Calcutta High Court
Apl (India) Pvt. Ltd. & Ors vs The Board Of Trustees on 20 August, 2009
Author: Indira Banerjee
Bench: Surinder Singh Nijjar, Indira Banerjee
In the High Court at Calcutta
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Indira Banerjee
And
The Hon'ble Justice Aniruddha Bose
W.P. No. 1116 of 2008
APL (India) Pvt. Ltd. & Ors.
Versus
The Board of Trustees
for the Port of Kolkata
For the Petitioners : Mr. Pratap Chatterjee, Sr. Adv.,
Mr. Tilak Basu,
Mr. Asit Ranjan Dey.
For the Respondent : Mr. Anindya Mitra, Sr. Adv.,
K.P.T Mr. Subir Sanyal,
Mr. Ashok Kr. Jena
For Respondent No. 6 : Mr. Tapan Kr. Dey,
: Mr. Deb Soumya Basak.
W.P. 14192(W) of 2008
Snow View Tea Co. (P) Ltd.
Versus
The Board of Trustees
for the Port of Kolkata
For the Petitioner : Mr. Samit Talukdar,
: Mr. B. Das.
For the Respondent : Mr. Hirak Mitra, Sr. Adv.,
(K.P.T.) Mr. Somnath Bose.
For Respondent : Mr. Sukhendu Shekhar Ray,
Nos. 4 & 5 Mr. Shyamal Dey.
W.P No. 1449 of 2008
Balajee Enterprise & Anr.
Versus
The Board of Trustees
For the Port of Kolkata
For the Petitioners : Mr. Pradip Ghosh, Sr. Adv.
Mr. A. B. Dutta.
Heard on : 08.04.09, 06.07.09, 07.07.09,
08.07.09 & 09.07.09.
Judgment on : 20.08.2009
SURINDER SINGH NIJJAR, C.J. : We have heard the learned
counsel for the parties at length. In our opinion, in order to appreciate the scope of the reference it would be appropriate to reproduce the exact reference as follows :
"There is a divergence in the views taken by two different Division Benches of this Court, on the scope and ambit of Section 59 of the Major Port Trusts Act, 1959. The Court, therefore, deems it appropriate to refer the writ application to the Hon'ble the Chief Justice for constitution of a Larger Bench, to adjudicate the issue of whether Section 59 of the Major Port Trusts Act, 1963, read with Section 5 and 6 of the 1971 Act confers on KPT a right of lien on, or the right to detain, seize and/or sell the goods of third parties, lying on the public premises, for realization of arrears of rent due from tenants, irrespective of whether the rent accrued in respect of those goods and irrespective of whether the owner of those goods had any privity of contract with KPT."
The facts involved in the matter need not be elaborately noticed as the reference raises only pure legal issues with regard to interpretation of Section 59 of the Major Port Trust Act, 1963 (herein after referred to as MPTA) read with Sections 5 and 6 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as PPA). The petitioner nos. 1 to 17 are liners and steamer agents of liners, engaged in the business of shipping, inter alia, of providing services and facilities like ocean freighting and logistical support to the exim trade. They are in business of taking the transportation of containerized cargo to and from the port of Kolkata as liners and the steamer agents of liners on the basis of bill of lading. These companies are direct and an important link to the exim trade by way of carrying laden export containers from parts of India to various overseas destinations and bringing import laden containers of several cargo beneficiaries to India. These companies had entered into agreements with Reftech Container Services Pvt. Ltd. (hereinafter referred to as Raftech) for storage and repair of the containers at a plot of land known as P 1 Plot of the Kolkata Port Trust (herein after referred to as KPT) at Transport Depot Road, Taratala, Calcutta. Reftech had represented to the petitioners that it had a valid licence and permission to carry on business of storage of containers at the aforesaid plot from the KPT. The entire amount due to Reftech on account of ground rent and service charges has been paid. There are no dues outstanding against the petitioners. The petitioners have been using plot P 1 for the past 3 - 4 years. On 8th March, 2008 when some representatives of the petitioners had visited the plot for removing their containers, they found that the entrance gate of the plot had been locked. When Reftech was contacted it expressed its surprise and ignorance as to why the gate was locked. Subsequently, the petitioners were informed that Reftech was carrying on business from the aforesaid plot in association with Shalimar Tar Products Ltd., (herein after referred to 'Shalimar'). On further inquiry it transpired that KPT had instituted proceedings against Shalimar, sometime ago under the PPA. An order of eviction was passed by the Estate Officer of the KPT on 9th July, 2007 directing Shalimar to vacate the plot and to pay damages for unauthorized use and occupation of the public premises. This amount which was amounting to Rs. 2,46,64,411.00/- calculated upto 30th June, 2005 excluding interest, had accumulated to a sum of Rs. 5,98,77,564.12/- along with accrued interest calculated upto 9th September, 2008. On 01.02.2008 KPT applied for execution of the eviction order. The possession of the premises in question and the containers stacked at the plot was taken by the authorized Officer on 19th February, 2008 after