Calcutta High Court (Appellete Side)
Inland Manufacturing Company vs Board Of Trustees For The Port Of Kolkata on 23 December, 2008
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
C.O. No. 4477 of 2005
With
C.O. No. 4478 of 2005
Inland Manufacturing Company
Vs.
Board of Trustees for the Port of Kolkata
For the Petitioner: Mr. S.P. Roy Chowdhury,
Mr. Shyamal Sarkar,
Mr. Debasish Roy,
Mr. Vinay Kumar Jain,
For the Respondent: Mr. Jaharlal Chakraborty,
Mr. Ashok Kumar Mondal.
Judgment on : 23.12.2008.
S.P. Talukdar, J.: The petitioner, Inland Manufacturing Company, by filing
an application under Article 227 of the Constitution being C.O. No. 4477 of 2005 sought to assail the judgment dated 30th September, 2005 passed by the learned 5th Bench, City Civil Court at Calcutta in Misc. Appeal No. 13 of 2001. The learned Court by the said judgment affirmed the order dated 4th June, 2001 passed by the Estate Officer, Kolkata Port Trust in proceeding No. 281 of 1999.
The grievances of the petitioner, as ventilated in the said application, may briefly be stated as follows:-
The petitioner is a monthly tenant in respect of a passage measuring 6.318 square metre together with a room measuring about 1951 square kilometre called Plate No. CG- 184/1, situate at P-221/2, Strand Bank Road, P.S.- North Port, Kolkata- 700 001 hereinafter referred to as the 'said premises'. The petitioner became a tenant under the opposite party on and from March 31, 1968. He had been paying monthly rent of Rs. 138/- only inclusive of municipal rates and taxes regularly. The respondent all on a sudden issued a purported notice to quit dated 4.11.1994 alleging unauthorized construction and subletting. The petitioner duly replied to the same, inter alia, denying all the material allegations. Another purported notice to quit dated December 8, 1995 was issued by the respondent authority wrongfully and illegally. The petitioner received the same on January 29, 1996. By such second notice, the first notice stood waived and/or withdrawn. Respondent raised rent bills from the months of December, 1995 and January, 1996 and the petitioner paid the rent for the said months. Thus, the subsequent notice dated 8th December, 1995 was also given a go-by. On February 25, 1996, the respondent authority through its staff sought to trespass into the said premises and attempted to dispossess the petitioner wrongfully and illegally. This was repeated on 18th March, 1996. Such attempts were, however, effectively resisted.
The petitioner filed a suit being Title Suit No. 730 of 1996 against the respondent before the City Civil Court, Calcutta praying for declaration that plaintiff is a tenant in respect of the suit premises under the defendant and that the defendant is not entitled to dispossess the plaintiff therefrom or to interfere with the possession of the plaintiff in the suit premises as well as for various other reliefs. In response to an application for injunction, the learned Chief Judge, City Civil Court, by an order dated 26th March, 1996 directed the respondent not to dispossess the petitioner or disturb its peaceful possession except in accordance with law till disposal of the injunction matter. The said order was extended from time to time. Suppressing all such material facts, the respondent filed a purported petition for eviction before its Estate Officer under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 on the basis of the said notice dated 8th December, 1995. In fact, legality and validity of the said notice is also a subject matter of the civil suit as referred to earlier. The Estate Officer held an inspection of the premises and by order No. 14 dated 14th December, 1999, the allegations of subletting and encroachment upon the land of the respondent were discarded.
