GOURI RANI GHOSH Vs. MORAIRAI

JUDGEMENT

(1.) ON January 3, 1963, the petitioner applied under section 5 of the calcutta Thika Tenancy Act. 1949, for ejectment of the opposite parties who were thika tenants under her in respect of the land bearing premises No. 7b, beliaghata Road, and measuring about 2 cottas 4 chittaks at a monthly rental of Rs. 45/ -. The grounds of eviction stated in the application are (1) that the tenants had failed to pay an arrear of rent due in respect of the holding and (2) that the tenants had failed to us or occupy a major part of the holding for more than six consecutive months. These two grounds were specified respectively in clause (i) and (v)of section 3 of the Act as it stood at the time. By his order dated September 27, 1963, the Thika Controller allowed the application on both grounds. The tenants took an appeal and the Appeal late Tribunal by its order dated March 31, 1964, set aside the order of the controller and sent back the case on remand for a fresh trial. On January 16, 1965, the Thika Controller again allowed the application holding that both the grounds for eviction had been established. The tenants again preferred an appeal which was dismissed by the Appellate Tribunal on April 29, 1965. The tenants then moved this court under Article 227 of the Constitution giving rise to Civil Revision Case no. 2732 of 1965. By his order dated august 20, 1969, S. K. Chakravarti, J. made this Rule absolute holding that the order of remand made on March 31, 1964, in the appeal taken by the tenants was without jurisdiction and set aside the order and all subsequent proceedings in the case as null and void. His Lordships held that the paid appeal should be treated as pending and gave direction for the re-hearing of the appeal.

(2.) THE Appellate Tribunal hearing the appeal pursuant to the order of chakravarti, J. found that there was no dispute that the major part of the holding had been sub-let by the tenants who did not personally occupy the promises. The tribunal however, allowed the appeal preferred by the tenants and dismissed the application under section 5 of the Act on the view of that after the amendment of the Calcutta Thika tenancy Act, 1949, by the Calcutta thika Tenancy (Second Amendment)Act 1969 (West Bengal Act XXIX of 1969) the grounds on which the eviction of the tenants was sought were no longer available as both these grounds have been deleted with retrospective effect from section 3 by the amendment Act. In the present Rule the petitioner questions the correctness of the decision of the Appellate Tribunal made on september 13, 1971, dismissing the application under section 5. The petitioner however has in the meantime taken possession of the disputed holding in execution of the order of eviction passed by the Thika Controller.

(3.) BY the Second Amendment Act 1969 (West Bengal Act XXIX of 1969)various changes were made in the parent act of 1949. The original section 3 of the parent Act which set out the grounds on which a thika tenant was liable to be ejected was substituted by a new section 3. In the new section 3 some of the grounds included in the Original section appear in a modified form and several grounds have been altogether deleted. For instance grounds specified in clause (i) and (v) of the Original section 3 do not find a place in the section as amended. Section 18 of the amendment Act provides that the amendment Made to the print Art shall have effect in all pending application and appeals for ejectment of thika tenants. me Appellate Tribunal held that me tenants could not be ejected either on the ground of default or on the ground that they had failed to occupy a major part of the holding for more than consecutive months because these were not grounds on specified the eviction of thika enar. ts was permitted under the amended section 3 winch has been given retrospective operation by section 13 of the Amendment act.