Chatterjea, J. - (1.) This is a petition under Article 227 of the Constitution against an order of the appellate authority under the Calcutta Thika Tenancy Act.
(2.) The Petitioner instituted the proceeding under Sec. 5 of the Calcutta Thika Tenancy Act against the opposite party for eviction on the ground of development by discontinuing letting out to thika tenants. The Petitioner's case was that he wanted to develop the land by constructing a road and improving the land so that it may be better fit for selling for the purpose of residence and for other purposes. A plan of the development scheme has also been filed. The trial authority found that the major portion of the land sought to be developed had already been developed at the time of the hearing of the petition and, therefore, it dismissed the petition. An appeal was filed to the appeal Court below and the appeal Court found that the development plan was sanctioned in 1949 -50 and that plan had a span of life for five years, and as five years had passed, there was no development plan which was in effect and, therefore, the Plaintiff had no evidence to show that he required the property for development. It was also clear, according to the appellate authority, that all plots of land were sold excepting the plot now in question, so there was no question for development. But, it appears from the plan itself that the portion of the property in dispute is included within the foot -path which is to be developed and also a small portion of the road itself has yet to be constructed. The tenant is willing to give up those portions.
(3.) The fact that development plan was sanctioned as early as in 1948 -49 and the further fact that almost all except the disputed plot were sold do not negative a case of development; they rather prove the case of development. It is clear that the Petitioner -landlord has sold a large number of plots to a large number of persons giving them an assurance that they will have a foot -path and a pathway. If he does not make the foot -path and the path -way as assured, he would certainly be in jeopardy. The fact that the plan is not now in force does not prove that there is no further need for development. The fact that almost all plots of land have been sold does not also prove that the plot in question is not required for development. On the other hand those very facts prove that the Plaintiff requires very urgently the land of the Defendant which is required for the purpose of completing a foot -path and also for constructing a 20' road. Development has yet to be made. Therefore, the requirement of this plot for development cannot be disputed. But the entire plot is not required. I entirely agree with this contention of the learned lawyer for the tenant, but there is no provision in the Calcutta Thika Tenancy Act by which partial ejectment can be allowed. The landlord and the tenant contracted for the tenancy and no one of them is entitled to retain any portion and surrender another portion. The contract was for the whole of the land in possession of the Defendant and unless partial ejectment be provided in the statute there would be no question of partial ejectment. The West Bengal Premises Tenancy Act considered in similar circumstances the question of partial ejectment and I have no doubt that justice of the case would have been met if there was a similar provision in the Calcutta Thika Tenancy Act. But there is none. Therefore, I have no other alternative than to hold that the Plaintiff is entitled to an ejectment order.;