findings:’ as in the cases in which no appeal lies.

18. Fees. – (1) A fee of seventy-five paise shall be payable on every application made before the Controller under the Act, not being an application mentioned in sub-section (6) of section 21 or section 23.(2) A fee of rupees two shall be payable on every application for withdrawal of any deposit of rent under section 23.(3) The fee chargeable in respect of a certified copy of any application, written statement or document shall be rupees five :Provided that when an application is made at the same time for certified copies of the application, written statement and order in the same case, there shall be charged a consolidated fee of rupees ten for all of them.(4) The fee chargeable for certified copy of notes of evidence and of judgment shall be rupees five (each) per page inclusive of both sides plus forty paise for a folio of 90 words :Provided that when an application is made at the same time for certified copies of notes of evidence, judgment and proceedings of the same case there shall be charged a consolidated fee of rupees ten together with the charge of forty paise each for a folio of 90 words.(5) In the case of an urgent application for copies, an expedition fee of rupees two shall be payable in addition to the fees specified above:Provided that if the copy exceeds four folios, extra charge of forty paise for each extra folio shall be payable.(6) If the Head of any Department or Directorate of the Government applies to the Controller for a certified copy of any final order of the Controller for any public purpose, a certified copy of such order shall be granted to such applicant on plain paper only.(7) In the matter of granting copies of records written in languages other than English and Bengali, the procedure laid down in the Civil Rules and Orders for the guidance of Civil Courts and Officers subordinate to the High Court of Calcutta shall be followed with such modifications as may be necessary.(8) In granting copies of maps of plans, the applicant shall file with the application for copies necessary tracing papers. The cost of copies of such maps or plans shall be assessed by the Controller in such manner as he thinks fit.

19. Searching fee. – In respect of each application for information regarding deposit of rent or for duplicate copies of application for deposit of rent not received by landlords, searching fees shall be levied according to the following scales :-

(i) for deposit made during one month or part – rupees two,

(ii) for deposit made during more than one month –

(a) for the first month – rupees two, and

(b) for each subsequent month or part – rupees one.

20. Fee for correction of challan. – A fee of rupee one shall be payable on every application for correction of a challan depositing rent.21. Process fee. – A process fee at the rate of [rupees thirty-four] for every party on whom a notice is to be served shall be paid in cash with an application referred to in section 10, section 11, section 17, section 26, section 35, section 36 or section 37, or a petition of complaint under section 27, section 28, section 29, section 30, section 31, section 32, section 33 or section 34.22. Process fee for service of notice in the case of deposit of rent by tenant. – A process fee at the rate of[rupees thirty-four] for every party on whom a notice is to be served shall be paid in cash in respect of each deposit of rent under section 21 along with such deposit.23. Process fee for service of notice for the purposes of section 39(3)(a). – A process fee at the rate of [rupees thirty-four] for every party on whom a notice is to be served under clause (a) of sub-section (3) of section 39 shall be paid in cash by the applicant seeking relief under the Act.24. Fee for affidavit. – An affidavit sworn before the Controller shall be charged with a fee of rupees ten payable in non-judicial stamps.25. Fees to be paid in Court-fee stamps. – The fees referred to in these rules shall, unless otherwise expressly provided, be paid in Court-fee stamps.

Form 1

[See rule 3]

Receipt for the payment of rent and other charges

Received this day the amount of (a) Rs…………… (Rupees…..) and (b) Rs……. (Rupees..;……) as for the rent and maintenance charges respectively from Shri/Shrimati……………in respect of the premises detailed below for the month of………..year………Details of the premises let out :

STAMP

Date

Signature of the Landlord or his authorised agent

Form 2

[See rule 9(4)]

Application for deposit of rent under section 21 of the West Bengal Premises Tenancy Act, 1997

(West Bengal Act XXXVII of 1997)

Before the Controller…………………………….

Name…………………………………………….Tenant/Applicant

Versus

Name…………………………………………………Landlord/

Person or Persons claiming to be entitled to rent.The applicant prays for permission to deposit the rent of the premises as per particulars furnished below :-

(a) Particulars of the premises with description thereof sufficient for identifying the same (for example, No. of premises, name of street, police station)

(b) Period for which the rent is to be deposited

(c) Amount of rent to be deposited

(d) Date of receipt of the last rent paid (duly attested photocopy of the receipt to be enclosed)

(e) Date of return of money order form by the postal authority (duly attested photocopy of the form to be enclosed)

(f) Name and address of the landlord or the person or persons claiming to be entitled to such rent

(g) Reasons for, and circumstances of, application for deposit of the rent (to be filled in for subsequent deposits only)

(h) Period for which the rent was last deposited

(i) No. of challan with date under which the above deposit was made

(j) Reasons for, and circumstances of the deposit of rent last made.

Verification

The statements made above are true to the best of my knowledge and belief and I the applicant/the agent sign this application on the…………. day of……….. 20…….or…………. B.S.

Signature of the Applicant/Agent

Form 3

[See rule 9(4)]

Challan

Part I

To be filled in by the payer

Particulars of the premises

Name and address of the person or persons on whose behalf the money is tendered

Name and address of the landlord or person or persons to whose credit the amount is to be placed in deposit

In the case of bona fide doubt as to the person or persons to whom rent is payable, the name of the person to whom the rent was last paid and the name and address of the person/ persons who, to the tenant’s best information and belief, is/ are the landlord entitled to receive it.

Particulars of receipt

Amount deposited

Remarks if any

The specification of the premises in respect of which the deposit is made

The period for which the rent is deposited

As rent

As maintenance charge

As process fee or other charges

(1)

(2)

(3)

(4)

(5a)

(5b)

(6a)

(6b)

(6c)

(7)

………………………..
Signature of the Clerk-in-charge
of the office of the Controller

……………………………………….
Signature of the person
tendering the money

Dated………..

Part II

To be filled in by the Clerk-in-charge of the office of the Controller

Number and date in Register of Challans

Account to be credited whether civil deposits, fines and forfeitures, stamp-duty and penalties, or miscellaneous of other receipts

Remarks

(1)

(2)

(3)

……………………………….Signature of Controller’sAccountant/Clerk-in-chargeToThe Cashier, the Controller’s Office/Officer-in-charge of the Treasury at……. /Reserve Bank of India/State Bank of India/Central Bank of India or United Bank of India.Receive and credit the above sum if tendered to you today/next working day before 2 p.m. on weekdays and before 12 noon on Saturdays.Dated :…………

…………………………………..

Signature of the Controller

Part III

To be used by the Cashier of the Controller’s office/Treasury/Reserve Bank of India/State Bank of India/Central Bank of India/United Bank of India

Received payment of Rs……….. (in figures) [Rupees……………….in words)]Dated

……………………………

Cashier of the Controller’s office/
Treasury/Reserve Bank of India/
State Bank of India/Central Bank of
India/United Bank of India

Part IV

To be used by the Controller’s office (in the case of deposits made in the Controller’s office)

Certificate

Examined and entered in the books of the Controller’s office.Clerk-in-charge/ Accountant
of the office of the Controller
Dated :……………………………………………

Signature of the Controller

Form 4

[See rule 11(1)]

Application for withdrawal of rent deposited under section 21 of the West Bengal Premises Tenancy Act, 1997

(West Bengal Act XXXVII of 1997)

Before the Controller………………………………….Name……………………….Petitioner

Versus

Name:…………………………………….Depositor

Praying that the above-named landlord/landlords/ person claiming to be entitled to the rent be paid the amount of rent as per following deposit, the other particulars of which are given in the Annexure :Re : Rent for the month of………………….Challan No………………….Deposit Receipt No….;……………………….Rs…… (Rupees………………………..)Applicant-Landlord/Applicant-Landlordsor Duly Authorised Agent/Legal Practitionerfor Applicant-Landlord/Applicant-Landlords

Identified by
………………….
………………….
Signature

Dated

Annexure

Order for withdrawal of rent deposited under section 21 of the West Bengal Premises Tenancy Act, 1997

(West Bengal Act XXXVII of 1997)

Part – To be filled in by the petitioner

Name/ Names and address/ addresses of applicant or applicants

Name/ Names and address/ addresses of the landlord or person or persons to whose credit the rent was deposited

Name and address of the tenant on whose behalf the rent was deposited.

