Supreme Court of India
NEMAI CHANDRA KUMAR & ORS.versusMANI SQUARE LTD. & ORS.
- Citation
- 2015 INSC 153
- Decided
- 24 February 2015
- Disposal
- Appeal(s) allowed
- Bench
- S MUKHOPADHAYA
Holding
The appellants satisfy all conditions of a Thika tenant; "any structure" includes both kutcha and pucca structures, and the land vested in the State, so the Tribunal's order stands.
Summary
The appellants, lessees of a 20‑year lease, erected a pucca factory building on the premises and later claimed status as Thika tenants under the Calcutta Thika Tenancy Act, 1949 and its subsequent amendments. The respondents, who had purchased the land, challenged the Controller's declaration that the appellants were Thika tenants and the Tribunal's order confirming that status. The Supreme Court examined the statutory definition of "Thika tenant" and the phrase "any structure" in Section 2(5) of the 1949 Act, interpreting it to include both temporary (kutcha) and permanent (pucca) structures, consistent with the 1969 amendments. It also held that, under the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, the land vested in the State from 18 January 1982, rendering the landlord's interest extinguished. Consequently, the Tribunal's order was upheld and the High Court's reversal set aside. The appeal was allowed.
Issues considered
- Whether the appellants qualify as a "Thika tenant" under Section 2(5) of the Calcutta Thika Tenancy Act, 1949 and Section 3(8) of the 1981 Act.
- Whether the expression "any structure" in the definition of Thika tenant includes pucca (permanent) structures.
- Whether the land in question vested in the State pursuant to the 1981 Act, thereby affecting the rights of the landlord and the appellants.
Legislation cited
- Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981s. 3(8), s. 5
- Calcutta Thika Tenancy Act, 1949s. 10A, s. 2(4a), s. 2(5), s. 2(6)
- Transfer of Property Act, 1882
- West Bengal Land Reforms and Tenancy Tribunal Act, 1997s. 6
- West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001s. 2(13), s. 2(14)
Subjects
Thika tenancyStatutory interpretationAny structurePucca structureLand acquisitionVesting of land in StateLeasehold rights
Judgment
[2015] 2 S.C.R. 650
NEMAI CHANDRA KUMAR & ORS. A
v.
MANI SQUARE LTD. & ORS.
(Civil Appeal No. 2402 of 2015) B
FEBRUARY 24, 2015
[SUDHANSU JYOTI MUKHOPADHAYA AND
PRAFULLA CHANDRA PANT, JJ.] C
Calcutta Thika Tenaricy Act, 1949-'- s. 2(5) - Calcutta Thika
and Other Tenancies and Lands (Acquisition and Regulation)
Act, 1981 - s.3(8) - Thika Tenant- Land owner leased the
premises on rent for 20 years to the appellant - Lessees- D
appellants given right to raise construction on the said
property but on expiry of the lease were to deliver the vacant
and peaceful possession of the property - Lessees raised
pucca structure on the said premises for running its factory
activities - Meanwhile, 1981 Act and 2001 Act coming into E
force - Thereafter, lessees claiming themselves as Thika
Tenants of the said premises - Controller declared lessees
as Thika Tenants-Said order upheld by the tribunal, however,
the High Court set aside the same - On appeal, held:
Appellants fulfilled all the conditions of Thika Tenant and F
came within the meaning of Thika Tenant as defined in s.2(5)
of the 1949 Act- In view of the 1981 Act since 18. 1. 1982, the
said land stood vested with the State along with interests of
the landlord therein free from all encumbrances - Thus, the G
order passed by the High Court set aside and that by the
tribunal upheld - West Bengal Thika Tenancy (Acquisition
and Regulation) Act, 2001.
Allowing the appeal, the Court
H
650
651 SUPREME COURT REPORTS [2015] 2 S.C.R.
A HELD: 1.1 The language of section 2(5) of the
Calcutta Thika Tenancy Act, 1949 defining 'Thika Tenant'
is fairly and reasonably clear. The said Section also
reflects the intention of the legislature. The meaning of
the word 'any structure' used in section 2(5) cannot be
B derived in isolation on mere presumption. The 1949 Act
was enacted to make better provisions relating to the
law of the landlord and the tenant in respect of Thika
Tenancy. To claim rights of a 'Thika Tenant' a person
C should be a 'Thika Tenant' under section 2(5) of the 1949
Act for which he should satisfy the given conditions.
