Calcutta High Court
The Board Of Trustees For Port Of Kolkata vs Dollar Industries Limited And Others on 16 September, 2022
Author: Kausik Chanda
Bench: Arijit Banerjee, Kausik Chanda
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Kausik Chanda
I.A. No.G.A.1 of 2021
In
APOT No.173 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
DOLLAR INDUSTRIES LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.174 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
VIJAYSHREE TEXTILES PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.175 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S TURTLE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.176 of 2021
2
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
EXPRESS INDUSTRIAL COMPLEX PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.177 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S DESIGN GRID AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.178 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
PRAMOD KUMAR JHAWAR AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.180 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S BALKRISHNA SALES CORPORATION AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.181 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
SANJOY KUMAR BAJORIA AND OTHERS
AND
3
I.A. No.G.A.1 of 2021
In
APOT No.182 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S IRIS CLOTHINGS PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.183 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
STYLISH PRECAST PRODUCTS LLP AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.185 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
PRISM KNIT FAB (P) LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.186 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
HIMANSHU JHAWAR AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.187 of 2021
4
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S GOLDMAN TRADING PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.188 of 2021
THE BOARD OF TRUSTEES FOR THE PORT OF KOLKATA
-VERSUS-
M/S GULSHAN ARTS AND PRINTERS AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.189 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
RAJSHREE MECHANICAL UDYOG (P) LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.190 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
RATNA TEXTILE AGENCY AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.191 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
JDS TRADE LINKS PRIVATE LIMITED AND OTHERS
AND
5
I.A. No.G.A.1 of 2021
In
APOT No.192 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
SHREE KRISHNA HOSIERY PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.193 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S MITTAL KNITWEAR PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.194 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
M/S MANISHA CREATIONS AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.195 of 2021
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
SPACE INTERNATIONAL PRIVATE LIMITED AND OTHERS
AND
I.A. No.G.A.1 of 2021
In
APOT No.196 of 2021
6
THE BOARD OF TRUSTEES FOR PORT OF KOLKATA
-VERSUS-
HP COTTON CASUALS PRIVATE LIMITED AND OTHERS
For the appellants : Mr. Kishore Datta, Sr. Adv.,
Mr. Subhankar Nag, Adv.,
Mr. Aditya Sarkar, Adv.
For the respondents : Mr. Kalyan Bandopadhyay, Sr. Adv.,
Mr. Nilanjan Bhattacharjee, Adv.,
Mr. Arpan Guha, Adv.
Hearing concluded on : 22.04.2022
Judgment on : 16.09.2022
Kausik Chanda, J.:-
In view of the common set of facts and law points involved in this batch
of appeals, they were heard together and are disposed of by this common
judgment.
2. It appears that the premises in question situated at 103/24/1, Foreshore
Road, Shibpur, Howrah, was allotted to M/s. Binani Metals Ltd. on long term
lease for ten years commencing from April 1, 1980, without any option for
further renewal by the Kolkata Port Trust, presently known as Syama Prasad
Mookerjee Port, Kolkata (in short SMPK). After the expiry of the said lease
period on 31st March 1990, on July 21, 1997, SMPK demanded possession
from said M/s. Binani Metals Ltd. with the claim for occupation charges for the
period March 31, 1990, to July 31, 1997. Ultimately three eviction proceedings
7
being nos.752, 753, and 754 of 2006 were initiated by the SMPK against said
Binani Metals before the Estate Officer under the provisions of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971. In the said
proceedings M/s. Ashamangal Portfolio Pvt. Ltd. (Ashamangal in short) sought
to intervene by making out a case that a proposal for settlement of the tenancy
in its favour was approved by SMPK and it unconditionally accepted the offer in
the year 2000 for settlement of tenancy.
3. The said eviction proceedings were challenged by Ashamangal by filing
three writ petitions being WP No.857 of 2009, WP No. 860 of 2009, and WP
No.861 of 2009 under Article 226 of the Constitution of India. An interim order
dated September 2, 2009, was passed in the said writ petitions with the
following observations:
"In view of the above-noted situation, I admit the writ
petition and order that during its pendency the
respondents shall not take any steps for dispossessing
the petitioners of the immovable property in question.
