BISWANATH KUNDU Vs. BIMALA DAS

JUDGEMENT

(1.) BY consent of parties let this case be treated as on the day's list for judgment. The Rule was obtained against a judgment and order passed in Misc. Appeal No. 138 of 1973 by the District judge, Howrah arising out of Misc. case no. 68 of in the first court of Munsif, Howrah.

(2.) THE petitioner is the owner of a and measuring about 4 cottahs 9 in premises no. 22,stalkart Lane,salika,howrah and obtained an order of ejectment against some tenants whose successors have now been imlpeaded as respondents under the Thika Tenancy Act,1949. It was initially registered in the court of Second Munsif Howrah as misc. Case No. 253 of 1954 but subsequently renumbered Misc. Case No. 63 of 1959 and transferred to the Munsif, 1st court, Howrah, both as Controllers under the Thika Tenancy Act, 1949. The grounds for ejectment were default in. payment of rent as well as own use and. occupation. The application was contested. The application was dismissed by the: learned Munsif, 1st Court, Howrah on 21st of March, 1960 against which an appeal was filed being appeal no. 116 of 1960 and the same was allowed by the subordinate Judge, 1st Court, Howrah. on 30th of March, 1961. Eviction was ordered on both grounds urged by the petitioner. A civil rule was obtained by one Kartic Chandra Dey and on 23. 'a 63 P. Chatterjee, J. disposed of the rule by directing ejectment on the ground of personal requirement. The controller was directed to start proceedings for compensation and to pass an order for ejectment after such compensation was assessed and paid. Proceedings which were started pursuant to the aforesaid direction for assessing the valuation, however, stood stayed under various laws namely the Calcutta Thika Tenancy Stay of proceedings Temporary Provisions, Ordinance (W. B. Ordinance No. V of 1967) ; The Calcutta Thika Tenancy amendment Act, 1968 (West Bengal presidents Act no. 2); The Calcutta thika Tenancy Stay of Proceedings (Temporary Provision Act) (W. B. Presidents Act no. 3 of 68);the Calcutta Thika Tenancy Act (W. B. Act III of 1969) which came into force one after another. Thereafter West Bengal Act XXVII of 1969 and the Calcutta Thika Tenancy Act (2nd Amendment Act) (W. B. XXIX of 1969) came into force and the stay of proceedings under the previous laws became vacated. In February. 1970 an application was made by the thika tenant to the learned Controller for setting aside the order of eviction under Section 7a of the Calcutta thika Tenancy Act, 1949 which was introduced retrospectively by section 8 of the Calcutta Thika Tenancy, Second amendment Act that came into force on october 30, 1969. The learned Controller by an order, dated 16th of June, 1973 allowed the application and set aside the order of eviction. An appeal being filed before the learned District Judge, howrah (being Misc. Appeal No. 183 of 1973) the same was also dismissed on contest by an order, dated the 14th of march, 1975. It may be noted that by virtue of the amendment of section 3 of the Thika Tenancy Act no landlord shall be deemed to require the land comprised in the Thika Tenancy holding for his own occupation if he has a house of his own in the city in which such land is situated and the accommodation available in the house is, in the opinion of the Controller, reasonably sufficient for him and for his family. The said provision was invoked by the tenant in an application under section 7a (1) of the amended Thika Tenancy Act. The learned appellate court concurred with the Thika Controller and held that as the petitioner appellant was the owner of at least three pucca structure of houses which were used as godown and also owned Kaccha structure at 18/1, Sri ram Dhang Road which was in occupation of some tenant the same could sufficiently offer reasonable accommodation to the landlord if he desired to get khas possession. Both the court found that the holding at Sri Ram dhang Road was sufficient to meet the reasonable requirement of landlord and he was not entitled to eject the thika tenant on the ground of personal requirement.

(3.) MR. P. K. Sen, the learned Advocate, appearing in support of the Rule firstly argued on a preliminary point taken by the other side, viz. that the application was not maintainable under article 227 of the Constitution of India in view of 42nd amendment. Mr. Sen in this connection relied on a decision reported in 81 C. W. N. 544 (State of West bengal v. Jyotsna Bhowmic and Ors ). I find substance in Mr. Sen's argument in this regard that the right to move under article 227 is a substantive right. As has been held in the case referred to above, amendment of Article 227 made by the 42nd amendment of the Constitution is not retrospective in operation. Therefore, a proceeding under Article 227 of the Constitution which was pending in the High Court on February 1, 1977, the date on which the amendment came into force, will be governed by the original article and not by the article as amended.