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

KEYWORDS:-

c

DATE:-03-12-2003

(2004) 10 SCC 578

(SUPREME COURT OF INDIA)

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

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

Decided On: 03-12-2003

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

ORDER

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

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

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

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

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

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

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

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

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

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

KEYWORDS:- THIKA TENANCY- RENT- EVICTION

c

DATE:-16-11-2005

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

(SUPREME COURT OF INDIA)

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

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

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

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

Counsel for the Parties:

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

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

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) all applications for ejectment of thika tenants,

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

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

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

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

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

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

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

“9. thika tenants and Bharatias to be governed by West Bengal Act 12 of 1956.- (1) The monthly and other periodical tenancies of Bharatias in respect of structures occupied by them on payment of rents to thika tenants shall, with effect from the date of coming into force of this Act, be governed by the provisions of the West Bengal Premises tenancy Act, 1956, in all matters coming within the purview of the said Act and, for the said purpose, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act.

(2) Notwithstanding anything contained in this Act or in the West Bengal Premises tenancy Act, 1956, a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency or separate water supply connection from the appropriate agency for his own use.

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

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

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

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

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

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

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

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

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

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

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

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

KEYWORDS:- THIKA TENANCY

c

DATE:-14-08-2007

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

(SUPREME COURT OF INDIA)

Rozan Mian Appellant
Versus
Tahera Begum and OTHERS Respondent

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

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

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

Counsel for the Parties:

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

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

Judgment

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

2. Briefly stated the facts are as follows :-

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

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

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

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

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

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

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

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

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

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

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

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

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

VILLEGE

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.


 

Calcutta Thika Tenancy Act, 1949

West Bengal Act No. 2 of 1949

[Assent of the Governor-General was first published in the Calcutta Gazette, Extraordinary, of the 28th February, 1949]

An Act to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta.

Whereas it is expedient to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta;It is hereby enacted as follows :—

CHAPTER I

Preliminary

1. Short title, extent and commencement.—(1) This Act may be called the Calcutta thika Tenancy Act, 1949.(2) It extends to Calcutta as defined in clause (11) of section 3 of the Calcutta Municipal Act, 1923 (Bengal Act No. 3 of 1923) and [ xxx ] to the Municipality of Howrah.(3) It shall come into force on the day on which the Calcutta thika Tenancy Ordinance, 1948 (West Bengal Ord. XI of 1948), ceases to operate.

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

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

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

(3) “holding” means a parcel or parcels of land held by any person as a thika tenant under one lease or one set of conditions whether such tenant has held the land before or after the commencement of this Act;

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

[(4a) “pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials;]

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

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

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

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

(6) all words and expressions used but not defined in this Act and used in the Transfer of Property Act, 1882, (IV of 1882) or the Bengal Tenancy Act, 1885 (VIII of 1885), have the same meanings as in those Acts.

CHAPTER II

Incidents of thika Tenancies

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

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

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

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

(2) No landlord shall be deemed to require the land comprised in the thika tenant’s holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family.(3) Where the landlord requires the land comprised in the thika tenant’s holding for his own occupation and the Controller is of opinion that such requirement may be substantially satisfied be ejecting the thika tenant from a part only of his holding and allowing him to continue in occupation of the rest, then, if the thika tenant agrees to such occupation, the Controller shall make an order accordingly and fix the proportionate rent for the portion remaining in the occupation of the thika tenant.(4) Where the thika tenant has erected or acquired a pucca structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the pucca structure.]

4. Notice before ejectment.—It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given thethika tenant notice in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882)

(a) in the case where he wishes to eject the thika tenant on [the ground specified in clause (i) of sub-section (1)] of section 3 at least one month’s notice in writing expiring with the end of a month of the tenancy; and

(b) in the case where he wishes to eject the thika tenant on [the ground specified in clause (if) of sub-section (1)] of section 3 at least three months’ notice in writing expiring with the end of a month of the tenancy :

[Provided that save as otherwise provided in any contract in writings, no thika tenant shall be ejected from his holding on the ground specified in clause (ii) of sub-section (1) of section 3 except on payment to the thika tenant or on depositing with the Controller for payment to the thika tenant such compensation as may be agreed upon between the landlord and the thika tenant or, in the case where they do not agree. as may be determined in the prescribed manner by the Controller on application by the landlord or the thika tenant.

5. Proceedings for ejectment.—(1) Notwithstanding anything contained in any other law for the time being in force, a landlord wishing to eject athika tenant on one or more of the grounds specified in section 3 shall apply in the prescribed manner to the Controller for an order in that behalf and, on receipt of such application, the Controller shall, after giving the thika tenant a notice to show cause within thirty days from the date of service of the notice why the application shall not be allowed and after making an inquiry in the prescribed manner either allow the application or reject it after recording the reasons for making such order, and, if he allows the application, shall make an order directing the thika tenant to vacate the holding and, subject to the provisions of section 10, to put the landlord in possession thereof.(2) No order allowing an application under sub-section (1) shall be made in a case where compensation is payable under [ xxx ] the proviso to section 4 unless and until the amount of compensation so payable has been either paid to the thika tenant or deposited with the Controller.

6. Stay of ejectment for arrears of rent if the amount of arrears and damages are deposited with the Controller.[ xxx ]

7. Restoration of possession where landlord does not use the land for the purpose for which the thika tenant was ejected.—If an order under section 5 directing a thika tenant to vacate any land comprised in a holding on [the ground specified in clause (ii) of sub-section (1)] of section 3 is made and the landlord who recovers possession of the land as a result of such order does not within six months from the date on which he recovers such possession occupy the land himself [* **] or re-lets it within six months of the said date to any thika tenant other than the previous thika tenant without the permission of the Controller obtained in the prescribed manner, the Controller may on application in writing being made to him in this behalf by the thika tenant from whom the landlord has so recovered possession of the land within nine months from the said date, make an order directing the landlord to restore the thika tenant to possession of the land from such date and subject to such condition as may be specified in the order, or to pay him such compensation as may be fixed by the Controller.[ xxx ]

[7A. Power of the Controller to set aside order for ejectment in certain cases.—(1) Where an order for ejectment of a thika tenant from his holding has been made by the Controller under section 5 before the date of commencement of the Calcutta thika Tenancy (Second Amendment) Act, 1969, but the possession of the land comprised in the holding has not recovered by the landlord from the thika tenant, the thika tenant may, within sixty days from such date, apply to the Controller for setting aside the order.(2) On receipt of an application under sub-section (1) the Controller shall cause a notice thereof to be served on the landlord, and if after considering such evidence as the parties may adduce,—

(a) the Controller is satisfied that the oi 6E.” frr ejectment would have been made agianst the thika tenant even if the Calcutta thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall dismiss the application with such costs as the Controller may allow to the landlord; or

(b) the Controller is satisfied that no order for ejectment would have been against the thika tenant if the Calcutta thika Tenancy (Second Amendment) Act, 1969, had been in force on the date on which such order was made, the Controller shall determine the amount which would have been payable by the thika tenant for the period commencing from such date and ending with the date of the order to be made under this sub-section, if the thika tenant had to pay rent at the rate at which it was last paid during such period and after deducting therefrom all such sums as the thika tenant may have deposited with the Controller or paid to the landlord on account of rent for such period the Controller shall direct the thika tenant, by order, to deposit the remaining amount, together with such further amount as the Controller may allow to the landlord as his costs of the proceeding arising out of the application under sub-section (1) of section 5, within such time, not exceeding sixty days from the date of the order, as the Controller may fix.

(3) If the thika tenant deposits the amounts ordered by the Controller under clause (b) of sub-section (2) within the time fixed by him, the Controller shall allow the application under sub-section (1) and set aside the order of ejectment and dispose of the application of the landlord under sub-section (1) of section 5.(4) If the thika tenant fails to deposit such amounts within such time, his application under sub-section (1) shall be dismissed with such costs as the Controller may award to the landlord.]

8. Surrender.—(1) A thika tenant not bound by any lease or other agreement for a fixed period may, at the end of a month of the tenancy, surrender his holding, provided that he gives to his landlord at least one month before he surrenders, notice of his intention to do so.(2) When a thika tenant has surrendered his holding the landlord may, subject to the provisions of section 10, enter on the holding and either let it to another tenant or occupy it himself or dispose of it in any way he may think fit.

9. Abandonment.—(1) When a thika tenant voluntarily abandons his holding without notice to the landlord and without arranging for the payment of his rent as it falls due, the landlord may, at any time after the expiration of a period of two months from the date of such voluntary abandonment, file the notice referred to in sub-section (2) and subject to the provisions of sub-section (3) and of section 10 enter on the holding and let out the same to another tenant or copy it himself.(2) A landlord who intends to enter on a holding under this section s all file a notice in the prescribed form with the Controller stating that he has treated the holding as abandoned and intends to enter on it accordingly; and the Controller shall within fifteen days from the date on which the notice is so filed cause such notice to be published in the prescribed manner.(3) After the publication of the notice under sub-section (2), the thika tenant may apply to the Controller at any time not later than the expiration of one month from the date of the publication of such notice for the cancellation of such notice and thereupon the Controller may, on being satisfied after such inquiry as he considers necessary that the thika tenant is entitled to continue in possession, cancel the notice and direct that the thikatenant shall continue in possession of the holding subject to payment of the arrears of rent due on the date on which the notice is so cancelled. If the thika tenant does not make any application under this sub-section or his application under this sub-section is rejected, the landlord may enter on the holding subject to the provisions of section 10.

10. Consequences of the determination of interests of thika tenants in certain cases.—(1) Notwithstanding anything to the contrary contained in any contract, on the determination of the interest of a thika tenant in the land comprised in a holding as a result of ejectment from the holding of, or of surrender or abandonment of the holding by, the thika tenant, or otherwise, any structure [standing upon] such land and existing on the date of such determination shall vest in the landlord.(2) When any structure [standing on any holding of a thika tenant] vests in the landlord under sub-section (1) otherwise than as a result of ejectment of the thika tenant from the holding on [the ground specified in clause (ii) of sub-section (1)] of section 3, [any Bharatia in possession of such structure or any part thereof, shall without any application being made] be entitled to continue in such possession and shall be [deemed to be a tenant in respect of such structure or part thereof, as the case may be,] within the meaning of the [West Bengal Premises Tenancy Act, 1956 (West Bengal Act No. 12 of 1956)], holding under the landlord on the terms and conditions on which such Bharatia had been holding immediately before [such structure] vested in the landlordProvided that nothing in this sub-section shall prevent either the landlord or suchBharatia so deemed to be a tenant holding under the landlord, from proceeding under the [West Bengal Premises Tenancy Act, 1956], for fixing the standard rent payable in respect of [such structure or part thereof, as the case may be]

[10A. Right of thika tenant to erect pucca structures.]—(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, but subject to the provisions of sub-sections (2) and (3), a thika tenant using the land comprised in his holding for a residential purpose may erect a pucca structure on such land for such purpose with the previous permission of the Controller.(2) On an application made by a thika tenant in this behalf, the Controller may grant him permission to erect a pucca structure, if the Controller s satisfied that the thika tenant—

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

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

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

(3) No thika tenant shall be entitled to eject a Bharatia from the structure Df part thereof in the possession of the Bharatia for the purpose of erecting pucca structure :Provided that the thika tenant may by providing temporary alternative accommodation to a Bharatia obtain from him vacant possession of the structure in his possession on condition that immediately on the completion of the construction of the pucca structure the thika tenant shall offer the Bharatia accommodation in the pucca structure at a rent which shall in to case exceed by more than twenty-five per centum the rent which the Bharatia was previously paying.

