LACHMI DASI Vs. KALIDAS MUKHERJEE

JUDGEMENT

(1.) THIS Rule, which arises out of an application under Article 227 of the Constitution, is at the instance of a thika tenant and it is directed against ,the order dated February 27, 1975 of the Subordinate Judge, First court, Howrah, in Misc. Appeal No. 25 of 1975. By the said order, the learned subordinate Judge set aside the order of the Thika Controller dismissing the application of the landlord opposite party for the assessment of compensation. The learned Subordinate Judge sent back the case on remand to the Thika controller directing him to dispose of the said application for assessment of compensation on merits.

(2.) IT appears that on July 7, 1953, the opposite party filed an application under section 5 of the Calcutta Thika tenancy Act, 1949, hereinafter referred to as the Act, praying for eviction of the petitioner, who is a thika tenant, on the ground that the opposite party required the land for the purpose of building on the same and for developing the same by discontinuing letting to thika tenants. The said application was registered as misc. Case No. 61 of 1959. On December 23, 1959, an order for eviction of the petitioner was made by the Thika Controller subject to the payment of compensation by the opposite party to the petitioner. The petitioner preferred an appeal against the said order, but the same was dismissed on May 19, 1960. The petitioner also moved this Court in revision, but in vain. Thereafter, the opposite party made an application for assessment of compensation. During the pendency of the said application, the calcutta Thika Tenancy (Second amendment) Act, 1969 came into force on October 10, 1969. By the said amendment Act, section 3 of the act which contained the grounds for ejectment of a thika tenant was amended by the substitution of a new section 3. The eviction of a thika tenant for the purpose of building on a land or a land or otherwise developing the land by discontinuing letting to thika tenants as a ground for ejectment as contained in clause (iv) of the unamended section 3 is no longer a ground for ejectment under the substituted section 3. Further, the amendment has introduced into the act a new section, namely, section 7a. Sub-section (1) of Section 7a provides as follows :

(3.) ON January 9, 1969, the petitioner made an application under section 7a and prayed for the setting aside of the order of eviction. The said application having been filed beyond sixty days from the date of commencement of the amendment Act, it was dismissed. An appeal preferred by the petitioner from the order of dismissal of his application under section 7a was also dismissed. Thereafter, on February 2, 1973 the opposite party filed an application in misc. Case No. 61 of 1959, praying for an order for the assessment of compensation. The Thika Controller look the view that as the ground upon which the eviction order was made against the petitioner not being available by the opposite party under the amended provision of section 3, the opposite party was not entitled to evict the petitioner. on that ground. In that view of the matter, the Thika Controller dismissed the application of the opposite party for the assessment of compensation. On appeal by the opposite party against the said order of the Thika Controller, the learned Subordinate Judge took a different view. He was of the opinion that the opposite party could not be deprived of his right which had lawfully accrued to him. Accordingly, he set aside the order of the Thika Controller and sent the case back to him on remand, directing him to dispose of the application for assessment of compensation on merits. Hence this Rule.