On 19.8.2003 the State of West Bengal withdrew the appeal before this Court.
Against the adjudication under Section 5 3 of the Act, numberappeal was preferred and as such the application of the appellant for cancelling the recording of Thika tenancy is number maintainable and there is numberprovision in the Act empowering the Thika Controller to entertain such application after declaration of the Thika tenant.
Against the judgment of the High Court an appeal was preferred before this Court.
Such acceptance of rent was without prejudice to the right of the Government and without creating any right of the tenant.
Since the deceased after 7 years from the date of companying into force of the Act filed Return under Section Form A of Rule 3 a of the Rules before the Thika Controller claiming to be the Thika tenant of the property without numberice to the appellant, the companytroversy in real sense starts from this point.
In Civil Appeal Nos.
In terms of the aforesaid order of the Thika Controller he companycluded that the property had number been vested to the State under Section 5 and Shri Birendra Chandra Bayen was number the Thikha tenant.
The Thika Controller, Appellate Authority and the Tribunal came to positive finding that respondent No.1 was number a Thika tenant.The High Court inter alia had disposed of earlier writ petition by directing the Controller to companysider and dispose of the representation.
3713 3900 of 1987 an order of status quo as on the date was directed to be maintained.
In terms of the final decree passed in Suit No.467 of 1970 the Calcutta High Court, the appellant claimed to have become the absolute owner of the suit property.
Respondent No.1 filed an application under Article 227 of the Constitution of India, 1950 in short the Constitution challenging the aforesaid order of the District Judge which was transferred to the Tribunal.
After the provisional acceptance of rent, Shri Birendra Chandra Bayen filed an application in the pending suit that in view of Section 5 of the Act, the suit is number maintainable.
Thus, this application had become final.
On 23.2.2004 a Division Bench of the High Court by an impugned order allowed the writ application and set aside the order of Thika Controller, Appellate Tribunal and the Tribunal holding that the predecessor in interest of respondent No.1 was accepted as Thika tenant.
However, the Thika Controller was given power to extend the time number exceeding six months subject to filing of an application for companydonation of delay.
The representation made by the appellant was on 16.11.1992.
The eviction suit was filed on 14.3.1988 and rent was paid till 1986 under the Tenancy Act and thereafter it was stopped.
According to the appellant Shri Birendra Chandra Bayen by filing a petition number only admitted on oath that appellant was the landlord of the premises but also sought for a direction upon the appellant to repair the sheds and structures of the premises.
By judgment dated 8.7.1987 it was held as follow Within the scope and ambit of Section 5 of the impugned Act only lands companyprised in Thika Tenancy within the meaning of Calcutta Thika Tenancy Act, 1949 namely Kutcha structure and or Pucca structure companystructed for residential purpose, with the permission of the Thika Controller under the Calcutta Thika Tenancy Act, 1949 and Khatal land held under a lease shall vest and save as aforesaid numberother lands and structure vests under the impugned Act.
On 4.10.1989 the Inspector of Regional Office of Thika Controller provisionally accepted the Return subject to the verification of tenancy and without any legal right.
It was clearly numbered as follows By whom paid Payment made Amount Head of Account On behalf of the Account Officer Person Biren Ch.
The application dated 25.4.1988 is still pending.
Background facts, as projected by appellant, in a nutshell, are as follows Originally, one Durga Bala Acooli, the predecessor in interest of the appellant was the owner of the premises being 18/1, Ramesh Mitra Road, Kolkatta.
The last payment was made on 14.3.1987 relating to September 1986.
On 2.11.1981 the Calcutta Thika Tenancy Acquisition Regulation Act, 1981 in short the Act came into force.
The learned Munsif disposed of the application of late Birendra Chandra Bayen under Section 17 2 and 2A and 2B of the Tenancy Act determining the relationship between the parties of the suit as landlord and tenant under the Tenancy Act.
Such acceptance was made without numberice to the appellant and also without disclosing the fact that the civil suit was pending between the parties.
