Sm. Ashalata Biswas vs Sudhir Kumar Addya

S.K. Sen, J.—This revisional application is directed against an order of Shri P.K. Choudhury, Munsif, 4th Court, Alipore, sitting as a Controller under the Thika Tenancy Act, dismissing an application u/s 27(5) of the Calcutta Thika Tenancy Act, 1949, for review of an order assessing the compensation payable to the thika tenant on ejectment on the ground that the land of the tenancy is required by the landlord for the purpose of building or development by discontinuing letting to thika tenants. The application by the landlord opposite party for ejectment of the tenant, viz., the Petitioner, was allowed by the learned Munsif sitting as a Controller, by his order, dated September 22, 1954, it being held that the landlord required the land of the tenancy for building on the land by discontinuing, letting of the land to thika tenants. It was ordered that the ejectment would lie male on payment of such compensation as might be agreed between the parties, or if they did not agree, as might be determined by the Controller on an application by either party. There was an appeal filed by the tenant Petitioner but the appeal was dismissed on July 7, 1955. On November 25, 1955, a revisional application was filed by the Petitioner against the appellate order and a Rule was issued by the High Court, but the Rule was discharged on August 3, 1956.

On August 11, 1955, i.e., after the records had been received back by the Controller after disposal of the appeal by the Subordinate Judge, Alipore, and before the records were called for by the High Court, the landlord opposite party filed a petition to the Controller stating that the value of the structures of the Petitioner tenant on the disputed land would not be worth than Rs. 1,000 and that the opposite party might be directed to deposit in Court the sum of Rs. 1,000 as compensation, payable to the tenant. A copy of the petition was served on the Advocate of the tenant Petitioner and he made, an endorsement on the original application "received copy and objected to". On October 7, 1955, the Controller after hearing the Advocate for the landlord and observing that no objection had been raised by the tenant, recorded an order stating that Rs. 1,000 was the compensation payable by the landlord to the tenant on ejectment and directed the landlord to deposit that money in Court by November 24. 1955. The landlord took an adjournment for depositing the money and in the meantime the record was called for by the High Court. After discharge of the Rule by the High Court, the landlord deposited the sum of Rs. 1,000 and thereupon on September 14, 1956, the Controller passed the final order of ejectment against the tenant, directing that the tenant be elected and the structures on the land do vest in the landlord. Out of this sum of Rs. 1,000, again, the sum of Rs. 850 was attached on November 24, 1956, under an order passed in S.C.C. Suit No. 2933/56 of Sealdah, a suit brought by the landlord against the tenant Petitioner for arrears of rent or damages for use and occupation, of the land. On December 8, 1956, the Petitioner filed the application u/s 27(5) of the Thika Tenancy Act, and Section 151 of the CPC Code, stating that she was not aware of the application filed by the landlord on August 11, 1955, for assessment of the compensation at Rs. 1,000 and for an order for deposit of the compensation the assessed in Court, and that she had first come to know of the order passed by the Controller regarding compensation on December 7, 1956, from one Shri B. Bhattacharjee and that she would suffer a great loss if the question of compensation was not heard afresh in her presence, as according to her the value of the structures would be about Rs. 30,000 and not merely Rs. 1,000 as alleged by the landlord. Notice was issued on the landlord of this application and after hearing both parties the learned Controller by his order, dated January 8, 1958, dismissed the application.

Against that order refusing to re-hear the question of compensation the tenant Petitioner has filed this revisional application.

On behalf of the Petitioner, Mr. J.K. Sen Gupta has urged that the compensation was not determined as required by proviso (ii) of Section 4 of the Thika Tenancy Act, and that the Petitioner gave evidence to show that she really had no knowledge of the application which had been filed by the landlord for determination of the compensation, and that unless the question was reheard the Petitioner would suffer great loss. He has also referred to the evidence of P.W. 1, an engineer who assessed the value of the structures existing on the land, at over Rs. 20,000 and to the evidence of P.W. 4, the clerk of Charu Chandra Bhattacharjee who was the Advocate for the Petitioner in the Court of the Controller, who stated that no information about the valuation statement, i.e., about the assessment of the compensation, was given to the client, viz., the Petitioner Ashalata Biswas, as the Advocate himself had no information about the proceeding regarding assessment of compensation.