Specification of the premises and the period to which the rent relates

Amount of rent deposited with Controller. Number and date of the original deposit

Remarks

(1)

(2)

(3)

(4)

(5)

(6)

Examined and found correct.

………………………..
Signature of the Clerk-in-charge/
Accountant

………………………..
Signature of Applicant/Applicants/
Duly Authorised Agent/Legal Practitioner
for Appllicant/Applicants

Part II – To be filled in by the Controller’s office

Serial No. and date of payment order

Challan No. and date of the original deposit from which the payment is sought

Amount of deposit

At whose credit deposit made

(1)

(2)

(3)

(4)

VerifiedPlease issue cheque in favour of……………………. for Rupees ……………………..

………………………..
Signature of the Controller’s
Accountant

……………………………………….
Signature of the Controller/Officer
authorised by him

Part III – To be filled in by the payee

Received contents, Rupees ……………….

STAMP

…………………………….
Payee’s signature and date

The West Bengal Government Premises (Tenancy Regulation) Act, 1976

Keywords:- Tenancy- Government premises-

WB LEGISLATIVE ASSEMBLY

West Bengal Act 19 of 1976

[1st April, 1976]

Assent of President of India was published in the Calcutta Gazette, Extraordinary, dated the 1st April, 1976.

An Act to provide for the regulation of certain incidents of tenancy in relation to Government premises in West Bengal.

Whereas it is expedient to provide for the regulation of certain incidents of tenancy in relation to Government premises in West Bengal and for matters connected therewith or incidental thereto;

It is hereby enacted as follows:-

1. Short title and extent. – (1) This Act may be called the West Bengal Government Premises (Tenancy Regulation) Act, 1976.

(2) It extends to the whole of West Bengal.

2. Definitions. – In this Act, unless the context otherwise requires, –

[(1a) “Appellate Authority” means any authority, superior in rank to the prescribed authority, appointed by the State Government in respect of a local area for the purpose of [the third proviso to clause (a) of sub-section (3) of section 3 and] sub-section (2) of section 6C, and includes different such authorities for different local areas;]

(a) “Government premises” means any premises which is owned by the State Government or by a Government undertaking but does not include the official residence of any person authorised to occupy and premises in consideration of the office which he holds under the State Government or a Government undertaking for the time being;

(b) “Government undertaking” means a body corporate constituted by or under a Central or State Act which is under the administrative control of the State Government or in which the State Government has exclusive proprietary interest;

(c) “premises” means any building or hut and includes part of a building or hut and a seat in a room, let separately, and also includes, –

(i) the gardens, grounds and out-houses, if any, appurtenant thereto,
(ii) any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building, hut or seat in a room, as the case may be;

(d) “prescribed” means prescribed by rules made under this Act;

(e) “prescribed authority” means an authority appointed by the State Government in respect of a local area, by notification in the Official Gazette, for carrying out the purposes of this Act and includes different such authorities for different local areas;

(f) “tenant” means any person by whom the rent of any premises is, or but for a special contract would be, payable and includes in the event of such person’s death, such of his heirs as were ordinarily residing with him at the time of his death.

3. Termination of tenancy. – (1) Every tenancy held by a tenant in respect of a Government premises shall stand terminated upon the expiry of the period referred to in a notice to quit served upon such tenant in the prescribed manner.

(2) A tenancy in respect of a Government premises shall stand automatically terminated without any notice to quit where the tenant has, –

(i) violated the terms of the lease, or
[(ia) subsequently built a house or acquired (by purchase, gift, inheritance, lease, exchange or otherwise) a house or an apartment, either in his own name or in the name of any member of his family, within a reasonable distance from such Government premises.]

Explanation. – For the purposes of this section and section 3A, –

(a) “apartment” shall have the same meaning as in the West Bengal Apartment Ownership Act, 1972;
(b) “family” shall include parents and other relations of the tenant who ordinarily reside with him and are dependant on him;
(c) “reasonable distance” shall mean any distance not exceeding twenty-five kilometres, or
(ii) made default in payment of rent for three consecutive months :

Provided that where the tenancy has terminated on account of default in payment of rent for three consecutive months the prescribed authority may, upon application made by the tenant within such time as may be prescribed and upon deposit of all the arrears of rent together with interest at the prescribed rate, grant renewal of the tenancy in favour of the tenant :

Provided further that the prescribed authority may, on sufficient cause being shown, grant renewal of the tenancy in favour of the tenant on deposit of fifty per cent, of the arrears of rent along with the application for renewal of tenancy and direct the tenant to deposit the balance of the arrears of rent with interest on the entire amount at the prescribed rate in twelve monthly instalments commencing from the month following the month of such renewal of tenancy, and if the tenant fails to deposit any such instalment the tenancy so renewed shall stand automatically terminated:

Provided further that the prescribed authority may, if it is satisfied that the tenant has failed to pay rent due to circumstances beyond his control and is not in a position to deposit fifty per cent, of the arrears of rent along with the application for renewal of tenancy grant renewal of the tenancy in favour of the tenant on deposit of twenty-five per cent, of the arrears of rent along with the application for renewal of tenancy and direct the tenant to deposit the balance of the arrears of rent with interest on the entire amount at the prescribed rate in such number of monthly instalments, not less than twelve and not more than thirty-six, as the prescribed authority may consider reasonable, commencing from the month following the month of such renewal of tenancy, and if the tenant fails to deposit any such instalment, the tenancy so renewed shall stand automatically terminated:

Provided also that notwithstanding the termination of the tenancy the State Government or the Government undertaking, as the case may be, shall be entitled to recover an arrears of rent for the period for which the tenancy subsisted and mesne profits thereafter for so long as the tenant remained in occupation of the premises.

(3)(a) Where any Government premises allotted to a tenant remains under lock and key for a period of more than three consecutive months or where the tenant or any member of his family is not ordinarily resident of such Government premises, the tenancy in respect of such Government premises shall stand automatically terminated:

Provided that if the prescribed authority is satisfied that the circumstances, under which such Government premises remains under lock and key for more than three consecutive months or the tenant or any member by his family is not ordinarily a resident of such Government premises, are beyond the control of the tenant, it may allow the tenancy to subsist:

Provided further that the prescribed authority shall give the tenant a notice and an opportunity of being heard before such termination:

Provided also that an appeal shall lie to the Appellate Authority against an order determining non-occupation for a period of three consecutive months or non-residence by the tenant or any member of his family under the above provisos within fifteen days from the date of the order passed by the prescribed authority and, in such case, the decision of the Appellate Authority shall be final.

(b) A tenant shall be deemed to be ordinarily resident of a Government premises if he or any member of his family generally resides in such Government premises for not less than ninety days in a period of four consecutive months.

(c) The provisions of this sub-section shall have effect notwithstanding anything contained in this Act or in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act, or in any decree or order of any court, tribunal or other authority, and nothing contained in the Transfer of Property Act, 1882, or the Indian Contract Act, 1872, or the West Bengal Premises Tenancy Act, 1956, shall apply, or shall be deemed ever to have applied, to the tenancy as aforesaid and such tenancy shall take effect, and shall be deemed always to have taken effect, as if the Transfer of Property Act, 1882, or the Indian Contract Act, 1872, or the West Bengal Premises Tenancy Act, 1956, had not been passed.

3A. Tenancy to be void if held by a tenant owning a house or apartment on the date of allotment of a Government premises. – A tenancy in respect of a Government premises shall be deemed to be void where on the date of allotment of such Government premises the tenant is, or had been, the owner of a house or an apartment, either in his own name or in the name of any member of his family, within a reasonable distance from such Government premises.

