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2002 DIGILAW 678 (CAL)

Chandra Devi Bothra v. State of West Bengal

2002-10-09

Asit Kumar Bisi

body2002
Judgment A.K. Bisi, J. The question to be decided in the instant matter at this stage is whether or not this court has jurisdiction to try the suit. It has been pleaded by defendant No.3 K.G. Patel & Co. in paras 2 and 3 of their written statement that the Civil Court's jurisdiction is ousted under section 23 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 and this court has no jurisdiction to try the suit. An issue being issue No.2 on this question of jurisdiction has also been framed in the instant suit to the following effect :-Is there thika tenancy in respect of the disputed premises and if so, does this court have any jurisdiction to entertain this suit? 2. The plaintiffs as it appears have instituted the instant suit against the defendants seeking inter alia declaration that the plaintiffs are absolute owners in respect of premises No. 45, Chittaranjan Avenue, Calcutta, together with the structures standing thereon more fully described in Schedule 'A' to the plaint, further declaration that the said premises No. 45, Chittaranjan Avenue, Calcutta, together with all structures standing thereon has not vested in defendant No.1 the State of West Bengal by and under the provisions of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 and a decree for possession of the said premises by evicting the defendant therefrom. The plaintiffs have also claimed decree for mesne profits and other reliefs. 3. It has been alleged by the plaintiffs inter alia in paragraph 7 of the plaint that sometime immediately before 20th January, 1995, defendant Nos. 1 and 2 appear to have purportedly declared defendant No.1 as owner of the said premises by reason of the alleged vesting of the same under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and recognised the defendant firm as thika tenant behind the back and without any knowledge of or notice to the plaintiffs and pursuant thereto the said defendant firm approached the Calcutta Municipal Corporation to recognise it as thika tenant in their records. It has been further alleged by the plaintiffs that the said Municipal Corporation issued a notice to the plaintiffs being No. A/XIV/94 dated 20th January, 1995 stating that the defendant firm had applied for recording its name in the records of the said Corporation as a thika tenant by allegedly producing some purported thika challans. As per the case of the plaintiffs in reply to the said notice the plaintiffs by a letter dated 15th May, 1995 denied any right of the defendant firm as a thika tenant. Despite the same the defendant caused the said Municipal Corporation to pass an order without any further notice or any hearing to the plaintiffs whereby the said premises was recorded as a thika property and the name of the defendant firm was recorded as thika tenant in respect of the same. Further case of the plaintiffs is that being aggrieved by and dissatisfied with the said action on the part of the defendents, the plaintiffs preferred an application under Article 226 of the Constitution of India in this Court being writ petition No. 847 of 1996 and a limited relief was granted by the learned trial Judge by his order dated 27th May, 1996 and on appeal the Division Bench by the order dated 3-10-1996 modified the order of the learned trial Judge and set aside the order dated 8-2-1996 passed by the Calcutta Municipal Corporation mutating the name of the defendant firm as aforesaid. The Division Bench further observed that the parties should get their respective title decided in an appropriate forum. 4. Mr. P.K. Roy the learned Senior Counsel for the plaintiffs had drawn my attention to the judgment of the Division Bench passed on 3-10-96 in the said appeal which was preferred against the judgment and order dated 27th May, 1996 passed by the learned Single Judge in Writ Petition No. 847 of 1996 whereby the learned trial Judge allowed the writ petition filed by the writ petitioner presently plaintiff No.1 quashing the order dated 8-2-96 passed by the Calcutta Municipal Corporation mutating the name of present defendant No. 3 firm. In the said appeal the Division Bench held as follows :- "For the reasons aforementioned there cannot be any doubt whatsoever that the Calcutta Municipal Corporation could not have gone into the question of title, and in that view of the matter, the judgment of the learned trial Judge cannot be faulted. However, in view of the admitted position in law, in my opinion, the learned trial Judge was not correct in remitting the matter back to the authorities of the Calcutta Municipal Corporation inasmuch as in the facts and circumstances of this case it would be wholly unnecessary as even if an opportunity of hearing is given to the contesting parties, evidently no fruitful result will ensue. For the reasons aforementioned, in modification of the order passed by the learned trial Judge it is directed that the order dated 8.2.96 passed by Calcutta Municipal Corporation mutated the name of the appellant is set aside and the parties should get their respective title decided in an appropriate forum." 