Judgment · Supreme Court

63 CWN 565; Jnan Ranjan SenGupta and Ors. v. Arun Kumar Bose (1975) 2 SCC 526: [1976] 1 SCR 105;Ramdas Bansal (Dead) Through LR v. Kharag SinghBaid & Ors.: (2012) 2 SCC 548 : [ 2012] 4 SCR 583;Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC92 : [2014] 2 SCR 1; Afcons Infrastructure Ltd. & Anr.v. Cherian Varkey Construction Company PrivateLimited & Ors. (2010) 8 SCC 24 : [2010] 8 SCR 1053;Gajraj Singh & Ors. v. State Transport AppellateTribunal & 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) 2SCC 132 : [2011] 2 SCR 1; Bengal Immunity CompanyLimited 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. JagdishPrasad (Dead) Through Legal Representatives (2020)9 SCC 393 - referred to.

Case Law Reference[1962] 1 SCR 9referred to Para 18.1[1982] 3 SCR 491referred to Para 18.1[2012] 12 SCR 327referred to Para 18.1NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. ABCDEFGH422SUPREME COURT REPORTS[2022] 11 S.C.R.[2002] 2 Suppl. SCR 324referred to Para 18.1[2009] 14 SCR 89referred to Para 18.1[1976] 1 SCR 105referred to Para 18.2[2012] 4 SCR 583 referred to Para 19.2[2014] 2 SCR 1referred to Para 19.4[2010] 8 SCR 1053referred to Para 19.4[1996] 6 Suppl. SCR 172referred to Para 19.5[2011] 2 SCR 1referred to Para 20.5[1955] 2 SCR 603referred to Para 20.6[2006] 2 SCR 304referred to Para 20.6(2020) 9 SCC 393referred to Para 20.8CIVIL APPELLATE JURISDICTION : Civil Appeal No.2402of 2015.From the Judgment and Order dated 10.03.2014 of the High Courtat Calcutta in W.P.L.R.T No.325 of 2013.Jaideep Gupta, Sr. Adv., Utpal Majumdar, Kunal Chaterjee, Ms.Ranjeeta Rohatgi, Ms.

Samten Doma, Advs. for the Appellants.P. Chidambaram, Sr. Adv., Kunal Vajani, Pranaya Goyal, AmanGandhi, Abhirath Thakur, Ms. Madhumita Bhattacharjee, Ms. SrijaChoudhury, Anant, Chanchal Kumar Ganguli, Shekhar Kumar, Advs.for the Respondents. The Judgment of the Court was delivered byDINESH MAHESHWARI, J.Table of ContentsPreliminary.............................................................................2*Statutory Provisions...............................................................3*Background and Factual Matrix..........................................13*Findings and conclusion of the Controller............................17*Findings of the Tribunal.......................................................23* ABCDEFGH423Findings of the Calcutta High Court....................................26*Previous decision of this appeal and review thereof...........34*Rival Contentions.................................................................35*The Appellants..........................................................36*The State...................................................................39*The respondent No.

1................................................43*Analysis...............................................................................48*The Structure in question..........................................48*The statutory scheme and the import of three enactmentwith their amendments........................................................50*The relevant decisions of Calcutta High Court.........60*Other miscellaneous but relevant factors..................63*Conclusion.................................................................65*Preliminary1. This appeal is directed against the judgment and order dated10.03.2014, as passed by the High Court of Calcutta in W.P.L.R.T. No.325 of 2013 whereby, the High Court has allowed the writ petition filedby the respondent Nos. 1 and 2 of this appeal and has disapproved theorders dated 27.01.2010 and 01.08.2012 as passed by the Controller, Calcutta Thika Tenancy1 as also the order dated 18.12.2013 as passedby the West Bengal Land Reforms and Tenancy Tribunal at Calcutta2.1.1.

By the orders aforesaid, the Controller and the Tribunal hadconcluded that the present appellants were thika tenants in respect ofthe property involved in this litigation and the landlord’s interest thereinstood vested in the State under the statutes governing thika tenancies. However, in the impugned judgment and order dated 10.03.2014, the High Court concluded to the opposite and held that the Controller andthe Tribunal were not justified in accepting the present appellants asthika tenants in respect of the property in question.2. Put in a nutshell, the issues involved in this appeal revolve aroundthika tenancy enactments, as applicable to the property and the tenancy1 Hereinafter also referred to as ‘the Controller’.2 Hereinafter also referred to as ‘the Tribunal’.*Ed. Note : Pagination is as per the original Judgment.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH424SUPREME COURT REPORTS[2022] 11 S.C.R.in question.

The nature of tenancy created in favour of the appellantsand/or their predecessors and impact/implication of the structure put upby them on the property in question form the core of the typical andpeculiar questions involved in this matter.3. Before proceeding further, we may point out that theconsideration herein relates to thika tenancy and undoubtedly, the word‘thika’ in Bengali means ‘temporary or partial’3.Statutory Provisions4. Ordinarily, we would have commenced the discussion withrelevant factual aspects but, in the present case, even for properappreciation of factual matrix, an insight into the relevant provisions oflaw with reference to their enactment as also chronology of theirenforcement appears necessary. Hence, before adverting to the factsof the case, we deem it appropriate to extract the relevant statutoryprovisions relating to thika tenancy, in their feasible chronology and alsowith reference to their objects and reasons.

We shall deal with theconstruction of phraseology of these provisions and implications thereofa little later. For the present purpose, only the relevant provisions arebeing reproduced.5. In order to make better provisions in respect of the law oflandlord and tenant as also thika tenancy in Calcutta, the Calcutta ThikaTenancy Act, 1949 (West Bengal Act II of 1949)4 came to be enacted inplace of its predecessor Ordinance and with the following Statement of Objects and Reasons: -

STATEMENT OF OBJECTS AND REASONSThere has been a persistent demand for legislative measures forthe protection of the thika tenants of Calcutta and the HowrahMunicipal area against arbitrary eviction and enhancement of rent. Accordingly, an Ordinance was promulgated staying all decree ororders for eviction of the thika tenants on any ground other thannon-payment of rent. The present Bill has been framed, with a view to regulate therights and liabilities of the thika tenants and their landlords.

3 Vide Sri Sri Satyanarayan & Ors. v.

S.C. Chunder: (2001) 3 CHN 641- paragraph19, reproducing from the decision in the case of Hindustan Petroleum CorporationLtd. v. Sashi Bhusan Mondal, APD No. 280 of 1981.4 Hereinafter also referred to as ‘the Act of 1949’. ABCDEFGH4255.1. The said enactment made various provisions as regards theextent of thika tenancies, the grounds on which a thika tenant couldhave been ejected; the procedure relating to the proceedings forejectment; the regulation of rent and its payment; appeals and otherspecial matters etc. All other provisions of this enactment are not requiredto be dilated but, it is the definition of “thika tenant” occurring in clause(5) of Section 2 of the Act of 1949, as substituted in the year 1953,which is of relevance and the same may be reproduced as under: -“2. Definitions. -*********(5) “thika tenant” means any person who holds, whether under awritten lease or otherwise, land under another person, and is orbut for a special contract would be liable to pay rent, at a monthlyor any other periodical rate, for that land to that another personand has erected or acquired by purchase or gift any structure onsuch land for a residential, manufacturing or business purposeand includes the successors in interest of such person, but doesnot include a person -(a) who holds such land under that another person in perpetuity; or(b) who holds such land under that another person under aregistered lease, in which the duration of the lease is expresslystated to be for a period of not less than twelve years; or(c) who holds such land under that another person and uses oroccupies such land as a khattal.” 5.1.1.The nature of structure, if put up by the tenant over thedemised premises, has a bearing over the questions relating to thikatenancy and has its direct implication in the present case, as shall benoticed hereafter later.5.2.

By way of Amendment Act No. XXIX of 1969, clause (4a)was inserted to Section 2 and Section 10A was also inserted to the Actof 1949. These two provisions could also be reproduced as under: -“2. Definitions.-*********NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH426SUPREME COURT REPORTS[2022] 11 S.C.R.(4a) “pucca structure” means any structure constructed mainlyof brick, stone or concrete or any combination of these materials;”*********“10A. Right of thika tenant to erect pucca structures.-(1)Notwithstanding anything contained in any other law for the timebeing in force or in any contract, but subject to the provisions ofsub-sections (2) and (3), a thika tenant using the land comprisedin his holding for a residential purpose may erect a pucca structureon such land for such purpose with the previous permission of the Controller. (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 -(a) is using the structure existing on the land comprised inhis holding for a residential purpose,(b) intends to use the pucca structure to be erected onsuch land for a similar purpose, and(c) has obtained sanction of a building plan to erect thepucca structure from the municipal authorities of the areain which such land is situated.

(3) No thika tenant shall be entitled to eject a Bharatia5from the structure of part thereof in the possession of the Bharatiafor the purpose of erecting a pucca structure: Provided that the thika tenant may by providing temporaryalternative accommodation to a Bharatia obtain from him vacantpossession of the structure in his possession on condition thatimmediately on the completion of the construction of the puccastructure the thika tenant shall offer the Bharatia accommodationin the pucca structure at a rent which shall in no case exceed bymore than twenty-five per centum the rent which the Bharatiawas previously paying.” 5 The definition of the term “Bharatia”, as occurring in clause (1) of Section 2 of the Actof 1949, is not of direct application to the present case but, for a proper comprehensionof the related provisions, the same is also reproduced as under: -“(1) “Bharatia” means any person by whom, or on whose account, rent ispayable for any structure or part of a structure erected by a thika tenant in his holding;” ABCDEFGH4275.3.

It could at once be indicated that the expression “any structure” as occurring in clause (5) of Section 2 of the Act of 1949 as also in thesuccessor enactments has been a matter of several debates in the HighCourt and a substantial number of decisions were rendered in that regard, essentially to the effect that the expression “any structure”, in the contextof the enactment and its purpose, only referred to a temporary structure, more specifically called “kutcha structure” as contradistinguished froma permanent structure, which has been referred to as “pucca structure”.5.4. Clause (6) of Section 2 of the Act of 1949 also has a bearingin the present case and could be noticed as under: -

2. Definitions.-*********(6) all words and expressions used but not defined in this Act andused in the Transfer of Property Act, 1882 (IV of 1882) or the Bengal Tenancy Act, 1885 (VIII of 1885), have the same meaningas in those Acts.

6.

The aforesaid Act of 1949 was repealed as a whole by the newenactment initially carrying the title of ‘the Calcutta Thika Tenancy(Acquisition and Regulation) Act, 1981’. This enactment, promulgatedon 02.11.1981, came into force with effect from 18.01.1982. Later on, several amendments were made to this enactment, including the changeof its title by way of the Calcutta Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 19936. Significantly, the said AmendmentAct of 1993 was given retrospective effect from 18.01.1982, i.e., thedate of commencement of the principal enactment. With change of name, this enactment, being West Bengal Act No. XXXVII of 1981, came tobe known as ‘the Calcutta Thika and Other Tenancies and Lands(Acquisition and Regulation) Act, 1981’7.6.1. The Statement of Objects and Reasons of this enactment ofthe year 1981 could also be usefully noticed as under: -“STATEMENT OF OBJECTS AND REASONSThe bharatias under the Calcutta Thika Tenancy Act, 1949, arevulnerable to the wishes of the thika tenants with regard to6 Hereinafter also referred to as ‘the Amendment Act of 1993’.7 Hereinafter this enactment is also referred to as ‘the Act of 1981’; and whenevercontextually required, is also referred to by its original name, i.e., Calcutta ThikaTenancy (Acquisition and Regulation) Act, 1981.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v.

MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH428SUPREME COURT REPORTS[2022] 11 S.C.R.enhancement of huts or other structures occupied by them andwith regard to ejectment therefrom. The provisions of that Act donot provide for protection of bharatias against ejectment orenhancement of rent at the whims of the thika tenants. Accordingly, there has been persistent public demand for regulatingthe relation between thika tenants and bharatias.2. The thika tenants pay some rent to the Landlords who are theowners of the land. Thus, the landlords continue to remain asintermediaries in Calcutta and in the Municipality of Howrah. Therehas also been a long-standing public demand that each system ofintermediaries should be abolished and the State Should establishdirect thika tenants so as to regulate the premises held by them.3. The Calcutta Thika Tenancy (Acquisition and Regulation) Bill1980 is intended to meet both these public demands which wereconsidered just fair and equitable.

