# NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS v. MANI SQUARE LTD. & ORS

- **Citation:** [2022] 11 S.C.R. 416
- **Court:** Supreme Court of India
- **Decided:** 2022-07-27
- **Case number:** Civil Appeal No. 2402 of 2015
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nemai-chandra-kumar-d-thr-lrs-ors-v-mani-square-ltd-ors-35668
- **Pages:** 59

## Headnote

Tenancy Law - Calcutta Thika Tenancy Act, 1949 - Calcutta
Thika and Other Tenancies and Land (Acquisition and Regulation)
Act, 1981 - ss. 3(7) 3(8) & 5 - West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001 - ss. 2(14) & 4 - Thika
Tenant - On 15.12.1973, 'JN' leased out the property to appellants
for a period of 20 years - By this lease deed, the lessees were also
given the right to raise construction and to use and enjoy the same
during the tenure with a condition that on expiry of the lease on
30.11.1993, the lessees will have to deliver vacant and peaceful
possession - The lessees raised some structure over the subject
property - After the Act of 2001 came into force, the appellant filed
application before the Controller for declaration that they were thika
tenants and they had deposited rent with interest with the Controller
for the period from 18.01.1982 till 2007 - After demise of the said
'JN', his heirs, transferred the property to seven companies - The
Controller declared the lessees as thika tenants over the property -
Objections raised by the respondents were rejected by the Controller
- Tribunal found no reasons to interfere with the findings of
Controller and dismissed the appeal - The High Court allowed the
writ petition filed by respondent while holding that the appellants
did not qualify as thika tenants - On appeal, held: Section 4 of the
Act of 2001 read with the Amendment Act of 2010 put it beyond the
pale of doubt that until the advent of the Amendment Act of 2010
w.e.f. 01.11.2010, erection of pucca structure on the leased land
did not bring the tenant within the definition of thika tenant - The
Act of 2001 and its amendments have rightly been referred to, by
the High Court in the impugned judgment while construing the Act
of 1981 - Amendment Act of 2010 was given only prospective effect
from 01.11.2010 and not the retrospective effect - The lease in
question came to an end on 30.11.1993, thereafter, the appellants
A
B
C
D
E
F
G
H
417
ceased to be persons liable to pay rent at monthly or in any other
periodical rate - In that position, they ceased to answer to the
definition of thika tenant within the meaning of Section 3(8) of the
Act of 1981 similarly, within the meaning of Section 2(14) of the Act
of 2001 - The High Court has rightly observed that it was never
held in Purushottam Das Murarka that if tenant of a land would raise
pucca structure, he would automatically become a thika tenant -
The High Court has meticulously examined the matter in its right
perspective.
Dismissing the appeal, the Court
HELD: 1. The object and purpose of these enactments and
text of the relevant provisions, when examined with reference to
their texture and context, the provisions of vesting as evolved
by way of originally enacted Section 5 of the Act of 1981 and as
provided for in Section 4 of the Act of 2001 read with the
Amendment Act of 2010 put it beyond the pale of doubt that until
the advent of the Amendment Act of 2010 w.e.f. 01.11.2010,
erection of pucca structure on the leased land did not bring the
tenant within the definition of thika tenant and thus, there could
not have been any vesting in the State under Section 5 of the Act
of 1981 (whether originally enacted or amended) or under Section
4 of the Act of 2001, as originally enacted. [Para 26][465-D-E]
2. This Court also observe that ordinarily, a later enactment
may not be a safe external aid for interpreting the preceding
enactment on the same subject but the object and purport of the
enactments dealing with thika tenancies commencing from the
year 1949 and continuing with successive enactments of 1981,
its amendment in 1993, then the enactment of 2001 and its
amendment in the year 2010, formed a series of legislative
exercises towards the same subject, i.e., protection of thika
tenants. Hence, the later promulgation of the Act of 2001 and its
amendments could have been referred to, and have rightly been
referred to, by the High Court in the im

## Text

_Characters 0–39,915 of 142,045. This is a partial read: ask again with offset=39915 for what follows._

A
B
C
D
E
F
G
H
416
SUPREME COURT REPORTS
[2022] 11 S.C.R.
 [2022] 11 S.C.R. 416
416
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS.
v.
MANI SQUARE LTD. & ORS.
