In Calcutta and its suburb Howrah, there have existed for many years precarious tenancies popularly known as Thika Tenancies. Under such Tenancy, vacant land was leased by the Landlord to a Tenant with liberty to erect structures thereupon of a temporary nature, which were referred to as “Kutcha Structures”. The structures would be owned by the Tenant of the land and the Tenant was further entitled to grant lease of the structure or portion thereof in favour of sub-Tenants. In this kind of Tenancy, the Tenant of the land was referred to as the ‘Thika Tenant’ and the Sub- Tenant was referred to as ‘Bharatia’. Until 1948, the provisions of The Transfer of Property Act, 1882 governed the right and liabilities of Landlords and their Thika Tenants. On October 26, 1948 the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated. The Ordinance had only six Sections. Section 2 of the Ordinance defined a Thika Tenant as follows:

“Any person who under the system commonly known as “Thika”, “Thika masik utbandi”, “Thika masik”, “Thika bastu”, or under any other like system held land under another person whether under a written lease or otherwise and was, or but for a special contract would be, liable to pay rent at a monthly or any other periodical rate, for that land to such other person and had erected any structure on such land and was entitled to use it for residential purposes or for manufacturing or business purposes and included the successors in interest of such person.”

Section 3 provided, no decree or order for the ejectment of a Thika Tenant shall be executed during the continuance in operation of the Ordinance. The object of the Ordinance clearly appeared to be, to give protection to the Thika Tenants and to afford them interim relief by staying execution of certain decrees and orders as mentioned in Section 3, until an appropriate Act was passed by the Legislature in this behalf.

On February 28, 1949, The West Bengal Legislature enacted the Calcutta Thika Tenancy Act (“Act”). Section 2(5) of the Act defined a Thika Tenant in the following terms:

“Any person who under the system commonly known as “Thika”, “Thika masik utbandi”, “Thika masik”, “Thika bastu” or under any other like system holds, whether under a written lease or otherwise, or has been recorded in any record-of-rights as holding, under the title “dakhal basatkar” or other like appellation, land under another person and is, or but for a special contract would be, liable to pay rent, at a monthly or at any other periodical rate, for that land to such other person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person.”

In order to establish Thika Tenancy, it had to be proved by evidence, the Tenant held the land under the ‘system’ mentioned in the aforesaid Section. It was not enough for the Tenant to merely take a vacant land and then build structures on it – that could not make him ipso facto a Thika Tenant. There is no doubt, the provisions of the Act were intended to serve the purpose of social justice. The Thika Tenancy Act like similar Rent Acts passed in different States was intended to prevent indiscriminate eviction of Tenants and was intended to be a protective statute to safeguard security of possession of Tenants. But the definition of Thika Tenant contained in the Act gave rise to some difficulties and it was discovered, some of the Tenants in Calcutta who were in substance Thika Tenants failed to obtain the protection of the Act owing to some words used in the said definition. The new law failed to achieve its object for some years as Courts interpreted the definition of Thika Tenant in the Act in such a manner that speaking generally, no Tenant was able to establish its requirement.

The Governor of West Bengal enacted on October 21, 1952, The Calcutta Thika Tenancy (Amendment) Ordinance, 1952 by which the definition of Thika Tenant was revised and a few other amendments of the Act were made. By Section 2 (5) of this Ordinance, the definition of Thika Tenant in The Calcutta Thika Tenancy Act, 1949 was substituted by a new one:

“Any person who holds, whether under a written lease or otherwise, land under another person, and is but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected any structure on such land for a residential, manufacturing or business purpose and includes the successor in interest of such person, but does not include a person:-

(a) who holds such land under that another person in perpetuity; or

(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or

(c) who holds such land under that another person and uses or occupies such land as a khatal.”

The effect of this was, a person who, before the Ordinance would not come within the pale of the Act because he could not prove a ‘system’, came within its protection, because of the amendment of the definition of a Thika Tenant. The phrase Thika Tenant within the meaning of the said Act as amended by the Ordinance meant and included a person who was a Thika Tenant, against whom a decree for possession had been passed, but who continued to be in possession. The meaning was necessary if the least working effect was to be given to the Ordinance.

The Ordinance was followed by The Calcutta Thika Tenancy (Amendment) Act of 1953 (“Amendment Act of 1953”) that came into force on March 14, 1953.  Section 2 of the Act amended the definition of Thika Tenant still further by giving the benefit of the Act to persons who had erected or acquired by purchase or gift any structure on the land for a residential, manufacturing or business purpose:

“Any person who holds, whether under a written lease or otherwise, land under another person and is or but for a special contract would be liable to pay rent, as a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such persons, but does not include a person:-

(a) who holds such land under that another person in perpetuity; or

(b) who holds such land under that another person under a registered lease, in which the duration of the lease is expressly stated to be for a period of not less than twelve years; or

 (c) who holds such land under that another person and uses or occupies such land as a khatal.”