11. Devolution or transfer of holding of a thika tenant.[ xxx ]

CHAPTER III

Provisions as to Rent of thika Tenancies

12. Payment of rent.—Any rent or instalment of rent payable by a thika tenant shall be paid, where there is a contract in writing in this behalf between the landlord and the thika tenant, within the time fixed in the contract or, in the absence of any such contract, by the fifteenth day of the month next following the month or period for which the rent is payable.

13. Time and place for payment of rent.—(1) Every thika tenant shall pay or tender rent or each instalment of rent before sunset of the latest day by which it is payable under the provisions of section 12 :Provided that a thika tenant may pay or tender the rent payable for a month or period at any time during such month or period before it falls due.(2) The payment or tender of rent may be made

(i) at the landlord’s local office or at such other convenient place as may be appointed in that behalf by the landlord; or

(ii) by postal money order in the manner prescribed.

A tender may also he made by depositing the rent with the Controller in accordance with the provisions of section 17 or section 18.(3) Any rent or instalment of rent which is not duly paid within the time referred to in section 12 or is not duly deposited with the Controller within the time referred to in section 17 or section 18 shall be deemed to be an arrear.

14. Appropriation of payments.—(1) When a thika tenant makes a payment on account of rent, he may declare the month or period in respect of which he wishes the payment to be credited, and the payment shall be credited accordingly.(2) If he does not make any such declaration, the payment may be credited to the account of such month or period as the landlord thinks fit.

15. thika tenant entitled to receipt for rent.—(1) Every thika tenant who makes a payment on account of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid by him, signed by the landlord.(2) A counterfoil of the receipt shall be prepared and retained by the landlord or his authorised agent.(3) The receipt and counterfoil shall be in such form and shall contain such particulars as may be prescribed.(4) If a receipt does not contain substantially the particulars required by this section, it shall be presumed, until the contrary is shown, to be an acquittance in full of all demands for rent up to the date on which the receipt was given.

16. Penalty for withholding receipts.—if a landlord without reason able cause refuses or neglects to deliver to a thika tenant a receipt containing the particulars required by section 15 for any rent paid by the tenant, the Controller may, on application made in this behalf by the tenant within three months from the date of payment, by order direct the landlord to pay the tenant such penalty not exceeding double the amount of that rent as the Controller thinks fit.

17. Deposit of rent on refusal of the landlord to accept.—(1) Where a landlord refuses to accept any rent the thika tenant may, by an application in writing containing such particulars as may be prescribed,—

(a) deposit such rent with the Controller, within the period specified in sub-section (2), and

(b) unless the landlord signifies by notice in writing to the thika tenant his willingness to accept any subsequent rent which becomes due from such tenant, also deposit such rent with the Controller within the period within which it is payable under the provisions of section 12 [ xxx ].

Explanation.—A landlord shall not for the purposes of this sub-section be deemed to have refused to accept any rent unless the rent is remitted by the thika tenant by postal money order within the time specified and in the manner referred to in section 13 and the rent so remitted is returned to the thika tenant by the postal authorities as undelivered either on account of the landlord having refused to accept payment thereof or for any other cause.[(1a) The application referred to in sub-section (1) shall be accompanied by a copy thereof along with the prescribed fee for sending such copy to the landlord by registered post with acknowledgement due.](2) The deposit referred to in clause (a) of sub-section (1) shall be made within a fortnight of the date on which the rent remitted by postal money order is returned to the thika tenant by the postal authorities as undelivered.

18. Deposit of rent in certain other cases.—(1) In either of the following cases, namely :-

(a) when any rent is payable jointly to two or more co-sharer landlords and the thika tenant is unable to obtain a joint receipt from them for the rent and no person has been empowered to receive the rent on their behalf,

(b) when a dispute has arisen as to the person who is entitled to receive the rent, the thika tenant may by an application in writing containing such particulars as may be prescribed deposit such rent with the Controller and may continue to deposit with the Controller any subsequent rent which becomes due from such tenant until the thika tenant is able to obtain a joint receipt from the co-sharer landlords or a person has been empowered to receive the rent on their behalf, or until such dispute has been settled by the decision of a competent Court or by settlement between the parties, as the case may be.

(2) The deposit of rent referred to in sub-section (1) shall be made within the period within which it is payable under section 13.

19. Receipt granted by the Controller for rent deposited to be a valid acquittance.—If it appears to the Controller to whom application for deposit is made under section 17 or section 18 that the applicant is entitled to deposit the rent under any of those sections, he shall receive the rent deposited and give a receipt for it under the seal of the Court and such receipt shall operate as an acquittance for the amount of the rent payable by the thika tenant and deposited as aforesaid, in the same manner and to the same extent as if the amount of the rent had been receivedin cases referred to in clauses (a) and (b) of sub-section (1) of section 17, by the person specified in the application as the person to whose credit the deposit was to be entered;in cases referred to in clause (a) of sub-section (1) of section 18, by the co-sharers to whom the rent is due; and in cases referred to in clause (b) of sub-section (1) of section 18, by the person entitled to the rent.

[20. Disposal of rent deposited under section 17.—On any deposit being made under section 17, the Controller shall send in the prescribed manner the copy of the application to the landlord and the amount lying in deposit may, in such manner as may be prescribed, be withdrawn by the landlord on application made in that behalf and if such amount is not withdrawn before the expiration of three years from the date of deposit, it may, in the absence of any order of a Civil Court to the contrary, be repaid to the tenant on his application and on his returning the receipt given by the Controller under section 19 :Provided that before passing any order for repayment of the amount to the tenant the Controller shall give a notice to the landlord by registered post at the last known address of such landlord and shall also publish the notice in his office and shall not pass any order for repayment until after the expiry of thirty days from the date of issue of such notice by post. The cost of transmission by post of such notice shall be deducted from the amount in deposit in accordance with such procedure as may be prescribed.]

21. Disposal of rent deposited under section 18.—(1) When the Controller receives a deposit under section 18, he shall forthwith cause to be affixed in a conspicuous place at his office a notification of the receipt thereof containing a statement of all material particulars, and, if the amount of the deposit is not paid away under sub-section (2) within the period of fifteen days next following the date on which the notification is so affixed, the Controller shall forthwith in cases referred to in clause (a) of sub-section (1) of section 18 cause a notice of the receipt of the deposit to be posted free of charge at the landlord’s local office, if any, and at some conspicuous place in the locality in which the holding is situated, and, in cases referred to in clause (b) of sub-section (1) of the said section, cause a like notice to be served from of charge on every person who, he has reason to believe, claims or is entitled to the deposit.(2) The Controller may pay the amount of any deposit notified under sub-section (1) to any person who proves to his satisfaction to be entitled to the same or is entitled to the amount as a result of a settlement referred to in sub-section (1) of section 18 or he may, if he thinks fit, retain the amount pending the decision of a Civil Court as to the person so entitled.(3) If no payment is made under sub-section (2) before the expiration of three years from the date of notice issued under sub-section (1) or three months after the decision of the Civil Court, whichever is later, the amount deposited may in the absence of any order of a Civil Court to the contrary be repaid to the depositor upon his application and on his returning the receipt given by the Controller when the rent was deposited.

22. Saving.—(1) When a landlord accepts rent in respect of any holding sent by postal money order by a thika tenant under clause (ii) of sub section (2) of section 13 or by the Controller under section 21 or with draws any rent deposited under section 17 or section 18, the fact of this acceptance or withdrawal shall not be used in any way as evidence that he has admitted as correct any of the particulars set forth in the postal money order form or in the application for deposit of such rent.(2) No suit, prosecution or other legal proceeding shall be instituted against the [Government] or against any officer of the [Government] in respect of anything done by the Controller receiving a deposit under section 17 or section 18; but nothing in this Act shall prevent any per son entitled to receive any amount so deposited from recovering the same from any person to whom it has been paid under section 20 or section 21.

23. Interest on arrears.—Any arrear of rent shall bear simple interest at the rate of six and a quarter per centum per annum from the expiry of the time within which the rent or the instalment of rent is payable under the provisions of section 12 or is to be deposited under section 17 or section 18, as the case may be, to the date of payment or of the institution of the suit, whichever date is earlier.

[23A. Suit for arrears of rent.]—(1) Notwithstanding anything contained in any other law for the time being in force, no suit for the recovery of arrears of rent shall be instituted against a thika tenant unless the thika tenant has defaulted in the payment of rent for more than two months or periods.(2) If in any suit instituted for the recovery of arrears of rent, it appears to the Court that the thika tenant has, without reasonable or probable cause, neglected or refused to pay the amount of rent due by him, the Court may award to the landlord in addition to the amount decreed for rent and costs such damages not exceeding twelve and a half per centum on the amount of rent decreed, as he thinks fit :Provided that interest shall not be decreed when damages are awarded under this section.(3) If in any suit instituted for the recovery of arrears of rent, it appears to the Court that the landlord has instituted the suit without reasonable or probable cause the Court may award to the thika tenant, be way of damages, such sum not exceeding twelve and a half per centum on the whole amount claimed by the landlord as he thinks fit.

23B. Right of landlord to purchase holding in case of execution sale.—(1) Where any land comprised in the holding of a thika tenant is sold in execution of a decree obtained against him, the landlord may, within two months of the date of the sale, apply to the executing Court for the transfer of such land to him.(2) The application shall be dismissed, unless the landlord at the time of making it, deposit in Court the amount of the price for which such land was sold together with compensation at the rate of five per centum of such amount.(3) If such deposit is made the Court shall give the auction-purchaser notice of the application and an opportunity of being heard. If the Court is satisfied that the conditions referred to in sub-section (1) have been fulfilled, the Court shall make an order directing that the deposit made under sub-section (2) shall be paid to the auction-purchaser.(4) From the date of the making of the order under sub-section (3) the right, title and interest in the land comprised in the holding accruing to the auction-purchaser by his purchase at the execution-sale shall be deemed to have vested in the landlord free from any encumbrance which may have been created after the date of such sale and the Court may, on further application of the landlord, place him in possession of the land vested in him.