(Civil Appeal No. 2402 of 2015)
JULY 27, 2022
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Tenancy Law - Calcutta Thika Tenancy Act, 1949 - Calcutta
Thika and Other Tenancies and Land (Acquisition and Regulation)
Act, 1981 - ss. 3(7) 3(8) & 5 - West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001 - ss. 2(14) & 4 - Thika
Tenant - On 15.12.1973, 'JN' leased out the property to appellants
for a period of 20 years - By this lease deed, the lessees were also
given the right to raise construction and to use and enjoy the same
during the tenure with a condition that on expiry of the lease on
30.11.1993, the lessees will have to deliver vacant and peaceful
possession - The lessees raised some structure over the subject
property - After the Act of 2001 came into force, the appellant filed
application before the Controller for declaration that they were thika
tenants and they had deposited rent with interest with the Controller
for the period from 18.01.1982 till 2007 - After demise of the said
'JN', his heirs, transferred the property to seven companies - The
Controller declared the lessees as thika tenants over the property -
Objections raised by the respondents were rejected by the Controller
- Tribunal found no reasons to interfere with the findings of
Controller and dismissed the appeal - The High Court allowed the
writ petition filed by respondent while holding that the appellants
did not qualify as thika tenants - On appeal, held: Section 4 of the
Act of 2001 read with the Amendment Act of 2010 put it beyond the
pale of doubt that until the advent of the Amendment Act of 2010
w.e.f. 01.11.2010, erection of pucca structure on the leased land
did not bring the tenant within the definition of thika tenant - The
Act of 2001 and its amendments have rightly been referred to, by
the High Court in the impugned judgment while construing the Act
of 1981 - Amendment Act of 2010 was given only prospective effect
from 01.11.2010 and not the retrospective effect - The lease in
question came to an end on 30.11.1993, thereafter, the appellants
A
B
C
D
E
F
G
H
417
ceased to be persons liable to pay rent at monthly or in any other
periodical rate - In that position, they ceased to answer to the
definition of thika tenant within the meaning of Section 3(8) of the
Act of 1981 similarly, within the meaning of Section 2(14) of the Act
of 2001 - The High Court has rightly observed that it was never
held in Purushottam Das Murarka that if tenant of a land would raise
pucca structure, he would automatically become a thika tenant -
The High Court has meticulously examined the matter in its right
perspective.
Dismissing the appeal, the Court
HELD: 1. The object and purpose of these enactments and
text of the relevant provisions, when examined with reference to
their texture and context, the provisions of vesting as evolved
by way of originally enacted Section 5 of the Act of 1981 and as
provided for in Section 4 of the Act of 2001 read with the
Amendment Act of 2010 put it beyond the pale of doubt that until
the advent of the Amendment Act of 2010 w.e.f. 01.11.2010,
erection of pucca structure on the leased land did not bring the
tenant within the definition of thika tenant and thus, there could
not have been any vesting in the State under Section 5 of the Act
of 1981 (whether originally enacted or amended) or under Section
4 of the Act of 2001, as originally enacted. [Para 26][465-D-E]
2. This Court also observe that ordinarily, a later enactment
may not be a safe external aid for interpreting the preceding
enactment on the same subject but the object and purport of the
enactments dealing with thika tenancies commencing from the
year 1949 and continuing with successive enactments of 1981,
its amendment in 1993, then the enactment of 2001 and its
amendment in the year 2010, formed a series of legislative
exercises towards the same subject, i.e., protection of thika
tenants. Hence, the later promulgation of the Act of 2001 and its
amendments could have been referred to, and have rightly been
referred to, by the High Court in the impugned judgment while
construing the Act of 1981. [Para 27][465-F-G]
2.1 There are other strong reasons for which too, the
successor enactment is required to be taken in aid for construing
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS.
A
B
C
D
E
F
G
H
418
SUPREME COURT REPORTS
[2022] 11 S.C.R.
the provisions of the preceding enactment in the present case. It
is a fact that even when the Act of 2001 came into force from
01.03.2003, the vesting of the land comprised in thika tenancies
and other land etc. was deemed to have occurred w.e.f. 18.01.1982;
that being the very date of enforcement of the Act of 1981.
