Calcutta High Court
The Cossipore Commercial Society & Ors vs The Board Of Trustees For The Port Of ... on 9 April, 2019
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
W.P. No. 771 of 2012
The Cossipore Commercial Society & Ors.
Vs.
The Board of Trustees for the Port of Kolkata & Ors.
And
W.P. No. 871 of 2012
The Krishna Mineral Industries & Anr.
Vs.
The Board of Trustees for the Port of Kolkata & Ors.
And
W.P. No. 914 of 2012
Messrs. Tekno Valves & Anr.
Vs.
The Board of Trustees for the Port of Kolkata & Ors.
For the Petitioners in : Mr. Indranil Roy, Advocate
W.P. No. 771 of 2012 Ms. Sunita Shaw, Advocate
For the Petitioners in : Mr. Debabrata Saharay, Advocate
W.P. No. 871 of 2012 & Mr. Koushik Bhattacharya, Advocate
914 of 2012
For the Respondents : Mr. Abhrajit Mitra, Sr. Advocate
Mr. A.K. Jana, Advocate For the Respondent : Mr. R.P. Mukherjee, Advocate Nos. 7 & 8 Hearing concluded on : March 20, 2019 Judgment on : April 9, 2019 DEBANGSU BASAK, J.:-
Three writ petitions have been taken up for final hearing as they involve similar issues.2
The issue that has fallen for consideration in these three writ petitions is whether the respondent authorities can charge compensation in terms of Clause 6.2.2.2(e) and Clause 6.2.2.3(g) of the Land Policy Guidelines, 2010 and TAMP Order No. TAMP/18/2011-Gen. dated July 26, 2011 or not.
W.P. No. 771 of 2012 is at the behest of the Cossipore Commercial Society and others. For the sake of convenience, the writ petitioners in such writ petition are referred to as the Cossipore Commercial Society. Learned Advocate appearing for Cossipore Commercial Society has submitted that, Kolkata Port Trust (KoPT) had offered lease in respect of two adjoining plots for a period of 20 years with effect from September 24, 1990 to Cossipore Commercial Society on September 21, 1990. KoPT had handed over possession in respect of the first plot on November 17, 1990 and the second plot on January 4, 1991. KoPT authorities however did not execute any formal lease deed except issuing a letter dated September 21, 1990 of the Land Manager, KoPT which is at page 58 of the writ petition. According to him, Cossipore Commercial Society and KoPT proceeded on the basis of the relationship created by the letter of the Land Manager of KoPT dated September 21, 1990. Cossipore Commercial Society had applied for renewal of the lease before its expiry. KoPT did not respond to such application. KoPT had raised bills on the 3 basis of the schedule of rent, on Cossipore Commercial Society from time to time. The rent was increased from time to time by KoPT. Cossipore Commercial Society paid such rent. On and from June 2012, KoPT started charging compensation charges on Cossipore Commercial Society on the basis of Clause 6.2.2.2(e) and Clause 6.2.2.3(g) of the Land Policy Guidelines, 2012 and TAMP Order No. TAMP/18/2011-Gen. dated July 26, 2011. Learned Advocate appearing for Cossipore Commercial Society has submitted that, KoPT authorities are not entitled to charge compensation charges on the rent bill of the petitioner. Cossipore Commercial Society should be treated as a monthly tenant with no formal lease of deed being executed. Such tenancy not being terminated in accordance with law, Cossipore Commercial Society cannot be treated as an unauthorised occupant. The question of attraction of the Land Policy Guidelines, 2012 and the TAMP Order dated July 26, 2011 in such facts scenario does not arise. The claim for compensation charges raised by KoPT has no foundational basis. Such component of the bills should be quashed.
Learned Advocate appearing for Cossipore Commercial Society has submitted that, Section 107 of the Transfer of Property Act, 1882 provides that a lease for one year and above is compulsorily registrable. He has referred to Section 17(1)(d) of the Registration Act, 1908 in such 4 aspect. According to him, since no formal deed was either executed or registered, the relationship between the Cossipore Commercial Society and KoPT has to be treated on the basis of the letter dated September 21, 1990 which is at page 58 of the writ petition. He has relied upon All India Reporter 1980 Supreme Court page 226 (Biswabani Pvt. Ltd. v. Santosh Kumar Dutta & Ors.) and submitted that, an unregistered lease deed for a period of one year and above allows an inference that, there is a tenancy on month to month basis. Relying upon All India Reporter 1990 Calcutta page 135 (Pieco Electronics and Electricals Ltd. v. Smt. Tribeni Devi) and he has submitted that, no ejectment can be made on the basis of the determination clause in an unregistered deed. KoPT authorities despite the interim order passed by the High Court, did not initiate any eviction proceedings under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Therefore, Cossipore Commercial Society cannot be treated as an unauthorised occupant in respect of any of the two plots of land in question. He has referred to the interim order dated December 6, 2012 passed by the High Court in this regard and submitted that, Cossipore Commercial Society is paying KoPT in accordance with the interim order.