[Para 22] [674-B-C]
1.2 The word 'any structure' relates to structure erected
or acquired by purchase or gift on such land for a
0
residential, manufacturing or business purpose. 'Any
structure' mentioned therein has a direct relationship
with the purpose for which the structure is erected or
acquired i.e. for a residential, manufacturing or business
E purpose. The words 'any structure' has no bearing with
the nature of structure i.e. whether it is 'Kutcha'
(temporary) or 'pucca' (permanent). If such 'any structure'
was erected or acquired not for residential,
manufacturing or business purpose, the person who is
F holding land cannot claim to be a 'Thika Tenant' within
the meaning of. section 2(5) even if other conditions
mentioned therein are fulfilled. [Para 23] [674-H; 675-A-
B]
G 1.3 The Calcutta Thika Tenancy Act, 1949 was amended
in 1953 and 1969. By the West Bengal Act, XXIX of 1969
definition of 'pucca structure' was inserted under Section
2(4) as Section 2(4a). By the same very amendment of
1969, Section 10A was inserted empowering the 'Thika
H Tenant' to erect pucca structure for using residential
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 652
purpose with the previous permission of the Controller. A
The insertion of Section 2(4a) and Section 1OA by West
Bengal Act XXIX of 1969 also makes the intention of
legislature clear that for the purpose of thika tenancy,
'any structure' includes both 'kutcha' (temporary) or
'pucca' (permanent) structure. [Para 26] [675-F-H; 676- B
A; 677-C]
1.4 The appellants fulfill all the conditions of 'Thika
Tenant' and come within the meaning of 'Thika Tenant'
as defined in section 2(5). Further, in view of the Calcutta C
Thika and other Tenancies and Lands (Acquisition and
Regulation) Act, 1981since18th January, 1982, the land
in question vests in the State along with interests of the
landlord therein free from all encumbrances. As the High D
Court failed to appreciate the relevant provisions and
erred in holding that the appellant is not 'Thika Tenant'
wit~in the meaning of Section 2(5), the impugned
judgment is set aside and the order passed by the
. tribunal is upheld. [Para 28] [677~E-G] E
Kshiroda Moyee v. Ashutosh Roy 63 CWN 565;
Monmatha Nath Mukherjee v. Banarasi and Ors. 63
CWN 824 - disapproved.
Annapurna Seal v. Tincowrie Dutt 6f3 CWN 338; F
Purushottam Oas Murarka v. Harendra Krishna
Mukherjee 79 CWN 852; Lakshimimoni Oas and Ors.
v. West Bengal and . .
Ors. AIR 1987 Calcutta 326; Dental
Council of India v. Hari Prakash (2001) 8 ·sec 61: 2001
G
(2) Suppl. SCR 310; State of Maharashtra v. Nanded-
Parbhani Z.L.B.M. V. Operator Sangh (2000) 2 SCC 69:
2000 (1) SCR 357; Grasim Industries Ltd. v. Collector of
Customs (2002) 4 sec 297: 2002 (21 SCR 945 -
referred to. H
653 SUPREME COURT REPORTS [2015] 2 S.C.R.
A Case Law Reference
63 CWN 565 disapproved Para 13
63 CWN 824 referred to Para 14
B 66 CWN 338 referred to Para 15
79CWN 852 referred to Para 16
AIR 1987 Calcutta 326 referred to Para 17
c 2001 (2) Suppl. SCR 310 referred to Para 19
2000 (1) SCR 357 referred to Para 19
2002 (2) SCR 945 referred to Para 21
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2402
of2015
From the Judgment and Order dated 10.03.2014 of the High
E Court at Calcutta in W. P. L. R. T. No. 325 of 2013
Jaideep Gupta, Utpal Majumdar, Sanjoy Bose, Ranjeeta
Rohtagi, Manan Verma, Kunal Chaterjee for the Appellants.
H. N. Salve, P. P. Tripathy, Kalyan Bandopadhyay, Debanjan
F Mandal, Sumi! Goyal, Shruti Swaika, Mahima Gupta,
Kshatrshal Raj, Parekh &Co., Soumitra G. Chaudhuri, Soumya
Chakraborty, Shagun Matta, Saakaar Sardana, Anip Sachthey,
Rana Mukherjee, Kasturika Kaumudi, Shekhar Kumar for the
G Respondents.
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J Leave
granted. The appellants have preferred this appeal against
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 654
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
judgment dated 10th March, 2014 passed by the Division A
Bench of High Court of Calcutta in W.P.L.R.T No.325 of2013.
By the impugned judgment, the High Court allowed the writ
petition filed by the respondent nos. 1 and 2 and set ..iside the
order dated 18th November, 2013 passed by the West Bengal
Land Reforms and Tenancy Tribunal (hereinafter referred to B
as the, 'Tribunal') in O.A. No.2833/12 (LRTT).