Learned counsel for the respondent No. 1 appears right in his
submissions that the Act of 1981 having been simultaneously
enacted while repealing the Act of 1949, it had to be read in
conjunction with the preceding enactment and the legislature
would be deemed to be aware of the judicial pronouncements as
regards the material terms of the Act of 1949 which were, with
same frame and phraseology, retained in the new enactment. The
decisions referred to by the learned counsel for the respondent
No. 1 in the cases of Bengal Immunity Co. Ltd. and Gammon India
Ltd. provide enough guide on the principle that repeal and
simultaneous re-enactment is to be considered as reaffirmation
of the old law. The submission on behalf of the appellants and the
State, that the interpretations put to the expression "any
structure", as occurring in relation to the Act of 1949, cannot be
imported for the purpose of the interpretation of the same
expression in similar enactment with similar phraseology, which
was made in replacement of the earlier one, is required to be
rejected. The exclusion aspects of the Act of 1949 had, of course,
not been continued in the Act of 1981 but the basic elements for
a tenancy to become thika tenancy remained the same namely,
requirement of payment of rent and construction/acquisition of
any structure thereat by the tenant. There is nothing in the Act
of 1981 for which the interpretation of the expression "any
structure" could have been made different than the interpretation
of the same expression in regard to the Act of 1949. [Para
27.1][465-H; 466-A-E]
3. Significant it is to notice that even in the Act of 2001, as
originally enacted, the definition of thika tenancy in clause (14) of
Section 2 thereof retained more or less the same expressions as
were there in the Act of 1981; and the expression "any structure
including pucca structure" came to be inserted to this clause
only by the Amendment Act of 2010. Moreover, the Amendment
Act of 2010 was given only prospective effect from
01.11.2010 and not the retrospective effect, as was earlier given
A
B
C
D
E
F
G
H
419
to the original Section 4 of the Act of 2001. Thus, acquisition of
the land comprising thika tenancy with even erection or acquisition
of pucca structure by the thika tenant came to be provided for in
specific terms by the legislature only from 01.11.2010 and not
before. As noticed, before 01.11.2010, so far as the lease in
question was concerned, the same had ceased to subsist and there
was no existing lease which could have taken the appellants within
the frame of thika tenancy on 01.11.2010. [Para 28.5][468-E-G]
4. Apart from the aforesaid view taken by us, so far as the
present matter is concerned, a fundamental reason operates
against the applicability of the Act of 1981. As noticed, after coming
into force of the Act of 1981, the same was indeed challenged by
the landlord in the High Court and indisputably, operation of the
enactment qua the subject property was stayed by the High Court.
The correctness or otherwise of the order so passed by the High
Court is not a matter of question before us. The fact of the matter
remains that the said Act was under total eclipse qua the subject
property pursuant to the binding order of the High Court.
Therefore, any suggestion about the operation of the said
enactment and thereby vesting of the subject property in the State
pursuant to Section 5 of the Act of 1981 is rather redundant. [Para
31][471-H; 472-A-B]
5. Then, the lease in question came to an end on 30.11.1993.
Thereafter, the appellants ceased to be persons liable to pay rent
at monthly or in any other periodical rate. In that position, they
ceased to answer to the definition of thika tenant within the
meaning of Section 3(8) of the Act of 1981. Similarly, they did not
answer to the description of thika tenant within the meaning of
Section 2(14) of the Act of 2001. As a necessary corollary, neither
Section 5 of the Act of 1981 applied to the tenancy in question
nor Section 4 of the Act of 2001. The application made before the
Controller in the month of April, 2003 for accepting the appellants
and/or their predecessors as thika tenants was, therefore,
fundamentally misconceived and could have only been rejected.
Then, the Tribunal, in its impugned order, attempted to inject
various such philosophies which were simply beside the point.
In our view, the High Court has meticulously examined the matter
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS.
A
B
C
D
E
F
G
H
420
SUPREME COURT REPORTS
[2022] 11 S.C.R.
in its right perspective and, with apt analysis of all the three
enactments vis-à-vis the facts of the case, has rightly concluded
against the claim of the thika tenancy of the appellants and/or
their predecessors. [Para 32 & 33.2][472-E-G; 473-C-D]
6. In summation of what has been discussed hereinabove,
this Court could broadly say:
1. The Full Bench decision of Calcutta High Court in
Lakshmimoni Das is affirmed.
2. The structure, as put up by the appellants and/or their
predecessors, had been pucca structure on the property in
question.
3. For the structure being pucca in character and the term
of lease being 20 years, the appellants and/or their predecessors
were not thika tenants within the meaning of Section 2(5) of the
Act of 1949.
4. The appellants and/or their predecessors were not thika
tenants within the meaning of the Act of 1981 for two major
reasons:
a. that the structure in question was a pucca structure; and
b. that the Act of 1981 was not operative in relation to the
property in question because of the stay order passed by the
High Court.
5. On the date when lease expired in the month of
November, 1993, the appellants and/or their predecessors were
not thika tenants and, therefore, the Act of 2001 does not enure
to their benefit.
6. The impugned decision of the High Court, therefore,
calls for no interference. [Para 35][473-F-H; 474-A-C]
Lakshmimoni Das and Ors. v. State of West Bengal and
Ors. AIR 1987 Cal 326 - approved.
Purushottam Das Murarka v. Harendra Krishna
Mukherjee 79 CWN 852; Sri Sri Satyanarayan & Ors.
v. S.C. Chunder 2001 (3) CHN 641; Jatadhari Daw &
Grandsons v. Smt Radha Debi & Anr. 1986 (1) CHN
A
B
C
D
E
F
G
H
421
21; Chief Inspector of Mines and Anr. v. Lala Karam
Chand Thapar and Ors. [1962] 1 SCR 9; Om Prakash
Gupta v. DIG Vijendrapal Gupta (1982) 2 SCC 61 :
[1982] 3 SCR 491; Bharat Aluminium Company v.
