Calcutta High Court (Appellete Side)
Hindustan Steel Works Construction … vs The Board Of Trustees For The Syama … on 21 January, 2025
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jay Sengupta
WPA 29578 of 2024
Hindustan Steel Works Construction Limited
Vs.
The Board of Trustees for the Syama Prasad Mookerjee Port, Kolkata
& Ors
For the petitioner : Mr. Sardar Amjad Ali, Sr. Adv.
Mr. Puranjan Pal
.....Advocates
For the respondent nos. 1 & 4 : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Samrat Sen, Sr. Adv.
Mr. Subhankar Nag
Mr. Swarajit Dey
Ms. Debarati Das
.....Advocates
Heard lastly on : 16.01.2025
Judgment on : 21.01.2025
Jay Sengupta, J:
1. This is an application under Article 226 of the Constitution of India
thereby praying for direction upon the respondent authorities to rescind
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and/or recall the impugned final order dated 04.12.2024 passed by the
respondent no.5 in proceeding nos. 2087 and 2087D of 2024.
2. Learned senior counsel appearing on behalf of the petitioner
submitted as follows. The petitioner is a public sector undertaking. In the
instant proceeding, it has challenged the validity of two proceedings being
2087 and 2087D of 2024 purportedly initiated under the Public Premises
(Eviction of Unauthorised Occupation) Act, 1971 (PP Act, for short) In view of
the decision of the Hon’ble Apex Court in Kaikhosrou (CHICK) Kavasji
Framji Vs. Union of Inida and Anr., reported at (2019) 20 SCC 705, a
proceeding under PP Act is not maintainable as the petitioner has a bona
fide dispute. The decision relied on an earlier decision of the Hon’ble
Supreme Court in Express Newspaper’s case reported at (1986) 1 SC 133. In
fact, the proceeding under the PP Act is ex facie illegal when the issue
regarding the validity of the conditional offer for lease by letter dated
20.11.2013 for 10 years and/or 30 years is pending before this Court in
WPA No. 15475 of 2003. As the respondent Port Authorities had issued a
notice to quit and vacate the lease sites under the Transfer of Property Act,
they had no right to abdicate the move midway and opt for a summary
proceeding of eviction under the PP Act. That apart, the initiation of
impugned proceeding was ex facie illegal in view of the (a) provisions of
second proviso to Section 34 of the Major Port Trust Act, (b) express
clearance by the Ministry of Shipping by letter dated 13.12.2010 and
01.05.2017, (c) the resolution dated 03.02.2014 of the Board of Trustees of
the SPMP, Kolkata and (d) the SPMP’s, Kolkata having acceptance of the
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payment of registration of the lease deed as evident from the letter of the
authority dated 26.11.2013. Instead of a proceeding under the PP Act, at
best the respondents, if at all, could have instituted a proceeding under the
general law i.e., under the Specific Relief Act or Code of Civil Procedure for
eviction of the so called unauthorised occupant. The Estate Officer acted in
gross abuse of his powers without following the procedures relating to
service of notices. He had no authority to ignore the law laid down by the
Hon’ble Supreme Court. Not only was the writ petition pending, but also an
appeal being FMA No. 133 of 2024 taken by the respondent as claimed by
the learned counsel for the respondent was pending. The order in FMA No.
133 of 2024, particularly the order dated 29.11.2024 were/was non-est as
the same was passed without any jurisdiction. The disputed question of
facts as to whether the respondents were obliged to grant a lease for 30
years for which payment of upfront premium was made by two pay orders
refused arbitrarily by the respondent Port is pending before this Court. The
SPMP Port Authority continues to use the service of the petitioner for
weighment services and also certified all bills from December, 2023 till
dated, but also continues to collect rent on the five land sites, although it
has increased the compensation to three times the rent from December,
2023. Reliance is placed on the decision in Kaikhosrou (supra) on that there
was no bar of entertaining a writ petition in an appropriate case to question
the legality and correctness of notice issued under the Act. On the question
of entry upon forfeiture of lease, Section 5 of the Specific Relief Act needs to
be complied with. On this reliance is placed on Bihari Lal vs. Mst. Kalyani
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(1986) 1 SCC 132. Moreover, it is well established principle that defect of
jurisdiction cannot be cured by consent or waiver. On this reliance is placed
on Sushil Kumar Mehta vs. Gobind Ram Bohra reported at 1990 (1) SCC
193. In fact, an alternative remedy is not an absolute bar in appropriate
cases. Reliance is placed on Whirlpool Corporation vs. Registrar reported at
(1988) 8 SCC 1, Haribans Sahani vs. Indian Oil (2003) 2 SCC 107. Reliance
is also placed on Shyama Prasad Raje vs. Ganpat Rao, AIR 2000 SC 3094 on
that the jurisdiction of High Court over findings of inferiors Tribunal is not
appellate but supervisory. It is also urged that whether public functionaries
are involved in the matter relating to violation of fundamental rights or the
enforcement of public duties, the remedy is still available under the public
law notwithstanding that a suit could be filed for damages under private law
and reliance is placed on Chairman, Railway Board vs. Chandrima Das,
reported at (2000) 2 SCC 465.
