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Monday, December 8, 2014

Whether the High Court of Calcutta whereby, exercising powers under Article 226 of the Constitution of India, has allowed the application of the respondent No.1, for condonation of delay filed before the appellate authority (District Judge/ Additional District Judge, Alipore) and leave is granted to the said respondent to file the appeal under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred to as ‘the Act’). is correct = No- Respondent No.1 contested the eviction proceedings initiated by the appellant, against Respondent No.2, Raj Virmani, as her power of attorney holder. It is also not disputed that Raj Virmani was the tenant in the premises in question, and her tenancy was terminated. Respondent No.1 failed to explain as to how thereafter he occupied the premises without the consent of the Port Trust. From the record it also reveals that the Respondent No 1 had the knowledge of the eviction proceedings, and he contested on behalf of Respondent No.2. As such, in our opinion, the appellate authority has rightly questioned the locus of Respondent No.1 in maintaining the appeal along with application for condonation of delay. The eviction order drawn against Respondent No.2 attained finality, who never filed nor attempted to file any appeal against the order dated 4.8.2008 passed by the Estate Officer. As such, respondent No.1 who was power of attorney holder of Respondent No. 2, cannot be allowed to maintain the appeal on his own behalf to protract the eviction proceedings. No doubt, sub-section (2) of Section 4 of the Act requires issuance of notice to those in occupation of public premises before the eviction order is passed against such persons, but in the present case before us, since the proceeding has been drawn against unauthorised occupant (Raj Virmani), and to escape eviction, she appears to have handed over possession of the premises to Respondent No.1, as such, the subsequent occupier cannot be said to be entitled to fresh notice. If such person is allowed to maintain the appeal, by the time the eviction proceedings are over against him, he might hand over the possession of the premises to third or fourth party. Sub-section (2) of Section 4 of the Act cannot be restored to protect the interest of such unauthorised occupants who enter into possession, after eviction proceeding has been initiated against their predecessor in possession. 8. Therefore, in our opinion, High Court erred in law in allowing the application of condonation of delay moved by the respondent no.1 before appellate court, and granting him leave to appeal, against order of Estate Officer.=2014-Oct.Part-CIVIL APPEAL NO. 9387 OF 2014 (Arising out of S.L.P.(c) No.19835 of 2010) BOARD OF TRUSTEES OF THE PORT OF KOLKATA ... APPELLANT VERSUS KALIPADA BHAKAT & ORS … RESPONDENTS

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 9387 OF 2014
                 (Arising out of S.L.P.(c) No.19835 of 2010)


BOARD OF TRUSTEES
OF THE PORT OF KOLKATA       ...  APPELLANT

                 VERSUS


KALIPADA BHAKAT & ORS                 … RESPONDENTS



                       J U D G M E N T



PRAFULLA C.PANT,J.


Leave granted.

2.   This appeal is directed against the judgment and order  dated  5.2.2010
passed by the High Court of Calcutta whereby said Court,  exercising  powers
under Article 226 of the Constitution of India, has allowed the  application
of the respondent No.1, for condonation of delay filed before the  appellate
authority (District Judge/ Additional District Judge, Alipore) and leave  is
granted to the said respondent to file the appeal under the Public  Premises
(Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to  be  referred
to as ‘the Act’).

3.    Brief facts of the case are that a plot of land measuring  133.41  sq.
meters at 33 Coal Depot, Chetla Railway Siding also known as Chetla  Station
Yard was allotted by the Port  Trust  to  Raj  Virmani  (present  respondent
No.2), on a month to month lease basis, and the lease deed was  executed  on
1.2.1972. The tenancy of the said tenant was  terminated  by  the  appellant
vide notice dated 1.7.1983. Thereafter, appellant, Board of Trustee  of  the
Port of Calcutta initiated eviction proceeding against respondent No.2,  Raj
Virmani. In the year, 1992 the present respondent No.1, Kalipada Bhakat,  in
said eviction proceedings, appeared as power of attorney  holder  on  behalf
of Raj Virmani. In the year 1994 respondent No.1 applied  to  the  Board  of
Trustee of the Port of Calcutta to induct him as a  tenant  (which  was  not
accepted). The Estate Officer, respondent No.3 by its order  dated  4.8.2008
directed eviction of  the  unauthorised  occupant  from  the  premises  with
further direction for payment of arrears of rent  and  mesne  profits.  Said
authority, in its order, observed that present respondent No.1 has  a  right
to establish his authority to occupy the premises but  failed  to  establish
the same. From the order dated 4.8.2008 passed by the Estate Officer  it  is
clear that Raj Virmani parted with the possession  of  the  public  premises
unauthorisedly to respondent No.1 who is running his business  in  the  name
and style of M/s. Bhakat Motors. Respondent No.2, Raj  Virmani  never  filed
any appeal against the said order passed by  the  Estate  Officer.  However,
Respondent No.1, Kalipada Bhakat attempted to file an appeal along  with  an
application for condonation of delay with the  same.  Said  application  was
contested before the appellate authority by the present appellant. The  plea
taken by the respondent Kalipada Bhakat before the appellate  authority  was
that he had  no  knowledge  of  the  order  sought  to  be  challenged.  The
appellate authority after hearing  the  parties,  rejected  the  application
vide its order dated 13.11.2009 with further observation  that  the  present
Kalipada Bhakat has no locus standi to maintain the  appeal.  The  appellate
authority further observed that there is no document showing  that  Kalipada
Bhakat had any authority to occupy the premises as he  could  not  file  any
document showing that he was the licensee or authorised to occupy on  behalf
of the tenant, Raj Virmani.  Aggrieved by said order of appellate  authority
present respondent No.1 approached the High Court.