2. The factual matrix of the case is as follows:-
2.1 One Laxmi Narayan Ghosh was the owner of the land c
involved herein measuring 2 Bigha, 10 Cottahs and 3
Chhitacks, more or less, being Holding No.195, Picnic Garden,
Tiljala. The said Laxmi Narayan Ghosh died intestate on or
about 23rd July, 1950 leaving behind his widow Smt. Nilu Bala
Ghosh and his son Jitendra Nath Ghosh. D
2.2 On 7th December, 1970, Smt. Nilu Bala Ghosh died
intestate and Jitendra Nath Ghosh, thereafter, became the
absolute owner of the said property. The said Jitendra Nath
Ghosh by a registered Deed of Lease dated 15th December E
1973, demised the said premises to Badri Narayan Kumar
(since deceased) and Nemai Chandra Kumar (appellant no.1
herein) - the proprietors of Kumar industries, for a period of
20 years commencing from 1st December, 1973 for a
consideration and/or monthly rent as mentioned in the said F
lease deed. By the said lease deed, the lessees were given
the right to raise construction on said property and to use and
enjoy such property during the tenure of the lease with a
condition that on expiry of the lease on 30th November, 1993 G
the lessees will have to deliver vacant and peaceful possession
of the said property to the lessor in the same condition as it
was at the time of execution of lease, by removing the structure
which would be constructed thereon. It was submitted that the
lessees raised pucca structure having pucca foundation, pucca H
655 SUPREME COURT REPORTS (2015] 2 S.C.R.
A floor and pucca wall with partly tin and partly tile shed on the
roof and used the said premises including the structure
constructed therein for running its factory activities therein.
2.3 In the meantime, the Calcutta Thika and Other
B Tenancies and Lands (Acquisition and Regulation) Act, 1981
(hereinafter referred to as the, '1981 Act') came into force with
effect from 18th January, 1982.
2.4 Immediately, after the said Act came into operation, the
c said Jitendra Nath Ghosh (Lessor) filed an application under
Article 226 of the Constitution of India before the High Court of
Calcutta challenging the vires of the said Act. The said writ
petition which was numbered as C.R. No.10449 (W) of 1983
was entertained by the High Court by issuance of a writ of
D mandamus in terms of prayers of the said writ petition. An
interim order was passed therein staying the operation of the
provisions of the 1981 Act as well as Rules framed thereunder
in so far as the premises were concerned.
E 2.5 In the meantime, West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001 (hereinafter referred
to as the, '2001 Act') came into force.
2.6 The lessees paid rent to the then landlord up to 1993
F and they never claimed themselves as thika tenant under their
landlord till 9th April, 2003. It was only afterthe 2001 Act came
into operation, the said lessees submitted a return before the
Controller, Kolkata Thika Tenancy claiming themselves as thika
tenants in respect of the said premises and deposited rent
G with interest for the period from 18th January, 1982 till 2007.
The Controller, Kolkata Thika Tenancy vide order dated 27th
January, 2010 declared both Sadri Narayan Kumar (since
deceased) and Nemai Chandra Kumar (appellant no.1) as
H Thika Tenants in terms of Section 2(14) of the 2001 Act. By
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 656
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
another order dated 29th April, 2010, the said authority A
recorded the death of Badri Narayan Kumar and substituted
his legal heirs as thika tenants.
2.7 Respondent nos.1 and 2-writ petitioners are the
transferees of the said premises from the erstwhile owner B
thereof, namely, the landlord of the appellants herein. After
purchasing the said property vide conveyance deed dated 10th
September, 2006 they applied for mutation of their names as
owners of the said property and while searching relevant
records, they came to know that the said premises were C
recorded as thika tenanted property and some of the
appellants were recorded as thika tenants therein by following
the declaration of their status as thika tenant in respect of the
said premises given by the Controller, Calcutta Thika Tenancy D
vide his order dated 27th January, 2010.
2.8 On knowing about the aforesaid order of the Controller
declaring the said property as thika tenanted property and
some of the appellants as thika tenants, respondent nos.1 and E
2, being the purchasers of the said premises submitted an
objection before Controller, Calcutta Thika Tenancy challenging
the declaration which was given by the Controller in hi.s earlier
orders dated 27th January, 2010 and 29th April, 2010 and the
said objection was rejected by the Controller vide order dated F
1st August, 2012 in Misc. Case No.89 of 2010.
2.9 On being aggrieved, respondent nos.1 and 2 filed an
application u/s 6 of the West Bengal Land Reforms and
Tenancy Tribunal Act, 1997 before the West Bengal Land G
Reforms and Tenancy Tribunal at Calcutta (hereinafter referred
to as the, 'Tribunal') being O.A. No. 2833 of 2012 challenging
the legality and validity of order dated 1stAugust, 2012 passed
by the Controller in Misc. Case No.89 of 2010. The Tribunal
vide judgment dated 18th November, 2013 dismissed the H
657 SUPREME COURT REPORTS [2015] 2 S.C.R.
A application and held that the Controller rightly declared the
property as Thika Propertyw.e.f. 18th January, 1982 and the
appellants as Thika Tenants under the Governmentw.e.f. 18th
January, 1982.
B 2.10 On being aggrieved, respondent nos.1and2 preferred
Writ Petition before the High Court of Calcutta. The High Court
by impugned judgment dated 10th March, 2014 set aside the
judgment dated 18th November, 2013 and allowed the writ
petition.
c
3. The following submissions were made by learned
counsel forthe appellants:
3.1 The phrase 'any structure' used in the definition ofThika
o Tenancy under Section 2(5) of the Calcutta Thika Tenancy Act,
1049 (hereinafter referred to as the, '1949 Act') on its plain
meaning would include both Kutcha and Pucca structures. The
primary rule of construction is that the words or phrases in a
Statute are to be interpreted in accordance with the plain
E language. To overlook plain language would amount to re-
writing of the words of Statute and, therefore, would ignore the
legislative intent.
