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The Calcutta Thika Tenancy Act of 1949 was repealed in 1982 and the new Act, the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 was enacted with effect from 18th January, 1982 for acquisition of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:

  1. a.                  There shall be stay of the operation of the impugned judgement of the Special Bench of the High Court and there shall also be status quo as of today pending appeal.
  2. b.                  In the meanwhile the respondents shall not alienate, part with or other encumber any of the properties in question in any manner till the disposal of the appeals.
  3. c.                  Rent in respect of the Thika Tenants shall hereafter be deposited with the Controller, Thika Tenants, Calcutta appointed under section 10 of the Act without prejudice to the rights and contentions of the parties subject of adjustment.
  4. d.                  The Controller of Thika Tenants shall during the pendency of the appeals, pay the taxes in respect of the respective properties from out of the collections so made i.e. from rents of Thika Tenants deposited with him in terms of this 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:

  1. Whether the judgement dated 24th July 1998 passed by Division Bench, Calcutta High Court in Hindustan Petroleum Corporation Limited –Vs- Sashi Bhusan Mondal and judgement dated 20th June 2001 passed by Division Bench, Calcutta High Court in Sri Satyanarayan & others –Vs- S C Chunder in relation to the 1981 Act, shall apply to the 2001 Act?
  2. Meaning of the term ‘any structure’ under Section 2 Subsection 14 of the 2001 Act?
  3. Meaning of the term ‘pucca structure’ as defined in Section 2 Subsection 13 of the 2001 Act?
  4. Whether ‘pucca structure’ is ‘any structure’?
  5. Whether ‘any structure’ refers only to kutcha structure i.e. temporary structures?

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)-

  1. a.       the High Court shall, as soon as may be after such transfer, forward the records of such matter, proceeding, case or appeal to the Tribunal in accordance with such procedure as may be prescribed; and
  2. b.       the Tribunal shall, on receipt of such records, proceed to dispose of such matter, proceeding, case or appeal so far as may be, from the stage reached before such transfer or from any earlier stage or de novo as it may deem fit:

            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.

 

Conclusion

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.

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61 thoughts on “DECONSTRUCTING WEST BENGAL THIKA TENANCY

    1. Good Work. Can you guide me how to verify if the said piece of land has thika tenants?
      I have recently purchased a piece of land about 9 kottha near Kakurgachi in Kolkata. There are 4 of which 2 claim that they are thika tenants. How to go about it ?

      Thanks,
      Varun Manpuria

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      1. Check with the thika controller if the tenants have applied to become thika tenants. Have the tenants constructed any kutcha or pucca structure to call themselves thika tenants? Do the tenants have any document showcasing that they are thika tenants. Verify and search the authenticity of the documents to understand whether they are thika tenants.

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  1. I went through your article on thika tenancy, not the entire piece. Well written! I am facing a similar situation. I have a land in Kolkata, which is not yet thika tenanted (decision pending – prima facie). I want to know, how can the Government just take away my land? Its my granfather’s property. How can I battle it out in court? Will I get any compensation?

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  2. we are tenant in thika tenacy land more than 55 years ..and this land there was a khatal..can we directly become a tenant of thika tenant ..if its possible then how ?

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  3. I am staying in a concrete structured building erected on thika premises land under kolkata municipal corporation land for more than 20 years . My landlord Mr A leased or sold out the premises to Mr X . Now mr X is not accepting our rent & has served us statutory notice of eviction.
    can thika land or structure be sold or leased out to a person who has never ever been an occupant in this premises. kindly advise

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  4. we purchased a land in kolkata in 2005 and at present varatias going to thika tannent office and its declare that its a thika land in the year 2013,varatias said that Mr.abani is thika tannet and mr.abani not submit any return or any application before thika controlar in his life time,
    varatias produce only 2-3 old pattarn jamindari bill before thika.not any lease document.
    how Verify and search the authenticity of this documents. and why not clime Mr Abani in his life time that he is a thika tannant.we think varatias crating false document. how we relief.
    we are already going to tribunal.

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    1. You may question the authenticity of the documents and get the same verified. However, you must understand that there is no requirement for a written lease to create thika tenancy. You may also question the delay in applying for thika tenancy.

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  5. We are thika tenant of this land since 57years & wood stucture. we can create a contraction in building with cement.

