TMI Blog2015 (2) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... T,PRAFULLA CHANDRA, JJ. JUDGEMENT Sudhansu Jyoti Mukhopadhaya, J. - (1) LEAVE granted. The Appellants have preferred this appeal against judgment dated 10 March, 2014 passed by the Division Bench of High Court of Calcutta in W.P.L.R.T. No. 325 of 2013. By the impugned judgment, the High Court allowed the writ petition filed by the Respondent Nos. 1 and 2 and set aside the order dated 18 November, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as the, 'Tribunal') in O.A. No. 2833/12 (LRTT). (2) THE factual matrix of the case is as follows: 2.1 One Laxmi Narayan Ghosh was the owner of the land involved herein measuring 2 Bigha, 10 Cottahs and 3 Chhitacks, more or less, being Holding No. 195, Picnic Garden, Tiljala. The said Laxmi Narayan Ghosh died intestate on or about 23rd July, 1950 leaving behind his widow Smt. Nilu Bala Ghosh and his son Jitendra Nath Ghosh. 2.2 On 7 December, 1970, Smt. Nilu Bala Ghosh died intestate and Jitendra Nath Ghosh, thereafter, became the absolute owner of the said property. The said Jitendra Nath Ghosh by a registered Deed of Lease dated 15 December 1973, demised the said premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The Controller, Kolkata Thika Tenancy vide order dated 27 January, 2010 declared both Badri Narayan Kumar (since deceased) and Nemai Chandra Kumar (Appellant No. 1) as Thika Tenants in terms of Section 2(14) of the 2001 Act. By another order dated 29 April, 2010, the said authority recorded the death of Badri Narayan Kumar and substituted his legal heirs as thika tenants. 2.7 Respondent Nos. 1 and 2 -writ Petitioners are the transferees of the said premises from the erstwhile owner thereof, namely, the landlord of the Appellants herein. After purchasing the said property vide conveyance deed dated 10 September, 2006 they applied for mutation of their names as owners of the said property and while searching relevant records, they came to know that the said premises were recorded as thika tenanted property and some of the Appellants were recorded as thika tenants therein by following the declaration of their status as thika tenant in respect of the said premises given by the Controller, Calcutta Thika Tenancy vide his order dated 27 January, 2010. 2.8 On knowing about the aforesaid order of the Controller declaring the said property as thika tenanted property and some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thika Tenancy vested with the State w.e.f. 18 January, 1982. (3) THE aforesaid submissions made on behalf of the Appellants have been rebutted by Learned Counsel for the Respondent Nos. 1 and 2 on the following grounds: 4.1 The lessee raised pucca structure and used the said premises including the structure constructed thereon for running its factory activities. Therefore, the Appellants do not come within the meaning of Thika Tenants. 4.2 The lease was expired by efflux of time on 13 September, 1993 and lessee paid the rent to the then landlord up to 1993 and thereby never claimed themselves as Thika Tenants till 9 April, 2003. 4.3 The concept of Thika Tenancy in the three Acts (1949 Act, 1981 Act and 2001 Act) has been used as an expression inexonerably intertwined with the concept of 'any structure'. 4.4 The term 'any structure' has been judicially read down to mean only 'Kutcha structure' (Temporary Structure) by series of judgments of the Calcutta High Court. (4) ON the other hand the stand of the State is as follows: 5.1 Section 2(5) of the 1949 Act was substituted by West Bengal Act VI of 1953 which clearly indicates that from ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to erect pucca structure by inserting Section 10A. The relevant Section 2(4a) defining pucca structure is as follows: 2(4a) pucca structure means any structure constructed mainly of brick, stone or concrete or any combination of these materials. Right of thika tenant to erect pucca structures was inserted by Section 10A vide West Bengal Act XXIX of 1969, which reads as follows: 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture on such land for residential, manufacturing or business purpose and includes the successors -in -interest of such person. (7) CHAPTER II of the 1981 Act relates to acquisition of lands comprised in thika tenancies and other lands and the rights of landlords in such lands. Section 5 which was later substituted by Section 6 of the Calcutta Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 1993 (West Ben. Act XXI of 1993) w.e.f. 18 January, 1982, originally reads as follows: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub -section (2) of Section 6 of this Act irrespective of the status, he may have enjoyed earlier. The expression 'any structure' though used within the definition of 'Thika Tenant' Under Section 2(5) of 1949 Act, the same has not been defined under the 1949 Act. Section 2(6) of the 1949 Act stipulates: 2(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 meaning as in those Acts. Therefore, one can derive the definition of such words and expressions used but