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2014 DIGILAW 620 (CAL)

Saswati Bhattacharya v. State of West Bengal

2014-07-11

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Judgment Jyotirmay Bhattacharya, J. This writ petition is directed against the judgment and/or order dated 12th June, 2013 passed by the West Bengal Land Reforms and Tenancy Tribunal in Tribunal Application being O.A No. 2337/08 (LRTT) at the instance of the writ petitioners who were the applicants before the Learned Tribunal. Let us now consider the merit of the instant writ petition in the facts of the present case. Admittedly, Chapala Sundari Devi, the predecessor-in-interest of the writ petitioners was the owner of Premises being No.115A , Rash Behari Avenue, Calcutta. The said Chapala Sundari Devi inducted one Udit Narayan Singh, the predecessor-in-interest of the private respondents in respect of the land comprising in Premises No.115A, Rash Behari Avenue, Calcutta as monthly tenant thereof sometime in 1948. Chapala Sundari Devi died sometime in 1951. During her life-time, rent was realized from the said Udit Narayan Singh by grant of rent receipts describing the said Udit Narayan Singh as “Thika Praja”. After the death of Chapala Sundari Devi, one of her sons, namely, Paresh Chandra Chakarborty representing himself as “Karta” of Hindu joint family executed a lease agreement on 12th June, 1975 for creating a tenancy in respect of the vacant land lying at Premises No.115A, Rash Behari Avenue, Calcutta in favour of the said Udit Narayan Singh for a period of 15 years with power to construct brick walls and pucca floor for carrying on business therein and also for using a part of it for residential purpose together with the right of induction of tenants. Subsequently, by virtue of a partition deed executed by and between the co-sharers of Paresh Chandra Chakarborty, the said premises was allotted to the share of the other brothers of Pareshbabu, namely, Debesh Chandra Chakraborty and Naresh Chandra Chakraborty. Udit Narayan Singh stopped paying rent to Debeshbabu and Nareshbabu since 1985. In 1989, he filed a return before the Thika Controller, Calcutta claiming himself to be a thika tenant in the said premises and started depositing rent with the Thika Controller. Arrear rent w.e.f. 18th January, 1982 was deposited with the Thika Controller at a time in 1987. A dispute cropped up between the parties as to the nature of the tenancy of the said Udit Narayan Singh. Arrear rent w.e.f. 18th January, 1982 was deposited with the Thika Controller at a time in 1987. A dispute cropped up between the parties as to the nature of the tenancy of the said Udit Narayan Singh. To be more specific, whether Udit Narayan Singh can be accepted as a thika tenant or not in the said premises was the subject matter of dispute between them. Udit Narayan Singh claimed his Thika Tenancy Right in the said property by contending that he being an admitted tenant in respect of the land lying in the said property, raised construction thereon on the strength of lease agreement, he should be regarded as thika tenant. Such claim of Udit Narayan Singh was denied by the predecessor-in-interest of the writ petitioners who contended that since Udit Narayan Singh was granted a tenancy in respect of the bare land with right to raise pucca construction, he cannot be regarded as a thika tenant as he raised “pucca” structure i.e., brick built walls with asbestos and tin shed in the said premises. Proceeding which was initiated before the Thika Controller on the basis of the return submitted by the said Udit Narayan Singh was contested by the predecessor-in-interest of the writ petitioners before the Thika Controller. Udit Narayan Singh submitted the following documents before the Thika Controller to establish his Thika Tenancy Right in the said land:- (1) Agreement between Sri Paresh Chandra Chakraborty, since deceased and Udit Narayan Singh dated 10th January, 1975. (2) Rent Receipts of land dated 15th July, 1948, 16th April, 1948, 12th July, 1950, August 1997, 20th January, 1981 & 8th July, 1981 issued by ex-landlords or their predecessor-in-interest. (3) Copy of C.M.C Municipal Assessment Book dated 18th November, 1987 showing the State represented by Controller, Thika Tenancy as the owner of land and the applicant as owner of the structure. (4) Copy of the Property Tax Receipt of Calcutta Municipal Corporation dated 19th January, 2007. On the contrary the predecessor-in-interest of the petitioners submitted the following documents to prove that Udit Narayan Singh was never a thika tenant in the said premises:- 1. Affidavit-in-opposition filed by Udit Narayan Singh in the writ petition being matter No.4234 of 1991 wherein Udit Narayan Singh admitted that he never raised any construction and/or alteration in the said premises. The said affidavit was affirmed by Udit Narayan Singh on 9th June, 1989. 2. Affidavit-in-opposition filed by Udit Narayan Singh in the writ petition being matter No.4234 of 1991 wherein Udit Narayan Singh admitted that he never raised any construction and/or alteration in the said premises. The said affidavit was affirmed by Udit Narayan Singh on 9th June, 1989. 