PANNALAL SHAW Vs. MANI BHUSAN PAUL
LAWS(CAL)-1976-11-20
HIGH COURT OF CALCUTTA
Decided on November 26,1976

PANNALAL SHAW Appellant
VERSUS
MANI BHUSAN PAUL Respondents




JUDGEMENT

- (1.)THIS Rule was issued on an application under Article 227 of the Constitution of India and is directed against judgment dated 31st May, 1975 passed by Sri A. N. Mitra, Additional District Judge, 4th Court at Alipore in Miscellaneous Appeal No. 124 of 1975 affirming that of Sri D. S. Basu, Munsif, 4th Court at Alipore passed on January 11, 1975 in Miscellaneous t Case No. 188 of 1956. The facts of the case may briefly be stated as follows: that on an application filed by the landlord opposite party an order was passed by the learned Munsif acting as Controller under the Calcutta Thika Tenancy Act by which the application was allowed and the petitioners were directed to vacate the disputed holding within two months. It was further ordered that the eviction would take effect only on payment of compensation to the petitioners for the structures standing on the disputed holding. It is the admitted position that the matter of de termination of the amount of compensation is still pending. On 16th of March 1971 the petitioners filed an application under Section 7a of the Calcutta Thika Tenancy Act as amended read with Sections 5 and 14 of the Limitation Act praying for setting aside the order of eviction after condoning the delay in filing the application. Thereafter on 3rd of August 1971 the petitioners filled another application under Section 13 of the Calcutta thika Tenancy (Second Amendment)Act, 1969 for vacating the order passed under Section 5 and for quashing the proceedings. The opposite party filed written objection. After hearing both the parties, the learned Controller rejected the petitioners' application. Being aggrieved, the petitioner preferred an appeal before the District Judge and the same was dismissed. Hence the petitioners present application before us.
(2.)WITH regard to the application dated 16th of March 1971 the learned Controller has found that no separate application has been filed under Section 5 of the Limitation Act and as the petition contained two prayers the same was rejected. As regards the petition under Section 13 of the Calcutta thika Tenancy Act the learned Controller rejected the same on the ground that the prayer portion of this petition does not tally with the provisions of Section 13 of the Act which deals with time and place of payment of rent. The learned Additional District Judge noted that it was conceded by the learned Advocate for the appellants that an application under Section 7a was rightly rejected by the learned Controller. But the learned Advocate for the appellants submitted that the application under Section 13 was wrongly dismissed. The learned Appellate Court found that no final order was passed in this case. The learned appellate court below rejected the application under Section 13 on the same ground for which it was rejected by the learned Controller.
(3.)MR. Radhakanta Bhattacharyya, learned Advocate appearing on behalf of the petitioners, submits before us that it appears from the judgment passed by the learned appellate court below that on behalf of the appellants it was conceded that the application under Section 7a was mis-conceived. But Mr. Bhattacharyya submits that; most probably such a submission was made relying on the legal position as enunciated in the case reported in A. I. R. 1971 Cal. 330 (Lalua Shaw v. Anil Bhusan Ganguly) and in the case reported in A. I. R. 1971 Cal. 539 (Jatindra Nath Paramanick v. Debiprasad Mitra) In both these cases S. K. Chakravarti, J. was of opinion that as the matter of determination of compensation was still pending an application under Section 7a would not lie and the same was rightly rejected by the courts below on the ground that the same was premature. Mr. Bhattacharya submits that the learned Controller as well as the learned Additional District Judge were wrong in rejecting the application under Sec. 7a. Section 7a reads as follows:
"where an order for ejectment of a thika tenant from his holding has been made by the Controller under Section 5 before the date of commencement of the Calcutta Thika Tenancy (Second Amendment) Act, 1969, but the possession of the land comprised in the holding has not been recovered by the landlord from the thika tenant, the thika tenant may, within sixty days from such date apply to the Controller for setting aside the order".
Mr. Bhattacharya submits that according to the provisions of sub-section (1) of Sec, 7a where an order for ejectment has been passed before the commencement of the Amendment Act, but the possession of the land has not been recovered by the landlord from the tenant, the tenant may, within 60 days from the date of the commencement of the Amendment Act, apply to the Controller for setting aside the order. It is true, that in this case the tenant cannot be evicted until the compensation is determined and the same is paid to the tenant; nevertheless an order for eviction was passed before the commencement of the Act and possession has not yet been recovered. That being so, it must be said that the case is still pending and as such the petitioner may within 60 days from the commencement of the Amendment Act file an application for setting aside the order of eviction. If the tenant is to wait till the determination of payment of compensation then he will be without any remedy under Section 7a because 60 days from the Commencement of the Act would long expire. In this connection Mr. Bhattacharya refers to a decision reported in A. I. R. 1972 Calcutta 256 (Nirmala Auddy v. Monorama Chakraborty) In this case it has been held by Amiya Kumar Mookerji, J. that "the order of the Controller rejecting the application by a thika tenant made under Sec. 7a of the Amendment Act for setting aside the order of ejectment on the ground that the order has become final before the date of the commencement of the Amendment Act cannot be sustained". It was further held "nor can it be said that the application is premature because the question of compensation remains undecided" His Lordship held "in the instant case, both the conditions as laid down in Sec. 7a of the Amendment act have been fulfilled and as the petitioner's application is still pending, the provisions of the Amendment Act are made applicable under Sec. 13 of the said Act. The Thika Controller was also in error in dismissing the petitioner's application under Section 7a of the Amendment Act upon the view that it was premature. So, his order also cannot be sustained". Relying on this decision Mr. Bhattacharya contends that in this case also an order for eviction was passed before the commencement of the Amendment Act and that possession has not yet been delivered and as such the tenants' application ought not to have been rejected as premature. It may be noted in this connection that the order for eviction of the petitioners was passed on the ground that the opposite party required the premises for his own use and occupation. Section 3 of the Act has been amended to a great extent and the amended section provides that a thika tenant shall be liable to ejectment except during any period limited by a registered lease under which a thika tenant may hold the land comprised in the holding and subject to the provisions of sub-sections (2), (3) and (4) on the ground that the land is required by the landlord for his own occupation. Sub-sections (2), (3) and (4) are as follows : -Sub-sec. (2) No landlord shall be deemed to require the land comprised in the thika tenant's holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in such house is, in the opinion of the Controller, reasonably sufficient for him and his family. Sub-sec. (3) Where the landlord requires the land comprised in the thika tenant's holding for his own occupation and the Controller is of opinion that such requirement may be substantially satisfied by ejecting the thika tenant from a part only of his holding and allowing him to continue in occupation of the rest, then if the thika tenant agrees to such occupation, the Controller shall make an order accordingly and fix the proportionate rent for the portion remaining in the occupation of the thika tenant. Sub-sec. (4) Where the thika tenant has erected or acquired a puce structure for a residential purpose on the land comprised in his holding, no order for ejectment shall be made against him except in respect of such part, if any, of such land as does not appertain to the puce structure.
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