making inventories of materials/articles/goods lying in the plot. A notice was issued under Section 6 of PPA, 1971, on 24th March, 2008 to remove or cause to be removed any property belonging to the occupant failing which it would be disposed of by public auction. Reftech made representations before the Estate Officer on 8th March, 2008 for grant of permission to remove the containers lying inside the sealed plot. The petitioners have also moved individual representations. None of the representations have been considered. The petitioners, therefore, filed the writ petition challenging the action of the KPT on various grounds. KPT opposed the writ petition by filing an affidavit-in- opposition. The matter was heard at length by the learned Single Judge. Since the submissions made before the learned Single Judge have been reiterated before us, the same need not be adverted to at this stage. Suffice it to say that in support of his submissions Mr. Tilak Basu, learned counsel for the petitioners, relied upon a judgment of the Division Bench of this Court in the case of Board of trustees for the Port of Calcutta -vs- Indian Rayon Corporation Ltd. & Anr. [1987 (28) E.L.T. 334 (Cal.)] and a judgment of the Supreme Court in the case of The Board of Trustees of the Port of Bombay & Ors. -vs- M/s. Sriyanesh Knitters [AIR 1999 SC 2947. On the basis of the judgments it was submitted by Mr. Bose that lien of the Calcutta Port Trust under Section 59 of the MPTA, 1963 would only be for its rates and rents against the goods on which such rates and rents had accrued. On the other hand, Mr. Anindya Mitra, learned senior counsel appearing for the respondent, relied on a judgment of the Division Bench in the case of Board of Trustees for the Port of Kolkata -vs- Canoro Resources Ltd. & Ors. [2008(1) CHN 141]. On the basis of this judgment it was canvassed by Mr. Mitra that reading the provisions of Section 59 of the MPTA, 1963 with Section 6 of the PPA, 1971 gave the KPT a lien in respect of any goods or articles lying at the public premises, if rent was due in respect of the premises. Upon consideration of the relevant provisions of both the Acts and the judgments cited by both sides, the learned Single Judge, formed an opinion that there is a conflict between the two aforesaid Division Bench judgments of this Court. Hence the reference.
We have heard the learned counsel for the parties at length. At the outset Mr. Anindya Mitra raised a preliminary objection to the reference. Learned senior counsel submitted that there is no conflict between the earlier Division Bench and later Division Bench judgments. Even if there is a conflict the learned Single Judge ought not to have made the reference. The better course would have been to follow one or the other, depending on the opinion formed by the learned Single Judge. In support of his submissions learned counsel relied on the following judgments :-
1) M/s. Indo Swiss Time Ltd. Dundahera vs. Umrao & Ors. [AIR 1981 P & H 213]
2) The Special Land Acquisition Officer (I), Bombay & Anr. -vs- The Municipal Corporation of Greater Bombay [AIR 1988 Bombay 9]
3) Sm. Nirmala Birla & Ors. -vs- The Wealth Tax Officer, 'M' Ward Dist.
V(I), Calcutta & Ors. [AIR 1975 Cal. 348]
4) Mrs. Debi Bhaduri vs. Kumarjib Bhaduri, [AIR 1980 Cal. 1]
5) Noor Niwas Nursery Public School -vs- Regional Provident Fund Commissioner & Ors. [(2001) 1 SCC 1].
This submission has been countered by Mr. Pratap Chatterjee, learned senior counsel and Mr. Tilak Basu, learned counsel appearing for the petitioners. It is submitted that under the Calcutta High Court Rules a learned Single Judge can place papers before the Chief Justice for constitution of a Larger Bench. The question raised in the reference is of general public importance having wide ramifications. In any event, there is a clear conflict between the two Division Bench judgments with regard to interpretation of Section 59 of the MPTA, 1963. Therefore, the reference was only justified. In support of his submissions learned senior counsel relied upon (1) Lala Shri Bhagwan & Anr. vs. Ram Chand & Anr. [AIR 1965 SC 1767] (2) Tribhovandas Purshottamdas Thakkar -vs- Ratilal Motilal Patel & Ors. [AIR 1968 SC 372] (3) State of Gujarat & Anr. -vs- Acharya Shri Devendraprasadji Pande [AIR 1969 SC 373] (4) Sm. Nirmala Birla & Ors. -vs- The Wealth Tax Officer, 'M' Ward Dist. V(I), Calcutta & Ors. [AIR 1975 Cal. 348].
ON MERITS :
Mr. Pratap Chatternee submits that the scope of Section 59 was considered by this Court in the case of Indian Rayon Corporation Ltd. (supra). The Division Bench has given a clear finding that the lien is limited to the goods in respect of which rates and rents are due. It cannot travel to goods of a third party or even other goods of the contracting party. Learned counsel further submitted that under any circumstances lien can only be exercised against the party that commits default, even under general law. It is further submitted that Section 59 has also been interpreted by the Bombay High Court in the case of M/s.