On what terms and conditions this interim order will
continue will be examined next day when Mr.
Mukherjee shall inform this court the amounts for
arrears and current the petitioners should pay for
enjoying the possession and use of the property. The
petitioners are given liberty to apply before the Estate
Officer for appropriate order citing pendency of the
writ petition. List the matter as new motion next
Monday (07/09/2009)."
4. Subsequently, on the said writ petitions another Coordinate Bench of
this Court by an order dated November 15, 2016, directed as follows:
8
"In view of defaults made by the petitioners to
comply with the order dated September 27, 2016, it
would be appropriate to direct the occupants as
disclosed in the affidavit dated November 3, 2016 as
also any other occupants of the plots concerned to
make over all payments to the Kolkata Port Trust
Authorities on and from the month of November, 2016.
The occupants also will make such payment wholly
without prejudice to their rights and contentions. The
Kolkata Port Trust Authorities will accept such
payment from such occupants wholly without
prejudice to their rights and contentions. Neither the
payments nor the acceptance of such payments will
create any receipt or equity in favour of the occupants
or any of them in any manner whatsoever. These
payments will not in any manner diminish or
extinguish any obligation of any of the petitioners to
pay the Port authorities. All the parties before the
Estate Officer being present in Court, it would be
appropriate to direct the Estate Officer to continue
with the hearing of the proceedings on a day to day
basis commencing from tomorrow (November 16,
2016). He will not adjourn the hearing on any ground
whatsoever. In the event, the Estate Officer is required
to grant any party time to file any pleading or
documents he will not grant time for such purpose in
excess of three working days from the date of the first
request for such purpose.
In view of defaults made by the petitioners in
paying the November instalment, it would be
appropriate to attach the assets and properties of all
the petitioners as also the Directors of the petitioners.
The Directors of the petitioners owe responsibility to
the Court to comply with the orders obtained by the
first petitioner from the Court. The petitioners along
with the Directors named in the affidavit dated
November 3, 2016 will file an affidavit stating the
assets available at their disposal."
5. The said three proceedings being nos.752, 753, and 754 of 2006 were
disposed of on January 29, 2010, by the relevant Estate Officer appointed
under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
9
The Estate Officer was of the opinion that the proposal for allotment of the
premises in favour of Ashamangal had not matured and translated into a valid
grant. The application of SMPK for recovery of possession of the public
premises from unauthorised occupation of Binani Metals being the former
lessee in respect of the land in question was entertained. The Estate Officer
held that after the expiry of the period of lease in question Binani Metals has
lost its authority to occupy the public premises and was liable to pay damages
for such unauthorised use or occupation.
6. In the said order, the Estate Officer, however, observed that all persons
who were in occupation except Ashamangal Portfolio Pvt. Ltd. were liable to be
evicted by his order and the partial order of eviction would be valid till the
subsistence of an interim order of the Writ Court in respect of actual area in
occupation of Ashamangal since the possession of Ashamangal had been
protected by the writ Court of this Court on certain terms and conditions, and
the action taken by the SMPK was directed to abide by the decision of the Writ
Court.
7. The said order of eviction dated January 29, 2010, was challenged before
this Court by some of the occupants of the said premises by filing WP Nos. 277,
278, 279, and 280 of 2010, and a learned Single Judge of this Court in the said
writ petition by an order dated September 24, 2013, directed service of notice
upon the said unauthorised occupants under Section 4 of the 1971 Act.
10
8. Accordingly, notices under Section 4 of the said Act were issued upon the
unauthorised occupants of the said premises including the petitioners, and
again an order of eviction was passed on November 30, 2016, against
petitioners and other unauthorised occupants. In the said order, however,
liberty was given to the occupants/interested parties in respect of the said
premises to approach the Estate Manager, SMPK for regularisation of their
respective areas in occupation for settlement of tenancy as prayed for in terms
of SMPK's existing practice and procedure in dealing with such cases, if
permissible under the rule.
