NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI SQUARE LTD. & ORS.

A 20.3. The learned senior counsel for the respondent No. 1 has referred to the decision in Lakshmimoni Das (supra), where it was held that within the scope and ambit of Act of 1981, only the lands comprised in thika tenancies within meaning of Act of 1949, comprising kutcha structure, or pucca structure constructed for residential purpose with permission of Controller, or khatal lands held under lease vested in B the State; and save as aforesaid, no other land and structures vested under the said enactment. The case of Sri Sri Satyanarayan (supra) has been relied upon, whereit was observed that thika in Bengali meant temporary or partial. Reliance has also been placed on the decision in the case of Kshiroda Moyee Sen (supra), where it was held that a C tenant was not entitled to put any permanent structure on the land under the Transfer of Property Act or the Thika Tenancy Act. Furthermore, by placing reliance on Monmatha Nath Mukherjee (supra), it is contended that nothing in the Act of 1949 entitled a tenant to erect a pucca structure. It has also been pointed out that the decision in Monmatha Nath Mukherjee was affirmed by the Division Bench of D the High Court in Annapurna Seal v. Tincowrie Dutt and Anr.: 66 CWN 338, wherein the High Court held that a pucca building could not come under the purview of the Act of 1949, since it dealt with concepts of temporary natures like the “thika tenant”, a “bharatia” and “structures”. It has also been submitted that the Statement of Objects E and Reasons of the Act of 1949 makes it clear that the Act was brought into force to protect tenants having kutcha or temporary structures from eviction 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. F 20.4. As regards the Act of 1981, the learned senior counsel has argued that it was not the intention of the legislature that land in all leases of vacant land of any tenure upon which tenant constructed a structure would vest in State. By placing reliance on the Statement of Objects and Reasons, it is submitted that the Act of 1981 is an appropriatory and confiscatory enactment, which contemplated acquisition 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 structure in accordance with building plan sanctioned under the Calcutta Municipal Corporation Act, 1980. Support has also been sought from the affirmation of the decision in Monmatha Nath Mukherjee (supra) by the Division

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 459 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

Bench in Jatadhari Daw & Grandsons (supra).It has been submitted by the learned counsel that some questions were referred to the Full Bench 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 lands which had kutcha structures, or pucca structures constructed with permission of the Controller under the Act of 1949, and khatal lands held under a lease, would vest with the State under the Act of 1981. 20.5. The learned counsel for the respondent No. 1 has submitted that the decisions aforementioned have been consistently followed by the High Court, even as recently as 2016; and a view which has been consistently adopted by the High Court for more than 60 years, deserves not to be upset at the instance of the appellants. Reliance is placed on the decision of this Court in Shanker Raju v. Union of India: (2011) 2 SCC 132. 20.6. The learned senior counsel has further submitted that repeal of 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, D the Act of 1981 is required to be read in conjunction with the Act of 1949, as the legislature was aware about the consistent judicial interpretation of the term “any structure”, but still did not change it. This shows the intent of the legislature to keep the meaning of the term “any structure” in line with the judicial pronouncements and the Act of 1949. E This definition was only amended prospectively under the Act of 2001 by way of the Amendment Act of 2010. Reliance is placed on various decisions of this Court including those in Bengal Immunity Company Limited v. State of Bihar and Ors.: (1955) 2 SCR 603 andGammon India Ltd. v. Special Chief Secretary & Ors.: (2006) 3 SCC 354. 20.7. As regards the Amendment Act of 2010, inserting pucca F structures in the term “any structure”, the learned counsel has submitted that this amendment is prospective in nature, and not clarificatory, since the amendment was made applicable from 01.11.2010, prospectively. The intention could be ascertained from the fact that when the Act of 1981 was repealed by the Act of 2001, some provisions of the Act of G 2001 were applied retrospectively with effect from the date of commencement of the Act of 1981, i.e., 18.01.1982, while the Amendment Act of 2010 was applied prospectively. 20.8. It has also been submitted by the learned counsel for the respondent No. 1 that the appellants did not pay rent to the landlords H

