Calcutta High Court (Appellete Side)
Navin Vanijya Pvt. Ltd vs Board Of Trustees For The Port Of Kolkata ... on 21 February, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 3529 of 2006
with
CAN 5655 of 2008
AND
C.O. 3530 of 2006
with
CAN 5654 of 2008
Navin Vanijya Pvt. Ltd.
Versus
Board of Trustees for the Port of Kolkata & anr.
For the petitioner : Mr. S. P. Roy Chowdhury, Sr. Advocate
Mr. J. L. Dey, Advocate
Mr. D. Roy, Advocate
For the opposite party no. 1 : Mr. J. Chakraborty, Advocate
Mr. A. K. Mondal, Advocate
Heard on : November 18, 25, 28, 30 and December 2, 2011
Judgment on : February 21, 2012
1.Several godowns at Bagbazar warehouse, belonging to the Kolkata Port Trust (hereafter the KPT), were offered by it for lease through a process of tender. The petitioner expressed interest in respect of two godowns (hereafter the said godowns), one on the southern side and the other on the northern side. Offer of the petitioner having been accepted, two separate offer letters dated June 20, 1992 were issued. The offer letter issued in respect of the godown on the southern side contained, inter alia, the following terms and conditions:
" The above godown can be leased to you on month-to-
month basis with effect from 20th June, 1992 or any subsequent date ... illegible ... Rs. 5,000=00 per 100 sq. metres per month plus occupiers' share of municipal tax on structure for the purpose of storage and warehousing.
2. The lease will be granted subject to the following conditions beside the other general conditions as embodied in the Trustees' standard lease form :-
i) You will be required to deposit with this office a sum of Rs. 1,49,508.00 being the security for payment of rent and taxes and additional security deposit being a sum Rs. 1,19,508.00 in respect of the above occupation.
ii) You have to take over the possession of the godown on 'As is where is' basis.
iv) The rate of rent is subject to periodic revision as and when decided by the Trustees.
vi) No addition and alteration to the existing godown will be allowed unless you obtain prior permission in writing from the Trustees to that effect.
xii) The rent will be charged on the actual area to be found on demarcation of the space proposed to be leased. xvii) You will be required to execute and register a lease at your cost and pay a sum of Rs. 30=00 being the cost of a lease form and two plans.
xviii) The tenancy is terminable on either side by 15 days' notice expiring with the end of an English Calender month without payment of any compensation whatsoever, provided that such option of termination shall not be exercised by you at any time prior to expiry of six months from the date of grant of tenancy. Furthermore, if you fail or neglect to fulfil the stipulation stated hereinbefore, then and in such event you shall have to pay compensation to the Trustees which is equivalent to six months' rent.
3. Please accept the terms and conditions and remit to this office the sum of Rs. 1,49,508.00 Rs. 1,49,508.00 and Rs. 30=00 towards Security Deposit, Additional Security Deposit and cost of Lease Form and Plans in favour of Calcutta Port Trust so that arrangement may be made to hand over possession of the said godown. If no acceptance is received within 15 (fifteen) days from the date of this letter, it will be presumed that you are not interested in the tenancy of the above godown and offer will automatically stand cancelled."
3. On receipt of the offer letters, the petitioner addressed a letter dated July 13, 1992 to the Land Manager of the KPT conveying its willingness to remit payment of security deposit, additional security deposit and cost of lease forms and plan etc in respect of the said godowns. It was further conveyed that on an inspection of the said godowns it was noticed that the roof, floors and the gates thereof were damaged/broken. It was also noticed that unauthorized parking of vehicles in and around the said godowns as well as squatting by unlawful occupants had crowded the passage for loading and unloading of goods in front thereof. Apprehension was expressed that such crowding was likely to prevent free ingress and egress of the goods vehicles. Accordingly, a request was made for thorough repairing of the roof and the floors of the said godowns and to either replace or repair the gates to make it functional. Request was also made to remove the unauthorized assembly of outsiders, anti-socials and criminals and to prevent them from parking vehicles on the passage in front of the said godowns, thereby clearing the way for free ingress and egress of vehicles for loading and unloading purpose.
