SHAFFIUDDIN Vs. GOPAL CHANDRA BANERJEE

JUDGEMENT

(1.) A very important question of law arises on this application under Article 227 of the Constitution of India. It involves consideration of the impact of three statutes, namely, (1) The Calcutta Thika Tenancy Act, 1949, (. 2) The West Bengal Non-Agricultural Tenancy Act, 1949 and (3) The Calcutta Municipal Act, 1951, on the facts of this case. The facts briefly are as follows. The dispute is between landlords who are the petitioners and the tenants who are the opposite parties to this application. It is the case of the landlords that the tenants here are the Thika Tenants in respect of 19 cottahs 12 chittaks of lands within the premises Nos. 11 and 12, Swinhoe Lane, P. S. Tollygunge, Calcutta. The landlords, petitioners brought proceedings under section 5 of the Calcutta Thika Tenancy Act before the Controller, 24-Parganas at Alipore under the Calcutta Thika Tenancy Act, 1949 for ejecting the tenant from the said premises. The grounds of ejectment were that the tenants in violation of the agreement had illegally constructed pucca structures on the holding without the knowledge and consent of the landlords, that they had defaulted to pay rent since May, 1954 and that the arrears of rent on the date of filing of the petition amounted to Rs. 3,977/- and also on the ground that the land in suit was required for the own use and occupation of the landlords and for the purpose of building on the land and developing the same by discontinuing the letting out of the same to Thika tenants. The Controller who was the First Munsif at Alipore granted the prayer of the petitioners ex parte and the tenants were asked to vacate within thirty days. Against that ex parts order an appeal was filed before the District Judge, 24-Parganas who permitted the parties to adduce evidence at the appellate stage as he was entitled to do. Finally the lower appellate court allowed the appeal. The ground for allowing the appeal was that the Calcutta Thika Tenancy Act did not apply at all to the premises in question and therefore, the entire proceeding under section 5 of the Calcutta Thika Tenancy Act was misconceived. It was held in appeal by the lower Appellate court that the West Bengal Non-Agricultural Tenancy Act, 1949, applied to the facts of this case. The tenancy in this case originally started with a registered lease for ten years from the 5th March. 1937. That lease expired on or about the 5th March, 1947. The tenants continued. At the time when the lease expired the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, 1940, was in operation. Later on the West Bengal Non-Agricultural Tenancy Act, 1949 being West Bengal Act XX of 1949 came into force on the 10th May, 1949. It was in the same year, 1949 a few months before, to be exact on the 28th February, 1949 that the Calcutta Thika Tenancy Act, 1949 was also put on the statute book. Under both these two statutes of 1949, namely, (1) The Calcutta Thika Tenancy Act and (2) The West Bengal Non-agricultural Tenancy Act, "calcutta" meant 'calcutta' as defined in the Calcutta Municipal Act, 1923. This 'calcutta' did not include the present premises in question. These premises were then in Tollygunge which was outside the limits of the Calcutta Corporation and the Calcutta Municipal Act. Then came the Calcutta Municipal Act, 1951, which repealed the old Calcutta Municipal Act of 1923.

(2.) THIS Calcutta Municipal Act, 1951, came into force in 1952. Under this Calcutta Municipal Act of 1951 express special provisions were made in sections 594 and 595 of the Calcutta Municipal Act, 1951, for inclusion within Calcutta of the area comprised within the Tollygunge Municipality. The provisions of these two sections will be material later on. It will be enough at this stage to say that under section 594 of the Calcutta Municipal Act, 1951, the State Government may by notification in the Official Gazette, declare that the area comprised within the Municipality of Tolly-gunge shall be included within Calcutta. Such a notification was issued on the 1st April, 1953. The terms of that notification will also be material later on. Although this area in Tolly-gunge was included within the limits of Calcutta by the Calcutta Municipal Act, 1951, on the 1st April, 1953, the tenant continued. There is some dispute whether the tenant continued by holding over or whether he continued as a kind of statutory tenant or a non-ejectable tenant. The present petition by the landlords for eviction of the tenants under section 5 of the Calcutta Thika Tenancy Act was instituted on the 16th December, 1957.

(3.) ON those facts the lower appellate court held that the Calcutta Thika Tenancy Act did net apply, but the West Bengal Non-Agricultural Tenancy Act, 1949, applied. The landlords petitioners applied for and obtained a Rule under Article 227 of the Constitution challenging this order of the lower appellate court dismissing the. petitioners' case under section 5 of the calcutta Thika Tenancy Act. The short, but difficult and complicated point, that arises in this case is;, which Act applied to the facts of this case. Does the Calcutta Thika Tenancy Act, 1949 apply or does the West Bengal Non-Agricultural Tenancy Act, 1949 apply ? on behalf of the landlord petitioners it is contended by Mr. sen Gupta, learned Advocate, that the Calcutta Thika Tenancy Act, 1949 applied to this case. He relies on section 1 (2) of. the Calcutta Thika Tenancy Act which uses the material words:-