4.    The High Court in  the  impugned  order  observed  that  the  question
whether the applicant has any  right  or  not  to  maintain  the  appeal  is
required to be decided by the authority concerned at the appropriate  stage.
It further observed that in view  of  Section  4  of  the  Act,  the  Estate
Officer should have given opportunity by issuing show cause  notice  to  the
unauthorised  occupant.  The  High  Court  took  the  view  that  since  the
applicant (the present respondent No.1) would be  evicted  by  the  eviction
proceedings, as such, it cannot be said that he had  no  locus  to  maintain
the  appeal.  With  the  above  observation,  the  High  Court  allowed  the
application for condonation of delay moved before the  appellate  authority,
and granted leave to file the appeal. Aggrieved  by  the  said  order  dated
5.2.2010 passed by the High Court in CO No.3991 of 2009, the present  appeal
has been filed before this Court.

5.    Learned counsel for the appellant submitted that the  respondent  no.1
is rank trespasser in the public premises originally let  out  by  the  Port
Trust  to  Raj  Virmani.  Respondent  No.1  has  admittedly   entered   into
possession of the public premises unauthorisedly under an  arrangement  with
the original tenant, without permission of the Port  Trust.  It  is  further
pointed out that since Respondent No.1 appeared before  the  Estate  Officer
as constituted attorney of Raj Virmani, as such, there was no illegality  in
the order passed by the appellate authority in  dismissing  the  application
of Respondent No.1 in personal capacity challenging the order of the  Estate
Officer.

6.    On the other hand learned counsel for the Respondent No.1 argued  that
Respondent No.1 cannot be denied right of appeal as he is in  possession  of
the premises, and the impugned order passed by the High Court  suffers  from
no illegality.

7.    We have considered  rival  submissions  of  the  parties.  It  is  not
disputed that Respondent No.1 contested the eviction  proceedings  initiated
by the appellant, against Respondent No.2, Raj  Virmani,  as  her  power  of
attorney holder. It is also not disputed that Raj Virmani was the tenant  in
the premises in question, and her tenancy was  terminated.  Respondent  No.1
failed to explain as to how thereafter he occupied the premises without  the
consent of the Port Trust.   From  the  record  it  also  reveals  that  the
Respondent No 1 had the  knowledge  of  the  eviction  proceedings,  and  he
contested on behalf of  Respondent  No.2.  As  such,  in  our  opinion,  the
appellate authority has rightly questioned the locus of Respondent  No.1  in
maintaining the appeal along with application for condonation of delay.  The
eviction order drawn against Respondent No.2 attained  finality,  who  never
filed nor attempted to file any appeal  against  the  order  dated  4.8.2008
passed by the Estate Officer. As such, respondent  No.1  who  was  power  of
attorney holder of Respondent No. 2,  cannot  be  allowed  to  maintain  the
appeal on his own behalf to protract the  eviction  proceedings.  No  doubt,
sub-section (2) of Section 4 of the  Act  requires  issuance  of  notice  to
those in occupation of public premises before the eviction order  is  passed
against such  persons,  but  in  the  present  case  before  us,  since  the
proceeding has been drawn against unauthorised occupant (Raj  Virmani),  and
to escape eviction, she appears  to  have  handed  over  possession  of  the
premises to Respondent No.1, as such,  the  subsequent  occupier  cannot  be
said to be entitled to fresh notice. If such person is allowed  to  maintain
the appeal, by the time the eviction proceedings are over  against  him,  he
might hand over the possession of the premises to  third  or  fourth  party.
Sub-section (2) of Section 4 of the Act cannot be restored  to  protect  the
interest of such unauthorised occupants who  enter  into  possession,  after
eviction  proceeding  has  been  initiated  against  their  predecessor   in
possession.

8.    Therefore, in our opinion, High Court erred in  law  in  allowing  the
application of condonation of delay moved  by  the  respondent  no.1  before
appellate court, and granting him leave to appeal, against order  of  Estate
Officer.  Accordingly, we allow the appeal with costs,  and  set  aside  the
impugned order of the High Court passed  on  05.02.2010  in  C.O.No.3991  of
2009. However, on furnishing undertaking within a period  of  fifteen  days,
by the respondent No.1, to vacate the premises and hand over the  possession
to the appellant within six  months  from  today,  we  allow  such  time  on
condition that the respondent No.1 shall deposit occupational  charges  with
the Estate Officer or the appellant, for the period  from  August,  2008  to
September, 2014 at the rate of Rs.10,000/- (Rupees ten  thousand  only)  per
month within a period of one month from today. In case the  Respondent  No.1
fails to furnish such undertaking  or  fails  to  comply  the  condition  as
above,   the  Estate  Officer  may  execute  the  order  dated   04.08.2008,
forthwith. In case premises are not handed over  as  under  taken,  contempt
proceedings may also be drawn.



                                                        …………………………………………….J.
                                               [SUDHANSU JYOTI MUKHOPADHAYA]




                                                        …………………………………………….J.
                                                          [PRAFULLA C. PANT]

New Delhi;
October 09, 2014.
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