In order to give some protectionto the thika tenants and bharatias against ejectment, the CalcuttaThika Tenancy Stay of Proceedings (Temporary Provisions) Act,1978 was enacted. It came into force on the 19th day of July,1978. The life of that Act has been extended upto 18th day of July, 1981. The object of that Act was to provide temporaryprotection against ejectment pending enactment of acomprehensive legislation to remove the public grievances asalready stated. Pending proceedings and appeals of ejectment ofbharatias and thika tenants will stand abated.4. This bill is also intended to provide for the acquisition of therights of landlords in lands comprised in thika tenancies on paymentof an amount calculated at a rate not exceeding ten rupees persquare metre on the lines of the amount laid down in the UrbanLand (Ceiling and Regulation) Act, 1976 and vesting thereof inthe State free from all encumbrances.

Thika tenants shall holdtheir lands under the State on terms and conditions to be prescribedin the rules, and the bharatias will enjoy the same protectionagainst ejectment and enhancement of monthly rent, as enjoyedby the premise tenants under the West Bengal Premises, TenancyAct, 1956. Since bharatias constitute a very poor section of theurban population, it has been provided that, instead of Civil Courts, disputes between bharatias and thika tenants will be decided by Controller. ABCDEFGH4295. It is also proposed that the provisions of the West Bengal LandHolding Revenue Act, 1979 shall apply to thika tenants in thematter of payment of revenue, but with a separate schedule asshown in clause 25 of the Bill.6. The Bill seeks to achieve the above objects.” 6.2. The Statement of Objects and Reasons for the saidAmendment Act of 1993 had been as under: -“STATEMENT OF OBJECTS AND REASONS.Experience of the last few years has shown that there are somepractical difficulties in the operation of the Calcutta Thika Tenancy(Acquisition and Regulation) Act, 1981.2.

It has therefore, been considered necessary and expedient-a) to include slums and bustees within the purview of the Act;b) to streamline the provisions regarding survey of the thikatenanted land;c) to make some other, changes as have been felt necessaryto remove doubts or otherwise to improve the working of the Act.3. The Bills has been framed with the above objects in view.” 6.3. The Preamble of this Act of 1981 was also substituted by the Amendment Act of 1993. For the present purpose, suffice would be totake note of the existing Preamble part of this enactment as follows: -

An Act to provide for the acquisition of interests of landlordsin respect of lands comprised in thika tenancies and certain othertenancies and other lands in Calcutta and Howrah for developmentand equitable utilization of such lands. Whereas it is expedient to provide for the acquisition of interestsof landlords in respect of lands comprised in thika tenancies andcertain other tenancies and other lands in Calcutta and Howrahfor development and equitable utilization of such lands with a viewto subserving the common good;

6.4.

In the Act of 1981, as originally enacted, the terms “puccastructure” and “thika tenant” were defined respectively in clauses (7)and (8) of Section 3 in the following terms: -“3. Definitions.-*********NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH430SUPREME COURT REPORTS[2022] 11 S.C.R.(7) “pucca structure” means any structure constructed mainly ofbrick, stone or concrete or any combination of these materials, orany other material of a durable nature; (8) “thika tenant” means any person who occupies, whether undera written lease or otherwise, land under another person, and is orbut for a special contract would be liable to pay rent, at a monthlyor at any other periodical rate, for that land to that another personand has erected or acquired by purchase or gift any structure onsuch land for residential, manufacturing or business purpose andincludes successors-in-interest of such person.” 6.5.

In this enactment, the text of Section 5, as originally enacted, and as later on substituted by the Amendment Act of 1993, had beenmaterially different and carry their own relevance for the questions athand. We may, therefore, usefully reproduce the text of Section 5 beforeand after the Amendment of 1993 in juxtaposition, as under: -Section 5 as originally enacted. Section 5 as substituted by the Amendment Act of 1993. "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 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 occupied as khatals along with easements, 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 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 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.

"

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 the State, free from all encumbrances, namely: - (a) lands comprised in and appurtenant to tenancies of thika tenants including open areas, roads, passages, tanks, pools and drains; (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; (c) other lands not covered by clauses (a) and (b) held under a written lease or otherwise, including open areas, roads, passages, tanks, pools and drains; (d) lands held in monthly or other periodical tenancies, whether under a written lease or otherwise, for being 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 land coming within the purview of clauses (c) and (d).

ABCDEFGH4316.6.

The particular expression “tenant of other lands” as occurringin Section 5 after its substitution by the Amendment Act of 1993 wasalso defined in clause (7B) of Section 3 by way of the same amendmentand it reads as under8:-“3. Definitions.-*********(7B) “tenant of other lands” means any person who occupiesother lands under another person, whether under a written leaseor otherwise, and is or but for a special contract would be liable topay rent at a monthly or periodical rate for occupation of suchother lands, and includes the successor-in-interest of such person;”

The said clause(14) was also amended by the West Bengal Thika Tenancy (Acquisitionand Regulation) (Amendment) Act, 201010 with effect from 01.11.2010.We may place the text of this clause (14), as originally enacted and asamended by the Amendment Act of 2010 in juxtaposition as under:8 There had been several other insertions and substitutions by way of the said AmendmentAct of 1993 which need not be noticed for being not relevant in respect to the questionsat hand.9 Hereinafter also referred to as ‘the Act of 2001’.10 Hereinafter also referred to as ‘the Amendment Act of 2010’.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH432SUPREME COURT REPORTS[2022] 11 S.C.R.7.2.The expression “pucca structure” came to be defined inclause (13) of Section 2 of the Act of 2001. It is noticed that this definitionof “pucca structure” in the Act of 2001 was further amended by ActNo.

XI of 2019 but we need not refer to the said amendment for beingnot relevant for the present purpose. The said clause, as originally enacted, reads as under: -“2. Definitions.-*********(13) “pucca structure” means any structure constructed mainlyof brick, stone or concrete or any combination of these materials, or any other material of a durable nature;” 7.3. Section 4 of this enactment provides for vesting of the landcomprised in thika tenancies and other particular class of lands in the State with effect from 18.01.1982. Noticeably, this date ‘18.01.1982’ isthe same date from which the Act of 1981 came into force and even the Amendment Act of 1993 was enforced. This Section 4, as originallyenacted, reads as under: -“S.4. Lands comprised in thika tenancies and other lands, etc. to vest in the State. -With effect from the 18th day of January, 1982, the following lands along with the interest of landlordstherein shall be deemed to have vested in the State, free from allencumbrances-Clause (14) of Section 2 as originally enacted.

Clause (14) of Section 2 as substituted by the Amendment Act of 2010.

(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, 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 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.

(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, 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 including pucca structure, if any, on such land for residential, manufacturing or business purpose, and includes the successors-in-interest of such 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.

ABCDEFGH433(a) lands comprised in, and appurtenant to, tenancies of thikatenants including open areas, roads; and(b) lands held in monthly or other periodical tenancies, whetherunder a written lease or otherwise, for being used or occupied askhatal: Provided that any land comprised in, and appurtenant to, tenancies of thika tenants created after the 18th day of January,1982, shall also be deemed to be vested in the State, free from allencumbrances with effect from the date of creation of tenanciesof thika tenants: Provided further that such vesting shall not be deemed to haveaffected in any way the easements, customary rights or otherfacilities enjoyed by thika tenants, bharatias or occupiers of landcoming within the purview of this section: Provided also that nothing contained in this section shall preventthe State Government or the local authority from taking up anydevelopment work on the land appurtenant to tenancies of thikatenants for public purpose.” 7.3.1.Yet further, clause (a) of the above-quoted Section 4 wasamended by the Amendment Act of 2010 and after its amendment, coverage of the land for the purpose of vesting in the State wascomprehensively provided with the broader expression “thika land”.

Thisclause (a) of Section 4 of the Act of 2001 before and after the amendmentcould also be placed in juxtaposition as under: -Clause (a) of Section 4, as originally enacted. Clause (a) of Section 4, as substituted by the Amendment Act of 2010. “(a) lands comprised in, and appurtenant to, tenancies of thika tenants including open areas, roads; and” “(a) thika land;” 7.4. In order to specify the meaning of the expression “thikaland”, clause (15) also came to be inserted to Section 2 of the Act of2001 by way of the said Amendment Act of 2010 in the following terms:-“2. Definitions.-*********(15) “thika land” means any land comprised in and appurtenantto, tenancies of thika tenant irrespective of the fact whether thereNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH434SUPREME COURT REPORTS[2022] 11 S.C.R.is any claim of such tenancy or not and includes open areas androads on such land.”

Kumar Industries, for a period of 20 years commencing from 01.12.1973 and expiring on30.11.1993 at the rent and on the terms and conditions contained in thesaid registered deed of lease.9.3. By the said deed of lease, the lessees were also given theright to raise construction on the subject property and to use and enjoythe same during the tenure of the lease with a condition that on expiry ofthe lease on 30.11.1993, the lessees will have to deliver vacant andpeaceful possession of the said property in the same position as it was atthe time of execution of lease to the lessor, by removing the constructionthereon. Admittedly, the lessees raised some structure over the subjectproperty. The nature of this structure, and its use, have also formed apart of contentions in this appeal. Hence, we shall elaborate on the sameat the appropriate juncture.11 Later on, it came to be known as the premises at No.195, Picnic Garden Road, Kolkata-700 039.

This being the property involved in the present litigation, is hereinreferred to as the ‘subject property’ or ‘the property in question’. ABCDEFGH4359.4. On 18.01.1982, the Act of 1981 came into force andimmediately thereafter, the said Jitendra Nath Ghosh (lessor) filed a writpetition in the High Court under Article 226 of the Constitution of Indiachallenging vires thereof. The said writ petition, being C.R. No. 10449(W) of 1983, was entertained by the High Court and on 30.09.1983, aninterim order was passed therein staying the operation of the impugnedAct of 1981 as well as Rules framed thereunder insofar as the subjectproperty was concerned. Thereafter, from time to time, various orderswere passed therein and ultimately, the aforesaid writ petition, C.R. No.10449 (W) of 1983, was directed to be transferred to the Tribunal forpassing appropriate orders.9.5. In the meantime, the lease granted by the said original owner, Jitendra Nath Ghosh, in favour of M/s.

Kumar Industries, representedby its partners Badri Narayan Kumar and Nemai Chandra Kumar, cameto an end by efflux of time on 30.11.1993.9.6. After the Act of 2001 came into force, the said M/s. KumarIndustries represented by its partners filed an application before thelearned Controller on or about 10.04.2003, being Return No. 67/234, fora declaration that they were thika tenants of the subject property andclaimed that they had deposited rent with interest with the Controller forthe period from 18.01.1982 till 2007. The proceedings on this applicationfiled by the lessees have ultimately led to the present appeal.9.7. Before adverting to the proceedings on the application filedby the lessees, another relevant factual aspect is required to be noticed, which relates to dealing with the property in question by the landlord. After demise of the said Jitendra Nath Ghosh, his heirs, by a deed ofconveyance dated 10.09.2007, transferred the property in question toseven companies including the respondent No.

1 Mani Square Ltd. andalso informed the Assessor, Tollygunge Tax Department, KolkataMunicipal Corporation about such conveyance by their letter dated13.09.2007. Pursuant to this, the said six companies along with therespondent No. 1 applied before the Kolkata Municipal Corporation toget their names mutated as owners of the property in question in the Municipal records. It appears that the High Court of Calcutta, by itsorder dated 19.09.2008 sanctioned the scheme of amalgamation whereby, the said six companies were amalgamated with the respondent No. 1Mani Square Ltd. and consequently, all the assets and properties of thesaid six companies vested in the respondent No. 1. Thereafter, onNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH436SUPREME COURT REPORTS[2022] 11 S.C.R.15.07.2010, the respondent No. 1 applied before the Kolkata MunicipalCorporation in the prescribed form, for mutation of the subject propertyexclusively in its name in the Municipal records.

According to therespondent No. 1, only at that stage, it was informed that the Controllerhad declared the lessees as thika tenants over the property in question. The respondent No. 1 raised objections whereupon, the matter was re-examined by the Controller. This has been the reason that we have twoorders passed by the Controller in this matter, respectively dated27.01.2010 and 01.08.2012.Findings and conclusion of the Controller10. For the questions involved in this matter, it shall be apposite totake note of the proceedings relating to the said application moved bythe lessees and the findings returned by the Controller in necessary details.10.1. After moving of the application aforesaid, spot enquiry wasconducted by an enquiry officer on the subject property; and noticeswere sent to the landlord Jitendra Nath Ghosh and thereafter to AsitGhosh. However, no objection was filed.10.2. The Controller, in his order dated 27.01.2010, held that theapplicants qualified as thika tenants under Section 2(14) of the Act of2001 in respect of 2B, 7K of the land in the subject property.