2. Copy of the letter dated 2nd June, 1989 written by the City Architect, Calcutta Municipal Corporation to the Officer-in-charge, Gariahat Police Station informing the addressee about raising of such unauthorized construction which were mainly of Corrugated and Darma shed. He also relied upon the return submitted by Udit Narayan Singh on 4th July, 1989 and another undated return submitted by Udit Narayan Singh before the Thika Controller in support of his claim that Udit Narayan Singh was never a thika tenant in the said premises. After considering all those documents, the Thika Controller held that vacant land comprising in the said premises was let out to Udit Narayan Singh by his ex-landlord in the year, 1948 and ground rent was realized from him by the ex-landlord. After considering the nature of the present structures which was made by the applicant, the Controller, by his order dated 4th August, 2008 declared the said Udit Narayan Singh as thika tenant in respect of the subject premises comprising of 5 Cottah, 5 Chittack and 5 sq. ft. of land. It was further directed that the interest of the landlords in the said premises was deemed to have vested in the State free from all encumbrances w.e.f. 18th January, 1982 by operation of Section 4 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. It was also directed that the thika tenant will occupy such land directly under the State as per the provision of the said Act. The said Udit Narayan Singh was declared as thika tenant under the said Act of 2001. Being aggrieved by and dissatisfied with the said order of the Thika Controller, a Tribunal Application was filed by the writ petitioners before the West Bengal Land Reforms & Tenancy Tribunal for challenging the said order of the Controller and the said Tribunal Application being O.A. No.2337 of 2008 (LRTT) was ultimately dismissed by the Learned Tribunal on 12th June, 2013 by affirming the order of the Thika Controller. While dismissing the said Tribunal Application, the learned Tribunal after considering the lease deed of 1975, held that bare land was let out to the said Udit Narayan Singh by Paresh Chandra Chakraborty representing him as “Karta” of a joint Hindu family in 1975 for a period of 15 years together with the right to raise pucca brick built construction therein for carrying on business and for using a part of it for residential purpose and with right of induction of tenant therein. Considering the nature of the structure raised in the said premises by the said tenant, the Learned Tribunal came to a conclusion that the construction raised in the said premises was “semi-pucca construction”. Thus, according to the Learned Tribunal, both the conditions to become a thika tenant under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, i.e., liability to pay rent to the landlord in respect of the demised land and raising of construction therein by the tenant, are fulfilled in the instant case. Learned Tribunal also declared said Udit Narayan Singh is a thika tenant in respect of the said premises under the Act of 2001. The legality and/or correctness of such order of the Learned Tribunal is under challenge in this writ petition at the instance of the writ petitioners (Landlords). In the above background we are now required to consider as to how far the Thika Controller and the Tribunal were justified in coming to a conclusion that Udit Narayan Singh was a thika tenant in the said premises under the Act of 2001. In 1948 when Udit Narayan Singh was inducted as a tenant in the said premises, the concept of “thika tenancy” as it is now understood since the time of enactment of the Calcutta Thika Tenancy Act, 1949, was unknown. In those days, prior to the introduction of Calcutta Thika Tenancy Act, 1949, “Thika Praja” (thika tenant) was generally used to describe the nature of tenancy of a temporary tenant. In those days, prior to the introduction of Calcutta Thika Tenancy Act, 1949, “Thika Praja” (thika tenant) was generally used to describe the nature of tenancy of a temporary tenant. As such, one must not be confused with the expression of thika tenant used in the rent receipts granted by Chapala Sundari Devi describing Udit Narayan Singh as “Thika Praja” therein as mere description of a tenant as thika tenant, or as “Thika Praja” in the rent receipt issued in those days did not carry the same meaning which was subsequently attributed to the expression “thika tenant” under the Calcutta Thika Tenancy Act, 1949 or under the Calcutta Thika & Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 or under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. Since at the relevant time when he was inducted as a tenant under the lease dated 10th January, 1975, the Calcutta Thika Tenancy Act, 1949 was in force, it will be beneficial for us to consider the nature of the tenancy which Udit Narayan Singh had at the time of his initial induction in 1948 and also which he subsequently acquired under the subsequent lease