5. Pointing out the said decision of the division Bench passed in the above noted appeal Mr. P.K. Roy the learned Senior Counsel for the plaintiffs has contended that since the parties were given liberty to get their respective title decided in an appropriate forum and the instant suit has been filed by the plaintiffs seeking declaration of title along with decree for possession and other reliefs this court has jurisdiction to try the suit and neither the Thika Controller nor the Land Reforms and Tenancy Tribunal has got any jurisdiction to adjudicate upon the question of title which is very much involved in the instant suit. 6. Mr. P.K. Mallick the learned Senior Counsel for defendant No.3 has contended on the other hand that in view of the averments made in paragraph 7 of the plaint and prayer (b) of the plaint this court cannot adjudicate upon the dispute raised by defendant No.3 who, as submitted by Mr. Mallick, is a thika tenant in respect of the premises in suit. 7. On perusal of the contents of the plaint I find that the plea of thika tenancy raised by defendant No. 3 has been denied by the plaintiffs who, as stated hereinbefore, have sought declaration that they are absolute owners in respect of the premises in question along with other reliefs. 7. On perusal of the contents of the plaint I find that the plea of thika tenancy raised by defendant No. 3 has been denied by the plaintiffs who, as stated hereinbefore, have sought declaration that they are absolute owners in respect of the premises in question along with other reliefs. Defendant No.3, however, has pleaded inter alia in para 8.8 of the written statement as amended that upon execution of the lease deed dated 30th July, 1956 the lessee M/s. K.G. Patel and Co. became a thika tenant under Smt. Khetramoni Dassi within the meaning of section 2(5) of the Calcutta Thika Tenancy Act, 1949 in respect of the concerned land and continued to be a thika tenant all along originally under the original land owners till the provisions of Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 came into force on 18th January, 1982 and thereafter statutorily under the State of West Bengal upon vesting of the said holding under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 irrespective of any contract between M/s. K.G. Patel and Co. and the said Smt. Khetramoni Dassi. In para 25 of the written statement defendant No.3 has raised a plea that the suit premises vested in the State of West Bengal under the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 which came into force on 18th January, 1982, in alternative this defendant acquired good right, title and interest over the suit property by way of adverse possession. 8. On perusal of the pleadings of the parties and consideration of the materials on record I find that the plaintiffs have claimed absolute ownership over the suit premises whereas defendant No.3 has claimed itself to be a thika tenant under the State Government alleging that the property in question vested in the suit under the provisions of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981. As already indicated, defendant No.3 has raised an alternative plea of title by adverse possession over the premises in question as well. 9. Mr. As already indicated, defendant No.3 has raised an alternative plea of title by adverse possession over the premises in question as well. 9. Mr. P.K. Mallick the learned Senior Counsel for defendant No.3 has laid emphasis on prayer (b) of the plaint whereby the plaintiffs have sought declaration that the said premises No. 45, Chittaranjan Avenue, Calcutta, together with all structures standing thereon as more particularly described in Schedule 'A' thereto has not vested in defendant No.1 State of West Bengal under the provisions of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 and argued that this Court cannot deal with the plea of thika tenancy under defendant No. 1 the State and such question cannot be decided by this court since there are specific provisions in the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 authorising the Thika Controller to deal with such matter. The learned advocate appearing for defendant No.1 the State of West Bengal has supported the above contention raised by Mr. Mallick. 10. To refute the above noted contention raised by Mr. P.K. Mallick the learned Senior Counsel for defendant No. 3, Mr. P.K. Roy the learned Senior Counsel for the plaintiffs has cited the decision of the Division Bench of this Court in Indira Devi Rajak vs. Thika Controller & Ors., reported in 1999(2) CHN 311 , wherein at page 317 (para 24) the Division Bench held as follows:- "We have carefully considered the submissions made on behalf of the respective parties and we are of the view that the Thika Tenancy Controller, Howrah, overstepped the jurisdiction vested in him under the provisions of the Statute. As will appear from the order-sheet itself, except for the entries in the R.S. record-of-rights, the Thika Tenancy Controller, Howrah, did not rely on any, other document in assuming that the property in question was a thika tenanted property. While it is true that in the R.S. record-of-rights, the property may have been described as a thika tenanted property, the Thika Tenancy Controller, Howrah, in our view, ought not to have relied on such entries in arriving at a decision that the property in question was a thika tenanted property, since it is now well-established that the entries in the record-or-rights give rise only to a presumption or possession and cannot be relied upon as a document of title. Furthermore, in our view, the Thika Tenancy Controller, Howrah, exceeded the jurisdiction vested in him in declaring the two deeds, referred to above as void. This, in our view, comes within the purview of the Civil Court and could have been declared as void only by the Civil Court." 