Calcutta High Court
M/S. Balajee Enterprise & Anr vs Board Of Trustees For The Port Of Kolkata ... on 25 March, 2009
Author: Indira Banerjee
Bench: Indira Banerjee
ORDER SHEET
W.P. No.1449 of 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
M/S. BALAJEE ENTERPRISE & ANR.
-Versus-
BOARD OF TRUSTEES FOR THE PORT OF KOLKATA &
ORS.
Mr. P.K. Ghosh, Sr. Advocate with Mr. A.B. Dutta &
Mr. K. Gupta, Advocates,
... for the petitioner.
Mr. Prabal Mukherjee, Advocate,
... for the respondents.
Mr. U.S. Menon with Mr. R.K. Jain, Advocates, ... for the respondent no.4.
Before The Hon'ble Justice INDIRA BANERJEE 25.03.2009 The short question involved in this writ application is, whether on conjoint reading of Section 59 of the Major Port Trust Act, 1963, with Section 6 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the respondent no.1 has a right of lien over goods of third parties with whom there was no privity of contract, kept in a warehouse at premise owned by the Kolkata Port Trust, for rent due to the Kolkata Port Trust, from its lessees and/or tenants.
The petitioner no.2, as proprietor of the petitioner no.1, carries on business inter alia of import and export of diverse goods as specified in the petition. It is claimed that in usual course of business the petitioners imported diverse goods from Vietnam and Indonesia between August 2006 and March 2007. The aforesaid goods were stored at a warehouse run by the respondent no.5, M/s. 2 Sea Rock Commerce Ltd., hereinafter referred to as Sea Rock at premises owned by Kolkata Port Trust, The respondent no.4, M/s. Warren Industrial, hereinafter referred to as respondent Warren, was at all material times a lessee under the respondent no.1. Respondent Warren inducted respondent Sea Rock to occupy the said warehouse.
The petitioners claim to have been storing goods at the warehouse for consideration. The respondent no.1 initiated eviction proceedings against the Respondent Warren under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. On or about 6th February, 2007, an order was passed under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 calling upon respondent Warren and all persons who might be in occupation to vacate the premises in question.
Mr. Ghosh, learned Senior Counsel appearing on behalf of the petitioners, drew the attention of this Court to the operative portion of the order dated 6th February, 2007. The operative portion of the said order is extracted hereinbelow for convenience :
"ACCORDINGLY, Department is directed to draw up formal order of eviction u/s.5 of the Act as per Rule made there under, giving 15 days time to O.P. and any person/s whoever may be in occupation to vacate the premises. I make it clear that all person/s whoever may be in occupation are liable to be evicted by this order and the Port Authority is entitled to claim damages for unauthorized use and occupation of the property against O.P. in accordance with Law up to the date of recovery of possession of the same.
KoPT is directed to submit a report regarding its claim on account of damages against O.P. indicating therein the details of the computation of such damages with the rate of charges so claimed for the respective period (details of computation with rates applicable for the relevant period) for my consideration in order to assess the damages as per the Act and the Rules made thereunder.
A substantial question of law has been raised by O.P. in course of hearing where argument with regard to 'rent payable' is based on decision of the Supreme Court of India reported in AIR 1976 SC 1637 to 1639. I am reserving my order with regard to rent payable by O.P. in the instant case with the direction to KoPT to mention the matter after recovery of 3 possession of the public premises in terms of my order of eviction u/s.5 of the Act. All concerned are directed to act accordingly."
It appears that a formal order in Form B was duly drawn up. It is, however, not clear whether the formal order was drawn up on the same date or on some subsequent date. On or about 11th March, 2007, the respondent no.1 took possession of the said premises, sealed the premises and did not allow removal of the goods kept therein.
The petitioner, it is contended, kept its goods at the warehouse upon payment of requisite charges. If the actual lessee, Respondent Warren parted with possession of the warehouse without approval of Kolkata Port Trust, Respondent Warren rendered itself liable to eviction and the order of eviction was rightly passed. The petitioners are not questioning the eviction of Respondent Warren or Respondent Sea Rock.
