Calcutta High Court (Appellete Side)
Bengal Bonded Warehouse Limited & Anr vs Board Of Trustees For The Port Of Kolkata ... on 5 April, 2018
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Harish Tandon.
WP 29685 (W) of 2016
Bengal Bonded Warehouse Limited & Anr.
v.
Board of Trustees for the Port of Kolkata & Ors.
For the Petitioner : Mr. Partha Sarathi Sengupta, Senior Advocate
Mr. Shymal Sarkar, Senior Advocate
Mr. Sankarshan Sarkar, Advocate
Mr. Saptarshi Mukherjee, Advocate
For Private Respondents : Mr. R.N. Das, Senior Advocate
Mr. D.P. Datta, Advocate Mr. K.C. Das, Advocate For the Respondents : Mr. Abhrajit Mitra, Senior Advocate Mr. Ashok Kumar Jana, Advocate Judgment on : April 5, 2018 The Court:- Several relief are sought in the instant writ-petition but primarily a prayer for issuance of mandamus has been sought for commanding the respondent authorities to take steps under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 for execution of the order of eviction passed by the Estate Officer on May 28, 2005.
The pleadings unfurled would reveal that the petitioner no. 1 who was previously known as Bengal Bonded Warehouse Association was granted license in respect of plot of land situated at Sonai 'D' Block being Plot No. G.R. 16/1-D, Sonai measuring about 9190.33 square meter having actual measurement of 8943.87 square meter on the basis of a letter dated August 7, 1979. Subsequently, a notice to quit was issued upon the petitioner no. 1 on January 22, 1993 terminating the grant on the grounds enumerated therein. The said notice was challenged by way of a writ-petition before this court and was disposed of by an order dated February 17, 1993 directing the respondent authorities to evict the said petitioner without recourse to law. It was, however, made clear therein that all points taken in the writ-petition were kept open, if taken, to be decided by the appropriate forum.
A fire broke out on January 1, 1995 resulting into the destruction of all records and papers. The Estate Officer issued show cause notice dated November 30, 2004 under Section 4 of the said Act alleging that the petitioner is an authorized occupant. A plea was taken by the said petitioner that since the relevant papers and documents had been destroyed by such devastating fire which broke out on January 1, 1995, unless the documents are provided to it, it is not possible to file reply to the said show cause.
A writ-petition was, thereafter, filed being CO 13975 (W) of 1995 which was disposed of on July 17, 1995 restraining the respondent authorities from taking possession and/or interfering in any way in respect of plots in question without initiating proper proceeding in accordance with law. It was further indicated that in the event the said petitioner prayed for the inspection of the original documents, such inspection shall be given and the authority should also supply the copies thereof. The case pleaded in the writ-petition further proceeds that one Keshab Adhikary Chhetri who is carrying on a business as proprietor in the name and style "Chhetri Enterprises" was allowed to store empty containers in the said warehouse/land without creating any right either of a tenant or sub-tenant in relation thereto. The Estate Officer passed an ex parte order on May 28, 2005 directing the eviction of the said petitioner from the disputed plots of land.
The said petitioner challenged the said order of the Estate Officer in an appeal being P.P. Appeal No. 9 of 2008 before the learned District Judge, Alipore. The said appeal was subsequently withdrawn by the petitioner no. 1 on the pretext that it has surrendered the said tenancy unto and in favour of the respondent no. 1.
Thereafter, a circular was issued by the respondent no. 1 restraining the said Chettri Enterprises from storing empty containers in the dock. Pursuant to the same, the petitioner no. 1 requested the said concern to remove all empty containers stored in the subject warehouse/land which prompted the said concern to file Title Suit No. 20196 of 2012 praying for declaration that it cannot be ousted from the said property by force or unlawful means.
An order of injunction was passed on September 5, 2013 restraining the petitioner no. 1 from interfering with its possession without recourse to law. The appeal filed by the petitioner no. 1 was dismissed and the revisional application being CO 3531 of 2016 achieved the same result as a consequence whereof the said order of injunction attained finality.
Subsequently, the respondent no. 1 published a notice in the daily newspaper "The Telegraph" on April 30, 2016 intimating that unauthorized occupants shall be charged compensation fees on three times the schedule rates after expiry of three months therefrom. It is thus contended that the said concern is liable to pay the charges for storing containers in the said warehouse/land as the petitioner no. 1 has already surrendered his tenancy in favour of respondent no. 1 long back. Since the respondent no. 1 was contemplating to charge compensation fees three times the schedule rate of rent, an approach was made to the respondent no. 3, the Estate Manager, Kolkata Port Trust for amicable settlement.
A consensus was arrived, whereby the petitioner was liable to pay a sum of Rs.2.67 crore at a time and to surrender the tenancy on/ or before July 31, 2016. Apropos the said assurance/consensus, the petitioner no. 1 issued a letter dated July 29, 2016 and offered surrender of the said plot and further enclosed a cheque bearing no. 888750 dated July 30, 2016 for a sum of Rs.2,67,74,867/- after deducting the tax deducted at source amounting to Rs.18,30,929/- which was duly accepted by the respondent no. 1 upon encashment thereof.
It is alleged that the respondent no. 1 resiled from the said consensus and issued a letter dated August 5, 2016 demanding the copy of the order of injunction passed in the said Title Suit filed by the said concern and further demanded the compensation or occupational charges in terms of the said publication dated April 30, 2016 till the date of handing over the vacant and unencumbered possession. The petitioner replied the said letter and took a stand that the respondent no. 1 being a party to the said suit is not bound by the order of injunction and made further request to proceed to recover the possession. In other words, the petitioner no. 1 wanted to convey the respondent no. 1 that there is no fetter on their part to proceed in accordance with law to recover possession in execution of an order of eviction passed by the Estate Officer under Section 5 of the said Act.