Sriyanesh Knitters (supra). In that case it was submitted by the learned counsel appearing for the Board of Trustees, Bombay Port that the Board has a general lien in respect of any goods which came into the custody of the Board. It was repelled by the Division Bench with the observations that the plain reading of Sub-Section (1) of Section 59 of the Act indicates that the lien conferred on the Board under Section 59 of the Act is not a general lien but a lien on specific goods. The lien is limited only to those goods in respect of which the rates due are not paid. The Supreme Court upheld the view of the Bombay High Court in the case of M/s. Sriyanesh Knitters (supra). It has been laid down that the lien of the Board is for the amount of the rates leviable under the Act and for the rent due to it. It is also made clear that the goods which can be sold in exercise of lien are only those in respect of which any amount is due and payable to the Board. The Supreme Court also observed that the High Court was right in coming to the conclusion that the lien conferred on the Board under the MPTA was not a general lien but was a lien on specific goods. It is then submitted that the observations of the Division Bench in the case of Canoro Resources Ltd.
(supra) are in conflict with the law laid down by the earlier Division Bench of this Court in the case of Indian Rayon Corporation Ltd. (supra). The issue is the same in both the cases. In one case refund is confiscated for other transactions.
In the other, payment of rent is sought from a third party. In the case of Indian Rayon Corporation Ltd. (supra) it is held that third party cannot be made liable on the basis of lien. Lien is limited to the goods in respect of which rates and rents are due. Rent can only be due from the tenant. It cannot be due from a third party. In the case of Canoro Resources Ltd. (supra) the proposition of law laid down in paragraph 18 is not only contrary to the provisions contained in Section 59 and Section 61(1) of the MPTA, but is also against the general principle of law that only the defaulter can be made liable. Rent can only be due from the person who is a tenant. Rent cannot be in rem, i.e., rent for the land is not due against any body and everybody. According to the learned counsel such an interpretation would lead to absurd results. A stranger cannot be made to pay for the default of a tenant. Mr. Tilak Bose supplemented the submissions and submitted that the plain meaning of Section 59(1) is clear. Even if the meaning of the provision is not clear, any construction that will possibly lead to unconstitutionality of the provision must be avoided. In support of this submission learned counsel relied on the judgment of the Supreme Court in the cases of (1) Sri Krishna Coconut Co. vs. East Godavari Coconut and Tobacco Market Committee [AIR 1967 SC 973]; (2) State of Kerala -vs- M. K. Krishnan Nair [(1978) 1 SCC 552]. According to learned counsel right to property cannot be defeated without due process of law. Even though right to property may not be a fundamental right but it is still a constitutional right under Article 300(A) of the Constitution of India. According to the learned counsel Section 59 of the MPTA cannot be interpreted in the manner laid down by the Division Bench in the case of Canoro Resources Ltd. (supra). If such an interpretation is accepted it would lead to an absurdity. Therefore, the earlier view has to be preferred. Learned counsel also submitted that the interpretation placed on Section 59(1) & (2) cannot be influenced by the provision contained in Section 6 of the PPA, 1971. This Act does not give an additional right under Section 59. The provision of Section 6 cannot be intermingled with the provisions of Section 59(1) of the MPTA. Both the Acts deal with specific remedies in specific circumstances. According to the learned counsel a bare perusal of Sections 5 and 6 PPA would show that the orders passed thereunder is for eviction of unauthorized occupants from public premises. The provisions in Sections 5 and 6 are in personam. Even the notice issued in form 'C' under Section of 6(1) of PPA is also addressed to a person who is evicted from the public premises in proceedings under the Act. In this particular case the notice dated 29th of March, 2008 published in the Telegraph, Calcutta, is addressed to Shalimar. By this notice Shalimar was directed to take possession of its property and to remove the same from the premises. It is only the property which remained in the premises after 14 days which was to be sold by public auction. Therefore, according to Mr. Chatterjee even KPT did not assert any lien on the property of the unauthorized occupants within the permissible period of 14 days. Therefore, according to the learned counsel conjoint reading of Section 59(1) with Section 6 of the PPA was not justified. These are two independent Acts. Both are procedural provisions aimed at achieving different results. Purposes of two Acts are totally different. Therefore, learned counsel submits that in view of the law laid down by the Supreme Court KPT cannot have a general lien on all goods irrespective of ownership of the goods.