It was held by SC, there was nothing in the definition clause that required a Thika Tenant to secure prior permission of the Landlord for erection of structures on the land. However, as regards what kind of structures the Thika Tenant was entitled to erect, it was held, words “any structure” could not be construed to mean a “Pucca Structure” (See, Kshirodamoyee, 63 CWN 565; Monmatha, 63 CWN 824).

After The Amendment Act of 1953 came into force, the position of a Tenant had to be examined in the light of the Act “as it finally emerged” – “taking on a new shape with some added features, some altered features and minus those features which had been omitted” (See, Mahadeolal, AIR 1960 SC 936)

More than a decade after, the Government of West Bengal proposed to further amend the Act with a view to “prevent unfair eviction of Thika Tenants”. The Calcutta Thika Tenancy (Second Amendment) Act, 1969 (“Second Amendment Act of 1969”) came into force on October 30, 1969. The Object and Reasons of the Second Amendment Act of 1969 were stated in the following terms, “It has been considered necessary that by further amendment of The Calcutta Thika Tenancy Act, 1949, the legitimate interests of a Thika Tenant should be properly safeguarded, the grounds on which a Thika Tenant can be ejected should be further restricted and that a Thika Tenant using the land for residential purpose should be given the right to erect Pucca Structure. It is also essential to ensure that the Thika Tenant discharges his obligations to the Bharatias by keeping the huts fit for habitation and by providing essential amenities like water supply, conservancy and sanitary services.” The Second Amendment Act of 1969 thus, gave the right to the Thika Tenant to erect a “Pucca Strcuture” – but in order to do so the permission of the Thika Controller was necessary.

Finally, The Act of 1949 was repealed in 1982 and the new Act, The Calcutta Thika Tenancy  (Acquisition and Regulation) Act, 1981 (“1981 Act/Act of 1981”) came into force with effect from January 18, 1982. The 1981 Act brought about drastic changes in the concept of Thika Tenancy. The superior interest of the Landlord holding under the State stood vested in the State by operation of law. The land having been vested in the State, the Thika Tenant occupying the land under the Landlord became a Thika Tenant holding the Thika Tenancy directly under the State. Section 2(8) of the 1981 Act defined a Thika Tenant as:

“Any person who occupies, whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes successors-in-interest of such person.”

As may be noticed in the definition of Thika Tenancy in The 1981 Act, Clauses (a), (b) and (c) of Sub-Section (5) of Section 2 of The 1949 Act were omitted which had the effect of including the said lands described therein within the ambit of Thika Tenancies under The 1981 Act.