granted to him by the lease agreement dated 10th January, 1975 executed by Paresh Chandra Chakraborty. The terms of the lease deed clearly manifests that at the time of execution of the lease on the 12th June, 1975 there was no construction in the said premises and as such lease was granted in respect of the bare land comprised in the said premises. By the said lease, Udit Narayan Singh was permitted to raise “pucca” construction in the said premises, partly for residential purpose and partly for business purpose with right to induct tenant therein. If the Calcutta Thika Tenancy Act, 1949 which was in operation at the relevant time is considered as a whole then it will be clearly manifest from the said Act that grant of authority to a tenant of the land by the landlord to raise “pucca” construction was not only unknown to the said Act but was also opposed to the provision of the said Act. The Calcutta Thika Tenancy Act, 1949 was enacted for making better provisions relating to laws of landlords and tenants in respect of the Thika Tenancies in Calcutta. The said Act came into operation on 28th February, 1949. The Calcutta Thika Tenancy Act, 1949 was enacted for making better provisions relating to laws of landlords and tenants in respect of the Thika Tenancies in Calcutta. The said Act came into operation on 28th February, 1949. Unlike 1981 Act and/or the Act of 2001, there was no provision either for acquisition of such thika tenancy or for vesting of such thika tenancy with the State in the Act of 1949. For ascertaining as to who were thika tenants under the said Act, the definition of “thika tenant” as defined in Section 2(5) of the said Act is required to be taken note of. Accordingly Section 2(5) of the said Act is quoted hereunder:- Section 2(5) – “Thika tenant” means any person 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 rate, 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 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”. Let us now consider as to whether Udit Narayan Singh can be regarded as a thika tenant in respect of the said premises with reference to the definition of thika tenant under the Act of 1949. Having regard to the fact that the lease agreement which was executed on 12th January, 1975 creating a tenancy in favour of Udit Narayan Singh in respect of the land comprising in the said premises for a period of 15 years, was not registered, though such lease deed was required to be registered compulsorily as per Section 17 of the Registration Act, he should be regarded as monthly tenant of the land under landlord. Thus, one of the conditions for becoming a “thika tenant” as per the said definition clause is satisfied in the instant case as his liability to pay rent to the landlord in respect of the demised land continued even after the expiry of the lease period. However, in order to declare him as a thika tenant under the said Act it must be established that such a tenant has raised any structure in the said premises. The expression “any structure” as mentioned in Section 2(5) of the said Act of 1949 has been judicially interpreted to mean a temporary or “kutcha” structure and not a permanent or “pucca” structure by the Division Bench of this Hon’ble Court in the case of Jatadhari Daw & Grandsons Vs. Smt. Radha Devi & Anr. reported in 1986(1) C.H.N. 21 which was also approved in the Full Bench decision of this Hon’ble Court in the case of Lakshmimoni Das Vs. State of West Bengal and Ors. reported in AIR 1987 (CAL) 326 . In this regard, Mr. Dasgupta, learned Senior Advocate drew our attention to two documents; one, i.e., the letter written by the City Architect to the police authority on 2nd June, 1989 and the Municipal Assessment register dated 18th November, 1987 relating to the assessment period commencing from 1st October, 1983 to show that Darma structure with asbestos & tin shed was constructed on the said land. He further contended that the existence of such construction on the said land at least in 1989 cannot be denied. He thus submitted that since the construction which was standing in the said land since 1983 was “kutcha” construction, Udit Narayan Singh was rightly declared as “thika tenant” by the Controller and the Tribunal. Mr. Mukherjee, Learned Senior Counsel appearing for the petitioner refuted such submission of Mr. Dasgupta by relying on these two decisions of this Court in the case of Jatadhari Daw (Supra) and in the case of Lakshmimoni Das (Supra). He contended that Udit Narayan Singh cannot be declared as a thika tenant unless he can establish that “kutcha” structure was constructed by him in the demised premises. Dasgupta by relying on these two decisions of this Court in the case of Jatadhari Daw (Supra) and in the case of Lakshmimoni Das (Supra). He contended that Udit Narayan Singh cannot be declared as a thika tenant unless he can establish that “kutcha” structure was constructed by him in the demised premises. By referring to the order of the Thika Controller he pointed out that the Controller held that, Udit Narayan Singh made a “kutcha” structure in the said