Calcutta High Court (Appellete Side)
Cl [Pedcontrol (India) Private Limited ... vs Pg on 6 May, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
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71 06.05.2016 W.P.6334(W) of 2016
CL [Pedcontrol (India) Private Limited & Anr. vs.
pg
Kolkata Port Trust & Ors.)
Mr. P.C. Paul Chowdhury
Mr. Suryan Sengupta
Mr. Krishnendu Paul Chowdhury
Mr. Deep Narayan Mukherjee......for the petitioners
Mr. Khairul Alam.......................for the State
Mr. Kishore Dutta
Mr. Mohan Lall Banerjee.........for the respondents 1 to 5
Mr. Debajyoti Deb..............for the respondent no.6 The Kolkata Port Trust (hereafter 'KoPT') granted lease of a property measuring near about 01 bigha (as per Mr. Paul Chowdhury, learned advocate for the petitioners)/4000 sq.ft. (as per Mr. Dutta, learned senior advocate for the KoPT) in favour of Ballygunge Engineering Company (hereafter 'B.E.C.'). Mr. Biman Roy was the proprietor of B.E.C. The daughter in law of Mr. Biman Roy i.e. the sixth respondent, had an advertisement published in magicbricks.com putting up 2000 sq.ft. for lease.
It is altogether a different story that the sixth respondent did not have any authority to sub-lease the property, which had been leased in favour of B.E.C. Be that as it may, noticing the advertisement, 2 the first petitioner expressed interest and pursuant to an agreement executed by and between the first petitioner and the sixth respondent, the first petitioner was put in possession of 2000 sq.ft. of area. The first petitioner upon being put in possession, claims to have developed the property and is presently running a laboratory therefrom.
KoPT initiated proceeding under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereafter the 'Act') against B.E.C. B.E.C. contested the proceeding but ultimately the estate officer passed an order of eviction. Such order of eviction was carried in appeal and dismissed in June, 2015. Thereafter, KoPT took possession of the entire property that was leased in favour of B.E.C., which obviously included the portion on which the first petitioner has set up its laboratory. Upon taking possession, the laboratory has been sealed by KoPT. It is this action that is the subject matter of challenge in this writ petition.
According to Mr. Paul Chowdhury, the first petitioner is a bona fide lessee in respect of the subject property and had it been aware to it that the sixth respondent had no authority to issue the advertisement for leasing 2000 sq.ft. of area, it would have never 3 entered into the property and developed the same for the purpose of setting up its laboratory. It is further submitted by him that the agreement between the first petitioner and the sixth respondent is due to expire on May 31, 2017 and during the past three months the laboratory could not be put to use, the first petitioner has been facing immense difficulties including non-payment of remuneration/wages to its employees/staff.
An appeal has been made by Mr. Paul Chowdhury that unless this Bench interferes and passes an order on KoPT to unlock the laboratory and to allow the petitioner to use the same upon payment of Rs. 15,000,00/- (Rupees Fifteen Lac) as security and on payment of Rs. 50,000/- per month as rent to KoPT, the loss and prejudice suffered can never be compensated.
The writ petition has been very strongly resisted by Mr. Dutta. According to him, there is no privity of contract between KoPT and the first petitioner and that on an eviction order being made against the original lessee, which has since been affirmed in appeal, KoPT has absolute unquestionable right to take possession of the entire property and to oust the first petitioner therefrom.
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Whether or not KoPT would be entitled to exercise a right of lien on the equipments lying at the laboratory of the first petitioner having regard to the order of eviction which has attained finality, is a question which the Hon'ble Supreme Court is presently seized of. A civil appeal has been entertained by the Hon'ble Supreme Court upon a decision being rendered by an Hon'ble Full Bench of this Court holding that KoPT in such case would have no authority to exercise right of lien on the properties lying in the public premises in question belonging to a third party. It is true that the Hon'ble Supreme Court has stayed the operation of the judgment and order of the Hon'ble Full Bench but a stay order does not wipe out the existence of the judgment and order under appeal. Since the agreement between the first petitioner and the sixth respondnet is due to expire on May 31, 2017, this Bench is of the considered view that the equities ought to be balanced or else the first petitioner would be placed in an irretrievably disadvantaged position.
As and by way of an interim measure, it is accordingly directed that the first petitioner shall pay Rs. 15,000,00/- (Rupees fifteen lac) in favour of KoPT within 5 seven days from date and if such payment is received, KoPT shall forthwith unlock the laboratory of the first petitioner and allow it access thereto. Such amount of Rs. 15,000,00/- (Rupees fifteen lac) shall be invested by KoPT in a short term interest bearing fixed deposit account of a nationalised bank. The account shall be kept renewed until further orders of this Court.
The first petitioner shall also pay lease rent @ Rs. 50,000/- (Rupees fifty thousand) per month starting from the month of May, 2016. The said amount of Rs. 50,000/- (Rupees fifty thousand) for May, 2016 shall be paid by the 15th of this month and from June, 2016 onwards by the 10th of each succeeding month.
Payment and receipt of such amount of Rs.
15,000,00/- (Rupees fifteen lac) on account of scecurity and rent of Rs. 50,000/- (Rupees fifty thousand) shall be without prejudice to the rights and contentions of the parties in this writ petition and subject to further orders that this Court might pass.
The question of return of the security deposit in favour of the first petitioner shall be dependant on the result of the writ petition.
It is made clear that in the event the writ 6 petition fails, KoPT shall be entitled to exercise its right of lien in respect of all the equipments and articles belonging to the first petitioner lying at the laboratory and the same shall not be removed without the leave of this Court.
KoPT shall be free to depute its estate manager at the time access to the laboratory is given to the petitioners for the purpose of making an inventory of the equipments and articles lying in the laboratory, in the presence of the representative of the first petitioner.
Let affidavit in opposition be filed by the respondents within two weeks after vacation; reply thereto, if any, may be filed within two weeks thereafter.
Put up this writ petition in the monthly list of July, 2016 under the heading 'Final Disposal'.
(DIPANKAR DATTA,J.)