Kaiser Aluminium Technical Services Inc.(2012) 9 SCC
552 : [2012] 12 SCR 327; Union of India & Anr. v.
Hansoli Devi & Ors. (2002) 7 SCC 273:[2002] 2 Suppl.
SCR 324; Vijay Narayan Thatte and Ors. v. State of
Maharashtra and Ors. (2009) 9 SCC 92: [2009]
14 SCR 89
Monmatha Nath Mukherjee v. Smt. Banarasi and Ors.
63 CWN 824; Kshiroda Moyee Sen and Ors. v.
Ashutosh Roy and Ors. 63 CWN 565; Jnan Ranjan Sen
Gupta and Ors. v. Arun Kumar Bose (1975) 2 SCC 526
: [1976] 1 SCR 105;
Ramdas Bansal (Dead) Through LR v. Kharag Singh
Baid & Ors.: (2012) 2 SCC 548 : [ 2012] 4 SCR 583;
Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC
92 : [2014] 2 SCR 1; Afcons Infrastructure Ltd. & Anr.
v. Cherian Varkey Construction Company Private
Limited & Ors.(2010) 8 SCC 24 : [2010] 8 SCR 1053;
Gajraj Singh & Ors. v. State Transport Appellate
Tribunal & Ors. (1997) 1 SCC 650 : [ 1996] 6 Suppl.
SCR 172; Ram Krishna Shaw v. Tachmani Devi (1994)
1 CAL 394; Annapurna Seal v. Tincowrie Dutt and Anr.
66 CWN 338; Shanker Raju v. Union of India (2011) 2
SCC 132 : [2011] 2 SCR 1; Bengal Immunity Company
Limited v. State of Bihar and Ors. [1955] 2 SCR 603;
Gammon India Ltd. v. Special Chief Secretary & Ors.
(2006) 3 SCC 354 : [2006] 2 SCR 304; Nand Ram
(Dead) Through Legal Representatives v. Jagdish
Prasad (Dead) Through Legal Representatives (2020)
9 SCC 393 - referred to.
Case Law Reference
[1962] 1 SCR 9
referred to
Para 18.1
[1982] 3 SCR 491
referred to
Para 18.1
[2012] 12 SCR 327
referred to
Para 18.1
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS.
A
B
C
D
E
F
G
H
422
SUPREME COURT REPORTS
[2022] 11 S.C.R.
[2002] 2 Suppl. SCR 324
referred to
Para 18.1
[2009] 14 SCR 89
referred to
Para 18.1
[1976] 1 SCR 105
referred to
Para 18.2
[2012] 4 SCR 583
referred to
Para 19.2
[2014] 2 SCR 1
referred to
Para 19.4
[2010] 8 SCR 1053
referred to
Para 19.4
[1996] 6 Suppl. SCR 172
referred to
Para 19.5
[2011] 2 SCR 1
referred to
Para 20.5
[1955] 2 SCR 603
referred to
Para 20.6
[2006] 2 SCR 304
referred to
Para 20.6
(2020) 9 SCC 393
referred to
Para 20.8
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2402
of 2015.
From the Judgment and Order dated 10.03.2014 of the High Court
at Calcutta in W.P.L.R.T No.325 of 2013.
Jaideep Gupta, Sr. Adv., Utpal Majumdar, Kunal Chaterjee, Ms.
Ranjeeta Rohatgi, Ms. Samten Doma, Advs. for the Appellants.
P. Chidambaram, Sr. Adv., Kunal Vajani, Pranaya Goyal, Aman
Gandhi, Abhirath Thakur, Ms. Madhumita Bhattacharjee, Ms. Srija
Choudhury, Anant, Chanchal Kumar Ganguli, Shekhar Kumar, Advs.
for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents
Preliminary............................................................................. 2*
Statutory Provisions ............................................................... 3*
Background and Factual Matrix .......................................... 13*
Findings and conclusion of the Controller............................ 17*
Findings of the Tribunal ....................................................... 23*
A
B
C
D
E
F
G
H
423
Findings of the Calcutta High Court .................................... 26*
Previous decision of this appeal and review thereof ........... 34*
Rival Contentions................................................................. 35*
The Appellants .......................................................... 36*
The State ................................................................... 39*
The respondent No. 1................................................ 43*
Analysis ............................................................................... 48*
The Structure in question .......................................... 48*
The statutory scheme and the import of three enactment
with their amendments ........................................................ 50*
The relevant decisions of Calcutta High Court ......... 60*
Other miscellaneous but relevant factors.................. 63*
Conclusion ................................................................. 65*
Preliminary
1. This appeal is directed against the judgment and order dated
10.03.2014, as passed by the High Court of Calcutta in W.P.L.R.T. No.