9. It has not been clearly spelt out in the writ petition how and by whom
the petitioners were inducted in the premises in question. In paragraph 4 of the
writ petition vaguely, it has been asserted that it was "inducted into the
demarcated portion of the premises no.103/24/1 Foreshore Road, Howrah by
the recorded lessee, Binani Metals Ltd. and thereafter Ashamangal Portfolio
Pvt. Ltd. and have been paying rent for last twenty years."
10. In paragraph 11 of the writ petition again it is averred that the
petitioners are in occupation of the said land for the last twenty years "with an
arrangement with recorded tenant Binani Metals" without any supporting
document.
11. The appellants in their application for stay in connection with these
appeals suggest that after the said order of eviction several unsuccessful
attempts were made to evict the writ petitioners. The writ petitioners suggest
11
that they had been insisting on payment of outstanding dues including interest
in respect of the proportionate area of the subject land against regularisation
and being inducted as a tenant as per the SMPK norms. By way of several
letters, the writ petitioners submitted several cheques from time to time for
rent, municipal taxes, and service taxes.
12. The writ petitioners in the aforesaid factual backdrop approached the
learned Single Judge with the following prayers:
"a) "A writ of and/or in the nature of Mandamus to
issue commanding the respondent authorities
concerned, to take appropriate steps to dispose of the
representations made by the petitioners to the Estate
Manager, General Administration Department, Estate
Division, Kolkata Port Trust, 15, Strand Road,
Kolkata-700001 lastly made on June 11, 2021 at the
earliest within a specific time frame;
b) A writ of and/or in the nature of Mandamus to
issue commanding the concerned respondent
authorities and/or their men and agents and/or
subordinates to take appropriate and/or effective steps
in respect of the offers made by the petitioner to the
Estate Officer, 'Kolkata Port Trust' for the kind
consideration and for settlement of tenancy under
tender cum auction procedure on long term lease
under the scheme of "right of first refusal" in favour of
the petitioner.
c) A writ of and/or in the nature of Mandamus to
issue commanding the concerned respondent
authorities and/or their men and agents and/or
subordinates from creating third party interest in
respect of the subject land as described admeasuring
about 595.877 and 31.89609 Square Meter at Plot No.
HL 227 at Foreshore Road, Howrah, Police Station
Shibpur;"
12
13. Before the learned Single Judge, by referring to a notice appearing at
page 343 of the stay application with regard to grant of first right of refusal to
the occupants of the property in a tender process (hereinafter referred to as
"the notice for first right of refusal") on payment of all outstanding dues, it was
prayed that a direction should be passed upon the SMPK authority for holding
the auction in terms of the said notice. The writ petitioners insisted on
recording an undertaking that in case of failure to be the highest bidders in
auction, the petitioners shall vacate the property in question within 48 hours of
completion of the auction.
14. By the order impugned learned Single Judge observed that indisputably
the petitioners have been occupying the land in question for long, they suffered
an order of eviction. The notice for the first right of refusal does not insist on
taking physical possession of the property from the occupants and indicates
the sufficiency of symbolic/paper possession for the purpose. In view of that,
the authority under no circumstances can insist on the delivery of physical
possession. The learned Judge was of the view that the SMPK should be
directed to initiate the tender process in terms of the said notice for the first
right of refusal. The learned Single Judge observed that the authority would be
at liberty to take symbolic/paper possession of the land from the petitioners in
terms of the said notice/circular. The petitioners should have the right to
participate in the tender with the "first right of refusal" subject to having
cleared all their dues including interests. In the event the petitioners establish
themselves as the highest bidders in the auction, their possession in respect of
13
the property should be regularised immediately. The SMPK was restrained from
creating any third-party interest in respect of the property in question till the
completion of the tender process. It was further observed that if the petitioners
fail to exercise their right of first refusal in the tender process for any reason
whatsoever the order of eviction should be executed by evicting the petitioners
from the property.
15. Assailing the order of the learned Single Judge, it has been submitted by
Mr. Kishore Datta, learned senior advocate appearing for the appellants that
the eviction order dated November 30, 2016, was passed after hearing all the
parties. The writ petitioners accepted the order of eviction and without
challenging the eviction order, the writ petitioners have no right to remain in
possession.