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A after expiry of the lease on 30.11.1993 and as such, their occupation after the expiry of the lease is tenancy at sufferance; and a tenant at sufferance is liable to pay mesne profits/damages, and not rent. Therefore, after 30.11.1993, the appellants could not be thika tenants, since they were not liable to pay rent. The learned counsel has referred to various decisions in this regard including that in Nand Ram (Dead) Through B Legal Representatives v. Jagdish Prasad (Dead) Through Legal Representatives: (2020) 9 SCC 393. 20.9. The learned senior counsel has also submitted that the operation of the Act of 1981 as regards the property in question was stayed by the High Court of Calcutta by the order dated 30.09.1983 in C WP Civil Rule No. 10449(W) of 1983. Therefore, the appellants could not be thika tenants under the Act of 1981 and the said land could not vest with the State; and significantly, the appellants filed Return in Form A on 10.04.2003 under the Act of 1981 when the said Act had been repealed and additionally, the return filed was much after the expiry of lease. 20.10.In the last limb of arguments, the learned senior counsel for the respondent No. 1 has submitted that the findings of the High Court of Calcutta are correct; that in rejoinder submissions, learned senior counsel for the appellants had conceded that it was not appellants’ case that any new thika tenancy was created under the Act of 1981 and since the appellants were admittedly not thika tenants under the Act of 1949, this part of submissions on behalf of the appellants clarifies that they are not thika tenants, and hence, the judgement of High Court deserves to be upheld.

21Copy pinpoint21. We have heard the learned counsel for the parties at sufficient length and have examined the record of the case with reference to the law applicable. Analysis

22Copy pinpoint22. Having given anxious consideration to the entire matter, we are satisfied that the High Court has taken an eminently just and proper view 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 arguments has been advanced before us by the contesting parties, particularly in view of the peculiarities associated with the three enactments and their amendments from time

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 461 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

to time. Having regard to the subject matter, it appears appropriate only to deal with the material propositions and factors while analysing the submissions. This analysis could be broadly sub-divided into four parts namely, the nature of the structure in question; the statutory scheme and import of three enactments with their amendments; the relevant decisions; and other miscellaneous but relevant factors. B The Structure in question

23Copy pinpoint23. We may, in the first place, clear one of the unnecessary submissions made on behalf of the appellants as if the High Court has unjustifiably stated that the structures in question were admittedly pucca in nature. This submission is unnecessary as also incorrect. The High C Court has made the relevant observations about the nature of structure and has returned its findings in that regard only after proper comprehension of all the relevant factual aspects. 23.1. The fact that the structure in question was pucca in nature could not have been put to any issue by the appellants. As noticed, the learned Controller, in paragraph 3 of his findings in the order dated 01.08.2012, categorically recorded the facts that even from the assessment register of the Corporation, it was clearly shown that at all material times, there were placed such structures at the subject property which fell within the meaning of “pucca structures”. The Controller also found with reference to the enquiry report that there were structures having pucca foundation, pucca floors and pucca walls as also brick walls with tin shed. The Tribunal, in its findings, made rather strange observations that the structure in question was a “semi-pucca” one and for that purpose, referred only to tin shed and not the other structures as noticed and mentioned by the Controller. In fact, the Tribunal diverted its attention 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 it had been a kutcha structure. The classification of semi-pucca, as attempted to be carved out by the Tribunal, was neither envisaged by the statute nor could have been countenanced in view of the specific facts noticed by the Controller. 23.2. The High Court has, obviously, taken into comprehension the findings of the Controller which were never challenged by the appellants and hence, made the observations that the lessees had H

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A admittedly raised pucca structure. Even if the appellants seek to dispute such findings, such a dispute is required to be rejected, particularly with reference to indisputable findings of the Controller. The structure in question had been a pucca structure. Its implication shall unfold hereafter. The statutory scheme and the import of three enactment with B their amendments