3. Learned senior counsel appearing on behalf of the Board of Trustees
and of the respondent nos. 1 to 4 denied the allegations and submitted as
follows. The short question for consideration is whether this Court, in
exercise of its writ jurisdiction, would interdict the proceeding under the PP
Act in respect of the five sites at the Kolkata Dock system which had been
let out on lease by the SPMP Port, Kolkata (SPMPK, for short). The lease was
for 10 years and it expired on 09.12.2023. Incidentally, on 20.11.2023, the
SPMPK issued an offer letter to the petitioner for grant of lease for 10 years
without any option for renewal relating to the five sites for installation of five
weighbridges. On 21.11.2013, the petitioner unconditionally accepted the
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offer for grant of lease for 10 years without any option of renewal. The
contract was accordingly concluded. On 26.11.2013, the petitioner made
payment of the agreed upfront premium for grant of the lease only for 10
years. On 10.12.2013, the possessions of the five sites were handed over.
The petitioner continued with the offer on the basis of the terms contained
in the offer letter dated 20.11.2013. On 30.06.2023, the petitioner filed WPA
No. 15475 of 2023 praying for direction upon the respondent no. 1 to
execute a lease for 30 years. On 04.09.2023, NIT was issued by SPMPK in
connection with the installation of the five new weighbridges. An application
being CAN 1 of 2023 filed by the petitioner in connection with the pending
writ petition challenging the tender process in connection with the
installation of five new weighbridges together with the pending writ petition
was heard and the Single Bench did not pass any interim order in view of
the undertaking given by SPMPK that the tender process did not involve the
subject land sites and five new weighbridges. On 22.11.2023, a contempt
application was dropped and closed. The parties were directed to maintain
the status quo on 25.09.2023 over and in respect of the land sites and five
weighbridges to the extent of the issues and subject matter involved in the
interlocutory application. On 09.12.2023, the said 10 years lapsed by efflux
of time. On 02.01.2024, in an appeal preferred by the respondents being
FMA No. 133 of 2024, the Division Bench passed an ad-interim order of stay
of the order dated 22.11.2023. On 05.07.2024, SPMPK filed an application
seeking eviction of the petitioner in terms of the PP Act before the Estate
Officer. On 27.09.2024, the Division Bench passed an order in the appeal
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appointing a Special Officer to inspect the five sites. On 29.11.2024, the
Division Bench dismissed CAN 2 of 2024 filed by the petitioner seeking stay
of the eviction proceeding passed by the Estate Officer under the PP Act. On
14.11.2024 an order of eviction was passed by the Estate Officer. Thereafter,
the present writ petition was filed. On the question of law, the PP Act applies
only if the subject property is public premises within the meaning of Section
2(E) of the PP Act. The Estate Officer is the authority to exercise the
jurisdiction under the PP Act if the property is admittedly of public
premises. In the event of any dispute arises on the questions of ownership of
the subject property qua the Central Government/Board of Trustees, such
disputed question relating to title to the subject property would have to be
decided by a Civil Court. In Kaikhosrou (supra), the Hon’ble Supreme Court
expounded on the above well settled principle and only held that in a
situation where there is a bona fide dispute on the question of ownership of
the subject property qua the Government vis-à-vis the person whose eviction
is being sought, in such case the Estate Officer would have no jurisdiction
under Section 4 of the PP Act. In the instant case, no dispute whatsoever
and howsoever has been raised by the petitioner on the question of
ownership of the subject property qua the Government. Therefore, the bar
contained in Kaikhosrou (supra) does not apply in the facts of the present
case. The said judgement referred to State of Rajasthan vs. Padmavati Devi
reported at 1995 Supp (2) SCC 290. Even the said decision pertains to
disputed question regarding ownership of subject property. In respect of
matters which fall within the ambit of the PP Act, the Estate Officer has
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exclusive jurisdiction. In fact, the jurisdiction of civil Court is specifically
barred under Section 15 of the PP Act. Likewise, by virtue of Section 10 of