4. By a further letter dated September 29, 1992, the petitioner communicated to the Land Manager that the requests contained in its earlier letter dated July 13, 1992 had not yet been attended to. The letter referred to an assurance given to the petitioner that the concerned engineering department would be deputed to get the works in question done soon and further that such work could start only after the Pujas. Accordingly, it was conveyed that as soon as the works are performed after the Pujas thereby making the said godowns ready for possession, the requisite deposits would be made and possession thereof taken forthwith.
5. A subsequent letter dated December 29, 1992 of the petitioner conveyed to the Land Manager that they were enclosing Kishan Vikash Patra worth Rs. 5,42,200/- on account of additional security in respect of the said godowns, which was requested to be acknowledged. On receiving the receipts for deposit of Rs. 5,42,200/- the petitioner noticed certain discrepancies, which were brought to the notice of the concerned officer of the KPT by a letter dated January 12, 1993 for effecting necessary correction.
6. Two days later, possession of the said godowns was delivered to the petitioner. The godown on the southern side measured 498 sq. ft. while the one on the northern side measured a little less at 405 sq. ft. Letter dated January 14, 1993 of the petitioner, addressed to the Land Manager, recorded delivery of possession of the said godowns on that date. The letter also spoke of an assurance that had been given to the petitioner that necessary repair works would be undertaken within 15 to 20 days, failing which the petitioner would be at liberty to effect necessary repairs by engaging an authorized contractor of the KPT and the expenditure incurred therefor would be subject to adjustment with the rent payable.
7. After possession of the said godowns were made over to the petitioner, several letters appear to have been addressed by it to the Land Manager on March 10, 1993, April 12, 1993, November 30, 1993, January 4, 1994 and January 18, 1994 to urge the KPT to effect necessary repairs, as assured earlier, so as to render the said godowns viable for commercial exploitation and to clear the passage in front thereof for ensuring smooth ingress and egress of the vehicles for loading and unloading purpose. Apart from these letters, an advocate engaged by the petitioner sent notices dated May 4, 1993, May 11, 1993 and August 3, 1995 to the same effect.
8. Since the KPT did not take any step to effect repairs or to clear the passage, the petitioner claimed that it was prevented from exploiting the said godowns and did not pay a farthing on account of rent in terms of the offer letters.
9. Not having received rent from the petitioner, the KPT issued two notices to quit dated October 28, 1995 and January 12, 1996 requesting the petitioner to vacate the said godowns by the end of November, 1995 and February, 1996 respectively. However, the petitioner failed and neglected to vacate the said godowns and continued to occupy the same, being public premises, unauthorizedly. Continuance of the petitioner to occupy the said godowns without payment of rent and failure to vacate despite receipt of the notices to quit led the KPT to make an application dated March 20, 1996 to the opposite party no.2, being the Estate Officer appointed under the Public Premises (Eviction of Unauthorized Occupants Act), 1971 (hereafter the Act). After narrating the entire facts, it was alleged therein that the petitioner was in arrears of monthly rent in excess of Rs.17,00,000/- for the said godowns and that for such non-payment it is liable to be evicted and liable to pay the unpaid rent together with mesne profit.
10. The Estate Officer initiated two proceedings, bearing nos. 337 of 1999 and 334 of 1999 in respect of the said godowns by issuing notices dated September 6, 2000 under Section 4 of the Act. The petitioner was called upon to show cause by December 4, 2000 why an order for eviction shall not be made. It recorded that the tenancy of the petitioner under lease had duly been determined by the KPT by due service of an eviction notice dated January 12, 1996 and since despite expiry of the period mentioned therein, it had not vacated the said godowns and had been occupying the same unauthorizedly.
11. The petitioner contested both the proceedings by filing written objections.
The material allegations against it were denied and disputed. It was pleaded in the written objection by the petitioner that it was prevented from using the said godowns, which required thorough repair and that despite assurances given on several occasions, necessary repairs were never effected. It was further pleaded that in any event, the petitioner was entitled to suspension and/or abatement of rent since it was precluded from using the said godowns. The objection referred to the roof and the floors of the said godowns being severely damaged and the gates being non-functional. It also referred to the loading and unloading area in front of the said godowns being occupied by outsiders, who had constructed huts and that there was unauthorized parking of vehicles which prevented free ingress and egress of vehicles for loading and unloading purpose. In such circumstances, it was claimed that the petitioner could not be considered to be a defaulter in payment of rent when the KPT itself was on the wrong foot.