4. Restoration of possession. – (1) Upon termination of a tenancy under any of the provisions of section 3 [or upon a tenancy being void under section 3A], the tenant shall forthwith restore vacant possession of the premises occupied by him in favour of the prescribed authority.

(2) If the tenant fails to restore possession of the premises under sub-section (1), the prescribed authority or any officer authorised by him in this behalf may take such steps or use force as may be necessary to take possession of the premises and may also enter into such premises for the aforesaid purpose.

5. Penalty for unauthorised subletting. – If any tenant sublets or inducts any person in the premises occupied by him or in any part of it, in violation of the terms of lease governing his tenancy the tenant as well as the person in unauthorised occupation of the premises shall be liable on conviction to imprisonment for a term which may extend to six months or to fine which may extend to one thousand rupees or to both.

6. Penalty for failure to deposit rent in time. – If by virtue of a tripartite agreement an employer is authorised to collect the rent payable by the tenant who is the employee of such employer and deposit the same in favour of the State Government or the Government undertaking, as the case may be, then for failure on the part of the employer to make such deposit within the time agreed upon, the employer or in case the employer is a company or other body corporate or an association of persons (whether incorporated or not), every director, manager, secretary, agent or other officer or persons concerned with the management thereof shall, unless he proves that the offence was committed without his knowledge or consent, be liable on conviction to a fine which may extend to five thousand rupees and in case of a continuing offence, to a further fine which may extend to one hundred rupees for each day during which the offence continues.

6A. Eviction of unauthorised occupants and penalty for such occupation. – Where any person, not being a tenant, occupies, or remains in occupation of, any Government premises without the written order of the prescribed authority,-

(a) the prescribed authority, or any officer authorised by it is this behalf, may take such steps and use such force as may be necessary to take possession of the premises and may also enter into the premises for the said purpose; and
(b) such person shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

6B. Offence under the Act to be cognizable. – An offence punishable under section 5 or clause (b) of section 6A shall be cognizable.

6C. Payment of compensation. – (1) Where any damage beyond normal wear and tear has been caused to any Government premises the possession of which has been taken from a tenant under the provisions of section 4, or where any damage has been caused to any Government premises the possession of which has been taken under the provisions of section 6A, such tenant or such person, as the case may be, shall be liable to pay for the repair of such damage such compensation, not exceeding the cost of repair, as may be determined, by order, by the prescribed authority, after giving the tenant or the person, as the case may be, an opportunity of being heard.

(2) An appeal shall lie to the Appellate Authority against an order determining compensation under sub-section (1) within fifteen days from the date of the order.

(3) The decision of the Appellate Authority shall be final.

6D. Period for payment of compensation. – The amount of compensation determined under section 6C by the prescribed authority or the Appellate Authority, as the case may be, shall be payable by the tenant or the person, as the case may be, liable to pay such compensation, within thirty days from the date of the order.]

7. Recovery of certain claims as public demand. – Any claim for arrears of rent or for mesne profits [or for compensation] under this Act shall, if not duly paid, be recoverable as a public demand under the Bengal Public Demands Recovery Act, 1913.

8. Appointment of officers, etc. and delegation of power. – (1) The State Government or the Government undertaking may appoint such officers and employees for carrying out the purposes of this Act as the State Government or the Government undertaking may deem fit.

(2) The prescribed authority may delegate, subject to such conditions as the State Government may think fit to impose, to any officer appointed under sub-section (1) any of its powers under this Act.

9. Certain persons to be deemed to be public servants. – The prescribed authority [the Appellate Authority] and the officers and other employees authorised to carry out any of the purposes of this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

10. Indemnity. – No suit, prosecution or other legal proceeding whatsoever shall lie against any person for anything in good faith done or intended to be done under this Act.

11. Power to remove difficulties. – If any difficulty arises in giving effect to the provisions of this Act, the State Government may make such order or do such thing, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for removing the difficulty.

12. Act to override other laws. -(1) The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force, or in any contract, express or implied, or in any custom or usage to the contrary.

(2) In particular and without prejudice to the generality of the foregoing provisions, the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962 shall not be applicable to any premises to which this Act applies.

13. Bar to jurisdiction of civil courts. – No civil court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with under the provisions of this Act.

14. Prosecution subject to sanction of the prescribed authority. – No Court shall take cognizance of any offence under this Act except with the previous sanction of the prescribed authority, and no Court inferior to that of a Magistrate of the First Class shall try such offence.

15. Power to make rules. – (1) The State Government may make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters which may be or are required to be prescribed.

16. Repeal and savings. – (1) The West Bengal Government Premises (Tenancy Regulation) Ordinance, 1976, is hereby repealed.

(2) Anything done or any action taken under the West Bengal Government Premises (Tenancy Regulation) Ordinance, 1976, shall be deemed to have been validly done or taken under this Act as if this Act had commenced on the 7th day of January, 1976

West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001- Position of Bharatiya

JURISDICTION Of CIVIL COURT : “If the Court moves without jurisdiction to adjudicate the dispute,  in view of admitted nature of Thika tenant status of the opposite party with regard to the premises in question, the civil court having no jurisdiction for adjudication of the dispute in view of Section 21 of the West Bengal Thika Tenancy Act, question of pronouncing judgement on all issues does not arise at all. Even though, by some otherwise reasons, the civil court adjudicates the issues and pronounces judgement ignoring Section 21 of the Act, such judgement ought to be captioned as nullity. Therefore, when the question of jurisdiction of the learned trial Court was raised in view of provision of Section 21 read with Section 8(3) of the Act, the same is purely a question of law, specially because it is the opposite party/plaintiff who in his own assertion in the plaint has disclosed status as Thika tenant. In view of above, the determination of jurisdiction of the learned trial court is no more covered with both fact and law. Rather in view of admitted fact this becomes a question of pure law in view of Section 8 sub-section (3) and Section 21 of the Act which has come into force long long back before institution of the instant suit”.

In  Sankar Burma vs Dipak Sonkar @Khatik & Ors  decided on 15 May, 2017 The Calcutta High Court (Appellete Side) held:-

“I have considered the materials on record particularly, the plaint filed by the opposite parties plaintiffs in the eviction suit. From a reading of the plaint filed in the eviction suit it is clear that the opposite parties are claiming themselves to be the thika tenants in respect of the suit property and they are seeking the eviction of the petitioner and the proforma opposite parties by treating them as bharatias within a meaning of the said Act of 2001. Undisputedly, as per Section 8(1) of the said Act of 2001 the opposite parties filed the eviction suit by invoking the provisions contained in the said Act of 1997 by treating themselves as the landlords and the original defendant as the tenant under the said Act. As per Section 8(3) of the Act of 2001, any case of eviction of a bharatia by the thika tenant shall be disposed of by the Controller as defined in Section 2(2) of the said Act. Further, Section 12 of the Act of 2001 provides that any person aggrieved by any order of the Controller may prefer an appeal before the Land Reforms and Tenancy Tribunal established under the West Bengal Tenancy Tribunal Act, 1997. Therefore, against the decision of the Controller, in a case of eviction filed by the thika tenant against the bharatia, an appeal lies before the Land Reforms and Tenancy Tribunal. It is settled law that when the statute has gives a finality to the orders of a special tribunal or specified authority, the Civil Court’s jurisdiction can be regarded as having been excluded if, there is adequate remedy to do what the Civil Court would normally do in a suit. In this regard, ready reference may be made to the decisions of the Supreme Court in the cases of Dhulabhai vs. State of M.P. reported in AIR 1969 SC 78 and Devinder Singh vs. State of Haryana reported in AIR 2006 SC 2850. Section 8(3) of the Act of 2001 specifically excludes jurisdiction of the Civil Court, so far as the matters relating to eviction of a bharatia by a thika tenant and such case is to be decided or dealt   with by the Controller with finality and any grievance with regard to the validity of the order of the Controller can be questioned before the West Bengal Land Reforms Tenancy Tribunal Act, 1997.
In the light of the above discussions, it is clear that Section 8(3) of the Act of 2001, excludes the jurisdiction of the Civil Court to entertain a proceeding by a thika tenant for eviction of a bharatia. Therefore, in the present case, the objection raised by the petitioner with regard to the jurisdiction of the learned Court below to entertain the eviction suit is a pure question of law and such issue ought to have been answered in the negative. In this regard, I am in rspectful agreement with the unreported decision dated December 21, 2010 of a learned Single Judge of this Court in C.O. 3521 of 2010 (Dilip Kumar Shaw vs. Sukumar Maity & Ors.). I find that the learned Court below went wrong
in law in not deciding the issue with regard to its jurisdiction to entertain the eviction suit filed by the opposite parties as a preliminary issue under Section 14(2)(a) of the Code”.