In holdingso, the Controller perused the rent receipts issued on behalf of the thenlandlords to the returnees as well as the copies of the documents endorsingM/s. Kumar Industries as lessee. The Controller also examined the reportof the enquiry officer, which recommended thika tenancy whilementioning the existence of structures like office rooms, asbestos sheds, storage place etc. along with open space.10.3. Therefore, the learned Controller declared the applicantsas thika tenants. Further to this, the legal heirs of late Badri NarayanKumar filed an application before the Controller for substitution of theirnames as thika tenants and the learned Controller substituted them asthika tenants in place of late Badri Narayan Kumar.10.4. As noticed hereinbefore, on 15.07.2010, the respondentNo. 1, unaware of the abovementioned developments whereby thelearned Controller had declared the appellants as thika tenants, appliedbefore the Kolkata Municipal Corporation for mutation of the subjectproperty exclusively in its name in the Municipal records.

In response tothe said application for mutation, the Kolkata Municipal Corporation, by ABCDEFGH437its communication dated 28.07.2010, asked the respondent No. 1 to submitdocumentary evidence to prove as to how the said seven companiesbecame owners of the property in question. It had been the case of therespondent No. 1 that in order to find out the present position of thesubject property, enquiries were made and searches were conducted; and in that process, it was learnt that the said ex parte order dated27.01.2010 had been passed by the learned Controller declaring theappellants as thika tenants.10.5. Having noticed the said order dated 27.01.2010, therespondent No. 1 filed an application dated 26.08.2010 before the StateGovernment under Section 13 of the said Act of 2001 whereupon, the Joint Secretary to the Government in its Department of Land and LandReforms, requested the learned Controller to dispose of the applicationof the respondent No.

1 after giving an opportunity of being heard to allthe concerned.11. Having heard the parties, the Controller proceeded to dealwith the matter in his impugned order dated 01.08.2012. Thoughpreliminary objections regarding unexplained delay in filing the returnwere taken but, the Controller considered it proper to examine the matteron merits rather than on technical grounds.11.1. The Controller, inter alia, observed that when the leasedeed was signed, the Act of 1949 was in force and in terms of Section2(5) thereof, the following four foundational facts were required to beexamined: -a.Whether the claimant was holding the land under a writtenlease, or under any other person, and was paying the rentperiodically.b.Whether the claimant was holding the land under a leasewhose duration was expressly stated to be not less than 12years.c.Whether the claimant had erected or acquired (by purchaseor gift) any structure on the land for residential, manufacturing or business purpose.d.Whether the claimant was holding such land or was usingor occupying it as khatal.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v.

MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH438SUPREME COURT REPORTS[2022] 11 S.C.R.11.2. The Controller observed that in the present case, the claimantwas not contending that the land was ever occupied as khatal, so point(d) was answered in the negative. Duration of the lease was also morethan 12 years, so point (c) was also negatived. The Controller furtherobserved that as per the assessment register of the Corporation, at alltimes, there were pucca structures on the land; and since the HighCourt had held in Sri Sri Satyanarayan & Ors. v. S.C. Chunder:2001 (3) CHN 641, that for a tenant to be considered a thika tenant, no pucca structures must have been raised. Hence, it was found thatthe lessees were not thika tenants per the Act of 1949. The relevantobservations and findings of the learned Controller could be usefullyextracted from the typed copy of the order, as placed before us as Annexure P2 (at p.

95 of the paper-book): -“3. Admittedly, it is not the case of the applicant parties that thesaid premises was ever used or occupied as a khatal. Accordingly, clause (iv) of the aforesaid ingredients Can be answered in thenegative at the very on set. In my opinion, the test mentioned in Clause (ii) above regarding duration of the lease has to be answeredin the negative as the duration of The Said lease was admittedlyfor more 12 years. Moreover, the 1947-48 and 1982 assessmentregister of the Corporation as disclosed by the parties clearly showthat at all material times there were (and still are) “placesstructures at the said premises within the meaning of a “puccastructures” under the Thika Act. It is also found that there arestructures having pucca foundation, pucca floors and pucca walland as disclosed by the report of the said spot enquiry there existbrick built-walls with R.T./Tin shed in the said premises.

Applyingthe ratio of the decision of the Hon’ble High Court at Calcutta in2001 (3) CHN 641 (Sri Sri Satyanarayan and Ors. vs. S.C.Chunder), for a claimant to be considered a Thika tenant underthe Calcutta Thika Tenancy Act, 1949, the structure constructedby him/it in must not be pucca structure. I therefore find that theapplicant parties did not qualify as thika tenants under the thenexisting Calcutta Thika Tenancy Act, 1949.”(emphasis supplied)11.3.The Controller further observed that the appellants did notqualify as thika tenants under Section 3(8) of the Act of 1981 either, since even after altering the definition, the exclusion of pucca structures ABCDEFGH439remained. It was also found that the lease, based on which the lesseeswere claiming to be thika tenants, had expired on 30.11.1993 and therewas no existing relationship of lessor-lessee between the parties. Hence, on 01.03.2003, when the provisions of the Act of 2001 came into force, the lessees had become at the highest, lessees at sufferance, having nojural relationship with the lessor; and they being essentially trespasserson the land, were not thika tenants under Section 2(14) of the Act of2001.

It was also held that the Act of 1949 and the Act of 1981 were notapplicable to the property in question. The Controller also observed thatthe stay order of the High Court was only limited to restricting theapplication of the Act of 1981 and not the Act of 2001. However, andeven after having held that the applicants were not thika tenants andthere was no relationship of landlord and tenant on the date when the Act of 2001 came into force, the Controller, yet, proceeded to reject theobjections with reference to the fact of erection of pucca brick wallover the property in question while observing that in view of the decisionof Calcutta High Court in the case of Purushottam Das Murarka v.Harendra Krishna Mukherjee: 79 CWN 852, subsequent erectionof brick wall will not take the applicants outside the definition of thikatenant.11.4. The relevant observations and conclusion of the learnedController could also be usefully extracted from the typed copy of theorder, as placed before us as Annexure P2 (at pp.

101-104 of the paper-book): -“13. This authority also finds that that the lease granted by theconcerned landlords to the said lessee, on the strength of whichthe applicant parties are claiming to be thika tenants, expired on30thNovember 1993. After such expiry, there was no relationshipof Lessor-Lessee between be owners of the concerned premisesand the applicant parties. Accordingly, on 1st March, 2003, whenthe provisions of the West Bengal Thika Tenancy (Acquisitionand Regulation) Act, 2001 came into force, the ere-lessees (sic)had become at the highest lessees at sufferance having no juralrelationship with the lessor. The judgment cited by the objectorfor this proposition i.e. AIR 1928 Cal 753 is squarely applicable tothe facts of the case. Going by that judgment, the applicant partiesbecame trespassers or at the highest tenants at sufferance afterexpiry of lease. Therefore, they cannot qualify as thika tenantsNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v.

MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH440SUPREME COURT REPORTS[2022] 11 S.C.R.within the meaning of Section 2(14) of Section 2(14) of the saidAct of 2001 and the said premises cannot qualify thika land withinthe meaning of Section 2(15) of the said Act of 2001. From therelevant records which are now before this Forum, it is abundantlyclear that neither the Calcutta Thika Tenancy Act, 1949 or the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981or any Rules framed thereunder could ever be applicable to thesaid premises. The receipts granted by the landlords describingthe lessees as thika proja as claimed by the applicant, parties, cannot help the applicant parties. It appears that the said receiptsare general receipts, catering both to monthly and thika tenantsand the issuance thereof cannot ipso facto clothe the grantees-applicant parties with the status of thika tenancy.

That apart, thestatus of the applicant parties has to be culled out from theprovisions of law the registered lease deed and not from the privatedescription provided in certain rent receipts. The claim of Thikatenancy of the applicant parties on the basis of this rent bill /receipt is therefore doubtful.14. The objector has referred to a writ petition filed on 30thSeptember, 1983 where an order of stay of operation of CalcuttaThika Tenant (Acquisition & Regulation) Act, 1981 was Made. According to the objector, this order is still subsisting which wouldnegate the application of 2001 Act to the land in question. I rejectthis proposition since the Said order was expressly restricted tothe 1981 Act. Therefore the order cannot be interpreted to applyto the 2001 Act and/or the 2010 Amendment Act,15. Even though I have held that the applicant parties were nottenants nor there was any Landlord-Tenant relationship as on thedate when the 2001 Act came into force and consequently is onthe date of the 2010 Amendment, I am constrained to reject theapplication by the objector n (sic-on?) the last point urged by theapplicant parties that is malting (sic) of pucca brick wall does notexclude the applicant parties from the definition of thika tenant.

Iaccept the proposition laid down in 729 CWN 852 relied on by theapplicant parties to hold that subsequent erection of brick wallwill not take the applicant parties outride (sic) the definition ofthika tenant. Therefore, the applicant parties were indeed thikatenants and the judgment reported in 79 CWN 852 is squarely ABCDEFGH441applicable to their case. On that basis I have no option but toreject the application of the objector.I accordingly hold that Bari Narayan Kumar, since deceasedand Nemai Chandra Kumar were the Thika Tenants in the subjectpremises. After expiry of Badri Narayan Kumar on 06/07/2006, Sint. Jharna Kumar, Sri Debashis Kumar, Smt. Sanchita Paul, SudiptaKumar & Smt. Jyotsna Roy, alongwith Sri Nemai Chandra Kumarare declared as Jt. Thika Tenants. Thus the earlier order of Thika Tenancy Controller dt.27.01.2010, stands. The matter is accordingly disposed of on contest.”(emphasis supplied)11.5.

Hence, objections of the respondent No. 1 were rejected. Itwas held that Badri Narayan Kumar and Nemai Chandra were thikatenants, and after the expiry of Badri Narayan Kumar, his legal heirswere joint thika tenants. Findings of the Tribunal12. The decision aforesaid was challenged before the Tribunal inO.A. No. 2833/12 (LRTT) and which was decided on 18.11.2013. TheTribunal predominantly based its decision on the Act of 2001 and madevarious observations including that the unauthorised erection of puccastructure by a thika tenant without permission of the Controller mightentitle the landlord to bring an action for removal of the unauthorisedstructure or for ejectment but, the nature of tenancy was not changed; that construction of pucca structure was not a bar to claim the status ofthika tenancy; that for the question at hand and to determine if the landvested in the State by virtue of the Act of 2001, simply letting out of theland was to be seen and not the nature of construction.12.1.

The Tribunal, in its elaborate judgment relied upon variousauthorities and referred to various principles but the crux of itsconsideration had been the overriding impact and effect of the Act of2001. As regards the structure in question, the Tribunal held it to be“semi-pucca” but, again observed that all types of structures wereincluded within the meaning of “any structure” in the definition of thikatenant in the Act of 2001, which was a beneficial legislation.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH442SUPREME COURT REPORTS[2022] 11 S.C.R.12.2.Some of the observations and findings of the Tribunal couldbe usefully extracted from the typed copy of its judgment placed beforeus as Annexure P5 (at pp. 200-207 of the paper-book), which wouldread as under: -“16.3 By such amendment confusion and ambiguity to interpretthe words “any structure” has been totally dispelled.

A particularThika Land may now vest in the state with effect from 18.01.1982in a suo-motu proceeding, even if there is no claimant as on01.03.2003. Any suo-motu proceeding initiated prior to the instantO.A. the impugned proceeding was initiated on the basis ofquestion raised by the applicant before the Government in theyear 2010 and challenging thereby the decision dated 27.01.2010of the Thika Controller. We cannot interpret the law otherwise sothat the leasing out of land becomes operative again after completeabolition of Zamindari System by the W.B.E.A. Act, 1953.16.4 If it is presumed that the respondents were not a Thika Tenantin terms of the provisions of the Act, 1981, then the impugnedproceeding initiated by the Controller recognizing the occupierson the land taken on lease prior to 18.01.1982 is a valid proceedingas the respondents were in possession on 18.01.1982 and againon 01.03.2003.

The respondents became Thika Tenant under the Act, 2001 and the suit land vested in the state with effect from18.01.1982.*********16.5 It is an admitted fact that the structure constructed on thesuit land by the respondents was with tin shed. The tin shedstructure was made with authority given by the landlord and hencethe same was not unauthorized. The nature of the structure isundoubtedly semi-pucca. The tin-shed structure cannot be a puccastructure within the meaning of pucca structure in the Act, 1981after 1993 Amendment as all the materials are not of durablenature. Again, all types of structures are included within themeaning of ‘any structure’ in the definition of Thika Tenant in the Act, 2001.*********17… The Act 2001 is a beneficent statute having a chequeredhistory making gradual headways to grant benefit to the occupier ABCDEFGH443on lands belonging to others and to sub-serve common good.