Learned Advocate appearing for Cossipore Commercial Society has submitted that, the relationship between the parties at the time of 5 entering into the contract was that of a lessor and a lessee and that the same was guided by the provisions of Transfer of Property Act, 1882. The rate of rent is guided by the Major Port Trust Act, 1963. The scale of rent to be charged by KoPT is as fixed by the Tariff Authority of Major Ports (TAMP) published under Section 49 read with Section 50C of the Major Port Trust Act, 1962. Land policy is not a fixation of land by TAMP under Section 49 of the Major Port Trust Act, 1963. Therefore, charging compensation under Clause 6.2.2.2(e) and Clause 6.2.2.3(g) of the Land Policy Guidelines, 2012 does not arise. Land policy cannot be resorted to in levying charges which are not fixed and published under Section 49 read with Section 50C of the Major Port Trust Act, 1963. Assuming that, the land policy as applicable then also, the two clauses would not apply as, in the facts of the present case, there is yet to be any expiry/termination/determination of the relationship. Cossipore Commercial Society continues to be a monthly tenant without such tenancy being determined in accordance with law.
W.P. No. 871 of 2012 and W.P. No. 914 of 2012 are collectively referred to as the Krishna Mineral Industries for the sake of convenience. Learned Advocate appearing for Krishna Mineral Industries has submitted that, KoPT offered lease of plots, at Cossipore River Front, for a period of 20 years to the petitioners. After handing over possession, 6 a survey was conducted where it appeared that, KoPT made over possession of land in slightly less than the offered area. After such measurement, KoPT started raising bills on Krishna Mineral Industries on the basis of the actual measurement. No formal lease deed was executed between the parties. The parties proceeded on the basis of the relationship created by the letter dated January 10, 1991 issued by the Land Manager of KoPT. During the subsistence of the tenancy, an eviction notice dated April 19, 2005 was issued to Krishna Mineral Industries. An eviction proceeding was initiated before the Estate Officer. The Estate Officer disposed of such proceedings holding that as no dues were payable by Krishna Mineral Industries to KoPT and since Krishna Mineral Industries did not part with possession, the proceedings are not maintainable. Even after expiry of 20 years from the letter dated January 10, 1991, KoPT did not determine the tenancy of Krishna Mineral Industries.
Prior to the expiry of a period of 20 years, Krishna Mineral Industries can apply for renewal of lease with KoPT. KoPT raised bills on Krishna Mineral Industries based on the schedule of rate. Such bill was increased from time to time in accordance with the schedule of rates. However, since June, 2012 onwards, KoPT started charging compensation charges at the rate of Rs. 62, 680/-. KoPT purported to 7 justify such charges in terms of Clause 6.2.2.2(e) and Clause 6.2.2.3(g) of the Land Policy Guidelines, 2012 and TAMP Order dated July 26, 2011.
According to the leaned Advocate appearing for Krishna Mineral Industries there is a monthly tenancy between Krishna Mineral Industries and KoPT. Krishna Mineral Industries not being adjusted as an unauthorised occupant by a competent Civil Court or by the Estate Officer and its tenancy not being determined, Krishna Mineral Industries cannot be said to be an unauthorised occupant. In support of such contention, he has relied upon 1996 Volume 5 Supreme Court Cases page 54 (Shangrila Food Products Ltd. & Anr. v. Life Insurance Corporation of India & Anr.). According to him, charging compensation by KoPT is therefore without any basis. Compensation can be charged for unauthorised occupation only. KoPT authorities have exceeded their jurisdiction in levying such charges. He has referred to Section 107 of the Transfer of Property Act, 1882 and Section 17(1)(d) of the Registration Act and submitted that, a lease in excess of one year is compulsorily registrable. The parties not being executed any formal lease and registered the same, in view of Biswabani Pvt. Ltd. (supra), the relationship between the parties has to be treated as a monthly tenancy. Relying upon Pieco Electronics and Electricals Ltd. (supra) he has 8 submitted that, no ejectment can be made on the basis of determination of clause in a registered deed. He has pointed out that, no eviction proceedings are pending against Krishna Mineral Industries under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 or under any law. He has referred to the land policy and submitted that, such land policy cannot be resorted to in levying charges which has not been fixed and published under Section 49 read with Section 50C of the Major Port Trust Act. Even if the land policy is applicable, then also, Clauses 6.2.2.2(e) and 6.2.2.3(g) are not attracted as, the lease of the tenancy has not expired or determined. According to him, the expression "lease" would mean a validly executed lease with compliance of Section 107 of the Transfer of Property Act, 1881 and Section 17(1)(d) of the Registration Act.