Mr. Anindya Mitra submits that Sections 59 and 61 are part of the chapter VI of the MPTA, 1973 which deals with imposition and recovery of rates for various services provided by the Board. Sections 48, 49 and 50 deal with prescription of different scales of rates for services performed by the Board. Section 58 provides that the rates have to be paid before the goods are removed. Section 59 and 61 provide for security and recovery of the rates due by sale of goods after a particular period of time. These kinds of provisions are to be found in a number of enactments throughout India. Therefore, the vires of Section 59 has not been challenged. According to the learned counsel the law laid down by the Supreme Court in the case of M/s. Sriyanesh Knitters (supra) would not be applicable in the facts which were being considered by the Division Bench in the case of Canoro Resources Ltd. (Supra). In that case the Division Bench was dealing with recovery of rent in proceedings under PPA, 1971 whereas in the case of Indian Rayon Corporation Ltd. (supra) the Division Bench was dealing with recovery of rates in respect of goods. With regard to rent lien can only be with respect to goods as the KPT cannot possibly have any lien on buildings owned by it. Therefore, the Division Bench on a conjoint reading of Section 59(1) & (2) and 61 with Section 6 of the PPA has correctly recorded that the Board not only has lien over the goods found on the land of the port for any rent due or payable but also a right to sell those goods and to appropriate the sale proceeds towards the rental dues. This would be immaterial even if the goods do not belong to the party from which the amount is due. Learned counsel makes a particular reference to Section 59 (1) & (2) and submits that the Board has a lien for the amount of rates due in respect of any goods and also for the rent due to the Board for any buildings stacking areas in which any goods are stored. Such lien of the Board has a priority over all other liens and claims in view of Section 59(2). When Section 59(1) & (2) are read together with Section 61 the meaning is clear that the KPT has the power to sell the goods if rates and rent are not paid within the stipulated time. The Calcutta High Court in the case of Indian Rayon Corporation Ltd. (supra) and the Supreme Court in the case of M/s. Sriyanesh Knitters (supra) were dealing only with the question of lien on goods in respect of rates and rent dues. Therefore, the ratio of law laid down therein would not apply when KPT exercised lien on goods belonging to an unauthorized occupant to recover the rent due from the tenant. In the case of Canoro Resources Ltd. (supra) the Division Bench was dealing with an altogether different situation and, therefore, there would be no conflict between Canoro Resources Ltd. and Indian Rayon Corporation Ltd. (supra). Learned senior counsel has also submitted that it is not impossible to reconcile the two judgments. The earlier Division Bench judgment in the case of Indian Rayon Corporation Ltd. (supra) dealt with rates in respect of goods whereas subsequent judgment in the case of Canoro Resources Ltd. (supra) dealt with rent for the building. Therefore, there is no conflict between the two. Even otherwise the learned Single Judge ought to have made a choice and followed one of the two judgments. Therefore, the reference was not justified.
We have given thoughtful consideration to the submissions made by the learned counsel. The writ petitioners have only challenged the illegal action of KPT taken under Section 6 of the PPA, 1971. There is no mention of any of the provisions of the MPTA throughout the pleadings of the parties. No plea is raised in either the writ petition or in the affidavit-in-opposition with regard to the lien of KPT - either general or specific. The Division Bench judgment of this Court in Indian Rayon Corporation Ltd. (supra) and the Supreme Court judgment in M/s. Sriyanesh Knitters (supra) deal exclusively with lien under Section 59 of MPTA. The Division Bench in Indian Rayon Corporation Ltd. (supra) has clearly hel as follows:
"33. ... ... ... Under Section 59 of the said Act of 1963, the appellant has been given a right of lien for its rates and rents against the goods on which such rates and rents have accrued. Such lien, in our view, cannot be extended to other goods belonging to other persons. The position would remain the same in respect of payment made on account of rent and rates paid in respect of any particular consignment. If such rates and rents have been paid in excess the appellant, in our view, cannot shift its claim in respect of other goods belonging to other parties on such excess amount paid either under the Act of 1963 or the By-laws or Rules made thereunder.
34. Even under the general law, it is not open to the appellants to adjust its claims against particular goods of particular persons against other goods belonging to other persons or against money paid by another person in respect of such other goods. The appellant, in the instant case, was not entitled to treat the respondent No. 4 as the principal in respect of goods cleared by it and adjust its claim in respect of some goods against the dues in respect of others. Ex facie, the respondent No. 4 was the agent who acted on behalf of different principals in respect of different consignments of goods."
The Supreme Court in M/s. Sriyanesh Knitters (supra) was considering an appeal from the Division Bench judgment of the Bombay High Court in Board of Trustees of the Port of Bombay & Ors. -vs- Mr. Sriyansh Knitters [AIR 1983 Bombay 88] wherein the Division Bench held as follows:
"12. ... ... ... Strong reliance was placed on the words "in respect of any goods" appearing in this sub-section to claim that the Board's lien is not restricted only to the specific goods but is available in respect of any goods which come into the custody of the Board. It is not possible to accept this submission. The plain reading of sub-section (1) of S. 59 of the Act indicates that the expression "in respect of any goods" has to be read in connection with the expression "the amount of all rates leviable by the Board." The sub-section provides that in respect of amount of rates due to the Board in respect of any goods, the Board shall have the lien on such goods and may seize and detain the same until such rents are fully paid. The words "such goods" obviously have reference to those goods in respect of which the rates due to the Board are not fully paid. It is, therefore, not possible to accept the submission of Shri Zaiwala that a general lien in respect of any goods of the importers is conferred on the Board by the provisions of S. 59(1) of the Act. In this connection, it would be also advantageous to make reference to the provisions of sub-s.(1)(a) of S. 61 of the Act. S. 61 of the Act enables the Board to sell the goods in respect of which the lien is exercised under S. 59 of the Act and sub-sec.