Hence, there is no doubt, whatsoever, that the substituted words“any structure including pucca structure” operate with effect from18.01.1982, the date given retrospective effect in the Act, 2001before amendment Act, 2010 was brought in the Statute.*********18.1 …It might happen that a particular occupier could not bedeclared as Thika Tenant in view of the provisions of the Act,1981 & the Act, 1949. But in view of the provisions of Sec. 3inserted in the Act, 2001 conferring over-riding effect to theprovisions of the Act, fresh declaration/ determination is not a barin the perspective of this radically amended Act as becauselegislature enacted law with retrospective effect and as becauseobservations from a judgment have to be considered in light of thequestions which were before the Court. But there was no scopeto place before the Court the new issues for decisions in the pastas the questions / issues were not existing at the time of pastdecisions prior to the enactment of the Act, 2001.

Because ofsubsequent legislation in 2001, there has been effective changesof the pre-existing statutory provisions with retrospective effect. Hence, it is well settled that the previous judgement may bereviewed.”(emphasis supplied)12.3. Thus, the Tribunal proceeded on the finding that even if theoccupier could not be declared to be a thika tenant under the Act of1949 or the Act of 1981, the decision could be reviewed because of thechange in the pre-existing statutory provisions with retrospective effect. As regards the matter of filing of return, the Tribunal observed that suchfiling was meaningless because its purpose was for taking consequentialaction and it was only apprising the Controller of the particular land but, was not linked with vesting, which occurred due to the operation of law. The Tribunal, therefore, found no reason to interfere with the findings ofthe Controller and proceeded to dismiss the appeal.13.

Aggrieved by the decisions aforesaid, the respondent No. 1preferred a writ petition in the High Court, being W.P.L.R.T. No. 325 of2013, which was considered and allowed by the High Court by itsimpugned judgment and order dated 10.03.2014 while holding that thepresent appellants did not qualify as thika tenants.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH444SUPREME COURT REPORTS[2022] 11 S.C.R.Findings of the Calcutta High Court14. Having regard to the submissions made and the questionsinvolved in this matter, we may also take note of the reasoning of the High Court in necessary details.14.1. The High Court referred to the relevant background aspectsand findings of the Controller and the Tribunal and then, particularlynoticed the admitted position that the lessees had raised pucca structurehaving pucca foundation, pucca floor and pucca wall with partly tinand partly tile shed on the roof and used the premises, including thestructure constructed thereat for running their factory activities.

TheHigh Court also took note of the facts relating to the enforcement of the Act of 1981 and challenge thereto by the landlord by way of writ petition, wherein an interim order was passed, staying operation of the saidenactment qua the property in question. The High Court also specificallytook note of the fact that the lessees never claimed themselves as thikatenants before filing the return, which they filed on 10.04.2003, onlyafter the advent of the Act of 2001. The High Court, thereafter, proceededto deal with the principal questions involved in the matter with referenceto the said three thika tenancy enactments while pointing out that thetenancy in favour of the predecessor-in-interest of the present appellantswas created when the Act of 1949 was in operation; was subsistingwhen the Act of 1981 came into operation; and the present appellantswere claiming thika tenancy rights under the Act of 2001.14.2.

Proceeding with the definition of “thika tenant”, as containedin Section 2(5) of the Act of 1949, the High Court observed that thelease having been granted in favour of the lessees for a period of morethan 12 years i.e., for 20 years and the lessees having constructed puccastructure having pucca foundation, pucca floor and pucca walls withtile and tin shed on the roof in contradistinction to any kutcha or temporarystructure as contemplated under the said Act, the said lessees cannot beregarded as thika tenants within the ambit of Section 2(5) of the Act of1949.14.3. Furthermore, noting that the expression “any structure” in Section 2(5) of the Act of 1949 had been interpreted to mean onlytemporary or kutcha structure and not permanent or pucca structure in Jatadhari Daw & Grandsons v. Smt Radha Debi & Anr.:1986 (1)CHN 21, which was also approved in the Full Bench decision of the High Court in the case of Lakshmimoni Das and Ors. v.

State of West ABCDEFGH445Bengal and Ors.: AIR 1987 Cal 326, the Court cleared the cloudsupon the question as to whether the present case qualified the requirementof “any structure” by concluding in the negative. The High Court, interalia, observed and held as under (at p. 14 of the impugned order): -

Considering the nature of the construction which was mademainly of bricks as mentioned above we cannot hold that thestructure which was constructed by the then lessee was eithertemporary or Kutcha structure. As such we can safely hold thatthis part of the requirement of Section 2(5) of the said Act, wasnot fulfilled in the instant case.

(emphasis supplied)14.4. On the point of applicability of Section 10A inserted to themain Act of 1949 by way of amendment in the year 1969 which gaveright to thika tenants to erect pucca structure for residential purposewith previous permission of the Controller, the Court noted that since thepresent appellants did not qualify the requirements of being a thika tenantunder Section 2(5), they had no right to raise a pucca structure under Section 10A of the said Act.

Furthermore, the present appellants neverclaimed that they raised pucca structure with the permission of the Controller. Therefore, it was concluded that they cannot be declared asthika tenants under the Act of 1949.14.5. Moving on to the point as to whether the respondents wouldqualify as thika tenants under Section 3(8) of the Act of 1981, the Courtexamined the relevant provisions and held that the requirements underthis Section 3(8) were exactly the same as were under Section 2(5) ofthe Act of 1949 except the exclusion parts; and thus, by deleting and/oromitting the said exclusion parts of the Act of 1949 from the definition ofthika tenant under Section 3(8) of the Act of 1981, the lessees under alease even for more than 12 years were also brought under the purviewof thika tenancy but, the other essential conditions remained the samenamely, those of the tenant’s liability to pay rent under a lease orotherwise as also the requirement that such tenant had erected or acquiredby purchase or gift any structure on such land either for residential ormanufacturing or business purpose.14.6.

The High Court took note of the fact that the Act of 1981came into operation with effect from 18.01.1982 and then, found that asper the admitted facts of the case, while the requirement of liability toNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH446SUPREME COURT REPORTS[2022] 11 S.C.R.pay rent for the demised land continued until 30.11.1993 as per theirlease deed but, the lessees failed to fulfil the other half of requirement,i.e., of erecting or acquiring a kutcha or temporary structure. The HighCourt held that the pucca structure erected on the demised land by thelessees cannot be considered within the ambit of “any structure”. TheHigh Court, inter alia, held as under (at pp.17-18 of the impugned order):-“Since the said tenancy continued till 30th November, 1993it cannot be disputed that the said tenant had liability to pay rentfor the demised land to their landlord till 30th November, 1993.Thus, this part of the requirement under Section 3 (8) of the saidAct is fulfilled in the instant case.

However, the other requirementi.e., erection and/or acquisition by purchase or gift, any structureon such land by the tenant for residential, manufacturing orbusiness purpose, is not satisfied in the instant case as admittedlythe said lessee did not raise any kutcha structure and/or temporarystructure on the demised land. We have already indicated abovethat the expression “structure” used in Section 3(8) of the saidAct should be construed as “kutcha” structure and/or temporarystructure in contra-distinction to the permanent or “pucca” structureas was held by the Division Bench of this Hon’ble Court in thecase of Jatadhari Daw & Grandsons -Vs- Smt. Radha Devi &Anr. (Supra) which was subsequently affirmed by the Full Benchof this Hon’ble Court in the case of Lakshmimoni Das -Vs- Stateof West Bengal (Supra).”(emphasis supplied)14.7.The High Court, thereafter, took up for consideration asomewhat ticklish issue pertaining to this case, being related with theeffect of retrospective amendment of Section 5 of the Act of 2001.After an elaborate reference to the unamended provisions as also theamended provisions which were given retrospective effect from the verydate of commencement of the original enactment, the High Court alsotook note of all the salient features of the pronouncement of the FullBench in the case of Lakshmimoni Das (supra) and then, analysed theposition of law in the following words (at pp.36-40 of the impugnedorder): -“Thus we find that the Full Bench of this Hon’ble Court held inno uncertain term in the said Lakshmimoni Das’s case (Supra) ABCDEFGH447that no other land save and except the thika tenancy land andkhatal land, could be vested under the original provision of Section5 of the Act of 1981.

Now let us consider the effect of the amendedprovision of Section 5 of the Act of 1981 which the Special Benchhad no occasion to consider as the said amended provision wasintroduced in the Act of 1981 after the judgment was delivered bythe Special Bench in Lakshmimoni Das’s case (Supra).On plain reading of the amended provision of Section 5 of thesaid Act, it appears to us that apart from thika tenancy propertyand/or the khatal land, some other land which was neither thikatenancy land nor khatal land, was sought to be vested under Section5(c) of the said Act. We feel that deep analysis of this provision is necessary to findout the real intention of the legislature in introducing the saidamendment. Did the State Legislature really intend to vest land ofany description which was let out to tenant either under a writtenlease or otherwise? Had it really been so, then while enacting anew legislation on the very same subject in 2001, the StateLegislature would not have omitted the provision regarding vestingof other land which was there in the Act of 1981 from the Act of2001.If we compare the original provision of Section 5 of the Act of1981 with the amended provision of Section 5, then it appears tous that the provision relating to vesting of thika land and otherland either occupied and/or used as khatal which was there in theoriginal provision of Section 5 was retained in the amendedprovision of Section 5 of the said Act.

What more was introducedin the amended provision was vesting of Bustee land situated inthe khas land of the landlord, land in slum areas and other landwhich was neither thika tenancy land nor Bustee land, nor land inslum area nor land occupied and/or used as khatal. Then whatwas actually intended by introducing the provision of vesting ofother land under Section 5 (c) of the amended provision? Otherland was defined in Section 3 (5A) which included vacant land ortank. Tenant of other land was defined in Section 3(7B) of theamended provision which says that tenant of other land meansany person who occupies other land under another person, whetherunder a written lease or otherwise, and is or but for a specialNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH448SUPREME COURT REPORTS[2022] 11 S.C.R.contract would be liable to pay rent at a monthly or periodical ratefor occupation of such other lands, and includes the successor-in-interest of such person.

Thus, if Section 5 (c) is read conjointlywith Section 3(5A) and Section 3(7B) then it leads us to hold thatwhenever any land including vacant land or tank is let out to atenant by the landlord even for a day or a month at a daily ormonthly rate, the landlord’s interest in such land will vest in the State under Section 5 (c) of the said Act by overriding the provisionof the Transfer of Property Act (Central Law) governing therelationship of landlord and tenant. If we hold as such , it will leadto absurdity. Probably the State Legislature, after considering theabsurdity and/or impossibility of implementation of the amendedprovision of the Act of 1981, dropped the idea of vesting of otherland and accordingly omitted the said provisions while legislatingon the same subject in 2001. Such intention of the legislature willbe clear, if we consider the State Legislature’s choice of the dateof enforcement of 2001 Act.

In fact two contradictory provisionscannot co-exist and operate simultaneously in the same field. Whenthe subsequent legislation conveys a different intention relating tothe laws of vesting than that of the idea of vesting introduced inthe earlier Act, it goes without saying that the earlier Act wasrepealed. Having regard to the fact that the Act of 2001 wasgiven effect from the very same date on which the Act of 1981was enforced, we have no hesitation to hold that State Legislaturepractically abandoned its idea of vesting of any other land apartfrom thika tenancy land and khatal land as on 18.01.1982 and thisconclusion is drawn by us as we find that the Act of 2001 wasgiven retrospective effect from the very same date when the Actof 1981 was enforced. Again if the provisions of the Act of 2001is considered, then it goes without saying that the provision relatingto vesting of landlord’s interest in the thika tenancy and khatalland was made in the said statute in conformity with the Full BenchDecision of this Court in Lakshmimoni Das’s case (Supra).Omission of the provision relating to vesting of other land wasalso made in conformity with the said decision of the Full BenchDecision in Lakshmimoni Das’s case (Supra).

