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

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

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

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

• West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001
• Law of Thika Tenancy [Click here]

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.