325 of 2013 whereby, the High Court has allowed the writ petition filed
by the respondent Nos. 1 and 2 of this appeal and has disapproved the
orders dated 27.01.2010 and 01.08.2012 as passed by the Controller,
Calcutta Thika Tenancy1 as also the order dated 18.12.2013 as passed
by the West Bengal Land Reforms and Tenancy Tribunal at Calcutta2.
1.1. By the orders aforesaid, the Controller and the Tribunal had
concluded that the present appellants were thika tenants in respect of
the property involved in this litigation and the landlord's interest therein
stood vested in the State under the statutes governing thika tenancies.
However, in the impugned judgment and order dated 10.03.2014, the
High Court concluded to the opposite and held that the Controller and
the Tribunal were not justified in accepting the present appellants as
thika tenants in respect of the property in question.
2. Put in a nutshell, the issues involved in this appeal revolve around
thika tenancy enactments, as applicable to the property and the tenancy
1 Hereinafter also referred to as 'the Controller'.
2 Hereinafter also referred to as 'the Tribunal'.
*Ed. Note : Pagination is as per the original Judgment.
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
424
SUPREME COURT REPORTS
[2022] 11 S.C.R.
in question. The nature of tenancy created in favour of the appellants
and/or their predecessors and impact/implication of the structure put up
by them on the property in question form the core of the typical and
peculiar questions involved in this matter.
3. Before proceeding further, we may point out that the
consideration herein relates to thika tenancy and undoubtedly, the word
'thika' in Bengali means 'temporary or partial'3.
Statutory Provisions
4. Ordinarily, we would have commenced the discussion with
relevant factual aspects but, in the present case, even for proper
appreciation of factual matrix, an insight into the relevant provisions of
law with reference to their enactment as also chronology of their
enforcement appears necessary. Hence, before adverting to the facts
of the case, we deem it appropriate to extract the relevant statutory
provisions relating to thika tenancy, in their feasible chronology and also
with reference to their objects and reasons. We shall deal with the
construction of phraseology of these provisions and implications thereof
a little later. For the present purpose, only the relevant provisions are
being reproduced.
5. In order to make better provisions in respect of the law of
landlord and tenant as also thika tenancy in Calcutta, the Calcutta Thika
Tenancy Act, 1949 (West Bengal Act II of 1949)4 came to be enacted in
place of its predecessor Ordinance and with the following Statement of
Objects and Reasons: -
"STATEMENT OF OBJECTS AND REASONS
There has been a persistent demand for legislative measures for
the protection of the thika tenants of Calcutta and the Howrah
Municipal area against arbitrary eviction and enhancement of rent.
Accordingly, an Ordinance was promulgated staying all decree or
orders for eviction of the thika tenants on any ground other than
non-payment of rent.
The present Bill has been framed, with a view to regulate the
rights and liabilities of the thika tenants and their landlords."
3 Vide Sri Sri Satyanarayan & Ors. v. S.C. Chunder: (2001) 3 CHN 641- paragraph
19, reproducing from the decision in the case of Hindustan Petroleum Corporation
Ltd. v. Sashi Bhusan Mondal, APD No. 280 of 1981.
4 Hereinafter also referred to as 'the Act of 1949'.
A
B
C
D
E
F
G
H
425
5.1. The said enactment made various provisions as regards the
extent of thika tenancies, the grounds on which a thika tenant could
have been ejected; the procedure relating to the proceedings for
ejectment; the regulation of rent and its payment; appeals and other
special matters etc. All other provisions of this enactment are not required
to be dilated but, it is the definition of "thika tenant" occurring in clause
(5) of Section 2 of the Act of 1949, as substituted in the year 1953,
which is of relevance and the same may be reproduced as under: -
"2. Definitions. -
***
***
***
(5) "thika tenant" means any person who holds, 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 a residential, manufacturing or business purpose
and includes the successors in interest of such person, but does
not include a person -
(a) who holds such land under that another person in perpetuity;
or
(b) who holds such land under that another person under a
registered lease, in which the duration of the lease is expressly
stated to be for a period of not less than twelve years; or
(c) who holds such land under that another person and uses or
occupies such land as a khattal."
5.1.1. The nature of structure, if put up by the tenant over the
demised premises, has a bearing over the questions relating to thika
tenancy and has its direct implication in the present case, as shall be
noticed hereafter later.