3.2 The interpretation of 'any structure' given by Calcutta
F High Court in series of judgments is incorrect on first principles
and that there was no concluded view on this point under the
1949Act.
3.3 As the lease in favour of the appellants was for 20 years
G pursuant to agreement dated 15th December, 1973 and the
appellants are 'Thika Tenants" within the meaning of Section
2(Ei) of the 1949 Act, in view of 1981 Act the land comprised in
Thika Tenancy vested with the State w.e.f. 18th January, 1982.
H 4. The afore~aid submissions made on behalf of the
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 658
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
appellants have been rebutted by learned counsel for the A
respondent nos.1 and 2 on the following grounds:
4.1 The lessee raised pucca structure and used the said
premises including the structure constructed thereon for running
its factory activities. Therefore, the appellants do not come B
within the meaning afThika Tenants.
4.2 The lease wa.s expired by efflux of time on 13th
September, 1993 and lessee paid the rent to the then landlord
up to 1993 and thereby never claimed themselves as Thika c
Tenants till 9th April, 2003.
4.3 The concept of Thika Tenancy in the three Acts (1949
Act, 1981 Act and 2001 Act) has been used as an expression
inexonerably intertwined with the concept of 'any structure'. D
4.4 The term 'any structure' has been judicially read down
to mean only 'Kutcha structure' (Temporary Structure) by series
of judgments of the Calcutta High Court.
5. On the other hand the stand of the State is as follows:- E
5.1 Section 2(5) of the 1949 Act was substituted by West
Bengal Act VI of 1953 which clearly indicates that from very
inception the thika tenant speaks about 'any structure'. There
. is no scope to read kutcha structure instead of pucca structure. F
Even words are clear and there is no ambiguity and scope to
resort to any external aid for the purpose of interpretation.
5.2 Section 1OA was brought into the Statute by West
Bengal Act XXIV of 1969 permitting the 'thika tenant' to erect G
pucca structure on the. basis of permission given by the
Controller.
5.3 Section 3(8) of the 1981 Act defines Thika tenant and
H
659 SUPREME COURT REPORTS [2015] 2 S.C.R.
A it includes the appellants.
6. We have heard the learned counsel for the parties and
perused the rl'lcord.
7. The questions involved in this case are:
8
(i) Whether the appellants are 'Thika Tenants' within the
meaning o( Section 2(5) of 1949 Act or Section 3(8) of
1981 Act and
C (ii) Whether the land in question stood vested with the State
pursuantto provisions of 1949 or 1981 Act?
RELEVANT STATUTORY PROVISIONS RELATING TO
THIKA TENANCY.
D
THE CALCUTTA THIKA TENANCY ACT, 1949 !WEST
BENGAL ACT XXIX OF 1969).
8. The Act was enacted to make better provisions relating
E to the law of landlord and tenant in respect of thika tenancy in
Calcutta.
"Thika tenant" as defined in Section 2(5) reads as
follows: ·
F "2(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
G
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 -
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 660
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
(a) who holds such land under that another person in A
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 B
years; or
(c) who holds such land under that another person and
uses or occupies such land as a khatal".
Since 1959, the term 'any structure' mentioned in
c
Section 2(5) was considered by the Calcutta High Court to be
a "Kutcha structure". By West Bengal Act XXIX of 1969
suitable amendment of 1949 Act was made by the State by
defining "pucca structure" under Section 2(4a) and by D
empowering the "thika tenant" to erect "pucca structure" by
inserting Section 10A. The relevant Section 2(4a) defining
"pucca structure" is as follows:
"2(4a) "pucca structure" means any structure E
constructed mainly of brick, stone or concrete or any
combination of these materials."
Right of thika tenant to erect pucca structures was'
inserted by Section :1 OA vide West Bengal Act XXIX of 1969,. F
which reads as follows:-
"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
G
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
struct1Jre on such land for such purpose witb the
previous permission of the Controller. H
661 SUPREME COURT REPORTS [2015] 2 S.C.R.
A (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-
B (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
(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 Bharatia
D
from the structure or part thereof in the possession of
the Bharatia for the purpose of erecting a pucca
structure:
Provided that the thika tenant may by providing
E 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
F
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."
G THE CALCUTTA THIKA AND OTHER TENANCIES AND
LANDS (ACQUISITION AND REGULATION) ACT, 1981
IWEST BENGAL ACT XXXVll OF 19811
H 9. The purpose of enactment of 1981 Act is as follows:
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 662
[SUDHANSi.J JYOTI MUKHOPADHAYA, J.]
"An Act to provide for the acquisition of interests of A
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.
B
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 developing and
equitable utilization of such lands with a view to C
subserving the common good."
The 1981 ACt came into effect from 2nd November,
1981. The reasons for enactment of the Act as quoted above
was in fact inserted by substitution by the Calcutta Thika D
Tenancy (Acquisition and Regulation) (Amendment) Act, 1993
with effect from 18th January, 1982.
