Narayan Chandra Saha vs Dev All (P) Ltd.

S.K. Datta, J.—This rule arises out of an application under Article 227 of the Constitution and is directed against an order dated August 18, 1972, passed by the Appellate Court of the Small Causes Calcutta. By that order the thika tenant''s appeal against the order of the Thika Tenancy Controller, West Bengal dismissing his objection u/s 47 and Order 21 Rule 2 of the CPC was dismissed. In 1965 the landlord opposite party'' a company filed an application u/s 5 of the Calcutta Thika Tenancy Act, 1949 for ejection of its thika tenant Panchhanan Saha in respect of a parcel of land at 2431 A, Acharya Prafulla Chandra Road, Calcutta, the ground being sub-letting and default in payment of rent since Agra-hayan 1370 to Kartick 1371 B.S. at the rate of Rs. 55.11 P. inclusive of municipal taxes according to Bengali calendar month. This application registered as T..T. 42 of 1965 was allowed on May 18, 1966 by the following order:

The Mis. Case be allowed exparte with costs of Rs. 11.75 P. only. The petitioner do get khas possession of the disputed holding after evicting the opposite party therefrom. Provided that this order of eviction shall not be executed if the opposite party pays to the landlords or deposits with the Controller the following amount within 30 days from date hereof.

The amount not being deposited on August 20, 1966 the Controller on the application of the landlord opposite party passed an order for issue of writ of possession directing that possession was to be delivered on September 5,1966. The bailiff being resisted the landlord applied for police help. The petitioner, it appears, filed an objection to the execution which was registered as Mis. Case No. 66 of 1966. This objection was dismissed on July 31, 1967. The tenant filed an appeal therefrom being T.T. Appeal No. 22 of 1967. The appeal as also the execution proceedings were stayed in view of the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Ordinance 1967 followed by the Calcutta Thika Tenancy Stay of Proceedings (Temporary Provisions) Act 1968 (President''s Act 3 of 1968). This Act was to be deemed to have come into force on the 26th August 1967 and was to remain in force up to and inclusive of the 25th day of September, 1968.

The reasons for the said enactments are as follows:

Under the Calcutta Thika Tenancy Act, 1949 (West Bengal Act II of 1949), a Thika tenant is liable to ejectment from his holding on one or more of the grounds mentioned in that Act. Of'' late the problem of ejectment of thika tenants has assumed considerable magnitude particularly in the context of soaring land prices. The Government of West Bengal, therefore, proposed to undertake a comprehensive legislation for amending the Act with a view to preventing unfair eviction of thika tenants. Pending such comprehensive amendment of the Act which would take sometime, it was considered expedient by that Government to suspend temporarily all proceedings for ejectment of thika tenants.

Thereafter the comprehensive amendment of the Act was brought in by the Calcutta Thika Tenancy (Second Amendment) Act, 1969 (West Bengal Act XXIX of 1969) which came into force on October 30,-1969. By that Act, a new section 3 was substituted in place of the old section 3 and the thika tenant thereby has been made liable to eviction on the following grounds and not otherwise as broadly stated below :

(a) On the ground that such tenant has used the land in a manner rending it unfit for any of the purpose mentioned in clause (5) of section 2.

(b) Except the period limited by a registered lease, the land is required by the landlord for his own occupation.

(c).On the expiry of the registered lease where land is held by a thika tenant for a purpose other than residential purpose.

It will be seen that the other grounds mentioned in section 3 of the original Act, namely, default in payment of rent and failure by the tenant to use or occupy a major part of the holding for more than six consecutive months were by the said Amendment Act deleted, so that the said grounds were no longer available to the landlord for eviction of the thika tenant.

A new section 7A was inserted after section 7 of the Act providing power in the Controller to set aside an order for ejectment in cases where possession in pursuance of an order of ejectment had not been taken before the date of commencement of the Thika Tenancy Second Amendment Act of 1969 if an application was made by the thika tenant, within sixty days of the said date. If the Controller is satisfied that the order of ejectment would have been passed even if the Second Amendment Act 1969 was then in force, the application is to be dismissed. If however the Controller is satisfied that no order for ejectment would have been passed if the Second Amendment Act, 1969 was then in force, the Controller shall determine the amount payable upto date of order at the rate of rent less the amount deposited with the Controller or paid by the tenant to the landlord and by other direct the tenant to deposit the balance with costs within such time not exceeding sixty days from the date of the order as he may fix. If the tenant deposits the amount in pursuance of the said order, the Controller shall allow the application and set aside the order of ejectment and dispose of the application of the landlord u/s 5(1). If the tenant fails to deposit such amounts within such time the tenant''s application shall be dismissed. Section 13 of the Second Amendment Act, 1969 further provides:

Section 13. The amendments made to the said Act (i.e. the Calcutta Thika Tenancy Act, 1949) by this Act shall have effect in respect of all applications for ejectment of thika tenants, and all appeals from orders made on such applications under the provisions of the said Act which are pending at the commencement of this Act.

On November 18, 1969, the tenant filed an application u/s 7A for setting aside the order of ejectment whereon Mis. Case No. 41|69 was started. The thika tenant having died in the meantime, his son and legal representative, the petitioner before me, was duly substituted in the said proceeding as well as in the appeal. It appears no order on the said application has been passed in view of the interim order passed in this rule.

The T.T. Appeal No. 22 of 1967 was heard on August 18, 1972 and was dismissed. The learned Judge held that section 13 had no application as the appeal before him was not an appeal against any order of ejectment under the original Act, although it arose out of execution procedings. The propriety of this decision has been challenged in this rule.

Mr. Janardan Chakravarti learned Advocate appearing on behalf of the thika tenant petitioner has contended that section 13 of the Second Amendment Act, 1969 is applicable to the appeal as the impugned order for police help was made in the proceeding initiated on the application for ejectment. This contention has been disputed by Mr. Amarendra Narain Bagchi learned Advocate for the opposite party, as according to him section 13 does not apply to proceeding for execution of the order of ejectment. Mr. Bagchi has also taken a preliminary objection contending that an appeal lies against the impugned order dismissing the appeal against the order rejecting an objection u/s 47 of the CPC and accordingly the revisional application is not maintainable in law.

As to the preliminary objection, it is to be remembered that u/s 2(2) the determination of any question u/s 47 is a decree unless it is appealable as an order. u/s 27 of the Calcutta Thika Tenancy Act, 1949 an appeal lies from any order of the Controller. An order of the Controller for ejectment of a thika tenant is not in terms a decree though u/s 27(6) such order may be executed by the Controller in the manner provided in the Code of Civil Procedure, 1908 for execution of decrees. Accordingly in absence of any provision it appears that no second appeal lies from an order passed on appeal against the order of the Controller in execution proceedings. The application before me under Article 227 is thus maintainable in law.

The next question requiring consideration is whether section 13 of thes Amendment Act, 1969 will be applicable to the proceedings now pending before the Thika Controller The provisions of the said amendment Act is to have effect in respect of all applications for ejectment of thika tenant. The proceedings for ejectment of a thika tenant is to be initiated by an application under sub-section (1) of section 5 of the main Act. The Controller before whom the application is to be filed, on service of notice to the thika tenant and after making an enquiry in the prescribed manner may either allow or reject the application after recording reasons of the order. If the application is allowed the Controller shall also direct the thika tenant to vacate the land and to put the landlord in possession thereof. Under sub-section (2), no order under sub-section (1) shall be made unless the compensation payable under proviso to section 4 is paid to the thika tenant or deposited with the Controller.

Section 13 of the amendment Act applies to applications for ejectment and appeals from such order which are pending on the date of commencement of the said Act and not to proceedings in execution of the order passed on such applications. Such applications for ejectment are finally disposed of by the Controller when orders u/s 5 is made thereon though such orders of ejectment, or the orders passed on appeal therefrom u/s 27 (6) may be executed by the Controller in the manner provided in the CPC for execution of decree. The provisions of section 13 of the Amendment Act 1969 can thus have no application when the application u/s 5 has been disposed of and no appeal therefrom is pending on the commencement of the Amendment Act on October 30, 1969. Section 13 of the Amendment Act, as its terms indicate, is not concerned with execution proceedings arising out of applications for ejectment of a thika tenant under the main Act. In the instant case, no application for ejectment or no appeal against any order passed on such application was pending when the Amendment Act came into force. Accordingly, there is no scope for application of section 13 of the Amendment Act. The appeal accordingly was rightly dismissed by the appellate authority.

The rule accordingly is dischargd and all interim orders are vacated. There will be no order for costs in the circumstances.