In 1949, the State of West Bengal enacted the Calcutta Thika Tenancy Act, 1949 with effect from 28th February, 1949 for better provisions relating to the law of landlord and tenant in respect of thika tenancies in Calcutta. Thika tenant means any person (including his Successors in interest) holding land under written/otherwise lease paying rental monthly/periodical to the landlord who has erected any structure for residential/business purpose except land under perpetual lease or registered lease for more than 12 years or cattle shed land for business. This Act was applicable to the lands within the Calcutta Municipal Corporation and Howrah Municipality.
The Calcutta Thika Tenancy Act, 1949 was enacted by the Government of West Bengal to make better provisions in relation to law of landlord and tenant in respect of Thika Tenancies in Calcutta. The land in question remained with the Landlord and there was no provision for vesting of same within the State of West Bengal.
On or about 9th September 1980, Calcutta Thika Tenancy (Acquisition and Regulation) Bill, 1980 was introduced before the West Bengal Legislative Assembly and thereafter the Bill was referred to the Select Committee. Thereafter, on or about 11th March 1981, the Select Committee submitted its report along with certain recommendations.
On or about 2nd November 1981, the Bill was passed in the Assembly after accepting the recommendations made by the Select Committee and incorporating necessary amendments and thereafter on the same day the Bill was first published in the Calcutta Gazette Extra-ordinary. On or about 5th May 1982, Calcutta Thika Tenancy (Acquisition & Regulation) Rules, 1982 were made and on 31st May 1982 the same was published in the Calcutta Gazette, Extra-ordinary.
The Calcutta Thika Tenancy Act of 1949 was repealed in 1982 and the new Act, the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was enacted with effect from 18th January, 1982 for acquisition of thika tenancies lands and other lands including lease in perpetuity, registered lease for more than 12 years and cattle shed and also for planned development and distribution of such land to subserve common good. Such thika tenancies lands stood vested with the State of West Bengal and the lessee became a thika tenant under the State of West Bengal. Landlords were entitled to compensation for such vesting (acquisition). What is significant in the definition of Thika Tenant under the 1981 Act is that persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of “Thika Tenancy” were now brought within its ambit.
The 1981 Act brought about drastic changes in the concept of Thika tenancy. The superior interest of the landlord holding under the State stood vested in the State by operation of law. The land having been vested in the State and the Thika Tenant occupying the land under the landlord became a Thika Tenant holding the Thika Tenancy directly under the State.
Section 2 Subsection 8 of the said 1981 Act defined “thika tenant” as “any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person”.
Section 2 Subsection 7 of the said 1981 Act defined “pucca structure” as “any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature”
The said 1981 Act did not define the term ‘any structure’ and so it was for the judiciary to interpret and define the same. On or about 24th July 1998, in the case of Hindusthan Petroleum Corporation Limited –Vs- Sashi Bhusan Mondal [APD. No. 280 of 1981], the Division Bench (comprising of Ajoy Nath Roy and Dipak Prakas Kundu JJ) Hon’ble High Court, Calcutta, while upholding the ratios of Kshirodamyee Sen [63 CWN 565], Monmatha Nath Mukherjee [63 CWN 824] Jatadhari Daw [1986 (1) CHN 21] and P D Murarka [79 CWN 852] held, inter alia, that ‘any structure’ refers only to temporary or kuttcha structure and not to ‘pucca structure’ under the said 2001 Act and that where there is ‘pucca structure’ the said 1981 Act shall not apply and that retail outlet structures are ‘pucca structure’ and that Hindustan Petroleum Corporation Limited is not a ‘thika tenant’. The relevant portion of the said judgement dated 24th July 1998 is reproduced below:
“The question which automatically comes to one’s mind is that if construction of any structure makes one a thika tenant then there would be duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both by the Thika Tenancy Laws and by the Rent Control Legislation. That the word ‘any structure’ in the Thika Tenancy Act has been consistently held to mean kutcha or temporary structure and this has been held so in Kshirodamyee Sen – 63 CWN 565, Monmatha Nath Mukherjee – 63 CWN 824, Jatadhari Daw – 1986 (1) CHN 21 and P D Murarka – 79 CWN 852.
In our opinion we need not enter into this issue. From the discussion above it would be clear that there being no kutcha structure involved in the demised premises the question of thika tenancy does not arise at all”.