premises but such finding, according to him is incorrect, as such finding was recorded in the order without ascertaining the nature of the construction made by him in the said premises. The Thika Controller declared him as thika tenant with reference to the structure presently standing therein without referring to the structure allegedly existing in the said premises in 1980. Mr. Mukherjee has also drawn our attention to the order of the Learned Tribunal, wherein the Learned Tribunal made a definite finding that presently brick built constructions with tin and asbestos shed are standing in the said premises and the said constructions are in the nature of “semi-pucca construction”. He thus, contended that if the brick built constructions are made with asbestos and/or tin shed thereon, it cannot be held that the construction which was made by the said tenant was “kutcha” construction which was sine qua non for a tenant being regarded as “thika tenant” under Calcutta Thika Tenancy Act, 1949. To demonstrate the actual nature of construction raised by the said tenant in the said premises Mr. Mukherjee, Learned Senior Counsel, also drew our attention to the return submitted by Udit Narayan Singh before the Thika Controller. One of such returns was submitted by Udit Narayan Singh on 4th July, 1989 and the other return, submitted by Udit Narayan Singh was undated. In the return submitted by Udit Narayan Singh on 4th July, 1989, he mentioned therein that his tenancy commenced in the said premises in 1975 and he constructed ten rooms with tin plus asbestos shed, six shop rooms, one garage and three residential rooms in the said premises. The material used for construction of the walls of the said premises have not been mentioned in the said return. As such from the said return it cannot be ascertained as to whether the construction was a “kutcha” structure or not. The material used for construction of the walls of the said premises have not been mentioned in the said return. As such from the said return it cannot be ascertained as to whether the construction was a “kutcha” structure or not. In the undated return submitted by Udit Narayan Singh before the Thika Controller, he claimed that his tenancy commenced in the year 1948 and he raised construction with brick built wall with asbestos shed consisting of eight rooms and shop rooms, one motor garage and etc. and the cost of construction was Rs.75,000.00 (Rupees seventy five thousand) approximately. Thus, Mr. Mukherjee, contended that if these two returns are taken into consideration then it will be crystal clear that the construction standing in the said premises was not “kutcha” structure, rather it was “pucca” structure with brick built wall with asbestos shed. He has also drawn our attention to the affidavit affirmed by Udit Narayan Singh in a writ petition being matter No.4234 of 1991 wherein he contended that he has not made any illegal construction and/or alteration in the said premises. The said affidavit was affirmed on 19th January, 1992. If the returns which were submitted by him as well as the statements made by him in his affidavit are considered, then according to Mr. Mukherjee, the notice issued by the City Architect to the Officer-in-charge of the Gariahat Police Station on 2nd June, 1989 referring therein about some unauthorized construction made of Corrugated and Darma shed, loses all its significance as the contents of the said letter were opposed to the return submitted by Udit Narayan Singh before the Thika Controller and/or the statements made by him on affidavit in connection with the aforesaid writ petition of 1991. Mr. Mukherjee, further contended that had there really been any construction of corrugated shed and/or Darma shed therein, such construction could not have been described as unauthorized construction as under the then Calcutta Thika Tenancy Act, 1949, raising of such structure by thika tenant was permissible under the Act itself. Mr. Mukherjee, further contended that had there really been any construction of corrugated shed and/or Darma shed therein, such construction could not have been described as unauthorized construction as under the then Calcutta Thika Tenancy Act, 1949, raising of such structure by thika tenant was permissible under the Act itself. He thus, contended that no reliance can be placed upon the said letter written by the City Architect addressed to the Officer-in-charge of the local police station, for ascertaining the nature of the construction existing in the said premises as mentioned therein as the contents of the said letter do not tally with the nature of the construction which was admittedly raised by Udit Narayan Singh in the said premises and the ultiamte fate of the said notice was not brought on record. We find substance in such submission of Mr. Mukherjee, which is also supported by the findings of the Learned Tribunal which also described the nature of the construction as “semi-pucca construction” having brick built wall with asbestos and tin shed. In this regard, we are also required to consider the effect of Section 10A