16. He has submitted that by the order dated 15 th November 2016, this
Court directed that the payments to be made to the appellants should be made
without prejudice to the rights of the parties and no equity will be created in
favour of the occupants.
17. Mr. Datta has, further, argued that the writ petitioners cannot claim
"first right of refusal" in terms of the notice for auction as they are not covered
under the same on the following grounds:
(i) As on 2nd January 2014, there was no order of eviction
passed against the writ petitioners. The order of eviction was
passed against them on 30th November 2016. Therefore, the
14
writ petitioners were not "sitting occupants" to come within
the scope of the said notice for auction.
(ii) The writ petitioners did not remedy the breach including
non-payment of outstanding dues.
18. It has been submitted by Mr. Datta that the learned Single Judge in
passing the impugned order did not take into consideration the unreported
decision of a Division Bench of this Court dated 24 th February 2020 passed in
F.M.A. No. 545 of 2020 (The Board of Trustees for the Port of Calcutta & Anr. v.
Grand Smithy Worlds LLP & Ors.) where it has been held that if the property is
in occupation, the auction would not fetch the highest possible value of the
property.
19. He has, further, submitted that under Article 298 of the Constitution of
India, the executive power of the Union and of each State shall extend to the
carrying on of any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose. A citizen
cannot have any fundamental right to trade or carry on business in the
properties belonging to the Government and there cannot be any infringement
of Article 14 if the Government tries to get the best available price for its
valuable properties. He relied upon paragraph 13 of the judgment of the
Supreme Court reported at (1972) 2 SCC 36 (State of Orissa v. Harinarayan
Jaiswal) in this regard. He further submitted that the said judgment has been
15
followed in the judgment reported at (2013) 5 SCC 182 (Uttar Pradesh Avas
Evam Vikas Parishad v. Om Prakash Sharma).
20. By placing reliance upon paragraph 14 of the judgment reported at AIR
1960 SC 801 (Parbhani Transport Cooperative Society Ltd. v. Regional
Transport Authority, Aurangabad), Mr. Datta further argued that there is
nothing in law to prevent the Government from entering a business in
competition with private citizens.
21. Mr. Datta has concluded his argument by submitting that it is not the
function of the Board to manage its affairs to earn the maximum profit; even as
a private corporate body may be inspired to earn huge profits with a view to
paying large dividends to its shareholders. But it does not follow that the Board
may not and need not earn profits for the purpose of performing its duties and
discharging its obligations under the statute. The judgment reported at (1986)
4 SCC 198 (Kerala State Electricity Board v. S.N. Govinda Prabhu and
Bros.) has been relied upon by him in this regard.
22. Mr. Kalyan Bandopadhyay, learned senior advocate appearing for the
writ petitioners, on the other hand, has argued that the order of eviction
against the petitioners has been subsisting since January 29, 2010, when the
order of eviction was passed by the relevant Estate Officer in proceeding nos.
752, 753, and 754 of 2006. Therefore, it cannot be said that the notification for
auction is inapplicable to the writ petitioners. The writ petitioners have been
requesting the Estate Manager of SMPK for the last few years to intimate the
16
outstanding dues including interests in respect of the proportionate area of the
subject land against regularisation of their tenancy. The writ petitioners had
also paid the rent for the month of November 2021 to the appellants. Prior to
August 2016 the respondents paid rent to Ashamangal and from September
2016 the respondents paid rent to the appellants.
23. Mr. Bandopadhyay has submitted that the writ petitioners have no
grievance against the order of eviction dated November 30, 2016, since it gives
liberty to the petitioners to approach the Estate Manager of SMPK for
regularisation of their respective areas in occupation or settlement of tenancy.
Their prayer for regularization/settlement of tenancy is pending before the
authority.
24. Mr. Bandopadhyay has argued that the said notice for auction permits
the sitting occupants to be considered for allotment of a particular
land/structure with the first right of refusal in the tender.
