WEST BENGAL THIKA TENANCY (ACQUISITION AND
REGULATION) RULES, 2004[1] In exercise of the power conferred by section
19 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001
(West Ben. Act XXXII of 2001), the Governor is pleased hereby to make the
following rules: These rules may be called the West Bengal
Thika Tenancy (Acquisition and Regulation) Rules, 2004. In these rules, unless the context otherwise
requires, (a)
"the
Act" means the West Bengal Thika Tenancy (Acquisition and Regulation) Act,
2001 (West Ben. Act XXXII of 2001); (b)
"Form"
means a Form appended to these rules; (c)
"section"
means a section of the Act. (1)
Every
thika tenant occupying land under a landlord on the 18th day of January, 1982
or on any subsequent date of creation of tenancies of thika tenant, shall,
after that date, occupy such land directly under the State on the following
terms and conditions: (a)
every
thika tenant shall furnish to the Controller a return in Form A, separately for
each holding or tenancy, showing the particulars of occupation of such land in
total, within two hundred forty days from the date of commencement of the Act.
The Controller may, on a written application from such thika tenant, extend the
date of furnishing such return by a period not exceeding sixty days: Provided that the Controller may, on
reasonable grounds, accept any return which is filed by a thika tenant after
the expiry of the aforesaid time limit: Provided further that the thika tenants who
already have submitted return in Form A under the Calcutta Thika Tenancy
(Acquisition and Regulation) Rules, 1982, shall not be required to submit any
further return in that respect and such returns shall be deemed to have been
submitted validity under these rules; (b)
every
thika tenant shall pay, as required under sub-sections (2) and (6) of section 5
of the Act, to the Controller an annual revenue or rent in the manner and at
the rate mentioned in rule 19. (2)
Every
thika tenant, in addition to the revenue, shall pay to the Controller all
cesses, taxes of municipality or other local bodies, or other impositions or
service charges which are, or may hereafter be, imposed on the land with
or without structures including easements, if any, or other existing or
intended erection on such land being used by thika tenant. (1)
An
application, stating the circumstances and grounds for transfer of interests in
the land inter se amongst the heirs existing co-shares-interest and spouses or
to the prospective heirs, may be made to the Controller for obtaining his prior
permission and the procedure laid down in rule 5, shall apply, mutatis
mutandis, to the manner of making and disposal of such application: Provided that such application shall be made
at least three months prior to the date of transfer to interests in the land,
or within such further period as may be extended by the Controller subject to
payment of rupees one hundred as late fee to be deposited in T.R. Form, for
every month of delay or part thereof: Provided further that if no such prior
permission has been or was obtained, in respect of any transfer of interest in
land made on or after the 18th January, 1982, a penalty of a sum not exceeding
the value of 1/4% of the market value of such land shall be deposited in T.R.
Form, by the thika tenant to regularise such transfer as provided in
sub-section (4) of section 5 of the Act. (2)
When
the State Government needs land comprised in any thika tenancy for any public
purpose, the Controller or any other officer authorised by him, may (a)
require
the thika tenant to surrender his tenancy in writing to the Controller after
giving the thika tenant at least 30 days' notice; (b)
passed
an order in writing for resumption of land comprised in such thika tenancy,
after giving the thika tenant and the Bharatia, if any, an opportunity of being
heard; (c)
upon
such resumption under clause (b), if the thika tenant or any Bharatia continues
to occupy such land, evict the occupant and the Controller or any other officer
authorised by him may, after giving 30 days' notice, enter the land and the
buildings or other erections, thereon, if any, and take vacant possession
thereof. (3)
A
thika tenant, whose interest in land comprised in any thika tenancy is resumed
by the State, may claim compensation to be determined and calculated in the
following manner: (a)
the
Controller of the area concerned shall, with the assistance of any technical
officer under him, if any, first determine the market value of the land, with
or without structures. If there is no such officer under him, the Land
Acquisition Collector having jurisdiction over such area shall, upon a
requisition in writing from the Controller in this behalf, lend the services of