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  6. Dear Sir,
    We are tenant in thika tenacy land more than 60 years, we are facilitate
    by kolkata corporation time water, CSSC electricity, but our land not being mutated
    at kolkata corporation, so it is my question that in this situation can I construct an under ground water reserve tank to store the time water and also place a water container at the roof (which is only pucca structure of my home) of my latrine which has been constructed by KMC on 2010 during “Basti Unnyan Prakalpa”, moreover if any objection arise then what would by my step to resolve it. Please suggest me.

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    1. Section 5 of the Thia Tenancy 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.

      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.”

      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.

      Hence, it is advised to obtain the necessary NOC from Controller and building plan sanctioned by the KMC before construction or get the same regularized after construction.

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  7. is a lessee under the colcatta thika tenancy acquisition and regulation act. 1981 liable to sell the leased structure ….

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    1. No, the lessee cannot sell the leased structure.
      There was no bar in transferring structure without the land under 1949 Act and a person purchasing the structure would have become a Thika Tenant. However, under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 transfer of thika tenancy along with interests is prohibited.

      The Supreme Court has held in Rozan Mian vs Tahera Begum & Ors 2007 that:
      “Section 5 of the Act provides that with effect from the date of commencement of this Act, lands along with the interest of the landlords therein shall vest in the State, free from all encumbrances.

      (4) Sub-Section (3) of Section 6 prohibits the transfer of the interests of thika tenants and tenants of other lands holding directly under the State except the transfer amongst the heirs and existing co-sharers-interest or to the prospective heirs, subject to the provisions of sub-section (1) of Section 7. (5) By reason of sub-section (2) of Section 7 any transfer or agreement for transfer, whether oral or in writing in contravention of the provisions of sub-section (3) of Section 6 or sub-section (1) of Section 7 shall be void and be of no effect whatsoever and the land and structure shall stand vested in the State in accordance with the prescribed procedure. (6) Section 4 of the Act has an overriding provision. It reads:-

      “4. Act to override other laws.-
      The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or in any custom, usage or agreement or in any decree or order of a court, tribunal or other authority.”

      Thus, the lessee cannot transfer the structure under the 1981 Act.

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  8. how can lessee use the lessed land for his personal interest …..? whether lessed land is property or the lessee is the owner of the land … has the lessee be given the right to consruct to rent or live by the state gov……

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    1. Land belongs to state, only structure belongs to tenant. Further, letting out structures is permissible and that too with prior permission of the Controller u/s 6(1)/5(4) of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001. The lessee may also construct structures on the said land with necessary permission from the concerned authorities.

      Thika tenant has no transferable title as prohibited u/s 6(2) of the Act, 2001 read with Sec.4 of the WBLR Act as amended in 2010. Only the structure can be let out to any outsider, and not leasing out structures with Thika land, is permissible with prior permission of the Controller u/s 5(4) & 6(1) of the Act, 2001.

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  9. Can a debuttar property which is an open land vest in the state,after the thika tenency,act came in to effect.Even if the land lord has a lease agreement.Can a shebait of the debuttar property sell the said thika land,? and enter in to a agreement with a party.commercially.I.s it legal for shebaits to sell such land,which have been declared a thika land..

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    1. Excess debuttar property or land can vest in the state.
      However, I think under proviso (b) to Section 2 (5) of the Calcutta Thika Tenancy Act, a thika tenant does not include a person who holds such land under another person under a registered lease, in which the duration of the lease is expressly stated to be for the period of not less than 12 years.
      Further, a shebait only holds the property in trust and the shebait cannot sell the temple itself. However, property other than the Temple endowed for the purposes of the Idol may have to be alienated if it is absolutely legally necessary for the purpose of preservation of the Idol and its Temple and there is no restriction on such transfer.
      It would also depend on the facts of the present case. Under Section 8(2) of the Thika Tenancy Act, 1981 even land belonging to Debutter estates vest in the State and the only right of the deity is to apply for annuity.

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    1. Thika Property can be transferred to legal heirs but for any transfer do seek permission of the thika controller. Thika Property is almost perpetual ownership since you and your future generations can stay on the land but you do not have absolute ownership since the land vests with the State and you cannot transfer it to outsiders.

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      1. we were in possession of thika land with some structure which we rented out to a tenant in 2006 vide an agreement for 99 yrs lease. now the tenant has gone to the thika controller and suppressed this fact and claimed he is in possession for long and showed different rent reciept ( not the one that we give him). he is trying to transfer the land to his name. can he do so ?