24. Restrictions on enhancement of rent.—The rent of a thika tenant shall not be enhanced except as provided in this Act.

25. Enhancement of rent.—(1) The rent payable by a thika tenant for his holding may be enhanced by the Controller on application made to the Controller by the landlord in the prescribed manner on either or both of the following grounds, namely :

(a) that the value of the holding has increased;

(b) that the landlord has effected some improvement to the land at his own cost which has increased the value of the holding :

Provided that no rent shall be enhanced under this sub-section so as to exceed the rent previously payable by the thika tenant by more than twelve and a half per centum.(2) The rent fixed under sub-section (1) shall not be further enhanced during three years next following the date on which it has been last so enhanced.

26. Reduction of rent by the Controller.—Any rent payable by a thika tenant which has been settled within a period of three years immediately before the commencement of this Act, may be reduced by the Controller on application made in that behalf by the thika tenant if the Controller considers that the rate of rent so settled is unfair and inequitable having regard to the prevailing rate of rent payable by thika tenants of lands of a similar description and with similar advantages in the locality.

CHAPTER IV

Appeals and Certain Special Procedures

[26A. Power of District Judge and Chief Judge, Court of Small Causes of Calcutta to withdraw and transfer proceeding.—(1) On the application of any of the parties and after noise to the parties and after hearing such of them as desire to be heard, or of his own motion without such notice, the District Judge in the case of the proceeding pending before a Controller appointed for any area within the district, or the Chief Judge of the Court of Small Causes of Calcutta in the case of a proceeding pending before a Controller appointed for any area within the Presidency town of Calcutta, may at any stage withdraw such proceeding and transfer it for hearing or disposal to a Controller appointed for any other area within the district or within the Presidency town of Calcutta, as the case may be, 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 point at which it was withdrawn and transferred.Explanation.—In this section “proceeding” includes any proceeding arising out of an application made to the Controller under the provisions of this Act.]

27. Appeal, review and execution.—(1) Any person aggrieved by an order of the Controller may, within thirty days from the date of the order, present an appeal in writing—

(a) n respect of any holding in the Presidency town of Calcutta, to the Chief Judge of the Court of Small Causes of Calcutta; and

(b) in respect of any holding elsewhere, to the District Judge of the district in which the holding concerning which such order is made is situated.

(2) The State Government may, by notification, appoint any person who has exercised the powers of a District Judge to hear appeals presented under clause (a) of sub-section (1) to the Chief Judge of the Court of Small Causes of Calcutta and may, by notification, also appoint any person who is a judicial officer not below the rank of a subordinate Judge to hear appeals presented under clause (b) of the said sub-section to a District Judge.(3) The Chief Judge of the Court of Small Causes of Calcutta to whom an appeal is presented under clause (a) of sub-section (1) or a District Judge to whom an appeal is presented under clause (b) of that sub-section may transfer such appeal to any person appointed to hear any such appeal under sub-section (2) and may withdraw any appeal so transferred and either hear and dispose of it himself or transfer it to any other person appointed to hear such appeals under sub-section (2).(4) The Chief Judge or the District Judge or any person appointed under sub-section (2) to whom an appeal is transferred under sub-section (3), as the case may be, shall then send for the record of the case from the Controller and after perusing the record and, if necessary, taking such evidence himself or personally making such further inquiries as he thinks fit, shall make an order deciding the appeal after giving the parties an opportunity of being heard.(5) Subject to such rules as may be made under this Act, any order passed under this Act by the Controller, the Chief Judge of the Court of Small Causes of Calcutta, or a District Judge or a person appointed under sub-section (2) may be reviewed by the person who passed the order on the ground of the discovery of any new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient cause :Provided that before any order is passed under the sub-section which is likely to affect any person adversely such person shall be given a reasonable opportunity of being heard.(6) An order under sub-section (4) made by the Chief Judge or the District Judge or a person appointed under sub-section (2), as the case may be, or, subject to such order, –[if any,] an order made by the Controller under this Act, shall, subject to the provisions of sub-section (5), be final and may be executed by the Controller in the manner provided in the Code of Civil Procedure 1908 (5 of 1908), for the execution of decrees.

28. Power of Court to rescind or vary decrees and orders in certain cases.– [ xxx 

29. Application of Act to pending suits and proceedings.— [ xxx ]

30. Bar to application of Act to certain lands.—Nothing in this Act shall apply to-

(a) Government lands,

(b) any land vested in or in the possession of—

(i) the State Government,

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

(iii) a railway administration, or

(iv) a local authority, or

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

31. Restriction or exclusion of Act by agreement.—Nothing in any contract between a landlord and a thika tenant made after the commencement of this Act shall take away or limit the rights of such tenant as provided for by 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.

32. Power to enter and inspect premises, to require information and to summon witnesses.—(1) For the purposes of any inquiry under this Act, the Controller and any person deciding an appeal under section 27, may,—

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

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

(c) by written order require any person to produce for his inspection such accounts, rent receipts, books or other documents relevant to the inquiry 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.(2) The Controller and any person deciding any appeal under section 27 shall, subject to any rules made under this Act and in so far as such powers are necessary for carrying out the provisions of this Act, have power to summon and enforce the attendance of witnesses, including the parties interested, and to compel the production of documents by the same means and, so far as may be, in the same manner as is provided in the case of a Court by the Code of Civil Procedure, 1908 (5 of 1908).

[32A. Thika Tenant may get supply of electricity to the holding and structure thereon without permission of the landlord.– (1) A thikatenant desiring to get supply of electricity from a licensee, as defined in clause (h) of section 2 of the Indian Electricity Act, 1910 (Act 9 of 1910), may, if the landlord, refuses or withholds his consent to such supply, apply to the Controller, setting out the scheme for such supply.(2) On receipt of such application the Controller may, after giving the landlord an opportunity of being heard, permit the thika tenant to get the supply in accordance with the scheme set out in the thika tenant’s application or in accordance with any modified scheme.(3) On such permission being given, the landlord shall be deemed, notwithstanding anything contained in any other law for the time being in force, to have given the requisite consent under sub-section (2) of section 12 of the Indian Electricity Act, 1910, and the licensee shall not be liable to the landlord for trespass for steps taken for supply of electricity according to the said permission.

[32B. Duty of thika tenant to provide essential amenities for Bharatias.—(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, it shall be the duty of every thika tenant to keep the structures let out to Bharatias, in a condition fit for habitation and to make such provisions for water-supply, conservancy and sanitary services as may be considered by the Con¬troller essential, regard being had to the conditions of water-supply, conservancy and sanitary services prevailing in the area in which the holding is situated and the number of Bharatias in possession of the structures.(2) Where the Controller is, on an application filed by a Bharatia, satisfied that any structure let out to the Bharatia is unfit for habitation or that essential provisions for water-supply, conservancy and sanitary services therein have not been made or if made, are not adequate, the Controller shall cause a notice to be served in the prescribed manner on the thika tenant requiring him to carry out within such time as may be specified in the notice, such works as, in his opinion, are necessary for making such structure fit or habitation or for securing such water-supply, conservancy and sanitary services as are essential.(3) If after the service of such notice the thika tenant fails to show cause or neglects to carry out such works within the specified time the Controller may, after giving the thika tenant an opportunity of being heard and after making such inquiries as he may consider necessary, make an order in writing specifying the works to be done and giving an estimate of costs of such works, and get such works executed by such agency as he may consider fit and thereafter all expenses incurred in executing the works together with interest thereon at the rate of six and a quarter per centum per annum from the date on which demand for expenses is made payment, may be recovered by the Controller from the thika tenant as a public demand.]

33. Repeal and saving.—On the expiry of the Calcutta Thika Tenancy Ordinance, 1948 (West Bengal Ord. XI of 1948), the provisions of section 8 of the Bengal General Clauses Act, 1899, shall apply as if it were an enactment then repealed by a West Bengal Act,

34. Rules.—(1) The State Government may, subject to the condition of previous publication, 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 following matters, namely :

(a) the manner of determination of compensation referred to in the proviso to section 4;

(b) the manner in which a landlord may apply to the Controller and the manner in which the Controller may make inquiries under section 5;

(c) the manner of obtaining permission of the Controller referred to in section 7;

(d) the form of notice and the manner of publication of such notice under sub-section (2) of section 9;

(e) the manner of payment or tender of rent by postal money order referred to in clause (ii) of sub-section (2) of section 13;

(f) the form of receipt and of the counterfoil referred to in sub-section (3) of section 15, and the particulars to be specified in such receipt and counterfoil; the particulars to be contained in applications for depositing rent under sub-section (1) of section 17 and sub-section (1) of section 18;

(h) the manner of sending the copy of the application to the landlord, and of withdrawal by the landlord of the amount in deposit, referred to in section 20 and the procedure for deducting from the amount in deposit the cost of transmission by post of the notice to the landlord, referred to in the proviso to section 20;

(i) the manner of making application for enhancement of rent under sub-section (1) of section 25;

(j) the procedure to be followed in inquiries under this Act, by the Controller, the Chief Judge of the Court of Small Causes of Calcutta, the District Judge and any person appointed under sub¬section (2) of section 27;

(k) the procedure for review of orders referred to in sub-section (5) of section 27;

(l) the procedure for summoning and enforcing the attendance of witnesses and compelling the production of documents referred to in sub-section (2) of section 32;

(m) the manner of service of notices issued under this Act where the mode of such service is not provided in this Act; and

(n) the charging or remitting of costs and fees and the fixing of a scale of costs and fees;

[(o) any other matter which is required to be or may be prescribed.]

The West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004.

