Calcutta High Court
Future Retail Limited And Another vs Life Insurance Corporation Of India And ... on 2 January, 2020
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Original Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P. No. 678 of 2017
Future Retail Limited and another
Vs.
Life Insurance Corporation of India and others
For the petitioners : Mr. A.K. Mitra, Senior Advocate,
Mr. Abhrajit Mitra, Senior Advocate,
Mr. Arindam Guha,
Mr. Shuvasish Sengupta,
Ms. Richa Goyal
For LICI : Mr. Moloy Kumar Basu, Senior Advocate,
Mr. Jahar Chakraborty,
Ms. Tanushree Dasgupta
2
For respondent no.4 : Mr. Jayanta Mitra, Senior Advocate,
Mr. Surajit Nath Mitra, Senior Advocate, Mr. Deepak Jain, Mr. Kumar Gupta Hearing concluded on : 06.12.2019 Judgment on : 02.01.2020 The Court:
1. The petitioners have preferred the present writ petition seeking various reliefs, in effect challenging an order granting eviction under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the P.P. Act"), primarily on the ground of violation of natural justice. The petitioners were not parties to the said proceeding.
2. It is argued on behalf of the petitioners that, in view of the respondent no.1 having admitted that the petitioners have been in possession of the disputed premises, the petitioners were necessary parties to the proceeding under Section 3 5(1) of the P.P. Act. In fact, the respondent no.1 had sought an amendment to its eviction petition to implead the petitioner no. 1 (also referred to as "Big Bazaar") as a party to the proceeding, by an application dated December 12, 2014. In the said application, the respondent no.1 admitted the petitioner no.1 to be "currently in occupation" of the suit premises. However, vide order dated November 30, 2015, it was held by the Estate Officer that the impleadment of the petitioners was not "strictly necessitated in the scheme of the Act", since the orders under Section 5(1) and Section 7(2) of the P.P. Act bound whosoever was in occupation. The premise of the said finding, it is argued, was bad in law, since the eviction order would directly affect the present petitioners, who were in admitted occupation of the premises‐in‐question.
3. Learned counsel for the petitioner argues, by placing reliance on the judgment of Krishna Ram Hahale (Dead) by his Lrs. vs. Mrs. Shobha Venkat Rao, reported at (1989)4 SCC 131, that where a person is in settled possession of property, even on the assumption that he had the right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. The said judgment was rendered in connection with a proceeding under Section 6 of the Specific Relief Act, 1963.4
4. By referring to Delhi Development Authority vs. Anant Raj Agencies Private Limited [(2016) 11 SCC 406], learned counsel for the petitioner argues that although the Respondent No. 1 heavily relied on the proposition of such judgment, that if the original lessee has been in unauthroised occupation of the property in question and the respondent therein had been illegally inducted in possession of the same by the original lessee, who himself was in unauthorised possession of the property, both are liable to pay damages and that the sale of the property by the original lessee in favour of the respondent therein was not a valid assignment of his right in respect of the same and the sale deed was not binding on the landlord. In the said judgment, even the concerned High Court's order substituting the respondent therein under Order XXII Rule 10 of the Code of Civil Procedure was held to be bad in law.
5. Distinguishing Delhi Development Authority (supra), learned counsel for the petitioner argues that the same has no application in the instant case. It arose out of a civil suit involving eviction and the question involved was whether mere acceptance of rent after expiry of the lease amounts to renewal of lease.
Moreover, it is argued, the unauthorised occupant was made a party in the 5 second appeal in the said case. The extent of jurisdiction and fact finding power of the civil court is much wider than the Estate Officer and the Supreme Court did not hold the proceeding initiated by the unauthorised occupant was not maintainable or he had no locus standi. Moreover, it is argued by the petitioner, the writ court does not have jurisdiction or power to usurp the statutory duty of an Estate Officer, as the Supreme Court did as an Appellate Court, going into the rights of the parties to the proceeding. That apart, it is argued, the assignment of the lease was obtained in the said case asfter the lease in favour of the assignor had expired by efflux of time and therefore the assignment was void. The case pertained to a Nazul land and therefore there was no right to grant lease, as opposed to the present writ petitioner, who had a definite legal right to remain in occupation of the subject property, unless and until an order of eviction is duly passed in due process of law, which has not been done in the instant case.