12. The Estate Officer heard the parties to the proceedings. By separate orders bearing nos. 16 and 17, both dated August 6, 2003, the Estate Officer disposed of both the proceedings and issued orders of eviction on the following grounds:
1) That the O.P. has violated the fundamental condition of tenancy under lease as granted by the Kolkata Port Trust by way of not making payment of rental dues to Kopt.
2) That O.P. has failed to establish their contention regarding suspension or abatement of rental liability towards Kolkata Port Trust while enjoying the premises in question.
3) That the O.P. has failed to lead any evidence and/or produce any paper/document in support of their contention regarding authorised possession into the public premises.
That the ejectment notice dated 28.10.1995 in respect of Compartment measuring 405 sq.mts. or thereabout (under proceedings No. 334 of 1999) and ejectment notice dated 12.1.1996 in respect of Compartment measuring 498 sq.mts. (under proceedings No. 337 of 1999) as served upon the O.P. by the Kolkata Port Trust are valid, lawful and binding upon the parties.
4) That the O.P. has lost its authority to occupy the public premises after the expiry of the periods as mentioned in the said notices of ejectment as served upon O.P. by the Kolkata Port Trust and the O.P. is liable to pay damages for unauthorised use and occupation of the public premises in question upto the date of delivering clear vacant and peaceful possession to the Kolkata Port Trust.
13. While directing that formal order of eviction may be drawn up against the petitioner giving 15 days time to vacate the said godowns, it was made clear that the KPT would be entitled to claim damages against the petitioner in accordance with law.
14. The orders of the Estate Officer were carried in appeal under Section 9 of the Act by the petitioner before the City Civil Court, Calcutta. The appeals were registered as Misc. Appeal Nos. 53 and 54 of 2003. The learned Judge of the 10th Bench of the said Court by a common judgment dated September 7, 2006 dismissed both the appeals. Not only was the order of eviction affirmed, the learned Judge assessed the quantum of arrears of rent payable by the petitioner, after adjustment of security deposits, as well as damages payable by it as indicated in the body of the judgment within 60 days from date. In default, the KPT was given liberty to execute the orders and to realize arrear rent and damages as per law.
15. Feeling aggrieved by the common judgment dated September 7, 2006 delivered by the learned Judge dismissing Misc. Appeal Nos. 53 and 54 of 2003, the petitioner preferred these two revisional applications thereagainst.
16. A learned Judge of this Court entertained the revisional applications on September 14, 2006. The parties were directed to maintain status quo as on that date as regards possession, and nature and character of the disputed premises till the disposal of the revisional applications.
17. The KPT filed its counter affidavits to the revisional applications. However, since the revisional applications could not be taken up for consideration for final hearing for a considerable period of time, the KPT applied for vacating the interim orders being CAN Nos. 5654 and 5655 of 2008. On March 22, 2011, the vacating applications were listed before me. I proposed that instead of hearing the vacating applications separately, the revisional applications ought to be heard finally and disposed of. The parties agreed and advanced arguments, which were duly heard.
18. According to Mr. Roy Chowdhury, learned senior advocate for the petitioner, the subordinate tribunals failed to consider the illegal and arbitrary manner in which the KPT conducted itself. It was contended that the said godowns were not repaired to make the same fit for being commercially exploited by the petitioner. Also, the surroundings of the said godowns were not cleared making it impossible for the petitioner to properly utilize the same. As a result, the said godowns could not be commercially exploited. He referred to the letters written by the petitioner as well by its advocate urging the Land Manager of the KPT repeatedly to effect necessary repairs, as had been assured. The KPT did not honour the assurance given by its officers and resultantly no action, till the date the proceedings under the Act were drawn up, had been taken, for which the petitioner was placed in an irretrievable disadvantageous position.
19. Mr. Roy Chowdhury further contended that although the petitioner was branded an unauthorized occupant of public premises for committing default in payment of rent, there had been no fixation of rent and till such time the rent was fixed in terms of the offer letters, the petitioner could not have been branded a defaulter. Alternatively, it was contended that the petitioner is entitled to suspension and/or abatement of rent. Referring to the provisions of the Transfer of Property Act, 1882, it was submitted that the KPT, being the lessor, had certain obligations to discharge and admittedly, such obligations were not discharged. Omission of the lessor, according to him, resulted in denial of the right that the petitioner was entitled to exercise in respect of its leasehold interest. If the lessee is denied full enjoyment of the tenancy, he is entitled to suspension of rent or at least proportionate abatement and he cannot be branded a defaulter. In support of such submission, reliance was placed on the decision of the Supreme Court reported in AIR 1966 SC 1361 (Surendra Nath Bibra v. Stephen Court Ltd.) and the decision of a learned Judge of this Court reported in 80 CWN 939 (P.K. Roy v. Bimala Mukherjee).
