1. The petitioner is the defendant in T.S. 72 of 2001, pending on the file of the learned Civil Judge (Junior Division), 3rd Additional Court at Alipore. It is a suit for ejectment and damages.
2. Exercising his right conferred by Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956 (hereafter the WBPT Act), the petitioner filed an application claiming determination as to whether relationship of landlord and tenant between the plaintiff and the defendant exists or not, and in the event of the Court finding that the relationship of landlord and tenant does exist between the parties to the suit, to determine the quantum of dues on account of rent payable by the petitioner and to grant him easy instalment for liquidating the same.
3. The application was opposed by the plaintiff, opposite party herein, by filing a written objection.
4. By an order dated December 4, 2008, the application was disposed of by the trial Court on contest. It was held therein that though relationship of landlord and tenant between the parties to the suit existed up to August 15, 2003, such relationship came to an end with the vesting of the landlords interest in the State w.e.f. August 15, 2003 under the Urban Land (Ceiling and Regulation) Act, 1976 (hereafter the ULRC Act) and that the defendant/petitioner is a defaulter in payment of rent from August, 1998 till August, 2003.
5. Feeling aggrieved by the said order, the plaintiff/opposite party as petitioner instituted a revisional application before this Court under Article 227 of the Constitution being C.O. 462 of 2009. In such application, he reiterated his stand that his interest in the suit property had not vested in the State and that the defendant/petitioner is still a tenant under him in respect thereof and the trial Court committed error in not determining that the defendant/petitioner was a defaulter in payment of rent even for the subsequent months i.e. after August, 2003 till date of decision on the application under Section 17(2) and (2A) of the WBPT Act, i.e. December 4, 2008.
6. The revision application was heard on contest by a learned Judge of this Court. By judgment and order dated August 12, 2009, the revision application was disposed of. The order impugned dated December 4, 2008 was set aside. The application under Section 17(2) and (2A) of the WBPT Act was directed to be decided afresh after giving reasonable opportunity to the parties to adduce further evidence.
7. The trial Judge after communication of the order of this Court dated August 12, 2009 heard the parties afresh. He framed the following issues for decision :
ISSUES
1) Whether the plaintiff/O.P. is owner of the suit premises or not?
2) Whether the defendant was inducted as tenant in the suit property by owner or by his constituted attorney or by any one else with the authority and consent of the plaintiff or not?
3) Whether the owner land used can still be adjudged as landlord of the tenant or not, in respect of the suit property until possession is recovered by the state from the owner thereof in accordance with the law?
4) Whether the defendants defaulter in payment of rent and if so for which period?
8. Upon scanning the evidence in the light of the order of this Court August 12, 2009, the trial Judge disposed of the application under Section 17(2) and 2(A) of the WBPT Act by an order dated February 24, 2010. He returned a finding that the plaintiff/opposite party is the owner of the suit property and that relationship of landlord and tenant exists between the parties to the suit. On the question of rate of rent, the trial Judge found no dispute and, accordingly, determined Rs. 30,691/- as the arrear rent due and payable by the defendant/petitioner to the plaintiff/opposite party @ Rs.150/- per month from August, 1998 till January, 2010.
9. This said order dated February 24, 2010 is under challenge in the present application under Article 227 of the Constitution at the instance of the defendant.
10. Appearing in support of this application, Mr. Bhattacharyya, learned advocate contended that the plaintiff/opposite party presently has no title over the suit property, the same having vested in the Government w.e.f. August 15, 2003 and, therefore, has no subsisting right or locus stands either to claim rent from the defendant/petitioner or to seek his eviction from the suit property.
11. It was further submitted that the rights of the landlord and tenant are disjunctive since, on vesting of vacant land held in excess of ceiling limit under the ULCR Act, the landlord lost his property but the tenants right to continue in possession of the portion under tenancy did not cease.
12. It was submitted in the alternative that irrespective of whether the suit property has vested in the State Government or not, the plaintiff/opposite party could not adduce any evidence in support of his claim that he is the owner of the suit property and, therefore, he is not entitled to an order for ejectment of the plaintiff/defendant. He referred to various documents, viz. the deed based whereon;p0 the plaintiff/opposite party claims to have derived title of the suit property, the power of attorney executed by the plaintiff/opposite party, etc. These, according to him, were placed before the trial Court but were not considered in the proper perspective by it along with the various contradictions in the version of Smt. Mita Sarkar, witness for the plaintiff/opposite party, while ultimately holding that the plaintiff/opposite party is the landlord of the defendant/petitioner and that arrear rent, as computed, is due and payable to him.
13. Per contra, Mr. Mukherjee, learned advocate appearing for the plaintiff/opposite party contended that the contention regarding vesting of the suit property does not deserve any credence since admittedly there is a structure on Dag No.64 in Mouza Bondel, J.L. 16 presently under occupation of the defendant/petitioner, being the suit property, and therefore the plea set up by the defendant/petitioner that the suit property has vested and he can no longer be considered to be a tenant under the plaintiff/opposite party is misconceived.
14. It was next contended by him that documents placed on record before the trial Judge were duly considered whereupon a finding of fact was recorded that the defendant/petitioner is a tenant under the plaintiff/opposite party and that the former was in default in payment of rent. According to him, even if any error has been committed by the trial Judge either on facts or in law, it is too well-settled that power under Article 227 is exercised for keeping the subordinate Court within the bounds of its authority and not for correcting mere errors. Bearing this principle in mind, the Court ought not to disturb findings on factual aspects arrived at by the trial Judge.