6. It is next argued on behalf of the petitioners that not only were the petitioners entitled to be impleaded in the proceeding under Section 5, it was mandatory in law that a notice under Section 4(2)(b) of the P.P. Act be issued to all occupants, considered to be "unauthorised" under the Act, including the petitioner. 6
7. By relying on the provisions of Section 4 of the P.P. Act, the petitioners argue that the same contemplates a notice to show cause on all unauthorised occupants.
8. Section 2(g), on the other hand, defines 'unauthorised occupation' as occupation by any person without authority or whose authority, under a grant or other mode of transfer, had expired or had been determined for any reason whatsoever.
9. Section 5(1) of the P.P. Act envisages that, only after considering the cause shown in pursuance of a notice under Section 4 of the said Act and the evidence produced by the alleged unauthorised occupant, an order of eviction could be passed against such occupant under the said section.
10. As such, it is argued, the petitioner no.1 was entitled to an independent notice under Section 4 of the P.P. Act, which would be an essential precondition for initiating the proceeding under Section 5, as well as a specific finding by the Estate Officer as to the petitioner no. 1 being in 'unauthorised occupation' of the public premises prior to entertaining and carrying on with the eviction proceeding.
11. That apart, it is argued, there were ongoing negotiations between the petitioner no.1 and the respondent no.1 in respect of the disputed premises. Communications dated March 7, 2007 (annexure P2 at page‐51 of the writ 7 petition) and February 17, 2015 (annexure P6 at page‐86 of the writ petition) as well as an agency agreement between the petitioner no. 1 and the tenant, Eden Realty Ventures Pvt. Ltd. (previously Laxmi Realtors Pvt. Ltd.), which was acknowledged by the respondent no.1, as well as a communication dated February 3, 2016 (annexure P11 at page‐152 of the writ petition), between the LIC and the Future Retail Limited, are also relied on in this context. These documents palpably show that the respondent no. 1 not only had full knowledge of the occupation of the petitioner no. 1 in respect of the disputed premises, it had also been in touch with and negotiating with the petitioner no. 1 in respect of the said premises.
12. It is further argued on behalf of the petitioners that the Estate Officer violated the basic tenets of natural justice, even apart from the governing statute, in not impleading the petitioners but passing an eviction order against them on an erroneous legal footing, despite the admitted occupation of the petitioners in respect of the disputed premises.
13. It is argued on behalf of the petitioners that if a statute directs something to be done in a particular manner, the act has to be done in that manner alone and not otherwise. It is further submitted that the Estate Officer had no authority under law to order eviction of the writ petitioner without complying with the 8 provisions of the 1971 Act. In support of such proposition, the petitioner, in its written notes of argument, relies on a judgment reported apparently at (2007) 7 SCC 552. However, no such citation begins at the said page and volume of such journal.
14. In the present case, since an eviction order could be passed under Section 5(1) of the P.P. Act only with a prior notice to show cause under Section 4(2)(b) against all occupants, including the present petitioners, the proceeding under Section 5 of the Act, as well as the order in which it culminated, were vitiated due to absence of such prior notice to the petitioners.
15. It is next submitted on behalf of the petitioners that the Estate Officer, namely, Sri A. Sikdar, who passed the impugned order of eviction, was incompetent to pass such order, since he was not appointed in accordance with Section 3 of the P.P. Act.
16. It is argued that, despite an application being filed by the petitioners under the Right to Information Act, 2005, the Gazette Notification which pertained to the appointment of Sri A. Sikdar as an Estate Officer, was not disclosed by the respondent no. 1 in the eviction proceeding.
17. Although the supplementary affidavit dated January 24, 2019, affirmed in connection with the present writ petition by one Mrityunjoy Saha on behalf of 9 the respondent no.1, disclosed a Gazette Notification dated December 23, 2009‐ January 2, 2010, the sanction behind the functioning of Sri A. Sikdar as Estate Officer was apparently an Office Order dated July 4, 2012 appointing Arindrajit Sikdar in the cadre of Divisional Manager (DM), on transfer to "administration side" and posting him as Secretary and Estate Officer. However, such an Office Order could not in law, according to the petitioners, effectuate transfer to the post of Secretary or Estate Officer.