20. It was next contended by Mr. Roy Chowdhury, referring to certain guidelines issued by the Ministry of Urban Development, Government of India dated January 14, 1992, that the manner in which the petitioner had been dealt with is contrary to the spirit thereof. The KPT, according to him, is bound by the said guidelines and could not have acted like a private landlord. He contended that in proceeding against the petitioner, the terms of the guidelines had been honoured in the breach and, therefore, the order impugned in these revisional applications merit judicial interdiction. Reliance in this connection was placed on the decisions of the Supreme Court reported in 1990 (Supp) SCC 440 (Narendra Kumar Maheshwari v. Union of India & ors.), (1981) 1 SCC 166 (Maharao Sahib Shri Bhim Singhji v. Union of India & ors.) and the Bench decision of the Bombay High Court reported in 2004 AIHC 2613 (Persis Kothawala v. Life Insurance Corporation of India, Mumbai & anr.).
21. Finally, it was contended that the learned Judge functioning as the appellate authority committed serious error of jurisdiction in determining the quantum of arrears of rent payable together with damages, although the Estate Officer did not make any such determination. According to him, Section 7 of the Act provides the procedure for determination of arrears of rent as well as damages and since no notice had been issued under Section 7 of the Act at any point of time, the learned Judge must be held to have acted in excess of his jurisdiction. In this connection, it was also contended that time barred rent could not be claimed. Reliance was placed on the decision of the Supreme Court reported in AIR 1976 SC 1637 : New Delhi Municipal Committee v. Kalu Ram, wherein it was held that Section 7 of the Act is not a source or foundation of a right to claim a debt otherwise time-barred. He also placed reliance on the decision of a learned Judge of this Court reported in (2011) 1 WBLR (Cal) 543 (M/s. Automobile Association of Eastern India & ors. v. The Board of Trustees of the Port of Kolkata & ors.) wherein, following the decision in Kalu Ram (supra), it was held that the failure of the Estate Officer to deal with the contention of the petitioner therein that the claim was barred by limitation amounts to violation of the principles of natural justice. Since recovery of a substantial amount on account of arrears of rent is barred by the laws of limitation, he urged that the appellate authority could not have insisted that the said amount was payable.
22. Based on the aforesaid submissions, it has been prayed that the orders of the subordinate tribunals may be set aside.
23. Per contra, Mr. Chakraborty, learned advocate representing the KPT contended that the said godowns having been offered for lease on "as is where is" basis, the petitioner was free not to take possession thereof if the same were found not to suit its needs instead of retaining possession thereof all these years. It is further contended that there is no evidence whatsoever on record to establish that any officer of the KPT assured or promised that due repairs would be effected to the said godowns so as to make it viable for commercial exploitation, as alleged by the petitioner. He also contended that even assuming there was any such assurance but the same was not honoured within a reasonable period, the petitioner could have returned possession of the said godowns instead of commercially exploiting the same. He was severe in his criticism of the stand taken on behalf of the petitioner that the said godowns could not be exploited because they were not fit therefor. Referring to the letter dated March 10, 1993 written by the petitioner to the Land Manager, he pointed out that its contents bear ample proof of the fact that the statement made in Court that goods could not be stored in the said godowns is absolutely incorrect and that the petitioner was fully exploiting the same. According to him, it was only after taking possession of the said godowns and commencing commercial exploitation thereof that the petitioner started all sorts of correspondences from 1993 and till date, not a single month's rent has been paid and the status of the petitioner is nothing but that of a trespasser.
24. It was further submitted that despite clear indication in the offer letters that the petitioner would be required to execute and register lease at its costs, no interest was shown for executing the lease deeds in respect of the said godowns.
25. Summing up, Mr. Chakraborty urged that commercial exploitation of public premises by the petitioner absolutely free of cost ought not to be allowed to continue any further and that the orders passed by the subordinate tribunals ought to be affirmed.