(1) (a) provides that the Board may sell "such goods" or so much thereof as may be necessary if rates payable to the Board in respect of "such goods" are not paid. The power conferred on the Board to sell the goods is in respect of the rates payable to the Board in respect of specific goods and the expression "such goods" leave no manner of doubt that the lien conferred on the Board under S. 59 of the Act is not a general lien but is a lien on specific goods."
The Supreme Court affirmed the aforesaid finding of the Bombay High Court with the following observations:
"8. ... ... ... Plain reading of S. 59 shows that in respect of any goods which are imported the Board has a lien for the amount of all rates leviable under the Act and for the rent due to it and it also has a lien on such goods and the Board may seize and detain the same until such rates are paid. It is clear that it is only in respect of the amount due qua the goods imported and existing there that the Board has a lien under S.
59. Under Section 61(1), in exercise of its lien, the board is empowered to sell the said goods for realization of the amount due to it. Reading the two sections together it is clear that the goods which can be sold in exercise of its lien are only those in respect of which amount is due and payable to the Board. The words 'such goods' in S. 61(1) has reference to those goods in respect of which rates due to the Board have not bee fully paid.
9. Coming to the facts of the instant case the amount which was claimed by the appellants was in respect of the consignment of woollen rags. There can be little doubt that in respect of the amount claimed by the Board the provisions of Ss. 59 and 61(1) would have been applicable with regard to the said consignment of woollen rags. But the contention now is that it is in respect of the said dues, relatable to woollen rags, that the Board has a general lien on the subsequent consignment of acrylic fibre. This contention is clearly untenable because, as we have already observed, Ss. 59 and 61(1) give a lien on those goods in respect of which amount is claimed or due under S. 59. The Board was not demanding or claiming lien on acrylic fibre on the ground that any amount in respect of acrylic fibre was due. Once it appears that the lien referred to in Ss. 59 and 61(1) is only (on) those goods in respect of which amount is due it is clear that the said provisions do not contemplate a general lien as contended by the appellants. The High Court, in our opinion, was right in coming to the conclusion that the lien conferred on the board under S. 59 of the MPT Act was not a general lien but was a lien on specific goods."
From the aforesaid it becomes apparent that the lien of the KPT is limited and referable to specific goods in relation to which certain services have been performed under MPTA. This would include a general lien with regard to wharfinger charges plus demurrage. This would be on the basis of Section 171 of the Indian Contract Act, 1872.
We are also unable to agree with the submission of Mr. Anindya Mitra that KPT would be entitled to sell goods in its custody which may be necessary if any rent is payable to the Board. Section 61(b) provides as under:
"(b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid."
A bare perusal of the provision would show that the Board can sell the goods in its custody in respect of which any rent is due and payable. The provision clearly speaks of "any place on or in which such goods have been stored has not been paid". To accept the submission of the learned counsel would be to delete the words "any place on or in which the goods have been stored". In our opinion, the aforesaid provision clearly relates to the performance of services by KPT under Section 42 of MPTA. Under this Act, KPT has the power to undertake various services with regard to landing, shipping or transshipping, passengers and goods between vessels in the Port and the wharves, piers, quays or docks belonging to or in the possession of the Board. It also has the power of receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises. At that stage Calcutta Port Trust was the actual owner of the goods. In other words, after the goods are released by the ship-owner, KPT is responsible for storage and security of the goods. For these services, it charges rates, which would include rent for the plinth or the building in which they are stored. Therefore, all rates and rents are relatable to the specified goods. We are, therefore, unable to accept the submission of Mr. Anindya Mitra.
The powers of KPT under Sections 59 and 61 of MPTA would have no relation to the goods of a stranger lying at the KPT premises which may be under unauthorized occupant. To this extent, we are unable to agree with the observations of the Division Bench in Canoro Resources Ltd. (supra). In this case, the Division Bench was considering a matter where an eviction order had been passed by the Estate Officer under the PPA, 1971 against the tenant of KPT. In execution of the aforesaid order, KPT obtained possession of the land from the tenant and seized some timbers and casing pipes which were lying on the lease hold land at the time of taking delivery of possession. The owner of these goods challenged the action of the KPT in a writ petition. The writ petition was disposed of by a learned Single Judge of this Court by directing the petitioner to make representation before KPT and with a further direction to the competent authority to dispose of such representation after giving an opportunity of hearing to the writ petitioner. Representation was disposed of by holding that proceedings for recovery of dues to the KPT on account of rent and interest were pending against the previous tenant. Therefore, the goods could not be released as those were found to be lying on the resold property at the time of delivery of possession through execution. This order was again challenged in a writ petition by the owner of the goods, who was not a tenant of KPT. This writ petition was disposed of by the learned Single Judge by directing the Chairman of the Port Trust to rehear the representation. The learned Single Judge specifically held "that unless it was established that there was co-relation between the writ petitioner and the erstwhile tenant, the goods of the writ petitioner could not be sold for realization of the dues of the previous tenant". This finding of the learned Single Judge was challenged in appeal before the Division Bench by KPT. The Division Bench says that KPT was not a party to the writ application. The submissions made by the learned counsel for KPT were as follows:
"4. Mr. Anindya Mitra, the learned Senior Advocate appearing on behalf of the appellant has made threefold submission in support of this appeal.
