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M/S Padrone Marketing (P) Ltd. Vs. Controller of Thika Tenancy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata Appellate High Court
Decided On
Case NumberW.P.L.R.T. 13 of 2009 With C.A.N. No. 6272 of 2009
Judge
AppellantM/S Padrone Marketing (P) Ltd.
RespondentController of Thika Tenancy and ors.
Appellant AdvocateMr. Saktinath Mukherjee; Mr. Surojit Nath Mitra Mr. Samit Talukder, Mr. Amit Narayan Mukherjee; Mr. S. Bose, Advs
Respondent AdvocateMr. Kushal Pau; Ms. Amita Gaur, Advs
Excerpt:
order 9 rule 13, order 37 rule 4 & section 115: [b.n. agrawal & g.s. singhvi, jj] ex parte decree in summary suit - set aside by trial court - interference by high court in revision - high court had not even recorded any finding on this issue - order of trial court setting aside ex parte decree not suffering from any error of jurisdiction or material irregularity in exercise of jurisdiction - held, high court was not justified in interfering with the same. order of trial court restored for disposal of the summary suit afresh in accordance with law. .....road, kolkata 700 020 as claimed by one srimati surenga devi, the said property was nevertheless a thika property in view of the existence of khatal as recorded in the inspection book of kolkata municipal corporation and thus vested in this state. 2. facts and circumstances giving rise to this writ petition are narrated hereinafter. 3. one asit kumar ghosh (since deceased) of 47, pathuriaghat street, kolkata, was the owner of the premises no. 9, sarat bose road, kolkata 700 020 (hereinafter referred to as the said property). on the death of late asit kumar ghosh, the said property stood vested in the estate of asit kumar ghosh.4. by a registered deed of conveyance dated 16 th july, 2004 the executor of the estate of said asit kumar ghosh sold the said property to sapna estate pvt. ltd.,.....
Judgment:
1. Instant writ petition has been filed assailing the judgment and order dated 23 rd December, 2008 passed by the West Bengal Land Reforms and Tenancy Tribunal in O.A. (P) No. 1389 of 2005 whereby the said learned Tribunal affirmed the judgment and order passed by the learned Additional Thika Controller, Kolkata to the effect that though there was no tenancy in respect of the portion of the property in question namely Premises No. 9 and 9/1, Sarat Bose Road, Kolkata 700 020 as claimed by one Srimati Surenga Devi, the said property was nevertheless a Thika property in view of the existence of Khatal as recorded in the Inspection Book of Kolkata Municipal Corporation and thus vested in this State.

2. Facts and circumstances giving rise to this writ petition are narrated hereinafter.

3. One Asit Kumar Ghosh (since deceased) of 47, Pathuriaghat Street, Kolkata, was the owner of the premises No. 9, Sarat Bose Road, Kolkata 700 020 (hereinafter referred to as the said property). On the death of Late Asit Kumar Ghosh, the said property stood vested in the Estate of Asit Kumar Ghosh.

4. By a registered Deed of Conveyance dated 16 th July, 2004 the executor of the Estate of said Asit Kumar Ghosh sold the said property to Sapna Estate Pvt. Ltd., Fancy Properties Private Limited, Native Construction Private Limited, Ritik Diagnostics Private Limited, Anirudha Medico Centre Private Limited, Abhinav Properties Private Limited, R.L.G. Consultants Private Limited, Com-Tel Leasing & Finance Private Limited, creative Garments Private Limited along with other co-owners whose names are mentioned in the above Deed of Conveyance as well as mentioned as applicants/petitioners in the application filed before the West Bengal Land Reform and Tenancy Tribunal (L.R.T.T.). It will not be out of context to note that pursuant to the order of amalgamation dated 9 th April, 2007 passed by this Court in Company Petition No. 267 of 2005, the aforesaid companies were amalgamated with M/s Padrone Marketing Private Ltd.