Section 3(7) of 1981 Act defines "pucca structure" as
follows:- E
"3(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; F
Section 3(8) defines "thika tenant" as quoted below:
"3(8) "thika tenant" means any person who occupies,
whether under a written lease or otherwise, land under
G
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 H
663 SUPREME COURT REPORTS [2015] 2 S.C.R.
A purpose and includes the successors-in-interest of such
person."
10. Chapter II of the 1981 Act relates to acquisition of lands
comprised in thika tenancies and other lands and the rights of
B landlords in such lands.
Section 5 which was later substituted by Section 6 of
the Calcutta Thika Tenancy (Acquisition and Regulation)
(Amendment) Act, 1993 0f'Jest Ben. Act XXI of 1993) w.e.f 18th
c .January, 1982, originally reads as follows:
"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
D 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 occupies as
E Khatals along with easemefnts, 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
F 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
G 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.".
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 664
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
After substitution Section 5 reads as follows: A
"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 B
the State, free from all encumbrances, namely:-
(a)lands comprised in and a;ipurtenant to tenancies of
thika tenants including open areas, roads, passages,
tanks, pools and drains; C
(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;
D
(c) other lands npt covered by clauses (a) and (b) held
under a written lease or otherwise, including open areas,
roads, passages, tanks, pools and drain;>;
(d) lands held in monthly or other periodical tenancies,
whether under a written lease or otherwise, for being E
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 F
land coming within the purview of clauses (c) and (d)."
WEST BENGAL THIKA TENANCY !ACQUISITION AND
REGULATION) ACT, 2001
G
11. · The parties have also relied on 2001 Act which came
into effect from 1st March, 2003. The said Act cannot be relied
upon in the present case but it is desirable to notice the
definition of "public structure" and ''Thika Tenant" given therein.
H
665 SUPREME COURT REPORTS (2015) 2 S.C.R.
A The relevant provisions of 2001 Act read as under:
"2.(13) "pucca structure" means any structure
constructed mainly of brick, stone or concrete or any
combination of these materials, or any other material of
B a durable nature;
2.(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,
c 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-in-interest of such
D 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." ·
E 12. The expression 'any structure' though used within the
definition of 'Thika Tenant' under Section 2(5) of 1949 Act, the
same has not been defined under the 1949 Act.
Section 2(6) of the 1949 Act stipulates:
F
"2(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 (VII I of
1885), have the same meaning as in those Acts."
G
Therefore, one can derive the definition of such words
and expressions used but not defined in the 1949 Act from the
Transfer of Properfy Act, 1882 or the Bengal Tenancy Act, 1885
as it has the same meaning as in those Acts.
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 666
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
The expression 'any structure' has not been used in the Transfer A
of Property Act, 1882 or Bengal Tenancy Act, 1885, therefore,
it will be of no help to refer to Transfer of Property Act, 1882 or
Bengal Tenancy Act, 1885 to define the word and expression
'any structure' used in Section 2(5) of the 1949 Act.
B
13. The term 'any structure' was considered by Calcutta High
Court in Kshiroda Moyee v. Ashutosh Roy, 63 CWN 565
and learned Single Judge by judgment dated 10th March, 1959
held:
c
"The next point argued on behalf of the appellant is
that the Thika Tenancy Act applies and, if it does apply,
the tenant is entitled to put up any structure un_der its
provisions because Section 2(5) defines a Thika tenant
as "one who holds, whether under a written lease or D
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 rates, for that land to
that another person and has erected or acquired by
E
purchase or gift any structure on such land for a
residential, manufacturing or business purpose." Thus
under the definition, a Thika tenant 'is a tenant of the
land' on which he has either erected a structure or has
purchased from somebody else a structure. It appears F
from the lease (Ex.1) that there possibly was some sort
of a structure on the disputed land already at the time
when the lease was executed. The tenant, therefore,
might come under the definition of a Thika Tenant under
the Calcutta Thika Tenancy Act, 1949 and it is, G
admittedly, within Calcutta as defined in Clause 11 of
Section 3 of the Calcutta Municipal Act, 1923. But then
there is nothing in the Thika Tenancy Act to show that
the tenant will be entitled to put up a pucca structure.
H
667 SUPREME COURT REPORTS [2015) 2 S.C.R.
A Mr. Bhattacharjee, on behalf of the appellant, lays stress
1'.m the word "any" before the word "structure" in Section
2(5), but, that does not mean that the tenant will be
entitled to put up a permanent structure on the land. It
merely means that when the tenant has put up a structure
B on the land h~ has taken of, then, he will satisfy the
requirement of the definition ofThika Tenant or, in other
words, "any" there stands for "a" and does not mean
that the tenant will be entitled to put up any kind of
structure. What kind of structure the tenant will be entitled
c
to put up will depend upon the terms of the contract
between the parties and also upon the Transfer of
Property Act which regulates these things and, as
already pointed out, even if there was no contract
D between the parties, Section 108 (p) would have
prevented the tenant from putting up a permanent
structure on the land without the landlord's consent.