Learned Advocate appearing for Krishna Mineral Industries has submitted that, the points urged by the petitioners are points of law and can be urged even in absence of pleadings. He has relied upon All India Reporter 1965 Supreme Court page 1578 (Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras & Anr.), 2015 Volume 7 Supreme Court Cases 561 (Ariane Orgachem Pvt. Ltd. v. Wyeth Employees Union & Ors.), 2000 Volume 6 9 Supreme Court Cases page 348 (Food Inspector, Ernakulam & Anr. v. P.S. Sreenivasa Shenoy) in support of his contentions.
Learned Senior Advocate appearing for KoPT has submitted that, Cossipore Commercial Society did not make out a case of monthly tenancy by the writ petition. He has referred to the averments made in the writ petition and submitted that, Cossipore Commercial Society and KoPT had proceeded on the basis that, there was a subsisting lease between the parties. Neither of the parties therefore, should be allowed to run a case contrary to that which the parties worked under, contemporaneously. He has submitted that, the submissions advanced on behalf of the Cossipore Commercial Society in the writ petition, does not appear from the pleadings made in the writ petition. The parties must be confined to the pleadings. They cannot have a case contrary thereto. He has relied upon All India Reporter 2007 Supreme Court 1917 (Gedala Satchidananda Murthy v. Dy. Commissioner, Endowments Department, A.P. & Ors.), 2016 EWCA Civ 160 (Bristol Rovers (1883) Ltd. v. Sainsbury's Supermarkets Ltd.), 2008 Volume 17 Supreme Court Cases page 491 (Bachhaj Nahar v. Nilima Mandal & Anr.) and 2012 Volume 8 Supreme Court Cases page 148 (Union of India v. Ibrahim Uddin & Anr.) in support of such contentions.10
Relying upon All India Reporter 1921 Lahore 64 (Banarsi Das v. Bul Chand) and 2005 Volume 11 Supreme Court Cases page 279 (Charanjit Lal Mehra & Ors. v. Kamal Saroj Mahajan & Ors.), learned Senior Advocate appearing for KoPT has submitted that, the admissions made in the pleadings are required to be considered. In view of the admissions in the writ petition, that, the relationship between Cossipore Commercial Society and KoPT is that of a lessor and lessee, Cossipore Commercial Society cannot be allowed to run a case contrary thereto. He has also relied upon the principle of estoppel by contract. He has relied upon 489 F.3D 636 (John R. LOZANO and Susie Lozano v. OCWEN FEDERAL BANK, FSB) and 2008 Volume 110 Bombay Law Report 3204 (Friends Cooperative Housing Society Limited and Ors. v. The Nagpur Improvement Trust and Ors.) in support of his contentions.
Learned Senior Advocate appearing for KoPT has submitted that, mere acceptance of rent by KoPT subsequent to the expiry of the period of lease, by itself does not create a fresh tenancy. There has to be an overt act on the part of KoPT in treating the writ petitioners as tenants. KoPT has not done so in the facts of the present case. In support of his contentions he has relied upon 2006 Volume 4 Supreme Court Cases page 205 (Sarup Singh Gupta v. S. Jagdish Singh & Ors.). 11
Referring to the provisions of the Transfer of Property Act, learned Senior Advocate appearing for KoPT has submitted that, the provisions of Section 106 of the Transfer of Property Act does not apply in view of Section 111 of the Major Port Trust Act, 1963. According to him, letting out a property belonging to a Major Port Trust such as KoPT is governed by the provisions of Sections 29, 34, 49 and 111 of the Act of 1963. He has relied upon 2012 Volume 12 Supreme Court Cases page 573 (Cantonment Board & Anr. v. Church of North India) in support of such contentions.
