kalipada ghosh vs lakshmimoni nayak

Chatterjee, J.—This is a petition under Article 227 of the Constitution by a Bharatiya within the meaning of the Calcutta Thika Tenancy Act for recognition of himself as a Bharatiya and for maintaining possession as against the landlords who have got a decree for eviction against the thika tenant. The Bharatiya is, in substance, a sub-tenant, and has got certain rights under the Calcutta Thika Tenancy Act. It appears that the opposite party landlords applied under the Calcutta Thika Tenancy Act for ejectment of the thika tenant before the Controller. The reasons for ejectment were two-fold,

(i) bona fide requirement for development and

(ii) the default of the tenant.

On March 9, 1957 the Controller granted them an order for ejectment. He directed the tenant to deposit the arrears rent. He also directed that a Commission should be appointed for investigation regarding the compensation payable to the tenant by the landlords. No commission was subsequently issued as the matter has been stayed thereafter because of various proceedings. First, came the proceedings of the tenant by way of an appeal-then proceedings by the Bharatiya which has given rise to the present petition.

In the present petition u/s 10(2) Thika Tenancy Act, before the Controller, the Bharatiya stated that the order for ejectment that was granted was, in substance, for ejectment on the ground of default in payment of rent by the thika tenant. Even though it may appear from the judgment of the Controller that the Controller was inclined and actually found in favour of the owner on the grounds of default and requirement for development, he did not and has not actually passed any order for ejectment on the latter ground. The result is that the only reason for the order for ejectment is default and therefore he is entitled to remain in the land as a tenant under the West Bengal Premises Tenancy Act and the landlords cannot eject him. The reply of the landlords was that the grounds for ejectment were both default as well as requirement for development and as it includes a ground for development, Section 10(2) of the Calcutta Thika Tenancy Act does not apply and the Bharatiya is not entitled to protection. The Controller considered the matter and he found that the order for ejectment was granted on both the reasons and therefore the Bharatiya is not entitled to any protection u/s 10(2) of the Act.

Before me it has been stated by the learned advocate for the Petitioner that u/s 5(2) of the Calcutta Thika Tenancy Act, no order for ejectment on the ground of bona fide requirement for development of the land can be granted unless the compensation is determined and unless the compensation is paid or deposited by the landlords. In this case, before the order for ejectment was granted no compensation was either determined or deposited. In that view of the matter, the finding that the landlords required it remained at the state of a finding and has not become effective as an order. He further says that after an order for ejectment is actually passed, it is beyond the scope of the Thika Controller to direct a commission for determination of compensation payable to the thika tenant. He therefore says that the entire order must be deemed to be an effective order of ejectment on the grounds of default alone and there is no order ejectment valid in law on the ground of bona fide requirement. He, therefore says that the court must proceed on the basis as if the order is merely an order for ejectment on the ground of default and not on any other ground. In that view of the matter, it is submitted that the petition of the Bharatiya should be accepted and the Rule should be made absolute.

It is indeed true that there has been some confusion regarding the legal position. It is not merely in this case but in a good number of other cases. I have found that the Controller grants an ejectment on the ground of bona fide requirement and then goes into the question of compensation. I have pointed out already that Section 5(2) of the Act requires that all these enquiries should be made before an order for ejectment be passed. The reason is that the landlord may not deposit the money and, if he does not, the order for ejectment would still stand. It is to avoid such difficulties that the legislature provided u/s 5(2) of the Calcutta Thika Tenancy Act that the order for ejectment on the ground of bona fide requirement, i.e., Section 3(IV) should be passed after compensation is determined and deposited. Undoubtedly, therefore, the Controller should not have passed the final order in the form he did on March 9, 1957. It is a well known principle of law that no party should suffer because of acts and omissions of the court. Refer to Crins L.J. in Rodger v. Comptoird ''Escopte de Paris (1871) 3 P. C. 466 (473). It is indeed true and it cannot be disputed that on March 9, 1957 the Thika Controller found that the landlords required the premises for development and also found that there was default. I cannot blame the opposite parties landlords for not appealing against this order which is not in accordance with law. Fortunately, as the records are here because of the present proceedings under Article 227 of the Constitution, I have jurisdiction to quash the order dated March 9, 1957. I therefore direct that the order, dated March 9, 1957 be quashed and instead of that, the order for ejectment should be passed after an enquiry regarding the compensation payable by the landlords to the tenant. It is also clear that the tenant is liable for arrears of rent. I therefore direct the Controller to find out the amount which is payable by the landlords to the tenant and also to find out the amount which was payable by the tenant to the landlords and then arrive at the sum which the landlords are liable to pay to the tenant, if any. After having found that sum, if any, the Controller will direct the landlords to deposit the same and it is only when money, if any, is so deposited, by the landlords, the Controller will pass a decree for ejectment saying that the landlords are entitled to ejectment on grounds of default as well as of bona fide requirement. The ground for default being there, the tenant is liable to pay some amount, and the tenant is u/s 4 of the Act entitled to receive some other amount and the landlords after having deposited the balance, if any, will get a decree for ejectment. After such an order is passed, if at all, then the question for ejectment of the Bharatiya will come. If the landlords deposit the money on Account of compensation and a decree is granted on account of bona fide requirement, Section 10(2) of the Act is clear. The Bharatiya will not be protected. If, on the other hand, the landlords do not care to have an enquiry as to the amount of compensation payable to the tenant, nor do they care to deposit the money, the order must be on the sole grand of default, and in that case, the Bharatiya will be entitled to be protected.

Finally, Mr. Sen says that the Bharatiya cannot come to the Controller and file an application for declaration of his rights. I am afraid, I cannot agree there because, Section 5(1) says, if he (Controller) allows the application, he shall make an order directing the thika tenant to vacate the holding and subject to the provision of Section 10 to put the landlords in possession "thereof." Therefore, in the proceedings for ejectment the Thika Controller will put the landlords in possession subject to "the provision of Section 10" and that means subject to the provision of Section 10(2). Therefore, there is no substance in the argument of Mr. Sen that the Thika Controller has no jurisdiction in this matter.

The result, therefore, is that the Rule is made absolute. The order of the Controller complained against is set aside. The order of the Thika Controller, dated March 9, 1957, is also set aside. The Controller is directed to pass an order of ejectment in accordance with law and in accordance with the observations aforesaid. After having passed an order u/s 5, he will consider the application of the Bharatiya-Petitioner together with objections that may be filed on behalf of the landlords or on behalf of the tenant.

In the circumstances of this case, I make no order as to costs of this Court.