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  10. my tenent submit a rent in rent control but tenent show fasle bill in rent controller, without verification rent controller, accept any bill – how do process is stop them.

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    1. The controller had to verify all documents and submissions of both parties before arriving at the decision. If you want you can also challenge the order of the Controller within 30 days before the Land Reforms and Tenancy Tribunal.

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  11. plz send me a chart thikka fear rent for renter in permisse no. 2/1 priya nath mukherjee road, kolkata – 2, my muttation process not over 4 year plz suggest me (120062700014)

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  12. as per the latest case no W.P.L.R.T 3 of 2014 case saswati bhattacharya & Ors versus state of west bengal & ors can it be o f any benefit if i take yhis case to the supreme court as i am looking for to get a stay order on the case plz reply me as soon as possible as it is very urgent

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  13. plz send me a chart thikka fear rent for renter in permisse no. 2/1 priya nath mukherjee road, kolkata – 2, my muttation process not over 4 year plz suggest me (120062700014)

    Like

  14. Dear Chenoy Ceil ,

    I need to discuss few things about my property in Howrah , Can i have your contact number / email.I am ready to pay consultancy if you charge normally .

    Thanks

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  15. sir we have been living in a thika premises for about 20 years but landlord never gave any rent receipt despite asking for the receipt several times to him and to his legal heirs after landlord’s death. 10 years ago his sons transferred half of their thika structures to the third party and they did not informed us. we were asked to pay the rent the third party. As we have no rent receipt, the party is persuading us to leave the house. Please help me. we have ration cards, voter id, academic certificates on that address.

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  16. Hello Chenoy, very informative information. Can I have your no. to discuss on my property ? We are having a thika tenancy property in Bhowanipore and would like to construct a building. As per the Thika Tenancy office the permission is granted to construct G+2 after taking necessary NOC and sanction plan from Kolkata municipal corp. Let me know if after construction, can it be transferred to absolute ownership.

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  17. We (32 families) the residents of a building for past 15-16 years in the town of Howrah (south) purchased the respective flats on ownership basis and got it registered from the Registrar’s office in Howrah. At alater date when we approached the Howrah Municipality for mutation of our flats in respective owners’ names we were told that the property is a thika tenency one and can not be mutated. Taken aback we enquired how come a plan was sanctioned by the concerned municipality to construct three nos. of five storied buildings that too in favour of a company of a group of promoters who were never thika tenents or occupants of the land in question. Now we are in a fix over the issue and after lots of follow up and debate with the municipal authorities sometimes in the year 2007-2008 they agreed to put our flat numbers only on the bills of taxation in the manner as :

    Owner: Mr. A
    Occupier: Mr. B & Mr.C
    Person liable to pay tax: Mr. X (or just the flat number)
    Whereas to our enquiry Mr. A is since deceased, Mr. B & Mr.C are not traceable (for past 15 years at least)
    We paid proportionate tax ascertained by the municipality pertaining to our respective flats till 2008-09. Our contention is that let the property be mutated in our respective names and we are ready to pay all the taxes due. We seek your valuable opinion.

    Like

    1. I can only state that you need to take this up with the Thika Controller and Municipality. However, mutation is not the only proof of ownership. If you already have a registered deed then it is a good proof of ownership. However, you should contact a local lawyer for further guidance in this matter. Paying tax is no real proof of ownership as anyone can pay tax on behalf of another.

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  18. Dear sir,
    I have 1/3 share in thika tenancy property, from my grandmother as per documents. And 3/4 of the share goes to my grandmother’s younger brother family, but in 7june 1981 the wife of younger brother has purchased the maroshi right from land lord.
    Now she not want to divide the thika property.
    Further, she told us i have purchased the land in this way i am sole owner of the entire property. She also sent me a eviction notice.
    *The thika tenancy is registered in1961 with the land lords.
    *The said thika property is registered in name of my grandmother’s father name.
    My humble request to you please give me your valuable suggestion.

    Like

    1. Hello Naushad,
      If you have a registered thika property then raise dispute with the Thika Controller and file your returns to claim your rights to the thika tenancy. The land in itself vests with the Government and I am not sure what your younger brother’s wife purchased and from whom. You need to file return with the Thika Controller if you are to be considered a thika tenant and it should also be established how you were gifted the 1/3 share in the thika tenancy. You can email me to chenoyceil@gmail.com
      Good luck.

      Like

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