11. In the said case Indira Devi (supra) at page 317 (para 25) the Division Bench further held as follows:- "While sub-section (2) of section 7 of the 1981 Act indicates that any transaction entered into in respect of a thika tenanted property after the coming into operation of the 1981 Act would be void, the same would have to be declared as void not by the Thika Tenancy Controller, Howrah, but by the Civil Court. The Thika Tenancy Controller, Howrah, being a creature of the Statute he has to confine himself to the powers vested in him by the Statute. There is nothing in the Statute to indicate that the Thika Tenancy Controller, Howrah, could adjudicate on the validity of a document of title, notwithstanding the provisions of sub-section (2) of section 7 of the 1981 Act." 12. Mr. Roy has further cited a Single Bench decision of this Court in Shayamal Atta & Ors. vs. State of West Bengal, the Learned Thika Controller & Anr., reported in 1999(1) CLJ 250, wherein it has been held that the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 does not give any power to the Thika Controller to adjudicate whether a person is a thika tenant or not. 13. Relying on the aforesaid decisions cited by him Mr. Roy has argued that neither the Thika Controller nor the West Bengal Land Reforms and Tenancy Tribunal is empowered to adjudicate upon the question of title to be decided in the suit. He has drawn my attention to sub-sections (2) and (3) of section 8 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 which empowers the Thika Controller to determine payment of amount of compensation to the landlord or landlords, as the case may be, for vesting of any land in the State under section 5 of the said Act. Sub-section (2) and sub-section (3) of section 8 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 are quoted hereunder:- "(2) Where the landlord is a corporation or an institution established exclusively for a religious or a charitable purpose, of a public nature, or is a person holding under a public trust or an endowment or other legal obligation exclus1vely for a public purpose which is religious or charitable, the State shall, for vesting under section 5, pay to such landlord a perpetual annuity or, where the interest of the landlord is terminable or is liable to be exhausted, an annuity for such number of years as may be prescribed, having regard to the extent of the rights of the landlord. Such annuity shall not exceed the annual net income derived from the holding as may be determined by the Controller in the prescribed manner. In determining the net annual income the Controller shall deduct from the gross income apart from other sums as may be prescribed, charges on account of management and collection at the rate of twenty per centum of the gross income. (3) For the purpose of sub-section (2), the Controller, on his own motion or upon any information, may, after giving the person interested an opportunity of being heard, enquire and decide any question as to whether any trust, endowment, corporation or institution is for exclusively religious or charitable purpose or as to whether it is of public or private nature, and any question of title incidental thereto as may be necessary to determine such question, by examining the document, if any, and by taking into account the following among others:- (i) actual user of income of the land, (ii) made of user, (iii) share of income of the land appropriated or enjoyed, by or on behalf of such trust, endowment, corporation or institution." 14. Referring to the aforesaid provisions Mr. Roy has submitted that the power of a Thika Controller as circumscribed under the aforesaid provisions is to determine the question relating to amount of compensation payable to the landlord because of vesting of the land in the State and for the purpose of such determination the Thika Controller can consider any question of title which is incidental thereto in the manner as envisaged under sub-section (3) of section 8 of the said Act. Section 12 of the said Act lays down that the Controller and any person deciding any appeal from his order shall have all the powers of the Civil Court in respect of the matters enumerated therein which are mainly procedural in nature. Mr. Roy has further contended that the Controller does not have all the powers of a Civil Court except those mentioned in section 12 of the said Act. He has pointed out the relevant provisions of law in support of his contention that the Thika Controller has got only the limited power prescribed by the provisions of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 and cannot adjudicate upon the question of the plaintiffs title to the suit premises and the plaintiffs claim for possession of the premises by evicting the defendant therefrom and other reliefs which this court alone has got jurisdiction and power to decide. 