Calcutta High Court
Aditya Vikram Lodha vs Life Insurance Corporation Of India & ... on 22 August, 2019
Equivalent citations: AIR 2019 CALCUTTA 346, AIRONLINE 2019 CAL 534, (2020) 1 ICC 465, (2020) 2 RENTLR 459
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
WP 587 of 2017
GA 2992 of 2018
ADITYA VIKRAM LODHA
Versus
LIFE INSURANCE CORPORATION OF INDIA & ANR.
For the Petitioner : Mr. Shaktinath Mukherjee, Sr. Adv.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Sarvopriyo Mukherjee, Adv.
Mr. Pranit Bag, Adv.
Mr. S.K. Trivedi, Adv.
For the LICI : Mr. Aniruddha Chatterjee, Adv.
Mr. Kushal Chatterjee, Adv.
Mr. Mohan Lall Banerjee, Adv.
For the Proforma
Respondent : Mr. Aritra Basu, Adv.
Mr. Jasojeet Mukherjee, Adv.
Hearing is concluded on : 1st August, 2019.
Judgment On : 22nd August, 2019.
Tapabrata Chakraborty, J.
1. The present writ petition has been preferred inter alia praying for issuance of necessary direction upon the respondents to 2 allow the petitioner to remove all the movables which are lying inside the flat no.8, National Tower, 23 Loudon Street, Kolkata - 700017 (in short, the said premises).
2. Shorn of unnecessary details the facts are that the grandfather of the petitioner, namely, J.S. Lodha obtained a lease in respect of the said premises from Life Insurance Corporation of India (in short, LICI). After the death of J.S. Lodha, the lease in respect of the said premises was transferred in the name of the petitioner's grandmother, namely, Mrs. Sushila Lodha and the petitioner's father, namely, Mr. Rajendra Singh Lodha. On 3rd October, 2008 the petitioner's father expired. In the midst thereof, show cause notices were issued by The Estate Officer under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in short, the PP Act) and in the said proceedings, after the demise of Rajendra Singh Lodha, the petitioner filed an application for substitution. Such prayer for substitution was refused by an order dated 7th December, 2016. Thereafter an order of eviction and recovery of arrears of rent was passed by the Estate Officer on 21st February, 2017. Challenging the said order a writ petition being W.P.No.6453 (W) of 2017 was preferred by Sushila Lodha, being the proforma respondent herein and Harsh Vardhan Lodha. The said writ petition was allowed by a judgment dated 16th March, 2017. Aggrieved thereby, LICI and its Estate Officer preferred an appeal being MAT 554 of 2017. Upon contested hearing the said appeal was allowed by a judgment dated 3 20th July, 2017 setting aside the judgment and order dated 16th March, 2017 and dismissing the writ petition. On 1st August, 2017, the said premises was locked by the authorities of LICI. Thereafter the proforma respondent herein preferred a statutory appeal under Section 9 of the PP Act being Misc. Appeal No. 49 of 2017 challenging the order of eviction and recovery of arrears of rent passed by the Estate Officer on 21st February, 2017 and by an order dated 6th September, 2017 the prayer for stay of operation of the order dated 21st February, 2017 was refused so far it relates to the order of eviction from the premises and the order for recovery of the arrears and damages to the tune of Rs. 1,39,68,000/- was stayed subject to deposit of Rs. 1,00,000/-. The said amount was, however, not deposited with the Learned Registrar, Civil Court, Calcutta. The petitioner is not a tenant in respect of the said premises and he is presently a permanent resident of Singapore though he had resided in the said premises since his birth till the year 2014. Subsequent to issuance of the order in the statutory appeal, the petitioner issued a demand notice through his learned advocate on 15th September, 2017 asking the authorities to allow him to remove the movables from the said premises but the same was not considered and aggrieved thereby the present writ petition was filed on 18th September, 2017. In connection with the writ petition an application being G.A. 2992 of 2018 has been filed by the petitioner on 19th October, 2018 inter alia praying for a direction 4 upon the respondents to grant access to the said premises and to permit him to remove his personal belongings.
3. Mr. Shaktinath Mukherjee, learned senior advocate appearing for the petitioner submits that the movables which the petitioner wants to remove have been detailed in annexure 'P2' of the writ petition. The said movables are not fittings affixed to the said premises, being the flat in question and are neither part of the same nor are for more beneficial enjoyment of the same and the authorities have no right to dispose of the said movables left in the public premises by the occupants. In support of such contention he has drawn the attention of this Court to the definitions of premises and public premises in Section 2(c) and in Section 2(e) of the PP Act.
