Calcutta High Court
Board Of Trustee Of The Port Of Calcutta vs Pearl Transport Co. Ltd. And Ors. on 3 April, 2003
Equivalent citations: AIR2004CAL122, AIR 2004 CALCUTTA 122
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur, Jayanta Kumar Biswas
JUDGMENT
Ashok Kumar Mathur, C. J.
1. This appeal is directed against an interim order passed by a learned single Judge dated 7th April, 1986, whereby the learned single Judge while entertaining the writ petition passed the following order;
"the pendency of this writ petition will not prevent the writ petitioner from obtaining possession of the disputed plot of land No. LM3536D measuring 11,564.285 sqm. At Transport Depot Road from the ex-workers of M/s. OFU LYNX CO. LTD. (Now in liquidation) on the usual terms and conditions of the Calcutta Port Trust to set up business by the petitioner and to absorb the ex-worker of the said company on the undertaking by the petitioner to deposit and pay Calcutta Port Trust Rs. 6369.74 (Rupees six thousand three hundred sixty nine and paise seventy four only) per month from the date of taking possession of the said premises. The pendency of the writ petition will not, however, prevent the Calcutta Port Trust to issue fresh allotment in favour of the petitioner in accordance with law."
2. Being aggrieved by and dissatisfied with aforesaid order the present appeal has been preferred by the Calcutta Port Trust.
3. The brief facts which are necessary for the purpose of disposal of this appeal are that there is a piece of land belonging to Calcutta Port Trust, LM 3635 D comprising a godown. The area of the said land is 11,564.285 sq. mt. This land was let out by a registered deed of lease dated 2nd March, 1962 by the Trustees of Calcutta Port Trust in favour of one OFU LYNX LIMITED for a period of 30 years commencing from 22nd March, 1962 with an option for renewal for another period of 30 years.
4. On 28th September, 1970 the Calcutta Port Trust filed a suit being Title Suit No. 21 of 1971 in the Court of the Learned Subordinate Judge, 5th Court, Alipore for recovery of possession and arrears of rent, The suit was decreed in 1974 and possession was obtained by the Calcutta Port Trust on 11th January, 1978. M/s. OFU LYNX LIMITED went in liquidation by the order of the Hon'ble High Court in Company Petition No. 21 of 1974. It is admitted that the possession of the land was taken from the Official Liquidator by the Calcutta Port Trust.
5. The writ petitioner who had nothing to do with OFU LYNX LIMITED filed the present writ petition and alleged that since they are interested in the aforesaid piece of land and the same has not been leased out by the Calcutta Port Trust for a long time, it may be leased out to them. It is alleged that Calcutta Port Trust earlier wanted to allot this land to M/s. Jainex Limited but that could not be materialized and likewise with the M/s. Warren Metal Industries also all deal fizzled out. Therefore, the writ petitioner, M/s. Pearl Transport Company Limited approached the Land Manager of the Calcutta Port Trust for lease of this land from time to time but they could not succeed. It is alleged that some proposal was mooted out and some assurance was given by the Port Trust that they are likely to consider their proposal. But this allegation was categorically denied by the Port Trust that no such assurance was given to the petitioner that they are likely to lease out the present piece of land in favour of the writ petitioner.
6. Since the land was in possession of the Calcutta Port Trust and the writ petitioner was anxious to get this land allotted in their favour but failed in their attempt to get the land, the present writ petition was filed on 7th April, 1986 with the following prayers:
"(a) A writ of or in the nature of Mandamus be issued commanding the respondent Nos. 1, 2 and 3 and their officers and agents and subordinates to allot the plot of land LM 3536D measuring 11,564.285 sq. mt. At No. 1, Transport Depot Road, Calcutta to the petitioner company and to grant the lease thereof on a lease of 30 years with option for renewal for 30 years under the terms and conditions of the Calcutta Port Trust as per the prevailing rate;
(b) A writ of or in the nature of Mandamus commanding the respondent Nos. 1, 2 and 3 and their officers, agents, subordinates and servants to consider and dispose of the petitioner's application dated 4th June, 1985 being annexure 'A' to the petition in accordance with law by allotting the plot of land No. LM 3536 D measuring 11,564.285 sq. mt. at Transport Depot Road on the terms and conditions mentioned therein and subject to the usual and standard Rules and rates of Calcutta Port Trust;
(c) Rule Nisi in terms of prayers (a) and, (b) above;
(d) Pending the disposal of this application the petitioner be given liberty to obtain possession of the said plot from the ex-workers of OFU LYNX and to use the said plot No. LM 3536D measuring 11,564.285 sq. mt. at Transport Depot Road, Calcutta for setting up business by the petitioner and absorbing the ex workers of the M/s. (OFU LYNX COMPANY LIMITED Now in liquidation) on the usual terms and conditions of the Calcutta Port Trust and save as aforesaid, status quo regarding the said land be maintained;
(e) Ad-interim order in terms of prayer (d) above;
(f) Such other order or further order or orders as this Hon'ble Court may seem fit and proper."
7. On the same day, i.e., on 7th April, 1986 the Learned Judge passed the interim order directing the Port Trust that the Port Trust will not prevent the petitioner from obtaining possession of the disputed plot of land and fixed rent at Rs. 3639.74 per month.
