Calcutta High Court (Appellete Side)
M/S Hiralal Chowhan & Company vs The Board Of Trust Of The Port Of Kolkata on 29 August, 2018
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon'ble Justice Sabyasachi Bhattacharyya C.O. No. 2829 of 2018 M/s Hiralal Chowhan & Company vs. The Board of Trust of the Port of Kolkata For the petitioner : Mr. Kushal Chatterjee, Mr. Surendra Kumar Sharma For the opposite party : Mr. Probal Mukherjee, Mr. Somnath Bose Hearing concluded on : 24.08.2018 Judgment on : 29.08.2018 Sabyasachi Bhattacharyya, J.:‐ The present challenge is against an order dated August 21, 2018 by which the Fourth Bench of the City Civil Court at Calcutta dismissed Miscellaneous Appeal No. 28 of 2018, thereby affirming Order No. 11 dated April 3, 2018 passed in proceeding No. 1605 of 2017 by the Estate Officer, Kolkata Port Trust, granting eviction of the petitioner under Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as "the 1971 Act").
2. There was a leave and licence agreement between the parties, by virtue of which the petitioner was in occupation of the disputed premises. The said licence agreement expired on January 31, 2017. Thereafter an application was made by the petitioner to the opposite party asking for renewal/extension of the licence in respect of the subject godown space. By a communication dated March 28, 2017, the opposite party intimated the petitioner inter alia that it had decided to grant extension of licence in respect of the said godown space. It was further stated in such communication, that the licence might be granted on the terms and conditions given therein.
3. The petitioner was requested thereby to communicate the petitioner's acceptance of the said terms and conditions and remit to the office of the opposite party the amounts as mentioned in the manner specified therein.
4. It was indicted therein that failing communication of acceptance and forward payment on the part of the petitioner within 21 days from the date of receipt of such letter, it would be presumed that the petitioner was not interested in the licence of the aforesaid space while in such event, the said 'offer letter' would automatically stand cancelled and withdrawn and the petitioner would be required to hand over vacant and unencumbered possession of the godown to the Kolkata Port Trust and pay compensation charges at the rate of three times with effect from February 1, 2017 till vacant possession of the godown was handed over to the Kolkata Port Trust.
5. By a subsequent notice dated May 3, 2017, the Kolkata Port Trust intimated the petitioner inter alia that in view of non‐acceptance of the aforementioned offer by the petitioner within the stipulated 21 days, the offer letter had expired on April 26, 2017 and hence, the said offer letter dated March 28, 2017 thereby stood cancelled and withdrawn and the petitioner was liable to pay compensation at three times for the period from February 1, 2017 to May 9, 2017 amounting to Rs. 1,36,644/‐.
6. It was further intimated in such notice that the opposite party thereby forfeited the said offer of licence and, in exercise of the option to do so, thereby determined the same and gave the petitioner notice that they would re‐enter upon the demised premises on May 10, 2017 at 11 hours. It was further notified that "all the relationship of the petitioner with the opposite party" would stand determined with effect from the said date (May 10, 2017) and the petitioner was accordingly liable to pay compensation/mesne profit and/or damages for unauthorized use and occupation of the public premises with effect from May 10, 2017 up to the date of delivery of the vacant and peaceful possession of the said premises.
7. On May 17, 2017, the opposite party applied before the Estate Officer of the Kolkata Port Trust for necessary order / orders against the present petitioner for the petitioner's eviction from the premises in question, as described in the Schedule A thereto, comprised of the godown space of about 22.2 sq. meter, situated at the ground floor on Fairlie Warehouse, Police Station:
North Port. There was also a prayer in the said application for recovery of rental dues in respect of the Schedule B premises, comprised in Plate No. CG‐290 and mesne profit/compensation/damages as described in Schedule C in respect of Plate Nos. CG 276 and CG 290.