4. According to Mr. Mukherjee, the provisions of Section 6 of the PP Act do not confer any right of lien upon LICI and it cannot detain and sell the movables in the said premises when the petitioner has claimed the same. The provisions of Section 6 of the PP Act are not similar to the provisions of Section 83 of the Railways Act, 1989 (in short, the R Act) or the provisions of Section 59 of the Major Port Trusts Act, 1963 (in short, the MPT Act). By Section 83 of the R Act, the railway administration has been conferred the authority to detain any consignment or part thereof. Similarly in terms of Section 59 of the MPT Act lien has been conferred upon the board and it may detain and seize the goods 5 until such rates and rents are fully paid. Section 171 of the Indian Contract Act, 1872 (in short, the IC Act) confers general lien powers only upon bankers, factors, wharfingers, attorneys and policy- brokers. The provisions of the PP Act do not confer upon the Estate Officer such right of lien on or the right to detain goods lying on the public premises. In support of such argument as advanced, reliance has been placed upon a full bench decision delivered in the case of APL (India) Pvt. Ltd. & Ors. -Vs- Board of Trustees for the Port of Kolkata, reported in 2009(4) CHN 146.
5. He argues that a statutory authority can act only to the extent of its jurisdiction as conferred by the statutory provisions. Under Section 6 of the PP Act the Estate Officer only has the authority to dispose of by public auction any property left and remaining on public premises by the concerned occupants. The Estate Officer does not have any right to detain such movables when the same have been specifically claimed by the petitioner. Such action, in fact, infringes the petitioner's right to property. Such movables lying in the premises from which one has been evicted can be attached in a proceeding towards execution of a decree in terms of the provisions of Order 21 Rules 44 to 58 of the Code of Civil Procedure (in short, CPC) or in application of the provisions towards attachment before judgment in terms of Order 38 of CPC.
66. He argues that expropriatory legislation, as is well-known, must be given a strict construction and as such that the provisions of Section 6 of the PP Act need to be strictly construed. LICI has no title over the said movables. Without adjudication, LICI cannot touch the movables which belong to the petitioner and which the petitioner has claimed. The Estate Officer has also not been conferred any adjudicatory jurisdiction to decide any dispute pertaining to ownership of the movables. In view thereof, the petitioner should be returned the movables. In support of such contention reliance has been placed upon the judgment delivered in the case of Chairman, Indore Vikas Pradhikaran vs Chairman, Indore Vikas Pradhikaran, reported in (2007) 8 SCC 705 and in the case of Shri Surendra Kumar Ray Chowdhury vs Shri Surendra Kumar Ray Chowdhury, reported in 1985 (1) CLJ 332.
7. Mr. Chatterjee, learned advocate appearing for LICI denies the contention of the petitioner and submits that the writ petition was filed on 18th September, 2017 after issuance of a demand notice three days prior thereto on 15th September, 2017 and the authorities have not been able to take any step after the writ petition was filed. No notice in terms of Section 6 of the said PP Act could be issued and authority as conferred by the provisions of the PP Act has not even been exercised. There has been no declaration by the tenant that she wants back the movables left in the said flat. The petitioner is also not the tenant in respect of the concerned premises and was not even a party to the eviction proceedings. No 7 legal right of the petitioner has been infringed warranting interference of this Court.
8. He contends that in the appeal preferred by the proforma respondent herein under Section 9 of the PP Act being Misc. Appeal No. 49 of 2017 praying for stay of operation of the order dated 21st February, 2017 was refused so far it relates to the eviction from the premises and the order for recovery of the arrears and damages to the tune of Rs. 1,39,68,000/- was stayed subject to deposit of Rs. 1,00,000/-. The said order was passed on 6th September, 2017 and the amount as directed was not deposited with the Learned Registrar, Civil Court, Calcutta. Within nine days thereafter the demand notice was issued on 15th September, 2017 and the writ petition was filed three days thereafter. After the tenant suffered an order of eviction and failed to obtain an order of stay from the Appellate Court and when admittedly a huge amount is due and payable to LICI, the petitioner's grandson had approached the Court with the present writ petition. From such sequence of facts, an apparent collusion between the petitioner and the tenant is evident.