As such, we haveno hesitation to hold that idea of vesting the landlord’s interest inthe other land in the State under the Act of 1981 was abandonedby the State. However, in view of the savings clause provided in ABCDEFGH449the Act of 2001, the vesting which had already taken place underthe Act of 1981 in respect of thika tenancy land and khatal landwas saved. That apart having regard to the fact that the operationof the Act of 1981 in respect of the petitioners’ property wasstayed by this court, the landlord’s interest in the said premisescould not have vested under 1981 Act. Then again the privaterespondent also did neither submit any return under 1981 Actclaiming their tenancy under the State nor did they ever claim thelandlord’s interest vested under the said Act.”(emphasis supplied)14.7.1. In view of the above, the High Court held that the landlord’sinterest in the subject property never vested in the State under the Actof 1981.14.8.

Moving on to the Act of 2001, the High Court held that eventhereunder, the landlord’s interest never vested in the State. In this regard, the Court examined the provision of Section 2(14) of the Act of 2001,again, as originally enacted and as amended by the Act of 2010 andthen, held as under (at pp. 41-42 of the impugned order): -“The definition of thika tenant under Section 2 (14) of 2001 Act as mentioned above was almost identical with the definitionof thika tenant as mentioned in Section 3(8) of 1981 Act exceptthe exclusion part regarding structure which stood forfeited to the State under Sub-Section 2(6) of the said Act. The definition ofthika tenant in Section 2(14) of Act of 2001 was amended by the Amendment Act of 2010 and thereby the words “by purchase orgift any structure on such land” was substituted by the words “bypurchase or gift any structure including pucca structure if any onsuch land”.

Thus the expression “pucca structure” was includedin the definition clause of Section 2 (14) of the said Act for thefirst time by the Amendment Act of 2010 and effect of suchamendment was given prospectively with effect from 1stNovember, 2010. The effect of the amendment was not givenfrom the date when the 2001 Act came into operation from 18thJuly, 1981. Thus, existence of pucca structure on the said land ason 1st November, 2010 will itself be of no help to the privaterespondent inasmuch as on 1st November, 2010 there was nosubsisting lease and/or contract under which original lessees wereNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH450SUPREME COURT REPORTS[2022] 11 S.C.R.liable to pay rent to their landlords in respect of the land comprisingin the said premises. The lease dated 15th December, 1973 expiredby efflux of time on 30th September, 1993.

After expiry of thesaid lease, the lessees became trespassers and/or at best theymay be regarded as tenant by sufferance who had no liability topay rent to their landlord either under the said lease which stoodexpired in 1993 or under any other law. Thus, the first part of therequirement of Section 2(14) of the said Act is not fulfilled in theinstant case. As such the land which was comprising in the saidtenancy of the predecessor-in-interest of the private respondentcannot vest with the State under Section 4 of the said Act.”(emphasis supplied)14.

A review petition bearing No. 1483 of 2015 was filed in thematter seeking review of the judgment aforesaid, which was consideredand allowed by us on 04.03.2021. After noticing the provisions containedin Section 2(5) and particularly the excepted category of the lease beyond12 years, it was observed that the judgment under review suffered froman error apparent on the face of the record because the crucial fact, thatthe period of lease in the present case was of 20 years, was not eventaken into consideration. The question as to whether the appellants wereentitled to succeed on the basis of the provisions of the Act of 1981 was, of course, left open because the same had not been considered in thejudgment under review. Therefore, we allowed the review petition andNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH452SUPREME COURT REPORTS[2022] 11 S.C.R.restored the appeal for reconsideration while observing, inter alia, asunder: -“One of the excepted categories in Section 2(5) of the 1949 Act postulates that the definition will have no application to leasebeyond 12 years period.

On this count alone, the finding of factrecorded by this Court in the judgment under review and thedeclaration given in favour of respondent No. 1 on that basis cannotstand, being a manifest error apparent on the face of record andalso contrary to the express statutory provision. The question whether the appellants in Civil Appeal couldotherwise succeed on the other arguments, including that theyhad protection under the provisions of The Calcutta Thika andother Tenancies and Lands (Acquisition and Regulation) Act, 1981(for short, ‘the 1981 Act’), of being the Thika Tenant(s) and thatthe pucca structure erected by them was also protected/coveredunder that provision, is a matter which needs to be examined inthe revived civil appeal. Indeed, the judgment under review refers to the provisionSection 3(8) of the 1981 Act, but there is no analysis in thejudgment as to how the appellant (Respondent No.1 herein) wouldacquire the status of thika tenant as such.

It is only then theissue of vesting under the 1981 Act can be taken forward. Counsel for the respondent(s) was at pains to persuade us thateven if the judgment under consideration is reviewed, theconclusion in favour of respondent No. 1 would remain the same. Again, that is a matter to be considered in the civil appeal, consequent to the recall of judgment dated 24th February, 2015.All contentions available to both sides in the revived appeal canbe considered on its own merits. We order accordingly. In view of the restoration of appeal, all interim order(s) passedin the appeal stand revived. The review petition is disposed of accordingly” Rival Contentions17. The foregoing had been the summary of the entire backgroundin which this appeal was heard at length by us. We may now usefullysummarise the contentions urged on behalf of the contesting parties. ABCDEFGH453The Appellants18. Learned senior counsel for the appellants has assailed theorder impugned with a variety of submissions concerning operation andeffect of the thika tenancy enactments.18.1.

It has been submitted by the learned senior counsel that theterm “any structure”, as used in the Act of 1949, includes both kutchaand pucca structures. The learned counsel has relied upon the decisionof this Court in Chief Inspector of Mines and Anr. v. Lala KaramChand Thapar and Ors.: (1962) 1 SCR 9 to contend that “any” asreferred to in the term “any structure” in Section 2(5) of the Act of1949, means “all”. It has been submitted that words/phrases in a statueought to be construed as per their plain language; and the decisions inOm Prakash Gupta v. DIG Vijendrapal Gupta: (1982) 2 SCC 61,Bharat Aluminium Company v. Kaiser Aluminium TechnicalServices Inc.: (2012) 9 SCC 552, Union of India & Anr. v. HansoliDevi & Ors.: (2002) 7 SCC 273 and Vijay Narayan Thatte and Ors.v. State of Maharashtra and Ors.: (2009) 9 SCC 92 have been reliedupon.18.2. It has also been contended that the case of MonmathaNath Mukherjee v.

Smt. Banarasi and Ors.: 63 CWN 824 hadwrongly been decided, and that there exists no other authority, apartfrom this case for the proposition that the term “any structure” in Section2(5) of the Act of 1949 is only confined to kutcha structure. It hasfurther been submitted that Jatadhari Daw & Grandsons (supra)merely relied on Monmatha Nath Mukherjee (supra), and in fact, Jatadhari Daw & Grandsons has been set aside by the Supreme Courtby its order dated 27.10.2004. It has also been contended that thejudgement in Kshiroda Moyee Sen and Ors. v. Ashutosh Roy and Ors.: 63 CWN 565 is being misread, since it was not held that “anystructure’” in Section 2(5) meant kutcha structure, but was actuallyheld to the contrary; and that the Act of 1949 does not restrict thestructures to kutcha structures and that the nature of these structureswould depend upon the terms of the contract between the parties. It hasalso been submitted that it was held by the High Court in KshirodaMoyee Sen (supra) that a thika tenant was not entitled to put up puccastructures on the land merely because he had taken the land on thikatenancy but, while there was no right to put up pucca structures, thelandlord was only entitled to seek a decree of injunction.

The learnedNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH454SUPREME COURT REPORTS[2022] 11 S.C.R.counsel has also referred to Jnan Ranjan Sen Gupta and Ors. v. ArunKumar Bose: (1975) 2 SCC 526, wherein it was held that the Act of1949 was a beneficial legislation, and should be liberally interpreted infavour of the tenants, and that if two interpretations were possible, theone in favour of the tenant should be upheld.18.3. The learned senior counsel has also submitted that thereliance on Section 108(p) of the Transfer of Property Act, 188212-13 tointerpret the Act of 1949 is erroneous, since a special statute like the Actof 1949 overrides a general statute like the Transfer of Property Act; and Section 108(p) of the Transfer of Property Act does not lay downthat permanent structures cannot be constructed by a tenant.18.4. It has been contended by the learned senior counsel that theinsertion of Section 10A by the Amendment Act of 1969 had been onlyto the effect that if otherwise the thika tenant was not permitted to buildpucca structures under the terms of the lease with the landlord, he couldhave done so with permission of the Controller.

Section 10A shows intentof the legislature to include lands in which the tenant has erected oracquired permanent structures.18.5. As regards the interpretation of thika tenant and the phrase“any structure” under the Act of 1981, the learned senior counsel for theappellants has argued that they are not being correctly interpreted. Theconcept of thika tenancy under the Act of 1981 was much wider thanthe one under the Act of 1949, wherein the temporariness of the conceptof thika tenancy was removed. The term “other lands” was not in placeat the inception, and was inserted by way of the Amendment Act of1993. The learned counsel would submit that the legal position on thenature of construction is clearer after the Amendment Act of 1993, sinceall thika tenancies, as defined under Section 3(8) of the Act of 1981,stood vested with the State with effect from 18.01.1982; and the conceptof “other lands” was introduced by virtue of Section 5(c).18.6.

The learned counsel has further submitted that the propertyin question continued to be under thika tenancy after the Act of 2001,since the acquisition was carried out retrospectively; and it was expressly12 Hereinafter also referred to as ‘the Transfer of Property Act’.13 Clause (p) of Section 108 of the Transfer of Property Act dealing with rights andliabilities of the lessee enjoins upon the lessee that, -“(p) he must not, without the lessor’s consent, erect on the propertyany permanent structure, except for agricultural purposes;” ABCDEFGH455stated in Section 4 that it would take effect from 18.01.1982. Furthermore, the learned counsel has submitted that the amendment to the definitionof thika tenancy by way of the Amendment Act of 2010 was onlyclarificatory in nature, and merely confirmed what was always the position, that the nature of structures could either be kutcha or pucca.18.7.

In the other limb of submissions, the learned counsel hassubmitted that the findings of fact by the Tribunal were set aside by the High Court in its writ jurisdiction without any cogent reason. The Tribunalhad categorically held that the structures on the land were kutcha innature, but the High Court held that it was admitted that the structureswere pucca in nature, without any discussion on this issue. The State19. The learned counsel for the respondent-State has supportedthe submissions made on behalf of the appellants.19.1. The learned counsel for the respondent-State has submittedthat the order of the Controller is within the four corners of the law andis required to be upheld. The learned counsel would submit that thedefinition of thika tenant under Section 2(5) of the Act of 1949 wassubstituted by the West Bengal Act VI of 1953, which indicates that, from its inception, the definition of thika tenant clearly talked about“any structure”; and there was no scope to read only kutcha structureinto the definition.

It has been submitted that when words are clear andthere is no ambiguity, there is no reason to resort to any external aid forinterpretation. The learned counsel would also submit that after insertionof Section 10A to the Act of 1949, thika tenants could erect puccastructures on the land with the permission of the Controller and hence, the Act of 1949 did not contemplate a bar on erection of pucca structuresby the thika tenant.19.2. As regards the definition of “any structure” under the Actof 1981, it has been submitted by the learned counsel that a provision for“any structure” had been made in the Act of 1981, but the persons whowere excluded from the definition under the Act of 1949 were broughtwithin the ambit of the Act of 1981; and lands which were earlier excludedfrom the definition of thika tenancy, were also brought within the ambitin the Act of 1981. The learned counsel has referred to the decision ofthis Court in Ramdas Bansal (Dead) Through LR v.

Kharag SinghBaid & Ors.: (2012) 2 SCC 548.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH456SUPREME COURT REPORTS[2022] 11 S.C.R.19.3. It has also been submitted that Section 6(4) of the Act of1981 permitted a thika tenant to construct pucca structures inaccordance with the building plans sanctioned under the CalcuttaMunicipal Corporation Act, 1980 or the Howrah Municipal CorporationAct, 1980 but, the requirement of prior permission from the Controllerfor erection of pucca structures had not been provided for under the Act of 1981.19.4. It has been contended by the learned counsel for the Statethat the High Court, in Monmatha Nath Mukherjee (supra), erred inconcluding that the Act of 1949 did not include pucca structures, sinceno external aid was required for the purpose of interpreting the definitionof thika tenant, and the Courts could not have gone behind the languageof the statute, or add or subtract from it.