25. It has been forcefully argued by Mr. Bandopadhyay that the petitioners
should not be asked to vacate the relevant premises before their participation
in the auction on the ground that the same would fetch a better price for the
SPMPK. He suggests that there are about ten thousand direct or indirect
employees involved in the business of the petitioners which they run from the
premises in question. The eviction of the petitioners from the relevant premises
would lead to the loss of livelihood of those employees and their family
members.
17
26. Mr. Bandopadhyay has submitted that the petitioners undertake to
vacate the premises in question within 48 hours of completion of the auction if
they are not successful in the tender process.
27. Mr. Bandopadhyay has relied upon the following judgments of the
Hon'ble Supreme Court to suggest that the action of a welfare State or its
instrumentality must be governed by Article 14 of the Constitution and for the
public good, achieving the objects for which it exists.
I. (2007) 11 SCC 447 (Kusheshwar Prasad Singh v. State of
Bihar).
II. (1989) 3 SCC 293 (M/s Dwarkadas Marfatia v. Board of
Trustees of the Port of Bombay).
III. (1984) 3 SCC 410 (Sadhuram Bansal v. Pulin Behari Sarkar).
IV. (2004) 3 SCC 214 (Jamshed Hormusji Wadia v. Board of
Trustees, Port of Mumbai).
V. (2016) 3 SCC 582 (Senior Divisional Commercial Manager,
South Central Railways v. S.C.R. Caterers, Dry Fruits, Fruit
Juice Stalls Welfare Association).
VI. (1986) 4 SCC 251 (State of U.P. v. Smt. Pista Devi).
VII. (2013) 6 Mh. L.J. 167 (Navroz Kershasp Mody v. Life
Insurance Corporation of India).
18
28. From the facts narrated above and from the submissions of the
respective parties, the only issue that arises for consideration is whether the
writ petitioners being the unauthorised occupants of the relevant premises are
covered under the said notice and if so, whether they should vacate the said
premises before the auction takes place.
29. It is necessary to quote the said notice for auction as appearing at page
343 of the stay petition in extenso. The said notice reads:
"N O T I C E
Kolkata Port Trust (KoPT) has decided to grant
"first right of refusal" to the sitting occupants (i.e. who
had entered into a particular KoPT property on the
basis of certain arrangement with the recorded
tenant/licensee but without any approval of KoPT and
who are not rank outsiders or encroachers in respect
of that KoPT property) as on 2.1.2014, in the tendering
process to be taken up for allotment of the particular
land/structure (both under Kolkata Dock System
and Haldia Dock Complex), in respect of such
land/structure of KoPT provided, they file their
application complete in all respect along with requisite
documents within six months from the date of
publication of this Notice upon fulfilling the conditions
as detailed below
a) The original/recorded lessee/licensee ceases
to exist ;
b) A decree/order for eviction from Competent
Court of Law/Estate Officer has been
obtained;
c) The aforesaid decree/order for eviction has
been/will have to be executed by taking over
symbolic/paper possession from
original/recorded tenant/licensee;
OR
19
KoPT takes paper possession of that
land/structure under any mutual
arrangement, before allotment.
2. The occupations enjoyed by sitting occupants may be
considered for allotment through tender-cum-auction
procedure on lease / licence, as the case may be, in the
following manner -
a) The sitting occupants of land as on 2.1.2014, will get
first right of refusal in the tender-cum-auction for
lease/licence, provided,
The sitting occupants remedy all breaches including
non-payment of outstanding dues (which includes
Municipal Tax & other statutory taxes) at applicable
rate not less than prevailing SoR and interest, before
commencement of tender-cum-auction process;
The valuation of structure, if any, has to be paid to
KoPT by the successful bidder (even if the existing
sitting occupant is the successful bidder) since the
structure belongs to KoPT or will belong to KoPT after
taking over symbolic/paper possession:
The sitting occupants withdraw all court cases and
reimburse the legal cost incurred by KoPT, before
commencement of tender-cum-auction process;
Dues of recorded tenant will include onetime damages
for unauthorised subletting equivalent to rent charges
for one year and the same will be collected at current
updated SoR on the area occupied by sitting occupant;
If there is more than one sitting occupant, lease/
licence in respect of areas occupied by respective
sitting occupants will be processed for willing
occupants only, on recovery of dues on pro-rata area
basis, provided each space has separate access.