2. Definitions.—In these rules, unless the context otherwise requires,-(a) the Act” means the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Bengal Act 32 of 2001);(b) “Form” means a Form appended to these rules;(c) “section” means a section of the Act.
3. Terms and conditions of occupation of land directly under the State under sub-section (1) of section 5.—(1) Every thika tenant occupying land under a landlord on the 18th day of January, 1982 or on any subsequent date of creation of tenancies of thika tenant, shall, after that date, occupy such land directly under the State on the following terms and conditions:(a) every thika tenant shall furnish to the Controller a return in Form A, separately for each holding or tenancy, showing the particulars of occupation of such land in total, within two hundred forty days from the date of commencement of the Act. The Controller may, on a written application from such thika tenant, extend the date of furnishing such return by a period not exceeding sixty days :Provided that the Controller may, on reasonable grounds, accept any return which is filed by a thika tenant after the expiry of the aforesaid time limit :
Provided further that the thika tenants who already have submitted return in Form A under the Kolkata ThikaTenancy (Acquisition and Regulation) Rules, 1982, shalt not be required to submit any further return in that respect and such returns shall be deemed to have been submitted validly under these rules ;
(b) every thika tenant shall pay, as required under sub-sections (2) and (6) of section 5 of the Act, to the Controller an annual revenue or rent in the manner and at the rate mentioned in rule 19.
(2) Every thika tenant, in addition to the revenue, shall pay to the Controller all cesses, taxes of municipality or other local bodies, or other impositions or service charges which are, or may hereafter be, imposed on the land with or without structures including easements, if any, or other existing or intended creation on such land being used by thika tenant.
4. Manner of application for obtaining prior permission and disposal of such application under sub-section (4) of section 5.– (1) An application, stating the circumstances and grounds for transfer of interests in the land inter se amongst the heirs existing co-shares-interest and spouses or to the prospective heirs, may be made to the Controller for obtaining his prior permission and the procedure laid down in rule 5, shall apply, mutatis mutandis, to the manner of making and disposal of such application :Provided that such application shall be made at least three months prior to the date of transfer to interests in the land, or within such further period as may be extended by the Controller subject to payment of rupees one hundred as late fee to be deposited in T.R. Form, for every month of delay or part thereof :Provided further that if no such prior permission has been or was obtained, in respect of any transfer of interest in land made on or after the 18th January, 1982, a penalty of a sum not exceeding the value of 1/4% of the market value of such land shall be deposited in T.R. Form, by the thika tenant to regularise such transfer as provided in sub-section (4) of section 5 of the Act.
(2) When the State Government needs land comprised in any thika tenancy for any public purpose, the Controller or any other officer authorised by him, may—(a) require the thika tenant to surrender his tenancy in writing the Controller after giving the thika tenant at least 30 days’ notice;(b) passed an order in writing for resumption of land comprised in such thika tenancy, after giving the thikatenant and the Bharatia, if any, an opportunity of being heard;(c) upon such resumption under clause (b), if the thika tenant or any Bharatia continues to occupy such land, evict the occupant and the Controller or any other officer authorised by him may, after giving 30 days’ notice, enter the land and the buildings or other erections, thereon, if any, and take vacant possession thereof.
(3) A thika tenant, whose interest in land comprised in any thika tenancy is resumed by the State, may claim compensation to be determined and calculated in the following manner :(a) the Controller of the area concerned shall, with the assistance of any technical officer under him, if any, first determine the market value of the land, with or without structures. If there is no such officer under him, the Land Acquisition Collector having jurisdiction over such area shall, upon a requisition in writing from the Controller in this behalf, lend the services of a technical officer under him to the Controller for determination of the market value of such land. While determining such market value, all relevant documents and circumstances shall be taken into consideration;(b) the amount shall be calculated at a rate not exceeding ten times the annual rent paid by Bharatias and shall be reduced by (apart from rents, taxes and other charges on account of management and collection at a rate of twenty per cent of the gross annual rent earned or expected) rent, taxes and revenues or other dues payable to the Central Government or the State Government;(c) the amount for the purpose of the proviso to sub-section (4) of section 6 shall be the market value determined under clause (a) or the amount calculated under clause (b), whichever is less.
(4) Where any structure comprised in any thika tenancy is occupied by the tenant himself, the amount of compensation payable shall be 10 times the expected annual rent if such structure had been let out, to be determined having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar premises in the locality, having regard also to the rent payable in respect of such premises and after giving the tenant a reasonable opportunity of being heard and shall be such as will appear to the Controller to be reasonable.
5. Manner and disposal of application to obtain no objection certificate for making any pucca construction, etc., under sub-section (5) of section 5.—(1) Every application for obtaining no objection certificate from the Controller for making. any pucca construction or changing the nature, character and dimension of an existing structure on the land, shall be in Form D in quadruplicate along with an application fee of Rs. 200/- in respect of such land measuring no more than 4 kathas in area and an additional fee of Rs. 100/- for one katha or fraction thereof in excess of 4 kathas. The application fees shall be deposited in T.R. Challan.
(2)(a) The application shall accompany two sets of site plan, in a scale not less than 1 : 200, showing the existing structure and boundaries and two sets of plan showing the floor plan, section, elevation etc., in accordance with the Kolkata Municipal Corporation Building Rules, and must be signed by the L.B.S. or the L.B.A.Existing structure in the site plan shall be shown and delineated in yellow colour, proposed structure in red colour, boundaries in the black dotted line, roads in green colour and service lines in red dotted lines.(b) All the particulars as required under the Kolkata Municipal Corporation Building Rules shall be furnished in such plans :
Provided that a copy of the finally sanctioned plan by the Kolkata Municipal Corporation, which is duly authenticated by the L.B.S. or the L.B.A. and after it has been sanctioned, shall be submitted forthwith to the Controller :
Provided further that a copy of the completion certificate certifying the completion of the pucca construction after it has been constructed shall be submitted forthwith to the Controller.
(c) The procedure for obtaining no objection certificate before making pucca construction shall, mutatis mutandis be followed in case of changing the nature, character and dimension of any existing structure on land comprised in thika tenancy.
(3) The same procedure shall apply and be followed in case of thika land situated within the jurisdiction of other Corporation, Municipality or any other local authority.
6. Manner of payment of fees and rates in case where the pucca construction has been made without no objection certificate and procedure for issue of provisional and final certificate under subsection (3) of section 6.—(1) An application for issue of provisional certificate under sub-section (3) of section 6, shall be in accordance with the procedure prescribed by sub-rule (2) of rule 5 and shall be accompanied by an application fee equivalent to ten times the fees mentioned in sub-rule (1) of rule 5 and is to be deposited in T.R. Challan along with such application, in addition to the fees prescribed in sub-rule (1) of rule 5.
(2) A construction plan duly sanctioned by the local authority shall be produced within three months from the date of issue of such provisional certificate failing which no final certificate shall be issued by the Controller :
Provided that the Controller may, for reasons to be recorded in writing and upon being satisfied that there is sufficient reason for delay, extend the time for production of such sanctioned plan by not more than one month.
7. Procedure in case of contravention of the provision of the Act or the rules.—(1) The Controller or any officer authorised in this behalf by the State Government or the Controller may, after giving 24 hours’ notice, enter upon the land or any part thereof to inspect or enquire into the condition of the land, or the structures or other erections thereon, if any, or inspect and enquire about any structure, building or erection thereon in the course of its construction ‘or making and for all other reasonable purposes.
(2) If there is any breach of, or non-compliance with, any of the terms and conditions as aforesaid or the provision of the Act or these rules, the thika tenant shall, in addition to any other penalty or disqualification to which he may be subject under the Act or the rules, forfeit his right of occupation of the land, with effect from the date on which an order in this behalf is made in writing by the Controller after giving him a reasonable opportunity of being heard.
(3) Upon such forfeiture, the occupant shall be treated as a trespasser and the Controller or any officer authorised by him may, after giving 3 days’ notice, enter the land, building or other erections therein, if any, and take vacant possession thereof.
8. Manner of application by a Bharatia for granting licence under sub-section (5) of section 6.—(1) ABharatia who stays at the structure forfeited under sub-section (2) of section 6, may submit an application on plain paper to the Controller for granting licence for his occupancy.
(2) The Controller, on receiving such application and after an enquiry in respect of the Bharatia’s claim on the area of the structure he occupies, condition of the room and verification of the present rate, may, after giving an opportunity of being heard to all concerned, issue licence in Form E on the following terms and conditions :(a) licence fees at the rate of Rs. 1.00 (one rupee) per square feet per month or the prevailing rate, whichever is higher, shall be chargeable in case of kuccha structure for domestic purpose;(b) licence fees at the rate of Rs, 2/- per square feet per month or the prevailing rate, whichever is higher, shall be chargeable in case of pucca structure for domestic purpose;(c) in case of use of such structure for business purposes, the licence fees shall be Rs. 4/- and Rs. 2/- respectively in pucca or kuccha structure, as the case may be;(d) initially the licence shall be issued for one year and may be renewed every year on due satisfaction of the Controller and upon realisation of licence fees in arrears, if any, together with 6.25% per annum interest thereon.
(3) The licence fees shall be deposited in T.R. Challan and the Bharatia shall also pay for the occupation and use of such structure apart from the service and other charges, taxes of the Corporation or Municipality or other local body, whose services are being availed of by him.(4) The licence granted to a Bharatia may be renewed upon an application made by him, at least one month before the expiry of the validity of the licence, to the Controller, on plain paper together with the proof of up-to-date deposit of licence fees :Provided that an application for renewal of such licence may be entertained after the prescribed period, if the applicant satisfies the Controller that he had sufficient cause for not making the application within such period.
9. Submission of return for the purpose of payment under subsection (1) of section 7.—For the purpose of payment of amount under sub-section (1) of section 7, every landlord shall submit to the Controller a return in Form C within two hundred and forty days from the date of commencement of the Act. The Controller may, on a written application from the landlord, extend the date for furnishing the return by a further period not exceeding sixty days :Provided that the Controller may, on reasonable grounds, accept any return which may be filed by the landlord after expiry of the prescribed time limit :
Provided further that the landlords who have already submitted the return in Form C under the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Bengal Act No. 37 of 1981), shall not be required to submit any further return and such return shall be deemed to have been validly submitted under these rules.
10. Payment of annuity under sub-section (2) of section 7.—(1) The annuity payable under sub-section (2) of section 7, shall not exceed the annual net income derived from the holding.(2) The annual net income derived from the holding shall, subject to the provisions of sub-section (4) of section 5, be determined in the following manner :(a) the gross income derived from the holding shall first be determined;(b) upon determination of the gross income, apart from the deductions from the gross income under sub-section (2) of section 7 of charges on account of management and collection at the rate of twenty per cent of the gross income, it shall be reduced by rent, taxes’ and revenue or other dues, if any, payable to the State Government or the Central Government;(c) the balance, if any, after deduction as aforesaid, shall be the annual net income for the purpose of sub-section (2) of section 7.
11. Payment of amount and determination of fair rent under subsection (6) of section 7.—(1) The amount payable under sub-section (6) of section 7, for resumption under sub-section (4) of section 6 of any structure comprised in any thika tenancy, shall be determined and calculated in the following manner :(a) the Controller of the area concerned shall, with the assistance of any technical officer under him, if any, first determine the market value of the structure. If there is no such officer under him, the Land Acquisition Collector having jurisdiction over such area shall, upon a requisition in writing from the Controller in this behalf, lend the services of a technical officer under him to the Controller for determination of the market value of the structure. While determining the market value, all relevant documents and circumstances shall be taken into consideration after giving due opportunity to all concerned;(b) thereafter, the amount shall be calculated at a rate not exceeding ten times the annual rent paid by the Bharatias to the tenant and shall be reduced by rent, taxes and revenue or other dues payable to the Central Government or the State Government apart from rent, taxes and other charges on account of management and collection at a rate of twenty per cent of the gross annual rent;(c) the amount for the purpose of sub-section (6) of section 7 shall be the market value determined under clause (a) or the amount calculated under clause (b), whichever is less.(2) Where any structure is occupied by the tenant himself, the fair rent determined by the Controller under sub-section (6) of section 7 shall be deemed to be the annual rent paid by Bharatias. The fair rent shall, however, be determined having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the rent payable in respect of such premises and after giving the tenant a reasonable opportunity of being heard, and shall be such as will appear to the Controller to be reasonable.