It has been submitted that the Courts cannot rewrite, recast or reframe the legislation; and reliance isplaced on the decisions of this Court in Hardeep Singh v. State of Punjab & Ors.: (2014) 3 SCC 92 and Afcons Infrastructure Ltd. &Anr. v. Cherian Varkey Construction Company Private Limited &Ors.: (2010) 8 SCC 24.19.5. As regards the effect of repeal and re-enactment of Acts, ithas been submitted by the learned counsel for the respondent-State thatwhen an Act is repealed, it is treated as revoked or abrogated andremoved from the statute book. It has been argued with reference to thedecision in Gajraj Singh & Ors. v. State Transport Appellate Tribunal& Ors.: (1997) 1 SCC 650 that whenever an Act is repealed, it mustbe considered as if it had never existed, except when pertaining to pastand closed transactions. The learned counsel would submit that perSection 21 of the Act of 1981, the Act of 1949 was completely repealedwithout a savings clause, and the Act of 1981 was given a specialoverriding effect by virtue of Section 4.

The Act of 2001 further repealedthe Act of 1981, and came into force with effect from 01.03.2003, whilebeing retrospectively applied with effect from 18.01.1982. Since anoverriding effect was provided while repealing the Act of 1949, anydetermination under the Act of 1949 required review in light of theprovisions of the repealing Act, being the Act of 1981. By placing relianceon such overriding effect, it has been contended that the appellants becamethika tenants by virtue of the operation of the Act of 1981, with thesubject property having vested with the State from the date ofcommencement of the Act of 1981. It has also been contended that the ABCDEFGH457respondent Nos. 1 and 2, who have stepped into the shoes of landlord, have no right, title or interest in the property in question and hence, theimpugned judgment is not sustainable in the eyes of the law.19.6. It has additionally been submitted by the learned counselthat under the Act of 1949, the two main factors to determine the claimof thika tenancy were the nature of the structure on the land and thelength of the lease, but these exclusions were not present in the Act of2001, which was also given an overriding effect in terms of Section 3read with Sections 2(14) and 2(15) thereof.

Hence, it has been submittedby the learned counsel that disqualification under the Act of 1949 couldnot be used as a shield against the application of the provisions of the Acts of 1981 and 2001, with the Act of 2001 being a complete andindependent code in itself.19.7. It has also been contended that a decision taken on the basisof a previous enactment is liable to be changed on the basis of existingenactment, and the status of thika tenancy is required to be examinedafresh in light of the Act of 2001, irrespective of the status a tenantmight have enjoyed under the previous enactments. Reliance is placedon the decision of the High Court in the case of Ram Krishna Shaw v.Tachmani Devi: (1994) 1 CAL 394. Hence, it has been the stand oflearned counsel for the respondent-State that the registered deed oflease dated 15.12.1973 for a period of 20 years would not be a bar inconsidering the claim of thika tenancy.

The respondent No. 120. Learned senior counsel for the respondent No. 1 has counteredthe submissions aforesaid and has supported the order impugned, againwith a variety of propositions.20.1. In the first limb of submissions, the learned senior counselhas contended that the appellants do not qualify as thika tenants underthe Act of 1949 and even under the Act of 1981.20.2. As regards the status of the tenancy of the appellants underthe Act of 1949, it has been submitted that leases beyond 12 years wereexcluded, and the term “any structure” has been interpreted to meankutcha structure in a series of decisions by the High Court of Calcutta. The term “thika” means “temporary” or “non-permanent”, and hence, only deals with temporary tenancies.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH458SUPREME COURT REPORTS[2022] 11 S.C.R.20.3. The learned senior counsel for the respondent No.

1 hasreferred to the decision in Lakshmimoni Das (supra), where it washeld that within the scope and ambit of Act of 1981, only the landscomprised in thika tenancies within meaning of Act of 1949, comprisingkutcha structure, or pucca structure constructed for residential purposewith permission of Controller, or khatal lands held under lease vested inthe State; and save as aforesaid, no other land and structures vestedunder the said enactment. The case of Sri Sri Satyanarayan (supra)has been relied upon, whereit was observed that thika in Bengali meanttemporary or partial. Reliance has also been placed on the decision inthe case of Kshiroda Moyee Sen (supra), where it was held that atenant was not entitled to put any permanent structure on the land underthe Transfer of Property Act or the Thika Tenancy Act. Furthermore, by placing reliance on Monmatha Nath Mukherjee (supra), it iscontended that nothing in the Act of 1949 entitled a tenant to erect apucca structure.

It has also been pointed out that the decision in Monmatha Nath Mukherjee was affirmed by the Division Bench ofthe High Court in Annapurna Seal v. Tincowrie Dutt and Anr.: 66CWN 338, wherein the High Court held that a pucca building could notcome under the purview of the Act of 1949, since it dealt with conceptsof temporary natures like the “thika tenant”, a “bharatia” and“structures”. It has also been submitted that the Statement of Objectsand Reasons of the Act of 1949 makes it clear that the Act was broughtinto force to protect tenants having kutcha or temporary structures fromeviction and against charging of exorbitant amounts of rent by the landlord. The learned counsel has also submitted that the term “pucca structure” was only added for the first time in the Act of 2001.20.4. As regards the Act of 1981, the learned senior counsel hasargued that it was not the intention of the legislature that land in allleases of vacant land of any tenure upon which tenant constructed astructure would vest in State.

By placing reliance on the Statement of Objects and Reasons, it is submitted that the Act of 1981 is anappropriatory and confiscatory enactment, which contemplatedacquisition and had not been for creation of thika tenancies. Furthermore, it has been contended that even if one became a thika tenant under the State, he would have to obtain permission to construct pucca structurein accordance with building plan sanctioned under the Calcutta MunicipalCorporation Act, 1980. Support has also been sought from the affirmationof the decision in Monmatha Nath Mukherjee (supra) by the Division ABCDEFGH459Bench in Jatadhari Daw & Grandsons (supra).It has been submittedby the learned counsel that some questions were referred to the FullBench of the High Court of Calcutta in Lakshmimoni Das (supra),where it was held that per Section 5 of the Act of 1981, only those landswhich had kutcha structures, or pucca structures constructed withpermission of the Controller under the Act of 1949, and khatal landsheld under a lease, would vest with the State under the Act of 1981.20.5.

The learned counsel for the respondent No. 1 has submittedthat the decisions aforementioned have been consistently followed bythe High Court, even as recently as 2016; and a view which has beenconsistently adopted by the High Court for more than 60 years, deservesnot to be upset at the instance of the appellants. Reliance is placed onthe decision of this Court in Shanker Raju v. Union of India: (2011) 2SCC 132.20.6. The learned senior counsel has further submitted that repealof the Act of 1949 and simultaneous re-enactment of the law, being the Act of 1981, is an affirmation of the old law in the Act of 1949. Therefore, the Act of 1981 is required to be read in conjunction with the Act of1949, as the legislature was aware about the consistent judicialinterpretation of the term “any structure”, but still did not change it. Thisshows the intent of the legislature to keep the meaning of the term “anystructure” in line with the judicial pronouncements and the Act of 1949.This definition was only amended prospectively under the Act of 2001by way of the Amendment Act of 2010.

Reliance is placed on variousdecisions of this Court including those in Bengal Immunity CompanyLimited v. State of Bihar and Ors.: (1955) 2 SCR 603 and GammonIndia Ltd. v. Special Chief Secretary & Ors.: (2006) 3 SCC 354.20.7. As regards the Amendment Act of 2010, inserting puccastructures in the term “any structure”, the learned counsel has submittedthat this amendment is prospective in nature, and not clarificatory, sincethe amendment was made applicable from 01.11.2010, prospectively. The intention could be ascertained from the fact that when the Act of1981 was repealed by the Act of 2001, some provisions of the Act of2001 were applied retrospectively with effect from the date ofcommencement of the Act of 1981, i.e., 18.01.1982, while the AmendmentAct of 2010 was applied prospectively.20.8. It has also been submitted by the learned counsel for therespondent No. 1 that the appellants did not pay rent to the landlordsNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v.

MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH460SUPREME COURT REPORTS[2022] 11 S.C.R.after expiry of the lease on 30.11.1993 and as such, their occupationafter the expiry of the lease is tenancy at sufferance; and a tenant atsufferance is liable to pay mesne profits/damages, and not rent. Therefore, after 30.11.1993, the appellants could not be thika tenants, since theywere not liable to pay rent. The learned counsel has referred to variousdecisions in this regard including that in Nand Ram (Dead) ThroughLegal Representatives v. Jagdish Prasad (Dead) Through LegalRepresentatives: (2020) 9 SCC 393.20.9. The learned senior counsel has also submitted that theoperation of the Act of 1981 as regards the property in question wasstayed by the High Court of Calcutta by the order dated 30.09.1983 inWP Civil Rule No. 10449(W) of 1983. Therefore, the appellants couldnot be thika tenants under the Act of 1981 and the said land could notvest with the State; and significantly, the appellants filed Return in FormA on 10.04.2003 under the Act of 1981 when the said Act had beenrepealed and additionally, the return filed was much after the expiry oflease.20.10.In the last limb of arguments, the learned senior counsel forthe respondent No.

1 has submitted that the findings of the High Courtof Calcutta are correct; that in rejoinder submissions, learned seniorcounsel for the appellants had conceded that it was not appellants’ casethat any new thika tenancy was created under the Act of 1981 andsince the appellants were admittedly not thika tenants under the Act of1949, this part of submissions on behalf of the appellants clarifies thatthey are not thika tenants, and hence, the judgement of High Courtdeserves to be upheld.21. We have heard the learned counsel for the parties at sufficientlength and have examined the record of the case with reference to thelaw applicable. Analysis22. Having given anxious consideration to the entire matter, weare satisfied that the High Court has taken an eminently just and properview of the matter in setting aside the untenable orders passed by the Controller and the Tribunal; and no case for interference is made out.22.1 A long length of argumentshas been advanced before usby the contesting parties, particularly in view of the peculiaritiesassociated with the three enactments and their amendments from time ABCDEFGH461to time.

Having regard to the subject matter, it appears appropriate onlyto deal with the material propositions and factors while analysing thesubmissions. This analysis could be broadly sub-divided into four partsnamely, the nature of the structure in question; the statutory scheme andimport of three enactments with their amendments; the relevant decisions; and other miscellaneous but relevant factors. The Structure in question23. We may, in the first place, clear one of the unnecessarysubmissions made on behalf of the appellants as if the High Court hasunjustifiably stated that the structures in question were admittedly puccain nature. This submission is unnecessary as also incorrect. The HighCourt has made the relevant observations about the nature of structureand has returned its findings in that regard only after propercomprehension of all the relevant factual aspects.23.1. The fact that the structure in question was pucca in naturecould not have been put to any issue by the appellants.

As noticed, thelearned Controller, in paragraph 3 of his findings in the order dated01.08.2012, categorically recorded the facts that even from theassessment register of the Corporation, it was clearly shown that at allmaterial times, there were placed such structures at the subject propertywhich fell within the meaning of “pucca structures”. The Controlleralso found with reference to the enquiry report that there were structureshaving pucca foundation, pucca floors and pucca walls as also brickwalls with tin shed. The Tribunal, in its findings, made rather strangeobservations that the structure in question was a “semi-pucca” one andfor that purpose, referred only to tin shed and not the other structures asnoticed and mentioned by the Controller. In fact, the Tribunal diverted itsattention more to its proposition that after the Amendment Act of 1993,all types of structures were included within the meaning of “any structure”.In any case, the Tribunal also could not return a specific finding that ithad been a kutcha structure.

The classification of semi-pucca, asattempted to be carved out by the Tribunal, was neither envisaged bythe statute nor could have been countenanced in view of the specificfacts noticed by the Controller.23.2. The High Court has, obviously, taken into comprehensionthe findings of the Controller which were never challenged by theappellants and hence, made the observations that the lessees hadNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH462SUPREME COURT REPORTS[2022] 11 S.C.R.admittedly raised pucca structure. Even if the appellants seek to disputesuch findings, such a dispute is required to be rejected, particularly withreference to indisputable findings of the Controller. The structure inquestion had been a pucca structure. Its implication shall unfold hereafter. The statutory scheme and the import of three enactment withtheir amendments24.

A quick but comprehensive recap of the entire environmentsurrounding the enactments in question would make it clear that by the Act of 1949, essentially the thika tenancies were sought to be regulated, more particularly against arbitrary eviction and enhancement of rent. Therein, by the Amendment Act No. XXIX of 1969, the thika tenantwas given the right to erect pucca structure in case the land comprisedin the holding was being used for residential purposes, of course, withprevious permission of the Controller. Bharatias, being essentially thepersons paying rent in respect of the structure erected by the thikatenant, were also given protection so that thika tenant would not ejectthem for erecting a pucca structure. The legislature duly took note ofthe requirements of giving protection to thika tenants and bharatiasagainst ejectment and thus, the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act, 1978, was enacted, whoselife was extended upto 18.07.1981.

