Appellants/Predecessors Not Thika Tenants Under Calcutta Thika Tenancy Act 1981 - SC Rejects Claim For Thika Tenancy

The Supreme Court has refused to grant relief to lessees-appellants claiming to be Thika tenants within the meaning of the Calcutta Thika Tenancy Act, 1949 and Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981.

The Court held, "The appellants and/or their predecessors were not thika tenants within the meaning of the Act of 1981 for two major reasons: a. that the structure in question was a pucca structure; and b. that the Act of 1981 was not operative in relation to the property in question because of the stay order passed by the High Court."

The Bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari also observed "Having given anxious consideration to the entire matter, we are satisfied that the High Court has taken an eminently just and proper view of the matter in setting aside the untenable orders passed by the Controller and the Tribunal; and no case for interference is made out."

In this case, one Laxmi Narayan Ghosh was the owner of the land involved herein. The said Laxmi Narayan Ghosh died intestate leaving behind his wife and his son Jitendra Nath Ghosh. Thereafter, his wife also died intestate and Jitendra Nath Ghosh became the absolute owner of the subject property.

By a registered deed of lease, Jitendra Nath Ghosh leased out the subject property to Badri Narayan Kumar and Nemai Chandra Kumar, being the partners of M/s. Kumar Industries, for a period of 20 years.

The lessees were also given the right to raise construction on the subject property and to use and enjoy the same during the tenure of the lease with a condition that on expiry of the lease, the lessees will have to deliver vacant and peaceful possession of the said property by removing the construction thereon. Admittedly, the lessees raised some structure over the subject property.

In 1982 the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 came into force and immediately thereafter, the said Jitendra Nath Ghosh (lessor) filed a writ petition in the High Court under Article 226 of the Constitution of India challenging vires thereof. The High Court stayed the operation of the impugned Act of 1981 as well as Rules framed thereunder insofar as the subject property was concerned.

In the meantime, the lease granted by the said original owner, Jitendra Nath Ghosh, in favour of M/s. Kumar Industries, represented by its partners Badri Narayan Kumar and Nemai Chandra Kumar, came to an end by efflux of time.

After the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into force, the said M/s. Kumar Industries represented by its partners filed an application before the Controller for a declaration that they were thika tenants of the subject property.

After demise of the said Jitendra Nath Ghosh, his heirs, by a deed of conveyance, transferred the property in question to seven companies including the respondent No. 1 Mani Square Ltd.

Pursuant to this, the said six companies along with the respondent No. 1 applied before the Kolkata Municipal Corporation to get their names mutated as owners of the property in question in the Municipal records. The High Court of Calcutta, sanctioned the scheme of amalgamation whereby, the said six companies were amalgamated with the respondent No. 1 Mani Square Ltd. and consequently, all the assets and properties of the said six companies vested in the respondent No. 1.

Later the respondent no. 1 came to know that the Controller had declared the lessees as thika tenants over the property in question. An appeal was made to the Tribunal against the decision of the controller which came to be dismissed.

Feeling aggrieved by the decisions aforesaid the respondent no. 1 approached High Court.

The High Court observed that the lease having been granted in favour of the lessees for a period of more than 12 years i.e., for 20 years and the lessees having constructed pucca structure having pucca foundation, pucca floor and pucca walls with tile and tin shed on the roof in contradistinction to any kutcha or temporary structure as contemplated under the said Act, the said lessees cannot be regarded as thika tenants within the ambit of Section 2(5) of the Act of 1949.

Furthermore, the High Court had noted that the appellants never claimed that they raised pucca structure with the permission of the Controller. Therefore, it was concluded that they cannot be declared as thika tenants under the Act of 1949.

Feeling aggrieved by the decision of the High Court, appellants moved Supreme Court.

Advocate Ranjeeta Rohatgi appeared for the appellant and Advocate Pranaya Goyal appeared for respondent no. 1- Mani Square Ltd. The State of West Bengal was represented by Advocate Chanchal Kumar Ganguli.

The Court noted "The High Court has, obviously, taken into comprehension the findings of the Controller which were never challenged by the appellants and hence, made the observations that the lessees had admittedly raised pucca structure. Even if the appellants seek to dispute such findings, such a dispute is required to be rejected, particularly with reference to indisputable findings of the Controller. The structure in question had been a pucca structure. Its implication shall unfold hereafter."

The Court concluded that the structure, as put up by the appellants and/or their predecessors, was pucca structure on the property in question and as the structure was pucca in character and the term of lease being 20 years, the appellants and/or their predecessors were not thika tenants within the meaning of Section 2(5) of the Act of 1949.

The Court also held that the appellants and/or their predecessors were not thika tenants within the meaning of the Act of 1981 for two reasons- (a) that the structure in question was a pucca structure; and (b) that the Act of 1981 was not operative in relation to the property in question because of the stay order passed by the High Court. The Court held that when the lease had expired the appellants and/or their predecessors were not thika tenants and, therefore, the Act of 2001 does not enure to their benefit.

Accordingly the Court upheld the order of the Calcutta High Court and set aside the orders passed by the Controller and the Tribunal.

Cause Title- Nemai Chandra Kumar (D) Thr. Lrs. & Ors. v. Mani Square Ltd. & Ors

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