Holding

A provisional acceptance of a Return under Rule 3(a) does not amount to a cancellation of tenancy, and the High Court’s order treating it as such is set aside, directing the revenue authority to determine the tenancy issue.

Summary

The appellant, claiming ownership of a property at 18/1 Ramesh Mitra Road, Kolkata, sought eviction of the respondent who alleged he was a Thika tenant under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The respondent filed a Return under Rule 3(a) of the 1981 Rules, which the Thika Controller provisionally accepted without a final order, and the appellant’s objection was not considered for a long period. The High Court, acting on a writ petition, directed the Controller to decide the appellant’s representation and subsequently set aside the Controller’s finding, holding the respondent to be a Thika tenant. The Supreme Court held that the High Court erred by treating the provisional acceptance as a cancellation and by allowing an appeal despite no final order being passed. It set aside the High Court’s order and directed the revenue authority to determine the relevance of the Return and the pending eviction suit. Consequently, the appeal was allowed, reversing the High Court’s decision.

Issues considered

Whether the provisional acceptance of a Return under Rule 3(a) constitutes a cancellation of tenancy requiring a final order before an appeal can be filed.
Whether the Thika Controller has jurisdiction to decide the question of Thika tenancy after a provisional acceptance of the Return.
Whether the High Court erred in treating the provisional acceptance as a cancellation and in setting aside the Controller’s finding.
Whether the revenue authority should decide the relevance of the Return and the pendency of the eviction suit.

Legislation cited

Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981s. 13, s. 20, s. 5
Transfer of Property Act, 1882s. 106
West Bengal Premises Tenancy Act, 1956s. 13(6), s. 17(2), s. 2A, s. 2B
West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001s. 1(3), s. 27, s. 5(3)

Subjects

Thika tenancyCalcutta Thika Tenancy ActRule 3(a) ReturnProvisional acceptanceCancellation of tenancyJurisdiction of Thika ControllerEviction suitRevenue authority

Judgment

[2009) 1 S.C.R. 28

A DWARIKA NATH ACOOLI
v.
DULAL CHANDRA BAYEN AND ORS.
(Civil Appeal No.7 of 2009)
JANUARY 6, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.)

Calcutta Thika Tenancy (Acquisition and Regulation)
C Rules, 1981 - r.3(a) - Thika tenancy - Respondent claimed
to be Thika tenant - Filed Return before Thika Controller in
terms of r.3(a) - Thika Controller provisionally accepted the
Return - Appellant, claiming to be owner, made
representation before Thika Controller - Representation not
D considered for long time - In writ petition, High Court directed
Thika Controller to dispose of the representation of appellant
- Conclusion of Thika Controller that respondent was not
Thika tenant - Upheld by Appe!!ate authority - Writ petition
by respondent - Allowed by High Court holding that
E respondent was Thika tenant - Held: High Court wrongly
proceeded on the basis that there was cancellation of tenancy
and as if the Thika Controller was moved for cancelling the
order recording the tenancy - On the Return, no order was
passed - Hence, order of High Court set aside and revenue
F authority directed to decide the matter - Calcutta Thika .....
Tenancy (Acquisition and Regulation) Act, 1981 - s.5.

Appellant claimed to be owner of the property in
question and filed suit seeking eviction of respondent,
whom he had purportedly inducted as a monthly tenant.
G
Respondent claimed to be a Thika tenant and filed
Return before the Thika Controller in terms of r.3(a) of the
Calcutta Thika Tenancy (Acquisition and Regulation)
Rules, 1981. The Thika Controller provisionally accepted
H 28
'
DWARIKA NATH ACOOLI v. DULAL CHANDRA BAYEN 29
AND ORS.

the Return. Appellant raised objection before Thika A
Controller. The objection was not considered for long
time, on which appellant filed writ petition. High Court
disposed of the writ petition directing the Thika Controller
to dispose of the representation of appellant. The"Thika
Controller concluded that respondent was not a Thika B
tenant which was upheld by the Appellate authority.
Respondent filed writ petition. High Court allowed the
same holding that respondent was a Thika tenant. Hence
the present appeal.
c
. Disposing of the appeal, the Court

HELD: The High Court seems to have proceeded on
the basis that there was cancellation. It noted as if the
Thika Controller was moved for cancelling the order
recording the tenancy. As a matter of fact there was no D
cancellation and there was a provisional order. There was
no question of preferring an appeal unless the final order
was passed. On the Return, no order was passed. The
Thika Controller and the Appellate Authority came to
positive finding that respondent No.1 was not a Thika E
tenant. They took decision on the basis of the High
Court's order to deal with a representation of the
appellant. In view of the aforesaid, the order of the High
Court is set aside and the revenue authority is directed
to decide the relevance of the Return filed by respondent F
and pendency of the eviction suit filed by the appellant.
As the Return is in terms of r.3, the revenue authority has
to decide the matter. (Paras 7 and 8] (35-G-H; 36-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7
of 2009. G

From the final Judgment and Order dated 23.2.2004 of the
High Court of Calcutta in W.P.L.R.T. No. 29 of 2003.