The said judgement dated 24th July 1998 was followed by another judgement dated 20th June 2001 passed in the case of Sri Sri Satyanarayan & others –Vs- S C Chunder [APD No. 294 of 1978] by Division Bench (comprising of Ajoy Nath Roy and Pranab Kumar Chattapadhyay JJ) Calcutta High Court and relevant portion of the said judgement dated 20th June 2001 is reproduced below:
“The purpose of this Act is to grant some protection to poor persons who happened to be living within city limits, but who had means to afford only kutcha structure above their head.
Thus the true view and the complete view as apparent to us today is, that, for the Thika Tenancy Act to apply, each and every structure comprised in the tenancy must be a kutcha structure i.e. not a pucca structure. In the Hindusthan Petroleum case, the Division Bench opined that unless kutcha structure is involved, thika tenancy could not arise. We now advisely opine that unless all structures are kutcha in the tenancy, thika tenancy cannot arise i.e. is in a tenancy comprising a host of kutcha structure there comes up even one pucca structure, the Thika Tenancy Act loses its applicability”.
On or about 12th December 1985, a writ application being C. R. No. 11382 (W) of 1982 and 206 analogous rules all regarding the said 1981 Act were referred to the Special Bench of Hon’ble High Court Calcutta, for adjudication of certain issues regarding the said 1981 Act. On or about 8th July 1987, the Special Bench was pleased to deliver its judgement in C. R. No. 11382 (W) of 1982 and the 206 analogous rules and directed all writ applications to be dealt expeditely by an appropriate bench. The operative part of the said judgement read as follows:
a) “The impugned Act is not protected under Art. 31C of the Constitution of India as it is found on scrutiny of different provisions of the impugned Act that the impugned Act has not been enacted to give effect to provisions of Articles 39(b) and (c) of the Constitution of India and the impugned Act is open to challenge on the score of violations of part III of the Constitution.
b) Within the scope and ambit of Sec. 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising as kutcha structure and/or a pucca structure constructed for residential purpose with the permission of the Collector under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease shall vest and save as aforesaid no other land and structure vests under the impugned Act.
c) Sub-sec. (2) and (3) of Sec. 8 of the impugned Act and Rule 5 of the Calcutta Thika Tenancy (A & R) Rules, 1982 are ultra vires of the Constitution.
d) Rule 3(b) of the Calcutta Thika Tenancy (A & R) Rules, 1982 excepting the following position in every thika tenant or tenant shall pay to the Controller Annual revenue being not less than what he was paying to the landlord before the coming into force of the Act” Rules 3(h) 3(i), 3(j) of the said Rules are ultra vires.
e) Sec. 19 of the impugned Act in so far as it purports to abate any pending appeal preferred by a Thika Tenant against a decree for eviction of Thika Tenant under the Calcutta Thika Tenancy Act, 1949 and any execution proceeding for eviction of a Thika tenant against whom a decree for eviction had been passed under the Calcutta Thika Tenancy Act before the enforcement of the impugned Act, 1949 is illegal and ultra vires.
f) Sec. 6(2) of the impugned Act excepting the proviso thereunder and sections 26 and 27 of the impugned Act are declared ultra vires”.
The State of West Bengal being aggrieved with the said judgement dated 8th July 1987 preferred a Special Leave Petition before the Hon’ble Supreme Court, India, being Civil Appeal Nos. 3713-3900 of 1987 [The State of West Bengal –vs- Lakhimani Das & others]. The said SLP was moved along with a stay petition on 25th January 1988, when the Hon’ble Supreme Court, India, was pleased to pass the following order:
“On the application for stay made by the State Government of West Bengal, we have heard Sri N Gupta, learned Advocate General appearing on behalf of the State as well as the learned Counsel appearing for several respondents in different appeal, as some length and we think it expedient in the public interest to make the following order:
Such of the respondents as hold any debutter property shall be at liberty to move the High Court for appropriate directions. The High Court shall dispose off such applications, if made after notice to the State Government”.
Further, on or about 22nd November 2002, the Government of West Bengal enacted the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. By virtue of section 27 of the said 2001 Act, the said 1981 Act had been repealed with retrospective effect. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.