which was introduced in the Calcutta Thika Tenancy Act, 1949 by way of amendment in 1969, giving right to the thika tenant to erect “pucca” structure in the manner as provided therein. Section 10A of the said Act is an enabling provision by which right to erect “pucca” structure for residential purpose on such land with the previous permission of the Controller was conferred upon the thika tenant who has taken such tenancy of bare land for residential purpose only. The said provision, thus, makes it clear that in order to exercise such right to raise pucca construction, the tenant must prove that he/she is a thika tenant within the meaning of “thika tenant” as defined in Section 2(5) of the said Act and once such a tenant can establish himself/herself as thika tenant within the meaning of Section 2(5) of the said Act, he/she can exercise his right of construction of “pucca” structure with the permission of the Controller for residential use only and not for any other purpose. If a pucca construction is raised by a tenant who is not a thika tenant on the demised land for using it for any purpose other than for residential purpose, he/she cannot be regarded as thika tenant simply because of the fact he/she raised pucca construction on the land with or without the permission of the Controller. It also necessarily follows that under the said enabling provision the Controller cannot permit a tenant who is not a thika tenant to raise any “pucca” construction on the demised land under Section 10A of the said Act. Since we have found that Udit Narayan Singh who was a monthly tenant of the land, did not raise any “kutcha” structure on the said land, he cannot be regarded as a thika tenant within the meaning of “Thika Tenant” as defined in Section 2(5) of the said Act. As such he had no right to raise any “pucca” construction on the said property under Section 10 A of the said Act. However, he acquired such right of raising “pucca” construction in the said premises from his landlord for using it either for residential or for business purpose by virtue of the authorization provided in the lease deed itself. Even this authorization given to a tenant of a land for raising pucca construction for using it for business purpose or for using it for combined purpose i.e., residential and business, was unknown to the provisions of the Calcutta Thika Tenancy Act, 1949 and as such the said tenant cannot be declared as a thika tenant under Section 2(5) of the Calcutta Thika Tenancy Act, 1949. Here, of course, neither the Controller nor the Learned Tribunal declared Udit Narayan Singh as thika tenant under the Act of 1949. He was declared as thika tenant under the Thika Tenancy (Acquisition and Regulation) Act of 2001. Before examining the correctness of such findings of the Learned Tribunal, let us now consider as to whether Udit Narayan Singh can be regarded as a thika tenant under the Calcutta Thika Tenancy & Other Tenancies and Lands (Acquisition and Regulation) Act, 1981. Thereafter, we will discuss the issue as to whether the said Udit Naryan Singh was a thika tenant under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, or not. Thereafter, we will discuss the issue as to whether the said Udit Naryan Singh was a thika tenant under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, or not. Section 3(8) of the Act of 1981 defines “thika tenant” as under:- Section 3 (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 a 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 successors-in-interest of such person. If the definition of “thika tenant” under Section 3 (8) of the said Act is compared with the definition of “thika tenant” under section 2 (5) of the Calcutta Thika Tenancy Act, 1949, then it goes without saying that excepting the exclusion part as mentioned in Clause (a) and (b) of Section 2(5) of the said Act of 1949, the remaining part of Section 2(5) of the said Act of 1949 is exactly similar and identical with the definition of “thika tenant” as defined under Section 3(8) of Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation ) Act, 1981. By deleting and/or omitting the said exclusion part of 1949 Act from the definition of “thika tenant” under Section 3(8) of the Act of 1981, a lessee under a lease even for more than 12 years was also brought under the purview of thika tenancy as per the definition of “Thika Tenant” under Section 3(8) of the said Act, provided however, the other conditions regarding the tenant’s liability to pay rent in respect of demised land under a lease or otherwise, continues and such tenant has erected or acquired by purchase or gift any structure on such land either for residential or manufacturing or business purpose. The said Act came into operation with effect from 18th January, 1982. Thus, if a tenant can prove that he occupies land of another person under a lease or otherwise and his liability to pay rent continues and he has also erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose then he can be regarded as thika tenant. Thus, if a tenant can prove that he occupies land of another