Calcutta High Court
Universal Autocrafts Private Limited & ... vs The Board Of Trustees For The Port on 24 February, 2010
Author: Tapen Sen
Bench: Tapen Sen
1
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
ORIGINAL SIDE
W.P. No. 767 of 2009
Universal Autocrafts Private Limited & Anr.
Vs.
The Board of Trustees for the Port
of Kolkata & Ors.
CORAM : The Hon'ble Justice Mr. Tapen Sen
For the Petitioners : Mr. Partha Sarathi Sengupta, Sr. Advocate
Mr. Aniruddha Roy, Advocate
For the Respondents : Mr. Prabal Mukherjee, Advocate
Mrs. Sujata Mukherjee Heard on : 7.8.09, 12.8.09, 18.8.09, 20.8.09, 10.9.09, 18.11.09, 14.12.09, 27.1.10, 2.2.10, 3.2.2010 C.A.V. on : 3.2.2010 Judgment Delivered on : 24.2.2010 Tapen Sen, J. In this Writ Petition, the Petitioners have prayed for an Order commanding upon the Respondents to withdraw the impugned Notice dated 30.1.2009 as contained in Annexure- P7 issued by the Land Manager (IC) whereby and whereunder the Petitioners were inter alia informed that for their alleged lapses and/or defaults and/or unauthorised acts referred to 2 therein, there was no alternative but to place the matter before the learned Estate Officer [being the adjudicating authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971]. The Petitioners have further prayed for quashing the said impugned communication dated 30.1.2009 and have also prayed for an Order prohibiting the Respondents from acting pursuant to or in furtherance of the same.
2. The relevant facts of the case are that a long term Lease for a period of 30 years w.e.f. 19.8.1990 was granted in favour of the Petitioner No. 1 (Universal Autocrafts Pvt. Ltd.) by the Respondent authorities is respect of a Land measuring 1800.460 Sq. metres situated at the Transport Depot Road under Plot No. D-343/4/C and SF-100/86 on a monthly rental basis for port oriented industrial use including activities of logistics, warehousing and acting as C & F Agents. Under the Lease, it was inter alia provided that only upon prior permission, the Petitioners could assign, transfer, sublet or part with possession of the demised premises or any portion thereof on such terms and conditions as the Respondents may deem fit and proper.
3. The Petitioners have stated that by communication under Ref. No. L.M. 4367/1/II dated August 28, 1987 issued by the Land Manager, Kolkata Port Trust, the proposal made by the Petitioners to sublet portions of the structures on the said land was granted to the Petitioner No. 1 on the following terms and conditions:-
a) The Respondent authorities would have no objection to the subletting by the Petitioner No. 1 only in favour of the five sister concerns of the Petitioner No. 1 3 being (I) M/s. Universal Enterprises Limited, (ii) M/s. Kumar Metals Private Limited, (iii) M/s. Pratibha Manufacturing and Marketing Limited, and (iv) M/s. Universal Cans and Containers Limited (presently known as Universal Prime Aluminium Limited) and Unique Manufacturing & Marketing Limited;
b) The port authorities would be entitled to permission fee per mensem in addition to monthly rent and taxes;
c) The sub-lease shall be subject to the terms and conditions of the existing lease;
d) The permission for sub-lease would not entitle the sub-tenant to avail the railway siding facilities; and
e) Permission for subletting related exclusively to the above mentioned Companies and could not be extended to any other firm, company or individual.
4. According to the further case of the Petitioners, the Petitioner no. 1 used to pay the lease rentals as and when they fell due without any default. They have further stated that permission for sub-letting was granted by the communication dated August 28, 1987 referred to above and these five firms/companies were, at all material times, sister Concerns of the Petitioner No.
1.
5. It is the further case of the Petitioners that since 1993, the Petitioner No. 1 discontinued the manufacture and storing activities of aluminium sheets and circles and diversified into other activities and as a result thereof, the Petitioner No. 1 became associated with one M/s. Schinder Electric 4 India Private Limited (Schinder, for short) for sale promotion of their products in West Bengal and the Petitioner No. 1 was also therefore required to engage one M/s. SVDK Logistics Private Limited ( SVDK for short) for activities of logistics. Such change in the business pattern of the Petitioner No. 1 became necessary owing to the change in the nature of the business. It is their further case that even though the Petitioner No. 1 became associated with Schinder and SVDK referred to above, there was no sub-letting of any portion of the said land in favour of either of the said parties. Consequently, no formal permission for sub- letting was required and/or was sought for from the Respondent authorities in terms of the deed of lease.