a technical officer under him to the Controller for determination of the market
value of such land, While determining such market value, all relevant documents
and circumstances shall be taken into consideration; (b)
the
amount shall be calculated at a rate not exceeding ten times the annual rent
paid by Bharatias and shall be reduced by (apart from rents, taxes and other
charges on account of management and collection at a rate of twenty per cent of
the gross annual rent earned or expected) rent, taxes and revenues or other
dues payable to the Central Government or the State Government; (d)
the
amount for the purpose of the proviso to sub-section (4) of section 6 shall be
the market value determined under clause (a) or the amount calculated under
clause (b), whichever is less. (1)
Where
any structure comprised in any thika tenancy is occupied by the tenant himself,
the amount of compensation payable shall be 10 times the expected annual rent
if such structure had been let out, to be determined having regard to the
situation, locality and condition of the premises and the amenities provided
therein and where there are similar premises in the locality, having regard
also to the rent payable in respect of such premises and after giving the
tenant a reasonable opportunity of being heard and shall be such as will appear
to the Controller to be reasonable. (1)
Every
application for obtaining no objection certificate from the Controller for
making any pucca construction or changing the nature, character and dimension
of an existing structure on the land, shall be in Form D in quadruplicate along
with an application fee of Rs. 200/- in respect of such land measuring not more
than 4 kathas in area and an additional fee of Rs. 100/- for one katha or
fraction thereof in excess of 4 kathas. The application fees shall be deposited
in T.R. Challan. (2)
(a)
The application shall accompany two sets of site plan, in a scale not less than
1: 200, showing the existing structure and boundaries and two sets of plan
showing the floor plan, section, elevation etc., in accordance with the Kolkata
Municipal Corporation Building Rules, and must be signed by the L.B.S. or the
L.B.A. Existing structure in the site plan shall be
shown and delineated in yellow colour proposed structure in red colour,
boundaries in the black dotted line roads in green colour and service lines in
red dotted lines. (b) All the particulars as required under the
Kolkata Municipal Corporation Building Rules shall be furnished in such plans: Provided that a copy of the finally
sanctioned plan by the Kolkata Municipal Corporation, which is duly
authenticated by the L.B.S. or the L.B.A. and after it has been sanctioned,
shall be submitted forthwith to the Controller: Provided further that a copy of the
completion certificate certifying the completion of the pucca construction
after it has been constructed shall be submitted forthwith to the Controller, (c) The procedure for obtaining no objection
certificate before making pucca construction shall, mutatis mutandis be
followed in case of changing the nature, character and dimension of any
existing structure on land comprised in thika tenancy. (3)
The
same procedure shall apply and be followed in case of thika land situated
within the jurisdiction of other Corporation, Municipality or any other local
authority. (1)
An
application for issue of provisional certificate under sub-section (3) of
section 6, shall be in accordance with the procedure prescribed by sub-rule (2)
of rule 5 and shall be accompanied by an application fee equivalent to ten
times the fees mentioned in sub-rule (1) of rule 5 and is to be deposited in
T.R. Challan along with such application, in addition to the fees prescribed in
sub-rule (1) of rule 5. (2)
A
construction plan duly sanctioned by the local authority shall be produced
within three months from the date of issue of such provisional certificate
failing which no final certificate shall be issued by the Controller: Provided that the Controller may, for reasons
to be recorded in writing and upon being satisfied that there is sufficient
reason for delay, extend the time for production of such sanctioned plan by not
more than one month. (1)
The
Controller or any officer authorised in this behalf by the State Government or
the Controller may, after giving 24 hours notice, enter upon the land or any
part thereof to inspect or enquire into the condition of the land, or the
structures or other erections thereon, if any, or inspect and enquire about any
structure, building or erection thereon in the course of its construction or
making and for all other reasonable purposes. (2)
If
there is any breach of, or non-compliance with, any of the terms and conditions
