Holding

The appellants were not thika tenants under any of the relevant statutes, and consequently no vesting of the land in the State occurred.

Summary

The appellants leased a property in Calcutta for 20 years from 1973 to 1993 and erected pucca structures on it. After the lease expired, they applied to the Thika Tenancy Controller claiming status as thika tenants under the Calcutta Thika Tenancy Act, 1949, the 1981 Act and the 2001 Act, seeking land vesting in the State. The Controller and the Tribunal held them to be thika tenants, but the Calcutta High Court reversed that decision, finding the structures were pucca and the lease term exceeded the statutory limit for thika tenancy. On appeal, the Supreme Court examined the statutory scheme, the meaning of "any structure", the prospective effect of the 2010 amendment, and the impact of the lease expiry and a stay order on the 1981 Act. It concluded that the appellants did not qualify as thika tenants under any of the statutes and therefore no vesting occurred. The appeal was dismissed, upholding the High Court's order.

Issues considered

The effect of erecting a pucca structure on the determination of thika tenant status under the 1949, 1981 and 2001 Acts.
Whether the 2010 amendment inserting "including pucca structure" applies retrospectively to the lease that ended in 1993.
The impact of the lease expiry on the appellants' liability to pay rent and their eligibility as thika tenants.
The consequence of the High Court's stay order on the operation of the 1981 Act with respect to the subject property.
Whether land vested in the State under Section 5 of the 1981 Act or Section 4 of the 2001 Act in favour of the appellants.

Legislation cited

Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981s. 3(8), s. 5, s. 6(4)
Calcutta Thika Tenancy Act, 1949s. 10A, s. 2(4a), s. 2(5), s. 2(6)
West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001s. 2(13), s. 2(14), s. 2(15), s. 4
West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010s. 2(14) amendment

Subjects

tenancy lawthika tenancypucca structurestatutory interpretationland vestingretrospective legislationlease expirationlandlord-tenant

Judgment

416 [2022]
SUPREME COURT 11 S.C.R. 416
REPORTS [2022] 11 S.C.R.

A NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS.
v.
MANI SQUARE LTD. & ORS.
(Civil Appeal No. 2402 of 2015)
B JULY 27, 2022
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Tenancy Law – Calcutta Thika Tenancy Act, 1949 – Calcutta
Thika and Other Tenancies and Land (Acquisition and Regulation)
Act, 1981 – ss. 3(7) 3(8) & 5 – West Bengal Thika Tenancy
C
(Acquisition and Regulation) Act, 2001 – ss. 2(14) & 4 – Thika
Tenant – On 15.12.1973, ‘JN’ leased out the property to appellants
for a period of 20 years – By this lease deed, the lessees were also
given the right to raise construction and to use and enjoy the same
during the tenure with a condition that on expiry of the lease on
D 30.11.1993, the lessees will have to deliver vacant and peaceful
possession – The lessees raised some structure over the subject
property – After the Act of 2001 came into force, the appellant filed
application before the Controller for declaration that they were thika
tenants and they had deposited rent with interest with the Controller
for the period from 18.01.1982 till 2007 – After demise of the said
E
‘JN’, his heirs, transferred the property to seven companies – The
Controller declared the lessees as thika tenants over the property –
Objections raised by the respondents were rejected by the Controller
– Tribunal found no reasons to interfere with the findings of
Controller and dismissed the appeal – The High Court allowed the
F writ petition filed by respondent while holding that the appellants
did not qualify as thika tenants – On appeal, held: Section 4 of the
Act 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 – The
G
Act of 2001 and its amendments have rightly been referred to, by
the High Court in the impugned judgment while construing the Act
of 1981 – Amendment Act of 2010 was given only prospective effect
from 01.11.2010 and not the retrospective effect – The lease in
question came to an end on 30.11.1993, thereafter, the appellants
H
416
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 417
SQUARE LTD. & ORS.

ceased to be persons liable to pay rent at monthly or in any other A
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, within the meaning of Section 2(14) of the Act
of 2001 – The High Court has rightly observed that it was never
held in Purushottam Das Murarka that if tenant of a land would raise
B
pucca structure, he would automatically become a thika tenant –
The High Court has meticulously examined the matter in its right
perspective.
Dismissing the appeal, the Court
HELD: 1. The object and purpose of these enactments and C
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 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, D
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 (whether originally enacted or amended) or under Section
4 of the Act of 2001, as originally enacted. [Para 26][465-D-E] E
2. This Court 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, F
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 G
construing the Act of 1981. [Para 27][465-F-G]
2.1 There are other strong reasons for which too, the
successor enactment is required to be taken in aid for construing

H
418 SUPREME COURT REPORTS [2022] 11 S.C.R.

A the provisions of 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
B
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
C 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. 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
D
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
E 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
F
structure” could have been made different than the interpretation
of the same expression in regard to the Act of 1949. [Para
27.1][465-H; 466-A-E]
3. Significant it is to notice that even in the Act of 2001, as
originally enacted, the definition of thika tenancy in clause (14) of
G 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
H 01.11.2010 and not the retrospective effect, as was earlier given
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 419
SQUARE LTD. & ORS.

to the original Section 4 of the Act of 2001. Thus, acquisition of A
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
B
was no existing lease which could have taken the appellants within
the frame of thika tenancy on 01.11.2010. [Para 28.5][468-E-G]
4. Apart from the aforesaid view taken by us, so far as the
present matter is concerned, a fundamental reason operates
against the applicability of the Act of 1981. As noticed, after coming
into force of the Act of 1981, the same was indeed challenged by C
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 total eclipse qua the subject D
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. [Para
31][471-H; 472-A-B]
E
5. Then, the lease in question came to an end on 30.11.1993.
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 F
Section 2(14) of the Act of 2001. 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, G
fundamentally misconceived and could have only been rejected.
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

H
420 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 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. [Para 32 & 33.2][472-E-G; 473-C-D]
6. In summation of what has been discussed hereinabove,
B this Court could broadly say:
1. The Full Bench decision of Calcutta High Court in
Lakshmimoni Das is affirmed.
2. The structure, as put up by the appellants and/or their
predecessors, had been pucca structure on the property in
C question.
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.
D
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
E b. that the Act of 1981 was not operative in relation to the
property in question because of the stay order passed by the
High Court.
5. On the date when lease expired in the month of
November, 1993, the appellants and/or their predecessors were
F not thika tenants and, therefore, the Act of 2001 does not enure
to their benefit.
6. The impugned decision of the High Court, therefore,
calls for no interference. [Para 35][473-F-H; 474-A-C]
Lakshmimoni Das and Ors. v. State of West Bengal and
G Ors. AIR 1987 Cal 326 – approved.
Purushottam Das Murarka v. Harendra Krishna
Mukherjee 79 CWN 852; Sri Sri Satyanarayan & Ors.
v. S.C. Chunder 2001 (3) CHN 641; Jatadhari Daw &
Grandsons v. Smt Radha Debi & Anr. 1986 (1) CHN
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 421
SQUARE LTD. & ORS.

21; Chief Inspector of Mines and Anr. v. Lala Karam A
Chand Thapar and Ors. [1962] 1 SCR 9; Om Prakash
Gupta v. DIG Vijendrapal Gupta (1982) 2 SCC 61 :
[1982] 3 SCR 491; Bharat Aluminium Company v.
Kaiser Aluminium Technical Services Inc.(2012) 9 SCC
552 : [2012] 12 SCR 327; Union of India & Anr. v.
B
Hansoli Devi & Ors. (2002) 7 SCC 273:[2002] 2 Suppl.
SCR 324; Vijay Narayan Thatte and Ors. v. State of
Maharashtra and Ors. (2009) 9 SCC 92: [2009]
14 SCR 89
Monmatha Nath Mukherjee v. Smt. Banarasi and Ors.
63 CWN 824; Kshiroda Moyee Sen and Ors. v. C
Ashutosh Roy and Ors. 63 CWN 565; Jnan Ranjan Sen
Gupta and Ors. v. Arun Kumar Bose (1975) 2 SCC 526
: [1976] 1 SCR 105;
Ramdas Bansal (Dead) Through LR v. Kharag Singh
Baid & Ors.: (2012) 2 SCC 548 : [ 2012] 4 SCR 583; D
Hardeep Singh v. State of Punjab & Ors. (2014) 3 SCC
92 : [2014] 2 SCR 1; Afcons Infrastructure Ltd. & Anr.
v. Cherian Varkey Construction Company Private
Limited & Ors.(2010) 8 SCC 24 : [2010] 8 SCR 1053;
Gajraj Singh & Ors. v. State Transport Appellate E
Tribunal & 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) 2
SCC 132 : [2011] 2 SCR 1; Bengal Immunity Company
Limited v. State of Bihar and Ors. [1955] 2 SCR 603; F
Gammon India Ltd. v. Special Chief Secretary & Ors.
(2006) 3 SCC 354 : [2006] 2 SCR 304; Nand Ram
(Dead) Through Legal Representatives v. Jagdish
Prasad (Dead) Through Legal Representatives (2020)
9 SCC 393 - referred to. G
Case Law Reference
[1962] 1 SCR 9 referred to Para 18.1
[1982] 3 SCR 491 referred to Para 18.1
[2012] 12 SCR 327 referred to Para 18.1 H
422 SUPREME COURT REPORTS [2022] 11 S.C.R.

