Order no.2 Date: 14.06.2023
Ld. Advocate for the complainant is present.
The case is taken up for admission hearing.
Perused and considered the complaint application along with photo copy of documents annexed thereto.
Heard Ld. Advocate for the complainant.
It is the case of the complainant that he is a tenant under opposite party no.2 in respect of one residential room being room no.10 measuring about 75 sq. ft. on the ground floor of premises no.4/H/1, Sambhu Chatterjee Street, P.S. Jorasanko, Kolkata – 700007 at a monthly rental of Rs.130 (Rupees one hundred thirty) only. On 16.09.2019 the opposite party no.2 with an intention to construct a multi storied building, on demolishing, the existing old structure of premises no.4/H/1, Sambhu Chatterjee Street, P.S. Jorasanko, Kolkata – 700007 through the developer/opposite party no.1, entered into a ‘tripartite agreement dated 16.09.2019 for ‘no objection for construction of a multi storied building’ with the complainant. That apart, one Md. Tajuddin, the brother of the complainant entered into another agreement on the same date with the landlord and the developer, the opposite parties herein for taking another tenancy of 200 sq. ft. carpet area on the 3rd floor of the same premises after construction. It was settled that the said Md. Tajuddin would pay Rs.7,00,000/- (Rupees seven lakh) only towards the cost of construction and will pay Rs.2 (Rupees two) only per sq. ft. as rent to the opposite parties. In course of hearing, Ld. Advocate for the complainant frankly submits that premises no.4/H/1, Sambhu Chatterjee Street, P.S. Jorasanko, Kolkata – 700007 is a Thika Tenancy property.
A photocopy of rent bill issued by opposite party no.2 for the month of April, 2006 to August, 2006 reveals that it was issued in the name of Md. Suhail & Md. Tajuddin in respect of room no.10 in the ground floor of premises no.B/4/H/4/1 Sambhu Chatterjee Street, P.S. Jorasanko, Kolkata – 700007.
The photocopy of ‘agreement for no objection of a multi storied building’ dated 16.09.2019and ‘agreement for booking’ dated 16.09.2019 are in respect of premises no.4/H/1, Sambhu Chatterjee Street, P.S. Jorasanko, Kolkata – 700007.
Section 5 of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 enumerates as follows:
Section 5 Incidents of tenancies in respect of lands vested in the State.—
- Subject to the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), and the provisions of this Act, every thika tenant, occupying any land under a landlord on the date of commencement of this Act, shall occupy such land, on such terms and conditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land.
- Every thika tenant holding directly under the State under sub-section (1) shall be liable to pay to the State Government in the prescribed manner such revenue as may be determined.
- If any question arises as to whether a person is a thika tenant or not or whether the land in question is thika land or not, the Controller, either on his own motion or upon receiving any information, may, after giving the persons interested an opportunity of being heard and after examining all such documents and particulars as may be considered necessary, enquire upon and decide such question.
- The interests of the thika tenants holding directly under the State under sub-section (1) shall be heritable and shall not be transferable except inter se amongst the heirs and existing co-shares interest and spouses or to the prospective heirs, with a prior permission of the Controller, subject to the provisions of sub-section (1) of section 6.
- The thika tenants holding directly under the State under sub-section (1) shall be entitled [to construct pucca structures or to change the nature, character and dimension of an existing structure on the land] in accordance with the building plans sanctioned under the Kolkata Municipal Corporation Act, 1980 (West Ben. Act LIX of 1980), and the rules made there under, or the Howrah Municipal Corporation Act, 1980 (West Ben. Act LVIII of 1980), and the rules made there under, according as the land may be situated within Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980, or Howrah as defined in clause (15) of section 2 of the Howrah Corporation Act, 1980, for –
- residential and business purposes for themselves and the bharatias under them; and
- essential common facilities like common pathway, common bath, toilet, water supply, drainage, sewerage, lighting and similar other purposes :
Provided that the thika tenants holding directly under the State under sub-section (1), shall obtain a no objection certificate from the Controller before making any pucca construction or changing the nature, character and dimension of an existing structure on the land, irrespective of the area of the land.
- Subs. by s. 5(1) of the West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010 (W.B. Act XXV of 2010), w.e.f. 01.11.2010, which was earlier as follows :
“(3) If any question arises as to whether a person is a thika tenant or not, the matter shall be decided by the Controller”.
- Subs. by s. 5(2), ibid, w.e.f. 01.11.2010, for the words “to construct pucca structures”.
- The thika tenant holding directly under the State under sub-section (1), shall be liable to pay rent to the State Government at such rate and in such manner as may be prescribed.
It is apparent on the face of the record that the complainant in his complaint application has deliberately suppressed that the opposite party no.2 is a thika tenant under the state. From both the agreements annexed with the complaint application do not disclose that in compliance with section 5(5) of West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, the opposite party no.2 has obtained any building plan sanctioned under the Kolkata Municipal Corporation Act, 1980 or in compliance with section 5(b)(1) of the Act obtained a no objection certificate from the Controller before making any pucca construction or changing the nature, character and dimension of an existing structure of the land, irrespective of the area of the land. That apart, if any question arises regarding thika tenancy land or thika tenant, only the Controller has jurisdiction to decide the same. Moreover Md. Tajuddin is not a party to this case.
Having considered the discussion made above it is, crystal clear that the ‘agreement for no objection for construction of multistoried building’ is being illegal document cannot be enforced in legal Forum. The right of the complainant under a thika tenant can only be adjudicated by the Controller under West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001.
This commission lacks jurisdiction to try the case.
Hence, it is
O R D E R E D
that the complaint case be and the same being not maintainable stands dismissed without cost.