5.2. By way of Amendment Act No. XXIX of 1969, clause (4a)
was inserted to Section 2 and Section 10A was also inserted to the Act
of 1949. These two provisions could also be reproduced as under: -
"2. Definitions.-
***
***
***
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
426
SUPREME COURT REPORTS
[2022] 11 S.C.R.
(4a) "pucca structure" means any structure constructed mainly
of brick, stone or concrete or any combination of these materials;"
***
***
***
"10A. Right of thika tenant to erect pucca structures.-(1)
Notwithstanding anything contained in any other law for the time
being in force or in any contract, but subject to the provisions of
sub-sections (2) and (3), a thika tenant using the land comprised
in his holding for a residential purpose may erect a pucca structure
on such land for such purpose with the previous permission of the
Controller.
(2) On an application made by a thika tenant in this behalf,
the Controller may grant him permission to erect a pucca structure,
if the Controller is satisfied that the thika tenant -
(a) is using the structure existing on the land comprised in
his holding for a residential purpose,
(b) intends to use the pucca structure to be erected on
such land for a similar purpose, and
(c) has obtained sanction of a building plan to erect the
pucca structure from the municipal authorities of the area
in which such land is situated.
(3) No thika tenant shall be entitled to eject a Bharatia5
from the structure of part thereof in the possession of the Bharatia
for the purpose of erecting a pucca structure:
Provided that the thika tenant may by providing temporary
alternative accommodation to a Bharatia obtain from him vacant
possession of the structure in his possession on condition that
immediately on the completion of the construction of the pucca
structure the thika tenant shall offer the Bharatia accommodation
in the pucca structure at a rent which shall in no case exceed by
more than twenty-five per centum the rent which the Bharatia
was previously paying."
5 The definition of the term "Bharatia", as occurring in clause (1) of Section 2 of the Act
of 1949, is not of direct application to the present case but, for a proper comprehension
of the related provisions, the same is also reproduced as under: -
"(1) "Bharatia" means any person by whom, or on whose account, rent is
payable for any structure or part of a structure erected by a thika tenant in his holding;"
A
B
C
D
E
F
G
H
427
5.3. It could at once be indicated that the expression "any structure"
as occurring in clause (5) of Section 2 of the Act of 1949 as also in the
successor enactments has been a matter of several debates in the High
Court and a substantial number of decisions were rendered in that regard,
essentially to the effect that the expression "any structure", in the context
of the enactment and its purpose, only referred to a temporary structure,
more specifically called "kutcha structure" as contradistinguished from
a permanent structure, which has been referred to as "pucca structure".
5.4. Clause (6) of Section 2 of the Act of 1949 also has a bearing
in the present case and could be noticed as under: -
"2. Definitions.-
***
***
***
(6) all words and expressions used but not defined in this Act and
used in the Transfer of Property Act, 1882 (IV of 1882) or the
Bengal Tenancy Act, 1885 (VIII of 1885), have the same meaning
as in those Acts."
6. The aforesaid Act of 1949 was repealed as a whole by the new
enactment initially carrying the title of 'the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981'. This enactment, promulgated
on 02.11.1981, came into force with effect from 18.01.1982. Later on,
several amendments were made to this enactment, including the change
of its title by way of the Calcutta Thika Tenancy (Acquisition and
Regulation) (Amendment) Act, 19936. Significantly, the said Amendment
Act of 1993 was given retrospective effect from 18.01.1982, i.e., the
date of commencement of the principal enactment. With change of name,
this enactment, being West Bengal Act No. XXXVII of 1981, came to
be known as 'the Calcutta Thika and Other Tenancies and Lands
(Acquisition and Regulation) Act, 1981'7.
6.1. The Statement of Objects and Reasons of this enactment of
the year 1981 could also be usefully noticed as under: -
"STATEMENT OF OBJECTS AND REASONS
The bharatias under the Calcutta Thika Tenancy Act, 1949, are
vulnerable to the wishes of the thika tenants with regard to
6 Hereinafter also referred to as 'the Amendment Act of 1993'.
7 Hereinafter this enactment is also referred to as 'the Act of 1981'; and whenever
contextually required, is also referred to by its original name, i.e., Calcutta Thika
Tenancy (Acquisition and Regulation) Act, 1981.
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
428
SUPREME COURT REPORTS
[2022] 11 S.C.R.
enhancement of huts or other structures occupied by them and
with regard to ejectment therefrom. The provisions of that Act do
not provide for protection of bharatias against ejectment or
enhancement of rent at the whims of the thika tenants.
Accordingly, there has been persistent public demand for regulating
the relation between thika tenants and bharatias.
2. The thika tenants pay some rent to the Landlords who are the
owners of the land. Thus, the landlords continue to remain as
intermediaries in Calcutta and in the Municipality of Howrah. There
has also been a long-standing public demand that each system of
intermediaries should be abolished and the State Should establish
direct thika tenants so as to regulate the premises held by them.
