REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      7     OF    2009 (Arising out of SLP (C) No.15559 of 2004)

Dwarika Nath Acooli  …Appellant

Vs.

Dulal Chandra Bayen and Ors. ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Calcutta  High  Court  allowing  the  writ  petition  filed  by the  respondents.

Challenge in the writ petition was to the judgment and order passed by the

West  Bengal  Reforms  and  Tenancy  Tribunal  (in  short  the  ‘Tribunal’)

whereby the earlier writ petition filed by the respondents was dismissed.  

3. Background  facts,  as  projected  by  appellant,  in  a  nutshell,  are  as

follows:

Originally, one Durga Bala Acooli, the predecessor-in-interest of the

appellant was the owner of the premises being 18/1, Ramesh Mitra Road,

Kolkatta.  In terms of the final decree passed in Suit  No.467 of 1970 the

Calcutta  High Court,  the  appellant  claimed  to  have  become the  absolute

owner of the suit property. The aforesaid Durga Bala Acooli had inducted

one Ratan Chandra Byen as monthly tenant in respect of premises i.e. land

with  structures  and/or  sheds.  On  2.11.1981  the  Calcutta  Thika  Tenancy

(Acquisition & Regulation) Act, 1981 (in short the ‘Act’) came into force.

On 5.5.1982 in exercise of power conferred by Section 20 of the Act the

State  Government  framed  Calcutta  Thika  Tenancy  (Acquisition  &

Regulation) Rules, 1981 (in short the ‘Rules’) which became operative from

that date and under Rule 3(a) of the Rules, the Thika tenants were directed

to file Return under Form-A before the Thika Controller within 240 days

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from the date of commencement of the Act. However, the Thika Controller

was given power to extend the time not exceeding six months subject to

filing of an application for condonation of delay.   

According to the appellant the tenant was paying rent to the owner of

the  said  premises  after  the  death  of  Durga  Bala  Acooli  in  1969.  The

appellant collected rent upto the months of August and September, 1986.

The  last  payment  was  made  on  14.3.1987  relating  to  September  1986.

Several  writ  petitions  were  filed  before  the  High  Court  challenging  the

validity of the Act. By judgment dated 8.7.1987 it was held as follow:

“Within  the  scope  and  ambit  of  Section  5  of  the impugned Act only lands comprised in Thika Tenancy within the  meaning  of  Calcutta  Thika  Tenancy  Act,  1949  namely Kutcha  structure  and/or  Pucca  structure  constructed  for residential purpose, with the permission of the Thika Controller under the Calcutta Thika Tenancy Act, 1949 and Khatal land held under a lease shall  vest and save as aforesaid  no other lands and structure vests under the impugned Act. Sub-sections (2) and (3) of  section 8 of the impugned Act and rule 5 of the Calcutta  Thika  Tenancy  (Acquisition  &  Regulation)  Rules, 1982 are ultra vires to the Constitution.”    

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The appellant through his advocate sent a notice to respondent No.1

under Section 13(6) of the West Bengal  Premises Tenancy Act,  1956 (in

short the ‘Tenancy Act’) and Section 106 of the Transfer of Property Act,

1882  (in  short  the  ‘TP  Act’)  for  terminating  the  tenancy.  Against  the

judgment of the High Court an appeal was preferred before this Court.  In

Civil Appeal Nos. 3713-3900 of 1987 an order of status quo as on the date

was directed to be maintained. On 18.2.1988 the respondents replied to the

notice sent by the appellant’s advocate denying that the appellant was not

their landlord. Since the tenant failed to hand over the vacant and peaceful

possession a title suit  was instituted for recovery of possession, damages

and/or mesne profits and other reliefs which was numbered as Title Suit 68

of 1988.   Shri Birendra Chandra Bayen, defendant  No.4 in  the civil  suit

filed  an  application  under  Section  17(2)  and  Section  2A and  2B  of  the

Tenancy Act before learned Civil Judge, Junior Division 4th Court, Alipore.