as aforesaid or the provision of the Act or these rules, the thika tenant
shall, in addition to any other penalty or disqualification to which he may be
subject under the Act or the rules, forfeit his right of occupation of the
land, with effect from the date on which an order in this behalf is made in
writing by the Controller after giving him a reasonable opportunity of being
heard. (3)
Upon
such forfeiture, the occupant shall be treated as a trespasser and the
Controller or any officer authorised by him may, after giving 3 days' notice,
enter the land, building or other erections therein, if any, and take vacant
possession thereof. (1)
A
Bharatia who stays at the structure forfeited under sub-section (2) of section
6, may submit an application on plain paper to the Controller for granting
licence for his occupancy. (2)
The
Controller, on receiving such application and after an enquiry in respect of
the Bharatia's claim on the area of the structure he occupies, condition of the
room and verification of the present rate, may, after giving an opportunity of
being heard to all concerned, issue licence in Form E on the following terms
and conditions: (a)
licence
fees at the rate of Re. 1.00 (one rupee) per square feet per month or the
prevailing rate, whichever is higher, shall be chargeable in case of kuccha
structure for domestic purpose; (b)
licence
fees at the rate of Rs. 2/- per square feet per month or the prevailing rate,
whichever is higher, shall be chargeable in case of pucca structure for
domestic purpose; (c)
in
case of use of such structure for business purposes, the licence fees shall be
Rs. 4/- and Rs. 2/- respectively in pucca or Kuccha structure, as the case may
be; (d)
initially
the licence shall be issued for one year and may be renewed every year on due
satisfaction of the Controller and upon realisation of licence fees in arrears,
if any, together with 6.25% per annum interest thereon. (3)
The
licence fees shall be deposited in T.R. Challan and the Bharatia shall also pay
for the occupation and use of such structure apart from the service and other
charges, taxes of the Corporation or Municipality or other local body, whose
services are being availed of by him. (4)
The
licence granted to a Bharatia may be renewed upon an application made by him,
at least one month before the expiry of the validity of the licence, to the
Controller, on plain paper together with the proof of up-to-date deposit of
licence fees: Provided that an application for renewal of
such licence may be entertained after the prescribed period, if the applicant
satisfies the Controller that he had sufficient cause for not making the
application within such period. For the purpose of payment of amount under
sub-section (1) of section 7, every landlord shall submit to the Controller a
return in Form C within two hundred and forty days from the date of
commencement of the Act. The Controller may, on a written application from the
landlord, extend the date for furnishing the return by a further period not
exceeding sixty days: Provided that the Controller may, on
reasonable grounds accept any return which may be filed by the landlord after
expiry of the prescribed time limit: Provided further that the landlords who have
already submitted the return in Form C under the Kolkata Thika and other
Tenancies and Lands (Acquisition and Regulation) Act, 1981 (West Ben. Act
XXXVII of 1981), shall not be required to submit any further return and such
return shall be deemed to have been validly submitted under these rules. (1)
The
annuity payable under sub-section (2) of section 7, shall not exceed the annual
net income derived from the holding. (2)
The
annual net income derived from the holding shall, subject to the provisions of
sub-section (4) of section 5, be determined in the following manner: (a)
the
gross income derived from the holding shall first be determined; (b)
upon
determination of the gross income, apart from the deductions from the gross
income under sub-section (2) of section 7 of charges on account of management
and collection at the rate of twenty per cent of the gross income, it shall be
reduced by rent, taxes and revenue or other dues, if any, payable to the State
Government or the Central Government; (c)
the
balance, if any, after deduction as aforesaid, shall be the annual net income
for the purpose of sub-section (2) of section 7. (1)
The
amount payable under sub-section (6) of section 7, for resumption under
sub-section (4) of section 6 of any structure comprised in any thika tenancy,
shall be determined and calculated in the following manner: (a)
the
Controller of the area concerned shall, with the assistance of any technical
officer under him, if any, first determine the market value of the structure.