person under a lease or otherwise and his liability to pay rent continues and he has also erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose then he can be regarded as thika tenant. Since we have already held that Udit Narayan Singh became a monthly tenant of the land of the said premises as per the said lease deed dated 10th January, 1975, it cannot be disputed that the said tenant had liability to pay rent for the demised land to his landlord. In fact liability of the tenant to pay rent to the landlord continued even after expiry of the lease period. Thus, the part of the requirement under Section 3(8) of the said Act i.e., liability to pay rent to the landlord, is fulfilled in the instant case. However, the other requirement i.e., erection and/or acquisition by purchase or gift, any structure on such land by the tenant for residential, manufacturing or business purpose, is not satisfied in the instant case as admittedly the said lessee did not raise any “kutcha” structure” and/or temporary structure on the demised land. We have already indicated above that the expression “structure” used in Section 3(8) of the said Act should be construed as “kutcha” structure and/or temporary structure in contra-distinction to permanent or “pucca” structure as was held by the Division Bench of this Hon’ble Court in the case of Jatadhari Daw & Grandsons Vs. Smt. Radha Devi & Anr. (Supra) which was subsequently affirmed by the Full Bench of this Hon’ble Court in the case of Lakshmimoni Das Vs. State of West Bengal (Supra). We have already stated above that the documents which were relied upon by Mr. Dasgupta, Learned Senior Advocate, no doubt indicates that some “kutcha” constructions were there in the said premises, but we feel that it will not be safe to rely upon these documents as the contents of these documents are contrary to the return submitted by Udit Narayan Singh as well the statements made by him on affidavit in connection with an earlier writ petition. It was stated in the said affidavit that he did not raise any construction in the said premises till 1991. It was stated in the said affidavit that he did not raise any construction in the said premises till 1991. He never claimed that these constructions were there in the said premises even before execution of the lease deed. The lease deed shows that bare land was let out. Thus, we have no hesitation to hold that Udit Naryan Singh failed to establish that he constructed any “Kutcha” construction in the said premises. He also failed to prove as to how he acquired interest in the said construction, even if it is found to have existed there. Thus, when he himself denied the existence of such construction and/or the construction thereof was made by him, we can safely hold that the second condition for becoming a thika tenant, could not be fulfilled by him. As such the said lessee cannot be deemed to be thika tenant as per Section 3(8) of the said Act of 1981, and his tenancy in the said premises cannot be vested with the State under Section 5 of the Act. Section 5 which was initially incorporated in the Act at the time of enforcement of the said Act as on 18th January, 1982, has subsequently been substituted by the Amendment Act of 1993 giving retrospective effect from 18th January, 1982. A controversy has cropped up as to which of those two provisions namely, the provisions contained in original Section 5 or the substituted provision of Section 5 will be regarded as the guiding factor for vesting of the landlord’s interest in thika tenancies and/or other lands in the State. Such controversy arose as the amended provision of 1993 was given retrospective effect from 18th January, 1982 which was also the date when the original provision of Section 5 of the said Act was made operative. However, such controversies can be resolved with reference to the decisions of the Hon’ble Supreme Court in the case of State of Punjab Vs. Mohor Singh reported in AIR 1955 SC 84 , in the case of Qudrat Ullah Vs. Municipal Board, Barelly reported in 1974(1) SCC 202 , in the case of State of Rajasthan Vs. Mangilal Pindwal reported in (1996)5 SCC 60 and Ram Das Bansal (dead) through L.R Vs. Khar Singh Baid & Ors. Mohor Singh reported in AIR 1955 SC 84 , in the case of Qudrat Ullah Vs. Municipal Board, Barelly reported in 1974(1) SCC 202 , in the case of State of Rajasthan Vs. Mangilal Pindwal reported in (1996)5 SCC 60 and Ram Das Bansal (dead) through L.R Vs. Khar Singh Baid & Ors. reported in (2012) SCC 548 wherein it was uniformly held by the Hon’ble Supreme Court that whenever an enactment is repealed, the consequences laid down in Section 6 of the General Clauses Act will follow, unless of course, a different intention appears in the repealing enactment. It was held therein that in case of simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention or not. The line of enquiry would be, as to whether the new Act expressly keeps alive old rights and liabilities, or whether it may manifest an intention to destroy them. The court cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also, unless