18. By relying on the affidavit‐in‐opposition dated February 20, 2019 affirmed by one Arya Sumant on behalf of Eden Realty, it is argued by the petitioners that the Gazette Notification‐in‐question appointed, as Estate Officer, "the" Secretary at Eastern Zonal Office, Kolkata, as specified in the Table referred to in the Notification, as Estate Officer of West Bengal. As such, it is argued, the said Notification referred to "the" Secretary as on that date and not "a" Secretary, covering even future appointees as Secretaries. A. Sikdar was not a Secretary on the relevant date.
19. Moreover, it is seen from the Address Book of 2017 that there were more than one Estate Officers appointed for the Eastern Zone during the same time‐span, which was against the specific mandate of the Gazette Notification‐in‐question. 10
20. It is further argued that there was no 'Secretary' mentioned in the Address Book of 2017, in which A. Sikdar was shown as one of the Estate Officers. As such, A. Sikdar was not a 'Secretary' coming within the purview of the Notification‐in‐ question, to qualify as an Estate Officer appointed under Section 3 of the P.P. Act.
21. It is thus argued on behalf of the petitioners that the impugned order was passed by a person who was not competent to act as an Estate Officer under the P.P. Act, which defect vitiated the entire proceeding as well as the final order passed therein.
22. The petitioners thus submit that this court ought to invoke jurisdiction under Article 226 of the Constitution of India and quash the order as well as the entire proceedings.
23. In support of his submissions, learned counsel for the petitioners cites a judgment reported at (2003) 2 SCC 111 [Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others]. In paragraph no. 40 of the said judgment in particular, it was held that the statutory interdict of use and enjoyment of the property must be strictly construed. It was further held that it is well‐settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities, while 11 acting under the statute‐in‐question, are only creatures of statute and must act within the four corners thereof.
24. Learned counsel next cites a judgment reported at (2006) 5 SCC 330 [Nautam Prakash DGSVC, Vadtal and others vs. K.K. Thakkar and others]. It was reiterated therein that a statutory authority, as is well‐known, must exercise its jurisdiction within the four corners of the statute and cannot act beyond the same.
25. Learned counsel also cites a judgment reported at (2008) 3 SCC 279 [New India Assurance Company Ltd. vs. Nusli Neville Wadia and another], wherein it was also held that the Estate Officer under the P.P. Act, being a creature of the statute, must comply with the same. When a notice is issued, the occupant of the public premises would not only be entitled to show‐cause but would also be entitled to produce evidence in support of the cause shown. The premise of the said judgment was that an application for eviction obligates the Estate Officer to apply his mind so as to entitle him to form an opinion that the respondent is a person who has been in unauthorised occupation of the public premises and that he should be evicted. Section 5 of the Act, it was held, postulates that an order of eviction must be passed only upon consideration of the show‐cause and any evidence produced by the occupant in support of its case and also upon giving 12 him a personal hearing, if any, as provided under Clause (ii) of sub‐section (2) of Section 4 of the Act.
26. Learned counsel next cites a judgment reported at (1989) 1 SCC 628 [M/s R.B. Shreeram Durga Prasad and Fatehchand Nursing Das vs. Settlement Commission (IT & WT) and another], wherein it was held that an order was a nullity because it was in violation of principles of natural justice. The Supreme Court reiterated the principles enunciated by it in State of Orissa vs. Dr. (Miss) Binapani Dei‐(1967) 2 SCR 625 as also the observations in Administrative Law by H.W.R. Wade, 5th edition, pages 310‐311, that an act in violation of the principles of natural justice or a quasi‐judicial act in violation of the principles of natural justice is void or of no value. An observation of the House of Lords in England was also referred to in support of the proposition that breach of natural justice nullifies the order made in breach. It was held that it is necessary, as a concomitant of the fulfillment of natural justice, that the appellant should be heard on the objections made by the Commissioner.