b) Sitting occupants in KoPT structures as on 2.1.2014,
will also get first right of refusal in the tender-cum-auction
for 11 monthly licence and /or lease, provided,
The sitting occupants remedy all breaches including
non-payment of outstanding dues (which includes
Municipal Tax & other statutory taxes) at applicable
rate not less than applicable SoR and interest, before
commencement of tender-cum-auction process;
20
The sitting occupants withdraw all court cases and
reimburse the legal cost incurred by KoPT, before
commencement of tender-cum-auction process;
Dues of recorded tenant will include onetime damages
for unauthorised subletting (in case, structure was
originally leased out) equivalent to rent charges for one
year and the same will be collected at current updated
SoR on the area occupied by sitting occupant
If there is more than one sitting occupant,
licence/lease to respective areas shall be processed for
willing occupants only, on recovery of dues on pro-rata
area basis, provided each space has separate access.
3. Interested sitting occupants are requested to
meet/contact the following officers to understand the
scheme before submitting applications:
a) For land/structure under Kolkata Dock System:
Shri Santanu Mitra,
Sr. Ex. Engineer, Estate Division
Annex Building, 5th Floor
Kolkata Port Trust Head Office
15, Strand Road
Kolkata - 700 001"
30. The said notice for first right of refusal was issued with the object to
expedite the commercial exploitation of the land belonging to the SMPK in
respect of which they have obtained a decree of eviction, but the possession
thereof was with an unauthorised occupant sitting on the said land. The
notification entails a limited right to such an unauthorised occupant sitting on
the said land or property as on January 2, 2014, to participate in the auction
with the right to first right of refusal in the auction.
31. A bare reading of the aforesaid notice, in particular, paragraph-2(a)
thereof, does not support the contention of Mr. Datta that the said notification
21
only applies to a sitting occupant as on January 2, 2014, against whom an
eviction decree was passed, and since the eviction decree was passed against
them only on November 30, 2016, they could not avail the benefit of the said
notice.
32. The opening paragraph of the said notice read with sub-paragraph (a)
thereof makes it clear that the said notice applies to an unauthorised
occupant, who has been found to be in possession of an SMPK property as on
January 2, 2014, on the strength of certain arrangement with the recorded
tenant/licensee but without the approval of the SMPK. It will be further
apparent that the conditions mentioned in Sub-paragraph (a) and (b) thereof
are not applicable to the said sitting occupants. The said two conditions are
relatable to the land or the property in question.
33. Paragraph 2(a) of the said notice clearly provides that the same would be
applicable to "the sitting occupants of land as on 2.1.2014," it does not suggest
that there has to be an eviction decree against such sitting occupants as on
2.1.2014.
34. The combined reading of the said first paragraph and paragraph 2(a) of
the said notice would suggest that in order to come within the purview of the
said notice, it is not necessary that there has to be an eviction decree passed
against the "sitting occupants" as on 2.1.2014. It only provides that there has
to be a subsisting decree of eviction in respect of the land/property in question
and not necessarily against the sitting occupants.
22
35. It has already been noted that in respect of the said premises an eviction
decree was initially passed on January 29, 2010, against the original lessee
and again on November 30, 2016, against the petitioners. Since the writ
petitioners were admittedly in possession of the said premises as on 2.1.2014,
the said notice for first right of refusal applies to them.
36. Again, it has to be noticed that paragraph 1(c) of the said notification
does not provide for any additional condition to come within the scope of the
said notice for the first right of refusal. It provides for the manner in which
SMPK requires to take possession of the land in question before the allotment
of the land in the auction. The said paragraph 1(c) makes it clear that before
the allotment by way of a tender process, SMPK may take the symbolic/paper
possession from the original/recorded tenant/licensee as and by way of
execution of the eviction decree or it may take paper possession of the relevant
land/structure under any mutual agreement. Therefore, the appellants, in my
view, cannot insist on vacating or delivery of the physical possession of the
relevant land or property before the same is allotted by way of auction.