The  appellant  also  filed  a  petition  on  23.7.1988  in  connection  with  the

application under Section 17(2) of the Tenancy Act denying the allegations.  

According to the appellant Shri Birendra Chandra Bayen by filing a

petition not  only admitted on oath that  appellant  was the landlord of  the

premises but  also sought  for  a direction upon the appellant  to  repair  the

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sheds and structures of the premises. Since the deceased after 7 years from

the date of coming into force of the Act filed Return under Section Form-A

of Rule 3(a)  of the Rules before the Thika Controller claiming to be the

Thika tenant of the property without notice to the appellant, the controversy

in real sense starts from this point. On 4.10.1989 the Inspector of Regional

Office of Thika Controller provisionally accepted the Return subject to the

verification of  tenancy and without any legal  right.  Such acceptance was

made without notice to the appellant and also without  disclosing the fact

that the civil suit was pending between the parties. Such acceptance of rent

was without prejudice to the right of the Government and without creating

any  right  of  the  tenant.  After  the  provisional  acceptance  of  rent,  Shri

Birendra Chandra Bayen filed an application in the pending suit that in view

of Section 5 of the Act, the suit  is not  maintainable.  The High Court on

revision  application  being  C.O.2670/1990  directed  that  the  preliminary

point raised by the defendant would be decided at the final hearing of the

suit.  When the appellant  came to know about the filing of the Return in

Form-A  under  Rule  3(a)  without  application  for  condonation  of  delay

during the pendency of the civil  suit,  he raised an objection by filing an

application before the Thika Controller against the preliminary acceptance

of rent and prayed for determination under Section 5 of the Act inasmuch as

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there was no provision in the Act to prefer an appeal under Section 13 of the

Act against the provisional  acceptance of the Return. Since the objection

was not considered for a long time, appellant filed a writ petition before the

Calcutta  High  Court  for  a  direction  to  the  Thika  Controller  to  decide

whether  the  said  property has  been  vested  to  the  State.  The High  Court

disposed of the writ petition directing the Thika Controller to dispose of the

representation after giving hearing to the parties.  In terms of the aforesaid

order of the Thika Controller he concluded that the property had not been

vested to the State under Section 5 and Shri Birendra Chandra Bayen was

not the Thikha tenant.  The learned Munsif disposed of the application of

late Birendra Chandra Bayen under Section 17(2)  and 2A and 2B of the

Tenancy Act determining the relationship between the parties of the suit as

landlord  and  tenant  under  the  Tenancy  Act.  Thus,  this  application  had

become final.  Against  the order  dated 8.12.1993 of the Thika Controller,

legal  heirs  of  Shri  Birendra  Chandra  Bayen preferred  a  statutory  appeal

under Section 13 of the Act before learned District Judge who dismissed the

same holding that the defendants could not produce any document that they

were  Thika  tenants  and  the  Controller  had  jurisdiction  to  pass  an  order

under  Section  5 of  the  Act.  Respondent  No.1 filed  an  application  under

Article 227 of the Constitution of India, 1950 (in short the ‘Constitution’)

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challenging the aforesaid order of the District Judge which was transferred

to the Tribunal. The Tribunal dismissed the appeal holding as follows:

(i) After the statutory period of limitation as provided

under Rule 3(a) no Return could be filed.  

(ii) Further the tenants paid rent to the landlord upto

1986 accepting the appellant as landlord when the Act of

1981 came into force on 18.1.1982 and the liability of

‘Thika Tenant to pay rent ceased from that date.

(iii) Therefore,  acceptance  of  Return  under  Form-A

was  without  jurisdiction  and dismissed  the  application

holding that the Thika Controller has got jurisdiction to

decide whether the person is a Thika Tenant or not.  

(iv) The applicant is a tenant in respect of structures,

he  does  not  own structures  therefore  he  is  a  premises

tenant.   

