Supreme Court Clarifies Thika Tenancy: Nemai Chandra Kumar vs. Mani Square Ltd. (27 July 2022)

Introduction

Date of the Judgment: 27 July 2022
Citation: (2022) INSC 670
Judges: A.M. Khanwilkar, J. and Dinesh Maheshwari, J.
Can a tenant who has constructed a permanent structure on leased land claim thika tenancy rights? The Supreme Court recently addressed this complex question in a case involving West Bengal tenancy laws. This judgment clarifies the definition of a “thika tenant” and the implications of constructing permanent structures on leased land, impacting property rights and tenancy regulations in the state. The Supreme Court bench comprised Justices A.M. Khanwilkar and Dinesh Maheshwari, with the judgment authored by Justice Dinesh Maheshwari.

Case Background

The case revolves around a property in Kolkata, originally owned by Laxmi Narayan Ghosh, who died in 1950. His son, Jitendra Nath Ghosh, eventually became the owner. On 15 December 1973, Jitendra Nath Ghosh leased the property to Badri Narayan Kumar and Nemai Chandra Kumar (partners of M/s. Kumar Industries) for 20 years. The lease allowed the lessees to construct structures on the property, with the condition that they would remove these structures and return the property in its original state by 30 November 1993. The lessees did construct structures, which became a point of contention in this case. The core dispute is whether the lessees qualify as “thika tenants” under West Bengal’s tenancy laws, which would grant them certain rights and protections.

Timeline

Course of Proceedings

Initially, the Controller, Calcutta Thika Tenancy, declared the appellants as thika tenants on 27 January 2010. This decision was based on the premise that the lessees had erected structures on the land. However, after objections from the respondent, Mani Square Ltd., the Controller re-examined the matter and reaffirmed the thika tenancy on 1 August 2012. The West Bengal Land Reforms and Tenancy Tribunal upheld the Controller’s decision on 18 December 2013, emphasizing that the nature of the structure did not negate the thika tenancy. However, the High Court of Calcutta overturned these decisions on 10 March 2014, ruling that the appellants did not qualify as thika tenants because they had constructed a permanent structure and the lease was for a period exceeding 12 years.

Legal Framework

The case primarily involves three key legislations:

• The Calcutta Thika Tenancy Act, 1949: This Act aimed to protect thika tenants from arbitrary eviction and rent hikes. Section 2(5) defines “thika tenant” as someone who holds land under another person, pays rent, and has erected a structure for residential, manufacturing, or business purposes. However, it excludes those who hold land in perpetuity, under a lease of 12 years or more, or use the land as a khattal (cattle shed). The Act was amended in 1969 to include Section 10A, which allowed thika tenants to erect pucca structures with the Controller’s permission for residential purposes.
• The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981: This Act was enacted to acquire the rights of landlords in thika tenancies and vest them in the State. Section 3(8) defines “thika tenant” similarly to the 1949 Act but does not include the exclusion for leases exceeding 12 years. Section 5 of the Act, as amended in 1993, provided for the vesting of lands comprised in thika tenancies, bustees on khas lands, and other lands held under lease or otherwise.
• The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001: This Act repealed the 1981 Act and provided for the vesting of thika tenancies in the State with effect from 18 January 1982. Section 2(14) defines “thika tenant” and was amended in 2010 to include “any structure including pucca structure.” Section 4 provides for the vesting of lands in the State.

Arguments

Appellants’ Arguments:

• The term “any structure” in the 1949 Act includes both kutcha (temporary) and pucca (permanent) structures.
• The 1949 Act is a beneficial legislation and should be interpreted liberally in favor of tenants.
• The insertion of Section 10A in the 1949 Act allowed thika tenants to build pucca structures with permission, indicating that the Act did not bar permanent structures.
• The concept of thika tenancy under the 1981 Act is wider than the 1949 Act, removing the temporary nature of thika tenancy.
• The 2010 amendment to the 2001 Act was merely clarificatory, confirming that structures could be kutcha or pucca.
• The High Court erred in setting aside the Tribunal’s findings of fact without cogent reasons.