Referring to the notification dated March 2, 2011 of TAMP, learned Senior Advocate appearing for KoPT has submitted that, such notification allows KoPT to seek compensation for wrongful use and occupation. The rates for such compensation have been provided in such notification. The bills raised by KoPT are in accordance with such notification. Cossipore Commercial Society therefore is liable to pay at the rates at which the bills have been raised. He has also referred to the Land Policy of KoPT and submitted that, such Land Policy allows KoPT to levy penalty. Therefore, the bills of KoPT raised on Cossipore Commercial Society cannot be faulted.
In reply, learned Advocates appearing for Cossipore Commercial Society and Krishna Mineral Industries have distinguished the ratio of 12 the judgments relied upon by the learned Senior Advocate appearing for KoPT. According to them, Cossipore Commercial Society and Krishna Mineral Industries are monthly tenants. Such tenants having paid the monthly rents in respect of the plots of lands as directed by the interim order appropriate reliefs be granted to the tenants.
Both Cossipore Commercial Society and Krishna Mineral Industries are in possession of immovable properties belonging to KoPT. Cossipore Commercial Society and Krishna Mineral Industries claim monthly tenancy. KoPT claims that the relationship between the parties are that of lessor and lessees.
KoPT has not produced any lease deed, duly registered, existing between KoPT and Cossipore Commercial Society or Krishna Mineral Industries. There are exchange of correspondence between Cossipore Commercial Society and Krishna Mineral Industries on one part and KoPT on the other part. There is a letter dated September 21, 1990 issued by the Land Manager of KoPT to Cossipore Commercial Society. There is also a letter dated January 10, 1991 issued by the Land Manager of KoPT in favour of Krishna Mineral Industries. Such letters contemplate a lease that would be entered into parties. However, none of the parties entered into any lease nor have they executed or registered any lease deed.
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According to the KoPT the lease was for a period of 20 years and upon expiry of such period of lease KoPT is entitled to charge compensation on the failure of the lessees to vacate the leasehold properties. According to Cossipore Commercial Society and Krishna Mineral Industries, since, the relationship between them and KoPT is one of monthly tenancy, the question of expiry of the period of lease does not arise and therefore, KoPT is not entitled to charge any compensation for the alleged failure to vacate the leasehold property. There being no lease, in the eye of law, the question of Cossipore Commercial Society or Krishna Mineral Industries vacating the same does not arise. Consequently, compensation charges cannot be levied.
In the facts of the present case therefore, the status and nature of possession of Cossipore Commercial Society and Krishna Mineral Industries is required to be determined first. Whether or not KoPT was right in charging compensation on the alleged failure of Cossipore Commercial Society and Krishna Mineral Industries to vacate the properties on expiry of the period of lease, will depend upon the answer to the finding with regard to the status and nature of possession of Cossipore Commercial Society and Krishna Mineral Industries at such properties.
Section 107 of the Transfer of Property Act, 1882 is as follows:- 14
"107. Leases how made - A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
Sections 17(1)(d) and Section 49 of the Registration Act, 1908 are as follows:-
"17. Documents of which registration is compulsory-
1......
(d) leases of immovable property from year to year or from any term exceeding one year of reserving a yearly rent;
49. Effect of non-registration of documents required to be registered.--No document required by section 17 or by 15 any provision of the Transfer of Property Act, 1882, to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument." Biswabani Pvt. Ltd. (supra) has held, following the Privy Council in All India Reporter 1931 PC 79 (Asif v. Jodunath) that, if an indenture of lease is compulsorily registrable under Section 107 of the Transfer of Property Act, 1882, if not so made, is void altogether. If the landlord accepts rent from the person in possession of such void lease, then an inference of tenancy would follow. It has also held that, though an unregistered lease is void as a permanent lease, it can be deemed to be a monthly lease terminable by 15 days' notice.
As noted above, there does not exist any deed of lease duly registered between Cossipore Commercial Society and Krishna Mineral Industries on one part and KoPT on the other. In fact, there is no deed of 16 lease between the parties. There exist letters of the Land Manager of KoPT as noted above.
The nature of lease, contemplated to be entered into between the parties, in the facts of the present case, is such that the same is compulsorily registrable under the provisions of Section 107 of the Transfer of Property Act, 1882 read with Section 17(1)(d) of the Registration Act, 1908. A duly registered deed of lease being absent, the relationship between Cossipore Commercial Society and Krishna Mineral Industries on one part and KoPT on the other part is therefore one of tenancy. Since KoPT has been accepting rent month by month from Cossipore Commercial Society and Krishna Mineral Industries, the relationship between the parties, in the facts of the present case, has to be inferred and construed to be one of monthly tenancy. Law mandates that the relationship between the writ petitioners and KoPT to be one of monthly tenancy.