6. The Petitioners have stated that their association with the said Schinder and SVDK started from September, 13, 2006 and it was only in the year 2007 that the Petitioners, for the first time, received a Notice dated November 30, 2007 describing the said Schinder and SVDK as unauthorised sub-tenants and required the Petitioner No. 1 to demolish the unauthorised construction. According to the Petitioners, the allegations are baseless. According to them, at no point of time, there was any unauthorised construction on the land and neither Schinder nor SVDK are sub-tenants of the Petitioner No. 1.
7. According to their further case, both Schinder as well as SVDK merely acted as their logistics Firm and necessary Sign Board and/or Display Board was put up inside the premises where the said land was situated and which was leased out by the port authorities to the Petitioner No. 1. 5 According to them, sometimes in the interest of business and for attracting clientele and to show the running and operation of an entity, some Sign Boards/Display Boards may have to be put up but this would not necessarily mean that there is sub-letting. Nevertheless, the Respondent No. 4, on behalf of the Respondent No. 3, issued a communication dated 5.2.2008 to the Petitioner No. 1 at its registered Office situated at 4, India Exchange Place, Kolkata 700001 requesting the Petitioner No. 1 to demolish the unauthorised constructions and/or to remove the sub-tenants namely, Schinder and SVDK. The Petitioner No. 1 replied to the same by its letter dated May 2, 2008, duly explaining the facts and further explaining that no illegal sub-letting had been made by the Petitioner No. 1 in favour of any entity other than the five sister Concerns of the Petitioner No. 1 who were specifically granted permission earlier. It was clarified that M/s. Schinder and SVDK were not sub-tenants of the Petitioner No. 1 but were mere business associates of the Petitioner No. 1 with whom the Petitioner No. 1 was carrying on business by taking help of their expertise in their specialised field of operation.
8. It is their further case that after sending the reply dated May 2, 2008, the Petitioners reasonably believed that their explanation would be sufficient and that no further steps or coercive steps would be taken by the Respondents but all of a sudden, by the impugned communication dated 30.1.2009 issued by the Respondent No. 3 [being the Land Manager (I/C)], a Notice was issued to the Petitioner No. 1 which was received at its registered Office whereby and whereunder, the Respondents directed the Petitioner No. 1 to 6 quit, vacate and deliver vacant and peaceful possession of the demised land to the authorised representatives of the port authorities. In the said notice it was also contended that on and from August 1, 2009 the relationship of the Petitioners with the Board of Trustees for the Port of Kolkata would stand determined. The aforesaid notice issued by the port authorities was, thereafter, replied to on behalf of the Petitioner No. 1 by their Counsel by a communication dated July 8, 2009.
9. According to the Petitioners the impugned Notice dated January 30, 2009 being Annexure 'P-7' is void, non-est and has been issued in gross disregard of the principles of natural justice. Their further grievance is that prior to issuing the said Notice, no opportunity of hearing was given to the Petitioners. The said Notice was therefore a nullity. They have further submitted that in any event, the Land Manager (I/C) being the Respondent No. 3 does not have any authority to issue any Notice under the said Act of 1971.
10. The only point argued by Mr. P.S. Sengupta, learned Counsel appearing for the Petitioner, is that it is only the Chairman and the Chairman of the Kolkata Port Trust alone who can issue an ejectment Notice in respect of demised premises and such a power has been conferred upon the said Chairman by the Board of Trustees vide Resolution No. 82 on 26.5.1988 adopted in terms of Section 21 of The Major Port Trust Act, 1963 which lays down that the Board, with the approval of the Central Government may specify the powers and the duties conferred or imposed upon the Board and which may also be exercised or performed by the Chairman.
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11. Learned Counsel submits that under the provisions of Section 21 and by reason of the aforementioned Resolution, the Chairman was delegated with the power to terminate Leases sanctioned by the Trustees and he was authorised to issue ejectment Notices. Learned Counsel for the Petitioner produced, for the perusal of this Court, the powers delegated to the Board/ Chairman /Deputy Chairman etc. under the Major Port Trust Act, 1963 and vide Serial No. 20 thereof, the power to issue ejectment Notices in respect of the Trustees' land, godowns etc. that have been leased out, full powers have been delegated to the Chairman.
12. Resolution dated 26.5.1988 being the Resolution No. 82, has been mentioned therein. That Resolution was also produced by the learned Counsel appearing for the Respondents themselves and for convenience, the relevant portions thereof are quoted below:-
"Powers delegated to the Board/Chairman/Deputy Chairman/Deputy Chairman, Haldia Dock Complex/GM (HDC)/GM (opa)/Heads of Departments etc. under the Major Port Trust Act, 1963 Sl Reference to Nature Powers Trustees Government No. sanction M.P.T. of power delegat Resolution sanction Act 1963 ed No. 1 2 3 4 5 6
20. 21 (a) To issue Chairman Full Resolution PR-
ejectment notices powers No. 82 dated 17012/1/87-
in respect of 26.5.88 PG dated
Trustees' land, 21.9.89"
godowns etc.
leased out.