State’s Arguments:

• The definition of “thika tenant” in the 1949 Act clearly uses “any structure,” without limiting it to kutcha structures.
• The 1949 Act did not bar the erection of pucca structures by thika tenants, especially after the insertion of Section 10A.
• The 1981 Act brought more lands within the ambit of thika tenancy, and the 2001 Act is a complete code in itself.
• The disqualification under the 1949 Act cannot be used against the application of the 1981 and 2001 Acts.
• The status of thika tenancy should be examined afresh under the 2001 Act, irrespective of previous enactments.

Respondent No. 1’s Arguments:

• Leases beyond 12 years were excluded under the 1949 Act, and “any structure” meant kutcha structures.
• The 1981 Act was an appropriatory enactment, not intended for the creation of thika tenancies.
• The 1981 Act only vested lands with kutcha structures or pucca structures constructed with permission.
• The 2010 amendment to the 2001 Act was prospective, not clarificatory, and did not apply to the appellants.
• After the lease expired in 1993, the appellants were tenants at sufferance, not liable to pay rent, and thus not thika tenants.
• The operation of the 1981 Act was stayed by the High Court, so it could not apply to the subject property.

[TABLE] of Submissions:

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the appellants qualify as “thika tenants” under the Calcutta Thika Tenancy Act, 1949.
2. Whether the appellants qualify as “thika tenants” under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981.
3. Whether the appellants qualify as “thika tenants” under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
4. Whether the High Court was right in setting aside the orders of the Controller and the Tribunal.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Sri Sri Satyanarayan & Ors. v. S.C. Chunder : (2001) 3 CHN 641: Cited to understand the meaning of “thika” as temporary or partial.
• Hindustan Petroleum Corporation Ltd. v. Sashi Bhusan Mondal, APD No. 280 of 1981: Cited in Sri Sri Satyanarayan & Ors. v. S.C. Chunder for the meaning of “thika”.
• Chief Inspector of Mines and Anr. v. Lala Karam Chand Thapar and Ors.: (1962) 1 SCR 9: Rejected for the proposition that “any” means “all” in the context of thika tenancy.
• Om Prakash Gupta v. DIG Vijendrapal Gupta: (1982) 2 SCC 61, Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.: (2012) 9 SCC 552, Union of India & Anr. v. Hansoli Devi & Ors.: (2002) 7 SCC 273, and Vijay Narayan Thatte and Ors. v. State of Maharashtra and Ors.: (2009) 9 SCC 92: Rejected for the argument that the plain language interpretation should be used, as the context and legislative intent must be considered.
• Monmatha Nath Mukherjee v. Smt. Banarasi and Ors.: 63 CWN 824: Upheld for the proposition that the term “any structure” in Section 2(5) of the Act of 1949 is only confined to kutcha structure.
• Jatadhari Daw & Grandsons v. Smt Radha Debi & Anr.: 1986 (1) CHN 21: Upheld for the proposition that the expression “structure” in the statute did not include permanent structure.
• Lakshmimoni Das and Ors. v. State of West Bengal and Ors.: AIR 1987 Cal 326: Affirmed. The Full Bench’s decision was upheld by the Supreme Court.
• Kshiroda Moyee Sen and Ors. v. Ashutosh Roy and Ors.: 63 CWN 565: Cited to show that a tenant is not entitled to put up a permanent structure on the land.
• Jnan Ranjan Sen Gupta and Ors. v. Arun Kumar Bose: (1975) 2 SCC 526: Acknowledged that the Act of 1949 was a beneficial legislation but clarified that it must be interpreted in line with the legislative intent.
• Purushottam Das Murarka v. Harendra Krishna Mukherjee: 79 CWN 852: Clarified. The Court held that the Controller misconstrued the decision.
• Ramdas Bansal (Dead) Through LR v. Kharag Singh Baid & Ors.: (2012) 2 SCC 548: Cited to show the wider scope of the 1981 Act.
• Hardeep Singh v. State of Punjab & Ors.: (2014) 3 SCC 92 and Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Company Private Limited & Ors.: (2010) 8 SCC 24: Cited to show that courts cannot rewrite legislation.
• Gajraj Singh & Ors. v. State Transport Appellate Tribunal & Ors.: (1997) 1 SCC 650: Cited to show the effect of the repeal of an Act.
• Ram Krishna Shaw v. Tachmani Devi: (1994) 1 CAL 394: Cited to argue that the status of thika tenancy is to be examined afresh.
• Annapurna Seal v. Tincowrie Dutt and Anr.: 66 CWN 338: Cited to show that pucca buildings did not come under the purview of the Act of 1949.
• Shanker Raju v. Union of India: (2011) 2 SCC 132: Cited to show that a view held for a long time should not be unsettled.
• Bengal Immunity Company Limited v. State of Bihar and Ors.: (1955) 2 SCR 603 and Gammon India Ltd. v. Special Chief Secretary & Ors.: (2006) 3 SCC 354: Cited to argue that repeal and simultaneous re-enactment is a reaffirmation of old law.
• Nand Ram (Dead) Through Legal Representatives v. Jagdish Prasad (Dead) Through Legal Representatives: (2020) 9 SCC 393: Cited regarding the status of a tenant at sufferance.