Bhaskar Gupta and Shipra Ghose for the Appellant.
H
30 SUPREME COURT REPORTS {2009] 1 S.C.R.

A S.K. Bhattacharya, Tara Chandra Sharma, Neelam Sharma 7
and Rajiv Sharma for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
B
2. 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. Challenge in the writ petition was to the
judgment and order passed by the West Bengal Reforms and
c Tenancy Tribunal (in short the 'Tribunal') whereby the earlier writ
petition filed by the respondents was dismissed.

3. Background facts, as projected by appellant, in a
nutshell, are as follows:
D 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. In terms of the final decree
passed in Suit No.467 of 1970 the Calcutta Hjgh Court, the
appellant claimed to have become the absolute owner of the
E suit property. 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. On 2.11.1981
the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981
(in short the 'Act') came into force. On 5.5.1982 in exercise of
F power conferred by Section 20 of the Act the State Government
framed Calcutta Thika Tenancy (Acquisition & Regulation)
Rules, 1981 (in short the 'Rules') which became operative from
that date and under Rule 3(a) of the Rules, the Thika tenants
were directed to file Return under Form-A before the Thika
G Controller within 240 days from the date of commencement of
the Act. However, the Thika Controller was given power to
extand the time not exceeding six months subject to filing of an -~

application for condonation of delay.

According to the appellant the tenant was paying rent to
H the owner of the said premises after the death of Durga Bala
DWARIKA NATH ACOOLI v. DULAL CHANDRA BA YEN 31
AND ORS. [DR. ARIJIT PASAYAT, J.]

Acooli in 1969. The appellant collected rent upto the months A
of August and September, 1986. The last payment was made
on 14.3.1987 relating to September 1986. Several writ petitions
were filed before the High Court challenging the validity of the
Act. By judgment dated 8.7.1987 it was held as follow:
B
"Within the scope and ambit of Section 5 of the
impugned Act only lands comprised in Thika Tenancy
within the meaning of Calcutta Thika Tenancy Act, 1949
namely Kutcha structure and/or Pucca structure constructed
for residential purpose, with the permission of the Thika C
Controller under the Calcutta Thika Tenancy Act, 1949 and
Khatal land held under a lease shall vest and save as
aforesaid no other lands and structure vests under the
impugned Act. 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 D
the Constitution."

The appellant through his advocate sent a notice to
respondent No.1 under Section 13(6) of the West Bengal
Premises Tenancy Act, 1956 (in short the 'Tenancy Act') and E
Section 106 of the Transfer of Property Act, 1882 (in short the
'TP Act') for terminating the tenancy. Against the judgment of
the High Court an appeal was preferred before this Court. In
Civil Appeal Nos. 3713-3900' of 1987 an order of status quo
as on the date was directed to be maintained. On 18.2.1988 F
the respondents replied to the notice sent by the appellant's
advocate denying that the appellant was not their landlord. 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 G
numbered as Title Suit 68 of 1988. 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

'
r.
32 SUPREME COURT REPORTS (2009] 1 S.C.R.
-
A appellant also filed a petition on 23.7.1988 in connection with )'

the application under Section 17(2) of the Tenancy Act denying
the allegations.

According to the appellant Shri Birendra Chandra Bayen
by filing a petition not only admitted on oath that appellant was
8
the landlord of the premises but also sought for a direction upon
the appellant to repair the sheds and structures of the premises.
Since the deceased after 7 years from the date of coming into
force of the Act filed Return under Section Form-A of Rule 3(a)
C of the Rules before the Thika Controller claiming to be the Thika
tenant of the property without notice to the appellant, the
controversy in real sense starts from this point. 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. Such acceptance was made without
D notice to the appellant and also without disclosing the fact that
the civil suit was pending between the parties. Such acceptance
of rent was without prejudice to the right of the Government and
without creating any right of the tenant. After the provisional
acceptance of rent, Shri Birendra Chandra Bayen filed an
E application in the pending suit that in view of Section 5 of the
Act, the suit is not maintainable. The High Court on revision
application being C.0.2670/1990 directed that the preliminary
point raised by the defendant would be decided at the final
hearing of the suit. When the appellant came to know about the
F filing of the Return in Form-A under Rule 3(a) without application
for condonation 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
G as there was no provision in the Act to prefer an appeal under
Section 13 of the Act against the provisional acceptance of the
Return. Since the objection was not considered 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
H
DWARIKA NATH ACOOLI v. DULAL CHANDRA BAYEN 33
AND ORS. [DR ARIJIT PASAYAT, J.)

property has been vested to the State. The High Court A
disposed of the writ petition directing the Thika Controller to
dispose of the representation after giving hearing to the parties.
In terms of the aforesaid order of the Thika Controller he
concluded that the property had not been vested to the State
under Section 5 and Shri Birendra Chandra Bayen was not the B
Thikha tenant. The learned Munsif disposed of the application
of late Birendra Chandra Bayen under Section 17(2) and 2A
... " and 28 of the Tenancy Act detennining the relationship between
the parties of the suit as landlord and tenant under the Tenancy
Act. Thus, this application had become final. Against the order c
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 could not
produce any document that they were Thika tenants and the D
Controller had jurisdiction to pass an order under Section 5 of
the Act. 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. The Tribunal dismissed the appeal
E
holding as follows:

(i) After the statutory period of limitation as provided under
Rule 3(a) no Return could be filed.
:..
(ii) Further the tenants paid rent to the landlord upto 1986 F
accepting the appellant as landlord when the Act of 1981
came into force on 18.1.1982 and the liability of 'Thika
Tenant to pay rent ceased from that date.

(iii) Therefore, acceptance of Return under Form-A was
without jurisdiction and dismissed the application holding G
that the Thika Controller has got jurisdiction to decide
whether the person is a Thika Tenant or not.

(iv) The applicant is a tenant in respect of structures, he
H
34 SUPREME COURT REPORTS (2009] 1 S.C.R. -
A does not own structures therefore he is a premises tenant.
I'
On 1.3.2003 a Notification under Section 1(3) of the West
Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001
(in short the '2001 Act') was published and under Section 27,
B the earlier Act of 1981 was replaced but pending proceedings
were saved. By the 2001 Act, sub-section (3) of Section 5 was
amended to provide that if any question arises as to whether
the person is a Thika tenant or not the matter shall be~ decided
,,. ,,..
by the Controller. Respondent No.1 challenged the said order
c 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 no jurisdiction to decide the question
whether the respondent was a Thika tenant or not and only the
Civil Court had jurisdiction. On 19.8.2003 the State of West
Bengal withdrew the appeal before this Court. On 23.2.2004 a
D 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.
Against the adjudication under Section 5(3) of the Act, no
E appeal was preferred and as such the application of the
appellant for cancelling the recording of Thika tenancy is not
maintainable and there is no provision in the Act empowering
the Thika Controller to entertain such application after
declaration of the Thika tenant.
F
4. Stand of learned counsel for the appellant essentially is
that there was no question of condonation of delay of an
application which was filed after about 7 years. The eviction suit
was filed on 14.3.1988 and rent was paid till 1986 under the
Tenancy Act and thereafter it was stopped. It is pointed out that
G
under Section 17 of the Tenancy Act if the application is on the
ground of default, an application can be made to make the
deposit. The application dated 25.4.1988 is still pending. On
4.10.1989 the only endorsement was of provisional acceptance
H
:? DWARIKA NATH ACOOLI v. DULAL CHANDRA BAYEN
AND ORS. [DR. ARIJIT PASAYAT, J.]
35

subject to verification. It was clearly noted as follows: A
"By whom paid Payment made Amount Head of Account
On behalf of the Account Officer
Person

Biren Ch. Biren Ch. Bay en Adhoc Rent .029 Land Revanue
Bay en 40/1 Ramen Mitra 165/- 3869.5/- Land Revenueffgax B
Road, Cal-25 1st Instalment Collection ofTax
Under the Calcutta
,,. f. Thika Tenancy
Acquisition and
Regulation Act, 1951
c
Calcutta Collectorate Acceptance provisionally subject to
Treasury Department 1) Verification of tenancy and
Counter No. 2) recovery adjustment with the revenue
Cash received to the finally determined under the W. B.
Act XXXVll Of 1981. Such acceptance
of rent shall not treat or established and D
right or interest without Which
otherwise not legally in existence."
5. The representation made by the appellant was on
16.11.1992. It was however unnecessary as there was no order.
The High Court inter-alia had disposed of earlier writ petition E
by directing the Controller to consider and dispose of the
representation. The High Court by the impugned judgment
seems to have over-looked the fact that there was in fact no
... cancellation .
F
6. Learned counsel for the respondent on the other hand
supported the order.

7. In the impugned order the High Court seems to have
proceeded on the basis that there was cancellation. It noted as G
if the Thika Controller was moved for cancelling the order
recording the tenancy. As a matter of fact there was no
.cancellation and there was a provisional order. There was no
. question of preferring an appeal unless the final order is passed.
So far as the onus is concerned, it is on the appellant to
H
36 SUPREME COURT REPORTS (2009] 1 S.C.R. .,

A establish the tenancy. It needs to be noted that on the Return
no order was passed. The Thika Controller, Appellate Authority
and the Tribunal came to positive finding that respondent No.1
was not a Thika tenant. They took decision on the basis of the
High Court's order to deal with a representation of the appellant.
B 8. In view of the aforesaid we are satisfied that the order
of the High Court is indefensible. We set aside the impugned
order and direct that the revenue authority shall decide the .....
relevance of the Return and pend ency of the eviction suit. As
the Return is in terms of Rule 3, the revenue authority has to
C decide the matter.

9. The appeal is accordingly disposed of with no order as
to costs.

B.B.B. Appeal disposed of.