Chapter III Incidents for tenancies of Bharatias in structures
[SECTION 8 TO 10] 

8. Incidents for tenancies of Bharatias.—The monthly and other periodical tenancies of Bharatias in respect of the structures occupied by them on payment of rents to the thika tenants shall, with effect from the date of coming into force of this Act, be governed by the provisions of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act.

(2) If any question arises as to whether a person is a Bharatia under a particular thika tenant, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question.

(3) Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thikatenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.

(4) A thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller in such manner as may be prescribed.

(5) An order passed by the Controller under the provisions of this Act shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.

(6) Notwithstanding anything contained in this Act or in the West Benga Premises Tenancy Act, 1997, a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency and separate water supply connection from the appropriate agency for his own use.

(7) A Bharatia shall be liable to pay rent to the thika tenant at such rate as may be prescribed.

(8) Where there is no thika tenant or the thika tenant is not traceable for any reason whatsoever, a Bharatia shall be liable to deposit rent with the Controller in respect of the area of the structure as is occupied by him at such rate, and in such manner, as may be prescribed.

(9) Notwithstanding anything contrary contained in the Act, the State Government shall not be deemed to be a landlord as defined in clause (c) of section 2 of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), but be a licenser and the Bharatia shall be a licensee under the State, where there is no thika tenant.

9. Controller.—(1) The State Government may, by notification, appoint one or more officers as Controller or Controllers and Additional Controllers and Deputy Controllers to perform all the functions of a Controller under this Act in respect of any area or areas to be specified in the notification.

(2) A Controller may be an officer belonging to the Indian Administrative Service or the West Bengal Civil Service (Executive).

(3) An Additional Controller and Deputy Controller may be an officer belonging to the West Bengal Civil Service (Executive) or a Special Revenue Officer, Grade-I.

10. 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 any 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 concerned in the prescribed manner.

(3) On an application made by a Bharatia under sub-section (2), the Controller having jurisdiction in the area shall, after giving the thika tenant and the Bharatia an opportunity of being heard, direct the thika tenant by an order in writing to reconstruct an accommodation in such manner as may be prescribed and restore possession to theBharatia within such time as the Controller may specify in the order.

(4) If the thika tenant fails to comply with the order 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.


 

Biswanath Agarwalla Vs Sabitri Bera and Ors Respondent – 04/08/2009

Keywords:- Adverse possession-Statutory tenant-Termination of Tenancy- Eviction Notice

Tenant upon the termination of tenancy does not become a trespasser. He becomes a statutory tenant (loosely called)

SUPREME COURT OF INDIA

(Before : S. B. Sinha And Deepak Verma, JJ.)

Civil Appeal No. 5085 with 5086 of 2009, Decided on : 04-08-2009.

Acts:-Court Fees Act, 1870—Section 7(v)

History : The plaintiffs served a notice on the defendant under Section 106 of the Transfer of Property Act. Such notice evidently was served on the premise that the defendant-appellant was his tenant. He denied and disputed the same. The plaintiff in his plaint disclosed the cause of action for the suit having arisen on and from 1st October, 1990 from which date the monthly tenancy had ceased to exist. The plaintiff prayed for grant of mesne profits at the rate of ` 3/- for each day for wrongful occupation of the premise as after the termination of tenancy the defendant was to be treated as a trespasser.

Judgment

S. B. Sinha, J—Leave granted.

2. Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.

It arises out of a judgment and order dated 17th August, 2006 passed by a learned single Judge of the Calcutta High Court in C.O.A. No. 253 of 2006 in RVW No. 2671 of 1996.

3. The suit premises is a shop situate in a small town commonly known as Raghunathpur in the district of Purulia. Appellant herein is said to have entered into possession of the suit premises in the year 1970. Originally, he claimed to have come into possession in the said premises pursuant to or in furtherance of an agreement for sale entered into on or about 18th March, 1970 by and between him and S. K. Abdul Wahid Molla, the father of Safiqur Rahaman.

The respondents purchased the suit premises from Safiqur Rahaman on 21st July, 1980 by three registered deeds of sale.

4. Indisputably, the respondent No. 1 filed a suit being Title Suit No. 88 of 1990 in the Court of Munsif, Raghunathpur, District Purulia (West Bengal) inter alia praying for eviction of the appellant from the suit premises and mesne profit claiming themselves to be the owners and landlords thereof.

He prior to institution of the suit also served a notice upon the appellant in terms of Section 106 of the Transfer of Property Act asking him to handover peaceful and vacant possession alleging that he had been a tenant therein on a monthly rental of ` 45/- under his vendor Safiqur Rahaman.

5. Appellant denied and disputed that he had ever been a tenant of Safiqur Rahaman at any point of time. The relationship between them was, thus, denied and disputed.

6. The learned trial Judge having regard to the rival pleadings of the parties framed the following issues :

“1) Have the plaintiffs any cause of action to bring this suit?

2) Is the suit maintainable in its present form?

3) Is the suit barred by law of limitation?

4) Is the suit barred by provisions of the S.R. Act?

5) Is the suit barred by the principle of waiver, estoppel and acquiescence?

6) Have the plaintiffs landlord and tenant relationship with the defendant?

7) Have the plaintiffs served valid notice u/S. 106 of the T.P. Act?

8) Have the plaintiffs right, title and interest in the suit property?

9) Are the plaintiffs entitled to get the decree as prayed for?

10) To what other reliefs, if any are the plaintiffs entitled?

The learned trial Judge opined :

i. The plaintiffs have proved to be the owner of the suit property having purchased the same from the admitted owner S. K. Abdul Wahid Molla;

ii. The defendant has failed to prove his independent title over the suit property.

iii. The plaintiffs have failed to prove the relationship of landlord and tenant in between the plaintiffs and the defendant;

iv. The plaintiffs having failed to prove the tenancy are not entitled to a decree.

7. The respondent No. 1 preferred an appeal thereagainst marked as Title Appeal No. 20/1993. By a judgment and order dated 31st May, 1995, the learned Appellate Court held that although the plaintiffs have failed to prove the relationship of landlord and tenant by and between them and the defendant or that the defendant had been let into the tenanted premises on leave and license basis, the plaintiffs-respondents are entitled to a decree for possession on the basis of his general title.

8. The learned First Appellate Court also rejected the appellant’s contention that he has acquired title by adverse possession.

It was held :

“It is needless to mention the learned Munsif of the Court below in the body of the judgment, at the time of discussion (page 20 begins) issue Nos. 6 and 8 on being satisfied by the plaintiffs chain of documents of their title over the suit premises and in such a position, the plaintiffs were entitled to get the decree for recovery of possession as owner of the suit premises and in this regard decision so referred by the learned lawyer of the appellants as reported in AIR 1984 NOC 78 Allahabad page A 35, and other decision so reported in AIR 1984 Allahabad page 66 completely on the flat point of the suit in favour of the plaintiffs and where it has been clearly stated in a suit for eviction by the plaintiffs against the defendant under the relevant provision of Transfer of Property Act where title of the plaintiffs over the suit property being proved and the relationship of landlord and tenant not proved, in spite of the same, the plaintiffs or proving the landlords title are entitled to get recovery of possession of the suit premises from the defendant as owner thereof and what in fact, happened in the given facts and circumstances, out of which this appeal arose.