5. First, Mr. Mitra contends that the writ application filed by the private respondent was not maintainable in the absence of the appellant as party to the proceedings. According to him, in order to set any relief against the Kolkata Port Trust, a statutory authority, the Board of Trustees of the Port Trust constituted under the Major Port Trusts Act is the necessary party and as such, the learned Single Judge ought to have dismissed the writ application as not maintainable in the absence of the appellant.
6. Secondly, Mr. Mitra contends that the Act having invested the Estate Officer with the duty to seize any moveable found at the time of execution of the order of eviction and to sell those items for realization of the dues of the lessor, the learned Single Judge erred in law in holding that in the absence of any co-relation between the unauthorized occupant and the writ petitioner, the Port Trust Authority was not entitled to sell the goods belonging to the writ petitioner.
7. Thirdly, Mr. Mitra submits that under the provisions of the Act, the Estate Officer being the appropriate authority to decide the disputes involved herein, the learned Single Judge erred in law in directing the Chairman of the Port Trust to decide such question instead of asking the writ petitioner to approach the appropriate forum under the Act if it was dissatisfied with the order passed by the Estate Officer."
These submissions were countered by the learned counsel for the writ petitioner/respondents as follows:
"9. Mr. Jayanta Kumar Mitra, the learned Senior Advocate appearing on behalf of the writ petitioner/respondent has, however, opposed the aforesaid contentions advanced by Mr. Anindya Mitra and has contended that the Kolkata Port Trust being adequately represented in the writ application through its Chairman and the said Chairman of the Kolkata Port Trust having not only complied with the order of this Court in past but also prayed for review of the order for specifically directing him to dispose of the representation of the writ petitioner, the plea of the appellant that the writ application was not maintainable was not tenable in the eye of law.
10. As regards the plea of existence of alternative remedy taken by the appellant, Mr. Mitra contends that existence of alternative remedy is not an absolute bar in entertaining a writ application and such plea not having been taken at the initial stage was not entertainable for the first time before the appellate forum.
11. As regards the provisions contained in the Act for disposal of any moveable found at the public premises at the time of execution of an order of eviction, Mr. Mitra contends that in this case it has been sufficiently established that there was no connection of the writ petitioner or its transporter with the Kanji, the original tenant of the Port Trust, and as such, for realization of the arrears of rent due from the Kanji, the property admittedly belonging to the writ petitioner cannot be seized or sold in terms of the provisions of the Act. Mr. Mitra contends that third party who had no connection with the unauthorized occupier of the public premises cannot be asked to bear the burden of the mischief committed by such unauthorized occupier. Mr. Mitra, therefore, prays for dismissal of this appeal."
Considering these submissions, although the Division Bench held that the writ petition was not maintainable as KPT had not been made a party, the appeal was considered on merits to avoid multiplicity of proceedings. In paragraph 15, the Division Bench observes as follows:
"15. The next question is whether the writ petitioner who has admittedly kept its goods on the land belonging to the Port Trust Authority through its transporter can avoid the rigour of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 simply because its transporter unknowingly kept the goods in question on such land even if we assume for the sake of argument that the goods were damped mistakenly and the writ petitioner or its transporter had no connection with the unauthorized occupier against whom the order of eviction had been passed."
Provisions of Section 5 and 6 of the PPA, 1971 is reproduced in paragraph 16, 17. However, in paragraph 17, it is observed that "in this connection, Sections 59 and 61 of the Major Port Trusts Act are also to some extent relevant and quoted below......."
Thereafter, Section 59 and Section 61 of MPTA are reproduced in paragraph 18 as follows:
"18. A conjoint reading of the aforesaid statutory provisions makes it abundantly clear that if any goods are found on the land of the port and for such land any rent is due or payable, the Port Authority has not only the lien over those goods but also right to sell those goods to appropriate the sale proceeds towards the rental dues after a specified period and it is immaterial whether the person liable to pay rent to the Port Authority for the land is the owner of those goods or not. In other words, if somebody unknowingly keeps any goods on the land of the port, his goods would be liable to sale for realization of the dues of the rent for the land notwithstanding the fact that he had no connection with the person who was liable to pay the rent for that land. In the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the same principle has been adopted and according to section 6 thereof, if at the time of execution of any order of eviction from the public premises, any goods are found on the public premises, those goods will be liable to sale for the realization of the dues towards unauthorized occupation and the real owner of the goods cannot take the plea of ignorance of the ownership of the land or of the dues of the unlawful occupier against whom the execution proceeded for the purpose of recovery of those goods or avoiding the sale thereof. The object of giving notice to the owner as contemplated in the statutes is not for hearing any objection of the owner of the goods against the confiscation of his goods but for the purpose of giving him an opportunity to purchase the same in public auction and to lay claim over the balance amount of the sale-proceeds, if any, remains after meeting the liability of the unauthorized occupier."
