KALIPADA GHOSH Vs. LAKSHMIMONI NAYAK
LAWS(CAL)-1961-3-35
HIGH COURT OF CALCUTTA
Decided on March 29,1961

KALIPADA GHOSH Appellant
VERSUS
Lakshmimoni Nayak Respondents

JUDGEMENT

- (1.) This is a petition under Article 227 of the Constitution by a Bharatiya within the meaning of the Calcutta Thika Tenancy Act for recognition of himself as a Bharatiya and for maintaining possession as against the landlords who have got a decree for eviction against the thika tenant. The Bharatiya is, in substance, a sub-tenant, and has got certain rights under the Calcutta Thika Tenancy Act. It appears that the opposite party landlords applied under the Calcutta Thika Tenancy Act for ejectment of the thika tenant before the Controller. The reasons for ejectment were two-fold, (i) bona fide requirement for development and (ii) the default of the tenant. On March 9, 1957 the Controller granted them an order for ejectment. He directed the tenant to deposit the arrears rent. He also directed that a Commission should be appointed for investigation regarding the compensation payable to the tenant by the landlords. No commission was subsequently issued as the matter has been stayed thereafter because of various proceedings. First, came the proceedings of the tenant by way of an appeal-then proceedings by the Bharatiya which has given rise to the present petition.
(2.) In the present petition under Section 10(2) Thika Tenancy Act, before the Controller, the Bharatiya stated that the order for ejectment that was granted was, in substance, for ejectment on the ground of default in payment of rent by the thika tenant. Even though it may appear from the judgment of the Controller that the Controller was inclined and actually found in favour of the owner on the grounds of default and requirement for development, he did not and has not actually passed any order for ejectment on the latter ground. The result is that the only reason for the order for ejectment is default and therefore he is entitled to remain in the land as a tenant under the West Bengal Premises Tenancy Act and the landlords cannot eject him. The reply of the landlords was that the grounds for ejectment were both default as well as requirement for development and as it includes a ground for development, Section 10(2) of the Calcutta Thika Tenancy Act does not apply and the Bharatiya is not entitled to protection. The Controller considered the matter and he found that the order for ejectment was granted on both the reasons and therefore the Bharatiya is not entitled to any protection under Section 10(2) of the Act.
(3.) Before me it has been stated by the learned advocate for the Petitioner that under Section 5(2) of the Calcutta Thika Tenancy Act, no order for ejectment on the ground of bona fide requirement for development of the land can be granted unless the compensation is determined and unless the compensation is paid or deposited by the landlords. In this case, before the order for ejectment was granted no compensation was either determined or deposited. In that view of the matter, the finding that the landlords required it remained at the state of a finding and has not become effective as an order. He further says that after an order for ejectment is actually passed, it is beyond the scope of the Thika Controller to direct a commission for determination of compensation payable to the thika tenant. He therefore says that the entire order must be deemed to be an effective order of ejectment on the grounds of default alone and there is no order ejectment valid in law on the ground of bona fide requirement. He, therefore says that the court must proceed on the basis as if the order is merely an order for ejectment on the ground of default and not on any other ground. In that view of the matter, it is submitted that the petition of the Bharatiya should be accepted and the Rule should be made absolute.;


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