If there is no such officer under him, the Land Acquisition Collector having
jurisdiction over such area shall, upon a requisition in writing from the
Controller in this behalf, lend the services of a technical officer under him
to the Controller for determination of the market value of the structure. While
determining the market value, all relevant documents and circumstances shall be
taken into consideration after giving due opportunity to all concerned; (b)
thereafter,
the amount shall be calculated at a rate not exceeding ten times the annual
rent paid by the Bharatias to the tenant and shall be reduced by rent, taxes
and revenue or other dues payable to the Central Government or the State
Government apart from rent, taxes and other charges on account of management
and collection at a rate of twenty per centum of the gross annual rent; (c)
the
amount for the purpose of sub-section (6) of section 7 shall be the market
value determined under clause (a) or the amount calculated under clause (b),
whichever is less. (2)
Where
any structure is occupied by the tenant himself, the fair rent determined by
the Controller under sub-section (6) of section 7 shall be deemed to be the
annual rent paid by Bharatias. The fair rent shall, however, be determined
having regard to the situation, locality and condition of the premises and the
amenities provided therein and where there are similar or nearly similar
premises in the locality, having regard also to the rent payable in respect of
such premises and after giving the tenant a reasonable opportunity of being
heard, and shall be such as will appear to the Controller to be reasonable. Where there are more than one landlord in
respect of a thika tenancy vested under section 4, the amount payable to them
under sub-section (1) of section 7 or annuity payable to them under sub-section
(2) of section 7 shall be apportioned among them by the Controller in the
following manner: (a)
where
the landlords agree in writing as to their respective shares, the Controller
shall apportion the amount among them according to such agreed share; (b)
where
the landlords do not agree in writing as to their respective shares, the
Controller shall, having regard to the documents, affidavits and other
evidence, if any, produced before him, make such apportionment as will appear
to him to be reasonable; (c)
where
the Controller fails to make any apportionment under clause (b), he shall
withhold the apportionment until the dispute as regards the shares of the
landlord is decided by a court having jurisdiction. (1)
On
receiving, (a)
any
application in Form B from a thika tenant or a Bharatia or any other person; or (b)
any
information, in writing, in regard to any dispute regarding payment of rent by
the thika tenant to the State Government or by a Bharatia to a thika tenant,
shall be disposed of by the Controller by giving reasonable opportunity of
being heard to all concerned and, if necessary, by conducting a spot inquiry. (2)
Any
dispute, relating to eviction of a Bharatia, shall be disposed of by the
Controller by giving reasonable opportunity of being heard to all concerned and
after taking into account the provisions laid down in Chapter III of the West
Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997), as
subsequently amended and the rules framed thereunder. If a thika tenant has defaulted in paying
rent, the Controller may, after giving such thika tenant an opportunity of
being heard, order him to pay the rent with interest and with or without
penalty, within such time as the Controller may decide and in default, a
proceeding may be drawn in this respect against such thika tenant and after
giving him an opportunity of being heard and, if necessary, after an inquiry,
the structure shall be vested in the State and the thika tenant may be declared
as trespasser and be evicted accordingly by issuing a notice for such eviction
directing compliance within a specified date. After expiry of such date, the
Controller may evict the thika tenant from such premises and if necessary, may
require the help of the police authority for the purpose. (1)
A
Bharatia shall be liable to pay rent under sub-section (7) of section 8 to the
thika tenant at the following rate against issue of valid and printed receipt: (a)
Re
1.00 (one rupee) per square feet per month, in case of kuccha structure for
domestic purposes or the present rate at which the Bharatia is paying rent to
the thika tenant, whichever is higher; (b)
Rs.
2/- per square feet per month, in case of pucca structure for domestic purposes
or the present rate, whichever is higher; (c)
in
case the structure is used for business purposes, the rate of rent shall be Rs.
2/- or Rs. 4/- in kuccha or pucca structure, as the case may be. (2)
In
case where there is no thika tenant, a Bharatia shall be liable to deposit rent
under sub-section (8) of section 8 at the rate as provided in rule 8 of these
rules as if such Bharatia has obtained a licence under sub-section (5) of
section 6 and he will be liable to pay rent as a licensee. (1)
If
a thika tenant fails to restitute a Bharatia in similar accommodation in the
reconstructed structure as provided in sub-section (2) of section 10, or if a
dispute of similar nature exists between thika tenant and a Bharatia, the
Bharatia may make an application stating the material facts, events and
information with supporting documents in Form B, with as many copies as there
are parties on whom notices are to be served. (2)
On
receiving such application, the Controller shall dispose of the matter in