15. Mr. P.K. Mallick the learned Senior Counsel for defendant No.3 has contended on the other hand that section 23 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 operates as bar to jurisdiction of this court to try the instant suit. Section 23 of the said Act reads as follows:- "Bar to jurisdiction-No Civil Court shall have jurisdiction to decide or deal with any question or to determine any matter which is by or under this Act required to be or has been decided or dealt with or to be determined or has been determined by the Controller or the appellate or other authority specified in the provisions of this Act and no order or judgment passed or proceedings including execution proceedings commenced under the provisions of this Act shall be called in question in any Civil Court." 16. Mr. Mallick has produced one copy of the West Bengal Thika Tenancy (Acquisition and Regulation) Bill, 2001 and pointed out sub-section (3) of section 5 of the said Bill which provides that if any question arises as to whether a person is a thika tenant or not the matter shall be decided by the Controller. But the said Bill which was passed by the West Bengal Legislative Assembly has not yet been assented to by the President. Be that as it may, Mr. But the said Bill which was passed by the West Bengal Legislative Assembly has not yet been assented to by the President. Be that as it may, Mr. Mallick has mainly relied on section 23 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 as quoted above and cited the respective cases of Secretary of State vs. Mask and Co., reported in AIR 1940 Privy Council 105 and Firm Seth Radha Kishan vs. Administrator Municipal Committee, Ludhiana, reported in AIR 1963 Supreme Court 1547, in support of his contention that jurisdiction of this court to try the instant suit is expressly barred by section 23 of the said Act. 17. In the case of Secretary of State(supra) at page 110 Lord Thankerton delivering the judgment of the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied and it is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 18. In the case of Firm Seth Radha Kishan (supra) at page 1551 (para 7) the Supreme Court held as follows:- "Under section 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect, of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court's jurisdiction is not completely ousted. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court's jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions." 19. Having regard to the materials on record, the relevant provisions of law and the rival contentions raised by Mr. Roy and Mr. Mallick I am of the view that the instant suit instituted by the plaintiffs claiming title to the suit premises and decree for possession of the same by evicting the defendant therefrom along with other reliefs cannot come within the ambit of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981. None of the two decisions cited by Mr. Mallick can render any assistance to the case of his client. 20. Mr. Mallick has, however, referred to some of the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. He has pointed out clauses (a) and (d) of section 6 of the said Act which empowers the tribunal to exercise jurisdiction, power and authority in relation to an order in original made by the authority under a specified Act and also in relation to adjudication of disputes and applications relating to matters under any provision of a specified Act involving interpretation of any provision of the Constitution or of validity of a specified Act or of any other law for the time being in force. He has further pointed out section 2(r)(iii) of the said Act which indicates that the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 is one of the specified Acts. section 7 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 empowers the tribunal to exercise all the jurisdiction, power and authority for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provision of a specified Act. section 7 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 empowers the tribunal to exercise all the jurisdiction, power and authority for adjudication or trial of disputes and applications relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of any provision of a specified Act. Section 8 of the said Act excludes jurisdiction of courts, as referred to therein, to entertain any proceeding or application or exercise any jurisdiction, power or authority in relation to adjudication or trial of disputes or applications relating to land reforms or any matter connected therewith or incidental thereto or any other matter under any provision of a specified Act where the Tribunal alone can exercise jurisdiction, power and authority under the provisions of that Act. 21. On going through the relevant provisions of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 and the relevant provisions of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 as