Clearly, therefore, the defendant is not entitled either
under the provisions of the Transfer of Property Act or
E under the provisions of the Thika Tenancy Act to put up
a permanent structure on the land."
14. In Monmatha Nath Mukherjee v. Banarasi & Ors.
63 CWN 824, learned Single Judge of Calcutta High Court
F vide judgment dated 28th May, 1959 referring the decision in
Kshiroda Moyee Sen observed:
"Although I respectfully agree with the conclusion
made byGuha Ray, J., I do so for reasons of my own.
G The adjective 'any' is a word which excludes limitation
or qualification and makes the noUl'I, before whic:tl it is
prefixed, as wide as possible. Thus the word has been
regarded as equivalent to and having the force of "every"
or "all" (see Crawford on "Statutory Construction", sec.
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 668
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
186 at page 318). That being so, the words 'any A
structure' would ordinarily include a pucca structure.
Nevertheless, for reasons which I am going to state
the words "any structure" used in section 2(5) of the
Calcutta Thika Tenancy Act cannot be taken to mean all B
kinds of structure including a pucca structure.
The Calcutta 'rhika Tenancy Act is a special Act and
was enacted, as its preamble shows, "to make better
provision relating to the law of landlord and tenant in c
respect of thika tenancies in Calcutta". The general law
regulating the relationship of landlord and tenant,
including thika tenant, is contained in Chapter V cif the
Transfer of Property Act. In section 108(p) of the Transfer
of Property Act there is a prohibition against the lessee D
raising pucca or permanent structures on the land of
the tenancy, without the lessor's consent."
15. The matter was subsequently considered by the
Division Bench of Calcutta High Court in Annapurna Seal v. E
Tincowrie Dutt, 66 CWN 338. The Court referring to the
earlier decisions held:
"A construction has to be given to the word 'structure'
in this case which 'must be suited to the context of the F
Calcutta Thika Tenancy Act. It will be inappropriate to
attempt to rigidly define structure. What is or is not
structure has to be decided on the facts of each case
in the light of the Statute and its objects. Only certain
broad principles may be indicated but no rigid definition G
is possible. In the first place, the land mentioned in
section 2(5) of the Act certainly has to be land without
the structure contemplated in Section 2(5) of the Act.
The primary object of this statute was that only land was
H
669 SUPREME COURT REPORTS [2015] 2 S.C.R.
A to be let out for subsequent structures to come upon it.
If the land is already built over with structures when let
out then this possibility could not be envisaged.
Therefore, the land must be without the structure within
the meaning of section 2(5) of the Act. Some of the
B decisions which I have quoted above indicate a
distinction already made by the courts on the ground
that the structure meant here is only temporary structure
and not a permanent or pucca structure."
C 16. The aforesaid view was followed by the Division Bench
of the Calcutta High Court in Purushottam Das Murarka v.
Harendra Krishna Mukherjee, 79 CWN 852. The Court vide
judgment dated 13th May, 1975 following the aforesaid
decision inAnnapuma Seal held that ifThika Tenant constructs
0
or attempts to construct pucca structure on the demised land
without the permission of the landlord, he does not cease to
be a Thika Tenant. The landlord will have the right to bring an
action against the Thika Tenant for the purpose of restraining
E him from constructing a pucca structure on the demised land.
17. The matter was subsequently considered by Full Bench
of Three Judges of Calcutta High Court in Lakshimimoni Das
& Ors. v. State of West Bengal &Ors., (AIR) 1987 Calcutta
F 326. Referring to the previous judgments the Court held:
"19. Pursuant to power conferred by Section 20 of the
impugned Act, rules have been framed called as the
Calcutta Thika Tenancy (Acquisition and Regulation)
Rules, 1982. Mr. Pal has submitted that Rule 3 and
G
Rule 10 are relevant for the consideration of the scope,
ambit and effect of the provision of vesting under
Section 5. Referring to the expression "lands
comprised in thika teriancy" as appearing in the first
H limb of Section 5, Mr. Pal has contended that the
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 670
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
definition of the expression 'thika tenant' in Section 2(5) A
of Calcutta Thika Tenancy Act, 1949 has been the
subject matter of judicial interpretation and
consideration in several decisions of this Court. In
these decisions it has been held that (a) the
expression "any structure" in Section 2(5) of the 1949 B
Act means kutcha and for non-pucca structure and
reference may be made to the decisions of this Court
in the case of Monmatha Nath Mukherjee v. Smt.
Banarasi reported in (1959)63 Cal WN 824. It has
been held by a single Judge of this court that thika
c
tenant is not entitled to put up a permanent structure
on the land. The Division Bench consisting of P. B.
Mukheljee and R. S. Bachawat JJ. (as their Lordships
then wera) held that the exprassion "thika tenancy" had D
!mported a concept of temporariness. Even after the
1969 Amendment of the Calcutta Thika Tenancy Act,
1949, the Division Bench of this Court in the decision
made in the case of Purushottam Das Murarka v.