The question before this Bench is, whether the goods of the petitioners could, on the facts pleaded be detained and/or sold to realise the entire rent due from Respondent Warren to Kolkata Port Trust from the inception of the tenancy.
Mr. Mukherjee, learned Counsel appearing on behalf of the respondent no.1, submitted that the respondent no.1 was entitled in law to retain the goods and sell the same to realise the rent due from the tenant/lessee.
Mr. Mukherjee argued that Section 59 of the Major Port Trusts Act read with Section 6 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 gave Kolkata Port Trust, a right of lien in respect of all goods or articles lying at the public premises if rent was due in respect of the premises. Such a wide interpretation of Section 59 of the Major Port Trusts Act to confer right of lient on any goods or articles lying at the public premises in respect of which rent was in arrears, irrespective of the ownership of the goods or articles, could lead to absurd consequences. For example, a car placed for repair at a garage run at public premises owned by Kolkata Port Trust 4 for a day or two could be detained, seized or sold to realise the rent due from the garage owner or may be some other person from the inception of the tenancy.
In Port of Kolkata vs. Indian Rayon Corporation Ltd. & Anr. reported in 1987(28) ELT 334 (Cal.) a Division Bench held as follows:
"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 had 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.
Even under the general law, it is not open to the appellants to adjust its claims against 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.
For the reasons as aforesaid, we are unable to accept the contentions of the appellants........"
In Board of Trustees for the Port of Bombay vs. M/s. Sriyanesh Knitters reported in AIR 1999 SC 2947, the Supreme Court held as follows :
"Plain reading of S.59 shows that in respect of any goods which are imported the Board 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 realisation 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 rates due to the Board have not been fully paid.
Coming to the facts of the instant case the amount which was claimed by the appellants was in respect of the consignment of woolen 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 woolen rags. But the contention now is that it is in respect of the said dues, relatable to woolen 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 5 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."
It is not for this Court exercising writ jurisdiction to decide the factual issue of whether the goods actually belong to the petitioner or the tenant from whom rent was due or payable. There can be no question of allowing removal unless the petitioner is able to satisfy the land manager of its ownership of the goods in question.
In the Board of Trustees for the Port of Kolkata vs. Canoro Resources Ltd. & Ors. reported in 2008(1) CHN 941, a Division Bench of this Court, reading Section 6 of the 1971 Act with Section 59 of the 1963 Act held as follows :
"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 realisation 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. If 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 realisation of the dues towards unauthorised 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 law claim over the balance amount of the sale-proceeds, if any, remains after meeting the liability of the unauthorised occupier.
The learned Single Judge, therefore, erred in law in holding that the writ-petitioner could not be held liable for the dues of the unlawful occupant, unless some sort of link, between the writ-petitioner and the unlawful occupant against whom the order of eviction was 6 sought to be executed, is established. The fact, that the agent of the writ-petitioner, without taking due care to ascertain the ownership of the land, kept the goods on the land of the Port Trust Authority without taking any permission, was sufficient to attract the provision contained in Section 6 of the Act. The learned Single Judge, as it appears from the order impugned, did not consider the statutory provisions mentioned above."
The earlier judgement of the division Bench in Indian Rayon Corporation (supra) had not been cited before the Division Bench. The attention of the Division Bench was also not drawn to the judgement of the Supreme Court in Sriyanesh Knitters (supra).
It was strenuously argued by Mr. Mukherjee that the petitioners had an alternative remedy under the 1971 Act. Be it noted that neither the petitioners nor the respondent no.5 were parties to the proceedings before the land manager.
The petitioners are aggrieved by the refusal of Kolkata Port Trust to allow removal of goods imported by the petitioners. There is nothing on record to show that there was any order of the Estate Officer with regard to the goods in question.
In the absence of any order of the Estate Officer, directing detention of the goods of the petitioners, it is difficult to accept Mr. Mukherjee's submission that the petitioners had an alternative remedy, before the appropriate forum under the 1971 Act. The petitioners have not questioned the eviction of Respondent Warren or Respondent Sea Rock.