the new legislation manifests an intention incompatible with or contrary to the provision of the Section. Such incompatibility would have to be ascertained from consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. The provision of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. For proper appreciation of the legislative intent in this regard we feel it necessary to quote both the original and substituted provision of Section 5 of the said Act. Accordingly, we quote both the aforesaid provisions hereunder:- “Original provision of Section 5 of the said Act – Lands comprised in thika tenancies and other lands etc. For proper appreciation of the legislative intent in this regard we feel it necessary to quote both the original and substituted provision of Section 5 of the said Act. Accordingly, we quote both the aforesaid provisions hereunder:- “Original provision of Section 5 of the said Act – 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 by 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 occupied as khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and khatals and the right, title and interest of landlords 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. Substituted provision of Section 5 – Lands comprised in thika tenancies, khas lands, etc. Substituted provision of Section 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 not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains; (d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal: Provided that such vesting shall not effect in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias and occupiers of land coming within the purview of clauses (c) and (d)”. Before considering the effect of repealment of the old provision by the newly substituted provision, we feel it necessary to mention that the Full Bench decision of our High Court in the case of Lakshmimoni Das (Supra) wherein our High court had the occasion to consider the provisions of the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981 as it stood prior to its amendment by Amendment Act of 1993. However, since retrospective effect of the amended provision was given from 18th January, 1982 i.e., the date since when the original provisions of the said Act remained operative, a confusion was created as to which one of these two provisions was to be followed for vesting of the landlord’s interest in thika tenancy and/or other land used and/or occupied as khatal, on the date of vesting i.e., 18.01.1882 as contrary intention is reflected in the new legislation on the laws of vesting. After considering the provisions of the said Thika Tenancy Act of 1981 as it stood originally in Section 5 of the said Act of 1981, the Full Bench of this Hon’ble court in Lakshmimoni Das’s case (Supra) held as follows:- Paragraph 56 (b) “Within the scope and ambit of Section 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure and/or pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease shall vest and save as aforesaid no other land and structure vest under the impugned Act”. The decision of the Full Bench of our High Court in Lakshmimoni Das’s case (supra) was challenged by the State before the Hon’ble Supreme Court in a Special Leave Petition but the same was ultimately withdrawn as the Act of 1981 was repealed subsequently by the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 with a saving clause for protecting the closed chapter relating to the rights and liabilities of the landlord vis-a-vis the thika tenant already acquired, accrued or incurred under the old Act and to save the land acquisition proceeding which had already been concluded before the new Act of 2001 came into operation and/or to save the pending proceedings under the repealed Act. Thus, the decision which was ultimately taken by the Full Bench of this Hon’ble Court in the case of Lakshmimoni Das (Supra) attained its finality and/or the same has a binding effect on general public as judicial precedent of this court. On plain reading of the amended provision of Section 5 of the said Act, it appears to us that apart from thika tenancy property and/or the khatal land, some other land which was neither thika tenancy land nor khatal land, was sought to be vested under Section 5(c) of the said Act. On plain reading of the amended provision of Section 5 of the said Act, it appears to us that apart from thika tenancy property and/or the khatal land, some other land which was neither thika tenancy land nor khatal land, was sought to be vested under Section 5(c) of the said Act. Thus, if we apply the principle laid down by the Special Bench of this Hon’ble Court in the Lakshmimoni Das’s case (supra) in the instant case in the context of the original provision of Section 5 of the said Act of 1981, then we have no hesitation to hold that since the predecessor-in-interest of the private respondent was not thika tenant under the Calcutta Thika Tenancy Act, 1949, his tenancy could not have vested in the State by operation of the amended provision of Section 5 of the said Act. Thus, we hold that the landlord’s interest in