accordance with the provisions of sub-sections (3), (4) and (5) of section 10
after taking into account the provisions laid down in Chapter V of the West
Bengal Premises Tenancy Act, 1997 (West Ben. Act XXXVII of 1997) as
subsequently amended and the rules framed thereunder. (3)
Any
order of the Controller under sub-rule (2) shall be deemed to be an order
within the meaning of clause (f) if section 11 and shall, without prejudice to
the provisions of rule 27, be executed accordingly. An order passed by the West Bengal Land
Reforms and Tenancy Tribunal and against which no appeal has been preferred,
may be reviewed by it on an application made by any party within 30 days from
the date of such order, in the manner prescribed in the Code of Civil
Procedure, 1908, on the ground of discovery of new matter or evidence or on the
ground of error apparent on the face of record, after giving the concerned
parties an opportunity of being heard: Provided that the time taken to obtain
certified copy of the order sought to be reviewed, shall be excluded for the
purpose of computing the abovementioned period of limitation prescribed for
making an application for review. (1)
Subject
to the provision of the Act and these rules, the provisions of the West Bengal
Land Reforms Act, 1955 (West Ben. Act X of 1956), as amended from time to time,
relating to the maintenance, preparation and revision of record-of-rights shall
apply, mutatis mutandis, for the purposes of this Act. (2)
On
receiving any application or otherwise, the Controller may, after giving tan
opportunity of being heard to all concerned and if necessary, by conducting an
on-the-spot enquiry, make a change in the record-of-rights on account of
mutation or substitution of names as a result of transfer under sub-section (4)
of section 5 or inheritance or partition of the holdings or consolidation or
forfeiture of interests of thika tenant or resumption or settlement under
section 25 or otherwise. (3)
A
fee of Rs. 10/- (Rupees ten) shall be payable along with every application for
change in the record-of-rights. (4)
Such
change in the record-of-rights shall be informed by the person in whose favour
the change has been effected to the local authority and the Collector of the
area for necessary correction in their respective records. (5)
The
records maintained in the office of the Collector of local authority, if any
may be consulted for the maintenance, preparation and revision of
record-of-rights and a copy of such records may be made available to an
interested party, on requisition in this respect and upon payment of such
requisite fee as prescribed under rule 23. (1)
The
rate of revenue payable to the State Government by a thika tenant or tenant of
other lands holding directly under the State under sub-section (1) of section
24 shall be as follows: (a)
rent
for kuccha structure used for domestic purpose, shall be payable at the rate of
Rs. 10.00 (Rupees ten) per katha per month; where the prevailing rate is higher
it will continue; (b)
rent
for kuccha structure used for business purpose including commerce and industry,
shall be payable at the rate of Rs. 20.00 (Rupees twenty) per katha per month;
where the prevailing rate is higher it will continue: Provided that where the kuccha structures in
a single holding are being used for both domestic and business purposes,
respective rates shall be applicable for respective use of the area of such
structure, for domestic or business purpose, as the case may be; (c)
rent
for pucca, and pucca-multistoried, structure used for domestic purposes, shall
be payable at the rate of Rs. 15.00 (Rupees fifteen) per katha per month for
and up to the first two stories and an additional fee of Rs. 15.00 (Rupees
fifteen) per katha per month shall be payable for floor area of each subsequent
and additional floor; (d)
rent
for pucca, and pucca-multistoried, structures used for business purpose
including commerce and industry, shall be payable at the rate of Rs. 30.00
(Rupees thirty) per katha per month for and up to the first two stories and an
additional fee of Rs. 100.00 (Rupees one hundred) per katha per month shall be
payable for floor area of each subsequent and additional floor: Provided that where the pucca and pucca
multi-storied, structures in a single holding are being used for both domestic
and business purposes, respective rates shall be applicable proportionately for
respective use of the area of such structure, for domestic or business purpose,
as the case may be: Provided further that the rent shall be
payable monthly or quarterly or half-yearly or annually through T.R. Challan
and the arrear of revenue, if any, shall bear simple interest at the rate of
6.25 per centum per annum from the date of which the revenue falls due till the
date of its payment: Provided also that the arrear of revenue, if
any, shall be recoverable as a Public Demand. Any land or structure vested in, or resumed
by, the State under the Act for public purpose, may be made use of, or settled
with any person or authority for sub-serving the common good on the terms and
conditions and in the manner laid down in the West Bengal Land and Land Reforms
Manual, 1991, as amended from time to time and the provisions of which shall
apply mutatis mutandis, to the use or settlement of such land or structure
under section 25 of the Act. Every notice required to be served Under the
Act or these rules shall be served by registered post with acknowledgement due