3. The Calcutta Thika Tenancy (Acquisition and Regulation) Bill
1980 is intended to meet both these public demands which were
considered just fair and equitable. In order to give some protection
to the thika tenants and bharatias against ejectment, the Calcutta
Thika Tenancy Stay of Proceedings (Temporary Provisions) Act,
1978 was enacted. It came into force on the 19th day of July,
1978. The life of that Act has been extended upto 18th day of
July, 1981. The object of that Act was to provide temporary
protection against ejectment pending enactment of a
comprehensive legislation to remove the public grievances as
already stated. Pending proceedings and appeals of ejectment of
bharatias and thika tenants will stand abated.
4. This bill is also intended to provide for the acquisition of the
rights of landlords in lands comprised in thika tenancies on payment
of an amount calculated at a rate not exceeding ten rupees per
square metre on the lines of the amount laid down in the Urban
Land (Ceiling and Regulation) Act, 1976 and vesting thereof in
the State free from all encumbrances. Thika tenants shall hold
their lands under the State on terms and conditions to be prescribed
in the rules, and the bharatias will enjoy the same protection
against ejectment and enhancement of monthly rent, as enjoyed
by the premise tenants under the West Bengal Premises, Tenancy
Act, 1956. Since bharatias constitute a very poor section of the
urban population, it has been provided that, instead of Civil Courts,
disputes between bharatias and thika tenants will be decided by
Controller.
A
B
C
D
E
F
G
H
429
5. It is also proposed that the provisions of the West Bengal Land
Holding Revenue Act, 1979 shall apply to thika tenants in the
matter of payment of revenue, but with a separate schedule as
shown in clause 25 of the Bill.
6. The Bill seeks to achieve the above objects."
6.2. The Statement of Objects and Reasons for the said
Amendment Act of 1993 had been as under: -
"STATEMENT OF OBJECTS AND REASONS.
Experience of the last few years has shown that there are some
practical difficulties in the operation of the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981.
2. It has therefore, been considered necessary and expedienta) to include slums and bustees within the purview of the Act;
b) to streamline the provisions regarding survey of the thika
tenanted land;
c) to make some other, changes as have been felt necessary
to remove doubts or otherwise to improve the working of the
Act.
3. The Bills has been framed with the above objects in view."
6.3. The Preamble of this Act of 1981 was also substituted by the
Amendment Act of 1993. For the present purpose, suffice would be to
take note of the existing Preamble part of this enactment as follows: -
"An Act to provide for the acquisition of interests of landlords
in respect of lands comprised in thika tenancies and certain other
tenancies and other lands in Calcutta and Howrah for development
and equitable utilization of such lands.
Whereas it is expedient to provide for the acquisition of interests
of landlords in respect of lands comprised in thika tenancies and
certain other tenancies and other lands in Calcutta and Howrah
for development and equitable utilization of such lands with a view
to subserving the common good;"
6.4. In the Act of 1981, as originally enacted, the terms "pucca
structure" and "thika tenant" were defined respectively in clauses (7)
and (8) of Section 3 in the following terms: -
"3. Definitions.-
***
***
***
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
430
SUPREME COURT REPORTS
[2022] 11 S.C.R.
(7) "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;
(8) "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 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."
6.5. In this enactment, the text of Section 5, as originally enacted,
and as later on substituted by the Amendment Act of 1993, had been
materially different and carry their own relevance for the questions at
hand. We may, therefore, usefully reproduce the text of Section 5 before
and after the Amendment of 1993 in juxtaposition, as under: -
Section 5 as originally enacted.
Section
5
as
substituted
by
the
Amendment Act of 1993.
"5. Lands comprised in thika tenancies
and other lands, etc., and right, title and
interest of landlords in such lands to
vest in the State.-With effect from the
date of commencement of this Act, lands
comprised in thika tenancies and other
lands held under any person in perpetuity
or under registered lease for a period of not
less than twelve years or held in monthly
and periodical tenancies for being used or
occupied as khatals along with easements,
customary rights, common facilities and
such other things in such thika tenancies
and khatals attached to or used in
connection with such thika tenancies, and
khatals and the right, title and interest of
landlords in such lands shall vest in the
State free from all encumbrances:
Provided
that
the
easements, rights,
common facilities or benefits enjoyed by a
thika tenant or an occupier of any land
under any person in perpetuity or any land
under any person under registered lease for
a period of not less than twelve years or a
khatal in khas lands of the landlords shall
not be affected in any way by such
vesting."
 "5.