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the following factors:

• Nature of the Structure: The court emphasized that the structure on the property was a pucca structure, which, until the 2010 amendment, did not qualify for thika tenancy under the relevant acts.
• Lease Period: The lease was for 20 years, which exceeded the 12-year limit under the 1949 Act, disqualifying the appellants from being thika tenants under that Act.
• Legislative Intent: The court considered the legislative intent behind the various acts, noting that the 1981 Act was primarily for acquiring landlord’s rights, not creating new tenancies. The 2010 amendment was prospective and did not apply to the appellants, who were not tenants at the time.
• Consistent Interpretation: The court upheld the consistent interpretation of “any structure” as referring to kutcha structures by the Calcutta High Court for over half a century.
• Tenant at Sufferance: After the lease expired in 1993, the appellants became tenants at sufferance, not liable to pay rent, thus not fulfilling the criteria for thika tenancy.
• Stay Order: The operation of the 1981 Act was stayed by the High Court, making it inapplicable to the subject property.

Sentiment Analysis of Reasons Given by the Supreme Court:

Decision

The Supreme Court dismissed the appeal, upholding the Calcutta High Court’s decision. The Court ruled that the appellants did not qualify as “thika tenants” under any of the relevant acts. The court concluded that the structures erected were pucca, the lease was for 20 years, and the appellants were not liable to pay rent after the lease expired. The Court further held that the 2010 amendment to the 2001 Act was prospective and did not apply to the appellants. The Court also upheld the long-standing interpretation of “any structure” as meaning kutcha structure. The Court also held that the appellants were tenants at sufferance after the expiry of the lease. The Court held that the High Court had correctly analyzed the facts and the law.

Ratio Decidendi

The key legal principles established by the judgment are:

• The term “any structure” in the Calcutta Thika Tenancy Act, 1949, until the 2010 amendment, referred only to kutcha structures.
• A lease for a period exceeding 12 years disqualifies a tenant from being considered a thika tenant under the 1949 Act.
• The Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was primarily for acquiring landlord’s rights, not creating new thika tenancies.
• The 2010 amendment to the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, is prospective and does not apply to tenancies that expired before its enactment.
• A tenant who is not liable to pay rent after the expiry of the lease cannot be considered a thika tenant.
• The courts should not unsettle a long-standing interpretation of a statute unless there are compelling reasons to do so.

Flowchart of the Decision

Ratio Table

Impact of the Judgment

This judgment has significant implications for tenancy laws and property rights in West Bengal. It clarifies that:

• Tenants who construct pucca structures on leased land are not automatically entitled to thika tenancy rights unless specifically permitted by law.
• Leases exceeding 12 years are not covered under the definition of thika tenancy under the 1949 Act.
• The 2010 amendment to the 2001 Act is not retrospective, and its benefits are not applicable to tenancies that expired before its enactment.
• The judgment reinforces the importance of adhering to the specific provisions of tenancy laws and the legislative intent behind them.
• It also highlights the need for tenants to be aware of their rights and obligations under the law.

Conclusion

The Supreme Court’s decision in Nemai Chandra Kumar vs. Mani Square Ltd. provides a clear interpretation of the term “thika tenant” under West Bengal tenancy laws. The judgment emphasizes that the nature of the structure, the lease period, and the legislative intent behind the relevant acts are crucial factors in determining thika tenancy rights. By upholding the Calcutta High Court’s decision, the Supreme Court has reinforced the importance of adhering to the specific provisions of tenancy laws and the legislative intent behind them. This case serves as a significant precedent for future disputes involving thika tenancies in West Bengal.