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AMIT BASU V/S THE CONTROLLER & OTHERS, decided on Friday, March 14, 2014.
[ In the High Court of Calcutta, WPLRT No. 774 of 2007. ] 14/03/2014
Judge(s) : NISHITA MHATRE & SUBRATA TALUKDAR
Advocate(s) : Jaydeep Kar, Sabyasachi Chowdhury, Bhaskar Mukherjee, Ms. Debjani Ghosh, Ms. Deboshree Saha. State Bimal Kr. Chatterjee, General, Tapan Kr. Mukherjee, Ayan Banerjee.
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        Nishita Mhatre J.1. The present writ petition is directed against the judgment and order of the West Bengal Land Reforms and Tenancy Tribunal dated 29th November 2007.2. The brief facts giving rise to the present petition are as follows: Premises bearing nos. 16/1A and 16/1B at Nandalal Bose Lane Kolkata–700 003 were owned by one Shibendra Nath Basu. During his lifetime he transferred the two premises to a Trust by two Indentures of Trust dated 3rd July 1974 and 15th June 1968. The settlor and his wife Anima Basu were the trustees of the Trust. Upon the death of the settlor and his wife the Trust property vested in the petitioner who was the beneficiary. The premises comprise land of about 11 Cottahs 4 Chittacks 24 Sq. Ft. and 11 Cottahs 7 Chittacks 16 Sq. Ft. According to the petitioner pucca and kutcha structures have been constructed on the premises by the erstwhile owner. The petitioner contends that the aforesaid plots of land are not governed by either the Calcutta Thika Tenancy Act 1949 (hereinafter referred to as “Act of 1949”) or the Calcutta Thika and Other Tenancies and Lands (Acquisition and Regulation) Act 1981 (hereinafter referred to as “Act of 1981”) as amended in 1993 or the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 (hereinafter referred to as “Act of 2001”). Apprehending the acquisition of the aforesaid lands under the Act of 2001 the petitioner filed an application before the West Bengal Land Reforms and Tenancy Tribunal (hereinafter referred to as “the Tribunal”) praying for a declaration that Sections 2(3) 2(7) 2(14) 7 25 26 27 along with other provisions of the Act of 2001 were ultra vires the Constitution of India. A further declaration that the aforesaid plots of land nos.16/1A and 16/1B situated at Nandalal Bose Lane were not covered by the provisions of the Act of 2001 and therefore do not stand vested in the State of West Bengal was also sought.3. The Tribunal by its impugned order has negated the contention of the State that the application filed by the petitioner was premature because there was no declaration of the Controller that 6 applicants who had submitted their returns in Form A were thika tenants. The Tribunal found that the observation of the Controller appointed under the Act of 1981 as well as Act of 2001 had found prima facie that the lands which were the subject matter of the applications submitted for a declaration were thika lands and that the applicants were thika tenants. The Tribunal therefore held that it could not be said that the application filed before it was premature or not maintainable or that the petitioner who was vitally affected by any observation or order passed by the Controller had no locus to file the application under the West Bengal Land Reforms and Tenancy Tribunal Act 1997. The Tribunal further concluded that any land on which either a pucca structure or a kutcha structure was occupied by the thika tenant must be deemed to have vested in the Government of West Bengal under the Act of 1981 and consequently under the Act of 2001. It held that the vesting of land in the Government under the aforesaid Acts was not limited to only those lands on which kutcha structures were built. The Tribunal was of the view that Sections 7(1) of the Act of 2001 which corresponded to Section 8(1) of the Act of 1981 could not be considered to be ultra vires in view of the judgment of the special bench of this Court in the case of Lakshmimoni Das – vs.- State of West Bengal reported in 1987 (2) CLJ 53. The Tribunal further held that the challenge to other Sections of the Act of 2001 namely Sections 24 25 27 and other provisions of the Act was unsustainable and that those Sections were intra vires the Constitution of India. The Tribunal directed the Thika Controller to determine the status of the parties in respect of the aforesaid plots of land within 4 months of its order.4. It appears that after the arguments were heard by the Tribunal and before it delivered the judgment the Tribunal sought certain documents from the Government including information regarding the pending matters before the Thika Controller. Aggrieved by the directions issued by the Tribunal at that stage the petitioner preferred the present writ petition. This Court therefore admitted the present petition. However leave was granted to the petitioner to challenge the judgment and order of the Tribunal by filing a supplementary