12. Appointment under sub-section (7) of section 7.—Where there are more than one landlord in respect of athika tenancy vested under section 4, the amount payable to them under sub-section (1) of section 7 or annuity payable to them under sub-section (2) of section 7 shall be apportioned among them by the Controller in the following manner :(a) where the landlords agree in writing as to their respective shares, the Controller shall apportion the amount among them according to such agreed share;(b) where the landlords do not agree in writing as to their respective shares, the Controller shall, having regard to the documents, affidavits and other evidence, if any, produced before him, make such apportionment as will appear to him to be reasonable;(c) where the Controller fails to make any apportionment under clause (b), he shall withhold the apportionment until the dispute as regards the shares of the landlord is decided by a court having jurisdiction.
13. Manner of disposal of dispute regarding payment of rent by the thika tenant or by a Bharatia or any case of eviction of Bharatia under sub-section (3) of section 8.—(1) On receiving,(a) any application in Form B from a thika tenant or a Bharatia or any other person; or(b) any information, in writing, in regard to any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and, if necessary, by conducting a spot inquiry.(2) Any dispute, relating to eviction of a Bharatia, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and after taking into account the provisions laid down in Chapter III of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997), as subsequently amended and the rules framed thereunder.
14. Manner of eviction or otherwise penalisation of a thika tenant in default of payment of rent to the State Government under subsection (4) of section 8.—If a thika tenant has defaulted in paying rent, the Controller may, after giving such thika tenant an opportunity of being heard, order him to pay the rent with interest and with or without penalty, within such time as the Controller may decide and in default, a proceeding may be drawn in this respect against such thika tenant and after giving him an opportunity of being heard and, if necessary, after an inquiry, the structure shall be vested in the State and the thika tenant may be declared as trespasser and be evicted accordingly by issuing a notice for such eviction directing compliance within a specified date. After expiry of such date, the Controller may evict the thika tenant from such premises and if necessary, may require the help of the police authority for the purpose.
15. Rate of rent payable by a Bharatia to a thika tenant or to the Controller under sub-section (7) of section 8 and sub-section (8) of section 8.—(1) A Bharatia shall be liable to pay rent under sub-section (7) of section 8 to the thika tenant at the following rate against issue of valid and printed receipt :(a) Rs. 1.00 (one rupee) per square feet per month, in case of kuccha structure for domestic purposes or the present rate at which the Bharatia is paying rent to the thika tenant, whichever is higher;(b) Rs. 2/- per square feet per month, in case of pucca structure for domestic purposes or the present rate, whichever is higher;(c) in case the structure is used for business purposes, the rate of rent shall be Rs. 2/- or Rs. 4/- in kuccha or pucca structure, as the case may be.(2) In case where there is no thika tenant, a Bharatia shall be liable to deposit rent under sub-section (8) of section 8 at the rate as provided in rule 8 of these rules as if such Bharatia has obtained a licence under sub-section (5) of section 6 and he will be liable to pay rent as a licensee.
16. Continuation of tenancies of Bharatias under a thika tenant and the manner of making application under sub-section (2) of section 10 and other matters incidental thereto under sub-sections (3), (4) and (5) of section 10.—(1) If a thika tenant fails to restitute a Bharatia in similar accommodation in the reconstructed structure as provided in sub-section (2) of section 10, or if a dispute of similar nature exists between thika tenant and a Bharatia, the Bharatia may make an application stating the material facts, events and information with supporting documents in Form B, with as many copies as there are parties on whom notices are to be served.(2) On receiving such application, the Controller shall dispose of the matter in accordance with the provisions of sub-sections (3), (4) and (5) of section 10 after taking into account the provisions laid down in Chapter V of the West Bengal Premises Tenancy Act, 1997 (West Bengal Act No. 37 of 1997) as subsequently amended and the rules framed thereunder.(3) Any order of the Controller under sub-rule (2) shall be deemed to be an order within the meaning of clause (t) of section 11 and shall, without prejudice to the provisions of rule 27, be executed accordingly.
17. Manner of review under sub-section (2) of section 12.—An order passed by the West Bengal Land Reforms and Tenancy Tribunal and against which no appeal has been preferred, may be reviewed by it on an application made by any party within 30 days from the date of such order, in the manner prescribed in the Code of Civil Procedure, 1908, on the ground of discovery of new matter or evidence or on the ground of error apparent on the face of record, after giving the concerned parties an opportunity of being heard :Provided that the time taken to obtain certified copy of the order sought to be reviewed, shall be excluded for the purpose of computing the above mentioned period of limitation prescribed for making an application for review.
18. Manner of maintenance, preparation and revision of record of-rights under section 23.—(1) Subject to the provision of the Act and these rules, the provisions of the West Bengal Land Reforms Act, 1955 (West Bengal Act No. 10 of 1956), as amended from time to time, relating to the maintenance, preparation and revision of record-of-rights shall apply, mutatis mutandis, for the purposes of this Act.(2) On receiving any application or otherwise, the Controller may, after giving an opportunity of being heard to all concerned and if necessary, by conducting an on-the-spot enquiry, make a change in the record-of rights on account of mutation or substitution of names as a result of transfer under sub-section (4) of section 5 or inheritance or partition of the holdings or consolidation or forfeiture of interests of thika tenant or resumption or settlement under section 25 or otherwise.(3) A fee for Rs. 10/- (Rupees ten) shall be payable along with every application for change in the record-of-rights.(4) Such change in the record-of-rights shall be informed by the person in whose favour the change has been effected to the local authority and the Collector of the area for necessary correction in their respective records.(5) The records maintained in the office of the Collector of local authority, if any may be consulted for the maintenance, preparation and revision of record-of-rights and a copy of such records may be made available to an interested party, on requisition in this respect and upon payment of such requisite fee as prescribed under rule 23.
19. Rate of monthly revenue payable by a thika tenant or tenant of other lands holding directly under State Government under subsection (1) of section 24 and rate of enhancement of the monthly revenue under sub-section (2) of section 24.—(1) The rate of revenue payable to the State Government by a thika tenant or tenant of other lands holding directly under the State under sub-section (1) of section 24 shall be as follows :(a) rent for kuccha structure used for domestic purpose, shall be payable at the rate of Rs. 10.00 (Rupees ten) per katha per month; where the prevailing rate is higher it will continue;(b) rent for kuccha structure used for business purpose including commerce and industry, shall be payable at the rate of Rs. 20.00 (Rupees twenty) per katha per month; where the prevailing rate is higher it will continue :Provided that where the kuccha structures in a single holding are being used for both domestic and business purposes, respective rates shall be applicable for respective use for the area of such structure, for domestic or business purpose, as the case may be;(c) rent of pucca, and pucca-multistoried, structure used for domestic purposes, shall be payable at the rate of Rs. 15.00 (Rupees fifteen) per katha per month for and upto the first two stories and an additional fee Rs. 15.00 (Rupees fifteen) per katha per month shall be payable for floor area of each subsequent and additional floor;(d) rent for pucca, and pucca-multistoried, structures used for business purpose including commerce and industry, shall be payable at the rate of Rs. 30.00 (Rupees thirty) per katha per month for and upto the first two stories and an additional fee of Rs. 100.00 (Rupees one hundred) per katha per month shall be payable for floor area of each subsequent and additional floor :Provided that where the pucca and pucca multi-storied, structures in a single holding are being used for both domestic and business purposes, respective rates shall be applicable proportionately for respective use of the area of such structure, for domestic or business purpose, as the case may be :Provided further that the rent shall be payable monthly or quarterly or half-yearly or annually through T.R.Challan and the arrear of revenue, if any, shall bear simple interest at the rate of 6.25 per cent per annum from the date of which the revenue falls due till the date of its payment :Provided also that the arrear of revenue, if any, shall be recoverable as a Public Demand.
20. Terms, conditions and manner of making use of or settling with any person or authority, any land or structure under section 25.—Any land or structure vested in, or resumed by, the State under the Act for public purpose, may be made use of, or settled with any person or authority for sub-serving the common good on the terms and conditions and in the manner laid down in the West Bengal Land and Land Reforms Manual, 1991, as amended from time to time and the provisions of which shall apply mutatis mutandis, to the use or settlement of such land or structure under section 25 of the Act.
21. Miscellaneous and supplementary.—Every notice required to be served under the Act or these rules shall be served by registered post with acknowledgement due or where the procedure as aforesaid cannot be effected or is not feasible, in such manner as is provided for service of a process of revenue of a civil court.
22. Coming into force of rents, revenues and fees prescribed in these rules.—Rents, revenues and fees prescribed in these rules shall be effective from the date of notification of the Act in terms of sub-section (3) of section 123. Fees for making applications and for copies.—(1) A fee of rupees two shall be payable for every application made under the Act or these rules.(2) Such application may be presented by the applicant himself or by his agent, duly authorised by him in writing. The applicant and the opposite party may be represented by agent duly authorised in writing :Provided that if the person representing a party is a legal practitioner and holds a Vakalatnama from the party on his behalf, on separate authorisation shall be necessary. Such Vakalatnama may, however, be cancelled on a prayer of the party.(3) Fees for copies shall be payable as follows(a) the fee chargeable for a certified copy of any application or order of any proceeding shall be rupees five :
Provided that when an application is made at the same time for certified copies of the application, written statement, order and document of the same proceedings or case, there shall be charged a consolidated fee of rupees ten for all of them;(b) the fee chargeable for a certified copy of notes of evidence or order or judgment or written statement or document, shall be rupees five plus rupees two for a folio of ninety words :Provided that when an application is made at the same time for certified copy of at least two or more items of notes of evidence, order, judgment, written statement and document of the same case, a consolidated fee of rupees ten plus rupees two for a folio of ninety words shall be charged :Provided further that if the copy exceeds four folios, an additional fee of rupee one for each extra folio shall be payable;(c) if an application is made for obtaining certified copy of records and documents maintained in the office of the Collector or local authority in relation to maintenance, preparation and revision of record-of-rights, the fee for such certified copy shall be five plus rupees two for a folio of ninety words shall be charged :
Provided that if the copy exceeds five folios, extra charge of rupee one for each extra folio shall be payable;(d) if the Head of any Department or Directorate of the Central or the State Government applies to the Controller or to the Appellate Authority for a certified copy of any final order of the Controller or of the Appellate Authority, as the case may be, for any public purpose, a certified copy of such order shall be granted to such applicant on plain paper only, free of cost.(4) In the matter of granting copies of records written in languages other than in 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 at Calcutta shall be followed with modifications as may be necessary.(5) While applying for copies of maps or plans, the applicant shall file with the application requisite fees for application for certified copies and necessary tracing papers for such copies. The cost of copies of such maps or plans shall be assessed by the Controller in such manner as he may think fit.
24. Searching and other fees.—(1) A searching fee of rupees five shall be payable for every application for each of the following items :(a) for information whether a record is available in the record-room or not :Provided that it shall be necessary to make a separate application with separate fee for any information required in connection with every separate cause or separate matter;(b) for inspection where the record is deposited in the record-room :Provided that such fee shall also be charged for inspection of records of pending case by advocates and legal practitioners. (2) A process fee at the rate of rupees five in respect of every party on whom a notice is to be served under the Act shall be paid.
25. Fee for affidavit.—An affidavit sworn in before the Controller shall be charged with a fee equivalent to the stamp-duty payable under article 4 of Schedule 1A to the Indian Stamp Act, 1899 (2 of 1899).
26. Mode of payment of fees.—Any fee payable under these rules shall, unless otherwise expressly provided in these rules, be paid in court-fee stamps.

