Amiya Kumar Mookerji, J.
1. These two Rules were obtained by a tika tenant and are directed against the order of the Subordinate Judge, Third Court, Alipore, dismissing the petitioner's application under Section 7-A of the Calcutta Tika Tenancy (Amendment) Act, 1969.
2. The landlady opposite party filed two applications for eviction under Section 5 of the Calcutta Thika Tenancy Act, against the petitioner on the ground of default and her own requirement for the purpose of construction of building on the disputed holdings. The Controller allowed the said applications on 17-9-1966 on the ground of default only; he found that the landlady did not require the land for the purpose of building. On appeal from the said order of the Controller, the appellate court found that the landlady proved her case of requirement. The petitioner moved this Court in Revision against the said appellate order. This Court affirmed the order of the appellate court, sent back the case to the Controller to proceed with the determination of compensation in accordance with proviso (ii) to Section 4 of the Act. In view of West Bengal Ordinance V of 1967, which came into force in the meantime, as a result, further proceedings for determination of compensation was stayed. On 30th October, 1969, the Calcutta Thika Tenancy (Amendment) Act, 1969, came into force. On the date of reopening of the Court after the X'mas Holidays, on January 2, 1970, the petitioner filed applications under Section 7-A of the Amendment Act for setting aside the order of ejectment. The controller dismissed the petitioner's said application upon the view that those applications were premature because compensation payable under (ii) of the proviso to Section 4 had not been determined as yet On appeal, the appellate court dismissed the petitioners applications upon the view that as the appeals from the order made on such applications by the landlady having been disposed of before the commencement of the Amendment Act, the provisions of the said Act did not apply to the instant case. The petitioner, being aggrieved against the said appellate order, moved this Court and obtained the present Rule.
3. The learned Subordinate Judge dismissed the petitioner's applications under Section 7-A of the Second Amendment Act upon the view that the order of the appellate authority allowing the landlady's applications under Section 5 of the Act was final and conclusive in so far as the landlady's prayer for ejectment was concerned. As the appeal from such order had been disposed of before the commencement of the Amendment Act, 1969, the provisions of the said Act did not apply to the instant case.
4. Under Section 5 (1) of the Act, if a landlord wishes to eject a thika tenant on one or more of the grounds specified in Section 3, he is required to file an application before the controller for an order in that behalf. The said section further provides for the procedure to be followed by the controller in dealing with such an application. The order of the controller allowing the landlord's application for ejectment under Sub-section (1) of Section 5, is subject to compliance of Sub-section (2) in a case where compensation is payable under Clause (ii) of the proviso to Section 4. If the landlord fails to pay the amount of compensation to the thika tenant or does not deposit the same with the controller, no order allowing his application under Sub-section (1) shall be made.
5. In the instant case, it is not disputed that the compensation has not been determined as yet and no order allowing the application under Sub-section (1) of Section 5 has been passed in terms or Sub-section (2).
6. Under Section 27 of the Act, an appeal may be filed against any of the order of the controller. Therefore it follows, an appeal can be filed against orders passed by the controller both under Sub-sections (1) and (2) of Section 5 of the Act. In the instant case, an appeal was filed against an order passed under Sub-section (1) of Section 5. This court confirmed the appellate order and remanded the case to the controller directing him to determine the compensation and if the same is deposited or paid, then to pass an order for ejectment in terms of Section 5 (2) of the Act. So, in my opinion, application forejectment of the thika tenant is still remaining undecided and pending before the Controller.
7. Provisions of Section 7-A of the Amendment Acts are made applicable in cases where order for ejectment of a thika tenant has been made before the date of the commencement of the second Amendment Act, but the possession of the land has not been recovered by the landlord from the thika tenant. Under Sub-section (1) of Section 5 of the Act, an order for, ejectment can be passed, but without compliance of Sub-section (2) of Section 5, a landlord cannot recover possession of the land from the thika tenant. So, the learned Subordinate judge was in error in holding that the order of the appellate authoirty allowing the landlord's applications under Section 5 of the Act was final and conclusive. The learned Subordinate Judge ignored the provisions of Sub-section (2) of Section 5 of the Act as well as the second part of Sub-section (1) of Section 7-A of the Amendment Act.
8. In the instant case, both the conditions as laid down in Section 7-A of the Amendment Act have been fulfilled and as the petitioner's application is still pending, the provisions or the Amendment Act are made applicable under Section 13 of the said Act. The thika controller was also in error in dismissing the petitioner's application under Section 7-A of the Amendment Act upon the view that it was premature. So, his order also cannot be sustained.
9. In the result, both these Rules are made absolute. The orders of the learned Subordinate Judge and also of the thika controller are set aside; the case is remitted back to the Controller to decide the petitioner's applications under Section 7-A of the Amendment Act in accordance with law. There will be no order as to costs.
10. Let the records go down to the thika controller as early as possible.