Calcutta High Court

Hindustan Petroleum Corporation ... vs Santanu Mullick on 10 September, 2025

Author: Sabyasachi Bhattacharyya

Bench: Sabyasachi Bhattacharyya

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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
IN APPEAL FROM THE DECREE PASSED IN ITS ORDINARY ORIGINAL
CIVIL JURISDICTION

The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Uday Kumar

A.P.D. No. 120 of 2015
with
C.S. 245 of 1995
IA NO: GA/6/2016 (Old No: GA/1063/2016)

Hindustan Petroleum Corporation Limited
Vs
Santanu Mullick, Executor & Others

For the appellant : Mr. Pradip Dutta, Sr. Adv.,
Mr. Chanchal Kr. Dutta, Adv.,
Mr. Nirmalya Dasgupta, Adv.,
Ms. Krishna Mullick, Adv.

For the respondents : Mr. Jishnu Saha, Sr. Adv.,
Mr. Ashok Kumar Awasthi, Adv.,
Mr. Aishwarya Kr. Awasthi, Adv.

Heard on : 02.07.2025, 09.07.2025,
06.08.2025 & 03.09.2025

Reserved on : 03.09.2025

Judgment on : 10.09.2025

Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred against the judgment and decree

passed in C.S. 245 of 1995 which was instituted by the

plaintiffs/respondents herein for specific performance of contract and

in the alternative for vacant and peaceful possession of the suit

premises at 3D, Camac Street, Kolkata and for mesne profits.
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2. The claim for specific performance was given up by the

plaintiffs/respondents. The suit was ultimately decreed, thereby

directing eviction of the defendants/appellants as well as mesne profits.

3. Learned senior counsel for the appellant argues that the Civil Court did

not have jurisdiction to decide the issue as to whether the suit property

was a Thika land and whether the jural relationship between the

parties was that of Thika tenant and Bharatia as well as to decide the

suit for eviction of Bharatia.

4. Learned senior counsel further contends that at the juncture when the

impugned judgment was passed, the West Bengal Thika Tenancy

(Acquisition and Regulation) Act, 2001 (hereinafter referred to as "the

2001 Act") had come into force.

5. Under Section 5(3) thereof, as amended with effect from November 1,

2010 by the Amendment Act of 2010, 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.

6. Again, under Section 8(2) of the Act, in any question arises as to

whether a person is a Bharatia under a particular Thika tenant, the

Controller, either on his own motion or upon receiving any information,

may, after giving the persons interested an opportunity of being heard
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and after examining all such documents and particulars as may be

considered necessary, enquire upon and decide such question.

7. Sub-section (3) of Section 8 stipulates that any dispute regarding

payment of rent by the Thika tenant to the State Government or by a

Bharatia to a Thika tenant, or any case of eviction of Bharatia, shall be

disposed of by the Controller in such manner as may be prescribed.

8. It is argued on behalf of the appellant that the question of Thika

tenancy was specifically raised before the learned Single Judge and the

learned Single Judge framed and decided such issue specifically,

whereas Section 21 of the 2001 Act categorically debars the Civil Court

from having jurisdiction to decide, or to deal with any question, or to

determine any matter which by or under the 2001 Act, is required to be

or has been decided or dealt with or which is to be or has been

determined, by the Controller or the Appellate or other authorities

specified in the provisions of the said Act and no order or judgment, as

per the said Section, shall be passed or proceedings, including

execution proceedings, commenced under the provisions of the 2001

Act shall be called in question in any Civil Court.

9. Thus, learned senior counsel for the appellant contends that the

impugned judgment ought to be set aside on such ground alone.

10. The appellants rely on Sri Lalit Kumar Bagla and Others v. Rajiv Kumar

Podder and Others, reported at (2016) 3 Cal LJ 281, where a Division

Bench of this Court had held that Section 21 of the 2001 Act provides

that no Civil Court shall have jurisdiction to decide or deal with any
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question or to determine any matter, which, by or under the said Act, is

required to be or has been decided or dealt with by the Thika

Controller. Section 21, it was observed, makes it clear that no order or

judgment passed or proceedings including execution proceedings

commenced under the 2001 Act shall be called in question in any Civil

Court. On such ground, the appeal before the said Division Bench was

allowed.

11. Learned senior counsel for the plaintiffs/respondents controverts the

arguments of the appellants and submits that in view of the saving

clause in Section 27 of the 2001 Act, proceedings pending at the date of

commencement of the 2001 Act under the predecessor statute, that is,

the Calcutta Thika and Other Tenancies and Lands (Acquisition and

Regulation) Act, 1981 (for short, "the 1981 Act") would be saved from

the provisions of the 2001 Act.