As specified in the Statement of Objects and Reasons for the Act of 1981, the object of the said Act of1978 was to provide temporary protection against ejectment until acomprehensive legislation was enacted to deal with the public grievances.24.1. The various features of the Act of 1949 had been the subject-matter of debates in various decisions of Calcutta High Court, particularlyafter amendment in the year 1953 in the definition of thika tenant. Oneof the consistent lines of thought remained in various decisions like thosein the case of Kshiroda Moyee Sen, Monmatha Nath Mukherjee and Annapurna Seal (supra), that the expression “any structure”, as referredto in Section 2(5) though ordinarily could be interpreted as “all structures” but, while harmonising the said provision with Section 108(p) of the Transfer of Property Act, the term “structure” in this definition couldrefer only to a “kutcha structure”.25.

Then, in the Act of 1981, the State Legislature introduced theprovisions for acquisition of the rights of landlords in the land comprisedin thika tenancies by payment of certain amount on the lines of the thenoperating Urban Land Ceiling (Ceiling and Regulation) Act, 1976. This ABCDEFGH463acquisition was to result in vesting of all the rights in the land comprisedin thika tenancies in the State free from all encumbrances; and thethika tenants were to hold the land under the State on prescribed termsand conditions. Protection against ejectment was also granted tobharatias.25.1. Again, the salient features of the Act of 1981, as originallyenacted, had been the subject-matter of several debates in the HighCourt with same consistent line of thought that the “structure” referredto in the definition of “thika tenant” meant only kutcha structure; and itrelated to pucca structure only when the same was for residentialpurposes.25.2.

In the Act of 1981, the legislative intent, on one hand beingof protecting the interest of vulnerable class of tenants/occupants but onthe other hand, the fiat being of exaction of the landlord’s property to the State, obviously, the provisions were required to be construed in abalanced manner and were so construed by the Calcutta High Court inseveral of its decisions and the matter was ultimately dealt with by the Full Bench of the High Court in the case of Lakshmimoni Das(supra)wherein, the Full Bench approved the interpretation of Section 5 of the Act as put by the Division Bench in the case of Jatadhari Daw &Grandsons (supra). The Full Bench answered the reference in thefollowing terms: -“56. For the reasons aforesaid we hold as follows:—(a) The impugned Act is not protected under Art. 31C of the Constitution as it is found on scrutiny of different provisions of theimpugned Act that the impugned Act has not been enacted to giveeffect to provisions of Arts.

39(b) and (c) of the Constitution andthe impugned Act is open to challenge on the score of violationsof Part III of the Constitution. (b) Within the scope and ambit of S. 5 of the impugned Act onlylands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structureand/or a pucca structure constructed for residential purpose withthe permission of the Controller under the Calcutta Thika TenancyAct, 1949 and khatal lands held under a lease shall vest and saveas aforesaid no other land and structure vest under the impugnedAct.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH464SUPREME COURT REPORTS[2022] 11 S.C.R.(c) Sub-sections (2) and (3) of S. 8 of the impugned Act and R. 5,Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982are ultra vires the Constitution. (d) Rule 3(b) of the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 excepting the following portion “everythika tenant or tenant shall pay to the Controller annual revenuebeing not less than what he was paying to the landlord before thecoming into force of the Act” Rules 3(h), 3(i) and 3(j) of the saidrules are ultra vires.

(e) Section 19 of the impugned Act in so far as it purports to abateany pending appeal preferred by a thika tenant against a decreefor eviction of thika tenant under the Calcutta Thika TenancyAct, 1949 and any execution proceeding for eviction of a thikatenant against whom a decree for eviction had been passed underthe Calcutta Thika Tenancy Act, 1949 before the enforcement ofthe impugned Act is illegal and ultra vires. (f) Section 6(2) of the impugned Act excepting the provisothereunder and Ss. 26 and 27 of the impugned Act are declaredultra vires.” 25.3. We are essentially concerned with the sub-paragraph (b)aforesaid as regards the construction of Section 5 of the Act of 1981.Interestingly, while the said decision in Lakshmimoni Das (supra) waschallenged in this Court but, even during the pendency of such challenge, the legislature made amendments to the Act of 1981 by virtue of the Amendment Act of 1993 which was intended to remove the practicaldifficulties in operation of the Act of 1981.

By this Amendment, even the Title and the Preamble of the Act of 1981 as originally enacted wereamended. In fact, such amendment of title etc. had its foundation in theobservations occurring in Lakshmimoni Das (supra) wherein the FullBench of the High Court, inter alia, took into consideration the originaltitle of the enactment, i.e., the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 while construing its provisions where the expression“other land” was not there.25.4. However, it could be readily seen that the amendment of Section 5 by the Amendment Act of 1993, rather than removing thedifficulties and clarifying the position of law as also rather than removingthe basis of the decision in Lakshmimoni Das (supra), only created ABCDEFGH465more complexities and unworkable situation where the effect of newlyinserted clause (c) of Section 5 was going to be as if any land given onlease in any manner was to result in vesting of the interest of the landlordin the State.

If we could say so, the shortcomings in the originally enactedSection 5 of the Act of 1981, which were indicated in LakshmimoniDas(supra) by the Full Bench of the Calcutta High Court, rather thanbeing removed, became more prominent with complexities because ofthe Amendment Act of 1993.25.5.In our view, the High Court has rightly held in the orderimpugned that the confusions and anomalies were dealt with in the Actof 2001; and because of the larger part of absurdity having been removedin the Act of 2001, the challenge in this Court to the judgment in Lakshmimoni Das was not taken forward.26. The object and purpose of these enactments and text of therelevant provisions, when examined with reference to their texture andcontext, the provisions of vesting as evolved by way of originally enactedSection 5 of the Act of 1981 and as provided for in Section 4 of the Actof 2001 read with the Amendment Act of 2010 put it beyond the pale ofdoubt 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 bringthe tenant within the definition of thika tenant and thus, there could nothave 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 Actof 2001, as originally enacted.27.

We may also observe that ordinarily, a later enactment maynot be a safe external aid for interpreting the preceding enactment onthe same subject but the object and purport of the enactments dealingwith thika tenancies commencing from the year 1949 and continuingwith successive enactments of 1981, its amendment in 1993, then theenactment of 2001 and its amendment in the year 2010, formed a seriesof legislative exercises towards the same subject, i.e., protection of thikatenants. Hence, the later promulgation of the Act of 2001 and itsamendments could have been referred to, and have rightly been referredto, by the High Court in the impugned judgment while construing the Actof 1981.27.1. There are other strong reasons for which too, the successorenactment is required to be taken in aid for construing the provisions ofNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH466SUPREME COURT REPORTS[2022] 11 S.C.R.the preceding enactment in the present case.

It is a fact that even whenthe Act of 2001 came into force from 01.03.2003, the vesting of the landcomprised in thika tenancies and other land etc. was deemed to haveoccurred w.e.f. 18.01.1982; that being the very date of enforcement ofthe Act of 1981. Learned counsel for the respondent No. 1 appears rightin his submissions that the Act of 1981 having been simultaneously enactedwhile repealing the Act of 1949, it had to be read in conjunction with thepreceding enactment and the legislature would be deemed to be awareof the judicial pronouncements as regards the material terms of the Actof 1949 which were, with same frame and phraseology, retained in thenew enactment. The decisions referred to by the learned counsel for therespondent No. 1 in the cases of Bengal Immunity Co. Ltd. and Gammon India Ltd. (supra) provide enough guide on the principle thatrepeal and simultaneous re-enactment is to be considered as reaffirmationof the old law.

The submission on behalf of the appellants and the State, that the interpretations put to the expression “any structure”, as occurringin relation to the Act of 1949, cannot be imported for the purpose of theinterpretation of the same expression in similar enactment with similarphraseology, which was made in replacement of the earlier one, isrequired to be rejected. The exclusion aspects of the Act of 1949 had, ofcourse, not been continued in the Act of 1981 but the basic elements fora tenancy to become thika tenancy remained the same namely, requirement of payment of rent and construction/acquisition of anystructure thereat by the tenant. There is nothing in the Act of 1981 forwhich the interpretation of the expression “any structure” could havebeen made different than the interpretation of the same expression inregard to the Act of 1949.28. The suggestion that the expression “any structure”, in its plainmeaning ought to be construed as inclusive of all structures whetherkutcha or pucca, needs to be rejected for a variety of reasons.28.1.

In the Act of 1949 as originally enacted, even though theexpression “any structure” had been used but, it was consistentlymaintained by the Calcutta High Court with reference to the object andpurpose of Act of 1949 and its frame that, the definition of “thika tenant” would not include pucca structure because the enactment was otherwisenot dealing with the rights and liabilities of the tenant, for which theprovisions of Transfer of Property Act were required to be referred to; and such a proposition was also in accord with Section 2(6) of the Act of ABCDEFGH4671949; and per Section 108(p) of the Transfer of Property Act, a puccastructure was not permissible. In Jatadhari Daw & Grandsons (supra),the Division Bench of the High Court, even while construing the Act of1981, proceeded on the same lines and held that the expression“structure” in the statute did not include permanent structure.28.2.

The Full Bench of the High Court in Lakshmimoni Das(supra) meticulously examined variegated aspects of the matter andvarious provisions of enactments and also different pronouncements whileholding that construction of kutcha structure on the lease hold land wasa sine qua non for constituting thika tenancy. We find such interpretationto be in accord with the very object and purpose of these enactments, atleast until the enforcement of the Amendment Act of 2010 w.e.f.01.11.2010; and the submission of learned counsel for the respondentNo. 1 based on the doctrine of stare decisis deserves to be acceptedthat the interpretation of this particular term “any structure”, which hasbeen holding field for more than half a century ought not to be disturbedor unsettled. In Shanker Raju (supra) this Court had held that: -“10. It is a settled principle of law that a judgment, whichhas held the field for a long time, should not be unsettled.

Thedoctrine of stare decisis is expressed in the maxim stare decisiset non quieta movere, which means “to stand by decisions andnot to disturb what is settled”. Lord Coke aptly described this inhis classic English version as “those things which have been sooften adjudged ought to rest in peace”. The underlying logic ofthis doctrine is to maintain consistency and avoid uncertainty. Theguiding philosophy is that a view which has held the field for along time should not be disturbed only because another view ispossible….” 28.3. There are several indications which unfailingly lead to theconclusion that “any structure” which was employed in the Act of 1949and was further employed in the Act of 1981 and also in the Act of 2001for the purpose of creation of thika tenancy referred only to kutchastructure until the year 2010. The first and foremost indication comesfrom the amendment of the Act of 1949 by Act of XXIX of 1969 wherebyclause (4a) was inserted to Section 2 and then Section 10A was insertedto the enactment which, in effect, invested a right in the thika tenant toerect a pucca structure when using the land in question for a residentialpurpose but only with permission of the Controller.

If pucca structureNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH468SUPREME COURT REPORTS[2022] 11 S.C.R.was a part of the definition of thika tenant in clause (5) of Section 2,Section 10A was never required to be inserted to the Act of 1949. Then, in the Act of 1981, even when the legislature provided for acquisition ofland comprised in thika tenancy and other lands, the principal part of thedefinition of thika tenant remained the same; only the other threeexclusion conditions, as occurring in clause (5) of Section 2 of the Act of1949 were removed. However, the Act of 1981, as originally enacted, never provided for creation of thika tenancy by the event of tenanterecting or acquiring by purchase or gift, any pucca structure.28.4. Of course, by amendment of Section 5 by the AmendmentAct of 1993, it was introduced that even “other land” under lease couldbe acquired but, the purpose and object of the enactment did not providefor such a broad and all-pervading legislative fiat.

This aspect of thematter does not require any further elaboration in the present case forthe fundamental reason that claim of the appellants had only been ofthika tenancy and when they do not answer to the description of thikatenant, there would arise no question of operation of Section 5 of the Actof 1981, whether in its unamended form or in its amended form.28.5. Significant it is to notice that even in the Act of 2001, asoriginally enacted, the definition of thika tenancy in clause (14) of Section2 thereof retained more or less the same expressions as were there inthe Act of 1981; and the expression “any structure including puccastructure” came to be inserted to this clause only by the AmendmentAct of 2010. Moreover, the Amendment Act of 2010 was given onlyprospective effect from 01.11.2010 and not the retrospective effect, aswas earlier given to the original Section 4 of the Act of 2001.