**********

For the discussion made above and on the existing materials on the case record and when the plaintiffs proved their title and ownership over the suit premises by virtue of Ext. 4 series and on the other hand the defendant as per their written statement failed and neglected to discharge his onus on proving his right or permanency in the suit premises as tenant or otherwise, the plaintiffs suit must succeed and the findings of the learned Munsif in deciding the issue Nos. 6 and 8 particularly the contents of the issue No. 6 are not at all satisfactory and cannot be sustained in law in the given facts and circumstances of the case and as such the irresistible conclusion from the above discussion is that the judgment and decree so passed by the Ld. Munsif is not tenable in law and the plaintiffs are entitled to get the decree for eviction against the defendants. As a result, the appeal succeed in part on contest.”

9. By reason of the impugned judgment, the High Court dismissed the Second Appeal preferred by the appellant, opining :

“I am sorry to say that such submission on the part of the appellant cannot be accepted. A person can be in possessory right in various ways i.e. licensee/tenant/permissible possession holder/adverse possession holder/trespasser. But, the onus heavily lies with the tenant to prove in what capacity he is occupying the premises as the landlord is not in a position to claim any recovery of the possession as against him since there is no landlord and tenant relationship. In the instant case, the schedule land under the deed of gift and so-called agreement for sale are different. So far as the execution of deed of gift is concerned, it has been sufficiently proved. So far as payment of rent is concerned, that has been stated in the cross- examination. The only failure is about the non-disclosure of the rent receipt. But, simply such statement will not develop the case of adverse possessory right of the tenant, which he has claimed now before the second appellate Court. Therefore, when he is not claiming to be a tenant at best, he can claim as a licensee of the premises in question whereunder the title of the landlord has already been proved by virtue of the document. Therefore, such licensee is estopped from questioning the title of the landlord as per Section 116 of the Indian Evidence Act, 1872. Tenancy is not proved, therefore, he is not a tenant. He is not claiming to be the licensee although he could have, therefore, I cannot compel him to be licensee. The remaining, if any, is permissive occupation, which is as good as license. However, it is well settled that the permissible occupation cannot be regarded as adverse possessory right. adverse possession is not proved. Therefore, the remaining capacity, if any, is trespasser. It is far to say that a trespasser can challenge the title of the landlord. Under such situation the presumption, which has been drawn by the lower appellate Court is an appropriate presumption on that score.”

10. A review application filed thereagainst by the appellant has also been dismissed by the High Court.

 

Both the aforementioned orders are in question before us.

11. Mr. vs. Prabhakar, learned counsel appearing on behalf of the appellant would contend :

i. No substantial questions of law having been formulated by the High Court, a jurisdictional error has been committed by it in passing the impugned judgment.

ii. The relationship of landlord and tenant and/or the licensor and licensee having not been proved, the High Court as also the First Appellate Court committed a serious error in passing the impugned judgment on the premise that the appellant was a trespasser.

12. Mr. R. K. Gupta, learned counsel appearing on behalf of the respondents, on the other hand, would Suppl ort the impugned judgment, contending :

i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title.

ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise.

13. The plaintiffs served a notice on the defendant under Section 106 of the Transfer of Property Act. Such notice evidently was served on the premise that the defendant-appellant was his tenant. He denied and disputed the same. The plaintiff in his plaint disclosed the cause of action for the suit having arisen on and from 1st October, 1990 from which date the monthly tenancy had ceased to exist. The plaintiff prayed for grant of mesne profits at the rate of ` 3/- for each day for wrongful occupation of the premise as after the termination of tenancy the defendant was to be treated as a trespasser.

14. Paragraph 10 of the plaint reads as under :

“10. That for the purpose of jurisdiction and Court fee the value of this suit for prayer (A) is laid at ` (sic) For eviction a tentative Court fee of ` 100/- is paid for future mesne profits to a decree.”

How much Court fee was paid and on what basis has not been disclosed.

The reliefs prayed for by the plaintiffs are :

“a) A decree for eviction of the defendant from the schedule premises, be passed against the defendants.

b) A decree for mesne profits in case eviction is allowed, at the rate of ` 3/- per day from (sic) be passed against the defendants as scheduled in schedule-II and III below and for future mesne profits uptil delivery of possession of suit property at the rate the Court is pleased to order for which tentative Court fee is paid at present.”

15. It is not clear what amount of Court fee was paid. Presumably, the Court fee was paid of one year’s rent that is calculated on the basis of twelve months’ rent at the rate of ` 45/- in terms of Section 7(xi)(cc) of the Court Fees Act, 1870.

Section 4 of the Court Fees’ Act, 1870 reads as under :

“4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction :- No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction;

in their appellate jurisdiction :- or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of the said Court, or of a division Court;

or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence;

as Courts of reference and revision.- or in the exercise of its jurisdiction as a Court of reference or revision

unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.” For obtaining a decree for recovery of possession, Court fees are required to be paid in terms of Section 7(v) of the Court Fees Act, 1870 i.e., according to the value of the subject matter of the suit.

16. We will have to proceed on the basis that whereas the plaintiff proved his title, the defendant could not. The learned trial Judge has held that the defendant could not prove the agreement of sale.

The High Court formulated the following points in the form of question which are as under :

“6. Have the plaintiffs landlord and tenant relationship with the defendant?

7. Have the plaintiffs served valid notice u/S. 106 of the T.P. Act.”

17. Was, in the aforementioned situation, a suit for recovery of possession maintainable is the question.

The landlord in a given case although may not be able to prove the relationship of landlord and tenant, but in the event he proves his general title, may obtain a decree on the basis thereof. But in a case of this nature, a defendant was entitled to raise a contention that he had acquired an indefeasible title by adverse possession.

In Radha Devi and Ors. vs. Ajay Kumar Sinha (1998 (2) BLJR 1061, the Patna High Court accepted that a landlord is entitled to obtain a decree of eviction on the basis of his general title, though he could not prove the relationship of landlord and tenant. It was opined :

“…In other words, where there is relationship of landlord and tenant, order of eviction be passed on the existence of any one of the grounds mentioned in Section 11 of the said Act. It is, therefore, clear that proof of relationship of landlord and tenant gives right to a landlord to get an order of eviction under the provisions of the aforesaid Act…”

In Champa Lal Sharma vs. Smt. Sunita Maitra (1990) 1 BLJR 268, it was held :

“It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground.

It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title.

*** *** ***

It is, therefore, evident that the Court has to ultimately decide the question as to whether the plaintiff in case his title is in dispute, would be entitled to withdraw the rent so deposited by the tenant or not. It, therefore, makes the position, in my opinion, absolutely clear that before the said question is decided finally so as to enable the Court to come to a decision whether the plaintiff landlord is entitled to a decree for eviction or not must come to the finding that there exists a relationship of landlord and tenant by and between the plaintiff and the defendant, if such an issue is raised. In absence of any such finding the Court will have no jurisdiction to pass a decree of evidence as against the defendant in such a suit.”

[See also Deepak Kumar Verma and Ors. vs. Ram Swarup Singh, 1992 (1) BLJR 102. A defendant as is well known may raise inconsistent pleas so long they are not mutually destructive.

In Gautam Sarup vs. Leela Jetly and Ors. (2008) 7 SCC 85, this Court held :

“22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.”

An issue as to whether the defendant was a trespasser or not, thus, was required to be framed.