27. The petitioner next cites a judgment reported at Manu/WB/0789/2016 [Ramesh Kumar & Company Private Limited & Anr. vs. The Board of Trustees for the Port of Kolkata & ors.], wherein a division bench of this court took up for consideration appeals from orders passed in writ petitions challenging orders of eviction 13 passed under Section 5 of the P.P. Act. The division bench, inter alia, directed possession to be restored and the appellate authority to consider the stay application and connected appeal on merits and to dispose of the matter within a particular period.
28. Even in Ashoka Marketing Ltd. and another vs. Punjab National Bank and others reported at (1990) 4 SCC 406, a writ petition under Article 226 of the Constitution had been filed challenging the validity of the order passed by an Estate Officer under the P.P. Act. Such writ petition was disposed of on merits and, challenging the same, a special leave petition was taken out before the Supreme Court. The Supreme Court delved into the merits of the matter and no question arose as to the writ petitions being not maintainable against such order.
29. Accordingly, learned counsel for the petitioners submits that the present writ petition is very much maintainable on the grounds as taken therein, despite the availability of an alternative remedy in the form of an appeal.
30. Learned counsel for the respondent no. 1 (LIC) argued at the outset that the writ petition was not maintainable in view of the availability of an equally efficacious alternative remedy in the form of an appeal, as provided under Section 9 of the P. P. Act. In the present writ petition, it is argued, the petitioner in effect challenged 14 the order of eviction passed by the Estate Officer, which is appellable under Section 9 of the P.P. Act.
31. It is next argued, on the basis of the statements made by one Sreejit Ghosh in paragraph no. 7 of the affidavit‐in‐reply affirmed by him for the petitioners, that, although the petitioners feigned ignorance of previous knowledge of the eviction proceeding prior to December 15, 2015, when allegedly the respondent no. 4 informed the petitioner no. 1 of the order, in the very same paragraph, it has been admitted that the petitioners received a letter issued by the respondent no. 1 dated February 17, 2015, wherein the "legal case" between LIC and Eden Realty Ventures Pvt. Limited was categorically mentioned. Learned counsel refers to page‐86 of the writ petition, where the said letter has been annexed as annexure P‐6.
32. As such, according to respondent no. 1, there was no necessity for the petitioners to wait for so long to file the writ petition challenging the Estate Officer's order dated November 30, 2015, long after the limitation period for preferring an appeal against the same had expired. It is argued that the knowledge of the legal case was attributable to the petitioners from the letter dated February 17, 2015 itself. It was the incumbent duty of the petitioners to take information about such 15 legal case and to approach the Estate Officer himself for getting added as parties to the proceeding immediately.
33. Even when the application filed by the respondent no. 1 for addition of the petitioner no. 1 as a party to the proceeding was rejected, the present petitioners could very well have challenged the said rejection order. By sitting tight over the matter, the petitioners lost their chance and acquiesced to such refusal of addition of party and chose not to espouse their cause before the Estate Officer. As such, it is argued, now the petitioners cannot resile from such position and argue that such non‐impleadment of the petitioners vitiated the final order of the Estate Officer.
34. Moreover, upon having knowledge of the proceeding, the present petitioners ought to have followed up the said proceeding before the Estate Officer and could have challenged the final order passed by the Estate Officer on November 30, 2015 within the limitation period by preferring an appeal under Section 9 of the P. P. Act. The petitioners chose not to do so but to wait for almost two years before preferring the present writ petition, in order to bypass the limitation period for preferring the appeal. As such, it is argued that the present writ petition ought not to be entertained by this court at all.
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35. By placing reliance on paragraph nos. 4 and 71 of Ashoka Marketing (supra) in particular, learned counsel for the respondent no. 1 argues that if an appeal is maintainable against an order, no writ petition can be entertained against the same.
36. Learned counsel for the respondent no. 1 next argues that there was no privity of contract between the petitioners and the respondent no. 1. Since the petitioners were at best agents of Eden Realty Ventures Pvt. Ltd., which was originally a lessee under the respondent no. 1, there was no compulsion on the respondent no. 1 to serve any separate notice under Section 4 on such agents, being the present petitioners. In any event, it is argued that the order passed under Section 5(1) of the 1971 Act directs the eviction of all persons who may be in occupation, including the agents of the unauthorized occupant, that is, Eden Realty Venture Pvt. Ltd., which covers the petitioners as well.