affidavit in case the result was against the petitioner. This order was passed on 28th November 2007. It appears that the judgment and order of the Tribunal was delivered on 28th November 2007 and was challenged by the petitioner by filing a supplementary affidavit which has been affirmed on 4th February 2008.5. Mr. Jaydeep Kar learned Counsel appearing for the petitioner pointed out the provisions of the Act of 1949 Act of 1981 and Act of 2001 to support his submissions that lands in question were not thika lands as defined in any of the aforesaid Acts. He relied on the enquiry report prepared by the authorised officers appointed to conduct an enquiry regarding the structures and the land on which it was situated. In respect of one of the returnees Bijoy Chandra Roy whose structure is situated on 16/1B Nandalal Bose Lane this report indicates that there are ten rooms of pucca walls with asbestos and tin and tile roofs. He claimed to have erected this structure himself. The enquiry officer found that the returnee appeared to be a provisional thika tenant on 2 Cottahs 5 Chittacks of land. Mr. Kar therefore submitted that when admittedly there was a pucca structure on the land it could not be considered as a thika land and consequently the land could not vest in the State. He further pointed out that according to the returnee Bijoy Chandra Roy he had acquired the tenancy on 3rd October 1953 by a conveyance dated 3rd October 1953 for a sum of ` 3000/- (Rupees three thousand only). The structure continued to be in the same condition but a privy was erected on the land by the Kolkata Municipal Corporation. All these factors according to Mr. Kar indicate that the lands in question cannot be considered as thika lands which vest in the Government of West Bengal. In the alternative Mr. Kar submitted that assuming they were thika lands the compensation payable on vesting of such lands in the State under the Act of 2001 is illusory and therefore Section 7(1) of the Act of 2001 is ultra vires.6. The learned Advocate General appearing for the State submitted that the present petition was not maintainable as there is no decision of the Thika Controller whether the plots of land are thika lands or not. He pointed out that it was not open for either the Tribunal or indeed for this Court to enquire into the status of the land as that was a question of fact which could be ascertained only by the Thika Controller. He urged that unless there was a determination regarding the status of the petitioner’s land the question of considering the compensation payable to the petitioner would not arise. He then submitted that the contention of the petitioner that the compensation was illusory was not sustainable as the Special Bench of this Court in the case of Lakshmimoni Das (supra) had already held that Section 8(1) of the Act of 1981 which is pari material with Section 7(1) of the Act of 2001 was valid.7. In order to appreciate the arguments advanced by the learned Counsel it is necessary for us to trace the history of the legislation pertaining to thika tenancies in this State. The State of West Bengal enacted the Act of 1949 for providing a law relating to landlords and tenants with respect to thika tenancies in Calcutta. The thika tenant defined under Section 2(5) of the Act means :“any person who holds whether under a written lease or otherwise land under another person and is or but for 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 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 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 khattal.”The term ‘Bharatia’ was defined under Section 2(1) of the Act. Essentially therefore the Act governed the relationship of thika tenants with their landlords on the one hand and with the Bharatias on the other. The grounds on which a thika tenant could be ejected were prescribed under the Act of 1949. The proceedings for ejectment were to be conducted before the Controller appointed under the Act. Provisions relating to payment of rent of thika tenancies rights and duties of a thika tenant vis--vis the landlord and the Bharatias were also enumerated under the Act.8. The Act of 1949 was amended in 1969. The concept of pucca structures was introduced by one of the provisions in the amending Act of 1969. Under Section 2(4a) of the amended Act a pucca structure means “any structure constructed mainly of brick stone or concrete or any combination of these materials”. The thika tenant was given a right under Section 10A of the amended Act to erect a pucca structure for residential purposes provided sanction had been obtained from the Controller appointed under the Act to erect the pucca structure.9. The aforesaid Act of 1949 was repealed and the Act of 1981 was enacted. It came into effect from 18th January 1982. The Act was meant to provide for the acquisition of interests of landlords in respect