Nemai Chandra Kumar (D) Thr. Lrs. & Ors. vs Mani Square Ltd. & Ors.

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provisions, when examined with reference to their texture and context, the provisions of vesting as evolved by way of originally enacted Section 5 of the Act of 1981 and as provided for in Section 4 of the Act of 2001 read with the Amendment Act of 2010 put it beyond the pale of doubt that until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thika tenant and thus, there could not have been any vesting in the State under Section 5 of the Act of 1981 (whether originally enacted or amended) or under Section

4 of the Act of 2001, as originally enacted.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 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 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 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 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.