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2019 DIGILAW 462 (CAL)

Sudhir Kumar Gupta v. Arati @ Arti Gupta

2019-04-08

SANJIB BANERJEE, SUVRA GHOSH

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JUDGMENT : 1. The second appeal has been preferred against concurrent findings holding that the suit was not maintainable before a civil court in view of Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 read with Section 8(3) thereof. 2. The Act of 2001 covers thika tenancies in the State and appears to be the repository of the law on thika tenancies all over the State. 3. There is no dispute that the appellants herein are thika tenants and municipal rates and taxes deposited with the corporation by the appellants are on the basis that the appellants are thika tenants in respect of the suit land. There are structures which have been constructed on the thika land and tenants have been inducted thereat. Such tenants are known, in accordance with the thika tenancy laws down the ages, as bharatias. The suit here was admittedly instituted by a thika tenant for the eviction of a bharatia on the ground that the tenancy was for residential purpose, but the bharatia, who owns several other properties, uses the tenanted structure as a godown and not for residential purpose. 4. On an application under Order VII Rule 11 of the Code filed by the defendant, the plaint was rejected by the trial court. The trial court found that Section 8(3) of the Act of 2001 conferred authority on the thika controller to adjudicate claims for eviction lodged against a bharatia. In appeal, Section 21 of the Act of 2001 was also noticed and the appeal was dismissed by affirming the order passed by the trial court. 5. According to the appellants, Section 8(3) of the Act of 2001 does not give plenary authority to the thika controller to decide matters pertaining to eviction of bharatias, but the provision merely says that the authority may be exercised as prescribed. The appellants next refer to the West Bengal Tenancy (Acquisition and Regulation) Rules, 2004 and place Rule 13 thereof. Rule 13(1) of the said Rules refers to the form in which an application for payment of rent may be made by a thika tenant or a bharatia. The appellants next refer to the West Bengal Tenancy (Acquisition and Regulation) Rules, 2004 and place Rule 13 thereof. Rule 13(1) of the said Rules refers to the form in which an application for payment of rent may be made by a thika tenant or a bharatia. Rule 13(2) of the said Rules of 2004 provides as follows: “Any dispute, relating to eviction of a Bharatia, shall be disposed of by the Controller by giving reasonable opportunity of being heard to all concerned and after taking into account the provisions laid down in Chapter III of the West Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997), as subsequently amended and the rules framed thereunder.” 6. It may do well, at this stage, to notice Section 8(3) of the Act of 2001. “8. Incidents for tenancies of Bharatias. – … (3) Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.” 7. The prescription in the rules is that both the thika tenant who seeks to evict the bharatia and the bharatia should have reasonable opportunity of being heard and the matter as to eviction has to be decided in accordance with the West Bengal Premises Tenancy Act, 1997. Unlike the case of payment of rent, where there is a prescribed form, there is no prescribed form in which a petition for eviction has to be filed as long as jurisdictional facts and the merits are sufficiently indicated. 8. Section 21 of the Act of 2001 mandates that no civil court shall have the jurisdiction to decide or to deal with any question or determine any matter which, by or under the said Act, is required to be, or has been, decided or dealt, or which is to be, or has been, determined by the controller or the appellate or other authority specified in the Act. The relevant provision also stipulates that no order or judgment, including in execution, passed under the provisions of the Act would be called into question before any civil court. The relevant provision also stipulates that no order or judgment, including in execution, passed under the provisions of the Act would be called into question before any civil court. To repeat, the Act of 2001 is the entire law as to thika tenancies in the State and the statute deals only with thika tenancies and the inter se rights of the State, the thika tenant and the bharatias. 9. On the other hand, the Act of 1997 is the entire law regarding tenancies pertaining to immovable properties where protection is given to a class of tenants by eclipsing the general law of the land, the Transfer of Property Act. Rent control laws prevail to the extent indicated, in respect of the areas specified by such statutes, the classes of persons covered thereby and the incidents of tenancies indicated therein. Loosely speaking, the Act of 1997 now covers residential tenancies where the monthly rent does not exceed Rs.6,500/- and it covers premises let out for non-residential purpose where the rent is not more than Rs.10,000/- per month. However, the Act is restricted in its operation to certain specified areas and it is within such areas that the classes of residential tenancies and non-residential tenancies as indicated above fall within its purview. Premises not covered by the Act of 1997 in the State are governed by the Transfer of Property Act in respect of tenancies relating thereto. It is perfectly justified on the part of the State Legislature to extend its umbrella of protection to areas or classes of persons not protected under the Rent Control Act; just as it is within the authority of the State Legislature to reduce the area of operation of the Rent Control Act or shrink the classes of persons to which such Act may apply. 