Section 2 Subsection 14 of the said 2001 Act defines “thika tenant” as “any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose, and includes the successors-in-interest of such persons but excludes any resident of a structure forfeited to the State under sub-section (2) of section 6 of this Act irrespective of the status, he may have enjoyed earlier”
Section 2 Subsection 13 of the said 2001 Act defines “pucca structure” as “any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature”
Section 4 of the said 2001 Act states:
“Lands comprised in thika tenancies and other lands, etc. to vest in the State.
“With effect from the 18th day of January, 1982, the following lands along with the interest of landlords therein shall be deemed to have vested in the State, free from all encumbrances:-
(a) Lands comprised in, and appurtenant to, tenancies of thika tenants including open areas, roads; and
(b) Lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being used or occupied as khatal:
Provided that any land comprised in, and appurtenant to, tenancies of thika tenants created after the 18th day of January, 1982, shall also be deemed to be vested in the State, free from all encumbrances with effect from the date of creation of tenancies of thika tenants:
Provided further that such vesting shall not be deemed to have affected in any way the easements, customary rights or other facilities enjoyed by thika tenants, Bharatias or occupiers of land coming within the purview of this section:
Provided also that nothing contained in this section shall prevent the State Government or the local authority from taking up any development work on the land appurtenant to tenancies of thika tenants for public purpose”.
Section 5 of the said 2001 Act provides that a thika tenant is required to obtain “no objection certificate” from the Controller and a building plan duly sanctioned from the Municipal authority before constructing any permanent structure in the thika tenanted property.
Section 6(2) of the said 2001 Act provides that in case such unauthorised construction is raised by the thika tenant without complying with the provisions contained in Section 5 of the said Act, the construction will vest with the State. However, if the Controller is of the view that vesting of such unauthorised construction with the State will cause any hardship to the thika tenant or the Bharatia, then the Controller may issue a provisional certificate for enabling the thika tenant to apply before the Municipal authority for obtaining sanction of the building plan.
Though the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was repealed by the 2001 Act, with retrospective effect, the following uncertainties/confusions persisted and subsisted:
On or about 8th July 2003, the State of West Bengal preferred an interlocutory application being I. A. No. 350 of 2003 in Civil Appeal Nos. 3713 – 3900 of 1987 before the Hon’ble Supreme Court, India, praying for leave to withdraw the said Appeals in light of fact that the Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981 had been repealed by section 27 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001. Thereafter on 19th August 2003, the said interlocutory application was taken up for hearing by Hon’ble Justice Brijesh Kumar and Hon’ble Justice Arun Kumar, when the Lordships were pleased to pass the following order:
“An application had been moved on behalf of the State of West Bengal, for permission to withdraw these appeals. A counter affidavit to the said application has been filed on behalf of the respondent Landlords. However, it is submitted, they would have no objection in case the application for withdrawal is allowed without prejudice to the rights of the parties. Learned Counsel for the applicant submits that permission to withdraw the appeals may be given with the observations that withdrawal of the appeals shall not prejudice the rights of the parties. That being the position, we allow the withdrawal of the appeals which stand dismissed as withdrawn without prejudice to the rights of any of the parties.
In view of the order passed in C. A. No. 3713 – 3900 of 1987, all other applications stand dismissed”.
On or about July 2003, a fresh writ application was filed before Hon’ble Supreme Court, India, being Writ Petition (Civil) No. 319 of 2003 (Lakshimoni Das & others –Vs- State of West Bengal & others), challenging the said 2001 Act.
On 19th August 2003, the said writ application was taken up for hearing by the Hon’ble Justice Brijesh Kumar and Hon’ble Justice Arun Kumar when the Lordships were pleased to pass the following order:
“It is informed that the order for issuance of notice has been passed only yesterday. Let the notice be issued accordingly.
List all the appeals and the Writ Petitions together after service of notice is complete in W. P. (C) No. 319 of 2003 and 383 of 2003”.
On or about 28th September 2004, an order was passed by the Hon’ble Supreme Court of India in W. P. No. 319 of 2003 (Lakhimoni Das & others –Vs- State of West Bengal & others) and other batch matters, dismissing the same and the relevant operative part of the said order reads as follows:
“………..this writ petition has been filed directly in this Court under Article 32 of the Constitution of India. Counsel for the petitioners state that they may be permitted to withdraw this writ petition with the liberty to file a writ petition in the High Court challenging vires of the Act”.