A [2002] 2 Suppl. SCR 324 referred to Para 18.1
[2009] 14 SCR 89 referred to Para 18.1
[1976] 1 SCR 105 referred to Para 18.2
[2012] 4 SCR 583 referred to Para 19.2
B [2014] 2 SCR 1 referred to Para 19.4
[2010] 8 SCR 1053 referred to Para 19.4
[1996] 6 Suppl. SCR 172 referred to Para 19.5
[2011] 2 SCR 1 referred to Para 20.5
C [1955] 2 SCR 603 referred to Para 20.6
[2006] 2 SCR 304 referred to Para 20.6
(2020) 9 SCC 393 referred to Para 20.8
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2402
D of 2015.
From the Judgment and Order dated 10.03.2014 of the High Court
at 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.
E
P. Chidambaram, Sr. Adv., Kunal Vajani, Pranaya Goyal, Aman
Gandhi, Abhirath Thakur, Ms. Madhumita Bhattacharjee, Ms. Srija
Choudhury, Anant, Chanchal Kumar Ganguli, Shekhar Kumar, Advs.
for the Respondents.

F The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents
Preliminary ............................................................................. 2*
G Statutory Provisions ............................................................... 3*
Background and Factual Matrix .......................................... 13*
Findings and conclusion of the Controller ............................ 17*
Findings of the Tribunal ....................................................... 23*
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 423
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

Findings of the Calcutta High Court .................................... 26* A
Previous decision of this appeal and review thereof ........... 34*
Rival Contentions ................................................................. 35*
The Appellants .......................................................... 36*
The State ................................................................... 39* B
The respondent No. 1 ................................................ 43*
Analysis ............................................................................... 48 *
The Structure in question .......................................... 48*
The statutory scheme and the import of three enactment C
with their amendments ........................................................ 50*
The relevant decisions of Calcutta High Court ......... 60*
Other miscellaneous but relevant factors .................. 63*
Conclusion ................................................................. 65 * D
Preliminary
1. This appeal is directed against the judgment and order dated
10.03.2014, 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 filed
by the respondent Nos. 1 and 2 of this appeal and has disapproved the E
orders 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 passed
by the West Bengal Land Reforms and Tenancy Tribunal at Calcutta2.
1.1. By the orders aforesaid, the Controller and the Tribunal had
concluded that the present appellants were thika tenants in respect of F
the property involved in this litigation and the landlord’s interest therein
stood 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 and
the Tribunal were not justified in accepting the present appellants as
thika tenants in respect of the property in question. G
2. Put in a nutshell, the issues involved in this appeal revolve around
thika tenancy enactments, as applicable to the property and the tenancy
1
Hereinafter also referred to as ‘the Controller’.
2
Hereinafter also referred to as ‘the Tribunal’.
*Ed. Note : Pagination is as per the original Judgment. H
424 SUPREME COURT REPORTS [2022] 11 S.C.R.

A in question. The nature of tenancy created in favour of the appellants
and/or their predecessors and impact/implication of the structure put up
by them on the property in question form the core of the typical and
peculiar questions involved in this matter.
3. Before proceeding further, we may point out that the
B consideration herein relates to thika tenancy and undoubtedly, the word
‘thika’ in Bengali means ‘temporary or partial’3.
Statutory Provisions
4. Ordinarily, we would have commenced the discussion with
relevant factual aspects but, in the present case, even for proper
C appreciation of factual matrix, an insight into the relevant provisions of
law with reference to their enactment as also chronology of their
enforcement appears necessary. Hence, before adverting to the facts
of the case, we deem it appropriate to extract the relevant statutory
provisions relating to thika tenancy, in their feasible chronology and also
with reference to their objects and reasons. We shall deal with the
D construction of phraseology of these provisions and implications thereof
a little later. For the present purpose, only the relevant provisions are
being reproduced.
5. In order to make better provisions in respect of the law of
landlord and tenant as also thika tenancy in Calcutta, the Calcutta Thika
E Tenancy Act, 1949 (West Bengal Act II of 1949)4 came to be enacted in
place of its predecessor Ordinance and with the following Statement of
Objects and Reasons: -
“STATEMENT OF OBJECTS AND REASONS
There has been a persistent demand for legislative measures for
F the protection of the thika tenants of Calcutta and the Howrah
Municipal area against arbitrary eviction and enhancement of rent.
Accordingly, an Ordinance was promulgated staying all decree or
orders for eviction of the thika tenants on any ground other than
non-payment of rent.
The present Bill has been framed, with a view to regulate the
G
rights and liabilities of the thika tenants and their landlords.”

3
Vide Sri Sri Satyanarayan & Ors. v. S.C. Chunder: (2001) 3 CHN 641- paragraph
19, reproducing from the decision in the case of Hindustan Petroleum Corporation
Ltd. v. Sashi Bhusan Mondal, APD No. 280 of 1981.
4
Hereinafter also referred to as ‘the Act of 1949’.
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 425
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

5.1. The said enactment made various provisions as regards the A
extent of thika tenancies, the grounds on which a thika tenant could
have been ejected; the procedure relating to the proceedings for
ejectment; the regulation of rent and its payment; appeals and other
special matters etc. All other provisions of this enactment are not required
to be dilated but, it is the definition of “thika tenant” occurring in clause
B
(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 a C
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 a residential, manufacturing or business purpose D
and includes the successors in interest of such person, but does
not 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 a E
registered lease, in which the duration of the lease is expressly
stated to be for a period of not less than twelve years; or
(c) who holds such land under that another person and uses or
occupies such land as a khattal.”
F
5.1.1. The nature of structure, if put up by the tenant over the
demised premises, has a bearing over the questions relating to thika
tenancy and has its direct implication in the present case, as shall be
noticed 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 Act G
of 1949. These two provisions could also be reproduced as under: -
“2. Definitions.-
*** *** ***
H
426 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (4a) “pucca structure” means any structure constructed mainly
of 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 time
B being in force or in any contract, but subject to the provisions of
sub-sections (2) and (3), a thika tenant using the land comprised
in his holding for a residential purpose may erect a pucca structure
on such land for such purpose with the previous permission of the
Controller.
C (2) On an application made by a thika tenant in this behalf,
the Controller may grant him permission to erect a pucca structure,
if the Controller is satisfied that the thika tenant -
(a) is using the structure existing on the land comprised in
his holding for a residential purpose,
D
(b) intends to use the pucca structure to be erected on
such land for a similar purpose, and
(c) has obtained sanction of a building plan to erect the
pucca structure from the municipal authorities of the area
in which such land is situated.
E
(3) No thika tenant shall be entitled to eject a Bharatia5
from the structure of part thereof in the possession of the Bharatia
for the purpose of erecting a pucca structure:
Provided that the thika tenant may by providing temporary
F alternative accommodation to a Bharatia obtain from him vacant
possession of the structure in his possession on condition that
immediately on the completion of the construction of the pucca
structure the thika tenant shall offer the Bharatia accommodation
in the pucca structure at a rent which shall in no case exceed by
more than twenty-five per centum the rent which the Bharatia
G was previously paying.”
5
The definition of the term “Bharatia”, as occurring in clause (1) of Section 2 of the Act
of 1949, is not of direct application to the present case but, for a proper comprehension
of the related provisions, the same is also reproduced as under: -
“(1) “Bharatia” means any person by whom, or on whose account, rent is
H payable for any structure or part of a structure erected by a thika tenant in his holding;”
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 427
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

5.3. It could at once be indicated that the expression “any structure” A
as occurring in clause (5) of Section 2 of the Act of 1949 as also in the
successor enactments has been a matter of several debates in the High
Court and a substantial number of decisions were rendered in that regard,
essentially to the effect that the expression “any structure”, in the context
of the enactment and its purpose, only referred to a temporary structure,
B
more specifically called “kutcha structure” as contradistinguished from
a 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 bearing
in the present case and could be noticed as under: -
“2. Definitions.- C
*** *** ***
(6) all words and expressions used but not defined in this Act and
used in the Transfer of Property Act, 1882 (IV of 1882) or the
Bengal Tenancy Act, 1885 (VIII of 1885), have the same meaning
as in those Acts.” D
6. The aforesaid Act of 1949 was repealed as a whole by the new
enactment initially carrying the title of ‘the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981’. This enactment, promulgated
on 02.11.1981, came into force with effect from 18.01.1982. Later on,
several amendments were made to this enactment, including the change
E
of its title by way of the Calcutta Thika Tenancy (Acquisition and
Regulation) (Amendment) Act, 19936. Significantly, the said Amendment
Act of 1993 was given retrospective effect from 18.01.1982, i.e., the
date of commencement of the principal enactment. With change of name,
this enactment, being West Bengal Act No. XXXVII of 1981, came to
be known as ‘the Calcutta Thika and Other Tenancies and Lands F
(Acquisition and Regulation) Act, 1981’7.
6.1. The Statement of Objects and Reasons of this enactment of
the year 1981 could also be usefully noticed as under: -
“STATEMENT OF OBJECTS AND REASONS
G
The bharatias under the Calcutta Thika Tenancy Act, 1949, are
vulnerable to the wishes of the thika tenants with regard to
6
Hereinafter also referred to as ‘the Amendment Act of 1993’.
7
Hereinafter this enactment is also referred to as ‘the Act of 1981’; and whenever
contextually required, is also referred to by its original name, i.e., Calcutta Thika
Tenancy (Acquisition and Regulation) Act, 1981. H
428 SUPREME COURT REPORTS [2022] 11 S.C.R.