the PP Act, every order made by the Estate Officer or the Appellate Officer
under the PP Act is final and could not be called into question in a suit
application of other proceedings. As regards the pending writ petition, there
is no stay granted by the Single Bench or by the Division Bench. In fact, the
order of status quo passed by the Single Bench was stayed by the Division
Bench on 02.01.2024. On 29.11.2024, the Division Bench specifically
recorded that initiation of the proceeding on the Act of 1971 against
respondent no. 1 cannot be faulted. It may not be out of place to note that
the unequivocal terms of lease agreement showed it was for 10 years and
the lease period has admittedly lapsed. The mere pendency of an earlier writ
petition praying for extension of lease of 30 years without any stay order
being granted cannot entitle the writ petition to circuitously obtain stay
under the PP Act. Having accepted a lease of 10 years without any option for
renewal, the petitioner cannot approbate and reprobate. During the hearing,
the writ petitioner argued that the Estate Officer was a captive Tribunal. It is
well established that any allegation of bias or malice in fact has necessarily
to be pleaded. The writ petition contains no such pleading and no such
ground. The contention is not tenable in view of the second proviso of
Section 3(a) of the PP Act. The Hon’ble Supreme Court in several decisions
has upheld Section 3 as well as composition and competence of the Estate
Officer under Section 3 of the PP Act. On this reliance is placed on the
Accountant and Secretarial Services Pvt. Ltd. And Anr. vs. Union of India
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and Ors., (1988) 4 SCC 324 and Crawford Bayley and Co. and Ors. vs.
Union of India and Ors., (2006) 6 SCC 25. In a catena of decisions, both of
the Hon’ble Supreme Court and this Court, the invocation of the writ
jurisdiction in case under the PP Act has been deprecated. On this reliance
is placed on Ashoka Marketing Ltd. and Anr. vs. Punjab National Bank and
Ors., (1990) 4 SCC 406. Judicial prudence was requires that where the
statute contains provisions for an alternative remedy, the High Court would
not intervene under Article 226 of the Constitution of India. On this reliance
is placed on State of Maharashtra Vs. Greatship (India) Ltd., reported at
(2022) 17 SCC 332. It was also a well settled that the Writ Court for
discharging its powers under Article 226 of the Constitution was not a court
of appeal. On this, reliance is placed on Sarvepalli Ramaiah (dead) as per
legal Representatives and Ors. vs. District Collector, Chittor District and
Ors., reported at (2019) 4 SCC 500, Municipal Council, Neemuch vs.
Mahadeo Real Estate and Ors., reported at (2019) 10 SCC 738 and Surender
Singh Thakur vs. Union of India and Ors., reported at 2024 SCC Online Cal
9902.
4. I heard the learned counsels for the parties and perused the writ
petition and the written notes of submissions.
5. In the present case, certain facts are quite undisputed. First, there
was a grant of lease on 20.11.2013 by the SPMPK in favour of the petitioner
for five sites and for installation of five weigh bridges for a period of 10
years, without an option of renewal. It appears that the petitioner had
accepted the offer on such terms without any objection. It is also an
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admitted fact that the 10 years lease expired on or about 09.12.2023 by
efflux of time.
6. One thing is quite certain that the petitioner was fully aware of the
terms on which it was operating its business at those five sites. That is why
it subsequently made a prayer for renewal of lease. But, a mere request for
renewal of the lease period, despite there being a condition about no option
for renewal, would hardly confer any right upon the petitioner to demand
such renewal as of right. Thus, the pendency of a writ petition in respect of
such proposed renewal, that too without there being any order of stay,
would not act as a bar to adjudicate the present writ petition.
7. Incidentally, the letters of the respondents dated 13.12.2010 and
01.05.2017 only make reference to the policy guidelines as a matter of
principle vis-a-vis the proposal under consideration. The resolution dated
03.02.2014 too merely makes an allusion to the request for renewal of lease
for 30 years remaining pending. Actually, it primarily deals with the
additional income in the form of retention of 1% weighment charges. None of
these, prima facie, amount to granting or even promising extension of lease
in favour of the petitioner.
