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Lalua Shaw Vs. Anil Bh. Ganguly - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 3269 of 1970
Judge
Reported inAIR1971Cal330
ActsCalcutta Thika Tenancy Act, 1949 - Sections 5 and 7A
AppellantLalua Shaw
RespondentAnil Bh. Ganguly
Appellant AdvocateRamendra Nath Datta, Adv.
Respondent AdvocateMurari Mohan Mukherjee, Adv.
Excerpt:
- .....of the pre-requisites to an application under section 7-a is that an order for ejectment of the thika tenant from his holding must have been made by the controller under section 5 before the date of the commencement of the calcutta thika tenancy (second amendment) act. 1969. in this particular case the ejectment was sought for on the ground that the land was required by the landlord for his own occupation or for the purpose of building on the land, or, in other words, under clause (iv) of section 3 as it originally stood. sub-section (1) of section 5 would show that if the controller allows the application he shall make an order directing the thika tenant to vacate the holding and. subject to the provision of section 10, to put the landlord in possession thereof. sub-section (2) of.....
Judgment:

Santosh Kumar Chakravarti, J.

1. This Rule was issued at the instance of a defendant in an ejectment proceeding under the Thika Tenancy Act and is directed against an order of the learned Thika Tenancy Controller, Howrah, by which he rejected the petition filed by the petitioner under Section 7-A of the Act as also his petition under Section 5 of the Limitation Act. Under Sub-section (1) of Section 7-A such an application has to be filed within sixty days from the date of the commencement of the Calcutta Thika Tenancy (Second Amendment) Act. 1969. In this particular case the petition was filed on the 30th of May, 1970 though this Act had come into operation on the 30th of October. 1969. The petitioner filed another application under Section 5 of the Limitation Act and the learned Judge was not satisfied about the grounds of delay and he dismissed that application and also the application under Section 7-A on the ground that it is time-barred.

2. Without going into the propriety of this order I am of opinion that the application under Section 7-A was misconceived and did not actually lie. One of the pre-requisites to an application under Section 7-A is that an order for ejectment of the thika tenant from his holding must have been made by the Controller under Section 5 before the date of the commencement of the Calcutta Thika Tenancy (Second Amendment) Act. 1969. In this particular case the ejectment was sought for on the ground that the land was required by the landlord for his own occupation or for the purpose of building on the land, or, in other words, under Clause (iv) of Section 3 as it originally stood. Sub-section (1) of Section 5 would show that if the Controller allows the application he shall make an order directing the thika tenant to vacate the holding and. subject to the provision of Section 10, to put the landlord in possession thereof. Sub-section (2) of Section 5 lays down.

'No order allowing an application under Sub-section (1) shall be made in a case where compensation is payable under the proviso to Section 4 unless and until the amount of compensation so payable has been either paid to the thika tenant or deposited with the Controller.'

The amendments to Sections 3, 4 and 5 lave been made with retrospective effect. It is clear, therefore, from Section 5, that the order directing the thika tenant to vacate, or, in other words, the order of ejectment, follows the order allowing the application and that in a case where compensation is payable by the landlord the application cannot be allowed until and unless the compensation has been paid. The effect, therefore, would be that where compensation is payable there can be no order for ejectment so long as it is not paid. In this view of the matter Section 7-A would apply only where there has, in effect, been an order for ejectment and not where there is a tentative order as in the instant case. One can understand the reasons behind it. If the landlord does not pay the compensation, the tenant will continue to be a thika tenant and cannot be ejected. Therefore, when in this case no compensation has been paid as yet, it must be held that there has not been an order for ejectment of the petitioner from his holding to bring the case within the ambit of Section 7-A and as such, this application would not lie. The Rule is accordingly discharged. There will be no order as to costs.

3. The records be sent down as quickly as possible. The Court below may consider as to whether he can order ejectment now in view of the amendments of Section 3 but no opinion is passed on this point as it does not arise in this proceeding.


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