24Copy pinpoint24. A quick but comprehensive recap of the entire environment surrounding 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. C Therein, by the Amendment Act No. XXIX of 1969, the thika tenant was given the right to erect pucca structure in case the land comprised in the holding was being used for residential purposes, of course, with previous permission of the Controller. Bharatias, being essentially the persons paying rent in respect of the structure erected by the thika tenant, were also given protection so that thika tenant would not eject D them for erecting a pucca structure. The legislature duly took note of the requirements of giving protection to thika tenants and bharatias against ejectment and thus, the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act, 1978, was enacted, whose life was extended upto 18.07.1981. As specified in the Statement of E Objects and Reasons for the Act of 1981, the object of the said Act of 1978 was to provide temporary protection against ejectment until a comprehensive 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, particularly F after amendment in the year 1953 in the definition of thika tenant. One of the consistent lines of thought remained in various decisions like those in the case of Kshiroda Moyee Sen, Monmatha Nath Mukherjee and Annapurna Seal (supra), that the expression “any structure”, as referred to in Section 2(5) though ordinarily could be interpreted as “all structures” but, while harmonising the said provision with Section 108(p) of the G Transfer of Property Act, the term “structure” in this definition could refer only to a “kutcha structure”.

25Copy pinpoint25. Then, in the Act of 1981, the State Legislature introduced the provisions for acquisition of the rights of landlords in the land comprised in thika tenancies by payment of certain amount on the lines of the then operating Urban Land Ceiling (Ceiling and Regulation) Act, 1976. This

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 463 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

acquisition was to result in vesting of all the rights in the land comprised in thika tenancies in the State free from all encumbrances; and the thika tenants were to hold the land under the State on prescribed terms and conditions. Protection against ejectment was also granted to bharatias. 25.1. Again, the salient features of the Act of 1981, as originally enacted, had been the subject-matter of several debates in the High Court with same consistent line of thought that the “structure” referred to in the definition of “thika tenant” meant only kutcha structure; and it related to pucca structure only when the same was for residential purposes. C 25.2. In the Act of 1981, the legislative intent, on one hand being of protecting the interest of vulnerable class of tenants/occupants but on the other hand, the fiat being of exaction of the landlord’s property to the State, obviously, the provisions were required to be construed in a balanced manner and were so construed by the Calcutta High Court in several of its decisions and the matter was ultimately dealt with by the D 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 the following terms: - E “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 the impugned Act that the impugned Act has not been enacted to give effect to provisions of Arts. 39(b) and (c) of the Constitution and the impugned Act is open to challenge on the score of violations of Part III of the Constitution. (b) Within the scope and ambit of S. 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure and/or a pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lands held under a lease shall vest and save as aforesaid no other land and structure vest under the impugned Act. H

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A (c) Sub-sections (2) and (3) of S. 8 of the impugned Act and R. 5, Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 are ultra vires the Constitution. (d) Rule 3(b) of the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 excepting the following portion “every thika tenant or tenant shall pay to the Controller annual revenue being not less than what he was paying to the landlord before the coming into force of the Act” Rules 3(h), 3(i) and 3(j) of the said rules are ultra vires. (e) Section 19 of the impugned Act in so far as it purports to abate any pending appeal preferred by a thika tenant against a decree for eviction of thika tenant under the Calcutta Thika Tenancy Act, 1949 and any execution proceeding for eviction of a thika tenant against whom a decree for eviction had been passed under the Calcutta Thika Tenancy Act, 1949 before the enforcement of the impugned Act is illegal and ultra vires. D (f) Section 6(2) of the impugned Act excepting the proviso thereunder and Ss. 26 and 27 of the impugned Act are declared ultra vires.” 25.3. We are essentially concerned with the sub-paragraph (b) E aforesaid as regards the construction of Section 5 of the Act of 1981. Interestingly, while the said decision in Lakshmimoni Das (supra) was challenged 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 practical difficulties in operation of the Act of 1981. By this Amendment, even the F Title and the Preamble of the Act of 1981 as originally enacted were amended. In fact, such amendment of title etc. had its foundation in the observations occurring in Lakshmimoni Das (supra) wherein the Full Bench of the High Court, inter alia, took into consideration the original title of the enactment, i.e., the Calcutta Thika Tenancy (Acquisition and G 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 the difficulties and clarifying the position of law as also rather than removing the basis of the decision in Lakshmimoni Das (supra), only created H