5. From the records it appears that during the lifetime of the said Asit Kumar Ghosh one Shew Prasad Roy (since deceased) was in occupation of two brick built structures constructed on approximately two kathas of land in the premises in question. The said Shew Prasad Roy (since deceased) upon claiming himself as a Thika Tenant in respect of the said portion of the premises in question made certain deposits by various challans in the Court of the learned 4 th Munsif at Alipore and after coming into force of the Thika Tenancy (Acquisition & Requisition) Act, 1981, in the office of the Controller of Thika Tenancy, Kolkata. However, the said Shew Prosad Roy had never claimed that he had obtained any consent and/or concurrence of the landlord nor there was any contract of tenancy or otherwise for the purpose of occupying the portion of the premises in question.

6. After the death of said Shew Prosad Roy, his wife Srimati Surenga Devi made a representation before the Thika Controller praying for mutation of her name as a Thika Tenant in respect of the premises no. 9/1, Sarat Bose Road, Kolkata. Since no step was taken on the aforesaid representation of Srimati Surenga Devi by the Thika Controller, an application was filed before the learned Tribunal which was numbered as O. A. No. 1458 of 2004. The learned Tribunal by the order dated 13 th July, 2004 directed the Thika Controller to dispose of the said application of Srimati Surenga Devi in accordance with law within a period of three months from the date of communication of the order.

7. Pursuant to the said order of the Learned Tribunal, the Additional Thika controller, Kolkata issued notices to Smt. Surenga Devi and Asit Kumar Ghosh for hearing the case though Asit Kumar Ghosh had already died long back. The executor to the Estate of Asit Kumar Ghosh contested the said application filed by Surenga Devi and other heirs.

8. The Additional Thika Controller by the order dated 20 th April 2005 rejected the claim of Srimati Surenga Devi for mutating her name in place of her deceased husband upon holding that the plot in question vested to the State in terms of the provision of Clause (b) of Section 4 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

9. In the said order the learned Thika Controller specifically held that Srimati Surenga Devi failed to put sufficient evidence to attract provision of Clause (a) of Section 4 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 over the Premises in question so that her name may be mutated to realise rent from her as thika tenant, because provision of Section 5 (2) is applicable only when land in question vested to the State is comprised in or appurtenant to tenancies of a thika tenant and simply filing of return in Form A does not justify the same.

10. Thus, from the aforesaid findings it is established before the Additional Thika Controller that Srimati Surenga Devi failed to establish her claim as a thika tenant in the property in question.

11. In spite of the aforesaid specific finding the Additional Thika Controller also held in the same order as hereunder:

It appears from I.B. for the year 1980-81 of Calcutta Corporation that greater portion of erstwhile premises no. 9, Sarat Bose Road was held for being used & occupied as Khatal. So the land attracts provision of Clause (b) of Section 4 of the Act 32 of 2001 & remains vested to the State with effect from 18.1.1982 by operation of law.

12. Challenging the aforesaid order of the Additional Thika Controller dated 20 th April 2004, an application was filed before the West Bengal Land Reforms and Tenancy Tribunal which was numbered as O.A. (P) No. 1389 of 2005. The learned Tribunal disposed of the aforesaid application by the impugned judgment and order dated 23 rd December, 2008 upon holding that Srimati Surenga Devi failed to prove that she is a thika tenant in respect of the property in question but also held that the said property has vested to the State of West Bengal under Section 4 (b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 since the said land is recorded as Khatal in the Inspection Book of the Kolkata Municipal Corporation.

13. Assailing the aforesaid judgment and order passed by the learned Tribunal, instant writ petition has been filed by the petitioners for setting aside and or quashing the order dated 20 th April, 2005 passed by the Additional Thika Controller and the subsequent order dated 23 rd December, 2008 passed by the learned Tribunal.

