TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1123
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....t. 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 premises to Badri Narayan Kumar (since deceased) and Nemai Chandra Kumar (Appellant No. 1 herein) -the proprietors of Kumar industries, for a period of 20 years commencing from 1st December, 1973 for a consideration and/or monthly rent as mentioned in the said lease deed. By the said lease deed, the lessees were given the right to raise construction on said property and to use and enjoy such property during the tenure of the lease with a condition that on expiry of the lease on 30 November, 1993 the lessees will have to deliver vacant and peaceful possession of the said property to the lessor in the same condition as it was at the time of execution of lease, by removing the structure which would be constructed thereon. It was submitted that the lessees raised pucca structure having pucca foundation, pucca floor and pucca wall with partly tin and partly tile shed on the roof and used the s....
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....eclaration 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 Appellants as thika tenants, Respondent Nos. 1 and 2, being the purchasers of the said premises submitted an objection before Controller, Calcutta Thika Tenancy challenging the declaration which was given by the Controller in his earlier orders dated 27 January, 2010 and 29 April, 2010 and the said objection was rejected by the Controller vide order dated 1st August, 2012 in Misc. Case No. 89 of 2010. 2.9 On being aggrieved, Respondent Nos. 1 and 2 filed an application Under Section 6 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 before the West Bengal Land Reforms and Tenancy Tribunal at Calcutta (hereinafter referred to as the, 'Tribunal') being O.A. No. 2833 of 2012 challenging the legality and validity of order dated 1st August, 2012 passed by the Controller in Misc. Case No. 89 of 2010. The Tribunal vide judgment dated 18 November, 2013 dismissed the application a....
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....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 very inception the thika tenant speaks about 'any structure'. There is no scope to read kutcha structure instead of pucca structure. Even words are clear and there is no ambiguity and scope to resort to any external aid for the purpose of interpretation. 5.2 Section 10A was brought into the Statute by West Bengal Act XXIV of 1969 permitting the 'thika tenant' to erect pucca structure on the basis of permission given by the Controller. 5.3 Section 3(8) of the 1981 Act defines Thika tenant and it includes the Appellants. We have heard the Learned Counsel for the parties and perused the record. (5) THE questions involved in this case are: (i) Whether the Appellants are 'Thika Tenants' within the meaning of Section 2(5) of 1949 Act or Section 3(8) of 1981 Act and (ii) Whether the land in question stood vested with the State pursuant to provisions of 1949 or 1981 Act? RELEVANT STATUTORY PROVISIONS ....
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....t 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 structure at a rent which shall in no case exceed by more than twenty -five per centum the rent which the Bharatia was previously paying. THE CALCUTTA THIKA AND OTHER TENANCIES AND LANDS (ACQUISITION AND REGULATION) ACT, 1981 [WEST BENGAL ACT XXXVII of 1981] The purpose of enactment of 1981 Act is as follows: An Act to provid....
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....r 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 the State free from all encumbrances: Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a Khatal in Khas lands of the landlords shall not be affected in any way by such vesting. After substitution Section 5 reads as follows: 5. Lands comprised in thika tenancies, khas lands, etc. to vest in the State. - With effect from the date of commencement of this Act, the following lands along with the interest of landlords therein shall vest in the State, free from all encumbrances, namely: (a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains, - (b) lands comprised in and appurtenant to bustee on khas lands of landlords and lands in slum areas including open areas, roads, passages, tanks, pools and drains; (c) other lands n....
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....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 define the word and expression 'any structure' used in Section 2(5) of the 1949 Act. (9) THE term 'any structure' was considered by Calcutta High Court in Kshiroda Moyee v. Ashutosh Roy : 63 CWN 565 and learned Single Judge by judgment dated 10 March, 1959 held: The next point argued on behalf of the Appellant is that the Thika Tenancy Act applies and, if it does apply, the tenant is entitled to put up any structure under its provisions because Section 2(5) defines a Thika tenant as "one who holds, 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 any other periodical rates, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose." Thus under the definition, a Thika tenant 'is a tenant of the land' on which he has either erected a structure or has purchased from somebody else a structure. It ....
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....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. The Calcutta Thika Tenancy Act is a special Act and was enacted, as its preamble shows, "to make better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta". The general law regulating the relationship of landlord and tenant, including thika tenant, is contained in Chapter V of the Transfer of Property Act. In Section 108(p) of the Transfer of Property Act there is a prohibition against the lessee raising pucca or permanent structures on the land of the tenancy, without the lessor's consent. The matter was subsequently considered by the Division Bench of Calcutta High Court in Annapurna Seal v. Tincowrie Dutt, 66 CWN 338. The Court referring to the earlier decisions held: A construction has to be given to the word 'structure' in this case which must be suited to the context of the Calcutta Thika Tenancy Act. It will be inappropriate to attempt to rigidly define structure. What is or is not structure has to be decided on the facts of each case in the light of the Statute and its obj....
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....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 v. Smt. Banarasi reported in (1959) 63 Cal WN 824. It has been held by a single Judge of this Court that thika tenant is not entitled to put up a permanent structure on the land. The Division Bench consisting of P.B. Mukherjee and R.S. Bachawat JJ. (as their Lordships then were) held that the expression "thika tenancy" had imported a concept of temporariness. Even after the 1969 Amendment of the Calcutta Thika Tenancy Act, 1949, the Division Bench of this Court in the decision made in the case of Purushottam Das Murarka v. Harindra Krishna Mukherjee, reported in (1975) 79 Cal WN 852 has observed to the following effect: But there cannot be any doubt and it is also not disputed on behalf of the Appellant that, if during the pendency of his lease, a thika tenant constructs or attempts to construct pucca structure on the demised land without the permission of the landlord, he does not cease to be a thika tenant. 56. For the reasons aforesaid we hold as follows: (a) The impugned Act is not protected Under Article 31C of the Constitution as it is f....
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....ords of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver. 11. The intention of the legislature is required to be gathered from the language used and, therefore, a construction, which requires for its support an additional substitution of words or which results in rejection of words as meaningless has to be avoided This Court in Grasim Industries Ltd. v. Collector of Customs : (2002) 4 SCC 297 observed: 10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where ....
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....o holds such land under that another person in perpetuity; or (b) 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) uses or occupies such land as a Khattal. (16) THE word 'any structure' relates to structure erected or acquired by purchase or gift on such land for a residential, manufacturing or business purpose. 'Any structure' mentioned therein has a direct relationship with the purpose for which the structure is erected or acquired i.e. for a residential, manufacturing or business purpose. The words 'any structure' has no bearing with the nature of structure i.e. whether it is 'Kutcha'(temporary) or 'pucca'(permanent). If such 'any structure' was erected or acquired not for residential, manufacturing or business purpose, the person who is holding land cannot claim to be a 'Thika Tenant' within the meaning of Section 2(5) even if other conditions mentioned therein are fulfilled. In all the above mentioned judgments of Calcutta High Court, the High Court has neither noticed nor discussed the purpose for which structure was erected or acq....