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 465 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

more complexities and unworkable situation where the effect of newly inserted clause (c) of Section 5 was going to be as if any land given on lease in any manner was to result in vesting of the interest of the landlord in the State. If we could say so, the shortcomings in the originally enacted Section 5 of the Act of 1981, which were indicated in Lakshmimoni Das(supra) by the Full Bench of the Calcutta High Court, rather than being removed, became more prominent with complexities because of the Amendment Act of 1993. 25.5. In our view, the High Court has rightly held in the order impugned that the confusions and anomalies were dealt with in the Act of 2001; and because of the larger part of absurdity having been removed in the Act of 2001, the challenge in this Court to the judgment in C Lakshmimoni Das was not taken forward.

26Copy pinpoint26. The object and purpose of these enactments and text of the relevant provisions, when examined with reference to their texture and context, the provisions of vesting as evolved by way of originally enacted Section 5 of the Act of 1981 and as provided for in Section 4 of the Act D of 2001 read with the Amendment Act of 2010 put it beyond the pale of doubt that until the advent of the Amendment Act of 2010 w.e.f. 01.11.2010, erection of pucca structure on the leased land did not bring the tenant within the definition of thika tenant and thus, there could not have been any vesting in the State under Section 5 of the Act of 1981 E (whether originally enacted or amended) or under Section 4 of the Act of 2001, as originally enacted.

27Copy pinpoint27. We may also observe that ordinarily, a later enactment may not be a safe external aid for interpreting the preceding enactment on the same subject but the object and purport of the enactments dealing with thika tenancies commencing from the year 1949 and continuing with successive enactments of 1981, its amendment in 1993, then the enactment of 2001 and its amendment in the year 2010, formed a series of legislative exercises towards the same subject, i.e., protection of thika tenants. Hence, the later promulgation of the Act of 2001 and its amendments could have been referred to, and have rightly been referred to, by the High Court in the impugned judgment while construing the Act of 1981. 27.1. There are other strong reasons for which too, the successor enactment is required to be taken in aid for construing the provisions of H

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A the preceding enactment in the present case. It is a fact that even when the Act of 2001 came into force from 01.03.2003, the vesting of the land comprised in thika tenancies and other land etc. was deemed to have occurred w.e.f. 18.01.1982; that being the very date of enforcement of the Act of 1981. Learned counsel for the respondent No. 1 appears right in his submissions that the Act of 1981 having been simultaneously enacted while repealing the Act of 1949, it had to be read in conjunction with the preceding enactment and the legislature would be deemed to be aware of the judicial pronouncements as regards the material terms of the Act of 1949 which were, with same frame and phraseology, retained in the new enactment. The decisions referred to by the learned counsel for the respondent No. 1 in the cases of Bengal Immunity Co. Ltd. and Gammon India Ltd. (supra) provide enough guide on the principle that repeal and simultaneous re-enactment is to be considered as reaffirmation of the old law. The submission on behalf of the appellants and the State, that the interpretations put to the expression “any structure”, as occurring in relation to the Act of 1949, cannot be imported for the purpose of the interpretation of the same expression in similar enactment with similar phraseology, which was made in replacement of the earlier one, is required to be rejected. The exclusion aspects of the Act of 1949 had, of course, not been continued in the Act of 1981 but the basic elements for a tenancy to become thika tenancy remained the same namely, requirement of payment of rent and construction/acquisition of any structure thereat by the tenant. There is nothing in the Act of 1981 for which the interpretation of the expression “any structure” could have been made different than the interpretation of the same expression in regard to the Act of 1949.