18. Mr. Gupta, however, would rely upon a decision of this Court in Bhagwati Prasad vs. Shri Chandramaul (1966) 2 SCR 286. Gajendragadkar, C.J. therein was dealing with the rules of pleadings. It was opined that although the rules of pleadings should be adhered to; when parties go to the trial knowing fully well the points he is required to meet, the Court may not insist on the strict application thereof, stating :

“When Mr. Setalvad was pressing his point about the prejudice to the defendant and the impropriety of the course adopted by the High Court in confirming the decree for ejectment on the ground of licence, we asked him whether he could suggest to us any other possible plea which the defendant could have taken if a licence was expressly pleaded by the plaintiff in the alternative. The only answer which Mr. Setalvad made was that in the absence of definite instructions, it would not be possible for him to suggest any such plea. In our opinion, having regard to the pleas taken by the defendant in his written statement in clear and unambiguous language, only two issues could arise between the parties : is the defendant the tenant of the plaintiff, or is he holding the property as the licencee subject to the terms specified by the written statement? In effect, the written statement pleaded licence, subject to the condition that the licence was to remain in possession until the amount spent by him was returned by the plaintiff. This latter plea has been rejected, while the admission about the permissive character of the defendant’s possession remains. That is how the High Court has looked at the matter and we are unable to see any error of law in the approach by the High Court in dealing with it.

In Support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon the two of its earlier Full Bench decisions. In Abdul Ghani vs. Musammat Babni ILR 25 All 256 the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund vs. Dalu, ILR 25 All 498”

(Emphasis Suppl lied).

The said decision itself is an authority for the proposition that it was necessary to bring on record some evidence that the defendant was a licensee and he could not have raised any other alternative plea. It was followed by a learned Single Judge of the Allahabad High Court in Shri Ram and Anr. vs. Smt. Kasturi Devi and Anr. (AIR 1984 All 66, stating :

“15. Lastly, it was argued for the appellants that there is no relationship of landlord and tenant as between Smt. Kastoori Devi on the one hand and Sri Ram or Satya Pal, on the other. The trial Court was of the view that no such relationship has been made out. This finding was, however, reversed by the lower appellate Court and not without cogent basis. Sri Ram admits that one Desh Rai was the tenant in this part of the house who vacated. Sri Ram thereafter came in the said portion of the house. In cross-examination, he admitted also that it was agreed between him and Smt. Kastoori Devi what would be treated as the rent for the said portion. Further the case of the appellants is that on January 20, 1970, Sri Ram got this portion allotted in his name. All these are pointers in the direction that there was relationship of landlord and tenant and not that Sri Ram has been residing in that portion of the house as licensee of Smt. Kastoori Devi. This apart the suit for eviction brought by Smt. Kastoori Devi against them does not fail even if it is assumed that there was no relationship of landlord or of tenant or that Sri Ram was in the position of a mere licensee. The licence has been determined by registered notice given by Smt. Kastoori Devi already. In the plaint, Smt. Kastoori Devi referred expressly to her title to the house by virtue of the will executed in her favour by the husband. The law is settled that even if Sri Ram was the licensee, Smt. Kastoori Devi can, on the basis of title claim eviction even though she has set up the case that there was the relationship of the landlord and tenant and assumed that the same is not established, vide Bhagwati Pd. vs. Chandramaul, AIR 1966 SC 735, Abdul Ghani vs. Mst. Babni (1903) ILR 25 All 256 (FB) Bal Mukund vs. Dalu (1903) ILR 25 All 498 (FB).”

(Emphasis Suppl lied)

19. Mr. Gupta would further rely upon a decision of the Calcutta High Court in Hajee Golam Hossain Ostagar vs. Sheik Abu Bakkar (AIR 1936 Cal 351) to contend that the defendant in a suit for ejectment was bound to show that he had a right to remain on a land permanently wherefor the onus would be on him. That case related to an agricultural tenancy. A simple tenancy can be terminated by service of notice under Section 106 of the Transfer of Property Act. Once a valid notice is served, the tenant becomes trespasser.

The situation, however, has undergone a sea-change after almost all the States have enacted the premises tenancy Acts governing the conditions of tenancy in respect of house premises. The State of West Bengal has also enacted the West Bengal Premises Tenancy Act, 1956.

In terms of the 1956 Act, the tenant upon termination of tenancy does not become a trespasser. He becomes a statutory tenant (loosely called). When, however, a defendant is a trespasser and is sued as such, the situation would be totally different. Plaintiff must file a suit having regard to the cause of action thereof. The Court, in a given case, mould the relief having regard to the provisions of Order VII, Rule 7 of the Code of Civil Procedure, but the said provision cannot be applied in a situation of this nature.

20. We, therefore, are of the opinion that it is not a case where by non framing of an issue as to whether the defendant-appellant was a trespasser or not he was not prejudiced. Had such an issue been framed he could have brought on record evidence to establish that he had the requisite animus possidendi, particularly in view of the fact that it has been held by the Courts below that he was not put in possession by the predecessor-in-interest of the plaintiffs in terms of an agreement for sale or otherwise. If he has not been able to prove the agreement, he could have taken the other plea, i.e., he has acquired indefeasible title by adverse possession. He is said to have been in possession of the suit premises for more than twelve years prior to the institution of the suit. The question as to whether he acquired title by adverse possession was a plausible plea. He, in fact, raised the same before the appellate Court.

21. Submission before the First Appellate Court by the defendant that he had acquired title by adverse possession was merely argumentative in nature as neither there was a pleading nor there was an issue. The learned trial Court had no occasion to go into the said question.

22. We, therefore, are of the opinion that in a case of this nature an issue was required to be framed. Furthermore, the High Court while determining the issues involved in the Second Appeal should have formulated questions of law.

In Dharam Singh vs. Karnail Singh and Ors. (2008) 9 SCC 759, this Court held :

“6. In response, learned Counsel for the respondents submitted that on considering the memorandum of appeal and the grounds indicated therein, the High Court had allowed the second appeal and, therefore, there was nothing wrong. It is stated that after considering the materials on record, the High Court had recorded its findings that the suit deserves to be dismissed.

**********

9. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.

**********

15. Under the circumstances, the impugned judgment is set aside, we remit the matter to the High Court so far as it relates to Second Appeal No. 285 of 2000 for disposal in accordance with law. The appeal is disposed of on the aforesaid terms with no order as to costs.”

(See also Koppisetty Venkat Ratnam (D) through L.Rs. vs. Pamarti Venkayamma (2009) 4 SCC 244)

23. However, we are of the opinion that keeping in view the peculiar facts and circumstances of this case and as the plaintiffs have filed the suit as far back in the year 1990, the interests of justice should be subserved if we in exercise of our jurisdiction under Article 142 of the Constitution of India issue the following directions with a view to do complete justice to the parties.

i. The plaintiffs may file an application for grant of leave to amend his plaint so as to enable him to pray for a decree for eviction of the defendant on the ground that he is a trespasser.

ii. For the aforementioned purpose, he shall pay the requisite Court fee in terms of the provisions of the Court Fees Act.

iii. Such an application for grant of leave to amend the plaint as also requisite amount of Court fees should be tendered within four weeks from date.

iv. The defendant-appellant would, in such an event, be entitled to file his additional written statement.

v. The learned trial Judge shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue.

vi. All the evidences brought on record by the parties shall, however, be considered by the Court for the purposes of disposal of the suit.

vii. The learned trial Judge is directed to dispose of the suit as expeditiously as possible and preferably within 3 months from the date of filing of the application by the plaintiffs in terms of the aforementioned direction (i).

24. The appeals are allowed with the aforementioned directions. No costs.


Alternative citation : AIR 2009 SCW 7425 : JT 2009 (10) SC 538 : (2009) 11 SCALE 12 : (2009) 15 SCC 693

Counsel for the Parties:

V. Prabhakar, Ashoke K. Sadhu Khan, Mrs. Revathy Raghvan, for Appellant

R. K. Gupta, S. K. Gupta, Arun Yadav, Shekhar Kumar, for Respondents.

 

West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001

LAW LIBRARY -2018 EDITION

Passed by the West Bengal Legislature, Received the Assent of the President of India and was first published in the Kolkata Gazette, Extraordinary, of the 22nd November, 2002 Vide Notification No. 2118-L, dated the 22nd November, 2002

An Act to provide for the acquisition of interests of landlords in respect of lands comprised [in Thika tenancies and certain other tenancies] in Kolkata, Howrah and Other Municipalities of West Bengal for development and equitable utilization of such lands. Whereas it is expedient to provide for the acquisition of interests of landlords in respect of lands comprised [in Thika tenancies and certain other tenancies] in Kolkata, Howrah and Other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub serving the common good;

It is hereby enacted in the Fifty-second Year of the Republic of India, by the Legislature of West Bengal, as follows :

Law of Thika Tenancy [Click here]

Chapter I
Preliminary
  1. Short title, extent and commencement.—(1) This Act may be called the West BengalThikaTenancy (Acquisition and Regulation) Act, 2001.