Lands
comprised
in
thika
tenancies, khas lands, etc. to vest in the
State.-With effect from the date of
commencement
of
this
Act,
the
following lands along with the interest of
landlords therein shall vest in the State,
free from all encumbrances, namely: -
(a)
lands
comprised
in
and
appurtenant to tenancies of thika
tenants including open areas, roads,
passages, tanks, pools and drains;
(b)
lands
comprised
in
and
appurtenant to bustee on khas lands of
landlords and lands in slum areas
including open areas, roads, passages,
tanks, pools and drains;
(c) other lands not covered by clauses
(a) and (b) held under a written lease
or otherwise, including open areas,
roads, passages, tanks, pools and
drains;
(d) lands held in monthly or other
periodical tenancies, whether under a
written lease or otherwise, for being
used or occupied as khatal:
Provided that such vesting shall not
affect in any way the easements,
customary rights or other facilities
enjoyed by thika tenants, Bharatias
and occupiers of land coming within
the purview of clauses (c) and (d)."
A
B
C
D
E
F
G
H
431
6.6. The particular expression "tenant of other lands" as occurring
in Section 5 after its substitution by the Amendment Act of 1993 was
also defined in clause (7B) of Section 3 by way of the same amendment
and it reads as under8:-
"3. Definitions.-
***
***
***
(7B) "tenant of other lands" means any person who occupies
other lands under another person, whether under a written lease
or otherwise, and is or but for a special contract would be liable to
pay rent at a monthly or periodical rate for occupation of such
other lands, and includes the successor-in-interest of such person;"
7. The aforesaid Act of 1981 was repealed by the West Bengal
Thika Tenancy (Acquisition and Regulation) Act, 20019. This new
enactment came into force from 01.03.2003. Its Statement of Objects
and Reasons reads as under: -
"STATEMENT OF OBJECTS AND REASONS.
The Calcutta Thika and other Tenancies and Lands (Acquisition
and Regulation) Act. 1981 (West Ben. Act XXXVII of 1981)
(hereinafter referred to as the said Act) was amended in 1993 to
make up for certain deficiencies in the said Act. In course of
administering the said Act, it has come to the notice of the State
Government that certain provisions of the said Act are still
defective, leaving scope for addition to existing litigations. It is,
therefore, necessary to amend the said provisions.
2. The bill has been framed with the above object in view."
7.1. In this enactment of the year 2001, the expression "thika
tenant" came to be defined in clause (14) of Section 2. The said clause
(14) was also amended by the West Bengal Thika Tenancy (Acquisition
and Regulation) (Amendment) Act, 201010 with effect from 01.11.2010.
We may place the text of this clause (14), as originally enacted and as
amended by the Amendment Act of 2010 in juxtaposition as under:
8 There had been several other insertions and substitutions by way of the said Amendment
Act of 1993 which need not be noticed for being not relevant in respect to the questions
at hand.
9 Hereinafter also referred to as 'the Act of 2001'.
10 Hereinafter also referred to as 'the Amendment Act of 2010'.
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
432
SUPREME COURT REPORTS
[2022] 11 S.C.R.
7.2.
The expression "pucca structure" came to be defined in
clause (13) of Section 2 of the Act of 2001. It is noticed that this definition
of "pucca structure" in the Act of 2001 was further amended by Act
No. XI of 2019 but we need not refer to the said amendment for being
not relevant for the present purpose. The said clause, as originally enacted,
reads as under: -
"2. Definitions.-
***
***
***
(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;"
7.3. Section 4 of this enactment provides for vesting of the land
comprised in thika tenancies and other particular class of lands in the
State with effect from 18.01.1982. Noticeably, this date '18.01.1982' is
the same date from which the Act of 1981 came into force and even the
Amendment Act of 1993 was enforced. This Section 4, as originally
enacted, reads as under: -
"S.4. 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
encumbrancesClause (14) of Section 2 as originally
enacted.
Clause (14) of Section 2 as substituted
by the Amendment Act of 2010.
"(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 or acquired by
purchase or gift any structure on such land
for residential, manufacturing or business
purpose, and includes the successors-ininterest 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."
"(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 or 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-ininterest 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."
A
B
C
D
E
F
G
H
433
(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."
7.3.1. Yet further, clause (a) of the above-quoted Section 4 was
amended by the Amendment Act of 2010 and after its amendment,
coverage of the land for the purpose of vesting in the State was
comprehensively provided with the broader expression "thika land". This
clause (a) of Section 4 of the Act of 2001 before and after the amendment
could also be placed in juxtaposition as under: -
Clause (a) of Section 4, as originally
enacted.
Clause (a) of Section 4, as substituted
by the Amendment Act of 2010.
"(a) lands comprised in, and appurtenant
to, tenancies of thika tenants including
open areas, roads; and"
"(a) thika land;"
7.4.