BOARD OF TRUSTEES Vs. KALIPADA BHAKAT AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 9387 of 2014, Judgment Date: Oct 09, 2014

                        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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