37. It is next argued on behalf of the respondent no. 1 that the supplementary affidavit affirmed on January 24, 2019 by one Mrityunjoy Saha discloses the relevant Gazette Notification dated December 27, 2009‐January 2, 2010 as well as the Statutory Order (S.O.) No. 7 dated December 23, 2009 whereby, in supersession of the earlier Notification of the Government of India in the Ministry of Finance (Department of Economic Affairs) dated February 5, 2002, 17 the Central Government appointed the Officers specified in column no. (2) of the Table given thereinbelow, being Officers of the LIC of India and being Officers equivalent to the rank of Gazetted Officers of the Government, to be Estate Officers for the purpose of the LIC Act, 1956 and specified that the said Estate Officers would exercise the powers conferred, and perform the duties imposed, on Estate Officers by or under the said Act within the local limits of their respective jurisdictions, as specified in column (3) of the said Table, in respect of the properties belonging to or taken on lease by or on behalf of the said Corporation.
38. Serial No. 2 of the Table‐in‐question specified that the Secretary of the Eastern Zonal Office, Kolkata would operate as such Officer within the local limits of the jurisdiction of various States, including West Bengal. It is further argued that Shri Arindrajit Sikdar, on transfer to the administration side, was posted as Secretary and Estate Officer of the Zonal Office at Kolkata vide Office Order dated July 4, 2012, annexed as annexure R‐3 at page‐21 of the said supplementary affidavit affirmed by Mrityunjoy Saha.
39. Such documents, read in conjunction with the averments made in the said supplementary affidavit of Mrityunjoy Saha dated January 24, 2019, as per learned counsel for the respondent no. 1, were sufficient to establish that Shri A. 18 Sikdar, who functioned as the Estate Officer in passing the order of eviction against Eden Realty Ventures Pvt. Ltd., was duly authorized under Section 3 of the P. P. Act to do so and there could not arise any question of the said person having no jurisdiction to function as an Estate Officer in taking up the matter and passing the impugned order.
40. It is further argued on the basis of the affidavit‐in‐opposition filed by the respondent no. 1 that since a notice was issued under Section 4(3) of the P. P. Act and the report of affixation was also a part of the records and referred to in an amendment application, there could not be any question of the petitioners not having any notice of the proceeding. As such, the objections as to non‐service of notice on, and non‐impleadment of, the petitioners were not tenable in the eye of law.
41. Learned senior counsel for the respondent No.1 places reliance on a judgment reported at AIR 1988 Delhi 174 (Bhagat Singh vs. Delhi Development Authority), for the proposition that service of notice under Section 4 of the 1971 Act, upon unauthorised occupants is never required to be issued in the name of the sub‐ tenant, in view of categorical clarification that such notice is also meant for all the occupants of the particular premises with regard to which proceedings are being initiated for their eviction from the premises. The said judgment also held that 19 the a mistake as to the particulars sub‐premises does not vitiate the notice for eviction.
42. Learned senior counsel next place reliance on the judgment of Delhi Development Authority vs. M/s Anant Raj Agencies Pvt. Ltd reported at AIR 2016 SC 1806, for the proposition that the LIC, being the owner, is entitled to evict the petitioners and also claim damages from the petitioners, since the petitioners claimed through the original lessee, Eden Realty Ventures Pvt. Ltd, and there was no privity of contract between the LIC and the petitioners.
43. The first question which falls for consideration in the present case, is, whether the petitioner No.1 was entitled to a separate notice under Section 4 of the 1971 Act and, consequentially, whether the entire proceeding under Section 5 is vitiated for non‐service of such notice on the petitioner.
44. As a necessary corollary, the question, as to whether non‐impleadment of the petitioner No.1 in the eviction proceeding vitiated the said proceeding, also crops up.
