Calcutta High Court
Pathardih Engineering Works vs Board Of Trustees For The Port Of Cal on 16 March, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
W.P. No. 1836 of 1999
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
PATHARDIH ENGINEERING WORKS
Versus
BOARD OF TRUSTEES FOR THE PORT OF CAL
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date: 16th March, 2016.
Appearance:
Mr. Mainak Bose, Adv.
Mr. Aritra Basu, Adv.
M.M. Chandra, Adv.
... for the petitioner
Mr. Ashok Kumar Jena, Adv.
... for the respondent
The Court: The petitioner has challenged the efforts by the Port Trust to recover damages in respect of a property and possession of such property from the petitioner on the allegation that the petitioner continues to remain in unauthorised occupation of such property belonging to the Kolkata Port Trust.
It is submitted on behalf of the petitioner that, the petitioner had made over actual physical possession of the property on April 30, 1985 to the Kolkata Port Trust authorities. The petitioner is not liable for any occupancy charges with effect from May 1, 1985. The so-called recovery proceeding is bad in law. 2
The Kolkata Port Trust authorities are represented. It is submitted on behalf of the Kolkata Port Trust authorities that, the petitioner continues to remain in occupation from April 30, 1985. The Kolkata Port Trust authorities did not receive possession on April 30, 1985. Consequently, the proceedings to recover damages are valid.
I have considered the rival contentions of the parties and the materials made available on record.
Upon the writ petition being moved, by an interim order dated August 19, 1999 the Court had allowed the Kolkata Port Trust authorities liberty to take possession of the premises in question. They were restrained from taking any steps in respect of the proceedings for recovery of damages against the petitioner.
In course of hearing of the writ petition, I had inquired as to in whose possession the property concerned was lying. Initially, it was claimed on behalf of the Kolkata Port Trust that, the writ petitioner was still in possession. The petitioner had vehemently denied being in possession. In such circumstances I had required the Kolkata Port Trust authorities to make a physical verification as to the occupancy of the property concerned. After such inspection being made, Kolkata Port Trust authorities had reported that the property was in the possession of another person and that such person had filed a Title Suit in Alipore Court and had obtained an order of status quo in respect of such property.
The Kolkata Port Trust authorities had subsequently found out that, the order of status quo passed in the Title Suit stood vacated by virtue of the Title 3 Suit itself being dismissed for default in 2011. The Kolkata Port Trust authorities were not aware of such fact of dismissal of the suit initially in view of the learned advocate entrusted to defend such suit at the instance of the Kolkata Port Trust authorities was unwell. Immediately upon coming to know of such fact on March 9, 2016, the Kolkata Port Trust authorities had taken actual physical possession of such property. The property is now in the actual physical possession of the Kolkata Port Trust authorities.
The petitioner claims to have made over possession on April 30, 1985 by a writing of such date. In support of such contention, petitioner has relied upon a writing dated March 23, 1993. These letters have been pleaded in paragraph 10 of the writ petition. The Kolkata Port Trust authorities have not specifically denied the factum of receipt of possession on April 30, 1985. More over, in the eviction proceeding the petitioner has filed a written objection in which it has taken a similar stand. The Estate Officer has passed an order of eviction dated June 28, 1999 without ascertaining the actual state of affairs of the possession of the property for enquiry as to possession would have disclosed the persons in possession. The Estate Officer did not embark upon such exercise. Such exercise was imperative in view of the stand taken by the petitioner in the eviction proceedings that, it had made over possession.
The Kolkata Port Trust authorities have allowed third parties to enjoy the property. It was not careful in protecting its properties. It did not take any steps, at least none has been disclosed on record, against the third party, who had filed the Title Suit and had obtained the order of status quo. The actions of Kolkata 4 Port Trust authorities in allowing its property to be enjoyed by third parties are not appreciated. It is expected that the appropriate department of Kolkata Port Trust are more vigilant in future.
In such circumstances, that the petitioner having made over possession of the property on April 30, 1985, it is not liable to pay with effect from May 1, 1985. The Kolkata Port Trust authorities are at liberty to take steps for recovery of its claim from any other persons that may be liable for the same.
WP No. 1836 of 1999 is allowed.
Steps taken by the Kolkata Port Trust authorities to recover any amount from the petitioner for the period subsequent to May 1, 1985 are set aside. The eviction order against the petitioner in respect of the property concerned need not be executed as the Kolkata Post Trust authorities are in possession.
No order as to cost.
(DEBANGSU BASAK, J.) sg2/sn