14. Mr. Saktinath Mukherjee, the learned Senior Counsel representing the petitioners submitted that the Additional Thika Controller as well as the learned Tribunal erroneously held that the property in question has vested to the State of West Bengal under Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 in view of existence of Khatal as recorded in the Inspection Book of the Kolkata Municipal Corporation ignoring the fact that Srimati Surenga Devi never claimed or even alleged that there was existence of any Khatal at the said premises. Mr. Mukherjee also submitted that said Srimati Surenga Devi or her predecessor-in-interest ever maintained a Khatal by keeping cattle on the said property with a view to carry on trade or business including business in milk derived from such cattle so as to attract the definition of Khatal under Section 2(5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

15. At the time of hearing of the writ petition the learned Counsel, representing Srimati Surenga Devi had repeatedly emphasized that Srimati Surenga Devi was claiming to be a Bharatia and not a thika tenant. Mr. Mukherjee, learned Senior Counsel of the petitioners, submitted that the aforesaid stand taken before this Court is wholly contrary to the stand taken by said Srimati Surenga Devi before the learned Thika Controller and the learned Tribunal. Mr. Mukherjee further submitted that the aforesaid claim of Srimati Surenga Devi cannot have any foundation to rest upon without existence of a thika tenancy.

16. Mr. Mukherjee also submitted that the learned Tribunal, by the impugned judgment and order dated 23 rd December 2008, erroneously held that even without a tenancy a property with a Khatal, is liable to be affected by and vested under the Thika Tenancy Act. Mr. Mukherjee submitted that the learned Tribunal by the impugned Order dated 23 rd December, 2008 specifically held that Srimati Surenga Devi failed to prove that she is a thika tenant in respect of the said property but erroneously held that the said property has vested.

17. Mr. Mukherjee further submitted that without a tenancy a property with a Khatal cannot be affected by and vested under the Thika Tenancy Act.

18. Mr. Mukherjee also submitted that the lands used or occupied as Khatal shall vest in the State under Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 subject to fulfillment of the following conditions:

(I) There has to be a Tenancy in the said property for running a Khatal.

(ii) That the Khatal is being run or maintained for the purpose of business as defined in Section 2(5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

The above two conditions have to be fulfilled In order to attract Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

19. The definition of Khatal as mentioned in Section 2 (5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 and the relevant provision of Section 4(b) are set out hereunder:

2. (5) Khatal means a place where cattle are kept or maintained for the purpose of trade or business in milk derived from such cattle;

4. (b) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:

20. Let us now examine whether any tenancy was granted in the said property for running a Khatal and whether any Khatal was and/or is being run or maintained in the said property for the purpose of business as defined in Section 2(5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

21. On examination of the affidavit filed on behalf of the Staterespondents we do not find that any tenancy was ever granted to the deceased husband of Srimati Surenga Devi for the purpose of running a Khatal in the property in question. The learned Counsel of the State-respondents or even the learned Counsel of Srimati Surenga Devi did not even claim at any point of time that any tenancy was ever granted in the said property for the purpose of running a Khatal by the deceased husband of Srimati Surenga Devi.

Mr. Mukherjee submitted that the learned Tribunal by the impugned judgment dated 23 rd December, 2008 specifically held that Srimati Surenga Devi failed to prove that she is a thika tenant in respect of the said property but erroneously held that the said property has vested in the State without appreciating that the land being used or occupied as Khatal cannot vest in the State unless the said land is held in monthly or other periodical tenancies in terms of Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

22. It is also significant to note that in the affidavit filed on behalf of the State-respondents it has also not been alleged that any Khatal was or is being maintained for the purpose of trade or business including business in milk derived from the cattle kept in the said Khatal which is required for establishing a Khatal under the provisions in terms of Section 2(5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

23. The learned Counsel, representing Srimati Surenga Devi, admitted at the time of hearing before this Court that neither Srimati Surenga Devi nor her predecessors-in-interest had run any Khatal in any portion of the said property nor was there any existence of a Khatal for the purpose of business or trade in the said property, nor even they made any kind of construction in the said premises. The affidavit filed by Srimati Surenga Devi in connection with this writ petition also does not mention any Khatal run either by her or her predecessors-in-interest nor was there any existence of a Khatal in the said property for the purpose of trade or business including business in milk derived from the cattle kept in the said Khatal.