12. In the present case, the suit was filed in the year 1995 whereas the

2001 Act came into force much later, with effect from March 1, 2003.

13. It is argued that under the 1981 Act, although there was a bar to the

Civil Court's jurisdiction in matters in which the Controller had the

power to adjudicate under Section 23, the Controller did not have the

power to determine the question of whether a property is a Thika land

and whether the relationship between the parties is that of a Thika

tenancy as well as to decide suits for eviction against Bharatias. It is

pointed out that there was no provision akin to Sections 5 and 8 of the

2001 Act in the 1981 Act.
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14. In support of his submissions, learned senior counsel cites a Division

Bench judgment of this Court in Debasish Banerjee v. Maya Sarkar &

Ors., reported at 2016 SCC OnLine Cal 6906 , in support of the

proposition that Section 5(3) of the 2001 Act would not apply if the

proceeding was initiated under the unamended provision of the 2001

Act.

15. Learned senior counsel for the plaintiffs/respondents next relies on

Sabita Rani Majilya v. State of West Bengal, reported at (2011) 3 CHN

534, where, under similar circumstances, a Division Bench of this

Court held that if a proceeding was initiated before the 2001 Act came

into force on March 1, 2003, the provisions of the 2001 Act would not

be applied and such proceeding initiated under the 1981 Act would be

saved under Section 27(2) of the 2001 Act.

16. Thirdly, learned senior counsel for the plaintiffs/respondents cites a

judgment of a learned Single Judge of this Court in the matter reported

at Chandra Devi Bothra and Ors. v. The State of West Bengal, reported

at MANU/WB/1037/2024, where the self-same principles were

reiterated.

17. For a similar proposition, learned senior counsel also cites another

decision of a learned Single Judge of this Court in the matter of Bijoy

Modi and Others v. Alauddin Ahmed and Another, reported at 2021 SCC

OnLine Cal 2338.

18. Learned senior counsel also cites Nemai Chandra Kumar (D) thr. L.Rs.

and Ors. v. Mani Square Ltd. and Ors., reported at (2022) 5 SCJ 413,
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where the Supreme Court considered the expression "any structure" in

the 2001 Act to adjudicate whether pucca structures would come

within the fold of Thika tenancies.

19. Accordingly, the respondents pray for dismissal of the appeal.

20. Heard learned senior counsel for both the parties.

21. The point involved in the appeal is extremely short - whether the

learned Single Judge, acting as a civil court, had the jurisdiction to

decide the suit in view of the bar under Section 21 of the 2001 Act.

22. Out of the judgments cited by the plaintiffs/respondents, Nemai

Chandra Kumar (supra)1 is not directly germane on the issue at hand.

The consideration there was whether a structure, to come within the

purview of a Thika land, could be a pucca structure. While holding so,

the Supreme Court observed inter alia that the appellants therein were

not Thika tenants within the meaning of the 1981 Act since the

structure-in-question was a pucca structure and the Act of 1981 was

not operative in relation to the property-in-question because of the stay

the order passed by the High Court. The consideration in the present

case is rather different.

23. Again, this Court does not find the co-ordinate Bench judgment in

Debasish Banerjee (supra)2 to be relevant either. In the said judgment,

the court was considering the scope of power of the Controller under

1. Nemai Chandra Kumar (D) thr. L.Rs. and Ors. v. Mani Sware Ltd. and Ors., reported at
(2022) 5 SCJ 413
2. Debasish Banerjee v. Maya Sarkar & Ors., reported at 2016 SCC OnLine Cal 6906
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Section 5(3) of the 2001 Act. It was noted by the Division Bench that

whereas the original unamended sub-section (3) of Section 5 stipulated

that only questions as to whether a person is a Thika tenant or not are

to be decided by the Controller, by virtue of the Amendment of the Act

of 2010, effective from November 1, 2010, a wider expression "whether

a person is Thika tenant or not and whether the land-in-question is a

Thika land or not" was introduced which would not be applicable in the

said case. Although, on the general issue of retrospectivity, the said

decision may be relevant, but it does not apply to the issue involved in

the present case at all.

24. The Division Bench judgment in the matter of Sri Lalit Kumar Bagla

(supra)3 cited by the appellants, is not germane either. In the said case,

the Division Bench was merely reiterating the provisions and bar under

Section 21 read with Section 5 of the 2001 Act but did not decide the

question whether the bar under Section 21 of the said Act would be

applicable in a suit already pending when the 2001 was enacted.