(Quoted)
The actual Resolution No. 82 which was produced
by the learned Counsel for the Respondents reads as follows:- 8
"Item No. 1 Subject:- Delegation of Powers to Chairman to issue ejectment notices in respect of Trustees' land, godowns etc. leased out.
As the Trustees are aware, leases of Port Trust's land, godowns etc. are granted with the prior approval of the Board and where the period exceeds 30 years also with the approval of the Central Government.
2. Similarly, when any lease is required to be terminated, sanction of the appropriate authority is also obtained.
3. During the currency of the lease period, frequently it becomes necessary to issue ejectment notices to the lessees for breach of lease terms. Such ejectment notices are issued for determination of the leases. It is felt that if in each and every case where ejectment notice is required to be issued for determining a lease and sanction of the Trustees is required to be obtained before issue of such notice, it would become extremely cumbersome and difficult. Accordingly, for administrative convenience, it is proposed to delegate to the Chairman, by invocation of Section 21(a) of the Major Port Trusts Act, 1963, the power to terminate leases sanctioned by the Trustees under Section 33 of the Act and to authorise issue of ejectment notices. The proposal has been vetted by the legal Adviser.
4. Sanction of the Trustees is requested to delegate full powers to the Chairman to determine the said leases, subject to approval of Government.
Deputy Chairman explained the need for the proposed delegation of powers to the Chairman. The Trustees felt that prompt action was necessary in such cases for issue of ejectment notices and accordingly they agreed to sanction the proposal.
Resolution No. 82- Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of Section 21(a) of the Major Port Trusts Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorise him to issue ejectment notices, subject to the sanction of Government."
(Quoted)
13. Learned Counsel for the Petitioners further submits that since the power to terminate leases and issue ejectment Notices have been delegated to the Chairman of the Kolkata Port Trust, the ejectment Notice issued by the Land Manager (IC) is totally without jurisdiction as it suffers from the vice of Delegatus Non-Potest Delegare (delegated power cannot be redelegated).
14. Learned Counsel refers to the Judgment passed in the case of Director General, ESI and Anr. vs. T. Abdul Razak reported in J.T. 9 1996 (6) SC 502. However since this is a well known tenet of law, it is not necessary to deal with the same save and except to note that a statutory power must be exercised only by the body or the Officer in whom such power has been confided into unless sub-delegation is authorised by express words or necessary implication, as has been held in the aforementioned Judgment.
15. Mr. Prabal Mukherjee, learned Counsel appearing for the Respondents has however strongly refuted the submissions of the learned Counsel for the Petitioner calling them misconceived on the basis of documents brought on record in the Affidavit-in-Opposition. He submits, with particular reference to Section 21(b), that the power and duties conferred or imposed on the Chairman may also be exercised or performed by the Deputy Chairman or by any Officer of the Board and the conditions and restrictions if any, subject to which powers and duties may be exercised, shall be subject to the supervision and control of the Chairman. Section 21 of the Major Port Trust Act reads as follows:-
"21. Delegation of powers: - A Board may, with the approval of the Central Government, specify-
(a) the powers and duties conferred or imposed upon the Board by or under this Act, which may also be exercised or performed by the Chairman; and
(b) the powers and duties conferred or imposed on the Chairman by or under this Act, which may also be exercised or performed by the Deputy Chairman or any officer of the Board and the conditions and restrictions, if any, subject to which such powers and duties may be exercised and performed:
Provided that any powers and duties conferred or imposed upon the Deputy Chairman or any officer of the Board under clause (b) shall be exercised and performed by him subject to the supervision and control of the Chairman."
(Quoted)
16. Relying upon the notesheet brought on record vide Annexure- R1, he submits that it will appear that the Chairman himself had 10 passed an Order approving the proposal for issuance of eviction Notices after application of his own independent mind and had put his signature thereunder. Thereafter, he had left the ministerial work to be performed by his subordinates. He submits that it is too much to expect that the Chairman would even sign Notices because these are all ministerial activities and consequently, once the Chairman had approved the taking of steps for issuance of eviction Notices, that itself was sufficient compliance of Section 21(b) read with the proviso appended to therein and therefore, the principle of Delegatus Non-Potest Delegare cannot be applied. He submits that there is no question of any delegation of his powers inasmuch as he had himself directed the issuance of ejectment Notices. He also refers to the Office Order dated 27.1.1990 issued under Memo No. 6460/3/G brought on record at Page-23 of the Affidavit-in-Opposition by which the Chairman had ordered that ejectment Notices in respect of leases determined with his approval may be signed by the Officers mentioned therein and for Kolkata, the Officers who have been authorised are the Deputy Chairman (Kolkata) and the Land Manager. According to him, since this has not been challenged, the Petitioners cannot take such a plea for purposes of escaping the eviction Notice.