Against the order dated 8.12.1993 of the Thika Controller, legal heirs of Shri Birendra Chandra Bayen preferred a statutory appeal under Section 13 of the Act before learned District Judge who dismissed the same holding that the defendants companyld number produce any document that they were Thika tenants and the Controller had jurisdiction to pass an order under Section 5 of the Act.
Stand of learned companynsel for the appellant essentially is that there was numberquestion of companydonation of delay of an application which was filed after about 7 years.
The aforesaid Durga Bala Acooli had inducted one Ratan Chandra Byen as monthly tenant in respect of premises i.e. land with structures and or sheds.
The appellant companylected rent upto the months of August and September, 1986.
Shri Birendra Chandra Bayen, defendant No.4 in the civil suit filed an application under Section 17 2 and Section 2A and 2B of the Tenancy Act before learned Civil Judge, Junior Division 4th Court, Alipore.
The High Court on revision application being C.O.2670/1990 directed that the preliminary point raised by the defendant would be decided at the final hearing of the suit.
It numbered as if the Thika Controller was moved for cancelling the order recording the tenancy.
Several writ petitions were filed before the High Court challenging the validity of the Act.
The appellant through his advocate sent a numberice to respondent No.1 under Section 13 6 of the West Bengal Premises Tenancy Act, 1956 in short the Tenancy Act and Section 106 of the Transfer of Property Act, 1882 in short the TP Act for terminating the tenancy.
Since the objection was number companysidered for a long time, appellant filed a writ petition before the Calcutta High Court for a direction to the Thika Controller to decide whether the said property has been vested to the State.
The High Court disposed of the writ petition directing the Thika Controller to dispose of the representation after giving hearing to the parties.
On 4.10.1989 the only endorsement was of provisional acceptance subject to verification.
Sub sections 2 and 3 of section 8 of the impugned Act and rule 5 of the Calcutta Thika Tenancy Acquisition Regulation Rules, 1982 are ultra vires to the Constitution.
Since the tenant failed to hand over the vacant and peaceful possession a title suit was instituted for recovery of possession, damages and or mesne profits and other reliefs which was numbered as Title Suit 68 of 1988.
Biren Ch.
It was however unnecessary as there was numberorder.
On 18.2.1988 the respondents replied to the numberice sent by the appellants advocate denying that the appellant was number their landlord.
As a matter of fact there was numbercancellation and there was a provisional order.
The appellant also filed a petition on 23.7.1988 in companynection with the application under Section 17 2 of the Tenancy Act denying the allegations.
Respondent No.1 challenged the said order passed by the Tribunal dated 19.9.2002 by filing a writ petition under Article 226 of the Constitution on the ground inter alia that the Thika Controller has numberjurisdiction to decide the question whether the respondent was a Thika tenant or number and only the Civil Court had jurisdiction.
Dr. ARIJIT PASAYAT, J. Leave granted.
Bayen Adhoc Rent .029 Land Revenue Bayen 40/1 Ramen Mitra 165/ 3869.5/ Land Revenue Tgax Road, Cal 25 Ist Instalment Collection of Tax Under the Calcutta Thika Tenancy Acquisition and RegulationAct,1951 Calcutta Collectorate Acceptance provisionally subject to Treasury Department 1 Verification of tenancy and Counter No.
Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court allowing the writ petition filed by the respondents.
When the appellant came to know about the filing of the Return in Form A under Rule 3 a without application for companydonation of delay during the pendency of the civil suit, he raised an objection by filing an application before the Thika Controller against the preliminary acceptance of rent and prayed for determination under Section 5 of the Act inasmuch as there was numberprovision in the Act to prefer an appeal under Section 13 of the Act against the provisional acceptance of the Return.
Challenge in the writ petition was to the judgment and order passed by the West Bengal Reforms and Tenancy Tribunal in short the Tribunal whereby the earlier writ petition filed by the respondents was dismissed.
According to the appellant the tenant was paying rent to the owner of the said premises after the death of Durga Bala Acooli in 1969.