8. Aggrieved against this interim order Calcutta Port Trust filed the present appeal with stay application.
9. A Division Bench of this Court by its order dated 7th August, 1986 passed an order for maintaining status quo which reads thus :
"after hearing the learned Advocate and considering the statements as contained in the affidavit, we feel that the only order which is required to be made now is that, we should direct maintenance of status quo in respect of possession as on today, till the disposal of the appeal until further orders."
10. Now the appeal has come up for final disposal. We have heard the learned counsel for the parties and perused the record. It is admitted position that the Calcutta Port Trust got possession of the land and they are the owners of the plot in question; there was no reason recorded by the learned single Judge for passing an exceptional order that the Port Trust must not prevent the writ petitioners from taking possession of the land, and also for fixing the rent, as if, the Court was the allotting authority. There was no privity of contract with Calcutta Port Trust. No assurance was given by the Calcutta Port Trust. There was no case for any specific performance.
11. The learned counsel for the appellant submits that this kind of order is totally inconceivable in writ jurisdiction and the learned counsel further submits that there was no prima facie case for grant of mandatory injunction by the learned single Judge.
12. As against this the learned counsel for the writ petitioner submits that the Calcutta Port Trust was not able to lease out this piece of land and gave assurance that on the writ petitioner's employing some of the ex-workers of the said OFU LYNX CO. LTD., the case for grant of lease would be considered. But correctness of such claim of the writ petitioner has been categorically denied by the appellant in paragraph 4 of the application for stay which reads thus :
"That the petitioner states that the Land Manager had no hand for allotment of the said land in question in favour of the writ petitioner until and unless the same was sanctioned and approved by the Board of Trustees of the Port of Calcutta and in the instant case no allotment had been sanctioned and no assurance had been given by the Port Authorities to the writ petitioner for the purpose of granting lease for any period and/or for any other terms and conditions in favour of the said writ petitioner by the Port Authorities."
13. The learned counsel for the writ petitioner has produced before us some correspondences of the year 2002 to show that the Port Trust is negotiating with the writ petitioner company for leasing out the present land and modalities are being worked out.
14. Mr. Panja, learned counsel for the appellant submits that this is a separate issue and the appeal has been preferred against the impugned order dated 7th April, 1986 which cannot be sustained as the mandatory injunction passed by the learned single Judge in Extra Ordinary Jurisdiction under Article 226 of the Constitution of India is totally misconceived.
15. We have given our anxious consideration to the matter and we are constrained to say that the order passed by the learned single Judge is inconceivable in Extra ordinary Writ Jurisdiction. It is the admitted position that the Calcutta Port Trust is the owner of the land and they obtained a decree and possession was handed over to them by the Official Liquidator because OFU LYNX CO. LTD., the earlier lessee had gone in liquidation and the assets of the company were with the Official Liquidator. This writ petitioner company had no connection whatsoever with the original lessee OFU LYNX CO. LTD. In that case when the property belongs to Calcutta Port Trust and they are master of their own property. It is not understood how can mandatory order be passed directing handing over of possession of land in question and fixing its rent in favour of writ petitioner, as if, the Court is the allotting authority. It is a public property and the public property cannot be leased out by some kind of private negotiation. This can only be done through a proper method and by holding public auction. Apart from this, such kind of lease is governed by the provisions of Section 49 of the Major Port Trusts Act, 1963. Therefore, Court cannot assume jurisdiction for regulating business of a statutory body. It is the right of the Port Trust to choose the body or person whom they want to lease out their property and the Port Trust have to regulate their business in accordance with the provisions of the Major Port Trusts Act, 1963. But the order which has been passed by the learned single Judge appears to have been passed in derogation of all known principles of law. If such kind of order is sustained, then any person can approach the Court and seek a mandamus that some piece of land of the Government is available and it should be allotted to him and Court may pass the order directing the Government to allot land and it may also fix rent therefore. Such a concept of writ power will lead to mockery of justice. This kind of order, in the present context, is purely the outcome of an abuse of power. The Court cannot force any party to necessarily enter into an agreement involving disposal of its property. Moreso, Port Trust is a statutory authority and its functions are regulated by statutory provisions, that is, the Major Port Trusts Act, 1963. Hence, the interim order passed by the learned single Judge is not sustainable by any stretch of imagination.
16. Therefore, we are of the opinion that the grant of interim order passed by the leaned single Judge dated 7th April, 1986 is totally without jurisdiction and we, accordingly, allow this appeal and set aside this order. The writ petitioner is in possession of this land since 1986 without paying any rent and enjoying this property. Learned counsel for the writ petitioner admitted before us that this property could fetch a minimum rent of Rs. 10,000/- per month. Since we are satisfied that the impugned order is wholly illegal and the petitioner enjoyed the property since 1986, therefore, we saddle the respondent/writ petitioner with heavy cost of Rs. 50,000/-. We direct the writ petitioner/respondent herein to hand over vacant possession of this land and to pay the cost to Calcutta Port Trust within one month from today.
17. Learned counsel for the writ petitioner submitted that some Bank Drafts for rent were sent, but Mr. Panja, learned counsel for the appellant, denied that. There is no material before us to show that Bank Drafts were sent or refused. But somebody's property cannot be allowed to be enjoyed or misused under illegal Court order. However, this order will not prevent the Port Trust Authorities from taking steps to recover proper rent or damages or compensation in accordance with law. This order will also not come in the way of entering into any negotiation in accordance with law by the parties, if they so want. The interim order passed by this Court on 7th August, 1986 shall merge with this final order. The appeal is allowed with cost as mentioned above.