It may also be mentioned that, on or about 3rd September 1999, the Registrar, Hon’ble High Court, Calcutta issued an order, stating:
“In view of the provisions of the West Bengal Land Reforms and Tenancy Tribunal Act 1997 and in view of the order passed by the Hon’ble Supreme Court in the Special Leave Petition No. 10308 of 1999 dated 08.08.1999, it is directed that henceforth Mandamus Department will not accept any application under West Bengal Estates Acquisition Act 1953, West Bengal Land Reforms Act 1957, The Calcutta Thika Tenancy (Acquisition and Regulation) Act 1981, The West Bengal Acquisition of Homestead Land for Agricultural Labourers, Artisans and Fishermen Act 1975, The West Bengal Land Holding Revenue Act 1979.
The Mandamus Department will also take immediate step for sending case records, the applications for which have been filed in connection with those Acts, to the West Bengal Land Reforms Tribunal for disposal”.
For sake of clarity it may be also be mentioned that, section 2 subsection (r) of the West Bengal Land Reforms & Tenancy Tribunal Act 1997 states that the Act shall apply to matters relating to the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 (West Ben. Act XXXVII of 1981) i.e. the Land Tribunal shall have jurisdiction over the Thika Tenancy matters. Further section 9 of the West Bengal Land Reforms and Tenancy Tribunal Act 1997 deals with the transfer of case records from High Court. Subsection (1) and (2) read as:
(1) “All matters, proceedings, cases and appeals relating to land reforms and matters connected therewith or incidental thereto and other matters arising out of a specified Act pending before the High Court, except where a Division Bench of that Court exercises writ jurisdiction under Articles 226 and 227 of the Constitution on the date appointed by the State Government under section 6, shall stand transferred to the Tribunal for disposal in accordance with the provisions of this Act.
(2) Where any matter, proceeding, case or appeal stands transferred from the High Court to the Tribunal under sub-section (1)-
Provided that any interim order granted in a matter, proceeding or case by the High Court shall stand vacated on the expiry of twelve weeks from the date appointed by the State Government under Section 6 unless the Tribunal by an order varies, modifies or extends the same earlier on an examination of the records of such matter, proceeding or case.
On or about 2nd November 2004, the Government of West Bengal enacted the West Bengal Thika Tenancy (Acquisition and Regulation) Rules, 2004 (for short ‘the 2004 Rules’) vide Notification No. 3264 – L. The 2004 Rules was enacted under provision of Section 19 of the 2001 Act.
On or about 5th October 2010, the Government of West Bengal vide Notification No. 1411 – L, published in the Calcutta Gazette, Extraordinary Part – III, enacted the West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010. Some of the relevant provisions of the 2001 Act in light of the 2010 Amendment Act are:
Section 1 (2):
It extends to Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980 (West Ben. Act LIX of 1980), and to Howrah as defined in clause (15) of section 2 of the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980) and such other areas as the State Government may notify from time to time:
Provided that the provisions of this Act shall not extend to the whole of, or to any area included within the limits of, Howrah, which immediately before the 10th day of January, 1982, being the date of coming into force of the Howrah Municipal Corporation Act, 1980, was not comprised in the municipality of Howrah;
Provided further that the provisions of this Act shall not extend to the whole of, or to any area included within the limits of, Kolkata, which immediately before the 4th day of January, 1984, being the date of coming into force of the Kolkata Municipal Corporation Act, 1980, was comprised in any municipality.
Section 2 (7):
“landlord means any corporation, charitable or religious institution or person who, for the time being, is entitled to receive or, but for a special; contract, would be entitled to receipt rent for any land comprised in the tenancy of a thika tenant or in khatal, tank or hut owned by him, and includes any corporation, institution or person having superior interest in such thika tenancy;
Section 2 (8):
“lease” means a lease of immovable property by which a transfer of a right to enjoy such property made for a certain time expressed or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent;
Section 2 (13):
“pucca structure” means any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature;
Section 2 (14):
“thika tenant” means any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected of acquired [by purchase or gift any structure including pucca structure, if any, on such land] for residential, manufacturing or business purpose, and includes the successors-in-interest of such persons but excludes any resident of a structure forfeited to the State under sub-section (2) of section 6 of this Act irrespective of the status, he may have enjoyed earlier;
Section 2 (15):
“thika land” means any land comprised in and appurtenant to, tenancies of thika tenant irrespective of the fact whether there is any claim of such tenancy or not and includes open areas and roads of such land.