of lands comprised in thika tenancies and other lands in Kolkata and Howrah for the development and equitable utilisation of such lands. It was meant to provide for the regulation of the incidents of thika tenancies and of monthly and periodical tenancies and the relations between tenants and their Bharatias and for the planned development and distribution of such lands with a view to subserving the common good.The definition of thika tenant underwent a change. Under the Act of 1981 the thika tenant was defined 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.”Section 5 of the Act which provided for the compulsory vesting of lands comprised in thika tenancies in the State Government read thus:“With effect from the date of commencement of this Act lands comprised in thika tenancies and other lands held under any person in perpetuity or under registered lease for a period of not less than twelve years or held in monthly and periodical tenancies for being used or occupied as khatals along with easements customary rights common facilities and such other things in such thika tenancies and khatals attached to or used in connection with such thika tenancies and khatals and the right title and interest of landlords in such land shall vest in the State free from all incumbrances :Provided that the easements rights common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any person under registered lease for a period of not less than twelve years or a khatal in khas lands of the landlords shall not be affected in any way by such vesting.”10. The validity of the Act of 1981 was challenged in a batch of writ petitions which were referred for adjudication to a Special Bench of this Court. By its judgment in the case of Lakshmimoni Das (supra) the Court has struck down several provisions of the Act of 1981 and the Calcutta Thika Tenancy (Acquisition & Regulation) Rules 1982 as they violate Article 14 of the Constitution of India. The Special Bench held that the Act of 1981 was not protected under Article 31C of the Constitution as it was not enacted to give effect to the provisions of Article 39(b) and (c) of the Constitution of India. Consequently it was held that the provisions of the Act of 1981 were ultra vires.11. Interpreting Section 5 of the Act of 1981 by applying the rule of ejusdem generis the Court held that the expression ‘other lands’ in Section 5 of Act of 1981 does not include within its ambit land with a pucca structure constructed on it. The Court held that Section 5 expressly envisages the vesting of khatal lands although all khatals may not conform to thika tenancy within the meaning of thika tenancy under the Act of 1949. Section 3(3B) defined khatals as – “a place where cattle are kept or maintained for the purpose of trade or business including business in milk derived from such cattle”. On an analysis of various provisions of the Act of 1981 the Court found that the interest of the thika tenant has been taken away reserving a limited right to the thika tenant to occupy the land. The Bharatia had been made a permanent incumbent who could occupy the land even when a new structure was built on the payment of old rent. The Court was therefore of the view that the Act of 1981 was not protected by Article 39(c) of the Constitution as it did not subserve the common good contemplated under Article 39(a) and (b). The Court held that certain provisions of the Act were ultra vires the Constitution namely proviso to Section 5 Section 27 Rules 3(i) (k) (l) (m) and (n) being violative of Article 14. It opined that Section 5 of the Act which sought to vest the lands of institutions established exclusively for religious and charitable purposes without making any provisions for payment of annuity falls foul of Articles 25 and 26 of the Constitution and therefore was ultra vires. The Court also held that Section 19 Section 6(2) except the proviso there-under and Sections 26 and 27 of the Act are ultra vires. As regards compensation payable under the Act on acquisition of property the Court was of the view that the Act contained a provision for payment of compensation to both the landlord and the thika tenant. However the question whether despite the deletion of Article 19(1) (f) and the introduction of Article 300A in the Constitution warranted the view that acquisition without payment of compensation is intra vires was left open.12. Aggrieved by the decision of the Special Bench the State moved the Supreme Court. While the appeals were pending before the Apex Court the State of West Bengal enacted the Amendment Act of 1993 seeking to amend the Act of 1981. The Amendment Act of 1993 purported to give effect to the provisions of the Amendment Act retrospectively from 18th January 1982 except for Sections 13 and 14 which were given effect from 15th March 1994. The Amendment Act brought within its compass all tenancies