In course of hearing, talks of settlement were initiated. The respondent claimed a sum of Rs. 6,633/- towards penalty for alleged unauthorized construction. By application dated 28th November, 2000, the petitioner sought for determination of the quantum and in order to show its bonafide paid a sum of Rs. 3,000/- for the said premises and promised to pay the balance as may be determined by the Estate Officer. The petitioner paid further sum of Rs. 7,000/- in respect of another premises being Plate No. CG-184. The grounds of subletting and encroachment having been discarded earlier and by imposition of penalty of an amount of Rs. 6,633/- the ground of unauthorized construction also having lost its force, the Estate Officer was just left with the job of fixation of quantum between Rs. 3,000/- as already paid by the petitioner and accepted by the respondent and Rs. 6,633/- as claimed by the respondent for alleged unauthorized construction. By order No. 34 dated 4th June, 2001, the Estate Officer of the respondent reiterated the order No. 14 dated 14th December, 1999 that the allegation of unauthorized subletting and encroachment have lost their merit. It was, however, observed that the petitioner failed to produce any paper/documents in connection with the structure. It was further observed that upon submitting a pay order for Rs. 7,000/-, the petitioner had admitted unauthorized construction. It was also claimed that he had no jurisdiction to adjudicate the quantum of penalty, which is under process of settlement between the parties. This order dated 4th June, 2001, was challenged by preferring an appeal being Misc. Appeal No. 13 of 2001. During pendency of the appeal, the petitioner came to know about the policy guidelines made and published by the Central Government, which virtually indicated that the eviction proceeding under the Act of 1971 was not maintainable. The learned Judge by its judgment and order dated 30th September, 2005 dismissed the appeal being Misc. Appeal No. 13 of 2001.
Being aggrieved by and dissatisfied with the same, the petitioner approached this Court with the said application under Article 227 of the Constitution praying for setting aside of the same.
The judgment dated 30.9.2005 also governs Misc. Appeal No. 14 of 2001 and as such, the petitioner filed another application under Article 227 of the Constitution assailing the judgment in connection with Misc. Appeal No. 14 of 2001.
In the facts and circumstances and the judgment under challenge in the two applications being one and the same, both the cases were heard at a time.
The respondent authority being the opposite party herein contested the cases by filing Affidavit-in-Opposition. Apart from denying the material allegations made in the two applications, the respondent authority claimed in such Affidavit-in-Opposition that subsequent to the inspection held on 14th December, 1999 by the Estate Officer whereby it was found that unauthorized construction had been made, one Mr. B.N. Ghosh, as learned Counsel for the petitioner submitted an application on 14th January, 2000. It thereby sought to know as to what was the amount of penalty charges for regularization of the unauthorized construction. The respondent authority contended that it is entitled to arrear occupational charges including interest. The matter thereafter was adjourned from time to time.
In spite of being given repeated opportunities, the petitioner could not produce any document in support of the massive construction made by it on the land of the Kolkata Port Trust. The authority concerned duly informed the petitioner about the amount of penalty for making such unauthorized construction as would be reflected from order No. 30 dated 5.12.2000 and order No. 32 dated 2nd February, 2001. The amount claimed was towards arrear rents, mesne profit as also penalty for unauthorized construction. The petitioner continued to be in wrongful occupation of the property in respect whereof it suffered an eviction order. Notice of termination was issued in December, 1995 and since thereafter no amount was paid. The licence stood terminated on the expiry of the month of January, 1996 and accordingly, the respondent is entitled to compensation/damage from February, 1996 calculated in accordance with the rent schedule till recovery of possession in addition to penalty charged for unauthorized construction. The respondent, thus, is entitled to a sum of Rs. 1,13,660.14p. towards arrear licence fee and damage/compensation for withholding possession even after termination of licence in addition to penalty for unauthorized construction amounting to Rs. 21,323.40p. The Estate Officer upon consideration all relevant facts and materials came to the finding that there had been unauthorized construction and the allegations made by the Kolkata Port Trust stood admitted by the petitioner and as such, an order of eviction was passed.
In was stated that the judgment of the Court of Appeal whereby the finding of the Estate Officer was affirmed, does not suffer from any jurisdictional error. O.P./respondent claimed that there had been no such policy guideline for permitting the licensee/tenant to occupy properties of the Board authority illegally and in an unauthorized manner. The policy guideline only indicated the amount of penalty that may be imposed in case it is discovered that unauthorized construction has been made in the land of the Port authority.
In the Affidavit-in-Reply, the petitioner denied that the Estate Officer came to any conclusive finding that there had been any unauthorized construction or that the allegations made by the authorities of the Kolkata Port Trust were admitted by the petitioner. It was claimed that the purported order of eviction was passed without considering the earlier orders and without considering the facts of the case and the law involved.
The crux of the controversy is whether the learned Judge, Civil Court was justified in dismissing the appeal preferred against the order of the Estate Officer.