With due respect to the observation of the Division Bench, we are not in agreement with the same. In our opinion, Sections 59 and 61 of MPTA cannot be read into proceedings under PPA, 1971. There can be no general lien under Section 59 of MPTA which would cover the goods of a party having no privity of contract with KPT, which are sought to be sold in execution proceeding under PPA, 1971. The Division Bench in fact notices that KPT had in execution obtained possession of the land from its tenant, and seized some timbers and casing pipes which were lying on the lease hold lands at the time of taking delivery of possession. The owner had imported the goods. They were kept on open ground for the purpose of sending the same to further destination. Clearly, therefore, KPT had no claim against the goods on account of rates and rents for services rendered under Section 42 of the MPTA. In such circumstances, the provisions of Section 59 and 61 of MPTA were not at all relevant for deciding the controversy between the parties. The issue decided by the Division Bench did not arise on the pleadings. Nor was the point argued by any of the parties. The three points argued by the parties, 1) that KPT should have been made a party, 2) under Section 6 of the PPA, 1971 KPT was entitled to sell the goods, even of a stranger, found in/on premises under unauthorized occupation and 3) that alternative remedy was available. Therefore, in our opinion, findings in paragraph 18 are at best only obiter dicta. In our opinion, the first part of para 18 of the judgment does not deal with the issue raised before the Court. Mr. Anindya Mitra had not even raised the issue about the power of KPT under Sections 59 or 61. No grievance had also been made while Mr. Jayanta Kumar Mitra, learned counsel for the petitioners submitted that the KPT had wrongly invoked Sections 59 and 61 of MPTA. The whole issue was limited only to the powers of KPT under the PPA, 1971. In our opinion, it was a territory travelled into by the Division Bench, without being invited therein, either in the pleadings or the submissions of the learned counsel. These observations, therefore, cannot be treated as a precedent on interpretation of Sections 59 and 61 of MPTA. In our opinion, the issue with regard to the ambit of Section 59 and 61 has been correctly decided by the Division Bench in Indian Rayon Corporation Ltd. (supra). This judgment is in consonance with the law laid down by the Supreme Court in M/s. Sriyanesh Knitters (supra).
For the reasons stated above, we are unable to accept the submission of Mr. Anindya Mitra that there is no conflict between the earlier Division Bench Judgment in Indian Rayon Corporation Ltd. (supra) and the later Division Bench judgment in Canoro Resources Ltd. (supra). The view taken in first part of paragraph 18 of the judgment in Canoro Resources Ltd. (supra) is contrary to the law laid down by the Supreme Court and therefore, cannot be said to be good law.
In view of the above, it would not be possible to accept the submission of Mr. Anindya Mitra that the learned Single Judge was at liberty to follow either of the Division Bench judgments. The reference to Larger Bench, in our opinion, was the appropriate course to adopt.
The preliminary issue raised by Mr. Anindya Mitra has already been answered by two Full Bench judgments of this Court in the cases of Ahmad Hossain Sk. vs. State of West Bengal [(2001) 2 CHN 762] and Bhowanipore Gujarati Education Society vs. Kolkata Municipal Corporation [(2008) 4 CHN 420] .
In the case of Ahmad Hossain Sk. (supra), two earlier judgments of this court were relied upon before the Learned Single Judge. The Learned Single Judge proceeded and considered the matters on merits and expressed the view as under:
"...... I have not been able to accept the contentions of the petitioner based on the aforementioned two judgments of this Court and accordingly I request the Hon'ble Chief Justice to constitute a larger Bench for reconsideration of the matters indicated above."
The Acing Chief Justice was pleased to direct that "in view of the judgment dated 5.10.99 passed by Justice Barin Ghosh, let the matter be placed before the Larger Bench." It was submitted by the counsel for the petitioner that the Learned Single Judge should have followed the binding precedent of the Division Bench judgment of the same court.
On the other hand, it was submitted by the learned counsel for the State that the Chief Justice has inherent power to refer any matter of some importance to a Full Bench. The Full Bench took note of the provisions of the Appellate Side Rules and observed as follows :
"13. Thus under Chapter VII, a Division Bench of two Judges' can differ from any other Division Bench upon point of law if that Division Bench has taken a view contrary to Full Bench judgment on the point of law and in every other case they shall state the point or points of their difference and can refer the matter for decision of a Full Bench. We may not be understood as stating that the Hon'ble Chief Justice has no power to make a reference to a Larger or Special Bench/Full Bench except on a requisition or reference by a Division Bench. Apart from the specific powers in that behalf conferred under Chapter II, the Chief Justice is invested with and has the inherent power to refer any matter of some importance to a Special Division Bench consisting of three or more Judges."