27. Assistance of the Police, District Administration and local authority.—(1) For the purpose of enforcing delivery of possession of any land or structure or for evicting any person in actual occupation of any land or structure as may be necessary under the Act, the Controller may send a written requisition to the Officer-in-Charge of the local police station or to any police officer superior to such Officer-in-Charge and on receipt of such written requisition, the Officer-in-Charge or the police officer as aforesaid shall render all necessary and lawful assistance for enforcing delivery of possession of such land or structure or for evicting any person in actual occupation of such land or structure.(2) If there is any law and order problem or any technical or documentary problem, the Controller may seek assistance, in writing, from the Collector, the District Administration and any local authority and on receiving such written communication, the Collector, the District Administration and the local authority shall render necessary and lawful assistance as required by the Controller.

Form “A”[See clause (a) of sub-rule (1) of rule 3]

Form of Return for Occupation of land to be furnished to the Controller

1. (a) Name(s) of thika tenant(s) :
(b) Name(s) of father/husband :
2. Name(s) of landlords(s) with address(es) :
3. Description of the land under tenancy-
(a) Address with municipal or other holding number or plot no. with name of mouza J.L. No., P.S. Etc. :
(b) Area in cottahs and in square metres :
(c) butted and bounded by. on the North
on the East
on the South
on the West
4. Particulars of the tenancy-
(a) date of commencement (certified/xerox/attested copies of documentary evidence to be enclosed. :
(b) Amount if periodical rent (state the period). If receipts were granted, a xerox attested copy of the receipt for rent last paid to be enclosed :
5. Description of the structure on the land-
(a) Whether the structures were raised by the thika tenant, if so, the date and cost of construction thereof. :
(b) Whether any part of structures was raise or improved by CDMA or any other authority if so, details. :
© Details of structures :
(d) Measurements :
6. Particulars of each of the Bhartias
(a) Name :
(b) Name of father/husband :
©. (c) Area under occupation in square metres or square feet or both. :
(d) Amount of rent (true copy of counterfoil of last rent receipts to be enclosed). :
7. Whether the <i>thika</i> tenant holds any other land/land with building in Kolkata or Howrah or other municipal areas.
State Yes/No.
If yes, state the following particulars—
(a) Address with municipal holding number etc. :
(b) Held as owner/thika tenant/otherwise :
(c) Area (in cottahs and/or square metres) :
8. Particulars of suits/legal proceedings, if any, in respect of thika tenancy :
9. Remarks :
10. List of documents enclosed
(vide items 4, 6 etc.)
(a) :
(b) :
(c) :
(d) :

I hereby declare that the particulars furnished in this declaration are correct, complete and true to the best of my knowledge and belief and no part of it is wrong or false.Dated :
Address:Signature or left thumb impression
of the thinka tenant.N.B. : Separate returns should be furnished for each thika tenancy held by the person submitting the return, with a copy of such return to be submitted by such return to be submitted by such person to every other Controller within whose jurisdiction such person holds any other land as thika tenant.Form “B”[See sub-rule (1) of rule 13 / sub-rule (1) of rule 16]Application to the Controller for deciding disputeToSir,I/We beg to state that I/We have been Bharatia/s in respect of the building/structure described in the schedule hereunder in municipal holding No…………………..within Ward No……………………………….. of the Corporation/Municipality of being premises No………………….under thethikatenant/Shri/Shrimati………………………….residing at from the………………..day of the month of………………of the year ………………..I/We have been paying monthly rent of Rs………………. for the said building/structure to the saidthika tenant. Receipt/s was/were not granted to me for rents paid by me/us. (If there were other terms and conditions, state the same here.)2. (Then State whether you have been unlawfully evicted or the building/structure has ceased to exist. Give details with dates.)3. (If there is any dispute under section 10(2), give the facts with dates and all particulars here.)4. (Here state the relief prayed for.)Schedule(Give detailed description of the land, building/structure with area of land and measurement of building/structure).I/We hereby declare that to the best of my/our knowledge and belief the above information given by me/us is correct,, complete and true and no part of it is wrong or false.Signature or left thumb impression
of the Bharatia

Form “C”(See rule 9)Form of Return to be submitted to the State Government

1. (a) Name of landlord :
(b) Name of father/husband :
(c) Address(es) :
(d) Name and addresses of other persons, if any, having interest in such lands and the nature of such interest :
2. Particulars of land/lands under thika tenancy/other tenancy
(a) Postal address(es) and municipal/other holding number(s) to identify the land(s) :
(b) Total area in cottahs or square metres or both :
(c) Total No. of thika tenants/ other tenants :
(d) Total rent realised per month/year :
(e) Any other income from the land :
3. Particulars of each of the thika tenant(s)/other tenant(s)—
(a) Name :
(b) Postal address of the thika tenant /other tenant :
(c) Holding No. in occupation of thika tenant/other tenant :
(d) Area in occupation :
(e) Date of commencement of tenancy (enclose certified/attested xerox copies of documentary :
(f) Rate of rent per month/year (enclose true copy of counterfoil of last rent receipt, if receipts were (granted) :
(g) Particulars of suits/legal proceedings, if any, in respect of the land :
4. Remarks :
5. List of documents enclosed-
(a) certified/xerox/attested of title document proving the title to the land :
(a) :
(b) :
(c) :

I hereby declare that above information given by me is correct, complete and true to the best of my knowledge and belief and no part of it is wrong or false.Dated, theSignature or left thumb impression
of the landlord

N.B.: (i) Information against item 2 should furnished for each holding separately, if there are thika tenancies under the landlord in different holdings in a Corporation/Municipality.(ii) Area, rent, etc. shown in item 2 should tally with the total area, etc. shown in item 3.(iii) The return should be submitted in duplicate, to the office of the Controller, Kolkata or Howrah or other Corporation or Municipality as the case may be.(iv) If a landlord has thika tenancies on his lands in Howrah and Kolkata and other Corporation/Municipality separate returns are to be submitted in the Offices of the Controller’s of Howrah and Kolkata or other Corporation/Municipality.(v) Attach extra sheets, if necessary to furnish particulars against items 2 and 3. The information should be given for each thika tenant (item 3) separately but in the same return.

Form “D”[See sub-rule (1) of rule 5 ]Application for permission to construct pucca structure/building or to change the nature, character and dimension of a structure, on the land comprised in thika tenancies.

1. (a) Name and address of the thika/tenant/tenants :
(b) Description of land— :
(i) Premises No. and Ward :
(ii) portion/entire :
(iii) area :
(c) Type and overall measurement of the existing structure :
(d) Type and overall measurement of the proposed building/ construction :
(e) Number of floor and flat with each floor space :
(f) Purpose and use of the existing structure :
(g) Purpose of the proposed building :
(h) Total no. of Bharatias in the existing structure :
(i) (i) Total area (floor space in SFT) occupied by those Bharatias :
(j) (j) Number of bath and privies in the existing structure :
(k) Number of bath and water closets in the proposed building :
(l) What proportion of area (floor space in SFT) has been marked out in the proposed building for the use of the Bharatias :
(m) Whether applicant resides in the existing structure :
(n) Approximate time period to be taken for completion of construction :
(o) Form “A” Receipt No. :
(p) Xerox copies of Ground rent deposit since 18.01.1982 :
(q) Declaration of Court cases litigation, if any, one the land/premises :
(r) Xerox copy of last paid K.M.C. Tax Bills :
(s) Approximate cost of construction :
(t) The sources of fund :
(u) Other information, if any :

Signature of thika tenant/tenantsForm “E”[See sub-rule (2) of rule 8Licence for the occupation of structure for faitedNo……………..
Dated…………..The licence under sub-section (5) of section 6 of the West Bengal thika Tenancy (Acquisition and Regulation) Act, 2001 (West Bengal Act 32 of 2001), read with sub-rule (2) of rule 10 of the West Bengal thika Tenancy (Acquisition and Regulation) Rules, 2004, is hereby granted to Shri/Shrimati……………………S/D//H/W/O……………………..(name with full address and other details) for the occupation of ……………… (details of structure) in the premises…………….subject to the provisions particularly sub-section (4) of section 5 of the said Act and the rules made thereunder and such licence shall expire on………………..(2) The licence fees are fixed at Rs. …………………(in words)………………………………………………………. per month payable monthly/quarterly/half-yearly failing which an interest @ 6.25% will be charged for non-payment within that year.(3) The service and other charges or taxes of the Corporation/ Municipality or other authorities whose services are being availed of by the licensee, shall be payable for the occupation/use of such structure.Controller
thika TenancyNo………………….
Dated………………….Copy forwarded for information and necessary action to :-(1) Sri/Srimati…………….(Name of the Licensee)(2) Deputy Secretary, Land and Land Reforms Department, Government of West Bengal, Writers’ Buildings, Kolkata-700 001.(3) The Commissioner/Executive Officer…………..Corporation/Municipality.Controller
thika TennacyReceived the copy of licence abiding by the terms and conditions laid down herein and to be laid down from time to time by the State Government.Full Signature of theBharatia
Address :………………….By order of the Governor,
Sd/- Sukumar Das
Secy. to the Govt. of West Bengal

Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981

Law Library
CHAPTER 1 Preliminary
CHAPTER 2 Acquisition of lands comprised in thika tenancies and other lands and the rights of landlords in such lands
CHAPTER 3 Incidents of tenancies of Bharatias in structures
CHAPTER 4 Miscellaneous and supplemental provisions
The West Bengal Thika Tenancy[Acquisition and Regulation ] Rules 2004
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CALCUTTA  THIKA TENANCY (ACQUISITION AND REGULATION) ACT, 1981
37 of 1981 
2nd November, 1981

An Act to provide for the acquisition of interests of landlords in respect of lands comprised in thika tenancies and certain other tenancies and other lands in Calcutta and Howrah 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 and other lands in Calcutta and Howrah for development and equitable utilization of such lands with a view to subserving the common good; It is hereby enacted as follows:-

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

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CHAPTER 1 Preliminary
Section 1 Short title, extent and commencement
(1) This Act may be called the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981.
(2) It extends to Calcutta as defined in 44. Words, figures and brackets subs. for the words, figures and brackets “clause (11) of section 5 of Calcutta Municipal Act, 1951” by W.B. Act 41 of 1984 (w.e.f. 4.1.1984). [clause (9) of section 2 of the Calcutta Municipal Corporation Act, 1980] and 55. Words, figures and brackets subs. for the words “the municipality of Howrah” by W.B. Act 41 of 1984 (w.e.f. 10.1.1984). [to Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980:]
66. Proviso ins. by W.B. Act 41 of 1984 (w.e.f. 10.1.1983). Provided that the provisions of this Act shall not extend to the whole or 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:
6a6a. Proviso ins. by W.B. Act 41 of 1984 (w.e.f. 4.1.1984). Provided further that the provisions of this Act shall not extend to the whole or any area included within the limits of Calcutta, which, immediately before the 4th day of January, 1984, being the date of coming into force of the Calcutta 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.

Section 2 Declaration as to the policy of the State
It is hereby declared that this Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of article 39 of the Constitution of India.

Section 3 Definitions
..In this Act, unless there is anything repugnant in the subject or context,
77. Cause (1) subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous clause (1) was as under: (1) “Bharatia” means any person by whom, or on whose account, rent is payable for any structure or part thereof, owned by a thika tenant or tenant of other lands in his holding or by a landlord in a bustee on his khas land.
88. Clause (1A), ins. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). (1A) “bustee” means an area containing land with a collection of huts used or intended to be used for human habitation or for any business purpose, and includes any tank in or appurtenant to and in common use of the occupiers of such bustee, whether or not the same person is the owner or the landlord in respect of such tank;
(2) “Controller” means an officer of officers appointed under section 10;
99. Clauses (3) and (4) subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous clauses (3) and (4) were as under: ‘(3) ,”holding” means a parcel or parcels of land occupied by any person as a thika tenant under one lease or one set of conditions where such tenant has been occupying the land from or before the commencement of this Act; (4) “landlord” means any corporation, 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 of any land comprised in a thika tenancy and includes any corporation, institution or person having any superior interest (3) “holding” means a parcel or parcel of land occupied by a thika tenant or tenant of other lands under one set of conditions, and includes a bustee owned by a landlord on his khas land along with any tank included in such bustee;
9a9a. Cluses (3A), (3B), (5A) and (7A) ins. by W.B. Act 21 of 1993. (3A) “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 of reinforced concrete;
9a9a. Cluses (3A), (3B), (5A) and (7A) ins. by W.B. Act 21 of 1993. (3B) “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;
99. Clauses (3) and (4) subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous clauses (3) and (4) were as under: ‘(3) ,”holding” means a parcel or parcels of land occupied by any person as a thika tenant under one lease or one set of conditions where such tenant has been occupying the land from or before the commencement of this Act; (4) “landlord” means any corporation, 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 of any land comprised in a thika tenancy and includes any corporation, institution or person having any superior interest (4) “landlord” means any corporation, charitable or religious institution or person who, for the time 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 tenant of other lands or in a khatal, tank or hut owned by him in a bustee on his khas land, and includes any corporation, institution or person having superior interest in such thika tenancy;
(5) “notification” means a notification published in the Official Gazette;
9a9a. Cluses (3A), (3B), (5A) and (7A) ins. by W.B. Act 21 of 1993. (5A) “other lands” includes any vacant land or tank;
(6) “prescribed” means prescribed by rules made under this Act;
(7) “pucca structure” means any str ucture constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature;
9a9a. Cluses (3A), (3B), (5A) and (7A) ins. by W.B. Act 21 of 1993. (7A) “slum area” means the area declared as such by the State Government under section 3 of the West Bergal Slum Areas (Improvement and Clearance) Act, 1972, or section 4 of the Calcutta Slum Clearance and Rehabilitation of Slum-dwellers Act, 1958;
9b9b. Clause (7B) ins. by Act 21 of 1993. (7B) “tenant of other lands” means any person who occupies other lands under another person, whether under a written lease or otherwise, and is or but for a special contract would be liable to pay rent at a monthly or periodical rate for occupation of such other lands, and includes the succes- sor-in-interest of such person;
(8) “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 at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person.

Section 4 Act to override other laws
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom, usage or agreement or in any decree or order of a court, tribunal or other authority.
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CHAPTER 2 Acquisition of lands comprised in thika tenancies and other lands and the rights of landlords in such lands
Section 5 Lands comprised in thika tenancies, khas lands and other lands, etc. to vest in the State
1010. Sec. 5 subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The original Sec. 5 was as under: “5. Lands comprised in thika tenancies and other lands, etc. and right, title and interest of landlords in such lands to vest in the State. With effect from the date of commencement of this Act, lands comprised in thika tenancies and other lands held under any person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies for being used or occupies as Khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and Khatals attached to or used in connection with such thika tenancies, and Khatals and the right, title and interest of landlords in such lands shall vest in the State free from all Incumbrances: Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a Khatal in Khas lands of the landlords shall not be affected in any way by such vesting.”. With effect from the date of commencement of this Act, the following lands along with the interest of landlords therein shall vest in the State, free from all incumbrances, namely:
(a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains;
(b) lands comprised in and appurtenant to bustees on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains;
(c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains;
(d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:
Provided that such vesting shall not affect in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias and occupiers of land coming within the purview of clauses (c) and (d).

Section 6 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 and the provisions of this Act, every thika tenant and any tenant, in respect of other lands which vest under section 5, 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.
1111. Sub-see. (2) subs. by W.B, Act 21 of 1993 (w.e.f. 18.1.1982). The previous sub-sec. (2) was as under: “(2) Subject to the provisions of section 26 of this Act, every thika and other tenants occupying land directly under the State under sub-section (1) shall be liable to pay to the State an amount of revenue determined in accordance with the provisions of the West Bengal Land Holding Revenue Act, 1979 and for this purpose such tenant shall be deemed to be a raiyat under that Act: Provided that the revenue payable by the tenant shall not be less than what he was paying to the landlord before the coming into force of this Act.” (2) Every thika tenant and every tenant of other lands 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.
1212. Sub-sec. (3) subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous sub-sec. (3) was as under: “(3) The rights of a thika tenant and other tenants occupying lands directly under the State under sub-section (1) shall, subject to the provisions of this Act, be heritable and shall not be transferable. No such tenant shall, without obtaining prior approval in writing from such authority as may be prescribed and without submitting a comprehensive development plan or improvement scheme for the holding, construct pucca structure. Any such scheme shall provide for alternative accommodation for Bharatias in accordance with sub-section (2) of section 11: Provided that a thika tenant or a tenant in respect of other lands which vest under section 5 may construct a pucca structure for essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and similar other purposes.”. (3) The interests of thika tenants and tenants of other lands 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-sharers- interest or to the prospective heirs, subject to the provisions of sub-section (1) of section 7.
1313. Sub-sec. (4) ins. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). (4) The thika tenants and tenants of other lands holding directly under the State under sub-section (1) shall be entitled to construct pucca structures in accordance with the building plans sanctioned under the Calcutta Municipal Corporation Act, 1980, and the rules made thereunder, or the Howrah Municipal Corporation Act, 1980, and the rules made thereunder, according as the land may be situated within Calcutta as defined in clause (9) of section 2 of the Calcutta Municipal Corporation Act, 1980, or Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 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, sewerge, lighting and similar other purposes.

Section 7 Thika tenant not to let out land
1414. Sub-sees. (1) and (2) subs. by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous sub-sees. (1) and (2) were as under: “(1) Any person occupying and directly under the State within the meaning of sub-section (1) of section 6 shall not have any right title or interest in the land comprised in the holding and shall not let out the whole or any part of the land for any period: Provided that nothing in this sub-section shall prevent any such person from letting out the whole or any part of the structure standing on the land as long as his thika tenancy subsists. (2) Any person occupying land directly under the State within the meaning of sub-section (1) of section 6 shall not contravene any provision of this Act. Any transaction, contract or agreement (oral or written) in contravention of the provisions of this Act shall be void and upon such contravention the thika tenancy shall stand determined and the structure standing thereon shall vest in the State free from all incumbrances from such date as may be specified by the Controller in his order made on his own motion or on an application: Provided that no such order shall be made by the Controller, unless upon hearing the parties affected he comes to a finding that any provision of the Act has been violated.” (1) The thika tenants and tenants of other lands holding directly under the State shall be entitled to
(2) Any transfer or agreement for transfer, whether oral or in writing, in contravention of the provisions of sub-section (3) of section 6 or subsection (1) of this section shall be void and be of no effect whatsoever and the land and structure shall stand vested in the State in accordance with the prescribed procedure.
(3) 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 thik tenancy with or without structures, if any, and take possession of the land:
Provided that before taking possession of the land the thika tenants in actual occupation of the structure or part thereof and bharatias shall be
provided with alternative accommodation in the neighbourhood of such land as far as practicable.
Explanation For the purpose of this sub-section “public purpose” shall include planned development of any area or holding and implementation of any scheme for improvement thereof.