8. Thereafter an order was passed on November 3, 2017 by the Estate Officer, Kolkata Port Trust, holding inter alia that there was no bar in proceeding under Section 4 of the 1971 Act against the present petitioner. Pursuant to such order, a notice was issued to the petitioner observing inter alia that the petitioner had failed and neglected to hand over possession of the disputed public premises to the Kolkata Port Trust after expiry of the licence on January 31, 2017 and even after issuance of notice to quit dated May 3, 2017 and that the petitioner had lost its authority whatsoever to occupy the public premises after expiry of the licence on January 31, 2017 and as such , the petitioner was a wrongful occupant of the premises in question and liable to pay compensation/damage in respect of the said premises.
9. In the same notice, the petitioner was called upon to show cause in pursuance of Section 4(1) of the 1971 Act as to why an order of eviction should not be made against the petitioner. The petitioner was also called upon to appear before the Estate Officer under Section 4(2)(b)(ii) of the 1971 Act.
10. Thereafter, upon contested hearing, the Estate Officer granted eviction of the petitioner vide Order No. 11 dated April 3, 2018, which was challenged in appeal by the petitioner, giving rise to Miscellaneous Appeal No. 28 of 2018. The said appeal was dismissed, affirming the order of eviction passed by the Estate Officer, on August 21, 2018, which is the subject‐matter of challenge in the present revision.
11. Learned counsel appearing for the petitioner submits that the licence, in the present case, was terminated not by efflux of time, but by a notice to quit dated May 3, 2017. Pointing out to the third paragraph of the said notice, learned counsel argues that the opposite party threatened to re‐enter upon the demised premises on May 10, 2017 and also notified that all the relationship of the petitioner with the opposite party would stand determined with effect from the said date, that is, May 10, 2017. Compensation was also sought from May 10, 2017.
12. As such, it is argued, although the licence admittedly expired on January 31, 2017, the notice to quit specified May 10, 2017, for all effective purposes, as the date of determination of the jural relationship between the parties. In such view of the matter, it is argued by learned counsel for the petitioner that the Kolkata Port Trust, being on the footing of State as contemplated under Article 12 of the Constitution of India, ought to have exhibited reasonableness and not determined the licence arbitrarily on the flimsy ground of non‐payment of dues of rent.
13. It is further submitted that previous correspondence between the parties clearly indicated that a reconciliation of accounts was contemplated before finalization of the licence fees payable for the premises. The communication dated March 28, 2017 even made it clear that there was consensus ad idem between the parties as to renewal of licence. It is argued that the terms and conditions stipulated therein were all conditions subsequent to the concluded contract of renewal of licence and not pre‐requisites for such renewal. As such, it is argued, the fresh, renewed licence could not have been terminated without final settlement of the accounts as to alleged arrears of dues, in particular when the petitioner categorically denied there being any arrears of licence fees.
14. In this context, learned counsel for the petitioner cites a judgment reported at AIR 1996 Cal 424 [D. Wren International Ltd. and another vs. Engineers India Ltd. and others] and a judgment of the Apex Court reported at AIR 1962 SC 378 [Jawahar Lal Burman vs. Union of India], both in support of the proposition that if there was final acceptance of offer, there was a concluded contract and conditions to be performed subsequent thereto could not obliterate the effect of such conclusion of consensus.
15. Learned counsel for the petitioner next argues that there was no appropriate formation of a preliminary opinion by the Estate Officer, which was required under Section 4 of the 1971 Act, as to the petitioner being in unauthorized occupation in respect of premises in question. In this context, learned counsel cites a judgment reported at (2008) 3 SCC 279 [New India Assurance Company Ltd. vs. Nusli Neville Wadia and another], where it was held that under the 1971 Act, the occasion would arise for multi‐level inquiry: primary inquiry will be to arrive at a conclusion on "unauthorized occupant", and intermediate inquiry would be as to the eviction of "unauthorized occupant".
16. Learned counsel for the petitioner accordingly submits that the impugned orders of both the fora below ought to be set aside, being without jurisdiction.
17. In controverting such argument, learned counsel for the opposite party argues that the communication between the parties categorically shows that the jural relationship between the parties was intended to have ended with the expiry of the licence on January 31, 2017. May 10, 2017 was only a cut‐off date for the petitioner to vacate the suit premises, pursuant to a formal notice given by the opposite party, as contemplated in Section 4 of the 1971 Act. Under no stretch of imagination, it was submitted, it could be construed that May 10, 2017 was the date of termination of the licence between the parties.
