DICTATED JUDGMENT
1. The Court: Both the appeals from decrees of dismissal are disposed of by this common judgment.
2. Two leases were executed by then shebaits of the Appellant Deites in or about the years 1908 and 1935 for initial terms of 80 years and 53 years respectively, with a one time option to renew the lease again in each case, for 10 years.
3. During the pendency of the terms, the shebaits filed suits for avoidance of the leases and for eviction. The decrees appealed against each dated 25th of November, 1976, and each passed by the Hon'ble Justice Salil Kumar Hazra, since deceased, were decrees of dismissal.
4. The appeals are of 1978.
5. In support of the two appeals Mr. Mitra and Mr. Sen have made submissions and for the respondent/defendant in both the appeals Mr. Bose has placed the case before us.
6. Because of the sheer passage of time it so happens that the validity of the leases initially executed is no longer a material issue. Taking that Mr. Bose's client's case that the option to renew was duly exercised in cases of both the leases is correct, even then, it is in the year 1998 that the initially granted terms, along with the option terms, expired.
7. Applications for amendment have been filed and those applications are also being disposed of hereby. We have proceeded on copy papers but the Department should unearth the old papers and preserve the same along with the paper books for future records.
8. So far as the taking of notice of the passage of time is concerned, no formal amendment application is necessary in that regard as the Court must take judicial notice of the day and date when the Court is disposing of a particular litigation.
9. It is, therefore, inescapable that the long leases in favour of the original lessees have both expired and there has been neither a fresh grant of lease, nor holding over.
10. Although the decrees appealed from might have been, and we say this with due respect, perfectly good and proper at the date those were passed, today when we are disposing of the appeals the decrees of dismissal are no longer sustainable, especially if we look upon an appeal as a continuation of a suit.
11. If the suits were to be heard today afresh, the Court would have to proceed on the basis that the lessee has no defence against eviction on the basis of the lease deed.
12. Realising this to be so, Mr. Bose sought to base his defence upon quite another point. His case was, that by an order dated the 11th of July, 1995, a copy of which is annexed to his client's affidavit-in-opposition filed to the application for amendment, the Thika Tenancy Controller of Howrah has accepted his clients as thika tenants, at least provisionally, and similarly at least on a tentative basis ordered that the lands have vested in the State of West Bengal.
13. Mr. Bose's submission is that since the State of West Bengal is not a party in those appeals, and since he has brought before the Court an order passed by a competent statutory authority, the Court of Appeal should take due judicial notice of these and should refrain from passing any decree or order which would have the effect of nullifying the Controller's declaration.
14. Before we discuss this point further, we wish to make it clear at the very outset, that it would be a sad day, if a litigant could go to one departmental authority functioning in one corner of Howrah, in regard to a subject matter which is covered by pending appeals before the Division Bench, and could, as has happened in this case, obtain orders without notice to the appellants, which would have the effect of nullifying the appeal Court's power to do justice between the parties as per the terms of the lease and the law of the land.
15. Happily for us, and hopefully happily for all concerned, we have reached conclusions, which show in no uncertain manner, that such sad days have not yet arrived.
16. The root of the Thika Controller's jurisdiction is the State Act passed in West Bengal which is called the Calcutta Thika and Other Tenancies and Lands (Acquisition & Regulation) Act, 1981. Its precursor was the Thika Tenancy Act of 1949. The purpose of those Acts was to grant some protection to poor persons who happened to be living within city limits, but who had means to afford only kutcha structures above their head.
17. The original Act has undergone large scale amendments. In the definition, section 3 of the Act of 1981, two definitions are important, namely, those coming under sub-section (7) and sub-section (8) which define pucca structure and thika tenant.
“(7) ‘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;”
“(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 ereced 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.”
18. That even under the present law, a thika tenancy relates to kutcha structures primarily, has already been decided by a Division Bench of our Court to which one of us was a party.
19. The said case is unfortunately not yet unreported. It is the case of Hindusthan Petroleum Corporation Ltd. v. Sashi Bhusan Mondal, in APD No. 280 of 1981 in which judgment was delivered on 24th July, 1998. The portion of the judgment which is relevant for our purpose is set out below:—
“The other point was a point of jurisdiction. It took the shape of the first issue at trial in the Court below. The point arose out of the Thika Tenancy Laws prevalent in West Bengal. If an occupier is a thika tenant then his eviction is to be achieved by taking resort to the special procedure given in the Thika Tenancy Act and the ordinary court cannot be approached.
The word ‘Thika’ in Bengali means temporary or partial. A thika cook would be a cook who is engaged for only part of the day unlike a cook who works full time.
The Thika Tenancy Act has had a colourful legislative history. It was first enacted in 1949. It was provided that if a person held land under another person, and built thereon or obtained by purchases or gift any structure on that land, he would become a thika tenant.
The definition section in this regard which is section 2(5) is set out below:—
(5) ‘thika tenant’ means any person who holds, whether under a written lease or otherwise, land special contract would be liable to pay rent, as 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, 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 Khatal”:
20. The question which automatically comes to one's mind is that if construction of any structure make one a thika tenant then there would be a duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Control Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words “any structure” in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure. There is the case of Kshirodamoyee Sen, reported at 63 CWN 565, the case of Monmatha Nath Mukherji, reported at 63 CWN 824 and the case of Jatadhari Daw, reported at 1986 (1) CHN page 21. Even in the case given by Mr. Sen, being that of P.D Murarka, reported at 79 CWN 852 there are indications in the Division Bench judgment delivered by M.M Dutt, J. (When his Lordship was at Calcutta) that pucca structures are not the subject matter of thika tenancy and those can be got demolished by the landlord by compellint the thika tenant to demolish those. Mr. Sen however cited this case for trying to show that if pucca structures are built by a thika tenant or a tenant he might become a thika tenant. We find that this case only decides that subject to the right of the landlord to have the pucca structures demolished, the building of pucca structures themselves would not rob a thika tenant of his status by reason of the building of such pucca structures alone. The case is not at all an authority for the proposition that a person can become a thika tenant if he builds a pucca structure as opposed to a kutcha one.
21. The 1949 Act was amended from time to time but the last amendments, making large scale replacement and alterations made in the years 1981 and 1993. The first amendment by way of a replacing Act was given prospective operation from 18.1.82 and the 93 amendment was given retrospective operation (excepting for sections 13 and 14) from the same date i.e 18th January, 1982.
22. The purport of this legislation is principally vesting of the lands in the State when those lands comprise of thika tenancy. The definition given in these amendments also seeks to vest “other lands” when those are held by the thika tenant or some other person under the same conditions. The words “other lands” occurred both in the ‘81 Act and in the 1993 amendment but with much greater emphasis and legislative clarification in the later amendment than in the earlier Act.
23. A Special Bench of our Court consisting of three Hon'ble Judges and presided over by G.N Ray, J. (when his Lordship was at Calcutta) has considered the 1981 Act and the aspect of the vesting of “other lands”. In the Special Bench judgment, given in the case of Lakshmi Moni Das, reported in AIR 1987 Cal. P. 326 (See page 362, right hand column) it is also said that kutcha structures area a sine qua non for the raising of a thika tenancy status. However, the point of primary importance decided by the Special Bench was that “other lands” will not mean any and every other land but must have a nexus with the thika tenancy or be a Khattal (where cows and buffalos are kept under a temporary structure, I am ashamed to say, even within Metropolitan limits).
24. Mr. Sen was at pains to demostrate the wide ambit of the 93 amendments to show that by inclusion of “other lands” everything held by the tenant would vast in the State.
25. Mr. Roy said that the plaintiff is not the owner of the land but himself a tenant, his term somewhat extending beyond the year 2010. He submitted that any decision on the point of vesting in the absence of the owner of the land himself would be unjust.
26. In our opinion we need not enter into this issue. From the discussion above, it would be clear that there being no kutcha structure involved in the demised premises the question of thika tenancy does not arise at all. If the appellant defendant was never a thika tenant the defence in the written statement cannot succeed and the amendment of 1993 cannot vest anything in the State of West Bengal at all. The State of West Bengal was also served notices but, understandably, they have not thought it necessary to put in an appearance in this case.”
27. That thika tenancy must involve kutcha structure is sufficiently clearly held in the above decision but it appears to us that the law requires a slight enhancement even from the point where the Division Bench had earlier stopped.