There being no order of detention of the goods of the petitioners, it is uncertain whether an application of the petitioner for release of goods would be entertained. The question of alternative remedy arises only when there is definite remedy and not an uncertain remedy. The petitioners, not being parties to the proceedings under the 1971 Act, cannot have any inherent right to intervene and/or seek orders in the said proceedings.
7
Be it noted that the land manager was conscious of the possession of Sea Rock. This was recorded in the order dated 6th February, 2007. The respondent no.1 obviously knew that the warehouse was being run by Sea Rock.
There can be no doubt that if the respondent Warren violated the terms and conditions on which the premises had been leased out to respondent Warren, Warren might be evicted. The sub- lessees, sub-tenants, licensees or any persons inducted by the respondent Warren or Sea Rock or anybody else cannot have any higher right than respondent Warren. If respondent Warren was evicted, its sub-lessees, sub-tenants, licensees would all have to go. The petitioners have also not questioned the eviction of respondent Warren or Sea Rock.
The only question is whether the property of the petitioners stored in the warehouse run by Sea Rock, inducted by the respondent Warren, can be detained, seized or sold to realise the entire rent due from the respondent Warren to the respondent no.1 from the inception of the tenancy.
The earlier judgement of the Division Bench in Indian Rayon Corporation Ltd. & Anr. (supra) had not been cited before the Division Bench. The attention of the Division Bench was also not drawn to the judgement of the Supreme Court in Sreyanesh Knitters (supra). Had the attention of the Division Bench been drawn to the aforesaid judgements, the decision in Canoro Resources Ltd. may have been otherwise.
There is no provision in the 1971 Act, which enables the respondent to retain the goods of an unauthorised occupant. Section 5(1) empowers the Estate Officer to pass an order of eviction, directing that the public premises should be vacated by all persons in occupation thereof, forthwith or within the time specified in the order of eviction.
It is only when an order of eviction is not complied with on or before the date specified that the Estate Officer might evict the unauthorised occupants.
8
In Canoro Resources Ltd. (supra) also, the Division Bench did not hold that the 1971 Act in itself authorised retention of goods for the purpose of sale. It was on a conjoint reading of Section 6 of the 1971 Act with Sections 59 and 61 of the Major Port Trusts Act that the Court held that third party goods could be detained to realise the dues of port trust.
In the matter of W.P. No.1116 of 2008 (APL (India) Pvt. Ltd. vs. Board of Trustees for the Port of Kolkata & Ors.) this Court found that there was divergence in the views taken by two different Division Benches of this Court on scope and ambit of Section 59 of Major Port Trust Act, 1963. This Court, therefore, referred the said writ application to the Hon'ble Chief Justice for constitution of a Larger Bench to adjudicate the issue of whether Section 59 of the Major Port Trust Act, 1963 read with Sections 5 and 6 of the 1971 Act conferred on the respondent no.1 a right of lien on or a right to detain, seize and/or sell the goods of third parties lying on public premises owned by the respondent no.1 for realisation of arrears of rent due from tenants, irrespective of whether the rent accrued in respect of those goods and irrespective whether the owner of those goods had any privity of contract with Kolkata Port Trust.
The issues all involved in this writ application are similar to the issues involved in APL (India) Pvt. Ltd. (supra), referred to the Hon'ble Chief Justice for constitution of a Larger Bench. This Court deems it appropriate to draw the attention of the Hon'ble Chief Justice to the divergence in the views of two different Division Benches, with a request to consider referring this writ application to a Larger Bench for a conclusive determination of the issue of whether Section 59 of the Major Port Trust Act, 1963 read with Sections 5 and 6 of 1971 Act confers on Kolkata Port Trust, a right of lien on or the right to detain, seize or sell the goods of third parties lying in a warehouse that was being run at the public premises for realisation of arrears of rent due from 9 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 Kolkata Port Trust.
Urgent certified copy of this order, if applied for, be supplied expeditiously to the parties upon compliance of the requisite formalities.
(INDIRA BANERJEE, J.) K.Banerjee Assistant Registrar (C.R.)