Reference may also be made to paragraphs 31, 32, 33 and 34 of the aforesaid judgment as the observations contained therein would be of some relevance in the facts and circumstances of the present case. In these paragraphs it is held as follows:
"31. It is the ratio decidendi of a judgment that is a binding precedent. The hierarchy of authority with regard to binding precedent is summed up in paragraph 28 at page 158 of Salmond on Jurisprudence, Twelfth Edition, as follows;
"The general rule is that a court is bound by the decisions of all courts higher than itself. A High Court Judge cannot question a decision of the Court of Appeal, nor can the Court Appeal refuse to follow judgments of the House of Lords. A corollary of the rule is that the courts are bound only by decisions of higher courts and not by those of lower or equal rank. A High Court Judge is not bound by a previous High Court decision, though he will normally follow it on the principle of judicial comity, in order to avoid conflict of authority and to secure certainty and uniformity in the administration of justice. If he refuses to follow it, he cannot overrule it; both decisions stand and the resulting antimony must wait for a higher court to settle."
32. A precedent, however, ceases to be a binding precedent.
(i) if it is reversed or overruled by a Larger Bench or the Supreme Court
(ii) when it is affirmed or reversed on a different ground.
(iii) when it is inconsistent with the earlier decisions of the Bench of the same rank of that High Court.
(iv) when it is sub silentio, and
(v) when it is rendered per incuriam.
33. Subba Rao, J. (As High Lordship then was) in Dr. K. C. Nambiar vs. State of Madras, AIR 1953 Madras 351, laid down certain salutary principles that were later also approved by a Full Bench of the Andhra Pradesh High Court in Subbarayudu vs. The State, AIR 1955 AP 87 (FB). They are as follows :
34.
"A Single Judge is bound by a decision of a Division Bench exercising appellate jurisdiction. If there is a conflict of Bench decisions, he should refer the case to a Bench of two Judges who may refer it to a Full Bench. A Single Judge cannot differ from a Division Bench unless a Full Bench or the Supreme Court overruled that decision specifically or laid down a different law on the same point. But he cannot ignore a Bench decision, as I am asked to do on the ground that some observations of the Supreme Court made in a different context might indicate a different line of reasoning. A Division Bench must ordinarily respect another Division Bench of co-ordinate jurisdiction but if it differs, the case should be referred to a Full Bench. This procedure would avoid necessary conflict and confusion that otherwise would prevail."
34. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Special Bench/Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Special Bench judgment. A Single Judge of a High Court is bound by the judgment of another Single Judge and a fortiori judgments of Benches consisting of more Judges than one. So also, a Division Bench of two Judges of a High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A Single Judge cannot differ from a decision of a Larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench." These observations were reiterated by the subsequent Full Bench in the case of Bhowanipore Gujarati Education Society (supra) in the following words:
"57. A perusal of the aforesaid observations would clearly show that a Single Judge of a High Court is bound not only by judgment of a Division Bench but also of a co-ordinate Bench, i.e. Single Judge. It is also laid down that a Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two- Judges differs from the judgment of another Division Bench of two- Judges, it has to refer the case to a Full Bench. On the other hand, a Single Bench cannot differ from a judgment of a Larger Bench except when that decision or a judgment relied on in the decision has been specifically overruled by the Full Bench or the Supreme Court. If the decision of the Larger Bench is found by the Single Judge to be inconsistent with the law laid down by another Division Bench, Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench. We are of the considered opinion that, when a Single Judge makes a reference to the Chief Justice for constitution of a Larger Bench, it can only mean a reference to a Division Bench, consisting of two-judges. This is precisely the course adopted by the learned Single Judge. The direction issued by the learned Single Judge is to place the papers before the Chief Justice, "for passing appropriate orders." This direction cannot be read in isolation. Earlier in the judgment (para 51) the Learned Single Judge noticed the observations made by the Special Bench in the case of Ahamed Hossain Sk. (supra) that "if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench."
These observations, in our opinion, would be a complete answer to the preliminary submissions of Mr. Anindya Mitra.
The reference is answered accordingly. Let the writ petition be placed before the Learned Single Judge for decision on merits.
( Surinder Singh Nijjar, C.J.) I agree.
(Indira Banerjee, J.) I agree.
(Aniruddha Bose, J.) Later Mr. Subir Sanyal, learned counsel appearing for the respondent KPT, prays for stay of operation of this judgment and order, which is considered and refused.
( Surinder Singh Nijjar, C.J.) I agree.
(Indira Banerjee, J.) I agree.
(Aniruddha Bose, J.)