Harindra Krishna Mukheljee, raported in (1975) 79 Cal E
WN 852 has observed to the following effect: -
"But there cannot be any doubt and it is also not
disputed on behalf of the appellant that, if during
the pendency of his lease, a thika tenant F
constructs or attempts to construct pucca structura
on the demised land without the permission of
the landlord, he does not cease to be a thika
tenant."
G
"56. For the reasons aforesaid we hold as follows:-
(a) The impugned Act is not protected under
Article 31C of the Constitution as it is found on scrutiny
of different provisions of the impugned Act that the H
671 SUPREME COURT REPORTS (2015) 2 S.C.R.
A impugned Act has not been enacted to give effect to
provisions of Articles 39(b) and (c) of the Constitution
and the impugned Act is open to challenge on the score
of violations of Part Ill of the Constitution.
B (b) Within the scope and ambit of Section 5 of the
impugned Act only lands comprised in thika tenancies
within the meaning of the Calcutta Thika Tenancy Act,
1949 comprising a kutcha structure and/or a pucca
structure constructed for residential purpose with the
C permission of the Controller under the Calcutta Thika
Tenancy Act, 1949 and khatal lands held under a
lease shall vest and save as aforesaid no other land
and structure vest under the impugned Act."
D 18. Ordinarily, the court resorts to the plain meaning rule (also
l~nown as literal rule) for statutory interpretation. The said rule
emphasis that the starting point in the statutory interpretation
is statute itself and if the language of the statute is clear and
unambiguous, there is no need to look outside the statute.
E
19. The intention of the legislature is primarily to be gathered
from the language used in the statute, "thus paying attention to
what has been said as also to what has not been said" as
observed by this Court in Dental Council of India v. Hari
F Prakash (2001) 8 SCC 61. Relevant part of which is quoted
hereunder:
"7. The intention of the legislature is primarily to be
gathered from the language used in the statute, thus
G paying attention to what has been said as a/so to what
has not been said. When the words used are not
ambiguous, literal meaning has to be applied, which
is the golden rule of interpretation."
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 672
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
20. In State of Maharashtra v. Nanded-Parbhani A
Z.L.B.M. II. Operator Sangh, (2000) 2 SCC 69, this Court
held:
'.'B ........... It is a cardinal principle of the rule of
construction of a statute that when the language of a B
statute is fairly and reasonably clear, then
inconvenience or hardships are no considerations for
refusing to give effect to that meaning. It is not the
contention of the learned counsel appearing for the
State nor can it be said that on giving a plain meaning c
to the words used in Section 207(1) of the Act, there
will be any absurdity or it would make the statute offend
any provisions ()f the Constitution. Tindal, C.J. in
Sussex Peerage case1 (Cl&F at p. 143) applying the
D
rule has statec/- .
"If the words of the statute are in themselves
precise and unambiguous, then no more can be
necessary than to expound those words in their
natural and ordinary sense. The words E
themselves do alone in such cases best declare
the intent of the lawgiver."
11. The intention of the legislature is required to be
gathered from the language used and, therefore, a F
construction, which requires for its support an
additional substitution of words or which results in
rejection of words as meaningless has to be
avoided ...... " ·
G
21. This Court in Grasim Industries Ltd.. v. Collector of
Customs, (2002), 4 SCC 297 observed:
"10. No words or expressions used in any statute can
H
673 SUPREME COURT REPORTS [2015] 2 S.C.R.
A be said to be redundant or superfluous. In matters of
interpretation one should not concentrate too much
on one word and pay too little attention to other words.
No provision in the statute and no word in any section
can be construed in isolation. Every provision and
B every word must be looked at generally and in the
context in which it is used. It is said that every statute
is an edict of the legislature. The elementary principle
of interpreting any word while considering a statute is
to gather the mens or sententia legis of the legislature.
c
Where the words are clear and there is no obscurity,
and there is no ambiguity and the intention of the
legislature is clearly conveyed, there is no scope for
the court to take upon itself the task of amending or
D alternating (sic altering) the statutory provisions.
Wherever the language is clear the intention of the
legislature is to be gathered from the language used.
While doing so, what has been said in the statute as
also what has not been said has to be noted. .The
E construction which requires for its support addition or
substitution of words or which results in rejection of
words has to be avoided. As stated by the Privy
Council in Crawford v. Spooner2 "we cannot aid the
legislature's defective phrasing of an Act, we cannot
F add or mend and, by construction make up
deficiencies which are left there". In case of an ordinary
word there should be no attempt to substitute' or
paraphrase of general application. Attention should be
confined to what is necessary for deciding the particular
G
case. This principle is too well settled and reference
to a few decisions of this Court would suffice. (See:
Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian
of Vested Forests, Union of India v. Deoki Nandan
H Aggarwal, Institute of Chartered Accountants of India
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 674
[SUDHANSU JYOTI MUKHOPADHAYA, J.)
v. Price Waterhouse and Harbhajan Singh v. Press A
Council of India.)"