Mr. Chandra Nath Mukherjee, appearing for the landlord opposite party, has on the other hand pointed out that the application for review of the compensation order was filed on December 8, 1956, long after 30 days of the date of the final order by which the compensation was determined by the Controller. He has urged that Section 5 of the Limitation Act cannot be taken advantage of to extend the period of limitation for a review application under the Thika Tenancy Act. In this connection he has referred to the decision in Rai Harendranath Chaudhuri Vs. Sm. Daulatmani Chaudhurani, , where it was held that Section 5 of the Indian Limitation Act did not apply to appeals u/s 27 of the Calcutta Thika Tenancy Act, 1949. Mr. Mukherjee has urged that if it does not apply to appeals u/s 27, it does not also apply to review applications u/s 27 of the Thika Tenancy Act. I must accept the contention that Section 5 of the Limitation Act does not apply to review applications under the Thika Tenancy Act and therefore the review application was rightly held to be barred by limitation, by the learned Controller.

There was, however, relief sought in the alternative u/s 151 of the CPC Code. In this connection the learned Controller remarked that the inherent powers could not be invoked when there was alternative relief open to a party, and as the Petitioner could have filed an appeal against the decision assessing the compensation or filed a review application in proper time, she could not invoke the inherent jurisdiction of the Court. It is true that the power u/s 151 of the Code are not to be ordinarily exercised when there is or was another remedy open to a party; but in special cases such powers may be invoked and resorted to. In this connection I may refer the decision Subodh Chandra Mukherjee Vs. Sudhir Kumar Basu and Others, . The question is whether the case was a proper case for the use of the special powers u/s 151 of the CPC Code.

Having gone through the evidence and considered that circumstances of the case, I must come to the conclusion that the Petitioner did not have knowledge of the application which the landlord opposite party had filed on August 11, 1955, stating that Rs. 1,000 would be the proper compensation and asking for the permission to deposit the sum. It is true that a copy of the application was served on the Advocate of the Petitioner, but it does not appear that the order of the Controller fixing September 3, 1955, for hearing of the petition was passed in the presence of that Advocate. On the date when the application was actually heard, viz., October 7, 1955, the tenant Petitioner''s Advocate was not present and it does not appear that the Controller took any step to secure his presence. At that time the Petitioner was preparing to file her revisional application before the High Court, and she was not expecting that the application for assessment of the compensation would he beard in the meantime. The evidence of the clerk of the Advocate, P.W. 4, that the Advocate or his clerk was not aware of the proceeding for assessment of the compensation and that no information was given to the tenant herself, appears to be acceptable. It is desirable therefore that the question of compensation should be re-heard, particularly when there is no difference between the parties in the estimate of the value of the structure on the land.

Moreover, in one respect the learned Controller clearly did not follow the procedure prescribed by law. Proviso (ii) of Section 4 of the Act provides that the compensation shall be such as may be agreed between the landlord and thika tenant, or in the case where they do not agree, as may be determined in the prescribed manner by the Controller on application by either party. In this case, in his application, dated August 11, 1955, the landlord did not state that it had not been possible to reach an agreement as to the figure for compensation with the tenant. It would appear that the landlord at that stage did not contact the tenant at all. The Controller could determine the compensation only in the case where the landlord and the tenant did not agree as to the figure for compensation. Without finding that the landlord and the tenant are unable to reach an agreement, the Controller is not entitled to make his own assessment of the compensation. No such finding was recorded by the Controller and therefore the assessment order must be held to be vitiated by material irregularity in the exercise of the Controller''s jurisdiction.

Moreover, under the rules the Controller has to assess the compensation by taking the value of the structures, on the land and also the cost of removal of the tenant''s residence or business if any. As to the value of the structures there was no doubt about the ex parte evidence of the landlord, but the Controller did not consider whether any cost of removal could be allowed in the circumstances of the case.

In the circumstances, and in view of the fact that the assessment of the compensation had not been done according to the correct procedure, and in view of the fact that the tenant herself did not have any knowledge of the landlord''s application for assessment of the compensation, the case was one where the Controller should have exercised his powers u/s 151 of the CPC Code. It is no use saying that the tenant could have preferred an appeal, when the tenant did not know of the order at all. In this case the failure to exercise the special powers u/s 151 of the CPC amounted to failure to exercise a jurisdiction vested in the Controller, and so this Court may interfere in exercise of its revisional powers.

This Rule is, therefore, made absolute. The order of the learned Controller dismissing the tenant Petitioner''s application, dated December 7, 1956, is set aside and the application is allowed and the order assessing compensation at Rs. 1,000 is set aside, and it is ordered that the question of compensation to be paid to the tenant be reheard by the learned Controller and determined according to law after giving notice to both the parties, after the arrival of the record in this Court.