Mr. S.P. Roy Chowdhury, as learned Senior Counsel for the petitioner, quite rightly submitted that the Estate Officer finally proceeded against the petitioner on the ground of alleged unauthorized construction. The other allegations relating to encroachment and subletting were found to be without any sufficient basis.
Referring to the factual backdrop of the present case, it was submitted that the opposite party/Kolkata Port Trust being in the position of plaintiff was required to discharge the initial burden of establishing the said allegation of unauthorized construction. It was submitted that by order No. 23 dated 6th June, 2000, the authority concerned of the K.P.T. were to produce the possession certificate issued to the petitioner. The same could not be placed and that would have been the best evidence regarding extent of tenancy. Mr. Roy Chowdhury, in fact, went a step further while submitting that such failure to produce the certificate would give rise to adverse presumption against the Kolkata Port Trust.
It was brought to the notice of this Court that settlement was virtually offered by the concerned authority of the K.P.T. This was in the context of regularization of the alleged unauthorized construction by paying penalty. The Estate Officer sought to review the matter on14.1.2001. It is worth mentioning that the present petitioner approached the Estate Officer and denied the allegation of making any unauthorized construction. He, however, sought for determination of the amount by the Estate Officer. The said Estate Officer concluded hearing on 2nd March, 2001 rather abruptly. There was no effective adjudication by the Estate Officer and thus, obligation under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act was ignored.
Mr. Roy Chowdhury categorically mentioned that an attempt had been made by the K.P.T. authority to read something more than what meets the eyes in the petitioner's offer for amicable settlement. Mere fact that the petitioner took a step in that direction, cannot lead to any presumption that the petitioner accepted the alleged guilt. Mr. Roy Chowdhury then contended that the offer for settlement is to be read in the context of the entire factual backdrop of the case and according to him, the Estate Officer as well as the learned Appellate Court having not dealt with the matter in that perspective, this Court is under constitutional obligation to intervene.
Attention of the Court was invited to the guidelines issued by the Central Government from time to time. These were in the matter of dealing with the persons in occupation of public premises. On behalf of the petitioner, it was emphatically submitted that by no stretch of imagination, the petitioner could be described as a trespasser. It such backdrop, it was for the authorities to deal with the petitioner in the light of the guidelines issued by the Government of India. Mr. Roy Chowdhury relied upon the various decisions of the Apex Court as well as other Courts while submitting that such guidelines have the force of statute and certainly, are binding on the Estate Officer.
Relying upon the decision in the case of Persis Kothawala Vs. Life Insurance Corporation of India, Mumbai & Anr., as reported in 2004 AIHC 2613, it was submitted on behalf of the petitioner that '2002 guidelines' have statutory force and akin to rules framed under Public Premises Act, 1971. The Apex Court in the factual backdrop of the said case observed that even non-statutory guidelines can be enforced on basis of promissory estoppel and legitimate expectation. Arbitrary, irrational and capricious increase in rent was held to be violative of Article 14 of the Constitution.
Learned Single Bench of this Court in the case of Kuldeep Kumar Nayyar Vs. Union of India & Ors., as reported in 2003 (2) CLJ 172, in the context of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 considered the guidelines, which were framed to prevent arbitrary use of powers to evict genuine tenants. Learned Court directed the authority to consider regularization as tenant in the light of the guidelines.
In the case of M/s. Dwarkadas Marfatia & Sons Vs. Board of Trustees of the Port of Bombay, as reported in AIR 1989 SC 1642, the Apex Court held that where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. The Apex Court in the said case observed as follows:-
"........... Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondents, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard. If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional..........."
Learned Counsel for the petitioner went a step further while submitting that the actions of State and its instrumentalities in field of landlord-tenant relationship should be tested not under rent control legislation but under the Constitution. In this context, he referred to the decision in the case of Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai, reported in AIR 2004 SC 1815.
Attention of the Court was invited to the decision in the case of Arvind Kumar Dhanuka Vs. Board of Trustees & Ors., reported in AIR 1977 Cal. 377. This was in this context of the submission that the authorities being the Port Trust Authority cannot be permitted to ignore the guidelines and act in an arbitrary manner.
