SRIPATI LAL ADDYA Vs. KANAILAL HALDER

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution against an under of the appellate authority under section 5 of the Calcutta thika Tenancy Act whereby he agreed with the trial authority that the tenant is liable to be ejected on the ground that the plot of land is required for the purpose of building and also for the purpose of development of the same.

(2.) THE landlord filed the petition under section 5 of the Calcutta Thika tenancy Act on the 28th September, 1953 on the ground that the property was within the Police Station, Tollygunj within the municipal limits of calcutta and the opposite party was a thika tenant in respect of the same holding and that the petitioner required the holding for the purpose of building on. the land and also for developing the same. The petitioner further stated that the defendant admittedly constructed a pucca structure with a privy on a portion of the holding sometime in December, 1951 and the plaintiff filed a suit for injunction and the suit was pending at the date when the application, was filed. The property in question was, at the date of the application, within the Calcutta Corporation and therefore, the provision of the calcutta Thika Tenancy Act would 'prima facie' apply. A point was taken that the application was not maintainable. The point was taken by the tenant and that point has not been seriously urged before me. I have stated that the authorities below granted an order for ejectment. Mr. Hari Prasanna mukherjee, on behalf of the petitioner, urged that the Calcutta Thika tenancy Act would not apply. According to him, the property was outside the Calcutta Corporation and was within the Tollygunj Municipality till 31st march, 1953 and it was included within the Calcutta Corporation from 1st April, 1953. Mr. Mukherjee, therefore, contended on the basis of a decision reported in 69 CWN 843, that the application was not maintainable under the Calcutta Thika Tenancy Act. I pointed out to him that if the application under that Act was not maintainable, the tenant would not get the protection under that Act. Having considered that matter, Mr. Mukherjee did not press the piont of maintainability further. Therefore, I need not consider that matter further. The authorities below held that the tenant in question was liable to be ejected because the conditions under section 3 of the calcutta Thika Tenancy Act were complied with. This question is largely a question of fact and I am not inclined to interfere on that matter under article 227 of the Constitution. The only matter to be considered is whether the tenant acquired any such right under the Non-agricultural Tenancy act, as would protect him from eviction. Mr. Apurbadhan Mukherjee for the respondent urged that the point not being urged in the courts below could not be allowed to be urged. I find it was in the written statement, it was considered by the trial court and was over-ruled. It was taken in as a ground of appeal. It was not considered in the judgment of the appeal court. It was urged in this petition. Hence, that objection cannot be upheld.

(3.) THE question would be whether the tenant acquired any right under the non-agricultural Tenancy Act which would protect him from ejectment. It cannot be disputed that the Non-agricultural tenancy Act did apply to that area before the 1st April, 1953. But it must also be remembered that the Non-agricultural tenancy Act came into force in 1949. This may also be remembered that there was another Act in force and some calculation is to be made before it is found that the tenant is entitled to benefits under that Non-agricultural tenancy Act. That question has not been decided by the courts below. Therefore, we have to decide whether (1) because of the enforcement of the calcutta Thika Tenancy Act the tenant would be deprived of his right, if any, acquired under the Non-agricultural tenancy Act, (ii) if he is not so deprived of such right whether he did in fact acquire any right under the Non-agricultural tenancy Act and (iii) whether he would be ejectable in spite of the acquisition of such right as he might have acquired under the West Bengal non-agricultural Tenancy Act.