8. Incidentally, a Division Bench while sitting in the appeal in FMA 133
of 2024 categorically recorded that “It may not be out of place to note the
unequivocal terms of the lease agreement shows it was for 10 years and the
lease period has admittedly lapsed.” It also recorded that as the Division
Bench had suspended the impugned order of status quo passed by the
Single Bench, the initiation of the proceeding under the Act of 1971 against
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the respondent no. 1 could not be faulted with. It is significant to note that
this order has not been interfered with.
9. Therefore, one may fairly argue that pendency of such petitions sans a
stay order would not come in the way of deciding this application.
10. It is settled law that the PP Act would apply if the subject property is a
public premises. In the instant case, it is admittedly so. Therefore, the
Estate Officer would also have the authority to exercise jurisdiction under
the PP Act.
11. It has been rightly contended on behalf of the respondent authorities
that no pleading is available regarding any personal bias or malice on the
part of the Estate Officer. The Hon’ble Apex Court as on several occasions
affirmed the powers of the concerned authority in taking steps under the PP
Act.
12. In Kaikhosrou (supra), the Hon’ble Supreme Court, inter alia, hold as
under –
“…………
50. Keeping in view the statement of law laid down by this Court in
cited decisions supra, when we examine the facts of the case in hand, we
have no hesitation in holding that the appellants have raised a bona fide
dispute on the question of ownership of the suit property qua Respondent 1
(Union of India)
51. A fortiori, in such case, Respondent 2 has no jurisdiction to invoke
the powers under Section 4 of the PP Act by resorting to a summary procedure
prescribed in the PP Act by sending a notice under Section 4 of the PP Act for
11the appellant’s eviction from the suit property. This we say for the following
six reasons.
…………”
13. Thus, in Kaikhosrou (supra) the Hon’ble Apex Court had clearly laid
down that an Estate Officer would have no jurisdiction under Section 4 of
the PP Act only if there is a bona fide dispute on the question of ownership
of subject property qua the Government vis-à-vis the person whose eviction
was being sought. Here, there is no such dispute pertaining to the
ownership of the subject property qua the Government.
14. Even in Padmavati Devi (supra), the facts related to dispute about
ownership of and/or holding of patta to the property in question. There, the
claimant stated that after expiry of lease, he was granted “patta”.
15. A lessee of a property, that too on an agreement with a non-renewal
clause, cannot be permitted to call a dispute a bona fide one that it seeks to
raise simply by unilaterally sending a letter stating that he wanted to have
the lease extended. It will not be such a dispute even if such a request
simply remains pending consideration.
16. In the present case, the petitioner has failed to show, even prima
facie, that he has a bona fide dispute either relating to ownership or holding
on to possession of the property in question.
17. On the other hand, Section 13 of the PP Act specifically excludes the
jurisdiction of Civil Court. Section 10 of the PP Act also provides that every
order made by the Estate Officer or the Appellate Officer under the PP Act
was final and could not be called in question in a suit or other proceeding.
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18. Pertinently, Section 9 of the PP Act provides for preferring an appeal
against an order passed by the Estate Officer. Therefore, it would be open to
the petitioner to take recourse to such procedure.
19. In view of the fact that there is no bona fide dispute pertaining to
ownership of the property in question qua the Government vis-à-vis the
person whose eviction is being sought, the Estate Officer would have had
ample jurisdiction in the instant case to proceed with under Section 4 of the
said Act.
20. Therefore, there is no reason to interfere with the reasoned order
passed by the Estate Officer.
21. In view of the above, the writ petition is dismissed, however, without
any order as to costs.
22. The petitioner is, however, granted liberty to prefer a statutory appeal
against the impugned order passed by the Estate Officer in accordance with
law. The Appellate Authority, in the event such an appeal is preferred within
twelve days from this date, would be expected to admit the appeal by
considering the question of delay leniently in view of the fact that the
petitioner had approached this Court seeking relief and thereafter, decide
the matter in accordance with law.
23. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
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Later:
At this stage, learned senior counsel representing the petitioner prays
for a stay of the judgement and order.
The prayer is considered and is rejected.
(Jay Sengupta, J.)