in Calcutta and Howrah whether they were thika tenancies or not. Tenants were given the right to construct pucca structures in accordance with the building plans sanctioned under the Calcutta Municipal Corporation Act 1980 and building rules framed there-under for residential and business purposes for themselves or for the Bharatias under them. The tenants were entitled to let out the whole or any part of the existing structures constructed on the lands after the commencement of the Act. Section 5 of the Act of 1981 was amended by the Amendment Act of 1993 and lands which were outside its purview earlier were sought to be covered by the Amendment Act. All lands which were either owned or were khas lands of the owners were sought to be vested in the State with effect from 18th January 1982 irrespective of the constructions thereon. All tenancies whether thika tenancies or not were also to be governed by the Act of 1981 as amended in 1993.13. The petitioner and his predecessor in title challenged the provisions of the Act of 1981 and the Amendment Act of 1993 by filing a writ petition before this Court being Matter No.1790 of 1996. Simultaneously the Amendment Act of 1993 was challenged by several persons before the Supreme Court under Article 32 of the Constitution. During the pendency of these writ petitions before the Supreme Court and the petitioner’s writ petition before this Court the Act of 1981 was sought to be included in the 9th Schedule of the Constitution by the 66th Amendment Act of 1999. The Constitutional amendment was challenged before the Supreme Court. While all these petitions filed under Article 32 of the Constitution of India were pending before the Supreme Court the State of West Bengal enacted the West Bengal Thika Tenancy (Acquisition and Regulation) Act 2001 “to provide for the acquisition of interests of landlords in respect of lands comprised in thika tenancies and other lands in Calcutta and Howrah and other municipalities of West Bengal for development and equitable utilisation of such land with a view to sub serving common good.” Thus the Act of 2001 had a wider application amplitude. Lands in thika tenancies in all Municipalities in the State of West Bengal were vested in the Government under the Act. The Act of 1981 was repealed. The provisions of the Act of 2001 were similar to the provisions of the Act of 1981 including those which had been struck down by the Special Bench of this Court. Only certain cosmetic changes had been made in the new Act. After the enactment of the Act of 2001 the State withdrew its appeals filed before the Supreme Court against the judgment of the Special Bench of this Court. The writ petitions and other proceedings filed in the Supreme Court were rendered infructuous in view of the enactment of the Act of 2001. The Supreme Court therefore permitted the writ petitions which had been filed challenging the Amendment Act of 1993 to be withdrawn with liberty to file writ petitions before the High Court to challenge the vires of the Act of 2001.14. Thus no proceedings challenging the vires of the Acts relating to thika tenancies are pending before the Supreme Court today.15. Instead of filing a writ petition under Article 226 of the Constitution of India before this Court the petitioner preferred an application before the Tribunal appointed under the West Bengal Land Reforms and Tenancy Tribunals Act 1997. As we have already indicated the Tribunal dismissed the application filed by the petitioner and did not accept the challenge to the vires of the Act of 2001. Hence the present petition.16. The term thika tenant was first defined under the Calcutta Thika Tenancy Act of 1949. The definition of thika tenant in the Act of 1981 was different from the earlier Act. However there was no change in the definition of the thika tenant in the 1993 Amendment Act to the Act of 1981. The definition underwent a change in the Act of 2001 inasmuch as it excluded the resident of a structure forfeited to the State under sub-section (2) of Section 6 of the Act irrespective of the status that he may have enjoyed earlier. The term Thika land was defined for the first time in the Act of 2001 as amended in 2010. It is defined as -“any land comprised in and appurtenant to tenancies of thika tenant in respect of the fact whether there is any claim of such tenancy or not and includes open areas and roads of such land.”17. With the introduction of the Act of 1981 as we have already noticed the definition of thika tenant underwent a change and a person who occupied the premises whether under a written lease or otherwise and who had erected or acquired by purchase or gift in structure of such land for residential manufacturing or business purpose and included successors in interest of such person. The definition of thika tenant remained the same in the Act of 2001. However the definition was amended