(2) It extends to Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980), and to Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980 (West Bengal Act LVIII of 1980) and such other areas as the State Government may notify from time to time :

Provided that the provisions of this Act shall not extend to the whole of, or to any area included within the limits of, Howrah, which, immediately before the 10th day of January, 1983, being the date of coming into force of the Howrah Municipal Corporation Act, 1980, was not comprised in the municipality of Howrah :

Provided further that the provisions of this Act shall not extend to the whole of, or to any area included within the limits of, Kolkata, which, immediately before the 4th day of January, 1984, being the date of coming into force of the Kolkata Municipal Corporation Act, 1980, was comprised in any municipality.

(3) It shall come into force on such date as the State Government may, by [notification], appoint.

2. Definitions.— in this Act, unless there is anything repugnant n the subject or context, —

(1) “Bharatia” means any person by whom or on whose account, rent is payable to [for any structure including pucca structure, if any, or part thereof,] owned by a Thika tenant, but excludes any person paying rent to a Bharatiaand any [resident of any structure including pucca structure, if any,] forfeited by the State Government under sub-section (2) of section 6, irrespective of the status, the said person may have enjoyed earlier;

(2) “Controller” means an officer appointed under section 9 and includes an Additional Controller and a Deputy Controller;

(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;

(5) “khatal” means a place where cattle are kept or maintained for the purpose of trade or business including business in milk derived from such cattle;

(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 but owned by him, and includes any corporation, institution or person having superior interest in such Thika tenancy;

(8) “lease” means a lease of immovable property by which a transfer of a right to enjoy such property made for a certain time expressed or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent;

(9) “local authority” includes a Panchayat as defined in clause (15b) of section 2 of the West Bengal Panchayat Act, 1973 (West Bengal Act No. 41 of 1973), or a municipality constituted under the West Bengal Municipal Act, 1993 (West Bengal Act 22 of 1993);

(10) “notification” means a notification published in the Official Gazette;

(11) “prescribed” means prescribed by rules made under this Act;

(12) “public purposes includes a planned development of any holding or

area,

or the continuation of a scheme or a project which ensures the general welfare of the public;

(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 of 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 and includes open areas and roads on such land.]

  1. 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 n force or in any custom, usage or agreement or in any decree or order of a court, tribunal or other authority.

 

Chapter II

Acquisition of lands comprised in Thika tenancies and 
the rights of landlords in such lands
  1. 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) Thika land;]

(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 thika tenants :

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.

5. Incidents of tenancies in respect of lands vested in the State.—(1) Subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), and the provisions of this Act, every thika tenant, occupying any land under a landlord on the date of commencement of this Act, shall occupy such 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.

(2) Every thika tenant holding directly under the State under sub-section (1) shall be liable to pay to the State Government in the prescribed manner such revenue as may be determined.

[(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.]

(4) The interests of the thika tenants holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares-interest and spouses or to the prospective heirs, with a prior permission of the Controller, subject to the provisions of sub-section (1) of section 6.

(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 Bengal Act LIX of 1980), and the rules made thereunder, or the Howrah Municipal Corporation Act, 1980 (West Bengal 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 Bengal Act LIX of 1980), or Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980 (West Bengal 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.

6. Thika tenant not to let out vacant land.—(1) The thika tenants holding lands directly under the State shall be entitled to let out in whole or in part structures existing on, or constructed after, the date of commencement of this Act on such lands but not any vacant land or any part thereof.

(2) Any transfer or agreement for transfer, whether oral or in writing, or any activity in contravention of the provisions of subsection (4) ,or sub-section (5), or proviso to sub-section (5), of section 5, shall be declared invalid under an order of the Controller and the structure or part of structure, as the case may be, shall stand forfeited to the State in accordance with the procedure as may be prescribed.

(3) Notwithstanding anything contained in this section, where a pucca structure has been constructed without No Objection Certificate as required by the proviso to sub-section (5) of section 5, the Controller may, subject to the provisions of any other law for the time being in force, after being satisfied that the forfeiture of such structure to the State under ‘sub-section (2) will cause hardship to the thika tenant or the Bharatia, as the case may be, issue a provisional certificate for the purpose of obtaining construction plan sanctioned by the local authority :

Provided that the Controller shall not issue final certificate unless the thika tenant has produced a construction plan of such structure sanctioned by the local authority to the Controller within such time and on payment of such fee, as may be prescribed :

Provided further that if the thika tenant fails to produce such sanctioned plan within such prescribed time to the Controller, the Controller may invoke the procedure of forfeiture under sub-section (2).

(4) Whenever it appears to the State Government that the land comprised in any thika tenancy is needed, or is likely to be needed, for any public purpose, it may, after giving the thika tenant and the Bharatias, if any, an opportunity of being heard, resume the land comprised in such thika tenancy with or without structures, if any, and take possession of the land :

Provided that immediately after such resumption, the State Government shall pay to the thika tenant or the Bharatia, if any, an amount not exceeding ten times of the compensation deter-mined under sub-section (6) of section 7 of the Act in addition to the compensation determined under sub-section (6) of section 7.

(5) A Controller after satisfying himself that a Bharatia stays at the structure forfeited under sub-section (2) above may grant licence to such Bharatia in respect of so much area of such structure as is occupied by such Bharatia and such licence may be granted on such terms and conditions, and in such manner, as may be prescribed.

7. Payment of compensation.—(1) The State shall, for the vesting of any land under section 4, pay to the landlord or landlords having any right in such land an amount as may be determined in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976).

(2) Where the landlord is a corporation or an institution established exclusively for a religious or a charitable purpose of a public nature, or is a person holding under a public trust or an endowment or other legal obligation exclusively for a public purpose which is religious or charitable, the State shall, for vesting under section 4, pay to such landlord a perpetual annuity or, where the interest of the landlord is terminable or is liable to be exhausted, an annuity for such number of years may be prescribed, having regard to the extent of the rights of the landlord. Such annuity shall not exceed the annual net income derived from the holding as may be determined by the Controller in the prescribed manner. In determining the net annual income the Controller shall deduct from the gross income, apart from other sums as may be prescribed, charges on account of management and collection at the rate of twenty per centum of the gross income.

(3) For the purposes of sub-section (2), the Controller, on his own motion or upon any information, may, after giving the person interested an opportunity of being heard, enquire and decide any question as to whether any trust, endowment corporation or institution is for exclusively religious or charitable purpose, or as to whether it is of public or private nature, and any question of title incidental thereto as may be necessary to determine such question, by examining the document, if any, and by taking into account—

(a) the actual user of income of the land,

(b) the mode of user , and

(c) the share of income of the land appropriated,

or enjoyed, by or on behalf of such trust, endowment, corporation or institution.

(4) An appeal from any order passed by the Controller under this section shall lie under section 12..

(5) No compensation shall be paid to the thika tenant for forfeiture of a structure or a part of a structure under sub-section (2) of section 6.

(6) The State shall, on resumption under sub-section (4) of section 6 of any structure comprised in any tenancy, pay to the tenant having any right in such structure an amount calculated by the Controller in the prescribed manner. Such amount shall be calculated at such rate as may be prescribed, apart from other sums as may be prescribed. Where the structures are occupied by the tenant himself, fair rent determined by the Controller under this sub-section in the prescribed manner shall be deemed to be the rent paid by the Bharatias.