Learned Counsel for the respondent, however, contended that this Court had been approached with an application under Article 227 of the Constitution and is not expected to deal with issues, which are beyond the scope of supervisory jurisdiction. No doubt, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of that jurisdiction. When the Subordinate Court assumes a jurisdiction which it does not have or fails to exercise jurisdiction which it does have or exercises jurisdiction in a manner not permitted by law thereby causing injustice, the High Court may step in to exercise its supervisory jurisdiction.
The power of superintendence conferred by Article 227 is as pointed out by Harries, CJ. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.
The Apex Court in the case of Sadhana Lodh Vs. National Insurance Co. Ltd., reported in AIR 2003 SC 1561, held that power under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct error apparent on the face of record, much less of an error of law. It cannot reweigh or review the evidence either.
Mr. Roy Chowdhury, in this context, contended that the scope of Article 227 is not confined to only administrative supervision but it includes judicial review. Deriving inspiration from the Division Bench judgment of this Court in the case of Achutananda Baidya Vs. Prafullya Kumar Gayen & Ors., reported in 1997 WBLR (SC) 277, it was submitted that the High Court is competent to quash perverse finding of fact in response to an application under Article 227 of the Constitution. Reference was further made to the decision in the case of Savita Chemicals (Pvt) Ltd. Vs. Dyes & Chemical Workers' Union & Anr., reported in (1999) 2 SCC 143 while submitting that where the findings were patently erroneous and dehors the factual and legal position in record, interference under Article 227 is perfectly justified. It is well settled position of law that the High Court can very well interfere with a Lower Court's finding of fact if it is perverse or there is no evidence to support it. (Ref: Mohan Amba Prasad Agnihotri & Ors. Vs. Bhaskar Balwant Aher (D) Through LRS, reported in (2000) 3 SCC 190).
In the case of Shama Prashant Raje Vs. Ganpatrao & Ors., reported in (2000) 7 SCC 522, the Apex Court held that if on perusal of the order of an inferior Tribunal it is found that (i) such Tribunal has committed a manifest error by misconstruing a document; or (ii) that on the materials on record a reasonable man could not have come to the conclusions reached by the Tribunal; or (iii) the Tribunal has ignored relevant material; or
(iv) has taken into consideration inadmissible material, the High Court would be fully justified in interfering with the findings of the inferior Tribunal. Where the findings can be held to be mixed questions of fact and law the High Court can very well interfere in exercise of its power under Article 227 of the Constitution.
Mr. Roy Chowdhury further contended that a quasi-judicial authority has a legal duty to invoke the powers of summoning witness, taking evidence, analyzing the same to arrive at a conclusion. He referred to the decision of the Apex Court in the case of Food Corporation of India Vs. Provident Fund Commissioner & Ors., reported in (1990) 1 SCC 68.
The Estate Officer while disposing of the proceeding came to a finding that the present petitioner had carried out unauthorized construction on the public premises without having any authority under law. It was held that petitioner's occupation after expiry of the period as mentioned in the notice for revocation dated 8.12.1995 is unauthorized. It was further held that the petitioner failed to produce any paper/document in support of the claim that there had been 'authorized construction'. This led the Estate Officer hold the petitioner as one in wrongful occupation of a public premises and as such, he is liable to pay damages for unauthorized use and occupation up to the date of recovery of the same by the K.P.T. The Estate Officer, in such circumstances, directed drawing up of formal order of eviction under Section 5 of the Act.
Learned Appeal Court took all relevant facts and circumstances into consideration and did not find any sufficient reason for interfering with the said order. It was the consistent stand of the petitioner before the Estate Officer as well as before the learned Appellate Court that he did not make any unauthorized construction. The fact that the petitioner could not produce any document particularly the sanction plan for making any construction in the suit premises, was taken into consideration by the learned Appellate Court. It is not in dispute that the allegation of unauthorized subletting and encroachment was found to be without any merit. The Estate Officer as well as the learned Appellate Court took into consideration the fact that the petitioner failed to produce any document whatsoever in support of the claim that whatever construction was made was authorized.
On behalf of the petitioner it was submitted that mere payment of an amount of Rs. 7,000/- by pay order in favour of K.P.T. does not by itself establish the allegation of unauthorized construction. It cannot be disputed that attempts were made for an amicable settlement of the controversy. It could be that such a pay order was issued in the said context but it may not be proper to attempt to read in it something more than what meets the eyes.