37. The first right of refusal in the tender-cum-auction is further subject to
the compliance of the conditions enumerated in paragraph 2 of the said notice.
It has all through been the stand of the writ petitioners that they are willing to
comply with the conditions under said paragraph 2 of the said notice. I may
hasten to add that though the said notice for first right of refusal indicates that
to avail the benefit of the same an unauthorised occupant needs to apply
within six months from the date of publication of the notice, neither the
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appellants nor the writ petitioners indicated the date of publication of the
notice. The appellants have not taken the ground that the said notification is
no more in force or the application of the writ petitioners has become time-
barred.
38. In view of the above, I am of the opinion that the writ petitioners do come
within the purview of the said notice for first right of refusal and SMPK cannot
insist on vacating the said premises as a condition precedent to avail the
benefit that flows from the said notice.
39. The Division Bench of this Court (to which I was a party) had no occasion
to consider the applicability of the said notice for first right of refusal in the
judgment delivered in FMA 545 of 2020 (The Board of Trustees for the Port of
Calcutta & Anr. v. Grand Smithy Worlds LLP & Ors.). Therefore, the propositions
laid in the said judgment do not apply to this case.
40. I do not have any quarrel with the propositions of law as laid down in the
other judgments cited by Mr. Datta and Mr. Bandopadhyay. Therefore, there is
no necessity to discuss the said case laws separately.
41. The order of the learned Single Judge, therefore, does not call for any
interference and the same is accordingly upheld. It is only added that the
SMPK will be at liberty to initiate the auction process at their earliest upon
taking the symbolic/paper possession of the relevant premises from the writ
petitioners. It is clarified that in the event, the writ petitioners do not become
successful in the auction, they will vacate the property under their occupation
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within 48 hours of completion of the auction. Otherwise, the SMPK will be at
liberty to recover the possession from them by executing the eviction order.
(Kausik Chanda, J.)
Arijit Banerjee, J.:
1. I have had the benefit of reading the detailed judgment of my learned Brother. I completely agree with the reasons recorded and conclusion arrived at by my Brother. However, I take this opportunity to add a few words.
2. The short question in the case is whether or not the undated notice for auction wherein KoPT has recorded its decision to grant "first right of refusal"
to the sitting occupants, would apply to the present writ petitioners. It is not in dispute that as on 2.1.2014, the writ petitioners were "sitting occupants" of the property in question. It is also not in dispute that the concerned Estate Officer had passed an order for eviction in respect of the concerned premises on January 29, 2010. Such order having been passed without serving notice under the relevant provisions of the Public Premises (Eviction of Unauthorised Occupants) Act 1971 on the present writ petitioners, some of them challenged the order by filing W.P. No. 277 of 2010. A learned Single Judge by judgment and order dated September 24, 2013, in effect held that without service of such notice, the writ petitioners could not be evicted. Without formally setting aside the eviction order, the learned Judge directed the Estate Officer to give a hearing to the writ petitioners and take a final decision in the matter. In other 25 words, to my mind, the eviction order was put in abeyance pending final decision by the Estate Officer.
3. It is also not in dispute that after issuing notices under Section 4 of the 1971 Act and of all the unauthorised occupants of the concerned premises, the Estate Officer passed an order of eviction on November 30, 2016 against all unauthorised occupants of the concerned premises.
4. In view of the aforesaid it appears that as on January 2, 2014, the present writ petitioners were "sitting occupants" of the concerned premises and there was an eviction order in respect of such premises. Therefore, in my opinion, the writ petitioners are covered by the aforesaid Notice issued by KoPT.
5. In view of the aforesaid I am also of the view that the learned Single Judge's judgment and order does not call for interference. It is a well considered and sufficiently reasoned order. The view taken by the learned Judge, in my opinion, is a plausible and probable view which does not warrant interference in an intra Court appeal. The appeals and the connected applications are accordingly dismissed.
6. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.
(Arijit Banerjee, J.)