28Copy pinpoint28. The suggestion that the expression “any structure”, in its plain meaning ought to be construed as inclusive of all structures whether kutcha or pucca, needs to be rejected for a variety of reasons. 28.1. In the Act of 1949 as originally enacted, even though the expression “any structure” had been used but, it was consistently G maintained by the Calcutta High Court with reference to the object and purpose of Act of 1949 and its frame that, the definition of “thika tenant” would not include pucca structure because the enactment was otherwise not dealing with the rights and liabilities of the tenant, for which the provisions 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 H

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 467 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

1949; and per Section 108(p) of the Transfer of Property Act, a pucca A structure was not permissible. In Jatadhari Daw & Grandsons (supra), the Division Bench of the High Court, even while construing the Act of 1981, 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 B (supra) meticulously examined variegated aspects of the matter and various provisions of enactments and also different pronouncements while holding that construction of kutcha structure on the lease hold land was a sine qua non for constituting thika tenancy. We find such interpretation to be in accord with the very object and purpose of these enactments, at least until the enforcement of the Amendment Act of 2010 w.e.f. C 01.11.2010; and the submission of learned counsel for the respondent No. 1 based on the doctrine of stare decisis deserves to be accepted that the interpretation of this particular term “any structure”, which has been holding field for more than half a century ought not to be disturbed or unsettled. In Shanker Raju (supra) this Court had held that: - D “10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim stare decisis et non quieta movere, which means “to stand by decisions and not to disturb what is settled”. Lord Coke aptly described this in E his classic English version as “those things which have been so often adjudged ought to rest in peace”. The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible….” F

28.3. There are several indications which unfailingly lead to the conclusion that “any structure” which was employed in the Act of 1949 and was further employed in the Act of 1981 and also in the Act of 2001 for the purpose of creation of thika tenancy referred only to kutcha structure until the year 2010. The first and foremost indication comes G from the amendment of the Act of 1949 by Act of XXIX of 1969 whereby clause (4a) was inserted to Section 2 and then Section 10A was inserted to the enactment which, in effect, invested a right in the thika tenant to erect a pucca structure when using the land in question for a residential purpose but only with permission of the Controller. If pucca structure H

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A 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 of land comprised in thika tenancy and other lands, the principal part of the definition of thika tenant remained the same; only the other three exclusion conditions, as occurring in clause (5) of Section 2 of the Act of B 1949 were removed.However, the Act of 1981, as originally enacted, never provided for creation of thika tenancy by the event of tenant erecting or acquiring by purchase or gift, any pucca structure. 28.4. Of course, by amendment of Section 5 by the Amendment Act of 1993, it was introduced that even “other land” under lease could be acquired but, the purpose and object of the enactment did not provide for such a broad and all-pervading legislative fiat. This aspect of the matter does not require any further elaboration in the present case for the fundamental reason that claim of the appellants had only been of thika tenancy and when they do not answer to the description of thika tenant, there would arise no question of operation of Section 5 of the Act of 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, as originally enacted, the definition of thika tenancy in clause (14) of Section 2 thereof retained more or less the same expressions as were there in the Act of 1981; and the expression “any structure including pucca structure” came to be inserted to this clause only by the Amendment Act of 2010. Moreover, the Amendment Act of 2010 was given only prospective effect from 01.11.2010 and not the retrospective effect, as was earlier given to the original Section 4 of the Act of 2001. Thus, acquisition of the land comprising thika tenancy with even erection or acquisition of pucca structure by the thika tenant came to be provided for in specific terms by the legislature only from 01.11.2010 and not before. As noticed, before 01.11.2010, so far as the lease in question was concerned, the same had ceased to subsist and there was no existing lease which could have taken the appellants within the frame of thika tenancy on 01.11.2010. The relevant decisions of Calcutta High Court