15. I have heard learned advocates for the parties and perused the materials on record.
16. From the materials placed before me, I have gathered that proceedings were initiated under the the ULCR Act in respect of vacant land held by one Sri Prativa Chandra Roy, allegedly in excess of the ceiling limit. Pursuant thereto, notification dated July 7, 1989 was issued by the competent authority under the ULCR Act. It was notified for general information that vacant land, particulars whereof were mentioned therein including Dag no.64 in Mouza Bondel, had been determined to have been held by said Sri Roy in excess of the ceiling limit and having regard to the intention of the Government to acquire the same, persons interested therein were invited to lodge objection within 15 days.
17. The said notification was challenged by the said Sri Roy and his sons and daughters before this Court by filing a writ petition, registered as C.R. 6364 (W) 1990. By an order dated February 19, 2003, a learned Judge of this Court quashed the said notification and granted liberty to the respondents to proceed in accordance with law after hearing the concerned parties in connection with their objections, within three months from date of communication thereof.
18. The competent authority under the ULCR Act thereafter determined the quantum of vacant land held by said Sri Roy (since deceased) in excess of the ceiling limit. Objections were again invited vide notification dated June 25, 2003.
19. Ultimately, the competent authority by notification dated August 4, 2003 notified for general information that vacant land, particulars whereof were described in the schedule appended thereto, have been determined to have been acquired by the Government of West Bengal w.e.f. August 15, 2003. In the schedule Dag No.64 in Mouza Bondel and J.L. 16 was included.
20. It has been admitted at the bar that the suit property is on a portion of Dag No.64 in Mouza Bondel, J.L. 16.
21. Steps taken by the competent authority under the ULCR Act were again subjected to challenge before this Court in its writ jurisdiction by persons claiming under said Sri Roy (since deceased), giving rise to W.P. No.5488 (W) of 2005. By an order dated April 1, 2005, a learned Judge of this Court while inviting affidavits directed that until disposal of the writ petition the parties in possession of the properties in question shall maintain the condition that exists on that date. The writ petition is pending till date.
22. It appears from the order dated August 12, 2009 that this Court required the trial Judge to consider the dispute regarding relationship of landlord and tenant by keeping in mind the provisions of Sections 10 and 11 of the ULCR Act in the altered situation, provided however alteration of the situation as claimed by the defendant can be proved by him.
23. It has been noticed by the trial Judge that the defendant/petitioner disputed the plea of the plaintiff/opposite party that he was the landlord of the defendant after the factum of vesting.
24. I shall assume that Dag No.64, Mouza Bondel, J.L. No.16 corresponds to part of the suit property. Under Section 10 of the ULCR Act, only vacant land held in excess of the ceiling limit could be acquired and upon such acquisition would vest in the State Government, and not land with structures thereon. The defendant/petitioner himself having admitted that the elder brother of the plaintiff/opposite party inducted him in the suit property as tenant, it stands to reason that the suit property was not a vacant land but had a structure thereon since inception of the tenancy. The submission of Mr. Mukherjee that the contention raised by the defendant/petitioner based on the fact that Dag No.64 in Mouza Bondel, J.L. No.16 vested in the State Government is without basis can hardly be brushed aside. The defendant/petitioner cannot on the one hand claim that the suit property has vested in the State Government, being vacant land held in excess of the ceiling limit and therefore he can no longer be considered to be a tenant, and on the other hand, claim that the suit property has a structure in a portion whereof he was inducted as a tenant by the elder brother of the plaintiff/opposite party. Insofar as the present dispute between the parties is concerned, I consider it proper to hold that the defendant cannot claim any advantage based on the proceedings initiated under the ULCR Act that is adverse to the interest of the plaintiff/opposite party. However, as has been noticed above, the writ petition questioning the legality and/or propriety of the notification dated August 6, 2003 purporting to vest vacant land held in excess of the ceiling limit is pending before this Court. Although the answer to the point raised by the parties herein would not be binding on the State Government, I make it clear that any view taken herein shall not in any manner prejudice the rights and contentions of the State Government in the pending writ petition.
25. The plea of the defendant/petitioner that he ceased to be a tenant under the plaintiff/opposite party w.e.f. August 15, 2003 being the date on which the notification under Section 10 of the ULCR Act took effect, accordingly, stands overruled. Issue No.3 framed by the trial Judge is answered accordingly.
26. I am, however, unable to concur with the trial Judge on issues 1 and 2 framed by him. There is substance in the argument of Mr. Bhattacharya that the trial Judge failed to consider the evidence on record in the proper perspective. In my view, the order being based on a slip-shod discussion is perverse. I do not intend to discuss in detail the merits and demerits of the rival claims and the infirmities in the order, lest it prejudices the parties at the trial of the suit. Issues 1 and 2 shall be decided by the trial Court afresh along with other issues that might be framed under Order 14 of the Code of Civil Procedure for decision.
27. Regarding issue no.4, the arrears of rent determined by the trial Court has not been seriously challenged before me. In accordance with the determination that has been made, the arrears of rent along with current rent, as and when the same falls due shall be deposited by the defendant/petitioner with the trial Court or with the plaintiff/opposite party without prejudice to the rights and contentions of the parties in the suit. The trial Court shall compute the arrears as on March 31, 2011 and allow the defendant to clear the same in eight equal monthly instalments. The plaintiff/opposite party shall be at liberty to withdraw the said amount and retain the same, provided an undertaking is given by him on affidavit that in the event the suit fails and it is adjudged that the defendant is not a tenant of the plaintiff/opposite party, he shall make good the sum received by him on account of rent from the defendant.
28. The impugned order stands modified. The revision application accordingly stands disposed of, without order for costs.
29. Urgent Photostat certified copy of the judgment and order, if applied for, be given to the parties at an early date.