9. Mr. Saha, learned advocate appearing for the proforma respondent submits that the movables remaining in the said premises do not belong to the proforma respondent.
10. In the present case, the fact that the petitioner is not a tenant of the premises cannot be called into question. This assertion is supported by the fact that subsequent to the demise of 8 the petitioner's father, the petitioner's application for substitution as the lessee was refused by the Estate Officer by an order dated 7th December, 2016 and the said order was accepted by the petitioner. It has been submitted by the learned advocate appearing for the proforma respondent that the goods, as stated in the list annexed to the writ petition at page 14, do not belong to her though in paragraph 8 of the writ petition it has been stated by the petitioner that the movables in the said premises belong to the petitioner and his family and his brother Harsh Varhan Lodha and his family.
11. It is important to note that the MPT Act and the PP Act are independent Acts and their respective provisions apply to specific and differing circumstances. Section 59 of the MPT Act cannot be deemed to be similar to Section 6 of the PP Act. Section 6 of the PP Act must be read and interpreted on its own. It is not dependent upon Sections 59 and 61 of the MPT Act. The provisions of the PP Act authorises the Estate Officer to dispose of goods lying on the public premises for realization of arrears of rent irrespective of the fact as to whether the owner of the said goods had any privity of contract with LICI.
12. It is well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. The judgment in the case of Chairman, Indore Vikas Pradhikaran vs 9 Chairman, Indore Vikas Pradhikaran, reported in (2007) 8 SCC 705 was delivered interpreting the provisions of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam and balancing two competing interests, viz., one, the interest of the State and, two, to have better living conditions and the right of property of an individual. The same is thus distinguishable in facts.
13. The judgment delivered in the matter of APL (India) Pvt. Ltd. v. Board of Trustees for the Port of Kolkata 2009 (4) CHN 146, mainly dealt with the interpretation of the provisions under Section 59 of the MPT Act. In the said judgment, it was stated that the right of lien can be exercised by the board over goods in respect of which rent is payable until the time such rent is realised but not over the goods of a third party. Challenging the said judgment, the Board of Trustees for the Port of Calcutta and Others preferred an appeal and in the judgment delivered by the Hon'ble Supreme Court, reported in 2019 SCC Online SC 249 it was inter alia observed in paragraphs 23 and 24 as follows:
"23. As noticed above, the proceeding initiated in Canoro Resources was under the PP Act. Therefore, it was not necessary for the Division Bench to read Sections 59 and 61 of the MPT Act into the proceeding initiated under the PP Act. The Full Bench, in our view, was justified in holding that those observations were, at best, obiter dicta. The Full Bench was also justified in holding that there is no 10 conflict between the two judgments of the Division Bench in Indian Rayon and Canoro Resources.
24. In the instant case, the contention urged on behalf of the Port Trust is that even if the goods belonging to the third parties are found lying on the premises after an order of eviction passed under Section 5, it was entitled to sell the goods and deduct from the sale proceeds any amount due to the Port Trust on account of arrears of rent or damages, etc and that the balance of the sale proceeds shall be paid to such person or persons, as may appear to the Estate Officer, to be entitled for the same. We are in complete agreement with this submission made on behalf of the Port Trust. We are of the view that Section 6 of the PP Act has been enacted with obvious purpose of enabling statutory authorities to take all consequential steps after receiving possession of public premises and for recovery of dues, etc. The said provision ought not to be interpreted in a way which defeats the very purpose of its enactment. Section 6 of the PP Act must be read independent of, and not dependant on, Sections 59 and 61 of the MPT Act. As noticed above, Section 6 of the PP Act applies, inter alia, to the persons who keep their goods in the public premises whether they are tenants/licensees, sub−tenants or any other parties. The Estate Officer, under Section 6 of the PP Act, is entitled to sell the goods even of a stranger, found in/on the premises under unauthorized occupation".11
14. It has thus been categorically held that the provisions of the PP Act authorises the Estate Officer to dispose of goods lying on the public premises. It is immaterial whether the said goods belong to the erstwhile tenant/licensee or any other party. It is also not necessary that there should be a privity of contract between LICI and the third party to whom such goods and materials belong. The said judgment is binding upon this Court.
15. Applying such proposition of law to the facts of this case, this Court is unable to grant the reliefs, as prayed for. The writ petition and the connected application are, accordingly, dismissed.
16. There shall, however, be no order as to costs.
17. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.)