A enhancement of huts or other structures occupied by them and
with regard to ejectment therefrom. The provisions of that Act do
not provide for protection of bharatias against ejectment or
enhancement of rent at the whims of the thika tenants.
Accordingly, there has been persistent public demand for regulating
the relation between thika tenants and bharatias.
B
2. The thika tenants pay some rent to the Landlords who are the
owners of the land. Thus, the landlords continue to remain as
intermediaries in Calcutta and in the Municipality of Howrah. There
has also been a long-standing public demand that each system of
intermediaries should be abolished and the State Should establish
C direct thika tenants so as to regulate the premises held by them.
3. The Calcutta Thika Tenancy (Acquisition and Regulation) Bill
1980 is intended to meet both these public demands which were
considered just fair and equitable. In order to give some protection
to the thika tenants and bharatias against ejectment, the Calcutta
D Thika 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 temporary
protection against ejectment pending enactment of a
comprehensive legislation to remove the public grievances as
E already stated. Pending proceedings and appeals of ejectment of
bharatias and thika tenants will stand abated.
4. This bill is also intended to provide for the acquisition of the
rights of landlords in lands comprised in thika tenancies on payment
of an amount calculated at a rate not exceeding ten rupees per
F square metre on the lines of the amount laid down in the Urban
Land (Ceiling and Regulation) Act, 1976 and vesting thereof in
the State free from all encumbrances. Thika tenants shall hold
their lands under the State on terms and conditions to be prescribed
in the rules, and the bharatias will enjoy the same protection
against ejectment and enhancement of monthly rent, as enjoyed
G
by the premise tenants under the West Bengal Premises, Tenancy
Act, 1956. Since bharatias constitute a very poor section of the
urban population, it has been provided that, instead of Civil Courts,
disputes between bharatias and thika tenants will be decided by
Controller.
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 429
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

5. It is also proposed that the provisions of the West Bengal Land A
Holding Revenue Act, 1979 shall apply to thika tenants in the
matter of payment of revenue, but with a separate schedule as
shown 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 said B
Amendment Act of 1993 had been as under: -
“STATEMENT OF OBJECTS AND REASONS.
Experience of the last few years has shown that there are some
practical difficulties in the operation of the Calcutta Thika Tenancy
(Acquisition and Regulation) Act, 1981. C
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 thika
tenanted land;
c) to make some other, changes as have been felt necessary D
to 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 to E
take note of the existing Preamble part of this enactment as follows: -
“An Act to provide for the acquisition of interests of landlords
in respect of lands comprised in thika tenancies and certain other
tenancies and other lands in Calcutta and Howrah for development
and equitable utilization of such lands. F
Whereas it is expedient to provide for the acquisition of interests
of landlords in respect of lands comprised in thika tenancies and
certain other tenancies and other lands in Calcutta and Howrah
for development and equitable utilization of such lands with a view
to subserving the common good;”
G
6.4. In the Act of 1981, as originally enacted, the terms “pucca
structure” and “thika tenant” were defined respectively in clauses (7)
and (8) of Section 3 in the following terms: -
“3. Definitions.-
*** *** ***
H
430 SUPREME COURT REPORTS [2022] 11 S.C.R.

A (7) “pucca structure” means any structure constructed mainly of
brick, stone or concrete or any combination of these materials, or
any other material of a durable nature;
(8) “thika tenant” means any person who occupies, whether under
a written lease or otherwise, land under another person, and is or
B but for a special contract would be liable to pay rent, at a monthly
or at any other periodical rate, for that land to that another person
and has erected or acquired by purchase or gift any structure on
such land for residential, manufacturing or business purpose and
includes successors-in-interest of such person.”
6.5. In this enactment, the text of Section 5, as originally enacted,
C and as later on substituted by the Amendment Act of 1993, had been
materially different and carry their own relevance for the questions at
hand. We may, therefore, usefully reproduce the text of Section 5 before
and after the Amendment of 1993 in juxtaposition, as under: -
Section 5 as originally enacted. Section 5 as substituted by the
Amendment Act of 1993.
D "5. Lands comprised in thika tenancies “5. Lands comprised in thika
and other lands, etc., and right, title and tenancies, khas lands, etc. to vest in the
interest of landlords in such lands to State.-With effect from the date of
vest in the State.-With effect from the commencement of this Act, the
date of commencement of this Act, lands following lands along with the interest of
comprised in thika tenancies and other landlords therein shall vest in the State,
lands held under any person in perpetuity free from all encumbrances, namely: -
E or under registered lease for a period of not (a) lands comprised in and
less than twelve years or held in monthly appurtenant to tenancies of thika
and periodical tenancies for being used or tenants including open areas, roads,
occupied as khatals along with easements, passages, tanks, pools and drains;
customary rights, common facilities and (b) lands comprised in and
such other things in such thika tenancies appurtenant to bustee on khas lands of
and khatals attached to or used in landlords and lands in slum areas
connection with such thika tenancies, and including open areas, roads, passages,
F khatals and the right, title and interest of tanks, pools and drains;
landlords in such lands shall vest in the (c) other lands not covered by clauses
State free from all encumbrances: (a) and (b) held under a written lease
Provided that the easements, rights, or otherwise, including open areas,
common facilities or benefits enjoyed by a roads, passages, tanks, pools and
thika tenant or an occupier of any land drains;
under any person in perpetuity or any land (d) lands held in monthly or other
under any person under registered lease for periodical tenancies, whether under a
G a period of not less than twelve years or a written lease or otherwise, for being
khatal in khas lands of the landlords shall used or occupied as khatal:
not be affected in any way by such Provided that such vesting shall not
vesting." 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).”
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 431
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

6.6. The particular expression “tenant of other lands” as occurring A
in Section 5 after its substitution by the Amendment Act of 1993 was
also defined in clause (7B) of Section 3 by way of the same amendment
and it reads as under8:-
“3. Definitions.-
*** *** *** B

(7B) “tenant of other lands” means any person who occupies
other lands under another person, whether under a written lease
or otherwise, and is or but for a special contract would be liable to
pay rent at a monthly or periodical rate for occupation of such
other lands, and includes the successor-in-interest of such person;” C

7. The aforesaid Act of 1981 was repealed by the West Bengal
Thika Tenancy (Acquisition and Regulation) Act, 20019. This new
enactment came into force from 01.03.2003. Its Statement of Objects
and Reasons reads as under: -
D
“STATEMENT OF OBJECTS AND REASONS.
The Calcutta Thika and other Tenancies and Lands (Acquisition
and Regulation) Act. 1981 (West Ben. Act XXXVII of 1981)
(hereinafter referred to as the said Act) was amended in 1993 to
make up for certain deficiencies in the said Act. In course of
E
administering the said Act, it has come to the notice of the State
Government that certain provisions of the said Act are still
defective, leaving scope for addition to existing litigations. It is,
therefore, necessary to amend the said provisions.
2. The bill has been framed with the above object in view.”
F
7.1. In this enactment of the year 2001, the expression “thika
tenant” came to be defined in clause (14) of Section 2. The said clause
(14) was also amended by the West Bengal Thika Tenancy (Acquisition
and Regulation) (Amendment) Act, 201010 with effect from 01.11.2010.
We may place the text of this clause (14), as originally enacted and as
amended by the Amendment Act of 2010 in juxtaposition as under: G

8
There had been several other insertions and substitutions by way of the said Amendment
Act of 1993 which need not be noticed for being not relevant in respect to the questions
at hand.
9
Hereinafter also referred to as ‘the Act of 2001’.
10
Hereinafter also referred to as ‘the Amendment Act of 2010’. H
432 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Clause (14) of Section 2 as originally Clause (14) of Section 2 as substituted
enacted. by the Amendment Act of 2010.
“(14) "thika tenant" means any person who “(14) "thika tenant" means any person
occupies, whether under a written lease or who occupies, whether under a written
otherwise, land under another person, and lease or otherwise, land under another
is, or but for a special contract, would be, person, and is, or but for a special
liable to pay rent at a monthly or any other contract, would be, liable to pay rent at
periodical rate for that land to that another a monthly or any other periodical rate
B person, and has erected or acquired by for that land to that another person, and
purchase or gift any structure on such land has erected or acquired by purchase or
for residential, manufacturing or business gift any structure including pucca
purpose, and includes the successors-in- structure, if any, on such land for
interest of such persons but excludes any residential, manufacturing or business
resident of a structure forfeited to the State purpose, and includes the successors-in-
under sub-section (2) of section 6 of this interest of such persons but excludes
C Act irrespective of the status, he may have any resident of a structure forfeited to
enjoyed earlier.” the State under sub-section (2) of
section 6 of this Act irrespective of the
status, he may have enjoyed earlier.”
7.2. The expression “pucca structure” came to be defined in
clause (13) of Section 2 of the Act of 2001. It is noticed that this definition
of “pucca structure” in the Act of 2001 was further amended by Act
D
No. XI of 2019 but we need not refer to the said amendment for being
not relevant for the present purpose. The said clause, as originally enacted,
reads as under: -
“2. Definitions.-
E *** *** ***
(13) “pucca structure” means any structure constructed mainly
of brick, stone or concrete or any combination of these materials,
or any other material of a durable nature;”
7.3. Section 4 of this enactment provides for vesting of the land
F comprised in thika tenancies and other particular class of lands in the
State with effect from 18.01.1982. Noticeably, this date ‘18.01.1982’ is
the same date from which the Act of 1981 came into force and even the
Amendment Act of 1993 was enforced. This Section 4, as originally
enacted, reads as under: -
G “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 landlords
therein shall be deemed to have vested in the State, free from all
encumbrances-
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 433
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

(a) lands comprised in, and appurtenant to, tenancies of thika A
tenants including open areas, roads; and
(b) lands held in monthly or other periodical tenancies, whether
under a written lease or otherwise, for being used or occupied as
khatal:
Provided that any land comprised in, and appurtenant to, B
tenancies of thika tenants created after the 18th day of January,
1982, shall also be deemed to be vested in the State, free from all
encumbrances with effect from the date of creation of tenancies
of thika tenants:
Provided further that such vesting shall not be deemed to have C
affected in any way the easements, customary rights or other
facilities enjoyed by thika tenants, bharatias or occupiers of land
coming within the purview of this section:
Provided also that nothing contained in this section shall prevent
the State Government or the local authority from taking up any D
development work on the land appurtenant to tenancies of thika
tenants for public purpose.”
7.3.1. Yet further, clause (a) of the above-quoted Section 4 was
amended by the Amendment Act of 2010 and after its amendment,
coverage of the land for the purpose of vesting in the State was E
comprehensively provided with the broader expression “thika land”. This
clause (a) of Section 4 of the Act of 2001 before and after the amendment
could also be placed in juxtaposition as under: -
Clause (a) of Section 4, as originally Clause (a) of Section 4, as substituted
enacted. by the Amendment Act of 2010.
“(a) lands comprised in, and appurtenant “(a) thika land;”
F
to, tenancies of thika tenants including
open areas, roads; and”

7.4. In order to specify the meaning of the expression “thika
land”, clause (15) also came to be inserted to Section 2 of the Act of
2001 by way of the said Amendment Act of 2010 in the following terms:- G
“2. Definitions.-
*** *** ***
(15) “thika land” means any land comprised in and appurtenant
to, tenancies of thika tenant irrespective of the fact whether there
H
434 SUPREME COURT REPORTS [2022] 11 S.C.R.

A is any claim of such tenancy or not and includes open areas and
roads on such land.”
8. The aforesaid are the main provisions in the statutes with
reference to the nature of tenancies and other eventualities, including
those of the nature of structure put up by the tenant. We shall refer to
B the other provisions of law at the appropriate stage and to the extent
requisite.
Background and Factual Matrix
9. As regards the factual matrix of the present case, a brief
chronology of events could be noticed as follows: -
C
9.1. One Laxmi Narayan Ghosh was owner of the land involved
herein admeasuring 2 Bighas, 10 Kottahs and 3 Chhitacks, more or less,
being Holding No. 196, Picnic Garden, Tiljala11. The said Laxmi Narayan
Ghosh died intestate on or about 23.07.1950 leaving behind his wife
Smt. Nilu Bala Ghosh and his son Jitendra Nath Ghosh. Thereafter,
D Smt. Nilu Bala Ghosh died intestate on 07.12.1970 and Jitendra Nath
Ghosh became the absolute owner of the subject property.
9.2. On 15.12.1973, by a registered deed of lease, Jitendra Nath
Ghosh leased out the subject property to Badri Narayan Kumar and
Nemai Chandra Kumar, being the partners of M/s. Kumar Industries,
E for a period of 20 years commencing from 01.12.1973 and expiring on
30.11.1993 at the rent and on the terms and conditions contained in the
said registered deed of lease.
9.3. By the said deed of lease, the lessees were also given the
right to raise construction on the subject property and to use and enjoy
F the same during the tenure of the lease with a condition that on expiry of
the lease on 30.11.1993, the lessees will have to deliver vacant and
peaceful possession of the said property in the same position as it was at
the time of execution of lease to the lessor, by removing the construction
thereon. Admittedly, the lessees raised some structure over the subject
property. The nature of this structure, and its use, have also formed a
G
part of contentions in this appeal. Hence, we shall elaborate on the same
at 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 herein
referred to as the ‘subject property’ or ‘the property in question’.
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 435
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

9.4. On 18.01.1982, the Act of 1981 came into force and A
immediately thereafter, the said Jitendra Nath Ghosh (lessor) filed a writ
petition in the High Court under Article 226 of the Constitution of India
challenging 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, an
interim order was passed therein staying the operation of the impugned
B
Act of 1981 as well as Rules framed thereunder insofar as the subject
property was concerned. Thereafter, from time to time, various orders
were passed therein and ultimately, the aforesaid writ petition, C.R. No.
10449 (W) of 1983, was directed to be transferred to the Tribunal for
passing appropriate orders.
9.5. In the meantime, the lease granted by the said original owner, C
Jitendra Nath Ghosh, in favour of M/s. Kumar Industries, represented
by its partners Badri Narayan Kumar and Nemai Chandra Kumar, came
to an end by efflux of time on 30.11.1993.
9.6. After the Act of 2001 came into force, the said M/s. Kumar
Industries represented by its partners filed an application before the D
learned Controller on or about 10.04.2003, being Return No. 67/234, for
a declaration that they were thika tenants of the subject property and
claimed that they had deposited rent with interest with the Controller for
the period from 18.01.1982 till 2007. The proceedings on this application
filed by the lessees have ultimately led to the present appeal. E
9.7. Before adverting to the proceedings on the application filed
by 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 of
conveyance dated 10.09.2007, transferred the property in question to F
seven companies including the respondent No. 1 Mani Square Ltd. and
also informed the Assessor, Tollygunge Tax Department, Kolkata
Municipal Corporation about such conveyance by their letter dated
13.09.2007. Pursuant to this, the said six companies along with the
respondent No. 1 applied before the Kolkata Municipal Corporation to
get their names mutated as owners of the property in question in the G
Municipal records. It appears that the High Court of Calcutta, by its
order dated 19.09.2008 sanctioned the scheme of amalgamation whereby,
the said six companies were amalgamated with the respondent No. 1
Mani Square Ltd. and consequently, all the assets and properties of the
said six companies vested in the respondent No. 1. Thereafter, on H
436 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 15.07.2010, the respondent No. 1 applied before the Kolkata Municipal
Corporation in the prescribed form, for mutation of the subject property
exclusively in its name in the Municipal records. According to the
respondent No. 1, only at that stage, it was informed that the Controller
had declared the lessees as thika tenants over the property in question.
The respondent No. 1 raised objections whereupon, the matter was re-
B
examined by the Controller. This has been the reason that we have two
orders passed by the Controller in this matter, respectively dated
27.01.2010 and 01.08.2012.
Findings and conclusion of the Controller
C 10. For the questions involved in this matter, it shall be apposite to
take note of the proceedings relating to the said application moved by
the lessees and the findings returned by the Controller in necessary details.
10.1. After moving of the application aforesaid, spot enquiry was
conducted by an enquiry officer on the subject property; and notices
D were sent to the landlord Jitendra Nath Ghosh and thereafter to Asit
Ghosh. However, no objection was filed.
10.2. The Controller, in his order dated 27.01.2010, held that the
applicants qualified as thika tenants under Section 2(14) of the Act of
2001 in respect of 2B, 7K of the land in the subject property. In holding
E so, the Controller perused the rent receipts issued on behalf of the then
landlords to the returnees as well as the copies of the documents endorsing
M/s. Kumar Industries as lessee. The Controller also examined the report
of the enquiry officer, which recommended thika tenancy while
mentioning the existence of structures like office rooms, asbestos sheds,
storage place etc. along with open space.
F
10.3. Therefore, the learned Controller declared the applicants
as thika tenants. Further to this, the legal heirs of late Badri Narayan
Kumar filed an application before the Controller for substitution of their
names as thika tenants and the learned Controller substituted them as
thika tenants in place of late Badri Narayan Kumar.
G
10.4. As noticed hereinbefore, on 15.07.2010, the respondent
No. 1, unaware of the abovementioned developments whereby the
learned Controller had declared the appellants as thika tenants, applied
before the Kolkata Municipal Corporation for mutation of the subject
property exclusively in its name in the Municipal records. In response to
H the said application for mutation, the Kolkata Municipal Corporation, by
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 437
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

its communication dated 28.07.2010, asked the respondent No. 1 to submit A
documentary evidence to prove as to how the said seven companies
became owners of the property in question. It had been the case of the
respondent No. 1 that in order to find out the present position of the
subject property, enquiries were made and searches were conducted;
and in that process, it was learnt that the said ex parte order dated
B
27.01.2010 had been passed by the learned Controller declaring the
appellants as thika tenants.
10.5. Having noticed the said order dated 27.01.2010, the
respondent No. 1 filed an application dated 26.08.2010 before the State
Government under Section 13 of the said Act of 2001 whereupon, the
Joint Secretary to the Government in its Department of Land and Land C
Reforms, requested the learned Controller to dispose of the application
of the respondent No. 1 after giving an opportunity of being heard to all
the concerned.
11. Having heard the parties, the Controller proceeded to deal
with the matter in his impugned order dated 01.08.2012. Though D
preliminary objections regarding unexplained delay in filing the return
were taken but, the Controller considered it proper to examine the matter
on merits rather than on technical grounds.
11.1. The Controller, inter alia, observed that when the lease
deed was signed, the Act of 1949 was in force and in terms of Section E
2(5) thereof, the following four foundational facts were required to be
examined: -
a. Whether the claimant was holding the land under a written
lease, or under any other person, and was paying the rent
periodically. F
b. Whether the claimant was holding the land under a lease
whose duration was expressly stated to be not less than 12
years.
c. Whether the claimant had erected or acquired (by purchase
G
or gift) any structure on the land for residential,
manufacturing or business purpose.
d. Whether the claimant was holding such land or was using
or occupying it as khatal.
H
438 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 11.2. The Controller observed that in the present case, the claimant
was not contending that the land was ever occupied as khatal, so point
(d) was answered in the negative. Duration of the lease was also more
than 12 years, so point (c) was also negatived. The Controller further
observed that as per the assessment register of the Corporation, at all
times, there were pucca structures on the land; and since the High
B
Court 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 that
the lessees were not thika tenants per the Act of 1949. The relevant
observations and findings of the learned Controller could be usefully
C extracted 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 the
said premises was ever used or occupied as a khatal. Accordingly,
clause (iv) of the aforesaid ingredients Can be answered in the
D negative at the very on set. In my opinion, the test mentioned in
Clause (ii) above regarding duration of the lease has to be answered
in the negative as the duration of The Said lease was admittedly
for more 12 years. Moreover, the 1947-48 and 1982 assessment
register of the Corporation as disclosed by the parties clearly show
that at all material times there were (and still are) “places
E structures at the said premises within the meaning of a “pucca
structures” under the Thika Act. It is also found that there are
structures having pucca foundation, pucca floors and pucca wall
and as disclosed by the report of the said spot enquiry there exist
brick built-walls with R.T./Tin shed in the said premises. Applying
F the ratio of the decision of the Hon’ble High Court at Calcutta in
2001 (3) CHN 641 (Sri Sri Satyanarayan and Ors. vs. S.C.
Chunder), for a claimant to be considered a Thika tenant under
the Calcutta Thika Tenancy Act, 1949, the structure constructed
by him/it in must not be pucca structure. I therefore find that the
applicant parties did not qualify as thika tenants under the then
G existing Calcutta Thika Tenancy Act, 1949.”
(emphasis supplied)
11.3. The Controller further observed that the appellants did not
qualify as thika tenants under Section 3(8) of the Act of 1981 either,
H since even after altering the definition, the exclusion of pucca structures
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 439
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

remained. It was also found that the lease, based on which the lessees A
were claiming to be thika tenants, had expired on 30.11.1993 and there
was 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 no
jural relationship with the lessor; and they being essentially trespassers
B
on the land, were not thika tenants under Section 2(14) of the Act of
2001. It was also held that the Act of 1949 and the Act of 1981 were not
applicable to the property in question. The Controller also observed that
the stay order of the High Court was only limited to restricting the
application of the Act of 1981 and not the Act of 2001. However, and
even after having held that the applicants were not thika tenants and C
there was no relationship of landlord and tenant on the date when the
Act of 2001 came into force, the Controller, yet, proceeded to reject the
objections with reference to the fact of erection of pucca brick wall
over the property in question while observing that in view of the decision
of Calcutta High Court in the case of Purushottam Das Murarka v.
D
Harendra Krishna Mukherjee: 79 CWN 852, subsequent erection
of brick wall will not take the applicants outside the definition of thika
tenant.
11.4. The relevant observations and conclusion of the learned
Controller could also be usefully extracted from the typed copy of the
order, as placed before us as Annexure P2 (at pp. 101-104 of the paper- E
book): -
“13. This authority also finds that that the lease granted by the
concerned landlords to the said lessee, on the strength of which
the applicant parties are claiming to be thika tenants, expired on
30thNovember 1993. After such expiry, there was no relationship F
of Lessor-Lessee between be owners of the concerned premises
and the applicant parties. Accordingly, on 1st March, 2003, when
the provisions of the West Bengal Thika Tenancy (Acquisition
and Regulation) Act, 2001 came into force, the ere-lessees (sic)
had become at the highest lessees at sufferance having no jural G
relationship with the lessor. The judgment cited by the objector
for this proposition i.e. AIR 1928 Cal 753 is squarely applicable to
the facts of the case. Going by that judgment, the applicant parties
became trespassers or at the highest tenants at sufferance after
expiry of lease. Therefore, they cannot qualify as thika tenants
H
440 SUPREME COURT REPORTS [2022] 11 S.C.R.

A within the meaning of Section 2(14) of Section 2(14) of the said
Act of 2001 and the said premises cannot qualify thika land within
the meaning of Section 2(15) of the said Act of 2001. From the
relevant records which are now before this Forum, it is abundantly
clear that neither the Calcutta Thika Tenancy Act, 1949 or the
Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981
B
or any Rules framed thereunder could ever be applicable to the
said premises. The receipts granted by the landlords describing
the lessees as thika proja as claimed by the applicant, parties,
cannot help the applicant parties. It appears that the said receipts
are general receipts, catering both to monthly and thika tenants
C and the issuance thereof cannot ipso facto clothe the grantees-
applicant parties with the status of thika tenancy. That apart, the
status of the applicant parties has to be culled out from the
provisions of law the registered lease deed and not from the private
description provided in certain rent receipts. The claim of Thika
tenancy of the applicant parties on the basis of this rent bill /
D
receipt is therefore doubtful.
14. The objector has referred to a writ petition filed on 30th
September, 1983 where an order of stay of operation of Calcutta
Thika Tenant (Acquisition & Regulation) Act, 1981 was Made.
According to the objector, this order is still subsisting which would
E negate the application of 2001 Act to the land in question. I reject
this proposition since the Said order was expressly restricted to
the 1981 Act. Therefore the order cannot be interpreted to apply
to the 2001 Act and/or the 2010 Amendment Act,
15. Even though I have held that the applicant parties were not
F tenants nor there was any Landlord-Tenant relationship as on the
date when the 2001 Act came into force and consequently is on
the date of the 2010 Amendment, I am constrained to reject the
application by the objector n (sic-on?) the last point urged by the
applicant parties that is malting (sic) of pucca brick wall does not
G exclude the applicant parties from the definition of thika tenant. I
accept the proposition laid down in 729 CWN 852 relied on by the
applicant parties to hold that subsequent erection of brick wall
will not take the applicant parties outride (sic) the definition of
thika tenant. Therefore, the applicant parties were indeed thika
tenants and the judgment reported in 79 CWN 852 is squarely
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 441
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

applicable to their case. On that basis I have no option but to A
reject the application of the objector.
I accordingly hold that Bari Narayan Kumar, since deceased
and Nemai Chandra Kumar were the Thika Tenants in the subject
premises.
After expiry of Badri Narayan Kumar on 06/07/2006, Sint. B
Jharna Kumar, Sri Debashis Kumar, Smt. Sanchita Paul, Sudipta
Kumar & Smt. Jyotsna Roy, alongwith Sri Nemai Chandra Kumar
are declared as Jt. Thika Tenants.
Thus the earlier order of Thika Tenancy Controller dt.
27.01.2010, stands. C

The matter is accordingly disposed of on contest.”
(emphasis supplied)
11.5. Hence, objections of the respondent No. 1 were rejected. It
was held that Badri Narayan Kumar and Nemai Chandra were thika D
tenants, and after the expiry of Badri Narayan Kumar, his legal heirs
were joint thika tenants.
Findings of the Tribunal
12. The decision aforesaid was challenged before the Tribunal in
O.A. No. 2833/12 (LRTT) and which was decided on 18.11.2013. The E
Tribunal predominantly based its decision on the Act of 2001 and made
various observations including that the unauthorised erection of pucca
structure by a thika tenant without permission of the Controller might
entitle the landlord to bring an action for removal of the unauthorised
structure or for ejectment but, the nature of tenancy was not changed; F
that construction of pucca structure was not a bar to claim the status of
thika tenancy; that for the question at hand and to determine if the land
vested in the State by virtue of the Act of 2001, simply letting out of the
land was to be seen and not the nature of construction.
12.1. The Tribunal, in its elaborate judgment relied upon various G
authorities and referred to various principles but the crux of its
consideration had been the overriding impact and effect of the Act of
2001. As regards the structure in question, the Tribunal held it to be
“semi-pucca” but, again observed that all types of structures were
included within the meaning of “any structure” in the definition of thika
tenant in the Act of 2001, which was a beneficial legislation. H
442 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 12.2. Some of the observations and findings of the Tribunal could
be usefully extracted from the typed copy of its judgment placed before
us as Annexure P5 (at pp. 200-207 of the paper-book), which would
read as under: -
“16.3 By such amendment confusion and ambiguity to interpret
B the words “any structure” has been totally dispelled. A particular
Thika Land may now vest in the state with effect from 18.01.1982
in a suo-motu proceeding, even if there is no claimant as on
01.03.2003. Any suo-motu proceeding initiated prior to the instant
O.A. the impugned proceeding was initiated on the basis of
question raised by the applicant before the Government in the
C year 2010 and challenging thereby the decision dated 27.01.2010
of the Thika Controller. We cannot interpret the law otherwise so
that the leasing out of land becomes operative again after complete
abolition of Zamindari System by the W.B.E.A. Act, 1953.
16.4 If it is presumed that the respondents were not a Thika Tenant
D in terms of the provisions of the Act, 1981, then the impugned
proceeding initiated by the Controller recognizing the occupiers
on the land taken on lease prior to 18.01.1982 is a valid proceeding
as the respondents were in possession on 18.01.1982 and again
on 01.03.2003. The respondents became Thika Tenant under the
E Act, 2001 and the suit land vested in the state with effect from
18.01.1982.
*** *** ***
16.5 It is an admitted fact that the structure constructed on the
suit land by the respondents was with tin shed. The tin shed
F structure was made with authority given by the landlord and hence
the same was not unauthorized. The nature of the structure is
undoubtedly semi-pucca. The tin-shed structure cannot be a pucca
structure within the meaning of pucca structure in the Act, 1981
after 1993 Amendment as all the materials are not of durable
G nature. Again, all types of structures are included within the
meaning of ‘any structure’ in the definition of Thika Tenant in the
Act, 2001.
*** *** ***
17… The Act 2001 is a beneficent statute having a chequered
H history making gradual headways to grant benefit to the occupier
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 443
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

on lands belonging to others and to sub-serve common good. A
Hence, there is no doubt, whatsoever, that the substituted words
“any structure including pucca structure” operate with effect from
18.01.1982, the date given retrospective effect in the Act, 2001
before amendment Act, 2010 was brought in the Statute.
*** *** *** B
18.1 …It might happen that a particular occupier could not be
declared as Thika Tenant in view of the provisions of the Act,
1981 & the Act, 1949. But in view of the provisions of Sec. 3
inserted in the Act, 2001 conferring over-riding effect to the
provisions of the Act, fresh declaration/ determination is not a bar
in the perspective of this radically amended Act as because C
legislature enacted law with retrospective effect and as because
observations from a judgment have to be considered in light of the
questions which were before the Court. But there was no scope
to place before the Court the new issues for decisions in the past
as the questions / issues were not existing at the time of past D
decisions prior to the enactment of the Act, 2001. Because of
subsequent legislation in 2001, there has been effective changes
of the pre-existing statutory provisions with retrospective effect.
Hence, it is well settled that the previous judgement may be
reviewed.”
E
(emphasis supplied)
12.3. Thus, the Tribunal proceeded on the finding that even if the
occupier could not be declared to be a thika tenant under the Act of
1949 or the Act of 1981, the decision could be reviewed because of the
change in the pre-existing statutory provisions with retrospective effect.
As regards the matter of filing of return, the Tribunal observed that such F
filing was meaningless because its purpose was for taking consequential
action 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 of
the Controller and proceeded to dismiss the appeal. G
13. Aggrieved by the decisions aforesaid, the respondent No. 1
preferred a writ petition in the High Court, being W.P.L.R.T. No. 325 of
2013, which was considered and allowed by the High Court by its
impugned judgment and order dated 10.03.2014 while holding that the
present appellants did not qualify as thika tenants.
H
444 SUPREME COURT REPORTS [2022] 11 S.C.R.

A Findings of the Calcutta High Court
14. Having regard to the submissions made and the questions
involved 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 aspects
B and findings of the Controller and the Tribunal and then, particularly
noticed the admitted position that the lessees had raised pucca structure
having pucca foundation, pucca floor and pucca wall with partly tin
and partly tile shed on the roof and used the premises, including the
structure constructed thereat for running their factory activities. The
C High 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 said
enactment qua the property in question. The High Court also specifically
took note of the fact that the lessees never claimed themselves as thika
tenants before filing the return, which they filed on 10.04.2003, only
D after the advent of the Act of 2001. The High Court, thereafter, proceeded
to deal with the principal questions involved in the matter with reference
to the said three thika tenancy enactments while pointing out that the
tenancy in favour of the predecessor-in-interest of the present appellants
was created when the Act of 1949 was in operation; was subsisting
E when the Act of 1981 came into operation; and the present appellants
were claiming thika tenancy rights under the Act of 2001.
14.2. Proceeding with the definition of “thika tenant”, as contained
in Section 2(5) of the Act of 1949, the High Court observed that the
lease having been granted in favour of the lessees for a period of more
F than 12 years i.e., for 20 years and the lessees having constructed pucca
structure having pucca foundation, pucca floor and pucca walls with
tile and tin shed on the roof in contradistinction to any kutcha or temporary
structure as contemplated under the said Act, the said lessees cannot be
regarded as thika tenants within the ambit of Section 2(5) of the Act of
1949.
G
14.3. Furthermore, noting that the expression “any structure” in
Section 2(5) of the Act of 1949 had been interpreted to mean only
temporary 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
H High Court in the case of Lakshmimoni Das and Ors. v. State of West
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 445
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

Bengal and Ors.: AIR 1987 Cal 326, the Court cleared the clouds A
upon the question as to whether the present case qualified the requirement
of “any structure” by concluding in the negative. The High Court, inter
alia, observed and held as under (at p. 14 of the impugned order): -
“Considering the nature of the construction which was made
mainly of bricks as mentioned above we cannot hold that the B
structure which was constructed by the then lessee was either
temporary or Kutcha structure. As such we can safely hold that
this part of the requirement of Section 2(5) of the said Act, was
not fulfilled in the instant case.”
(emphasis supplied) C
14.4. On the point of applicability of Section 10A inserted to the
main Act of 1949 by way of amendment in the year 1969 which gave
right to thika tenants to erect pucca structure for residential purpose
with previous permission of the Controller, the Court noted that since the
present appellants did not qualify the requirements of being a thika tenant D
under Section 2(5), they had no right to raise a pucca structure under
Section 10A of the said Act.Furthermore, the present appellants never
claimed that they raised pucca structure with the permission of the
Controller. Therefore, it was concluded that they cannot be declared as
thika tenants under the Act of 1949.
E
14.5. Moving on to the point as to whether the respondents would
qualify as thika tenants under Section 3(8) of the Act of 1981, the Court
examined the relevant provisions and held that the requirements under
this Section 3(8) were exactly the same as were under Section 2(5) of
the Act of 1949 except the exclusion parts; and thus, by deleting and/or
omitting the said exclusion parts of the Act of 1949 from the definition of F
thika tenant under Section 3(8) of the Act of 1981, the lessees under a
lease even for more than 12 years were also brought under the purview
of thika tenancy but, the other essential conditions remained the same
namely, those of the tenant’s liability to pay rent under a lease or
otherwise as also the requirement that such tenant had erected or acquired G
by purchase or gift any structure on such land either for residential or
manufacturing or business purpose.
14.6. The High Court took note of the fact that the Act of 1981
came into operation with effect from 18.01.1982 and then, found that as
per the admitted facts of the case, while the requirement of liability to
H
446 SUPREME COURT REPORTS [2022] 11 S.C.R.

A pay rent for the demised land continued until 30.11.1993 as per their
lease deed but, the lessees failed to fulfil the other half of requirement,
i.e., of erecting or acquiring a kutcha or temporary structure. The High
Court held that the pucca structure erected on the demised land by the
lessees cannot be considered within the ambit of “any structure”. The
High Court, inter alia, held as under (at pp.17-18 of the impugned order):-
B
“Since the said tenancy continued till 30th November, 1993
it cannot be disputed that the said tenant had liability to pay rent
for the demised land to their landlord till 30th November, 1993.
Thus, this part of the requirement under Section 3 (8) of the said
Act is fulfilled in the instant case. However, the other requirement
C i.e., erection and/or acquisition by purchase or gift, any structure
on such land by the tenant for residential, manufacturing or
business purpose, is not satisfied in the instant case as admittedly
the said lessee did not raise any kutcha structure and/or temporary
structure on the demised land. We have already indicated above
D that the expression “structure” used in Section 3(8) of the said
Act should be construed as “kutcha” structure and/or temporary
structure in contra-distinction to the permanent or “pucca” structure
as was held by the Division Bench of this Hon’ble Court in the
case of Jatadhari Daw & Grandsons -Vs- Smt. Radha Devi &
Anr. (Supra) which was subsequently affirmed by the Full Bench
E of this Hon’ble Court in the case of Lakshmimoni Das -Vs- State
of West Bengal (Supra).”
(emphasis supplied)
14.7. The High Court, thereafter, took up for consideration a
F somewhat ticklish issue pertaining to this case, being related with the
effect of retrospective amendment of Section 5 of the Act of 2001.
After an elaborate reference to the unamended provisions as also the
amended provisions which were given retrospective effect from the very
date of commencement of the original enactment, the High Court also
took note of all the salient features of the pronouncement of the Full
G Bench in the case of Lakshmimoni Das (supra) and then, analysed the
position of law in the following words (at pp.36-40 of the impugned
order): -
“Thus we find that the Full Bench of this Hon’ble Court held in
no uncertain term in the said Lakshmimoni Das’s case (Supra)
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 447
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

that no other land save and except the thika tenancy land and A
khatal land, could be vested under the original provision of Section
5 of the Act of 1981. Now let us consider the effect of the amended
provision of Section 5 of the Act of 1981 which the Special Bench
had no occasion to consider as the said amended provision was
introduced in the Act of 1981 after the judgment was delivered by
B
the Special Bench in Lakshmimoni Das’s case (Supra).
On plain reading of the amended provision of Section 5 of the
said Act, it appears to us that apart from thika tenancy property
and/or the khatal land, some other land which was neither thika
tenancy land nor khatal land, was sought to be vested under Section
5(c) of the said Act. C

We feel that deep analysis of this provision is necessary to find
out the real intention of the legislature in introducing the said
amendment. Did the State Legislature really intend to vest land of
any description which was let out to tenant either under a written
lease or otherwise? Had it really been so, then while enacting a D
new legislation on the very same subject in 2001, the State
Legislature would not have omitted the provision regarding vesting
of other land which was there in the Act of 1981 from the Act of
2001.
If we compare the original provision of Section 5 of the Act of E
1981 with the amended provision of Section 5, then it appears to
us that the provision relating to vesting of thika land and other
land either occupied and/or used as khatal which was there in the
original provision of Section 5 was retained in the amended
provision of Section 5 of the said Act. What more was introduced F
in the amended provision was vesting of Bustee land situated in
the khas land of the landlord, land in slum areas and other land
which was neither thika tenancy land nor Bustee land, nor land in
slum area nor land occupied and/or used as khatal. Then what
was actually intended by introducing the provision of vesting of
other land under Section 5 (c) of the amended provision? Other G
land was defined in Section 3 (5A) which included vacant land or
tank. Tenant of other land was defined in Section 3(7B) of the
amended provision which says that tenant of other land means
any person who occupies other land under another person, whether
under a written lease or otherwise, and is or but for a special H
448 SUPREME COURT REPORTS [2022] 11 S.C.R.

A contract would be liable to pay rent at a monthly or periodical rate
for occupation of such other lands, and includes the successor-in-
interest of such person. Thus, if Section 5 (c) is read conjointly
with Section 3(5A) and Section 3(7B) then it leads us to hold that
whenever any land including vacant land or tank is let out to a
tenant by the landlord even for a day or a month at a daily or
B
monthly rate, the landlord’s interest in such land will vest in the
State under Section 5 (c) of the said Act by overriding the provision
of the Transfer of Property Act (Central Law) governing the
relationship of landlord and tenant. If we hold as such , it will lead
to absurdity. Probably the State Legislature, after considering the
C absurdity and/or impossibility of implementation of the amended
provision of the Act of 1981, dropped the idea of vesting of other
land and accordingly omitted the said provisions while legislating
on the same subject in 2001. Such intention of the legislature will
be clear, if we consider the State Legislature’s choice of the date
of enforcement of 2001 Act. In fact two contradictory provisions
D
cannot co-exist and operate simultaneously in the same field. When
the subsequent legislation conveys a different intention relating to
the laws of vesting than that of the idea of vesting introduced in
the earlier Act, it goes without saying that the earlier Act was
repealed. Having regard to the fact that the Act of 2001 was
E given effect from the very same date on which the Act of 1981
was enforced, we have no hesitation to hold that State Legislature
practically abandoned its idea of vesting of any other land apart
from thika tenancy land and khatal land as on 18.01.1982 and this
conclusion is drawn by us as we find that the Act of 2001 was
given retrospective effect from the very same date when the Act
F
of 1981 was enforced. Again if the provisions of the Act of 2001
is considered, then it goes without saying that the provision relating
to vesting of landlord’s interest in the thika tenancy and khatal
land was made in the said statute in conformity with the Full Bench
Decision of this Court in Lakshmimoni Das’s case (Supra).
G Omission of the provision relating to vesting of other land was
also made in conformity with the said decision of the Full Bench
Decision in Lakshmimoni Das’s case (Supra). As such, we have
no hesitation to hold that idea of vesting the landlord’s interest in
the other land in the State under the Act of 1981 was abandoned
by the State. However, in view of the savings clause provided in
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 449
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