26. Upon hearing Mr. Roy Chowdhury and Mr. Chakraborty, the only question that calls for an answer is whether on facts and in the circumstances, the orders passed by the subordinate tribunals merit interference or not, and if yes to what extent.
27. In so far as the order passed by the Estate Officer for eviction of the petitioner and the appellate order affirming it is concerned, I have no doubt in my mind that the same are legal, proper valid and tenable on facts and in the circumstances and, thus, do not call for any interference.
28. With the issuance of the offer letter dated June 28, 1992, it was made clear by the Land Manager on behalf of the KPT that the said godowns are available for possession on "as is whereis basis". It is not undisputed that after receipt of the offer letters, the petitioner conducted due inspection of the said godowns for ascertaining its present condition. According to the petitioner, the roof and the floors were damaged, the gates were broken and the passage in front of the said godowns was not free from obstruction and/or encroachment. The petitioner had brought it to the notice to the Land Manager, with the request to make the said godowns worthy of exploitation. Although there is no document to prove any assurance given by the Land Manager or for that matter any other officer of the KPT that repairs would be effected, the petitioner in its several letters referred to such assurance. There is only one document on record issued by the Deputy Land Manager-II dated December 22, 1992 requesting the Officer- in-Charge, Shyampukur Police Station to take steps for clearing the huts and not to allow unauthorised parking of vehicles on land belonging to the KPT, on the western side of Bagbazar Tram Depot. Such letter per se is not evidence of any assurance given by the KPT. If there be any obstruction on or encroachment of property belonging to the KPT and if it is brought to the notice of its officers, it is the duty of the KPT's officers to take measures to ensure that such obstruction or encroachment is removed for protecting the interest of the KPT. Request to the administration to achieve the same is a normal reaction of the officers. However, such letter of request cannot be equated with an assurance or promise of the nature that the petitioner seeks to put in the mouth of the officers of the KPT. That apart, the request letter does not even refer to the relationship between the KPT and the petitioner. It has, therefore, nothing to do with alleged assurance given or promise made to the petitioner. There is one other document dated March 30, 1995 issued by the Assistant Land Manager conveying that an inspection of the godown on the northern side shall be held on April 7, 1995 and that the petitioner ought to depute its representative at the time of inspection. Mr. Chakraborty is right in his contention that this letter does not prove that inspection was intended to ascertain the correctness of the allegation of the petitioner. Based on the materials on record, I hold that no assurance was given or promise made by the KPT to the petitioner and the allegation of the petitioner is not worthy of acceptance.
29. Assuming that any assurance was given or promise made by any individual officer of the KPT, I further hold that the same was of no effect having regard to the clear stipulation in the offer letters that the godowns would be offered on "as is where is" basis. Reference to the Transfer of Property Act by Mr. Roy Chowdhury is misplaced. The KPT is an Article 12 authority. It is bound by Article 14 of the Constitution, which guarantees equal treatment to all. Having committed to make available possession of the said godowns on "as is where is basis", the KPT could not have taken a different stand and accede to the request of the petitioner. If despite offering the said godowns on lease on "as is where is basis" repairs had been effected and encroachments removed by the KPT at its own initiative, that would be an act contrary to its constitutional obligations and amount to a breach of Article 14 of the Constitution, for, in such case other lessees to whom godowns might have been leased out would be subjected to hostile discrimination. The Constitution being the supreme law, it must prevail over the general law and an Article 12 authority cannot breach Article 14 of the Constitution while discharging its obligations under a general statute like the Transfer of Property Act. Even otherwise, having regard to the terms and conditions mentioned in the offer letters, refusal of the KPT to repair the said godowns or to take steps for clearing its surroundings of encroachment/obstruction does not render it vulnerable. The officers of the KPT cannot be faulted on any count for not repairing the said godowns or removing the obstruction/encroachment on the passage, as alleged.
30. The next contention of Mr. Roy Chowdhury that there was no fixation of rent has been urged to be rejected. The possession certificate signed by the representative of the petitioner reveals the measurement of the areas of the said godowns. No objection appears to have been raised, at the time of delivery of possession that possession of lesser area has been delivered. The offer letter indicated the rate at which rent was payable i.e. Rs. 5000/- per 100 sq.m. and, therefore, the rent payable for the said godowns were required to be determined keeping in mind the rate of rent mentioned vis- a-vis the area, possession whereof was delivered. Despite receipt of rent bills, the petitioner chose to remain inactive. There could not have been any impediment to make payment of rent in terms of such bills and having failed to pay rent, the petitioner was rightly branded a defaulter.