22. The language of Section 2(5) of 1949 Act defining 'Thika
Tenant' is fairly and reasonably clear. The said section also
reflects the intention of the legislature. The meaning of the word B
'any structure' used in Section 2(5) cannot be derived in
isolation on mere presumption. The Calcutta Thika Tenancy
Act, 1949 was enacted to make better provisions relating to
the law of the landlord and the tenant in respect of Thika
Tenancy. To claim rights of a 'Thika Tenant' a person should be C
a 'Thika Tenant' under Section 2(5) of the 1949 Act for which
he should satisfy the following conditions:
"(i) The person shall be holding land under another
person; D
(ii) he shall be liable to pay rent, at a monthly or any
other periodical rate, for that land to that another
person; and
E
(iii) he should have erected or acquired by purchase
or gift ;my structure on such land for a residential,
manufacturing or business purpose. It includes the
successors in interest of such person."
F
The said definition does not include a person-(a) who holds
such land under that another person in perpetuity; or (b) 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) uses or occupies such land as a Khattal. · G
23. The word 'any structure' relates to structure erected or
acquired by purchase or gift on such land for a residential,
manufacturing or business purpose. 'Any structure' mentioned
therein has a direct relationship with the purpose for which the H
675 SUPREME COURT REPORTS (2015) 2 S.C.R.
A structure is erected or acquired i.e. for a residential,
manufacturing or business purpose. The words 'any structure'
has no bearing with the nature of structure i.e. whether it is
'Kutcha'(temporary) or 'pucca'(permanent). If such 'any
structure' was erected or acquired not for residential,
B manufacturing or business purpose, the person who is holding
land cannot claim to be a 'Thika Tenant' within the meaning of
Section 2(5) even if other conditions mentioned therein are
fulfilled.
C 24. In all the above mentioned judgments of Calcutta High Court,
the High Court has neither noticed nor discussed the purpose
for which structure was erected or acquired by purchase or
gift. Instead of determining the issue based on the purpose for
which the structure was erected i.e. for residential,
0
manufacturing or business, the High Court held that thika
tenants are not allowed to raise permanent structures on the
land.
25. In view of the aforesaid finding we hold that the High Court
E in Kshoroda Moyee, Monmatha Nath Mukherjee,
Annapurna Seal and Purushottam Das Murarka, has not
laid down the correct law.
26. The Calutta Thika Tenancy Act, 1949 was amended in 1953
F and 1969. By the West Bengal Act XXIX of 1969 definition of
'pucca structure' was inserted under Section 2(4) as Section
2(4a), which reads as follows:
"2(4a). "pucca structure" means any structure
G constructed mainly of brick, stone or concrete or any
combination of these materials;
By the saryie very amendment of 1969, Section 1OA
was inserted empowering the 'Thika Tenant' to erect pucca
H
NEMAI CHANDRA KUMAR v. MANI SQUARE LTD. 676
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
structure for using residential purpose with the previous A
permission of the Controller: It reads as follows:
"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 B
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. C
(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- D
(a) is using the structure existing on the land
comprised in his holding for a residential purpose,
(b) intends to qse the pucca structure to be erected E
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.
F
(3) No thika tenant shall be entitled to eject a Bharatia
from the structure or part thereof in the possession of
the Bharatia. for the purpose of erecting a pucca
structure: ./
G
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
H
677 SUPREME COURT REPORTS [2015]2S.C.R.
A 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
B paying."
The insertion of Section 2(4a) and Section 1OA by West Bengal
Act XXIX of 1969 also makes the intention of legislature clear
that for the purpose of thika tenancy, 'any structure' includes
C both 'kutcha' (temporary) or 'pacca'(permanent) structure.
27. In spite of the said insertion of Section 2(4a) and Section
1OA, the Division Bench of the High Court rendered reliance
on the judgments in Kshoroda Moyee, Monmatha Nath
D Mukherjee, Annapurna Seal and Purushottam Das
Murarka and allowed the writ petition preferred by the
respondent Nos.1 and 2 by the impugned judgment.
28. In view of the above findings, we hold thatthe appellants
E fulfill all the conditions of 'Thika Tenant' and come within the
meaning of 'Thika Tenant' as defined in Section 2(5). Further,
in view of the Calcutta Thika & other Tenancies and Lands
(Acquisition and Regulation) Act, 1981 since 18th January,
1982, the land in question vests in the State along with interests
F of the landlord therein free from all encumbrances.As the High
Court failed to appreciate the relevant provisions and erred in
holding that the appellant is not 'Thika Tenant' within the
meaning of Section 2(5), we set aside the impugned judgment
G dated 10th March, 2014 passed by the Division Bench of High
Court of Calcutta in W.P.L.R.T No.325 of 2013 and uphold the
order dated 18th November, 2013 passed by the Tribunal in
O.A. No.2833/12 (LRTT). The appeal is allowed. There shall
be no order as to costs.
H
Nidhi Jain Appeal allowed ..
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