29Copy pinpoint29. Though a large number of decisions concerning the three enactments in question, more particularly in relation to thika tenancy and the implication of structure on the demised property, have been cited but instead of elongating this discussion with multiple authorities, it appears

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 469 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

appropriate to take note of the considerations of the Full Bench of Calcutta A High Court in the case of Lakshmimoni Das (supra) wherein the Court dealt with the provisions of the Act of 1981 as originally enacted. Therein, the Full Bench expressed its relevant reasoning and ratio, inter alia, in the following terms: - “43. Keeping in mind of the principle of interpretation indicated hereinabove, an attempt should be made to ascertain what was the mischief sought to be remedied by the impugned legislation. If the interpretation put forth by Mr. Gupta, the learned Additional Advocate General appearing for the State Respondents is accepted in toto, it appears to us that the same would undoubtedly produce palpable injustice, anomaly, contradiction and lead to absurd results and in order to avoid such peculiar situation, a reasonable meaning to those words should be given which does not cause any ambiguity and/or absurdity and the mischief sought to be remedied is also properly achieved. In this connection, the title of the impugned Act may supply some guidance to the construction of S. 5 of the impugned Act. Although, the title does not override the plain meaning of the section but in case of ambiguity and doubt, the title serves as a good guideline. The title of the impugned Act only refers to acquisition and regulation of thika tenancy (by repealing the Calcutta Thika Tenancy Act, 1949). Looking into the history of the legislation and purpose of the legislation, it appears to us that the impugned legislation is plainly to abolish the rights of the landlord over the lands held by thika tenants which were so long governed by the provisions of Calcutta Thika Tenancy Act, 1949. The passage quoted from Cooley’s ‘A Treatise on the Constitutional Limitations’ at pages 143 and 149 since referred to by Mr. Pal F appearing for same of the petitioners may not be wholly applicable while construing a provision of statute in our country. The legislation in our country is not bound by the title to an Act strictly and the legislature can travel beyond the title but at the same time Constitution makers did not intend that the legislature will pass an altogether different Act under the cover of a title thereby misleading G the legislators themselves and also the authority requiring to give assent to the legislation. In our view, it should be the endeavour for the Court to strike a balance by giving a meaning which has connection with the title of the Act and the intention of the legislature and the evil sought to be remedied. At the same time, H

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A the Court has to interpret the Act in such a manner so that it may not lead to any destructive result and/or absurd or inconsistent situation. 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 is known by its companion) should be borne in mind. B Applying these legal maxims, it appears to us that ‘other land’ appearing in S. 5 of the impugned Act must mean land falling under the category of thika tenancy land. This general word following a specific word must apply not to different objects of a widely differing character, but something which can be called a C class or kind of objects. In this case, from the title, preamble of the Act, the intention of the legislature as also on consideration of the mischief sought to be remedied by the impugned Act it must be held that ‘other land’ must be land coming within the category of thika tenancy land. If however appears that besides the lands comprising thika tenancies lands used as khatals and the right, title and interest of landlord in such khatals are intended to be vested under S. 5. Lands comprising pucca and permanent structures erected by the tenant for user of the land for khatals and lands used for khatals held under a lease for a period beyond twelve years cannot comprise thika tenancy within the meaning of ‘thika tenancy’ under the Calcutta Thika Tenancy Act. It also appears to us that the expression ‘thika tenancy’ under the aforesaid Act has been judicially noted in various decisions of this court 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 accepted meaning. But it appears to us that S. 5 expressly envisages vesting of khatals although all khatals may not conform to ‘thika tenancy’ within the meaning of thika tenancy under the Calcutta Thika Tenancy Act, 1949 which is repealed by the impugned Act. In view of express reference of khatal without any reservation in S. G 5, we are inclined to hold that although the impugned act is essentially a piece of legislation for vesting of thika tenancy lands and temporary or kutcha structures thereon and for regulation of such lands and structures and the title of the Act and the provision for repealing the Calcutta Thika Tenancy Act, 1949 also conform to such intention and purpose of the impugned legislation, khatal