the said property never vested in the State under the said Act of 1981. Then again, if 2001 Act is taken into consideration then also we hold that the landlords’ interest in the said premises could not have vested in the State by treating the land comprised in the petitioners’ premises as thika tenancy land for the following reasons:- Definition of thika tenant as contained in Section 2 (14) of the Act of 2001 and the subsequent amendment thereof are required to be considered in this regard. Sec. 2(14) “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 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 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 status, he may have enjoyed earlier. The definition of “thika tenant” under Section 2 (14) of 2001 Act as mentioned above was almost identical with the definition of thika tenant as mentioned in Section 3(8) of 1981 Act except the exclusion part regarding structure which stood forfeited to the State under Sub-Section 2(6) of the said Act. The definition of “thika tenant” under Section 2 (14) of 2001 Act as mentioned above was almost identical with the definition of thika tenant as mentioned in Section 3(8) of 1981 Act except the exclusion part regarding structure which stood forfeited to the State under Sub-Section 2(6) of the said Act. The definition of “thika tenant” in Section 2(14) of Act of 2001 was amended by the Amendment Act of 2010 and thereby the words “by purchase or gift any structure on such land” was substituted by the words “by purchase or gift any structure including pucca structure if any on such land”. Thus, the expression “pucca structure” was included in the definition clause of Section 2 (14) of the said Act for the first time by the Amendment Act of 2010 and effect of such amendment was given prospectively with effect from 1st November, 2010. The effect of the amendment was not given from the date when the 2001 Act came into operation from 18th January, 1981. We fully agree with the contention of Mr. Mukherjee, Learned Senior Counsel that the expression “structure” including “pucca” structure was included in Section 2(14) of the said Act only for recognizing the tenancy of those thika tenants who constructed such “pucca” structure with the permission of the Thika Controller either under the provision of Section 10 A of the Calcutta Thika Tenancy Act, 1949 or constructed such “pucca” structure as per the provision contained in sub-section 6 of Section 4 of the Act of 1981 in accordance with the building plan sanctioned by the Calcutta Municipal Corporation and/or Howrah Municipal Corporation as the case may be, so that the penal provision for raising such unauthorized pucca structure is not attracted against the thika tenants by following the Division Bench decision in the case of Purushottam Das Murarka Vs. Harendra Krishna Mukherjee (Supra). The relevant part of the said decision is set out hereunder:- “But there cannot be any doubt and it is also not disputed on behalf of the appellant that, if during pendency of his lease, a thika tenant constructs or attempts to construct pucca structures on the demised land without the permission of the landlord, he does not cease to be a thika tenant. The landlord will have the right to bring an action against the thika tenant for the purpose of restraining him from constructing a pucca structure on the demised land or a mandatory injunction directing the tenant to demolish the pucca structures which he constructed during the pendency of his lease without the consent of the landlord”. In our reading, we find a different principle was laid down in the said decision. It was simply decided therein that if a thika tenant raises any pucca construction during the continuance of his lease without the landlord’s consent, then the landlord may initiate action for demolition of such unauthorized construction. It was never held in the said decision, that if tenant of a land raises “pucca” structure, he will automatically be a thika tenant. Having regard to the fact that there was nothing on record to show that the “pucca” construction which was made by the said Udit Narayan Singh in the said premises was made either for residential purpose with the permission of the Thika Controller as per the provision contained in Section 10 A of the Calcutta Thika Tenancy Act, 1949 or such “pucca” construction was raised by him with the sanction of the Municipal Authority as per sub-Section 6 of Section 4 of 1981, it cannot be held that said Udit Narayan Singh by virtue of raising such “pucca” construction in the said premises became a thika tenant under the West Bengal Thika Tenancy (Acquisition and Regulation) Act of 2001. Thus, we conclude by holding that the Controller and the Tribunal were not justified in holding that the private respondents were thika tenants in respect of the petitioners’ said premises and the landlord’s interest in the said premises vested with the State under the Act of 2001 with effect from 18th January, 1982. The impugned order passed by the Tribunal is thus set aside. The writ petition is thus allowed.