31. The other contention relating to suspension and/or abatement of rent on the ground that repairs were not effected is equally without merit. Since the tender notice issued by the KPT leading to allotment of the said godowns in favour of the petitioner has not been produced before the Court, its terms and conditions could not be ascertained. However, it stands to reason that the petitioner must have examined the sites of the said godowns. If the site had not been examined, the petitioner could not have offered its bid for those two godowns only. The petitioner's advocate's letter dated May 4, 1993 clearly reflects that the petitioner had submitted its offer for the said two godowns only. It would not be unreasonable to presume that such offers must have been made commensurate with the facilities that were on offer or would be available. If better facilities were made available, higher amount would have been offered. A lesser amount would be offered if the site suffered from disadvantages. The petitioner with its eyes open participated in the process. After participation and further taking over possession of the said godowns, it cannot turn around and complain that because of the lack of facilities at the said godowns, it shall not pay rent or that it is entitled to suspension or abatement of rent. To show its bonafide, the petitioner could have paid proportionate rent on the basis of its own assessment. Even that was not paid. A party who enjoys the property of another without payment has to be and was rightly branded as an unauthorized occupant.
32. The point raised by Mr. Roy Chowdhury that the guidelines of the Government of India have not been followed has also failed to impress me. As has been held in the decision of the Supreme Court reported in (2008) 3 SCC 279 (New India Assurance Company Limited v. Nusli Neville Wadia), issuance of guidelines pertaining to the Act is not controlled by statutory provisions and the effect thereof being advisory in nature, no legal right is conferred upon the tenant.
33. One may, in this connection, usefully refer to another decision of the Supreme Court reported in (2007) 8 SCC 212 (Chief Commercial Manager, South Central Railway v. G. Ratnam). In paragraphs 19 and 20, it has been ruled as follows:
"19. We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance Organisation and its role, Central Vigilance Commission, Central Bureau of Investigation, investigation of complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work, etc. Paras 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
20. It is well settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India."
34. The guidelines issued by the Government of India, as annexed to the application and the one dated May 30, 2002 produced before the Court do not, therefore, come to the rescue of the petitioner. Even otherwise, no specific breach of the terms of the guidelines has been shown or proved.
35. The decisions cited by Mr. Roy Chowdhury have been considered. However, to my mind, the same have no application here because of the petitioner's conduct in not being alive to its obligations in terms of the terms of the offer letters.
36. I, therefore, find no reason to uphold any of the contentions of Mr. Roy Chowdhury so far as eviction of the petitioner from the said godowns ordered by the subordinate tribunals is concerned and the same are overruled.
37. However, the final contention of Mr. Roy Chowdhury merits acceptance.
The petitioner cannot be worse off for preferring the appeals. No proceedings having been drawn up against it by the Estate Officer under Section 7 of the Act, the learned Judge acting as the appellate authority had no jurisdiction to determine the quantum of rent and damages payable by the petitioner. To this limited extent, the petitioner is entitled to relief.
38. In the result, the order of the Estate Officer ordering eviction is upheld. The order of the appellate authority affirming such order is also upheld. However, the order of the appellate authority directing payment of rent and damages, as quantified by it in the body of the impugned common judgment, stands set aside.
39. The revisional applications as well as the applications for vacating interim order stands disposed of, without order for costs.
40. The petitioner shall have time till March, 2012 to vacate the said godowns, failing which appropriate steps may be taken in accordance with law for securing its eviction.
41. It is made clear that nothing contained in this order shall preclude drawing up of proceedings under Section 7 of the Act and for concluding it in accordance with law. It shall be open to the petitioner to raise all points of objection that are available to it in law. Whether or not the decision of the Supreme Court in Kalu Ram (supra) would be of any help to the petitioner is left to be decided in proceedings, if initiated under Section 7 of the Act.
42. Copy of this judgment and order shall be retained with the records of C.O. 3530 of 2006, duly counter-signed by the Assistant Court Officer. Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)