the Act of 2001, the vesting which had already taken place under A
the Act of 1981 in respect of thika tenancy land and khatal land
was saved. That apart having regard to the fact that the operation
of the Act of 1981 in respect of the petitioners’ property was
stayed by this court, the landlord’s interest in the said premises
could not have vested under 1981 Act. Then again the private
B
respondent also did neither submit any return under 1981 Act
claiming their tenancy under the State nor did they ever claim the
landlord’s interest vested under the said Act.”
(emphasis supplied)
14.7.1. In view of the above, the High Court held that the landlord’s C
interest in the subject property never vested in the State under the Act
of 1981.
14.8. Moving on to the Act of 2001, the High Court held that even
thereunder, 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, D
again, as originally enacted and as amended by the Act of 2010 and
then, 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 definition
of thika tenant as mentioned in Section 3(8) of 1981 Act except E
the exclusion part regarding structure which stood forfeited to the
State under Sub-Section 2(6) of the said Act. The definition of
thika tenant in Section 2(14) of Act of 2001 was amended by the
Amendment Act of 2010 and thereby the words “by purchase or
gift any structure on such land” was substituted by the words “by
purchase or gift any structure including pucca structure if any on F
such land”. Thus the expression “pucca structure” was included
in the definition clause of Section 2 (14) of the said Act for the
first time by the Amendment Act of 2010 and effect of such
amendment was given prospectively with effect from 1st
November, 2010. The effect of the amendment was not given G
from the date when the 2001 Act came into operation from 18th
July, 1981. Thus, existence of pucca structure on the said land as
on 1st November, 2010 will itself be of no help to the private
respondent inasmuch as on 1st November, 2010 there was no
subsisting lease and/or contract under which original lessees were
H
450 SUPREME COURT REPORTS [2022] 11 S.C.R.

A liable to pay rent to their landlords in respect of the land comprising
in the said premises. The lease dated 15th December, 1973 expired
by efflux of time on 30th September, 1993. After expiry of the
said lease, the lessees became trespassers and/or at best they
may be regarded as tenant by sufferance who had no liability to
pay rent to their landlord either under the said lease which stood
B
expired in 1993 or under any other law. Thus, the first part of the
requirement of Section 2(14) of the said Act is not fulfilled in the
instant case. As such the land which was comprising in the said
tenancy of the predecessor-in-interest of the private respondent
cannot vest with the State under Section 4 of the said Act.”
C (emphasis supplied)
14.9. The High Court agreed with the contention that the
expression “structure including pucca structure”, was included in Section
2(14) of the Act of 2001 only for recognizing the tenancy of those thika
tenants who constructed these pucca structures with permission of the
D Controller under provisions of the Act of 1949 or the Act of 1981, with
the building plan sanctioned by the Municipal Corporation. The High
Court further held that the decision inPurushottam Das Murarka
(supra)was misconstrued by the Controller while holding the present
appellants to be thika tenants since pucca structures were raised during
E continuance of the lease. The Court pointed out that a different principle
was laid down in that case, and both the Controller and the Tribunal
misconstrued it; and held that the impugned orders, thus, remained wholly
unsustainable in the following words: -
“In fact, this was the decision which was misconstrued by the
F Thika Controller while drawing his conclusion that since thika
tenant raised pucca construction during continuance of his lease,
they became thika tenant. In our reading, we find a different
principle was laid down in the said decision which could not be
properly understood by the controller and the Tribunal which
ultimately affirmed the Controller’s said order. It was simply
G decided therein that if a thika tenant raises any pucca construction
during the continuance of his lease without the landlord’s consent,
then the landlord may initiate action for demolition of such
unauthorized construction. It was never held in the said decision,
that if tenant of a land raises pucca structure, he will automatically
H be a thika tenant. Since the said decision was the sheet anchor
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 451
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

for coming to the conclusion that the private respondents were A
thika tenant, we cannot approve the said order of the Controller
for the aforesaid reason.”
14.10.In view of the above discussion and findings, the High Court
held that the Controller and the Tribunal were not justified in holding that
the present appellants were thika tenants in respect of the subject B
property and the landlord’s interest therein vested with the State under
the Act of 2001 with effect from 18.01.1982. Hence, the writ petition
was allowed.
14.11. Being aggrieved by the order so passed by the High Court,
the appellants have preferred this appeal. C
Previous decision of this appeal and review thereof
15. Before proceeding further, we may point out that this appeal
against the said judgment and order dated 10.03.2014 was earlier
considered and decided by a co-ordinate bench of this Court by way of
the judgment dated 24.02.2015. Therein, the matter was essentially D
considered with reference to the provisions contained in Section 2(5) of
the Act of 1949 as also the later inserted Section 2(4a) and Section 10A
to the Act of 1949; and while holding that the intention of legislature was
clear that the expression “any structure” would include both kutcha
(temporary) and pucca (permanent) structure, it was concluded that E
the appellants fulfilled all the conditions of thika tenancy as defined in
Section 2(5) of the Act of 1949. In consequence to this finding and with
reference to the Act of 1981, it was held that the property in question
vested in the State along with interest of landlord free from all
incumbrances.
F
16. A review petition bearing No. 1483 of 2015 was filed in the
matter seeking review of the judgment aforesaid, which was considered
and allowed by us on 04.03.2021. After noticing the provisions contained
in Section 2(5) and particularly the excepted category of the lease beyond
12 years, it was observed that the judgment under review suffered from
an error apparent on the face of the record because the crucial fact, that G
the period of lease in the present case was of 20 years, was not even
taken into consideration. The question as to whether the appellants were
entitled 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 the
judgment under review. Therefore, we allowed the review petition and
H
452 SUPREME COURT REPORTS [2022] 11 S.C.R.

A restored the appeal for reconsideration while observing, inter alia, as
under: -
“One of the excepted categories in Section 2(5) of the 1949
Act postulates that the definition will have no application to lease
beyond 12 years period. On this count alone, the finding of fact
B recorded by this Court in the judgment under review and the
declaration given in favour of respondent No. 1 on that basis cannot
stand, being a manifest error apparent on the face of record and
also contrary to the express statutory provision.
The question whether the appellants in Civil Appeal could
C otherwise succeed on the other arguments, including that they
had protection under the provisions of The Calcutta Thika and
other Tenancies and Lands (Acquisition and Regulation) Act, 1981
(for short, ‘the 1981 Act’), of being the Thika Tenant(s) and that
the pucca structure erected by them was also protected/covered
under that provision, is a matter which needs to be examined in
D the revived civil appeal.
Indeed, the judgment under review refers to the provision
Section 3(8) of the 1981 Act, but there is no analysis in the
judgment as to how the appellant (Respondent No.1 herein) would
acquire the status of thika tenant as such. It is only then the
E issue of vesting under the 1981 Act can be taken forward.
Counsel for the respondent(s) was at pains to persuade us that
even if the judgment under consideration is reviewed, the
conclusion in favour of respondent No. 1 would remain the same.
Again, that is a matter to be considered in the civil appeal,
F consequent to the recall of judgment dated 24th February, 2015.
All contentions available to both sides in the revived appeal can
be considered on its own merits. We order accordingly.
In view of the restoration of appeal, all interim order(s) passed
in the appeal stand revived.
G
The review petition is disposed of accordingly”
Rival Contentions
17. The foregoing had been the summary of the entire background
in which this appeal was heard at length by us. We may now usefully
H summarise the contentions urged on behalf of the contesting parties.
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 453
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

The Appellants A
18. Learned senior counsel for the appellants has assailed the
order impugned with a variety of submissions concerning operation and
effect of the thika tenancy enactments.
18.1. It has been submitted by the learned senior counsel that the
term “any structure”, as used in the Act of 1949, includes both kutcha B
and pucca structures. The learned counsel has relied upon the decision
of this Court in Chief Inspector of Mines and Anr. v. Lala Karam
Chand Thapar and Ors.: (1962) 1 SCR 9 to contend that “any” as
referred to in the term “any structure” in Section 2(5) of the Act of
1949, means “all”. It has been submitted that words/phrases in a statue C
ought to be construed as per their plain language; and the decisions in
Om Prakash Gupta v. DIG Vijendrapal Gupta: (1982) 2 SCC 61,
Bharat Aluminium Company v. Kaiser Aluminium Technical
Services Inc.: (2012) 9 SCC 552, Union of India & Anr. v. Hansoli
Devi & Ors.: (2002) 7 SCC 273 and Vijay Narayan Thatte and Ors.
v. State of Maharashtra and Ors.: (2009) 9 SCC 92 have been relied D
upon.
18.2. It has also been contended that the case of Monmatha
Nath Mukherjee v. Smt. Banarasi and Ors.: 63 CWN 824 had
wrongly been decided, and that there exists no other authority, apart
from this case for the proposition that the term “any structure” in Section E
2(5) of the Act of 1949 is only confined to kutcha structure. It has
further 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 Court
by its order dated 27.10.2004. It has also been contended that the F
judgement in Kshiroda Moyee Sen and Ors. v. Ashutosh Roy and
Ors.: 63 CWN 565 is being misread, since it was not held that “any
structure’” in Section 2(5) meant kutcha structure, but was actually
held to the contrary; and that the Act of 1949 does not restrict the
structures to kutcha structures and that the nature of these structures
would depend upon the terms of the contract between the parties. It has G
also been submitted that it was held by the High Court in Kshiroda
Moyee Sen (supra) that a thika tenant was not entitled to put up pucca
structures on the land merely because he had taken the land on thika
tenancy but, while there was no right to put up pucca structures, the
landlord was only entitled to seek a decree of injunction. The learned H
454 SUPREME COURT REPORTS [2022] 11 S.C.R.