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lands held on lease even if such lands do not comprise thika tenancy within the meaning of thika tenancy under the Calcutta Thika Tenancy Act also vest under S. 5. It appears to us that most of the khatals comprise kutcha or temporary structure and they also comprise thika tenancies within the meaning of ‘thika tenancy’ under the said 1949 Act. We may also take judicial notice that in majority cases, thika tenancies comprise bustees and/or slums and the legislature has intended to vest thika tenancies and structures thereon for regulating such thika tenancy lands. It therefore appears to us that with an intention to regulate khatal lands, along with other underdeveloped lands and structures mainly comprising bustees or slums, the legislature has expressly included khatals in S. 5 for the purpose of vesting of such khatals and consequential control and regulation of khatals. We therefore approve the interpretation of S. 5 of the impugned Act as made in the Bench decision of this Court in Jatadhari Daw’s case, Appeal No. 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 suggestions made on behalf of the appellants and the State that the decision of Jatadhari Daw & Grandsons (supra) has been set aside by this Court by its order dated 27.10.2004 is not correct as such. By the said order dated 27.10.2004, the matters were remitted to the High Court, E particularly in view of subsequent legislations in the form of Amendment Act of 1993 as also the Act of 2001, without this Court having pronounced on the question of law either way. Similarly, the decision in Lakshmimoni Das (supra) has also not been examined on its ratio and merits by this Court earlier. F

30Copy pinpoint30. Apart that we have no hesitation in giving our imprimatur to the enunciation aforesaid, we are also at one with the observations of the High Court in the impugned order that even after amendment of the Act of 1981 by the Amendment Act of 1993, vesting indiscriminately of every parcel of let out land, in the broad expression “other land”, could G not have been bought about and hence, ultimately this enactment, as such, was given up and was substituted by the Act of 2001. Other miscellaneous but relevant factors

31Copy pinpoint31. Apart from the aforesaid view taken by us, so far as the present matter is concerned, a fundamental reason operates against the H

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A applicability of the Act of 1981. As noticed, after coming into force of the Act of 1981, the same was indeed challenged by the landlord in the High Court and indisputably, operation of the enactment qua the subject property was stayed by the High Court. The correctness or otherwise of the order so passed by the High Court is not a matter of question before us. The fact of the matter remains that the said Act was under B total eclipse qua the subject property pursuant to the binding order of the High Court. Therefore, any suggestion about the operation of the said enactment and thereby vesting of the subject property in the State pursuant to Section 5 of the Act of 1981 is rather redundant.

32Copy pinpoint32. Then, the lease in question came to an end on 30.11.1993. C Thereafter, the appellants ceased to be persons liable to pay rent at monthly or in any other periodical rate. In that position, they ceased to answer to the definition of thika tenant within the meaning of Section 3(8) of the Act of 1981. Similarly, they did not answer to the description of thika tenant within the meaning of Section 2(14) of the Act of 2001. D As a necessary corollary, neither Section 5 of the Act of 1981 applied to the tenancy in question nor Section 4 of the Act of 2001. The application made before the Controller in the month of April, 2003 for accepting the appellants and/or their predecessors as thika tenants was, therefore, fundamentally misconceived and could have only been rejected.

