2016 AIR CC 2075 (CAL) ::(2016) 4 Cal HN 190 ::(2016) 2 RentLR 613 ::(2016) 3 CalLT 313

Calcutta High Court

Hon'ble Judge(s): Indira Banerjee, Sahidullah Munshi , JJ

(A) West Bengal Thika Tenancy (Acquisition and Regulation ) Act (32 of 2001) S. 5 (3), 21 — Jurisdiction of Controller — Claim for declaration of thika tenancy — Enquiry under S 5(3) — Return filed by respondent who in fact neither a ' Bharatia' ? nor a ' thika tenant' ? — Controller thus could not proceed with inquiry on basis of said return (Paras 87, 88, 156)

(B) Calcutta Thika Tenancy Act (37 of 1981) S. 1 — Vesting of land — Land not falling within category of thika tenancy land under Calcutta Thika Tenancy Act, 1949 — Would not vest in State under 1981 Thika Tenancy Act — Person who was not ' thika tenant— under 1949 Thika Tenancy Act — Could not be a ' thika tenant— under 1981 Thika Tenancy Act (Paras 104, 108)

(C) West Bengal Thika Tenancy (Acquisition and Regulation ) Act (32 of 2001) S. 5 (3), 21 — Jurisdiction of Controller — Exercise of — Claim of ' thika tenancy' ? — Return and/or documents/pleadings in support thereof revealing that land is question is not ' thika land' ? — Controller cannot exercise jurisdiction to proceed with enquiry under S 5(3) The Controller has power under S. 5(3) of the 2001 Thika Tenancy Act to decide whether any particular land is thika land and whether any person claiming ' thika tenancy— is a ' thika tenant— or not. However, the Controller, on preliminary examination of the return/claim would have to be prima facie satisfied of the existence of a thika tenancy. Where a return and/or the documents appended thereto and/or any pleadings filed in support thereof ex facie reveal that the land in question is not a ' thika— land, the Controller cannot exercise jurisdiction/further jurisdiction to proceed with an enquiry under S. 5(3). (Paras 110, 123, 156)

(D) Calcutta Thika Tenancy Act (2 of 1949) S. 1 — ' Thika Tenant' ? — Lease of land etc executed in favour of respondent — Its term exceeding twelve years — Respondent thus could not be ' thika tenant' ? under 1949 Act

(E) W. B. Land Reforms and Tenancy Tribunal Act (25 of 1997) S. 1 — Scope — Tribunal Act does not affect power of High Court under Art 226, provided the power is exercised by Division Bench (Paras 118, 142, 149)

(F) Constitution of India Art. 226 — Writ of prohibition — Issuance of — Inferior Court, Tribunal or authority lacking inherent jurisdiction to entertain to proceed with action — Thus High Court can exercise jurisdiction under Art 226 and issue writ of prohibition restraining inferior Court, Tribunal or Authority, as the case may be from exercising jurisdiction When an inferior Court, Tribunal or Authority lacks inherent jurisdiction to entertain or proceed with an action, the High Court is obliged to exercise its extra ordinary jurisdiction under Art. 226 of the Constitution of India and to issue a writ of Prohibition restraining the inferior Court, Tribunal or Authority, as the case may be from exercising jurisdiction. In the instant case, it is manifest on the basis of the allegations in the written submissions in support of the return and the submissions made on behalf of the respondent claim of Thika Tenancy that the ingredients of a thika tenancy were not there. Of course, it is well-settled that the prohibition will not lie only because of insufficiency of the statement of the cause of action in the pleading or because of insufficient proof of action. Prohibition will lie if the disclosed facts reveal lack of jurisdiction. (Paras 144, 153, 156) When there is defect of jurisdiction or usurpation of jurisdiction, the High Court is duty bound to int .....