28. The earlier Division Bench has opined that if no kutcha structure is involved in the demised premises, the question of thika tenancy does not arise at all.
29. This is part of the solution but the solution is not complete hereby. For example, if in a prime area of the city a demise of land is obtained along with buildings thereon and if thereafter the lessee deliberately erects one kutcha structure in one portion of the land comprised in the demise, then and in that event, it would be absurd or permit such lessee to contend that because of the construction of that kutcha structure he has caused the lessor's interest in the prime land to vest in the State of West Bengal and he has become a thika tenant.
30. Thus, the true view and the complete view as apparent to us today is, that, for the Thika Tenancy Act to apply, each and every structure comprised in the tenancy must be a kutcha structure i.e not a pucca structure. In the Hindusthan Petroleum case, the Division Bench opined that unless kutcha structure is involved, thika tenancy cannot arise. We now advisedly opine that unless all structures are kutcha in the tenancy, thika tenancy cannot arise i.e, if in a tenancy comprising a host of kutcha structure, there comes up even one pucca structure, the Thika Tenancy Act loses its applicability.
31. The rought and layman's understanding of this opinion, is that, if people are staying in kutcha structure and there is even one pucca structure, all protection from rough whether can be had, of course not at a perfect, but only at a reasonable level, by utilising the single pucca structure. The poor thika tenant's protection is therefore no longer available to the person who is not wholly poor.
32. The legal way of explaining this opinion is, that “pucca structure” is defined in sub-section (7) and the legislature, while defining thika tenant, in sub-section (8) of section 3, made a condition of the existence any “structure”, which must mean something different from a pucca structure i.e, a kutcha structure. It is our opinion that the words “any structure” occurring in sub-section (8) of section 3 includes every structure on the tenancy and each such structure must satisfy the condition of being such a structure as is not a pucca structure.
33. Viewed in this light, we find that the order of the Howrah Thika Controller is patently erroneous on its face. Before assuming jurisdiction, if necessary by local enquiry, the Thika Controller must come to the conslusion that each and every structure comprised in the tenancy is kutcha. Unless this enquiry is made and the jurisdictional fact is ascertained, no tenancy can be held to be a thika tenancy.
34. Even in the affidavit-in-opposition of Mr. Bose's client, this everment is singularly absent. We are not surprised by the absence of this averment because we are laying down law which, is or should be, obvious and manifest, but which has probably not been articuladed in clear terms yet.
35. The other reason why we are not surprised is, that if the tenancy is there from 1908, and the totality of the land comprising the two leases is well over 5 Bighas (this is an undisputed fact), then and in that event, it would require a remarkable course of events indeed, if this huge land tract remained only infested with kutcha structures for as long a period as 93 years (counting from the earlier lease).
36. Thus the order of the Thika Controller, Howrah dated 11th July, 1995 is qushed. Both the decrees under appeal are set aside. There shall be decrees in each of the two suits declaring that the plaintiffs are the shebaits and the owners of the scheduled land referred to in the respective plaints. There shall be further decrees declaring that the two leases respectively dated 30th June, 1908 and 24th May, 1935 being the subject matter respectively in Extraordinary Suit No. 12 of 1973 and Extra-ordinary Suit No. 13 of 1973 have both expired by efflux of time in the year 1998. It is further declared that the defendants have no right to continue in possession in regard to the lands scheduled in both the above plaints. There shall be decrees in terms of claims (e) and (f) in Extra-ordinary Suit No. 12 of 1973 and there shall be decrees in terms of claims (e) and (f) also in respect of the plaint in Extra-ordinary Suit No. 13 of 1973. We have not entered into the question of mesne profits but we direct that possession be immediately made over to the plaintiff appellants in each case and such plaintiff appellants do take possession. If this is not complied with, liberty to levy immediate execution in accordance with law.
37. Copy judgment be made available to the parties on the undertaking to have the decrees appropriately perfected and signed. Decrees be drawn up expeditiously.
38. Stay of operation of these decrees is prayed for but such prayer is refused.
Ajoy Nath Ray, J.
Pranab Kumar Chattopadhyay, J.
Appeal set aside.
S.K.P