33Copy pinpoint33. It is also significant to notice that the Controller, in his detailed order dated 01.08.2012, even after examining all the facts of the case and also the provisions of law applicable, repeatedly held that the appellants could not have been treated as thika tenants under the Act of 1949 or under the Act of 1981. It was only in the last part of the impugned order dated 01.08.2012, the learned Controller abruptly picked up the decision F in Purushottam Das Murarka (supra) and held on that basis that since construction of pucca structure was not prohibited, therefore, the applicants could be taken as thika tenants. Such a proposition was not compatible with the findings in the earlier part of the same order and with the statute as also with the purport and effect of the decision in G Purushottam Das Murarka. 33.1. In the case of Purushottam Das Murarka (supra), the two major questions had been about the period of lease with reference to the initial period of five years and renewal of seven years; and about the effect of thika tenant constructing or attempting to construct pucca H structure on the demised land. The period of tenancy is not relevant for

NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 473 SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

the present purpose. As regards the aspect relating to the structure, the A Court noticed the decisions in Monmatha Nath Mukherjee and Annapurna Seal (supra) but then, observed that if during pendency of lease, a thika tenant constructs or attempts to construct pucca structure on demised land without permission of landlord, he does not cease to be the thika tenant. Thus, the lessee being a thika tenant was an existing fact in said case. The High Court has rightly observed that it was never held in Purushottam Das Murarka (supra) that if tenant of a land would raise pucca structure, he would automatically become a thika tenant. The conclusion drawn on the basis of the said decision by the Controller could have only been disapproved. 33.2. Then, the Tribunal, in its impugned order, attempted to inject various such philosophies which were simply beside the point. In our view, the High Court has meticulously examined the matter in its right perspective and, with apt analysis of all the three enactments vis-à-vis the facts of the case, has rightly concluded against the claim of the thika tenancy of the appellants and/or their predecessors. D

34Copy pinpoint34. In the aforesaid view of the matter, we do not consider it necessary to enter into any further or finer analysis of other contentions urged and decisions cited by the learned counsel for the respective parties. In our view, the impugned order deserves to be upheld because neither the appellants became thika tenants under the enactments aforesaid E nor there had been any vesting of the subject property thereunder. Conclusion

35Copy pinpoint35. In summation of what has been discussed hereinabove, we could broadly say: F

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 their predecessors, had been pucca structure on the property in question. G

3. For the structure being pucca in character and the term of lease being 20 years, the appellants and/or their predecessors were not thika tenants within the meaning of Section 2(5) of the Act of 1949. H

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A 4. The appellants and/or their predecessors were not thika tenants within the meaning of the Act of 1981 for two major reasons: a. that the structure in question was a pucca structure; and b. that the Act of 1981 was not operative in relation to the property in question because of the stay order passed by B the High Court.

5. On the date when lease expired in the month of November, 1993, the appellants and/or their predecessors were not thika tenants and, therefore, the Act of 2001 does not enure to their benefit. C

6. The impugned decision of the High Court, therefore, calls for no interference.

36Copy pinpoint36. Before closing, we may also take note of the fact that by way of interim orders dated 15.04.2014 and 22.07.2014, the appellants were directed to make payment towards occupancy charges. The appellants have made certain deposits and by the order dated 27.08.2021, we had directed the appellants to deposit further an amount of Rs. 20,00,000/- (Rupees twenty lakhs) in the Registry of this Court of which, the contesting respondents were held entitled to withdraw an amount of Rs. 16,50,000/- (Rupees sixteen lakhs fifty thousand) by way of the occupancy charges; and the remaining amount was ordered to be invested in a fixed deposit with periodical renewal, to be disbursed subject to the outcome of this appeal. The said deposited amount together with accrued interest is ordered to be disbursed to the respondent No. 1 while we otherwise leave it open for the said respondent in taking recourse to appropriate remedies, strictly in accordance with law, in relation to any other claim/relief.

37Copy pinpoint37. Accordingly and in view of the above, this appeal fails and is, therefore, dismissed subject to the observations foregoing. All pending applications also stand disposed of. No order as to costs. G Ankit Gyan Appeal dismissed. (Assisted by : Rahul Rathi, LCRA)