The significant change brought in by the 2010 Amendment Act is that now a pucca structure is also subject to Thika Tenancy and as such the confusion as to whether pucca structure is subject to Thika Tenancy has been removed. The 2001 Act is presently applicable to the Municipalities of Kolkata and Howrah with certain exceptions, however, under section 1 (2) of the 2001 Act the Government of West Bengal has the power to make the 2001 Act applicable to other areas of West Bengal upon notifying the same. As on date, the Government of West Bengal has not notified any additional area that may be subject to the 2001 Act.
Under the 2001 Act the Thika Controller has the power to decide as to whether or not any particular land is a Thika land. The Thika Controller issues notice under section 5 of the 2001 Act, directing filling of Form ‘A’ Return and a Demand Notice in T. R. Form No. 7 directing deposit of the rent. Under the 2001 Act necessary compensation is payable to the Landlord. If any party is aggrieved with the decision of the Thika Controller, the same may be challenged before appropriate legal forum.
If Thika Controller has issued notice under section 5 of the 2001 Act then the particular land stands vested in the State of West Bengal. As such execution of a fresh lease with the landlord does not arise. If any party is aggrieved with the decision of the Thika Controller, the same may be challenged before appropriate legal forum.
If, no notice under Section 5 of the 2001 Act has been issued by the Thika Controller in respect of a particular land then the land has not vested in the State of West Bengal.
The 1981 Act and thereafter the 2001 Act, was enacted by the Government of West Bengal to provide for the acquisition of interests of landlords in respect of lands comprised in thika tenancies, for development and equitable utilization of such lands. The Hon’ble High Court at Calcutta by its various judgements as stated above, has held that the 1981 Act applied to only temporary structures and not pucca structures. Hence post 1981 the landlord looses his/her title to the land having temporary structures only, which vests within the State of West Bengal and the thika tenant becomes a direct tenant under the State.
After the enactment of the 2010 Amendment Act, thika tenancy is not limited to temporary structures but also applicable to pucca structures. Hence post the 2010 Amendment Act, thika land/tenancy comprising of either pucca or temporary structures shall vest within the State of West Bengal and the thika tenant becomes a direct tenant under the State.
In W. P. No. 19041 (W) of 2013 (Md. Babu Ali @ Akbar & Ors. Vs. The Kolkata Municipal Corporation & Ors.) it has been held by the Honb’le Calcutta High Court that:
“If the thika tenant after obtaining such provisional “no objection certificate” from the Controller, succeeds in obtaining a sanctioned building plan from the Municipal authority and submits the same before the Controller within the time fixed by the Controller, then the Controller will issue a formal “no objection certificate” for regularising such unauthorised construction.”
Further, it has been held by the Hon’ble High Court in W.P. No. 627 of 2013 (Hazra Bibi & Anr. Vs. Kolkata Municipal Corporation & Ors.) that:
“The proviso to Section 6(3) of the said Act provides that the Controller shall not issue final certificate unless the thika tenant has produced a construction plan of such structure sanctioned by the local authority to the Controller within such time and on payment of such fee as may be prescribed. The second proviso to Section 6(3) provides that if the thika tenant fails to produce such sanctioned plan within such prescribed time to the Controller, the Controller may invoke the procedure of forfeiture under Sub-Section 2 of Section 6.
Thus it is clear, that unauthorized construction cannot be regularized, unless the Municipal authority grants post facto sanction to the Building plan, notwithstanding “no objection certificate” is issued by the controller. This necessarily follows that the Municipal authority may, in its discretion, refuse to grant sanction to the Building Plan even after issuance of provisional no objection certificate by the controller.”
If an intimation of the Thika Controller is received, then appropriate steps needs to be taken and represented before the Thika Controller because passing of an adverse order by the Thika Controller under section 18 of the 2001 Act cannot be ruled out.
Thus, it is pertinent that under the current Thika Tenancy laws prevalent in West Bengal, the abovementioned procedures needs to be followed for effective adjudication of disputes.