by the Amendment Act of 2010 whereby even a person who has erected or acquired by purchase or gift any structure including a pucca structure was brought within its purview.18. Section 5 of the Act of 1981 provided that all lands along with the interest of the landlords would vest in the State free from any encumbrances including the lands held in monthly or other periodical tenancies whether under a written lease or otherwise. While interpreting Section 5 of the Act of 1981 the Special Bench has observed as follows :“54. Keeping in mind of the principle of interpretation indicated hereinabove an attempt should be made to ascertain what was the mischief sought to be remedied by the impugned legislation. If the interpretation put forth by Mr. Gupta the learned Additional Advocate General appearing for the State Respondents is accepted in to to it appears to us that the same would undoubtedly produce palpable injustice anamoly (sic) contradiction and lead to absurd results and in order to avoid such peculiar situation a reasonable meaning to those words should be given which does not cause any ambiguity or absurdity and the mischief sought to be remedied is also properly achieved. In this connection the title of the impugned Act may supply some guidence (sic) to the construction of section 5 of the impugned Act. Although the title does not override the plain meaning of the section but in case of ambiguity and doubt the title serves as a good guideline. The title of the impugned Act only refers to acquisition and regulation of thika tenancy (by repealing the Calcutta Thika Tenancy Act 1949). Looking into the history of the legislation and purpose of the legislation it appears to us that the impugned legislation is plainly to abolish the rights of the landlord over the lands held by thika tenants which were so long governed by the provisions of Calcutta Thika Tenancy Act 1949. The passage quoted from Cooley’s ‘A Treaties on the Constitutional Limitations’ at pages 143 and 149 since referred to by Mr. Pal appearing for some of the petitioners may not be wholly applicable while construing a provision of statute in our country. The lagislation (sic) in our country is not bound by the title to an Act strictly and the legislature can travel beyond the title but at the same time Constitution makers did not intend that the lagislature (sic)will pass an altogether different Act under the cover of a title thereby misleading the legislators themselves and also the authority requiring to give assent to the legislation. In our view it should be the endeavour for the court to strike a balance by giving a meaning which has connection with the title of the Act and the intention of the legislature and the evil sought to be remedied. At the same time the Court has to interpret the Act in such a manner so that it may not lead to any destructive result and/or absurd inconsistent situation. In our view while interpreting the words other lands after the words 'thika tenancy' the legal maxim ejusdem generis (of the same kind) and the maxim ‘nosctiur a socis’ (a thing is known by its companion) should be borne in mind. Applying these legal maxims it appears to us that ‘other land’ appearing in section 5 of the impugned Act must mean land falling under the category of thika tenancy land. This general word following a specific word must apply not to different objects of a widely differing character but something which can be called a class or kind of objects. In this case from the title preamble of the Act the intention of the legislature as also on consideration of the mischief sought to be remedied by the impugned Act it must be held that ‘other land’ must be land coming within the category of thika tenancy land. It however appears that besides the lands comprising thika tenancies lands used as khatals and the right title and interest of landlord in such khatals are intended to be vested under section 5. Lands comprising pucca and permanent structures erected by the tenant for user of the land for khatals and lands used for khatals held under a lease for a period beyond twelve years cannot comprise thika tenancy within the meaning of ‘thika tenancy’ under the Calcutta Thika Tenancy Act. It also appears to us that the expression ‘thika tenancy’ under the aforesaid Act has been judicially noted in various decisions of this court as referred to by Mr. Pal and it must be accepted that the Legislature is aware of the meaning of such expression and has therefore used the expression on the basis of the said accepted meaning. But it appears to us that section 5 expressly envisages vesting of khatals although all khatals may not conform to ‘thika tenancy’ within the meaning of thika tenancy under the Calcutta Thika Tenancy Act 1949 which is repealed by the impugned Act. In view of express reference of khatal without any reservation in section 5 we are