(7) Where there are more than one landlord in respect of a thika tenancy or other tenancy vested under section 4, the amount payable to them under sub-section (1), or the annuity payable to them under sub-section (2), shall be apportioned among them in the prescribed manner.

Chapter III
Incidents for tenancies of Bharatias in structures [SECTION 8 TO 10] CLICK

8. Incidents for tenancies of Bharatias-

9. Controller

10. Tenancy of Bharatia to continue-

Chapter IV
Miscellaneous and supplemental provisions
  1. Powers of Controller.-(1)The Controller and any person deciding any appeal from his order shall have all the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters :—

(a) summoning and enforcing the attendance of any person and examining him on oath as a witness,

(b) requiring the discovery and production of any document or record,

(c) receiving evidence on affidavits,

(d) requisitioning any public record or copy thereof from any court or office,

(e) issuing commission for the examination of witnesses or documents,

(f) enforcing or executing orders (including an order for restoration of possession) as if such orders were decrees of a civil court,

(g) remanding any case or proceedings to the officer from whose order the appeal is preferred.

(2) The Controller may transfer any proceeding pending before him for disposal to any Additional Controller or Deputy Controller or withdraw any proceeding pending before any Additional Controller or Deputy Controller and dispose of such proceeding himself or transfer such proceeding for disposal to any other Additional Controller or Deputy Controller.

(3) Any clerical or arithmetical mistake in any order passed by the Controller or any error arising out of any accidental omission may, at any time, be corrected by the Controller on an application received by him in this behalf from any of the parties or otherwise.

(4) The Controller may, at any stage of proceeding, either on his own motion or upon the application of either of the parties and on such terms as may appear to him to be just, order that the name of any party improperly joined be struck out and the name of any person who ought to have been joined, whether as a petitioner or as an opposite party or whose presence before him may be necessary in order to enable him effectively and completely to adjudicate upon settle all the questions involved in the proceedings, be added.

(5) The Controller may, for reasons to be recorded in writing, by order, require the personal appearance of either party.

(6) The Controller may, for causing delivery of possession of any premises to a thika tenant or Bharatia, send a requisition, in writing, to the officer-in-charge of the police station within the jurisdiction of which the premises is situated or to any police officer superior to such officer-in-charge in rank and on receipt of such requisition, the officer-in-charge or the police officer, as the case may be, shall render all necessary and lawful assistance to the Controller for effecting the delivery of possession of such premises.

12. 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 Bengal Act No. 25 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.

13. Revision by State Government.—(1) The State Government may, on its own motion, call for and examine the records or any order passed or proceedings taken by the Controller under the provisions of this Act and against which no appeal has been preferred for the purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of the procedure, and pass such order with respect thereto as it may think fit :,

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.

(2) The State Government shall empower, from time to time, one or more officers to act on behalf of the State Government and to exercise all powers conferred on the State Government in this section.

14. Power of West Bengal Land Reforms and Tenancy Tribunal to withdraw and transfer any proceeding.—On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the Land Reforms and Tenancy Tribunal may, at any stage, withdraw such proceeding from one Controller and transfer it for hearing or disposal to a Controller appointed for any other area, or re transfer it for hearing or disposal to the Controller from whom it was withdrawn.

(2) The Controller to whom any proceeding has been transferred under sub-section (1), shall have the same power to hear or dispose of it as the Controller from whom it was withdrawn and may, subject to any special directions in the order of transfer, either rehear it or proceed from the stage at which it was withdrawn and transferred.

Explanation—In this section “proceeding” means any proceeding drawn by a Controller under the provisions of this Act.

15. Bar to application of the Act to certain lands.— Nothing in this Act shall apply to —

(a) lands belonging to the Central and the State Governments;

(b) any land, vested under any other law in or in the possession of,—

(i) the Central Government, or

(ii) the State Government, or

(iii) a port authority of a major port, or

(iv) a railway administration, or

(v) a statutory body meant for the development of area like Kolkata Metropolitan Development Authority, Kolkata Municipal Corporation, Howrah Municipal Corporation, Kolkata Improvement Trust, and the Howrah Improvement Trust;

(c) any land which is required for carrying out any of the provisions of the Kolkata Improvement Act, 1911 (Bengal Act No. 5 of 1911) :

Provided that nothing contained in this section shall apply to any land under the control or possession of a bank.

Explanation.– For the purposes of this section, a bank is one as define in section 2(e) of the Reserve Bank of India ACt, 1934 (2 of 1934).

16. Restriction or exclusion of the Act by agreement.—Nothing in any contract between a thika tenant and a Bharatia made after the commencement of this Act shall take away, or limit, the rights of such tenant or Bharatia as provided for in this Act, and any contract which is made in contravention of, or which is inconsistent with, any of the provisions of this Act shall be void and without effect to the extent of such contravention or inconsistency, as the case may be.

17. Power to enter and inspect premises to require information and to summon witnesses.—For the purpose of any inquiry under this Act, the Controller and any person deciding an appeal under section 12, may—

(a) enter and inspect any premises at any time between sunrise and sunset; or

(b) authorise any person subordinate to him to enter and inspect any premises between sunrise and sunset; or

(c) require, by written order, any person to produce for his inspection such accounts, rent receipts, books or other documents at such time, and at such place, as may be specified in the order

Provided that no premises shall be entered under clause (a) or clause (b) without the consent of the occupier, unless at least twenty-four hours’ previous notice in writing has been given.

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 authorised 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.

19. Power to make rules.—(1) The State Government may make rules for carrying out the purposes of this Act. The rules framed under the Calcutta thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Bengal Act No. 37 of 1981) may continue as rules under this Act to the extent they are not repugnant to and transgressive of the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters which may be, or is required to be, prescribed or made by rules.

20. Saving of limitation.—In computing the period of limitation prescribed by any law for the time being in force for an application for ejectment of a Bharati a or for an appeal from an order or decree made on such application or suit or for the execution of an order or decree for ejectment of a Bharatia, the period from the 19th day of July, 1978 to the date of coming into force of this Act shall be excluded.

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.

22. Indemnity.—No suit, prosecution or other legal proceedings whatsoever shall lie against any person for anything in good faith done or intended to be done under this Act.

23. Maintenance, preparation and revision of record-of-rights.—(1) Except as hereinafter provided, Chapter VII and Chapter VIIA of the West Bengal Land Reforms Act, 1955 (West Bengal Act No. 10 of 1956), and the rules made thereunder shall apply mutatis mutandis to the maintenance, preparation and revision of record-of-rights for the purposes of this Act.

(2) Without prejudice to the generality of the provisions of Chapter VII and Chapter VIIIA of the West Bengal Land Reforms Act, 1955, the names of Bharatias and thika tenants, the right of every Bharatia in respect of the concerned tenant, the duration and incident of tenancies with area involved in each case, rent payable by each thika tenant and each Bharatia, and the area occupied by each Bharatia shall be incorporated in such record-of-rights.

(3) The State Government may, if it thinks fit, direct that such record-of-rights shall be revised or prepared only in respect of lands to which section 5 of this Act applies.

(4) Notwithstanding anything contained in sub-section

(5) of section 51 of the West Bengal Land Reforms Act, 1955, there shall be a separate khatian for each thika tenant or tenant of other lands holding directly under the State, but the lands owned by such thika tenant or tenant of other lands as a raiyat shall not be incorporated in such khatian.

24. Payment of monthly revenue.—(1) In respect of any holding, a thika tenant or tenant of other lands holding directly under the State, shall pay monthly revenue to the State Government at such rate as may be prescribed.

(2) The said monthly revenue shall be enhanced at such rate as may be prescribed.

25. Disposal of land or structures vested in, or resumed by, the State.—Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, and subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), it shall be competent for the State Government to make use of, or settle with any person or authority, any land or structure vested in, or resumed by, the State under this Act for public purpose on such terms and conditions, and in such manner, as may be prescribed.

26. [ * * * ]

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 Bengal Act No. 37 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; or

(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.