It is specific stand of the Kolkata Port Trust that the petitioner failed to hand over the vacant and khas possession of the disputed warehouse/land and, therefore, obliged to pay the compensation charges in terms of the said publication. It is further contended that the said order of injunction may stand in the way of proceeding with execution of the order or injunction passed by the Estate Officer irrespective of the fact that the said respondent is not party to the said suit.
As indicated in the opening paragraph hereinbefore, several relief are sought in the instant writ-petition pertaining not only to a direction upon the Kolkata Port Trust to implement and execute the order of eviction passed by the Estate Officer but the imposition of liability to pay the compensation fees at such astronomical rate which is opposed to the provisions contained in Major Port Trust Act.
The parties addressed the court on these issues and in the midst of the hearing the Kolkata Port Trust produced the letter by which it has decided to execute and implement the order of injunction passed by the Estate Officer. Since the principal relief claimed in the writ-petition becomes obliterated because of the stand taken by the Kolkata Port Trust to execute and implement the order of eviction passed by the Estate Officer, the points urged before this court become academic and need not be addressed any further.
This court hastened to add that the tenet of the order of injunction, if construed in proper manner, does not stand in the way of any action taken strictly in conformity with the law. The order of injunction is relatable to an action, which is not recognized in the Act, and, therefore, there is no impediment on the part of the authority to proceed in conformity with the law. The law is more or less settled that the person who derives title through the tenant need not be impleaded as a party in a proceeding for eviction and shall be bound by the order of eviction. The reference can be made to a judgment of the Supreme Court in case of Rupchand Gupta Vs. Raghuvanshi (Private) Ltd., And Another reported in AIR 1964 SC 1889 wherein it is held:-
12. Taking the last action first viz. Raghuvanshi's omission to implead the appellant, it is quite clear that the law does not require that the sub-
lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. ` It is no longer res integra that if the head lease goes, it annuls all the sub-leases as held in Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor & Ors. reported in (1988) 3 SCC 44 in these words:-
12. In Rupchand Gupta v. Raghuvanshi (Pvt.) Ltd. (AIR 1964 SC 1889), it was held by this Court that it is quite clear that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. This Court reiterated that in all cases where the landlord instituted a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This Court noted at page 1892 of the report that this might act harshly on the sub-lessee; but this was a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. There is no allegation of any collusion between the lessee and the respondent.
The said principles had been reiterated in case of Suresh Chand jain Vs. Third Additional District Judge, Mathura & Ors. reported in (2001) 10 SCC 508 in the following:-
6. We have heard learned counsel for the respondents and we find the argument raised is well substantiated. From the facts narrated above, it is clear that so far as the tenant Sardar Pritam Singh was concerned, the decree for ejectment against him attained finality. The sub-tenant did not have any independent right or (sic) to raise any objection before the executing court. The sub-tenants were legally bound by the orders passed against the main tenant particularly when the ejectment decree against the main tenant became final and his objection before the executing court was rejected by the Additional District Judge and upheld by the High Court. Further, we find that the sub-tenants in their objection have not pleaded any right independent to the rights of the main tenant, namely, that the ejectment decree passed by the Small Cause Court is a nullity and that they were not parties to the eviction suit. Under such circumstances the High Court was not right in allowing the writ petition filed by the sub-tenants. We, accordingly set aside the order and judgment of the High Court dated 17-04-1997 and restore that of the Additional District Judge, Mathura dated 17-2-1986 (sic). The appeal is allowed but there will be no order as to costs.
The expression "due process of law" has been succinctly described and discussed in case of Maria Margarida Sequeira Fernandes And Others Vs. Erasmo Jack De Sequeira (Dead) through Lrs. reported in (2012) 5 SCC 370:-
79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.
80. The High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (2006) 88 DRJ 545 held as under: (DRJ p. 566, para 28) "28.The expression 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
It is axiomatic to record that though the respondent no. 1 herein is not a party to the said suit yet he is aware of the said order of injunction and may, therefore, thought not to proceed with the recovery of possession as they may be exposed for violation thereof. The nature of the order does not stand in the way of respondent no. 1 inasmuch as the civil court was conscious that a person who is in possession cannot be dispossessed without due process of law. Since the said concern derived title through the petitioner herein and it is not obligatory on the part of the owner to implead it as a party in a eviction proceeding as he is bound by any order passed therein. There is no fetter on the part of the respondent no. 1 to recover the possession under the provisions of law.
In view of the subsequent facts discerned in course of the proceeding, it is open to the respondent no. 1 to proceed to recover the possession through the process of law.
So far as the claim relating to the authority to charge compensation fees three times above the schedule rate is concerned, none of the parties could apprise the court whether any proceeding is initiated against the petitioner for recovery thereof. Any decision at such nebulous stage is not desirable as the pleas taken in the instant writ-petition are available to the petitioner to be taken in such proceeding if initiated subsequently and the authority shall be free to decide the same by recording proper reasons.
For abundant precaution it is once again made clear that such plea shall not be construed to have been decided by this court, incidentally or accidentally, in the instant proceeding and principles of res judicata shall not operate.
The writ-petition is thus disposed of. No order as to costs.
(Harish Tandon, J.)