24. No document was produced either before the Additional Thika Controller or before the learned Tribunal wherefrom it would appear that Srimati Surenga Devi or her predecessors-in-interest or even any other person or persons at any point of time had run any Khatal in any portion of the property in question.

25. In terms of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 a Khatal means a place where cattle are kept or maintained for the purpose of trade or business including business in milk derived from such cattle. In terms of Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 lands held in monthly or other periodical tenancies for being used or occupied as a Khatal shall be deemed to have vested in the State. Therefore, unless the land is held in monthly or other periodical tenancies for being used or occupied as a Khatal, the same cannot vest in the State in terms of Section 4(b) West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

26. The claim of Srimati Surenga Devi as a thika tenant over the subject premises has not been accepted by the Additional Thika Controller and also by the learned Tribunal. Therefore, we do not understand how a land can be said to be a thika land unless the same was ever occupied by a thika tenant. The learned Counsel representing Srimati Surenga Devi desperately argued before this Court that said Srimati Surenga Devi is a Bharatia in respect of the property in question although the alleged thika tenant, under whom said Srimati Surenga Devi purportedly claimed to be a Bharatia did not come forward before the Additional Thika Controller or before the learned Tribunal or even before us to substantiate the claim of Thika Tenancy.

27.Furthermore, Srimati Surenga Devi did not produce any document before the Additional Thika Controller or before the learned Tribunal or even before this Court in order to establish the existence of thika tenant under whom said Srimati Surenga Devi could be a Bharatia.

28. In the present case the learned Additional Thika Controller as well as the learned Tribunal held that the subject land had vested in the State under West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, even in absence of existence of a thika tenant. Section 4(b) made it clear that lands held in monthly or other periodical tenancies for being used or occupied as a Khatal shall be deemed to have vested in the State. The Additional Thika Controller, however, admitted the existence of a Khatal on a portion of the property in question upon placing reliance only on the Inspection Book of Kolkata Municipal Corporation.

29. Furthermore, the Inspection Book relied upon by the Additional Thika Controller in order to admit the existence of a Khatal in a portion of the property in question is not a public document and therefore, cannot be relied upon as a document for evidence in the eye of law.

30. The learned Tribunal has also brushed aside the question of the identity of the premises and implication of the admitted existence of a two storied pakka structure on the subject land. The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 has been enacted to provide for the acquisition of interests of landlords in respect of lands comprised in thika tenancies and provisions of the aforesaid Act are to be strictly adhered to while acquiring the interests of the landlords in respect of a thika property.

31. Relevant extracts from the Preamble of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 are set out hereunder:

An act to provide for the acquisition of interests of landlords in respect of lands comprised [in thika tenancies and certain other tenancies] in Kolkata, Howrah and Other Municipalities of West Bengal for development and equitable utilization of such lands .

32. Article 300 A of the Constitution declares that:

300A. No person shall be deprived of his property save by authority of law.

Mr. Saktinath Mukherjee, the learned Senior Counsel of the petitioners relied on a decision of the Supreme Court in the Case of Vijay Narayana Thatte v. State of Maharashtra, reported in (2009) 9 SCC 92 wherein the Honble Supreme Court emphasized the settled principle of interpretation as hereunder:

22. In our opinion, when the language of the statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the statute is not clear or ambiguous or there is some conflict, etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation. A perusal of the proviso to Section 6 shows that the language of the proviso is clear. Hence the literal rule of interpretation must be applied to it. When there is a conflict between the law and equity it is the law which must prevail. As stated in the Latin maxim dura lex sed lex which means the law is hard but it is the law.