25. Since, in the said case, the adjudication under Order XXI Rules 97 to

99 of the Code of Civil Procedure happened after the coming into force

of the 2001 Act, it was held that the Civil Court did not have

jurisdiction.

26. However, the common refrain in all the other judgments cited by the

private respondents, as indicated above, is that if a proceeding is

3. Sri Lalit Kumar Bagla and Others v. Rajiv Kumar Podder and Others, reported at (2016) 3
CalLJ 281
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initiated under the 1981 Act, the same would be saved within the

contemplation of Section 27 of the 2001 Act, which came into force

later.

27. Let us now consider the relevant provisions of the 2001 Act in the light

of the above judgments.

28. Sections 5, 8, 21 and 27 of the 2001 Act are set out below:

"5. (1) Subject to the provisions of the Urban Land (Ceiling and Regulation) Act,
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.
(2) 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.
(3) If any question arises as to whether a person is a thika tenant or
not, the matter shall be decided by the Controller.
(4) 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.
(5) The thika tenants holding directly under the State under subsection
(1) shall be entitled to construct pucca structures in accordance with the
building plans sanctioned under the Kolkata Municipal Corporation Act, 1980,
and the rules made thereunder, or the Howrah Municipal Corporation Act,
1980, and the rules made thereunder, 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 Municipal Corporation Act, 1980, for--
(a) residential and business purposes for themselves and the
Bharatias under them; and
(b) 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.
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(6) The thika tenant holding directly under the State under subsection
(1), shall be liable to pay rent to the State Government at such rate and in such
manner as may be prescribed.
...

8. (1) This monthly and other periodical tenancies of the Bharatias in respect of the structures occupied by them on payment of rents to the thika tenants shall, with effect from the date of coming into force of this Act, be governed by the provisions of the West Bengal Premises Tenancy Act, 1956, in matters relating to the payment of rent by the Bharatias and their eviction by the thika tenants, the owners of the structures shall be deemed to be landlords and the Bharatias shall be deemed to be tenants under the said Act.

(2) Any question as to whether a person is a Bharatia under a particular thika tenant, or where there is no thika tenant, in a particular thika land, shall be decided by the Controller.

(3) Any dispute regarding payment of rent by the thika tenant to the State Government or by a Bharatia to a thika tenant, or any case of eviction of Bharatia, shall be disposed of by the Controller in such manner as may be prescribed.

(4) A Thika tenant may, in default of payment of rent to the State Government, be evicted or otherwise penalised by the Controller-in such manner as may be prescribed.

(5) For the purpose of this section, the Controller shall exercise all such powers and perform such duties as are exercisable by a Rent Controller under the West Bengal Premises Tenancy Act, 1956.

(6) Notwithstanding anything contained in this Act or in the West Bengal Premises Tenancy Act, 1956, a Bharatia under a thika tenant shall be entitled to take separate electrical connection from the electricity supplying agency and separate water supply connection from the appropriate agency for his own use.

(7) A Bharatia shall be liable to pay rent to the thika tenant at such rate as may be prescribed.

(8) Where there is no thika tenant, a Bharatia shall be liable to deposit rent with the Controller of the area at such rate as may be prescribed.

...

21. No civil court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which, by or under this Act, is required to be, of has been decided or dealt with, or which is to be, or has been determined, by the Controller or the appellate or other authority specified in the provisions of this Act, and no order or judgment passed, or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any civil court.

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...

27. (1) With effect from the date of commencement of this Act, the Kolkata Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, shall stand repealed.

(2) Notwithstanding the repeal of the said Act, such repeal shall not--

(a) affect the previous operation of the said Act or anything duly done or suffered thereunder; or

(b) affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Act; or

(d) affect any investigation, legal proceeding or remedy, in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed."

29. The bar to jurisdiction of Civil Courts stems from Section 21 of the

2001 Act. The scope of such bar is not only in respect of past

determinations or decisions of the Controller within his jurisdiction but

also prospective disputes which the Controller or the Appellate

Authority under the 2001 Act are empowered to determine and decide.

Also, no order or judgment passed or proceedings including execution

proceedings commenced under the provisions of the 2001 Act shall be

called in question in any Civil Court by virtue of Section 21.

30. However, to examine the span of the bar, we are inevitably to look into

the powers of the Controller, since the bar is inextricably tied up with

the powers of the Controller and would operate only if the Controller

has the power in the first place.