On 1.3.2003 a Notification under  Section 1(3)  of  the West  Bengal

Thika Tenancy (Acquisition and Regulation) Act, 2001 (in short the ‘2001

Act’)  was  published  and  under  Section  27,  the  earlier  Act  of  1981  was

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replaced but pending proceedings were saved. By the 2001 Act, sub-section

(3) of Section 5 was amended to provide that if any question arises as to

whether the person is a Thika tenant or not the matter shall be decided by

the Controller. Respondent No.1 challenged  the said order passed by the

Tribunal dated 19.9.2002 by filing  a writ petition under Article 226 of the

Constitution  on  the  ground  inter-alia  that  the  Thika  Controller  has  no

jurisdiction  to  decide  the  question  whether  the  respondent  was  a  Thika

tenant or not and only the Civil Court had jurisdiction. On 19.8.2003 the

State of West Bengal withdrew the appeal before this Court.  On 23.2.2004

a Division Bench of the High Court by an impugned order allowed the writ

application and set aside the order of Thika Controller, Appellate Tribunal

and the Tribunal holding that the predecessor-in-interest of respondent No.1

was accepted as Thika tenant. Against the adjudication under Section 5(3)

of  the  Act,  no  appeal  was  preferred  and  as  such  the  application  of  the

appellant for cancelling the recording of Thika tenancy is not maintainable

and there is  no provision in the Act empowering the Thika Controller  to

entertain such application after declaration of the Thika tenant.  

4. Stand of learned counsel for the appellant essentially is that there was

no question of condonation of delay of an application which was filed after

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about 7 years. The eviction suit was filed on 14.3.1988 and rent was paid till

1986 under the Tenancy Act and thereafter it was stopped. It is pointed out

that  under  Section  17 of  the  Tenancy Act   if   the  application  is  on  the

ground of  default,  an application  can be made to  make the deposit.  The

application  dated  25.4.1988  is  still  pending.  On  4.10.1989  the  only

endorsement was of provisional acceptance subject to verification. It was

clearly noted as follows:

“By whom paid Payment made Amount Head of Account On behalf of the Account Officer  Person  

Biren Ch. Biren Ch.Bayen Adhoc Rent .029 Land Revenue Bayen 40/1 Ramen Mitra 165/- 3869.5/-        Land Revenue/Tgax

Road, Cal-25 Ist Instalment         Collection of Tax Under the Calcutta Thika Tenancy Acquisition and  RegulationAct,1951

Calcutta Collectorate Acceptance provisionally subject to  Treasury Department 1) Verification of tenancy and  Counter No. 2) recovery adjustment with the  

                  revenue to the Cash received finally determined under the W.B.  Act   XXXVII Of 1981. Such acceptance of rent shall not treat or established and right or interest without  Which otherwise not legally in existence.”  

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5. The representation made by the appellant was on 16.11.1992. It was

however unnecessary as there was no order. The High Court inter-alia had

disposed of earlier writ petition by directing the Controller to consider and

dispose of the representation.  The High Court by the impugned judgment

seems to have over-looked the fact that there was in fact no cancellation.  

6. Learned counsel for the respondent on the other hand supported the

order.  

7. In the impugned order the High Court seems to have proceeded on the

basis that  there was cancellation.  It  noted as if the Thika Controller was

moved for cancelling the order recording the tenancy. As a matter of fact

there was no cancellation and there was a provisional order. There was no

question of preferring an appeal unless the final order is passed.  So far as

the onus is concerned, it is on the appellant to establish the tenancy. It needs

to be noted that on the Return no order was passed. The Thika Controller,

Appellate  Authority  and  the  Tribunal  came  to  positive  finding  that

respondent No.1 was not a Thika tenant. They took decision on the basis of

the High Court’s order to deal with a representation of the appellant.  

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8. In view of the aforesaid we are satisfied that the order of the High

Court is indefensible. We set aside the impugned order and direct that the

revenue authority shall decide the relevance of the Return and pendency of

the eviction suit. As the Return is in terms of Rule 3, the revenue authority

has to decide the matter.  

9. The appeal is accordingly disposed of with no order as to costs.

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, January 6, 2009

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