33. Mr. Mukherjee also relied on another decision of the Supreme Court in the case of DLF Qutab ENCLAVE Complex Educational Charitable Trust v. State of Haryana, reported in (2003) 5 SCC 622 wherein the Honble Supreme Court specifically held that a Court cannot go beyond the statute unless it is absolutely necessary. The Supreme Court specifically held in Paragraph 41 of the said judgment as hereunder:

41. Expropriatory statute, as is well known, must be strictly construed.

Mr. Mukherjee also relied upon a decision of the Supreme Court in the case of State of Maharashtra & Anr. v. B.E. Billimoria & Ors., reported in (2003) 7 SCC 366. The relied paragraphs from the aforesaid judgment are set out hereunder:

27. An owner of a property, subject to reasonable restrictions which may be imposed by the legislature, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under the statute would not be presumed.

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40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.

The principles decided by the Honble Supreme Court in the aforesaid decisions are very much applicable in adjudicating the issues raised in the present writ petition. The Additional Thika Controller, being a creature of statute, cannot travel beyond the four corners of the relevant statute while deciding a question as to whether the land in question will vest in the State or not. On examination of the relevant records available before this Court and upon consideration of the submissions of the learned Counsel of the respective parties we find that there is no tenancy whatsoever in the property in question and nowhere it has been contended in the affidavit filed by the Thika Controller that a tenancy was created in the said property in accordance with the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 and as such, the provision of Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is not at all applicable.

34. There is no evidence either in the records of the I.B. Book of 1980-81 or in the Affidavit filed by The Thika Controller or State Government that a Khatal was being maintained at the said premises for the purpose of trade or business including business in milk derived from the cattle kept in the said Khatal which is a pre-requisite for a Khatal as defined in Section 2(5) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. Even Smt. Surenga Devi, who is the only person alleging to be occupying a part of the said premises has never alleged either in her affidavit or in the representations and/or submissions made on her behalf in any of the proceedings or even before this Court that there was any Khatal or that she had been maintaining and/or running a Khatal in the said property.

35. The learned Counsel representing Surenga Devi specifically admitted before this Court that said Surenga Devi is not a thika tenant in the subject property. However, an application, filed by the Said Srimati Surenga Devi claiming herself to be a thika tenant in the property in question, has already been rejected by the Additional Thika Controller by the order dated 20 th April, 2005 and the same has been affirmed by the learned Tribunal. The Additional Thika Controller unfortunately arrived at the conclusion that there was a Khatal in the subject premises upon placing reliance on the Inspection Book of the Kolkata Municipal Corporation of the year 1981, although the said Inspection Book of the Kolkata Municipal Corporation is not a public document and therefore, cannot be relied upon as document for evidence. The Additional Thika Controller in our opinion has committed serious error in law by relying on the aforesaid Inspection Book for the purpose of arriving at the conclusion that there was existence of Khatal in the subject premises.

36. In any event, we have already observed that unless the land is held in monthly or other periodical tenancies for being used or occupied as Khatal, the same cannot be vested in the State in terms of Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. In the present case, undisputedly, the Additional Thika Controller or the learned Tribunal did not hold that any part or portion of the premises in question was held by any body in monthly or other periodical tenancies. Therefore, the said land cannot vest in the State in terms of Section 4(b) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.

37. In view of the aforementioned facts and circumstances of the case and upon considering the inconsistent stand taken on behalf of Srimati Surenga Devi before this Court and also having regard to the settled principles of interpretation, we are of the opinion that the petitioners herein are entitled to succeed and the orders passed by the Additional Thika Controller as well as the impugned judgment and order passed by the learned Tribunal are totally perverse and bad in law.

38. Accordingly, we quash the order passed by the Additional Thika Controller dated 20 th April 2005 and also set aside the impugned judgment and order passed by the learned Tribunal on 23 rd December, 2008 in O.A. (P) No. 1389 of 2005. This writ petition thus stands allowed.

39. In view of the aforesaid order, no further order need be passed in the connected application and the same also stands disposed of.

40. In the facts of the present case, there will be no order as to costs.

41. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.


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