17. The short question that therefore falls for consideration is as to whether, the impugned Order could have been passed by the Land Manager or whether it was only the Chairman who could have done so ?. The other question that also falls for consideration is as to whether, in the 11 instant case, the principles of Delegatus Non-Potest Delegare can be made applicable?
18. Before we deal with these two questions, this Court cannot lose track of the powers which were delegated to the Chairman by Resolution No. 82 dated 26.5.1988 both of which have been quoted above. Resolution No. 82 clearly states that it was resolved to sanction the proposal for delegation of powers under Section 21(a) of the Major Port Trust Act 1963 to the Chairman in so far as it related to the power to terminate leases with authorisation to him to issue ejectment Notices. This Resolution No. 82 received the sanction of the Central Government as is evident from the letter dated 21.9.1989 at Page 20 A which indicates under the heading 'subject' as follows:-
"Subject: Delegation of powers to Chairman to terminate leases sanctioned and sign ejectment notices in respect of Trustees' Land, Godown etc."
(Quoted)
19. Thus, upon a perusal of the aforementioned quoted portions, it is evident that both in the Resolution as well as in the letter dated 21.9.1989, a specific power was confided into the Chairman not only to terminate the leases which had been sanctioned by the Trustees but also to issue Ejectment Notice. However, the power to also "sign" ejectment Notices is not mentioned in the letter dated 21.9.1989 written by the under-Secretary to the Government of India and brought on record at Page 20A of the Affidavit-in- Opposition. The Resolution as well as the powers delegated which have both been quoted above, go to show that the Resolution was that the power to terminate the 12 leases and the authority to issue ejectment Notices were vested upon the Chairman alone.
20. The Resolution nowhere says that power was given to him to also "sign" the ejectment Notices. Upon a perusal of Agenda of Item No. 1 of the said Resolution, it is evident that power was given to the Chairman to only terminate the lease and to "issue" ejectment Notices.
21. Mr. Partha Sarathi Sengupta has however submitted, on the basis of the Resolution produced by the learned Counsel for the Respondents which has been quoted above, as well as on the basis of the letter dated 21.9.1989, brought on record in the Affidavit-in-Opposition and upon reading these two together, it is evident that the Chairman had also been delegated with the power to "sign" the ejectment Notice and therefore, the Land Manager had no authority to do so.
22. In the instant case, reading Agenda No. 1 of the Resolution together with the delegation of powers and also the letter dated 21.9.1989, it is evident that the Chairman was delegated with the power to terminate the leases and he was also authorised to "issue" ejectment Notices. In other words, an authority was vested upon the Chairman to "issue" ejectment Notices. There is no Resolution that says that he must also sign the ejectment Notices.
23. The word "issue", as per Black's Law Dictionary, means "to send forth; to emit; to promulgate; as, an Officer issues Orders, processes from a Court". It also means "to send out officially." In the instant 13 case, the Notings in the File (Annexure- R1), clearly shows that the grounds for issuance of eviction Notices were put up for approval before the Chairman who said "immediate issuance of ejectment Notice". The Chairman put his signature thereunder on 15.7.2008.
24. It is thereafter that Land Manager issued the impugned Order on 30.1.2009 but he nowhere referred to the Order of the Chairman. On the contrary, he has also added grounds which do not find place in the Notings. This Court is therefore satisfied that the submission of the learned Counsel for the Petitioners that once the power to issue Notices was vested in the Chairman, he alone could have issued the Notice of ejectment and the Land Manager could only thereafter have followed it up but he could not have independently issued an Order to quit, vacate and deliver vacant possession as has been done in the impugned Order dated 30.1.2009. Consequently this Court holds that the Land Manager could not have issued the impugned independent communication and it was only the Chairman who could not have done so. The second question is also answered in the affirmative by holding that the principle of Delegatus Non-Potest Delegare applies in this case.
25. However this Court does not find any illegality with the power exercised by the Chairman in approving the proposal for issuance of eviction Notices and therefore, the Act of the Chairman in approving the proposal by putting his signature and saying "immediate issuance of ejectment Notice" on 15.7.2008 is held to be proper being strictly within the confines of the powers delegated upon him. Consequently, the impugned Order dated 30.1.2009 14 is set aside but in view of the fact that the approval made by the Chairman is being upheld by this Court, the matter now stands remanded to him for passing a fresh Order in accordance with law and by himself issuing the Notices in terms of Resolution No. 82.
The Writ Petition is therefore allowed in part. No Order as to costs.
Upon appropriate Application(s) being made, urgent Xeroxed Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.
(Tapen Sen, J.) ............February, 2010 S.B. A.F.R./N.A.F.R.