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31. Section 5(3) of the 2001 Act, as it originally stood, vested the Controller

with the powers to decide the question whether a person is a Thika

tenant or not.

32. By the 2010 Amendment, which came into force on and from November

1, 2010, the scope of the powers of the Controller was broadened by

including the question as to whether the land-in-question is a Thika

land or not, which is of much wider purport than it originally stood. To

determine the question whether a person is a Thika tenant or not, it is

not necessarily required to enter into the determination as to whether

the land is a Thika land at all. There may be instances where the

character of the land as a Thika land is admitted but the only question

involved is whether a particular person is a Thika tenant in respect of

such land, which was the limited scope of consideration earlier.

33. However, after November 1, 2010, the Controller has been vested with

the power to decide all questions, not only as to whether a person is a

Thika tenant or not but also whether the land-in-question is a Thika

land or not.

34. Sub-section (2) of Section 8 of the 2001 Act empowers the Controller to

decide the question as to whether a person is a Bharatia under a

particular Thika tenant, whereas sub-section (3) of Section 8 vests the

Controller with the power, inter alia, to dispose of any case of eviction of

a Bharatia.

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35. Hence, Section 21, read with Sections 5 and 8, of the 2001 Act

categorically debars the Civil Court from entering into any dispute of

the nature as indicated in Sections 5 and 8.

36. In the present case, the suit court framed certain issues before deciding

the suit. Issue (i) was whether the defendant is a Thika tenant in

respect of the suit property under the provisions of the Calcutta Thika

and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981.

Also, the suit court took up for adjudication and decided the relief of

grant of eviction against the defendant/appellant, which claimed to be

a Bharatia.

37. Thus, there cannot be any manner of doubt that the specific powers of

the Controller, as vested under Sections 5 and 8 of the 2001 Act, were

exercised by the suit court in the present case. The question which

arises is whether the provisions of the 2001 Act, including the bar to

jurisdiction under Section 21 thereof, would be attracted in the present

case at all.

38. Section 27 (1) of the 2001 Act repeals the 1981 Act whereas Section 27

(2) provides the saving clause.

39. The provisions of Section 27(2) of the 2001 Act are specific in such

respect. Clause (d), inter alia, saves from repeal any legal proceeding or

remedy in respect of any right, privilege, obligation, liability, etc.

acquired, accrued or incurred under the 1981 Act. It further provides

that any such legal proceeding or remedy may be instituted, continued

or enforced as if the 2001 Act had not been passed.

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40. In the present case, admittedly, the suit was instituted in the year

1995, when the 2001 Act had not been enacted, the date of notification

of the 2001 Act being March 1, 2003, although amendments were

brought in different provisions of the Act later.

41. Importantly, Clause (a) of sub-section (2) of Section 27 of the 2001 Act

saves the previous operation of the 1981 Act "or anything duly done or

suffered thereunder" whereas Clause (b) protects any "right, privilege,

obligation or liability acquired, accrued or incurred under the said Act".

42. It is reflected in the impugned judgment of the suit court that the very

plinth of the defendant's argument was that the suit premises was

vested with the State of West Bengal under the provisions of the 1981

Act and the subsequent amendments thereto. In the light of such

contention, Issue no. (i) was framed in the form as indicated above, the

focus being on whether the defendants are Thika tenants under the

provisions of the 1981 Act. Hence, it was the admitted stand of the

defendant/appellant that its rights in respect of the property had

accrued under the 1981 Act, which are squarely saved from repeal by

Clauses (a) and (b) of Section 27(2) of the 2001 Act.

43. Also, on the date when the suit was filed, the 2001 Act had not come

into force, thus, attributing the character of a "legal proceeding or

remedy under the 1981 Act" to the said suit, which are protected from

the operation of the 2001 Act by dint of Section 27(2)(d) of the 2001

Act.

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44. Hence, seen from all perspectives, the suit and the rights of parties

urged in the suit under the 1981 Act were protected under the saving

clause as embodied in Section 27 (2) of the 2001 Act and the suit would

be deemed to continue under the 1981 Act irrespective of the said Act

being otherwise repealed. Thus, the provisions of the 2001 Act,

including the bar to jurisdiction of the civil courts under Section 21,

read with Sections 5 and 8, of the said Act would not be applicable.

45. As such, the sole argument of the appellant, on the ground of non-

maintainability of the suit due to lack of inherent jurisdiction of the

civil court, fails.