or where the procedure as aforesaid cannot be effected or is not feasible, in
such manner as is provided for service of a process of revenue of a civil
court. Rents, revenues and fees prescribed in these
rules shall be effective from the date of notification of the Act in terms of
sub-section (3) of section 1 (1)
A
fee of rupees two shall be payable for every application made under the Act or
these rules. (2)
Such
application may be presented by the applicant himself or by his agent, duly
authorised by him in writing. The applicant and the opposite party may be
represented by agent duly authorised in writing:. Provided that if the person representing a
party is a legal practitioner and holds a Vakalatnama from the party on his
behalf, no separate authorisation shall be necessary. Such Vakalatnama may,
however, be cancelled on a prayer of the party. (3)
Fees
for copies shall be payable as follows: (a)
the
fee chargeable for a certified copy of any application or order of any
proceeding shall be rupees five: Provided that when an application is made at
the same time for certified copies of the application, written statement, order
and document of the same proceedings or case, there shall be charged a
consolidated fee of rupees ten for all of them; (b)
the
fee chargeable for a certified copy of notes of evidence or order or judgment
or written statement or document, shall be rupees five plus rupees two for a
folio of ninety words: Provided that when an application is made at
the same time for certified copy of at least two or more items of notes of
evidence, order, judgment, written statement and document of the same case, a
consolidated fee of rupees ten plus rupees two for a folio of ninety words
shall be charged: Provided further that if the copy exceeds
four folios, an additional fee of rupee one for each extra folio shall be
payable; (c)
if
an application is made for obtaining certified copy of records and documents
maintained in the office of the Collector or local authority in relation to
maintenance, preparation and revision of record-of-rights, the fee for such
certified copy shall be five plus rupees two for a folio of ninety words shall
be charged: Provided that if the copy exceeds five
folios, extra charge of rupee one for each extra folio shall be payable; (d)
if
the Head of any Department or Directorate of the Central or the State
Government applies to the Controller or to the Appellate Authority for a
certified copy of any final order of the Controller or of the Appellate
Authority, as the case may be, for any public purpose, a certified copy of such
order shall be granted to such applicant on plain paper only, free of cost. (4)
In
the matter of granting copies of records written in languages other than in
English and Bengali, the procedure laid down in the Civil Rules and Orders for
the Guidance of Civil Courts and officers subordinate to the High Court at
Calcutta shall be followed with modifications as may be necessary. (5)
While
applying for copies of maps or plans, the applicant shall file with the
application requisite fees for application for certified copies and necessary
tracing papers for such copies. The cost of copies of such maps or plans shall
be assessed by the Controller in such manner as he may think fit. (1)
A
searching fee of rupees five shall be payable for every application for each of
the following items: (a)
for
information whether a record is available in the record-room, or not: Provided that it shall be necessary to make a
separate application with separate fee for any information required in
connection with every separate cause or separate matter; (b)
for
inspection where the record is deposited in the record-room: Provided that such fee shall also be charged
for inspection of records of pending case by advocates and legal practitioners. (2)
A
process fee at the rate of rupees five in respect of every party on whom a
notice is to be served under the Act shall be paid. An affidavit sworn in before the Controller
shall be charged with a fee equivalent to the stamp-duty payable under article
4 of Schedule 1A to the Indian Stamp Act, 1899 (2 of 1899). Any fee payable under these rules shall,
unless otherwise expressly provided in these rules, be paid in court-fee
stamps. (1)
For
the purpose of enforcing delivery of possession of any land or structure or for
evicting any person in actual occupation of any land or structure as may be
necessary under the Act, the Controller may send a written requisition to the
Officer-in-Charge of the local police station or to any police officer superior
to such Officer-in-charge and on receipt of such written requisition, the
Officer-in-Charge or the police officer as aforesaid shall render all necessary
and lawful assistance for enforcing delivery of possession of such land or
structure or for evicting any person in actual occupation of such land or
structure. (2)
If
there is any law and order problem or any technical or documentary problem, the
Controller may seek assistance, in writing, from the Collector, the District
Administration and any local authority and on receiving such written
communication, the Collector, the District Administration and the local
authority shall render necessary and lawful assistance as required by the
Controller. [1] Published in the
Kolkata Gazette, Extraordinary, dated 2.11.2004, vide Notification No. 3264-L,
Ref. dated 2nd November, 2004 and issued by the Government of West Bengal, Land
& Land Reforms Department.WEST
BENGAL THIKA TENANCY (ACQUISITION AND REGULATION) RULES, 2004
PREAMBLE