pointed out by the learned counsel for the parties before me I am of the view that the relevant provisions of both the Acts, if read together, can only indicate jurisdiction, power, and authority of the Thika Controller and the Land Reforms and Tenancy Tribunal, as the case may be, to deal with the matters as specified in both the Acts respectively and that this court alone has got jurisdiction to try the instant suit where both parties have raised rival claims of title over the property in question. Here again I may point out even at the risk of repetition that the plaintiffs have claimed absolute ownership over the premises in question whereas defendant No.3 has raised claim over the said premises as thika tenant under defendant No.1 State alleging that the said property vested in the State. That apart, defendant No. 3 has raised the plea of adverse possession over the suit property as well. In such circumstances the present suit has been instituted by the plaintiffs seeking declaration that the plaintiffs are the absolute owner in respect of the suit premises together with all structures standing thereon, declaration that the said premises with all structures standing thereon has not vested in defendant No.1 State, a decree for possession of the said premises by evicting the defendant therefrom, decree for mesne profit and other reliefs. In my view neither section 23 of the Calcutta Thika and Other Tenancies and Land (Acquisition and Regulation) Act, 1981 nor section 8 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 operates as bar to jurisdiction of this court to try the instant suit. 22. Mr. P.K. Mallick, the learned senior counsel for defendant No.3 has drawn my attention to the fact that by the West Bengal Land Reforms and Tenancy Tribunal (Amendment) Act, 2002, the West Bengal Premises Tenancy Act, 1997 has been included as one of the specified Acts within the purview of section 2(r) of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. True, the West Bengal Premises Tenancy Act, 1956 was repealed by the West Bengal Premises Tenancy Act 1997. Section 45 of the West Bengal Premises Tenancy Act, 1997 reads as follows:- "Section 45 Repeal and savings.-(1) The West Bengal Premises Tenancy Act, 1956 (West Ben. Act XII of 1956) (hereinafter referred to in this Chapter as the said Act), is hereby repealed. (2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending at the commencement of this Act before any court or any other authority shall be continued and disposed of in accordance with the provisions of the said Act as if the said Act had continued in force and this Act had not been passed: Provided that that the provisions for appeal under the said Act shall continue in force in respect of the suit or proceeding disposed of thereunder: Provided further that for any of the purposes as aforesaid, the Controller or the Additional Controller or the Deputy Controller appointed under this Act shall be deemed to be the Rent Controller or Additional Rent Controller or Deputy Rent Controller, as the case may be, appointed under the said Act. Explanation.-In this section, 'proceeding' includes any appeal, review or, revision, application for execution, or any other proceeding whatsoever under the Act." 23. In this context section 46 of the said Act is also quoted below:- "Section 64. Explanation.-In this section, 'proceeding' includes any appeal, review or, revision, application for execution, or any other proceeding whatsoever under the Act." 23. In this context section 46 of the said Act is also quoted below:- "Section 64. Proceedings to be deemed to have been validly continued.-For the removal of doubt it is hereby declared that notwithstanding any decision of any court to the contrary, any proceeding pending at the commencement of this Act, which was continued after that date and any decree passed or order made after that date in accordance with the provisions of the said Act in any such proceeding, shall be deemed to have validly continued, passed or made, as if the said Act had been in force, and had not been repealed, and no such proceeding, decree or order shall be called in question in any manner merely on the ground that the said Act was not in force when such proceeding was continued, such decree was passed or such order was made." 24. In view of the aforesaid provisions I find that the instant suit where the decree for ejectment has been prayed for by the plaintiffs squarely comes within the scope of the West Bengal Premises Tenancy Act, 1956 and the provisions of the said Act will apply to the present suit irrespective of repeal of that Act of the 1997 at the commencement of which the same was pending. 25. For the foregoing reasons I find that this court has got jurisdiction to try the instant suit. I however, make it clear that I have not gone into the merits of the disputes between the parties including the plea of thika tenancy raised by defendant No.3 in respect of the premises in question at this stage and all such disputes will be properly adjudicated upon at appropriate stage of trial on evidence. 26. Let the suit appear in the list for hearing on 22-11-2002. 27. Parties to act on a xerox signed copy of this dictated order on usual undertaking.