inclined to hold that although the impugned Act is essentially a piece of legislation for vesting of thika tenancy lands and temporary or kutcha structures thereon and for regulation of such lands and structures and the title of the Act and the provision for repealing the Calcutta Thika Tenancy Act 1949 also conform to such intention and purpose of the impugned legislation khatal lands held on lease even if such lands do not comprise thika tenancy within the meaning of thika tenancy under the Calcutta Thika Tenancy Act also vest under section 5. It appears to us that most of the khatals comprise kutcha or temporary structure and they also comprise thika tenancies within the meaning of ‘thika tenancy’ under the said Act 1949 Act. We may also take judicial notice that in majority cases thika tenancies comprise bustees and/or slums and the legislature has intended to vest thika tenancies and structures thereon for regulating such thika tenancy lands. It therefore appears to us that with an intention to regulate khatal lands along with other underdeveloped lands and structures mainly comprising bustees or slums the legislature has expressly included khatals in section 5 for the purpose of vesting of such khatals and consequential control and regulation of khatals. We therefore approve the interpretation of section 5 of the impugned Act as made in the Bench decision of this Court in Jatadhari Daw’s Case Appeal No. 239 of 1978 reported in 1986 (1) Calcutta High Court Notes Page 21. Save as aforesaid no other land or structure vest under the impugned Act.”19. In the case of Sri Sri Satyanarayan & Ors. –vs.- S. C. Chunder reported in 2001 (3) CHN 641 this Court observed that unless all structures in the tenancy are kutcha a thika tenancy cannot exist. The Court held that if in a tenancy comprising a host of kutcha structures even one pucca structure is erected the Thika Tenancy Act loses its applicability. The Court considered the provisions of the Act of 1981 as amended in 1993. Thus it has been the consistent view of this Court while interpreting the Act of 1981 as well as the Act of 2001 that only such lands on which kutcha structures are erected could fall within the purview of the thika tenancy laws.20. Section 4 of the Act of 2001 reads as under:“4. Lands comprised in thika tenancies and other lands etc. to vest in the State – With effect from the 18th day of January 1982 the following lands along with the interest of landlords therein shall be deemed to have vested in the State free from all encumbrances :-(a) thika land;(b) lands held in monthly or other periodical tenancies whether under a written lease or otherwise for being used or occupied as khatal:Provided that any land comprised in and appurtenant to tenancies of thika tenants created after the 18th day of January 1982 shall also be deemed to be vested in the State from all encumbrances with effect from the date of creation of tenancies of thika tenants :Provided further that such vesting shall not be deemed to ha e affected in any way the easements customary rights or other facilities enjoyed by thika tenants Bharatias or occupiers of land coming within the purview of this section:Provided also that nothing contained in this section shall prevent the State Government or the local authority from taking up any development work on the land appurtenant to tenancies of thika tenants for public purpose.”21. The definition of thika land was introduced for the first time by the Amendment Act of 2010. Section 4(a) as it stood when the Act of 2001 was promulgated reads as “lands comprised in an appurtenant to tenancies of thika tenants including open areas and roads”. We have already noticed that this was similar to Section 5(a) of the Act of 1981. The Special Bench in Lakshmimoni Das’ case (supra) has held while interpreting Section 5 of the Act of 1981 which is pari materia with Section 4 of the Act of 2001 that it would apply to only those lands on which a Kutcha structure exists. It has held that where there is a pucca structure the land cannot be considered to be thika land unless the pucca structure has been erected by the thika tenant after obtaining permission and in accordance with the building rules framed by the Kolkata Municipal Corporation.22. In the present case the enquiry report which was placed before the Tribunal clearly indicated that there were “10 rooms of pucca walls with asbestos and tin and tile roofs.” These structures had been erected by the tenant according to the enquiry report. However there is no material on record to indicate that the structures were erected after obtaining the necessary permission. The existence of even one pucca structure amongst several kutcha structures on a land will remove the land from the rigours of the thika tenancy Acts. Therefore when the occupant or the returnee has submitted a return indicating that there are 10 