45. As regards the first question, it is evident from the communication dated February 3, 2016, which is annexure as P‐11 at page152 at the instant writ application, that there was an agency agreement between the writ petitioner 20 No.1 and the original lessee, Eden Realty Ventures Pvt. Ltd (previously Laxmi Realtors Pvt. Ltd), which was acknowledged in the said letter. Moreover, there were communications dated March 7, 2007 (annexure P‐2 at page‐51 of the writ petition) and February 17, 2015 (annexure P‐6 at page ‐86 of the writ petition), between the petitioner No.1 and the respondent No.1. Taken in the context of the admitted position that there was an agency agreement between the petitioner No.1 and the original lessee, Eden Realty Ventures Pvt. Ltd., it is surprising that, when a query was put by the Court to learned senior counsel for the petitioner as regards the status of the petitioner No. 1 in respect of the property in dispute, learned senior counsel replied that such status was immaterial for the purpose of the present litigation, since, according to him, whatever may be the status, at worst, the petitioner No. 1 would be an unauthorised occupant, entitled to a notice under Section 4 of the 1971 Act.
46. The said argument has an inherent fallacy in it. If the logic therein is stretched to its limited, every employee of the original lessee or of the principal occupant and every busybody and squatter coming into the premises with the blessings of the original occupant would have to be treated as an unauthorised occupant under the 1971 Act and separate an independent notices under Section 4 of the said Act have to be given to each of them, followed by innumerable proceedings under 21 Section 5 of the 1971 Act being initiated. Such a proposition is diametrically opposed to the scheme of the 1971 Act, which has, as its object, eviction of unauthorised occupants from public premises, thereby lending a pace to the disposal of the same befitting a summary procedure. As such, the said interpretation of 'unauthorised occupation', as sought to be lent to it by the writ petitioners, which militates against all tenets of interpretation of statutes, apart from the same being contrary to the spirit of the 1971 Act.
47. In view of the specific admission of the petitioners that the petitioner No. 1 was an agent of the original lessee, namely Eden Realty Ventures Pvt. Ltd., whatever order was passed in the proceeding under Section 5 of the said Act against the principal occupant automatically binds its agent, being the petitioner No. 1. The petitioners, being mere agents of Eden Realty Ventures Pvt. Ltd., their rights vis‐ à‐vis the public premises are subservient and subject to those of the principal. Hence, it is an absurd proposition that an independent notice had to be served on the petitioners as well, although the petitioners were, at best, in occupation merely as agents under the principal occupant, against whom the order of eviction has been passed.
48. Although alleged negotiations were commenced by the petitioner No. 1 with the respondent No. 1, ultimately such negotiations did not reach fruition and at no 22 point of time was there consensus ad idem whereby the respondent No.1 agreed to induct the petitioner No. 1 as a direct tenant. In such circumstances, the petitioner No. 1 remained an agent of the principal unauthorised occupant and is bound by the result of the eviction proceeding against the principal.
49. No independent right of notice under Section 4 can be conferred on the petitioner No. 1 in the aforesaid circumstance and as such, the argument as to an absence notice under Section 4 to the petitioner No. 1 vitiating the proceeding, is itself not tenable in the eye of law.
50. Since the other question, as regards non‐impleadment of the petitioners in the proceeding for eviction, flows from the fate of the previous question, it goes without saying that the proceeding was not vitiated in not impleading the petitioner No.1 as a party to the proceedings.
51. As such, the application of the respondent No.1, for impleadment of the present petitioner No. 1 was rightly rejected by the Estate Officer.
52. That apart, the letter dated February 17, 2015, relied on by the petitioners themselves and annexed as annexure P‐6 at page‐86 of the writ petition, being a communication between the petitioner No. 1 and respondent No.1, categorically 23 refers to an existing "legal case" between the LIC and the Eden Realty Ventures Pvt. Ltd. regarding the public premises‐in‐question. Hence, specific knowledge of the case, much prior to the said proceeding reaching its culmination, is attributable to the petitioners.
53. If the approach of the petitioners was bona fide, they would have themselves applied for being added as parties to the eviction proceeding. The other option open to petitioner was to prefer a challenge against the order rejecting the application of the LIC for addition of the petitioner No. 1 as a party, with leave to prefer such challenge, since the petitioners were not parties to the proceedings. It is open to anybody aggrieved by any of the orders passed by the Estate Office or even a Court of law, to challenge such order before a higher authority, irrespective of whether the aggrieved parties were parties to the original proceeding. A formal leave is merely to be obtained from the appellate/revisional forum to prefer such appeal/revision, if the challengers were not parties to the original proceeding, as is well‐settled in law.