not defined in the 1949 Act from the Transfer of Property Act, 1882 or the Bengal Tenancy Act, 1885 as it has the same meaning as in those Acts. The expression 'any structure' has not been used in the Transfer of Property Act, 1882 or Bengal Tenancy Act, 1885, therefore, it will be of no help to refer to Transfer of Property -Act, 1882 or Bengal Tenancy Act, 1885 to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent structure on the land without the landlord's consent. Clearly, therefore, the Defendant is not entitled either under the provisions of the Transfer of Property Act or under the provisions of the Thika Tenancy Act to put up a permanent structure on the land. (10) IN Monmatha Nath Mukherjee v. Banarasi and Ors. : 63 CWN 824, learned Single Judge of Calcutta High Court vide judgment dated 28 May, 1959 referring the decision in Kshiroda Moyee Sen observed: Although I respectfully agree with the conclusion made by Guha Ray, J., I do so for reasons of my own. The adjective 'any' is a word which excludes limitation or qualification and makes the noun, before which it is prefixed, as wide as possible. Thus the word has been regarded as equivalent to and having the force of every or all (see Crawford on Statutory Construction , Section 186 at page 318). That being so, the words 'any structure' would ordinarily include a pucca structure. Nevertheless, for reasons which I am going to state the words any structure used in Section 2(5) of the Calcutta Thika Tenancy Act cannot be taken to mean all kinds of structure including a pucca structure. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure on the demised land. (12) THE matter was subsequently considered by Full Bench of Three Judges of Calcutta High Court in Lakshimimoni Das and Ors. v. State of West Bengal and Ors. : (AIR) 1987 Calcutta 326. Referring to the previous judgments the Court held: 19. Pursuant to power conferred by Section 20 of the impugned Act, rules have been framed called as the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982. Mr. Pal has submitted that Rule 3 and Rule 10 are relevant for the consideration of the scope, ambit and effect of the provision of vesting Under Section 5. Referring to the expression lands comprised in thika tenancy as appearing in the first limb of Section 5, Mr. Pal has contended that the definition of the expression 'thika tenant' in Section 2(5) of Calcutta Thika Tenancy Act, 1949 has been the subject matter of judicial interpretation and consideration in several decisions of this Court. In these decisions it has been held that (a) the expression any structure in Section 2(5) of the 1949 Act means kutcha and for non -pucca structure and reference may be made to the decisions of this Court in the case of Monmatha Nath Mukherjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 61. Relevant part of which is quoted hereunder: 7. The intention of the legislature is primarily to be gathered from the language used in the statute, thus paying attention to what has been said as also to what has not been said. When the words used are not ambiguous, literal meaning has to be applied, which is the golden rule of interpretation. (14) IN State of Maharashtra v. Nanded -Parbhani Z.L.B.M.V. Operator Sangh : (2000) 2 SCC 69, this Court held: 8. It is a cardinal principle of the rule of construction of a statute that when the language of a statute is fairly and reasonably clear, then inconvenience or hardships are no considerations for refusing to give effect to that meaning. It is not the contention of the Learned Counsel appearing for the State nor can it be said that on giving a plain meaning to the words used in Section 207(1) of the Act, there will be any absurdity or it would make the statute offend any provisions of the Constitution. Tindal, C.J. in Sussex Peerage casel (C1 F at p. 143) applying the rule has stated - - If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Council of India.) (15) THE language of Section 2(5) of 1949 Act defining 'Thika Tenant' is fairly and reasonably clear. The said section also reflects the intention of the legislature. The meaning of the word 'any structure' used in Section 2(5) cannot be derived in isolation on mere presumption. The Calcutta Thika Tenancy Act, 1949 was enacted to make better provisions relating to the law of the landlord and the tenant in respect of Thika Tenancy. To claim rights of a 'Thika Tenant' a person should be a 'Thika Tenant' Under Section 2(5) of the 1949 Act for which he should satisfy the following conditions: (i) The person shall be holding land under another person; (ii) he shall be liable to pay rent, at a monthly or any other periodical rate, for that land to that another person; and (iii) he should have erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose. It includes the successors in interest of such person. The said definition does not include a person -(a) who holds such land under that another person in perpetuity; or (b) under a registered lease, in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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