True, this Court while dealing with an application under Article 227 of the Constitution is not expected to re-evaluate the materials on record. It is also the settled principle of law that in exercise of supervisory jurisdiction, it is for this Court to ascertain as to whether the learned Court or the Tribunal acted within its jurisdiction or not. This does not necessarily mean that this Court while ascertaining the matter in the aforesaid perspective should make any attempt to correct any error, much less an error of law. But this Court certainly cannot also afford to remain indifferent if it is found that the order under challenge suffers from misappreciation of law and the finding arrived at by the learned Court is not substantiated by materials on record.
In this context, it may be necessary to mention that it was emphatically submitted by learned Senior Counsel, Mr. Roy Chowdhury that non-consideration of the guidelines, as referred to earlier, in its proper perspective resulted in the finding which a reasonable man is not expected to arrive on the basis of the materials on record. It was contended that in such a situation, the power of this Court under Article 227 of the Constitution can very well be exercised and this is in the best interest of justice and for proper adjudication of the controversy.
On behalf of the O.P./K.P.T. authority, attention of the Court was invited to the decision of the Apex Court in the case of New India Assurance Company Ltd. Vs. Nusli Neville Wadia & Anr., as reported in 2008(2) ICC 147. This was in support of the contention that in an eviction proceeding of a tenant under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, the protection of Rent Act is not available to tenant but action of State seeking eviction of tenant under the said Act must not be arbitrary, unreasonable or mala fide. It was further held that what is necessary is to comply with the principles of natural justice. Mr. Chakraborty, deriving support and strength from the said decision, further submitted that issuance of such guidelines is not being controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the tenant.
On the materials available on record, it appears that the respondent authority ultimately did not choose to press the two allegations i.e. that there had been subletting or that the petitioner was guilty of trespass. The authority concerned, thus, proceeded only with the allegation of 'unauthorized construction'. It was categorically mentioned by learned Senior Counsel, Mr. Roy Chowdhury that the authority could not discharge the initial burden of proving the extent of unauthorized construction nor any certificate of possession could be furnished before the Estate Officer. But that by itself does not take away the responsibility of the petitioner to satisfy the authority that there had been no unauthorized construction. In order to do so, the petitioner was certainly required to prove that whatever construction was made was authorized and it had the sanction of the appropriate authority.
It is well settled that there cannot be any arbitrariness in the fixation of rent, which must not be exorbitant and the act of public authority must also pass the test of reasonableness. It is the settled law that all exercise of discretion or power by public authorities in dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords, must be judged by the standard.
Mr. Chakraborty on behalf of the O.P./K.P.T. authority contended that after disposal of the appeal, which was filed against the order of the Estate Officer, there could be very little scope for interference in exercise of this Court's power under Article 227 of the Constitution. He wondered as to where is the jurisdictional error so as to justify interference. Mr. Chakraborty cautiously added that this Court is neither expected to scan evidence nor to play the role of mediator.
It may be that when the Court in exercise of its jurisdiction under Article 227 of the Constitution finds that the order of the learned Court or Tribunal is not based on consideration of materials on record or the learned Court or the Tribunal has proceeded on the basis of materials, which were not on record and thereby came to a wrong finding, this Court should continue to remain a passive onlooker. There is need for action when an order under challenge manifestly suffers from inherent infirmity.
But in the circumstances of the present case, it cannot be held that the learned Court of Appeal proceeded on the basis of materials, which were not on record or decided the appeal on the basis of extraneous consideration. Strictly speaking, learned Court acted within its jurisdiction and alleged non-consideration of the guidelines, as referred to earlier, could not really bring about any change in the legal complexion.
In the result, I find no rational justification for any interference. Both the applications being C.O. No. 4477 of 2005 and C.O. No. 4478 of 2005 be accordingly dismissed.
The impugned judgment and order dated 30th September, 2005 passed by the learned 5th Bench of the City Civil Court at Calcutta in Misc. Appeal No. 13 of 2001 and Misc. Appeal No. 14 of 2001 as well as the order dated 4th June, 2001 passed by the Estate Officer, Kolkata Port Trust be affirmed.
There is no order as to costs.
Xerox certificated copy of the judgment and order be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)