54. Thus, nothing prevented the petitioners themselves from challenging the refusal of the impleadment order of petitioner No. 1 in an appropriate proceeding. Having failed to do so, despite having knowledge of the legal proceeding, the petitioners acquiesced to the said order and let it attain finality. As such, the 24 petitioners, even otherwise than not being entitled to be impleaded in the proceeding, are also estopped from challenging their non‐impleadment at this belated juncture.
55. That apart, as rightly pointed out by learned senior counsel for the LIC, it was also open to the present petitioners to challenge the eviction order itself in an appeal under Section 9 of the 1971 Act, since the said provision does not confine the right to prefer an appeal only to the parties to the proceeding under Section 5 of the Act. Section 9(1) is preceded by the expression "An appeal shall lie from every order of the Estate Officer ...". Nowhere in the said section has it been specified as to who would be entitled to prefer such appeal, thereby opening it up for all aggrieved persons to have the opportunity to prefer such an appeal, at best with prior leave due to their not being parties to the original proceeding. Since the petitioners failed to prefer any such appeal within the limitation period stipulated in Section 9 of the 1971 Act, they cannot bypass such limitation at this belated juncture in the garb of the present writ petition directed in effect against the order of the Estate Officer, thereby skipping the appellate forum and the time‐bar which has set in meanwhile.
56. The pretext, that the eviction notice was affixed at a place which was not conspicuous as far as the petitioners were concerned, is neither here nor there. 25 Since the eviction order was passed by the Estate Officer against the principal unauthorised occupant, namely Eden Realty Ventures Pvt. Ltd., and in view of the petitioners having prior knowledge of such proceeding, as discussed previously, it was for the petitioners to take appropriate information. There was no occasion for the petitioners to be impleaded and/or any notice under Section 4 being served on the petitioners prior to the eviction proceeding, as a necessary consequence of which, there is no necessity in law to affix the notice at a convenient place suitable to the petitioners. Moreover, "conspicuous" is a matter of perspective. Since the notice‐in‐question was affixed at a visible spot at the disputed premises, the question of the said spot not being conspicuous is too much of a factual technicality to be taken for the first time in the present writ petition
57. As regards the authority of the Estate Officer to pass such an order, the petitioners chose to remain, despite knowledge of the proceeding, strangers thereto and thus have no locus standi to raise such point at all, that too in an application under Article 226 of the Constitution of India.
58. Even assuming that such locus standi vested in the petitioners, the question of authority of the Estate Officer is also not tenable in the eye of law. Since the petitioners have taken the objection for the first time in the present writ petition, 26 this Court has full scope of looking into the opposition thereto filed by the LIC in the writ, as this was the first opportunity for the LIC to meet the objection, as far as the writ petitioners are concerned.
59. In view of the affidavits and documents filed in the writ petition itself and the connected application under Article 227 of the Constitution of India, which were heard together, disclosing the validity of the appointment of Shri A. Sikdar as an Estate Officer on the relevant date, by virtue of an office order dated July 4, 2012, which was in consonance with a Gazette Notification dated December 23, 2009‐ January 2, 2010, there was sufficient legal sanction behind Shri A. Sikdar having authority to function as an Estate Officer. The frivolous argument as to the mention of "the" Secretary instead of "a" Secretary, cannot be interpreted to restrict the relevant notifications to apply the notifications to the person acting as Secretary on that date. On a conjoint reading of all the documents produced by the LIC with regard to the authority of Estate Officer, it is evident that the unqualified expression "the Secretary" would also mean future Secretaries to be appointed, either on transfer or by direct recruitment. There was no legal bar to such an appointment, made out either by the present writ petitioners or by the petitioner in the connected revision, bearing C.O. No. 3751 of 2017, to justify a 27 conclusion that the Estate Officer did not have authority to pass the impugned order of eviction.
60. Hence, none of the arguments of the writ petitioners are tenable in the eye of law. The writ petition is devoid of merit, both on facts and on law.
61. Accordingly, W.P. No. 678 of 2017 is dismissed on contest, without any order as to costs.
62. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.
( Sabyasachi Bhattacharyya, J. )