10. There is no doubt that the Act of 2001 refers to the Act of 1997. In so far as it is relevant for the present purpose, the reference to the Act of 1997 in the Act of 2001 or the Rules thereunder imply that the rules governing a landlord and tenant as indicated in the Act of 1997 would apply to the respective persons covered by the Act of 2001. In so far as it is relevant for the present purpose, the reference to the Act of 1997 in the Act of 2001 or the Rules thereunder imply that the rules governing a landlord and tenant as indicated in the Act of 1997 would apply to the respective persons covered by the Act of 2001. However, the Act of 2001, by virtue of Section 21 thereof, excludes the authority of civil courts in respect of all matters pertaining to thika tenancies, though it is the thika controller who would assess a matter, if applicable, on the basis of the 1997 Act and the substantive rights thereunder. 11. It is submitted on behalf of the appellants that Section 12A of the Act of 1997 has been introduced by way of an amendment in the year 2009. It is the further contention of the appellants that the non-obstante clause at the beginning of Section 12A of the Act of 1997 is unqualified and, as such, it is intended to take within its sweep all statutes. 12. Section 12A of the Act of 1997 reads thus: “12A. Special provisions regarding jurisdiction of Court for trial of suits for possession. - (1) Notwithstanding anything contained in any other law, a suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts, as set out in the Schedule IV and no other Court shall be competent to entertain or try such suit or proceeding. “(2) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall, mutatis mutandis, apply to all suits and proceedings referred to in sub-section (1) except suits or proceedings which lie to the High Court at Calcutta.]” 13. Section 12A(1) begins with the non-obstante clause “Notwithstanding anything contained in any other law …” Ordinarily, a non-obstante clause of such nature generally reads as “Notwithstanding anything contained in any other law for the time being in force….”, which the non-obstante clause in this case does not. However, it does not appear that the wide wording of Section 12A of the Act of 1997 as introduced by a 2009 Amendment Act wished away or obliterated the operation of Section 21 or the bar contained thereunder in the Act of 2001. 14. However, it does not appear that the wide wording of Section 12A of the Act of 1997 as introduced by a 2009 Amendment Act wished away or obliterated the operation of Section 21 or the bar contained thereunder in the Act of 2001. 14. The Act of 1997 is a general law governing certain incidents of tenancies in the State. The Act of 2001 is a special statute governing the thika tenancies in the State and the rights and obligations of the thika tenants qua the State and the bharatias qua the thika tenants and also the land and structures covered thereby. Between the 1997 and the 2001 Act, it is the 1997 Act which has to be regarded as the general law and the 2001 Act that has to be seen as the special law. That is also evident from the fact that the substantive rights under the general law are expressly made applicable to the parties in certain cases governed even by the 2001 Act. However, despite the wide wording of the non-obstante clause in Section 12A of the 1997 Act which has been introduced by way of an amendment in the year 2009 when the 2001 Act was already in place, the special character of the 2001 Act cannot be seen to have been read down for matters pertaining to tenancies covered by the 1997 Act to be governed by Section 12A of the Act of 1997 without reference to Section 21 of the Act of 2001. 15. Though it does not appear that the argument in respect of Section 12A of the Act of 1997 was made before either the trial court or the lower appellate court, since it is a pure question of law, the same has been entertained at this level. It is also apparent that notwithstanding reliance being placed on Section 12A of the Act of 1997, the scenario remains unchanged. It is the thika controller who retains exclusive authority to decide on a claim of eviction lodged by a thika tenant against a bharatia. No civil court can have any authority to decide such question by virtue of Section 21 of the Act of 2001 read with Section 8(3) thereof. It is the thika controller who retains exclusive authority to decide on a claim of eviction lodged by a thika tenant against a bharatia. No civil court can have any authority to decide such question by virtue of Section 21 of the Act of 2001 read with Section 8(3) thereof. Furthermore, an order of the thika controller passed under any provision of the Act of 2001 cannot be questioned or challenged before a civil court by virtue of the second limb of Section 21 of the Act of 2001. 16. For the reasons aforesaid, the legal argument put forth on behalf of the appellants does not hold any water. The plaint pertaining to the suit has been appropriately rejected by the trial court and the order has been duly upheld by the lower appellate court. There is no substantial question of law that is required to be gone into in the light of the discussion above. 17. SAT 259 of 2017 is dismissed. 18. There will be no order as to costs. 19. Nothing in the orders passed by the courts below will prevent the appellant-plaintiffs from pursuing the remedy of eviction before the thika controller in accordance with law.