For Test Of ‘Thika Tenant’, Lessee Must Satisfy That There Has Been Erection Or Acquisition By Purchase Or Gift: Calcutta HC

The Calcutta High Court emphasised that in order to satisfy the test of a ‘thika tenant’, the lessee has to satisfy that there has been erection and/or acquisition by purchase or gift, any structure on such land by the tenant for residential, manufacturing or business purpose.

The Court was deciding an appeal filed by a company being aggrieved by the order of the Single Bench dismissing the writ petition.

A Division Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya observed, “Since the tenancy continued till 25.12.2003 it cannot be disputed that the lessee thereunder had the liability to pay rent for the demised land to their landlord during the lifetime of the 1981 Act. However, in order to satisfy the test of a “thika tenant” the lessee also has to satisfy the other requirement that the there has been erection and/or acquisition by purchase or gift, any structure on such land by the tenant for residential, manufacturing or business purpose. The expression “structure” used in section 3(8) of the 1981 Act has been judicially interpreted by the Full Bench of this Court in the case Lakshmimoni Das vs. State of West Bengal reported at AIR 1987 Cal 326 to mean “kutcha” structure and/or temporary structure.”

The Bench elucidated that the mere fact that the application at the instance of the company for declaration that they are thika tenants is pending before the Kolkata Thika Controller, the same cannot detain the Court to decide the issue involved in the appeal.

Senior Advocate Utpal Bose, Advocates Abir Lal Chakraborty, Sheikh Afazuddin, and Sonali Ghosh Basu represented the appellants while Senior Advocate Rauf Rahim, Advocates Md. Salauddin, Md. Ahsanuzzaman, Md. Raziuddin, Aliasghar Rahim, Ankita Chowdhury, Ali Rahim, Tanmay Mukherjee, and Manisha Das represented the respondents.

Facts of the Case -

The appellant company sought for issuance of a writ of mandamus to quash the notices issued by the Chief Executive Officer (CEO), Board of Auqaf, West Bengal under Section 54 of the Waqf Act, 1995 and the consequential enquiry notice issued by the CEO. In the show cause notice, it was stated that it was reported by Mutawali in respect of an estate that the appellant without any authority of law occupied and thereby illegally taken possession of the Waqf property mentioned in the schedule to the notice wherein the appellants have no legal right, title, and interest over the same. It was stated that in exercise of the powers conferred on the CEO under Section 54 of the Act, the appellant was directed to show cause with evidence in support of their claim as to why an order requiring them to remove the encroachment should not be made, in the event of their failure to show cause on the scheduled date, the matter may be decided ex-parte without further reference to the appellant.

The appellant contended that the proceedings initiated by CEO under the provisions of the Act is without jurisdiction and the Waqf Tribunal cannot entertain the dispute. The appellant further stated that the West Bengal Thika Tenancy Act, 2001 (Thika Act) is primarily for vesting of the Thika property in the state upon adjudication of right of a Thika tenant and in the subject premises, a civil suit is pending before the appropriate civil court for eviction of a tenant and more particularly, Thika proceeding is pending before the Thika controller and therefore, the Waqf Board and/or the Waqf tribunal has no jurisdiction to decide the dispute. Therefore, the notice was objected on the ground that there is no jurisdiction to issue the same. Though the appellant had filed its reply to the show cause notice but after nearly a year filed the writ petition during January 2023.

The High Court in view of the above facts said, “The appellant is in possession of the demised premises even after expiry of the lease. The CEO is vested with the power to issue show cause notice under Section 54(1) of the 1995 Act and after considering the objections as well as conducting an enquiry and upon being satisfied that the property in question is waqf property and that there has been an encroachment on any such waqf property, the CEO can invoke its power to make an application to the Tribunal for grant of an order of eviction for removing such encroachment and deliver possession of the land, building, space or other property encroached upon to the Mutwalli to the Waqf by invoking its power under Section 54(3) of the 1995 Act.”

The Court added that the lease has expired and the appellant has failed to deliver possession of the demised land to the lessor upon expiry of the lease and after noting the definition of “encroacher” under Section 3(ee) of the 1995 Act, it cannot be said that the CEO acted without jurisdiction by issuing the impugned notices.

“After going through the Scheme of the 1995 Act more particularly Section 54 thereof, this Court holds that irrespective of the fate of the Civil Revision application challenging the order dated 12.02.2024 directing return of plaint, CEO is authorised under the 1995 Act to invoke its powers under Section 54(3) and make an application before the Tribunal”, it held.

The Court noted that the eviction of a tenant or determination of rights an obligation of the lessor and lessee of waqf property falls within the jurisdiction of the Waqf Tribunal.

“At this stage, it would be relevant to point out that before the Civil Court, the appellants herein prayed for rejection of plaint on the ground that the suit is barred under the provisions of the 1995 Act. Even if the Civil revision application is allowed, the effect would be that the plaint shall be rejected. That by itself would not oust the jurisdiction of the CEO of the Board to proceed in accordance with Section 54 of the 1995. To the mind of this Court, pendency of the civil revision application has no bearing on the issue involved in this appeal”, it concluded.

Accordingly, the High Court held that the Single Judge was right in refusing to interfere with the impugned notices.

Cause Title- M/s. Hooghly Building & Investment Company Limited and Another v. The State Of West Bengal and Others

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