Thus, acquisition of the land comprising thika tenancy with even erection oracquisition of pucca structure by the thika tenant came to be providedfor in specific terms by the legislature only from 01.11.2010 and notbefore. As noticed, before 01.11.2010, so far as the lease in questionwas concerned, the same had ceased to subsist and there was no existinglease which could have taken the appellants within the frame of thikatenancy on 01.11.2010.The relevant decisions of Calcutta High Court29. Though a large number of decisions concerning the threeenactments in question, more particularly in relation to thika tenancyand the implication of structure on the demised property, have been citedbut instead of elongating this discussion with multiple authorities, it appears ABCDEFGH469appropriate to take note of the considerations of the Full Bench of CalcuttaHigh Court in the case of Lakshmimoni Das (supra) wherein the Courtdealt with the provisions of the Act of 1981 as originally enacted.

Therein, the Full Bench expressed its relevant reasoning and ratio, inter alia, inthe following terms: -“43. Keeping in mind of the principle of interpretation indicatedhereinabove, an attempt should be made to ascertain what wasthe mischief sought to be remedied by the impugned legislation. Ifthe interpretation put forth by Mr. Gupta, the learned AdditionalAdvocate General appearing for the State Respondents is acceptedin toto, it appears to us that the same would undoubtedly producepalpable injustice, anomaly, contradiction and lead to absurd resultsand in order to avoid such peculiar situation, a reasonable meaningto those words should be given which does not cause any ambiguityand/or absurdity and the mischief sought to be remedied is alsoproperly achieved. In this connection, the title of the impugnedAct may supply some guidance to the construction of S. 5 of theimpugned Act. Although, the title does not override the plainmeaning of the section but in case of ambiguity and doubt, the titleserves as a good guideline.

The title of the impugned Act onlyrefers to acquisition and regulation of thika tenancy (by repealingthe Calcutta Thika Tenancy Act, 1949). Looking into the historyof the legislation and purpose of the legislation, it appears to usthat the impugned legislation is plainly to abolish the rights of thelandlord over the lands held by thika tenants which were so longgoverned by the provisions of Calcutta Thika Tenancy Act, 1949.The passage quoted from Cooley’s ‘A Treatise on the ConstitutionalLimitations’ at pages 143 and 149 since referred to by Mr. Palappearing for same of the petitioners may not be wholly applicablewhile construing a provision of statute in our country. The legislationin our country is not bound by the title to an Act strictly and thelegislature can travel beyond the title but at the same timeConstitution makers did not intend that the legislature will pass analtogether different Act under the cover of a title thereby misleadingthe legislators themselves and also the authority requiring to giveassent to the legislation.

In our view, it should be the endeavourfor the Court to strike a balance by giving a meaning which hasconnection with the title of the Act and the intention of thelegislature and the evil sought to be remedied. At the same time, NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH470SUPREME COURT REPORTS[2022] 11 S.C.R.the Court has to interpret the Act in such a manner so that it maynot lead to any destructive result and/or absurd or inconsistentsituation. In our view, while interpreting the words “other lands” after the words ‘thika tenancy’ the legal maxim ejusdem generis(of the same kind) and the maxim ‘noscitur a sociis’ (a thing isknown by its companion) should be borne in mind. Applying these legal maxims, it appears to us that ‘other land’appearing in S. 5 of the impugned Act must mean land fallingunder the category of thika tenancy land.

This general wordfollowing a specific word must apply not to different objects of awidely differing character, but something which can be called aclass or kind of objects. In this case, from the title, preamble ofthe Act, the intention of the legislature as also on consideration ofthe mischief sought to be remedied by the impugned Act it mustbe held that ‘other land’ must be land coming within the categoryof thika tenancy land. If however appears that besides the landscomprising thika tenancies lands used as khatals and the right, title and interest of landlord in such khatals are intended to bevested under S. 5. Lands comprising pucca and permanentstructures erected by the tenant for user of the land for khatalsand lands used for khatals held under a lease for a period beyondtwelve years cannot comprise thika tenancy within the meaningof ‘thika tenancy’ under the Calcutta Thika Tenancy Act.

It alsoappears to us that the expression ‘thika tenancy’ under theaforesaid Act has been judicially noted in various decisions of thiscourt as referred to by Mr. Pal and it must be accepted that the Legislature is aware of the meaning of such expression and has, therefore, used the expression on the basis of the said acceptedmeaning. But it appears to us that S. 5 expressly envisages vestingof khatals although all khatals may not conform to ‘thika tenancy’within the meaning of thika tenancy under the Calcutta ThikaTenancy Act, 1949 which is repealed by the impugned Act. Inview of express reference of khatal without any reservation in S.5, we are inclined to hold that although the impugned act isessentially a piece of legislation for vesting of thika tenancy landsand temporary or kutcha structures thereon and for regulation ofsuch lands and structures and the title of the Act and the provisionfor repealing the Calcutta Thika Tenancy Act, 1949 also conformto such intention and purpose of the impugned legislation, khatal ABCDEFGH471lands held on lease even if such lands do not comprise thika tenancywithin the meaning of thika tenancy under the Calcutta ThikaTenancy Act also vest under S. 5.

It appears to us that most ofthe khatals comprise kutcha or temporary structure and they alsocomprise thika tenancies within the meaning of ‘thika tenancy’under the said 1949 Act. We may also take judicial notice that inmajority cases, thika tenancies comprise bustees and/or slumsand the legislature has intended to vest thika tenancies andstructures thereon for regulating such thika tenancy lands. Ittherefore appears to us that with an intention to regulate khatallands, along with other underdeveloped lands and structures mainlycomprising bustees or slums, the legislature has expressly includedkhatals in S. 5 for the purpose of vesting of such khatals andconsequential control and regulation of khatals. We thereforeapprove the interpretation of S. 5 of the impugned Act as made inthe Bench decision of this Court in Jatadhari Daw’s case, AppealNo. 239 of 1978 reported in (1986) 1 Cal HN 21. Save as aforesaid, no other land or structure vest under the impugned Act.” 29.1.

In the passing, we may also observe that the suggestionsmade on behalf of the appellants and the State that the decision of Jatadhari Daw & Grandsons (supra) has been set aside by this Courtby its order dated 27.10.2004 is not correct as such. By the said orderdated 27.10.2004, the matters were remitted to the High Court, particularly in view of subsequent legislations in the form of AmendmentAct of 1993 as also the Act of 2001, without this Court having pronouncedon the question of law either way. Similarly, the decision in LakshmimoniDas (supra) has also not been examined on its ratio and merits by this Court earlier.30. Apart that we have no hesitation in giving our imprimatur tothe enunciation aforesaid, we are also at one with the observations ofthe High Court in the impugned order that even after amendment of the Act of 1981 by the Amendment Act of 1993, vesting indiscriminately ofevery parcel of let out land, in the broad expression “other land”, couldnot have been bought about and hence, ultimately this enactment, assuch, was given up and was substituted by the Act of 2001.Other miscellaneous but relevant factors31.

Apart from the aforesaid view taken by us, so far as the presentmatter is concerned, a fundamental reason operates against theNEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH472SUPREME COURT REPORTS[2022] 11 S.C.R.applicability of the Act of 1981. As noticed, after coming into force ofthe Act of 1981, the same was indeed challenged by the landlord in the High Court and indisputably, operation of the enactment qua the subjectproperty was stayed by the High Court. The correctness or otherwiseof the order so passed by the High Court is not a matter of questionbefore us. The fact of the matter remains that the said Act was undertotal eclipse qua the subject property pursuant to the binding order ofthe High Court. Therefore, any suggestion about the operation of thesaid enactment and thereby vesting of the subject property in the Statepursuant to Section 5 of the Act of 1981 is rather redundant.32.

Then, the lease in question came to an end on 30.11.1993.Thereafter, the appellants ceased to be persons liable to pay rent atmonthly or in any other periodical rate. In that position, they ceased toanswer to the definition of thika tenant within the meaning of Section3(8) of the Act of 1981. Similarly, they did not answer to the descriptionof 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 tothe tenancy in question nor Section 4 of the Act of 2001. The applicationmade before the Controller in the month of April, 2003 for accepting theappellants and/or their predecessors as thika tenants was, therefore, fundamentally misconceived and could have only been rejected.33. It is also significant to notice that the Controller, in his detailedorder dated 01.08.2012, even after examining all the facts of the caseand also the provisions of law applicable, repeatedly held that the appellantscould not have been treated as thika tenants under the Act of 1949 orunder the Act of 1981.

It was only in the last part of the impugned orderdated 01.08.2012, the learned Controller abruptly picked up the decisionin Purushottam Das Murarka (supra) and held on that basis that sinceconstruction of pucca structure was not prohibited, therefore, theapplicants could be taken as thika tenants. Such a proposition was notcompatible with the findings in the earlier part of the same order andwith the statute as also with the purport and effect of the decision in Purushottam Das Murarka.33.1. In the case of Purushottam Das Murarka (supra), thetwo major questions had been about the period of lease with referenceto the initial period of five years and renewal of seven years; and aboutthe effect of thika tenant constructing or attempting to construct puccastructure on the demised land. The period of tenancy is not relevant for ABCDEFGH473the present purpose. As regards the aspect relating to the structure, the Court noticed the decisions in Monmatha Nath Mukherjee and Annapurna Seal (supra) but then, observed that if during pendency oflease, a thika tenant constructs or attempts to construct pucca structureon demised land without permission of landlord, he does not cease to bethe thika tenant.

Thus, the lessee being a thika tenant was an existingfact in said case. The High Court has rightly observed that it was neverheld in Purushottam Das Murarka (supra) that if tenant of a land wouldraise pucca structure, he would automatically become a thika tenant. The conclusion drawn on the basis of the said decision by the Controllercould have only been disapproved.33.2. Then, the Tribunal, in its impugned order, attempted to injectvarious such philosophies which were simply beside the point. In ourview, the High Court has meticulously examined the matter in its rightperspective and, with apt analysis of all the three enactments vis-à-visthe facts of the case, has rightly concluded against the claim of thethika tenancy of the appellants and/or their predecessors.34. In the aforesaid view of the matter, we do not consider itnecessary to enter into any further or finer analysis of other contentionsurged and decisions cited by the learned counsel for the respective parties.

In our view, the impugned order deserves to be upheld because neitherthe appellants became thika tenants under the enactments aforesaidnor there had been any vesting of the subject property thereunder. Conclusion35. In summation of what has been discussed hereinabove, wecould broadly say:1. The Full Bench decision of Calcutta High Court in Lakshmimoni Das (supra) is affirmed.2. The structure, as put up by the appellants and/or theirpredecessors, had been pucca structure on the property inquestion.3. For the structure being pucca in character and the term oflease being 20 years, the appellants and/or their predecessors werenot thika tenants within the meaning of Section 2(5) of the Act of1949.NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANISQUARE LTD. & ORS. [DINESH MAHESHWARI, J.] ABCDEFGH474SUPREME COURT REPORTS[2022] 11 S.C.R.4. The appellants and/or their predecessors were not thika tenantswithin the meaning of the Act of 1981 for two major reasons:a. that the structure in question was a pucca structure; andb. that the Act of 1981 was not operative in relation to theproperty in question because of the stay order passed bythe High Court.5.

On the date when lease expired in the month of November,1993, the appellants and/or their predecessors were not thikatenants and, therefore, the Act of 2001 does not enure to theirbenefit.6. The impugned decision of the High Court, therefore, calls forno interference.36. Before closing, we may also take note of the fact that by wayof interim orders dated 15.04.2014 and 22.07.2014, the appellants weredirected to make payment towards occupancy charges. The appellantshave made certain deposits and by the order dated 27.08.2021, we haddirected the appellants to deposit further an amount of Rs. 20,00,000/-(Rupees twenty lakhs) in the Registry of this Court of which, thecontesting respondents were held entitled to withdraw an amount of Rs.16,50,000/- (Rupees sixteen lakhs fifty thousand) by way of the occupancycharges; and the remaining amount was ordered to be invested in afixed deposit with periodical renewal, to be disbursed subject to theoutcome of this appeal.

The said deposited amount together with accruedinterest is ordered to be disbursed to the respondent No. 1 while weotherwise leave it open for the said respondent in taking recourse toappropriate remedies, strictly in accordance with law, in relation to anyother claim/relief.37. Accordingly and in view of the above, this appeal fails and is, therefore, dismissed subject to the observations foregoing. All pendingapplications also stand disposed of. No order as to costs. Ankit GyanAppeal dismissed. (Assisted by : Rahul Rathi, LCRA)