The cases of Purushottam Das, 79 CWN 852; Jatadhari Daw, 1986 1 CHN 21; Lakshmimoni Das, 1987 2 CHN 148 & Satyanaryan, 2001 3 CHN 641 have been frequently cited for the proposition, the expression “any structure” used in Section 3(8) of the Act of 1981 means a “Kutcha Structure”. The reliance is unfounded. Purushottam Das merely decides, subject to the right of the Landlord to have “Pucca Structures” demolished, the building of “Pucca Structures” itself would not rob a Thika Tenant of his status. In Jatadhari Daw, it was contended, the land in dispute had, after promulgation of The 1981 Act, vested in the State of West Bengal and under the said Act, the appellants were now deemed to be the Tenants of the State. In the facts and circumstances of the case the Act of 1981 was found to have “no application” on grounds of a) there being no relationship of Landlord and Tenant between the concerned parties at the time of commencement of the 1981 Act, b) the land in dispute not being a holding within the meaning of Section 3(3) of the said Act and c) the land in dispute not qualifying as “other lands” within the meaning of Section 5 of the Act of 1981. The decision offers no propositions to the effect, the expression “any structure” used in Section 3(8) of the 1981 Act means a “Kutcha Strucutre” only. While interpreting “other lands”, Jatadhari Daw held, “a land held under any Tenancy except a Thika Tenancy will come within the mischief of [Section 5] only when the land is being used or occupied as a khatal and not otherwise.”  In Lakshmimoni Das, a Full Bench, while reconsidering Jatadhari Daw, merely re-affirmed this proposition. “The point of primary importance” decided by the Full Bench was, “other lands” will not mean any and every other land but must have a nexus with the Thika Tenancy or be a khatal where cows and buffalos are kept under a temporary structure even within Metropolitan Limits. Lakshmimoni Das, too, however, offers no propositions to the effect, the expression “any structure” used in Section 3(8) of The 1981 Act means a “Kutcha Structure” only. In contrast, Lakshmimoni Das considers, the 1981 Act has put “onerous duties and unreasonable obligation upon the Thika Tenant…in the matter of construction of Pucca Structures…and it is very difficult to reasonably expect that any Thika Tenant would make any attempt to construct a Pucca Structure…” To the Full Bench it indeed appeared, The Act of 1981 rendered the temporary nature of Thika Tenancy – “extra temporary” – making the position of the Thika Tenant, “worse than ever before”. It must be conceded though, Satyanaryan “advisedly opined”, the words “any structure” occurring in Sub-Section (8) of Section 3 of the 1981 Act includes every structure on the Tenancy and “each such structure must satisfy the condition of being such a structure as is not a Pucca Structure…” In Satyanaryan it was admitted, law on this point “has probably not been articulated in clear terms yet” – which exemplifies how the frequent audacious citation of Purushottam Das, Jatadhari Daw & Lakshmimoni Das, all of which preceded Satyanaryan, is not entirely correct. Satyanaryan was decided on June 20, 2001. At that time, an appeal against Lakshmimoni Das was pending at SC. The decision in Satyanaryan would have certainly proved to be of some assistance to those who opposed the State. However, during the pendency of the Appeal there was first an Amendment of Section 5 of The 1981 Act by the Calcutta Thika Tenancy (Acquistion and Regulation) (Amendment) Act, 1993 (“Amendment Act of 1993”). Later, The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (“2001 Act/Act of 2001”) was enacted.

The Act of 2001 repealed the said Act of 1981. It was given effect from January 18, 1982, that is, from the same date on which The 1981 Act was brought into force. “It is clear that the main object of The 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands…” [See, Ramdas Bansal, (2012) 2 SCC 548]

As a result of The Amendment Act of 1993 and the subsequent new Act of 2001, the Appeal against Lakshmimoni Das before SC was not pursued (and was withdrawn) since the decision ceased to have any effect. Section 2(14) of The 2001 Act defined a Thika Tenant as follows:

“Any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected of acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose, and includes the successors-in-interest of such person but excluded any resident of a structure forfeited to the State under sub-Section (2) of Section 6 of this Act irrespective of the status he may have enjoyed earlier.”

Did this new definition indicate, the expression “any structure” included “Pucca Structures” too? The effect of retention of the same expression in a subsequent enactment, in the context of a prior judicial pronouncement, has been considered in Chapa Guha, AIR 1978 Cal 457. However, there is no one correct answer to the aforesaid question. If the amended definition of “Pucca Structures” is anything to go by, however – it must be said – the concept of a “Pucca Strucutre” underwent a change between 1981 and 2001. If any part of the structure was made of any material of temporary, transient or perishable nature such structure could not be considered as Pucca. In some terms thus, the expression “any structure”, as it was in 1981, did not mean the same in 1993 or in 2001. The box was the same. But it had now different contents.

The above quoted original definition of Thika Tenant stood amended further by The West Bengal Thika Tenancy (Acquisition and Regulation) (Amendment) Act, 2010 (“Amendment Act of 2010”):

“Any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected of acquired by purchase or gift any structure including Pucca Structure, if any, on such land for residential, manufacturing or business purpose, and includes the successors-in-interest of such person but excluded any resident of a structure forfeited to the State under sub-Section (2) of Section 6 of this Act irrespective of the status he may have enjoyed earlier.”

The expression “Pucca Structure” was included, for the first time, in the definition clause of Section 2(14) of The 2001 Act, by the Amendment Act of 2010. The definition of Thika Tenant, under Section 2(14) of the Act of 2001, as amended by The Amending Act of 2010, was given retrospective effect from January 18, 1982, that is, from the same date on which the 1981 Act was brought into force. Indeed The Amending Act of 2010 is declaratory of the law as it always was and is a Parliamentary Exposition on The 2001 Act since the phraseology of “any structure” in the unamended Section 2(14) was evidently capable of diverse meanings and was rendered ambiguous by judicial interpretation.

SC is at present, assessing the evolution of Thika Tenancy Laws on its own terms and some of its findings may very well be in variance to the opinions expressed herein. Whatever the decision – the same is sure to have its impact on a fairly large number of matters stemming from Courts of West Bengal.