Section 8 Payment of compensation
(1) The State shall for the vesting of any land under section 5, 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.
(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 5, pay to such landlord 1515. Words subs, for the words “an annuity for such number of years” by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). [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] as 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 by determined by the Controller in the prescribed manner. In determining 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 purpose 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 the following, among others:
(i) actual user of income of the land,
(ii) mode of user,
(iii) 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 13.
(5) The State shall, for vesting under sub-section (2), or resumption under sub-section (3), of section 7 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 a rate not exceeding ten times the annual rent paid by Bharatias to the tenant reduced by, apart from other sums as may be prescribed, rent, taxes and other charges on account of management and collection at a rate of twenty per centum of the gross annual rent. 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 annual rent paid by Bharatias.
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CHAPTER 3 Incidents of tenancies of Bharatias in structures
1616. The ‘heading’ subs, by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The previous ‘heading’ was as under: “Incidents of tenancies of Bharatias in premises on lands comprised in thika tenancies.”
Section 9 Thika tenants and Bharatias to be governed by West Bengal Act 12 of 1956
Section 10 Controller
The State Government may, by notification, appoint one or more officers as Controller to perform all the functions of a Controller under this Act in respect of any area or areas to be specified in the notification.
Section 11 Tenancy of Bharatia to continue
1818. Sec. 11 subs, by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The original sec. 11 was as under: “11. Bharatia to continue as monthly tenant(1) Notwithstanding anything contained in the West Bengal Premises Tenancy Act, 1956, or in any other law for the time being in force, a Bharatia under a thica tenant shall continue to be a monthly tenant unless lawfully evicted and the tenancy of a Bharatia shall not be extinguished because of subsequent not-existence of the structure or building or part thereof, which the Bharatia previously occupied under the thika tenant. (2) If any building or structure is built or rebuilt on the same site within the period of twelve years next after the date on which the old building or structure ceased to exist, the Bharatia shall be put into possession of the whole or a part of the new building or structure in proportion to the area held by him in the old building or structure and on such terms and conditions in force immediately before the date of cessation of the old building or structure. (3) Any dispute in this regard shall be decided by the Controller on an application made to him in the prescribed manner, after giving the parties opportunity of being heard and the order of the Controller shall be executed in the manner prescribed.”
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the tenancy of a Bharatia as a tenant under a thika tenant shall not be extinguished because of subsequent non-existence of the structure or a part thereof which the Bharatia previously occupied under the thika tenant.
(2) If any structure or part thereof which was in the occupation of a Bharatia as a tenant under a thika tenant ceases to exist except under an order of a court under section 18A of the West Bengal Premises Tenancy Act, 1956, the thika tenant shall reconstruct similar accommodation and restore possession to the Bharatia and put the Bharatia in possession of such accommodation within one month of such structure ceasing to exist, failing which the Bharatia may make an application to the Controller in the prescribed manner.
(3) On an application made by the Bharatia under sub-section (2), the Controller shall, after giving the thika tenant and the Bharatia an opportunity of being heard, direct the thika tenant to reconstruct similar accommodation and restore possession to the Bharatia within such time as Controller may decide.
(4) If the thika tenant fails to comply with the orders of the Controller under sub-section (3), the Bharatia shall be entitled to reconstruct the structure and, for that purpose, may make an application to the Controller who shall, after giving the Bharatia and the thika tenant an opportunity of being heard, approve such cost of reconstruction as may appear to him to be fair and reasonable and, after such reconstruction, allow adjustment of the cost of such reconstruction from the rent payable by the Bharatia in such monthly instalments as the Controller may think fit.
(5) If there is any unlawful resistance by or on behalf of the thika tenant to the reconstruction by the Bharatia under sub-section (4), the Officer-in-charge of the local police station shall, on receipt of any requisition of the Controller in writing in this behalf, render all necessary and lawful assistance to the Bharatia.
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CHAPTER 4 Miscellaneous and supplemental provisions
Section 12 Powers of Controller
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, in respect of the following matters, namely:
(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.

Section 13 Appeal
(1) Any person aggrieved by an order of the Controller may, within thirty days from the date of the order, prefer an appeal in writing
(a) in respect of any holding within the jurisdiction of the Court of Small Causes of Calcutta, to the Chief Judge of the Court of Small Causes of Calcutta; and
(b) in respect of any holding elsewhere, to the District Judge within whose jurisdiction the holding is situate.
(2) The Chief Judge of the Court of Small Causes of Calcutta or the District Judge, as the case may be, before whom an appeal is preferred under sub-section (1) may either himself hear any such appeal or transfer such appeal to a Judge, Court of Small Causes of Calcutta or to an Additional District Judge, as the case may be, and the Judge to whom such appeal is so transferred shall hear and dispose of such appeal.
(3) The Chief Judge of the Court of Small Causes of Calcutta or the District Judge, as the case may be, either on his own motion or on the application of any party may withdraw any appeal pending before any Judge to his own file for hearing and disposal or transfer it to any other Judge of the Court of Small Causes of Calcutta or any Additional District Judge, as the case may be, for hearing and disposal.
(4) Subject to such rules as may be made under this Act, any final order passed by any court under sub-section (2) or sub-section(3), may in the manner prescribed be reviewed by the court which passed the order on the discovery of any new and important matter or evidence or on account of some mistake or error apparent on the face of the record or for any other sufficient cause of like nature:
Provided that before making any order under this sub-section the person likely to be adversely affected by such order shall be given reasonable opportunity of being heard.
(5) An order passed by the Controller against which no appeal has been preferred, may also be reviewed by him in the manner prescribed on the ground of discovery of new matter or evidence or on the ground of error apparent on the face of the record after giving the person an opportunity of being heard.
(6) Subject to the provisions of this Act, any decision of the Appellate Authority and, in cases where no appeal has been preferred, the decision of the Controller shall be final and may be executed by the Controller in the manner provided in the Code of Civil Procedure, 1908, for the execution of decrees.

Section 14 Revision by State Government
The State Government may, on its own motion, call for and examine the records of 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 reasonable opportunity of being heard in the matter.
Section 15 Power of District Judge and Chief Judge, Court of Small Causes of Calcutta to withdraw and transfer any proceedings
(1)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 on his own motion without such notice, the District Judge in the case of a proceeding pending before a Controller appointed for any area within the district, or the Chief Judge of the Court of Small Causes of Calcutta in the case of a proceeding pending before a Controller appointed for any area within the jurisdiction of the Court of Small Causes of Calcutta, may, at any stage, withdraw such proceeding and transfer it for hearing or disposal to a Controller appointed for any other area within the district or within the jurisdiction of the Court of Small Causes of Calcutta, as the case may be, or retransfer 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” includes any proceeding arising out of an application made to the Controller under the provisions of this Act.

Section 16 Bar to application of Act to certain lands
Nothing in this Act shall apply to
(a) Government lands,
(b) any land vested in or in the possession of
(i) the State Government,
(ii) a port authority of a major port, or
(iii) a railway administration, or
(iv) a local authority, or
(c) any land which is required for carrying out any of the provisions of the Calcutta Improvement Act, 1911.

Section 17 Restriction or exclusion of 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 by 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.

18 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 13, may,
(a) enter and inspect any premises at any time between sunrise and sunset;
(b) authorise any person subordinate to him to enter and inspect any premises between sunrise and sunset; or
(c) by written order, require 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.

Section 18A Penalty
 
(1) Any contravention by any person occupying land directly under the State, being the landlord within the meaning of subsection (1) of section 6, of any provision of this Act shall be an offence pub- lishable with imprisonment for a term which may extend to five years and also with fine which may extend to ten thousand rupees.
(2) No court shall take cognizance of any offence punishable under subsection (1) except on a complaint made in writing by the Controller or by an officer authorised by him in this behalf.
Section 19 Proceedings including appeals and proceedings in execution of orders, etc., to abate
All proceedings including appeals and all proceedings in execution of orders passed in proceedings including appeals under the Calcutta Thika Tenancy Act, 1949, pending on the 19th day of July, 1978, for the ejectment of thika tenants and Bharatias shall stand abated with effect from the 19th day of July, 1978, as if such proceedings, appeals or execution proceedings had never beed made.
Section 20 Power to make rules
(1) The State Government may, subject to the condition of previous publication, 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 that may be or are required to be prescribed or made by rules.
Section 21 Repeal
The Calcutta Thika Tenancy Act, 1949 is hereby repealed.
Section 22 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 Bharatia or for an appeal from an order or decree made on such application or suit or for the execution of an order or decree 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.

Section 23 Bar to jurisdiction
No civil court shall have jurisdiction to decide or deal with any question or to determine any matter which is by or under this Act required to be or has been decided or dealt with or to be determined 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.

Section 24 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.

Section 25 Maintenance, preparation and revision of record-of-rights
(1) Except as hereinafter provided, Chapter VII and Chapter VILA of the West Bengal Land Reforms Act, 1955, 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 VILA of the West Bengal Land Reforms Act, 1955, the names of Bharatias and thika tenants, duration and incident of tenancies, rent payable by each thika tenant and each Bharatia and 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.

Section 26 Payment of monthly revenue
2121. Sec. 26 subs, by W.B. Act 21 of 1993 (w.e.f. 18.1.1982). The original sec. 26 was as under: “26. The provisions of West Bengal Act 44 of 1979 to be applicable to thika tenants(1) The provisions of the West Bengal Land Holding Revenue Act, 1979 shall, mutatis mutandis, apply to a thika tenant as if the said Act extends to the area described in Schedule 1 of the Calcutta Municipal Act, 1951 and as if the said area is a region within the meaning of the West Bengal Land Holding Revenue Act, 1979. (2) The Schedule to the West Bengal Land Holding Revenue Act. 1979. shall not apply to a thika tenant. The following shall be deemed to be the Schedule to the said Act being applicable to a thika tenant: In the case of any holding of a thika tenant the rate of revenue on land holding: (a) on the first rupees 10,000 of the total rateable value 5 paise in the rupee, (b) on the next rupees 10,000 of the total rateable value 8 paise in the rupee, (c) on the balance of rateable value 10 paise in the rupee.”.
(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 the rate of five rupees per 0.00674 hectare or at the rate at which he paid to his landlord immediately before vesting under this Act, whichever is higher.
(2) The monthly revenue shall be enhanced at the rate of ten per centum on the expiry of every five years.

Section 27 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 Ragulation) Act, 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 to subserve the common good on such terms and conditions and in such manner as may be prescribed.

Devider
© Advocatetanmoy Law Library

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

LAW LIBRARY -2018 EDITION

VILLEGE

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.

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