Pieco Electronics and Electricals Ltd. (supra) has held that, a lessor cannot ask for ejectment of the lessee solely on the basis of the duration clause in the unregistered deed of lease. The unregistered deed at best be looked into for ascertaining the commencement of possession, rate of rent or similar other possessions which are collateral to the principal transactions.17
None of the parties have produced any materials on record to suggest that, KoPT had determined the monthly tenancy by any notice to quit issued under the provisions of the Transfer of Property Act, 1882 or under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 or otherwise, at any point of time prior to filing of the writ petition or even on the date of the conclusion of the hearing of the writ petitions. The monthly tenancies therefore being continuing, KoPT could not have charged compensation rates upon Cossipore Commercial Society or Krishna Mineral Industries after expiry of 20 years from the date of the initial grant of possession. Compensation charges are payable once the tenancies stand determined, in accordance with law.
It has been contended on behalf of KoPT that, the writ petitioners cannot take a stand contrary to its pleadings. They cannot also take a stand, which has not been taken contemporaneously. According to KoPT, the parties acted on the basis that, there was a valid lease between themselves. With respect, the pleadings in the writ petition and the correspondence exchanged contemporaneously between the parties, do not demonstrate that, the writ petitioners claim themselves to be lessees consistently. In the writ petitions the word lease has been frequently used to describe the relationship. In the affidavit in reply and some of the letters of the writ petitioners used the word tenancy and 18 monthly rent so as to denote a monthly tenancy between the parties. In any event, the rival claims, as all claims, have to be understood in the context of the law applicable. The parties cannot be allowed to take a stand which is not permitted by law. An unregistered deed of lease is void by virtue of the ratio laid down in Biswabani Pvt. Ltd. (supra). Even if, the parties acted contemporaneously on the basis of a lease, then also their actions on the basis of a void document are non est to the extent that the law does not recognise the same. If the contentions of KoPT are accepted, then there would a lease of 20 years between the parties without a registered lease deed. Law mandates that the relationship to be treated as a monthly tenancy as the lease is void due to non-registration.
Banarsi Das (supra) has been considered in the context of the pleadings of the parties. There, the terms of the lease set out in the plaint were admitted by the defendant in the written statement. In view of such admission, it was held that, it was unnecessary for the plaintiff to produce in evidence the document, the admissibility of which was impugned. The defendant in that suit, asserted that, after expiry of the initial period of one year of the lease, the parties entered into a fresh agreement allowing the defendant to remain in possession for another 19 year. It has held that, it was the duty of the defendant to establish the new agreement. The facts of the present case are different.
Charanjit Lal Mehra & Ors. (supra) has considered an application for judgment on admission. In the facts of that case, the Court found that there was a clear admission on behalf of the defendants that there existed a relationship of landlord and tenant and also the claim of the rent. Here, the writ petitioners cannot be said to have admitted that, there existed a registered deed of lease between the parties. Even if they had made such an admission, the reality is otherwise. A Court cannot be asked to adjudicate the rights of the parties on the basis of facts which are incorrect. There is no registered lease between the parties.
Gedala Satchidananda Murthy (supra) in the facts of that case, has found the admissions made on the part of the pleadings to be relevant for determining the issues raised. It has considered the rule of estoppel and has held that, in the facts of that case, such rule stands attracted. Bristol Rovers (1883) Ltd. (supra) has considered the requirements of an estoppel by convention. It has held that, where the parties to a transaction proceed on the basis of an underlying admission, either of fact or law, whether due to misrepresentation or mistake, makes no difference on which they have transacted the 20 dealings between them. Neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it the Courts will give the other side remedy as the case demands. In the present case, as noted above, the writ petitioners have claimed tenancies under KoPT. They have not held out to be lessees consistently for the issue of estoppel to apply. Ibrahim Uddin And Another (supra) has held that, relief not founded on the pleadings cannot be granted. In the facts of the present case, there is a claim of tenancy at least in the affidavit-in-reply and in the letters exchanged between the parties. It cannot be said that, the claim of tenancy, is absent in the pleadings. Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi (supra) has held that, even if a plea has not been raised in the petition but specifically taken in the affidavit- in-reply, the same has to be taken note of by the High Court in dealing with the merits of the matter.