A counsel has also referred to Jnan Ranjan Sen Gupta and Ors. v. Arun
Kumar Bose: (1975) 2 SCC 526, wherein it was held that the Act of
1949 was a beneficial legislation, and should be liberally interpreted in
favour of the tenants, and that if two interpretations were possible, the
one in favour of the tenant should be upheld.
B 18.3. The learned senior counsel has also submitted that the
reliance on Section 108(p) of the Transfer of Property Act, 188212-13 to
interpret the Act of 1949 is erroneous, since a special statute like the Act
of 1949 overrides a general statute like the Transfer of Property Act;
and Section 108(p) of the Transfer of Property Act does not lay down
that permanent structures cannot be constructed by a tenant.
C
18.4. It has been contended by the learned senior counsel that the
insertion of Section 10A by the Amendment Act of 1969 had been only
to the effect that if otherwise the thika tenant was not permitted to build
pucca structures under the terms of the lease with the landlord, he could
have done so with permission of the Controller. Section 10A shows intent
D of the legislature to include lands in which the tenant has erected or
acquired 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 the
appellants has argued that they are not being correctly interpreted. The
E concept of thika tenancy under the Act of 1981 was much wider than
the one under the Act of 1949, wherein the temporariness of the concept
of thika tenancy was removed. The term “other lands” was not in place
at the inception, and was inserted by way of the Amendment Act of
1993. The learned counsel would submit that the legal position on the
F nature of construction is clearer after the Amendment Act of 1993, since
all 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 concept
of “other lands” was introduced by virtue of Section 5(c).
18.6. The learned counsel has further submitted that the property
G in question continued to be under thika tenancy after the Act of 2001,
since the acquisition was carried out retrospectively; and it was expressly
12
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 and
liabilities of the lessee enjoins upon the lessee that, -
“(p) he must not, without the lessor’s consent, erect on the property
H any permanent structure, except for agricultural purposes;”
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 455
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

stated in Section 4 that it would take effect from 18.01.1982. Furthermore, A
the learned counsel has submitted that the amendment to the definition
of thika tenancy by way of the Amendment Act of 2010 was only
clarificatory 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 has B
submitted that the findings of fact by the Tribunal were set aside by the
High Court in its writ jurisdiction without any cogent reason. The Tribunal
had categorically held that the structures on the land were kutcha in
nature, but the High Court held that it was admitted that the structures
were pucca in nature, without any discussion on this issue.
C
The State
19. The learned counsel for the respondent-State has supported
the submissions made on behalf of the appellants.
19.1. The learned counsel for the respondent-State has submitted
that the order of the Controller is within the four corners of the law and D
is required to be upheld. The learned counsel would submit that the
definition of thika tenant under Section 2(5) of the Act of 1949 was
substituted 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 structure E
into the definition. It has been submitted that when words are clear and
there is no ambiguity, there is no reason to resort to any external aid for
interpretation. The learned counsel would also submit that after insertion
of Section 10A to the Act of 1949, thika tenants could erect pucca
structures on the land with the permission of the Controller and hence,
the Act of 1949 did not contemplate a bar on erection of pucca structures F
by the thika tenant.
19.2. As regards the definition of “any structure” under the Act
of 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 who
were excluded from the definition under the Act of 1949 were brought G
within the ambit of the Act of 1981; and lands which were earlier excluded
from the definition of thika tenancy, were also brought within the ambit
in the Act of 1981. The learned counsel has referred to the decision of
this Court in Ramdas Bansal (Dead) Through LR v. Kharag Singh
Baid & Ors.: (2012) 2 SCC 548.
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456 SUPREME COURT REPORTS [2022] 11 S.C.R.

A 19.3. It has also been submitted that Section 6(4) of the Act of
1981 permitted a thika tenant to construct pucca structures in
accordance with the building plans sanctioned under the Calcutta
Municipal Corporation Act, 1980 or the Howrah Municipal Corporation
Act, 1980 but, the requirement of prior permission from the Controller
for erection of pucca structures had not been provided for under the
B
Act of 1981.
19.4. It has been contended by the learned counsel for the State
that the High Court, in Monmatha Nath Mukherjee (supra), erred in
concluding that the Act of 1949 did not include pucca structures, since
no external aid was required for the purpose of interpreting the definition
C of thika tenant, and the Courts could not have gone behind the language
of the statute, or add or subtract from it. It has been submitted that the
Courts cannot rewrite, recast or reframe the legislation; and reliance is
placed on the decisions of this Court in Hardeep Singh v. State of
Punjab & Ors.: (2014) 3 SCC 92 and Afcons Infrastructure Ltd. &
D 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, it
has been submitted by the learned counsel for the respondent-State that
when an Act is repealed, it is treated as revoked or abrogated and
E removed from the statute book. It has been argued with reference to the
decision in Gajraj Singh & Ors. v. State Transport Appellate Tribunal
& Ors.: (1997) 1 SCC 650 that whenever an Act is repealed, it must
be considered as if it had never existed, except when pertaining to past
and closed transactions. The learned counsel would submit that per
Section 21 of the Act of 1981, the Act of 1949 was completely repealed
F without a savings clause, and the Act of 1981 was given a special
overriding effect by virtue of Section 4. The Act of 2001 further repealed
the Act of 1981, and came into force with effect from 01.03.2003, while
being retrospectively applied with effect from 18.01.1982. Since an
overriding effect was provided while repealing the Act of 1949, any
G determination under the Act of 1949 required review in light of the
provisions of the repealing Act, being the Act of 1981. By placing reliance
on such overriding effect, it has been contended that the appellants became
thika tenants by virtue of the operation of the Act of 1981, with the
subject property having vested with the State from the date of
commencement of the Act of 1981. It has also been contended that the
H
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 457
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

respondent Nos. 1 and 2, who have stepped into the shoes of landlord, A
have no right, title or interest in the property in question and hence, the
impugned judgment is not sustainable in the eyes of the law.
19.6. It has additionally been submitted by the learned counsel
that under the Act of 1949, the two main factors to determine the claim
of thika tenancy were the nature of the structure on the land and the B
length of the lease, but these exclusions were not present in the Act of
2001, which was also given an overriding effect in terms of Section 3
read with Sections 2(14) and 2(15) thereof. Hence, it has been submitted
by the learned counsel that disqualification under the Act of 1949 could
not 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 and C
independent code in itself.
19.7. It has also been contended that a decision taken on the basis
of a previous enactment is liable to be changed on the basis of existing
enactment, and the status of thika tenancy is required to be examined
afresh in light of the Act of 2001, irrespective of the status a tenant D
might have enjoyed under the previous enactments. Reliance is placed
on 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 of
learned counsel for the respondent-State that the registered deed of
lease dated 15.12.1973 for a period of 20 years would not be a bar in E
considering the claim of thika tenancy.
The respondent No. 1
20. Learned senior counsel for the respondent No. 1 has countered
the submissions aforesaid and has supported the order impugned, again
with a variety of propositions. F
20.1. In the first limb of submissions, the learned senior counsel
has contended that the appellants do not qualify as thika tenants under
the Act of 1949 and even under the Act of 1981.
20.2. As regards the status of the tenancy of the appellants under
G
the Act of 1949, it has been submitted that leases beyond 12 years were
excluded, and the term “any structure” has been interpreted to mean
kutcha 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.
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458 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
G 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
H of the decision in Monmatha Nath Mukherjee (supra) by the Division
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 459
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Bench in Jatadhari Daw & Grandsons (supra).It has been submitted A
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
B
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 C
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
460 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
D 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
E 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.

F 21. 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
22. Having given anxious consideration to the entire matter, we
G 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
H associated with the three enactments and their amendments from time
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 461
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to time. Having regard to the subject matter, it appears appropriate only A
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
23. 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 D
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 E
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 F
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 G
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
462 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
24. 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”.
25. 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
H operating Urban Land Ceiling (Ceiling and Regulation) Act, 1976. This
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acquisition was to result in vesting of all the rights in the land comprised A
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 B
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 F
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 G
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.
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464 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
B 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
C 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
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more complexities and unworkable situation where the effect of newly A
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
B
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.
26. 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.
27. 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 F
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 G
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
466 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
B
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
C 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
D
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,
E 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.
F 28. 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
468 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
C 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
D 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
E 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
F 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
G tenancy on 01.11.2010.
The relevant decisions of Calcutta High Court
29. 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
H 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 B
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 C
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 D
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 E
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
470 SUPREME COURT REPORTS [2022] 11 S.C.R.

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
D 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
E 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,
F 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
H to such intention and purpose of the impugned legislation, khatal
NEMAI CHANDRA KUMAR (D) THR. LRS. & ORS. v. MANI 471
SQUARE LTD. & ORS. [DINESH MAHESHWARI, J.]

lands held on lease even if such lands do not comprise thika tenancy A
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
B
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 C
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,
D
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
30. 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
31. Apart from the aforesaid view taken by us, so far as the present
matter is concerned, a fundamental reason operates against the H
472 SUPREME COURT REPORTS [2022] 11 S.C.R.

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.
32. 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.
E 33. 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
B
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 C
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
34. 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
35. 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
474 SUPREME COURT REPORTS [2022] 11 S.C.R.

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.
36. 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
D 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
E 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
F appropriate remedies, strictly in accordance with law, in relation to any
other claim/relief.
37. 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)

H