46. This Court would be failing in its duty if an interesting argument made

in reply by the appellant is not dealt with. Learned senior counsel for

the appellant, in reply, argues that the even the 1981 Act contained a

similar provision as Section 21 of the 2001 Act, in the form of Section

23 of the 1981 Act.

47. However, with respect, such argument is absurd, since a provision

barring the jurisdiction of the Civil Courts in matters which the

authorities under the particular Act are empowered to do has

necessarily to be connected to the powers exercisable by the authorities

under the said Act in the first place.

48. Throughout the 1981 Act, there is no provision similar to Section 5(3)

or Section 8(2) of the 2001 Act which empowers the Thika Controller

either to decide or determine whether a person is a Thika tenant or

whether a property is a Thika land and/or to decide disputes, including

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eviction suits, between a Thika tenant and a Bharatia. Thus, the bar

contained in Section 23 of the 1981 Act is restricted only to the matters

in which the Controller or the Appellate Authority under the said Act

has the power to determine or decide and/or deal with.

49. During arguments, learned senior counsel for the appellants has also

raised a question as to what would then be the effect of Section 23 of

the 1981 Act, if the Controller does not have the power to decide the

issues of Thika tenancy or the character of a Thika land and/or eviction

suit between Thika tenants and Bharatia.

50. Such question is answered in the 1981 statute itself. Several powers

have been vested in the Controller under the said Act. For example,

under Section 11(3), the Controller shall, after giving the Thika tenant

and Bharatia an opportunity of being heard, direct the Thika tenant to

reconstruct similar accommodation and restore possession to the

Bharatia in the event of subsequent non-existence of the structure or a

part thereof. Such power is in consonance with the stipulation in

Section 11(1) to the effect that the tenancy of a Bharatia shall not

extinguish merely by virtue of non-existence of the structure

subsequently.

51. Section 18 of the 1981 Act empowers the Controller, for the purpose of

any enquiry under the said Act, to enter and inspect any premises, etc.

Again, Section 12 confers on the Controller all the powers of a Civil

Court while trying a suit under the Code of Civil Procedure, 1908, in

respect of the matters as enumerated therein, such as summoning and

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enforcing the attendance of witnesses, requiring the discovery and

production of any document or record, receiving evidence on affidavits,

etc. Thus, there are several provisions in the 1981 Act itself which

vests certain powers of adjudication/determination on the Controller.

The bar to jurisdiction under Section 23 of the 1981 Act is restricted

only to matters which the Controller or the Appellate Authority have

been empowered to decide in the first place. Thus, such bar would

operate only in respect of the powers given to the Controller or the

Appellate Authority, some of which have been discussed above, and no

further.

52. Hence, a Civil Court, for example, could not under the 1981 Act

entertain an application for reconstruction of a similar accommodation

and restore possession to the Bharatia in the event of subsequent non-

existence of the structure. However, in the absence of any power being

vested in the Controller under the 1981 Act to decide questions as to

whether a person is a Thika tenant or as to whether a property is a

Thika land and/or to decide eviction suits between Thika tenants and

Bharatias, the bar of Section 23 of the 1981 Act would not be attracted.

Thus, in view of the absence of any express or implied bar, the Civil

Court would have exclusive jurisdiction to determine such issues and

decide such suits in terms of Section 9 of the Code of Civil Procedure.

53. Hence, the argument of the appellants is not sustainable in law.

54. In view of the above discussions, we find there to be no merit in the

appeal.

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55. Accordingly, A.P.D. No. 120 of 2015 is dismissed on contest, thereby

affirming the judgment and decree dated January 28, 2015 passed in

C.S. 245 of 1995.

56. There will be no order as to costs.

57. GA/6/2016 (Old No. GA/1063/2016) stands disposed of accordingly.

58. The interim order granted earlier stands vacated.

59. A formal decree be drawn up accordingly.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Uday Kumar, J.)

Later:

After the above judgment is passed, learned counsel appearing for the

respondent submits that respondent no. 1(c), Smt. Sandhyashree Gooptu,

passed away during pendency of the appeal. Since her heirs are already on

record, such demise does not have any effect on the above judgment.

However, the factum of such death is hereby recorded. The deletion of the

name of the deceased respondent no. 1 (c) shall be duly depicted in the

decree to be drawn up.

Learned counsel appearing for the appellant seeks a limited stay of

the judgment in view of the appellant operating a petrol pump from the suit

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premises and the running of the same being apprehended to be disrupted in

view of the above judgment. Accordingly, stay of operation of the above

judgment is granted till October 31, 2025.