rooms of pucca walls and that he had acquired the structures in 1953 pursuant to a conveyance it is obvious that such a person could not be considered as thika tenant and the lands could not be considered to be thika lands. If the structures were there prior to the conveyance then the land could not be considered as thika land. Even assuming the structures were built by the so called thika tenant the land cannot be considered as thika land because there is no material on record to establish that he had obtained the requisite permission from the municipal corporation before erecting a pucca structure. On a careful reading of the Act of 1949 the Act of 1981 and the Act of 2001 it is evident that only those persons who were thika tenants under the Act of 1949 would continue to be thika tenants under the later Acts. The returnees could not be considered as thika tenants under the Act of 1949 as admittedly a pucca structure was conveyed to them by the owner by the conveyance executed in 1953.23. Therefore in our opinion the Tribunal has erred in concluding that the lands are thika lands. The State therefore cannot claim or acquire this land under either the Act of 1981 or the Act of 2001. The interpretation placed by the Special Bench on the definition of thika lands and other lands has not been overruled. In fact the Government withdrew its appeals pending before the Supreme Court on the enactment of the Act of 2001. The Government did so despite the fact that Section 4 of the Act of 2001 is pari materia with section 5 of the Act of 1981.24. We have no hesitation in adopting the same reasoning in respect of the provisions of Section 4 of the Act of 2001. The finding of the Tribunal therefore that the land in question is thika land is unsustainable.25. The contention of the State that it is only the Controller who can declare the land to be thika land or otherwise is unacceptable. The definition of thika land has been included in the Amendment Act of 2010 and has been brought into effect from 1st November 2010. The Controller has been vested with the jurisdiction to decide whether a particular land is thika land or not only after the Amendment Act of 2010. The present petition has been filed in 2007. Therefore in our opinion the aforesaid amendment contained in Section 5(3) is not applicable to the present case. Apart from this a division bench of this Court in the case of Bharat Petroleum Corporation Limited – vs.- Aarvee Finvest Private Limited F.A. No. 26 of 2010 decided on 13th September 2013 has held that even after the promulgation of the Act of 2001 it did not redefine the term thika tenancy as defined in the Act of 1949 and the Act of 1981. The definition was amended only with effect from 1st November 2010 by the Amendment Act of 2010. The Court has further held that as the substitution or amendment of the provision of Sub-section (3) of Section 5 has been brought into effect from November 1 2011 it does not have any application to a dispute which arose prior to 18th January 1982. The Court has held that Section 5(3) of the Act of 2001 was not intended to apply to any question which arose before its enforcement or on the date of vesting i.e. on 18th January 1982. The division bench in this case has also concluded that the term ‘any structure’ in the definition of thika tenant in the Act of 2001 must be given the same meaning and effect as interpreted by the Special Bench in Lakshmimoni Das’ case (supra). We are in respectful agreement with the observations of the division bench in the aforementioned case.26. Apart from this in the case of Shyamal Atta & Ors. –vs.- State of West Bengal & Anr. reported in 1999 (1) CLJ 250 this Court has held that the Thika Controller appointed under the Act of 1981 has no power to adjudicate whether a person is a thika tenant or not. This view has been reiterated in the case of Shrenik Kumar Singhee –vs.- State of West Bengal & Ors. reported in 2006 (1) CHN 540.27. In our opinion therefore the contention raised by the learned Advocate General that the writ petition cannot be entertained at this stage is untenable. In any event the controller had observed that prima facie the premises were thika lands while considering the applications filed by the returnees. It was only thereafter that the petitioner approached the Tribunal in accordance with law. The petitioner challenged both the prima facie finding as well as the vires of the Act before the Tribunal. In the alternative it was contended that the compensation payable under the Act is illusory.28. As we have held that the premises are not governed by the laws relating to thika tenancies there is no need for us to consider whether the compensation payable under the Act of 2001 is illusory in the present case.29. In the result the impugned order of the Tribunal is quashed and set aside. The writ petition is allowed. No order as to costs.