John R. Lozano and Susie Lozano (supra) has held that, Lozanos made representations in a binding contract and did not allow them to take a position inconsistent with those representations. It has considered estoppel by contract also known as quasi estoppel which forbids a party to a contract from taking a position inconsistent with the term of the contract when that position prejudices another. It has 21 noticed the case law on the subject and found that, the doctrine of quasi estoppel applies when it would be unconscionable to allow a person to maintain a position inconsistent with the one which he accepted a benefit. The doctrine forbids the party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects. In the facts of the present case, the relationship between the parties must be one which is recognised in law. Pleadings of the parties and the admissions, if any, made therein will take the contour that law permits. Assuming that the parties claim that there is a lease existing between them, such lease must be registered, in accordance with law, for it to be valid in view of the ratio of Biswabani Pvt. Ltd. (supra). Applying the ratio of Biswabani Pvt. Ltd. (supra), in the facts of the present case, the lease between the parties is void. Save and except the parameters which are noted in Pieco Electronics and Electricals Ltd. (supra), such a void lease, cannot be looked into for the purpose of determining the relationship between the parties to such lease. Assuming that there are admissions of the writ petitioners attracting the doctrine of estoppel, in the facts of the present case, the same will lead the Court to hold that there exists a valid lease enforceable in law between the parties. Biswabani Pvt. Ltd. (supra) says that, the leases between the parties 22 are void. The doctrine of quasi estoppel does not apply to the facts of the present case.
Friends Cooperative Housing Society Limited and Ors. (supra) has considered a number of writ petitions. It has considered a lay out plan for development of land and an agreement entered into between a society and Nagpur Improvement Trust. It has held that, a person in breach of an agreement is not entitled to any equitable relief. Sarup Singh Gupta (supra) has considered Section 113 of the Transfer of Property Act, 1882. It has held that, in a given case, a notice issued under Section 111(h) may be treated as having been waived, but the necessary condition is that, there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. The express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted cannot be determinative. KoPT has relied upon Sarup Singh Gupta (supra) in support of the contention that, the receipt of rent subsequent to the expiry of the lease does not create any 23 additional right in favour of the occupants. In the present case, the petitioners are not claiming any further right. They say that, their tenancies still subsist with KoPT not determining the tenancies in accordance with law. Therefore, they are not obliged to pay rent at compensatory charges.
Shangrila Food Products Ltd. & Anr. (supra) has held that, a jurisdiction to be adjust unauthorised occupant if such person being made liable to pay damages under Section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. In the facts of the present case, the provisions of the Act of 1971 have not been invoked against any of the writ petitioners.
Ariane Orgachem Pvt. Ltd. (supra) has held that, a new plea can be allowed to be taken in a petition under Article 136 of the Constitution of India when such a plea is a pure question of law for which no enquiry or proof is required. It can be raised at any stage. Food Inspector, Ernakulam & Anr. (supra) has dealt with a proceedings under the provisions of the Prevention of Food Adulteration Act, 1954.
Bachhaj Nahar (supra) has considered a situation where a new case has been made out in the second appeal. It has held that, in absence of pleadings and an opportunity to deny such claim, the High 24 Court could not have granted the relief as prayed for by the plaintiff. It has held that, without affording an opportunity of hearing to the defendant, no amount of evidence can be looked into to grant any relief. Cantonment Board & Anr. (supra) has held that, the defect with respect to lack of inherent jurisdiction is basic and fundamental and that, the validity of such an order can be challenged at any stage, even in execution or in collateral proceedings.
Since, the tenancies of the writ petitioners' having been determined, and they are continuing as tenants, there is no necessity to enter into the arena as to whether, the provisions of Section 106 of the Transfer of Property Act, 1882 does not apply in view of Section 111 of the Major Port Trust Act, 1963 or whether, the notification dated March 2, 2011 of TAMP has been issued in accordance with law or not.
The writ petitioners being tenants and their tenancies not having been determined in accordance with law, the levy of compensation charges on the writ petitioners are bad in law. All such levies are quashed. The accounts between the parties be reworked so as to reflect the writ petitioners as tenants. If there are any outstandings in such context, KoPT authorities are at liberty to proceed against the writ petitioners in accordance with law. This judgment and order will also not 25 prevent KoPT authorities from taking suitable measures against the writ petitioners or any of them as they may be entitled to in law.
W.P. No. 771 of 2012, W.P. No. 871 of 2012 and W.P. No. 914 of 2012 are disposed of accordingly.
[DEBANGSU BASAK, J.]