18. It is further submitted on behalf of the opposite party that, at no point of time was there a concluded contract of renewal of lease between the parties. The opposite party had only given the qualified offer of renewal, subject to the petitioner reverting back within 21 days with an acceptance and an amount of money as specified in the qualified offer. The petitioner having failed to adhere to such stipulated time, there was no renewal of licence at any point of time. As such, it is argued, the impugned orders were perfectly justified and need not be interfered with.
19. A perusal of the 'offer' to grant a renewal / extension of licence dated March 28, 2017 makes it evident that there was no concluded contract between the parties at that juncture. It was categorically stated in the said offer letter that the licence might be granted on the terms and conditions stipulated therein. Contrary to the facts of the judgments cited by the petitioner on condition subsequent, in the present case, not merely ancillary terms, but the entire terms and conditions of the proposed renewal were enumerated in the offer letter and the extension of licence was made subject to such terms and conditions, including the liquidation of outstanding licence fees of Rs. 33,756/‐ upto January, 2017 and interest of Rs. 1,572/‐ calculated as on March 27, 2017 after necessary reconciliation of accounts. There is nothing on record to show that there was acceptance on the part of the petitioner as to the quantum of such outstanding licence fees.
20. Clause i) of the letter dated March 28, 2017, issued by the Kolkata Port Trust to the petitioner, stipulated that the petitioner would be required to liquidate the outstanding licence fees and interest amount as mentioned therein, calculated as on 27.03.2017 after necessary reconciliation of accounts.
21. On the face of it, the said sentence could be construed to mean that the outstanding amount and interest had been calculated after necessary reconciliation of accounts and no prospective reconciliation was meant thereby. The conditions, of communication of the petitioner's acceptance and forward payment within 21 days from the date of receipt of the letter, and the consequent presumption, upon the petitioner failing to do so, that the petitioner was not interested in the licence, was not qualified by any prior reconciliation of accounts. As such, the defence taken by the petitioner, that it was the opposite party's fault that reconciliation could not be arrived at, does not have any basis to stand upon.
22. In view of there being no renewal of lease, the jural relationship between the parties, being that of licensor and licensee, stood automatically determined by efflux of time on January 31, 2017, which was the admitted date of expiry of the licence.
23. In such view of the matter, the petitioner had no locus standi or legal right to stay on at the said premises and was thus rendered an unauthorized occupant in respect of the said premises on and from February 2, 2017. Thus, the occupation of the petitioner became "unauthorized occupation" as envisaged in Section 2(g) of the 1971 Act. The order dated November 3, 2017 and consequent issuance of notice, by the Estate Officer, were sufficient to indicate that the Estate Officer had formed an opinion as to the petitioner's occupation being unauthorized. Such formation of opinion justified the subsequent proceedings under Section 5 of the 1971 Act.
24. As to the argument that the notice dated May 3, 2017 determined the jural relationship with effect from May 10, 2017, the same has no legs to stand upon, in view of the categorical observation in the same notice that the petitioner was liable to pay compensation for the period from February 1, 2017 to May 9, 2017. It was also specifically mentioned in such notice that the offer of renewal of licence stood cancelled and withdrawn, as such, negating any scope of holding that there was a renewal of licence. May 10, 2017 was only fixed as the date of proposed re‐entering upon the demised premises by the opposite party and the term "all your relationship" was only a loose expression, stray in nature, and had to be read with the entire tenor of the notice and other communication between the parties. It is evident from the correspondence between the parties that the petitioner became an unauthorized occupant in respect of the premises upon efflux of time by the expiry of the licence granted to the petitioner, on January 31, 2017.
25. Hence, the present revisional application does not deserve to be allowed. Accordingly, C.O. No. 2829 of 2018 is dismissed on contest, thereby affirming the orders of the fora below.
26. There will be no order as to costs.
27. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )