Calcutta High Court (Appellete Side)
Tolaram (India) Limited & Anr vs The Union Of India & Ors on 4 August, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur
WPA NO.8341 of 2021
(Via Video Conference)
Tolaram (India) Limited & Anr.
Vs.
The Union of India & Ors.
For the petitioner : Mr. Debashis Kundu
For the Union of India : Mr. Y. J. Dastoor
Mr. R. Bhattacharya
Heard on : 12.07.2021, 26.07.2021
Judgment on : 04.08.2021
Ravi Krishan Kapur, J.:
1. The petitioner assails a notice dated 7 January, 2021 ("the impugned
notice") issued by the Assistant Custodian of Enemy Property, the
respondent no.3, inter alia directing that Premises no.B-15, Garden
Reach Road, Kolkata-700024 ("the premises") be declared to be a 'public
premises' under the provisions of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 ("the Act").
2. The premises measures approximately 19 bighas, 13 kattahs and 14
chittaks. In other words, the area of the premises is approximately 20
bighas more or less. It is alleged on behalf of the petitioner that the
premises falls within the purview of the Enemy Property Act, 1968. On
1 January, 2009, a formal lease agreement was executed by and
between the Custodian of Enemy Property, Mumbai (the respondent
no.2) and the petitioner company whereby the respondent no.2 granted
a lease to the petitioner company for a period of 36 months at a
monthly rent of Rs.20000/- only commencing from 1 January, 2009. It
is difficult in words to describe the bounty thus leased out to the
petitioner for a princely sum of Rs.20,000/- only. It is also alleged that
on 1 January, 2012 there was a second renewal of the said lease
granted by and between the petitioner and the respondent no.2 which
has also clearly expired by efflux of time. Thereafter, it is alleged by the
petitioners that they had handed over a cheque as advance payment of
the lease in respect of the premises for the month of January 2021 and
the same was encashed by the respondents. However, a subsequent
cheque dated 04.02.2021 for a sum of Rs.24,311/- only was forwarded
sometime in February, 2021 was admittedly not encashed and was
sought to be refunded by the respondent no.2.
3. On 7 January, 2021 the respondent no.3 issued the impugned notice
whereby the premises was declared to be a 'public premises' by the
Competent Authority and the petitioner company was directed to
handover vacant possession of the premises failing which the
respondent would initiate proceedings under the Act for eviction of the
petitioner company. It is also alleged that a jural relationship came into
existence between the petitioner company and the respondent no.2 of
lessor and lessee and the same is subsisting for a period of three years
beginning from 7 January, 2021. It is further contended that there are
no grounds to classify the premises as a 'public premises' and no
proceedings ought to be initiated under the Act against the petitioner
company.
4. On behalf of the respondent Union, it is submitted that the petition is
not maintainable on the ground that the petitioner has a statutory,
alternative and efficacious remedy under the provisions of the Act. It is
further contended on behalf of the respondent Union that by filing this
petition, the petitioners are only seeking to thwart and procrastinate the
proceedings under the Act.
5. I find from the impugned communication dated 7 January, 2021 that it
only declares the premises to be a 'public premises' and that in the
event the petitioner does not hand over possession of the premises there
is a threat of initiation of the proceedings under the Act. I also find that
Section 2(4) of the Act clearly defines premises to include any premises
which is classified as "enemy property" as defined in Section 2(d) (c) of
the Enemy Property Act, 1968. It is apparent that the proceedings are
at a nascent stage and there has been no final adjudication of any kind
whatsoever by the respondent authorities. In fact, on a combined
reading of Sections 2, 4, 5, 8, 9, 10 and 15 of the Act, I find that the Act
provides for a self-contained Code insofar as eviction of unauthorised
occupants from public premises are concerned and this appears to be
the cause for the petitioners anxiety.
6. Ordinarily, a High Court does not entertain a writ petition under Article
226 when the petitioner has an alternative remedy available to them. In
fact, a Writ Court would be loath to exercise authority unless
exceptional circumstances are cited. Such exceptional circumstances
are, (i) where the writ petition seeks enforcement of any of the
fundamental rights; (ii) where there is failure of natural justice; or (iii)
the orders of proceedings are wholly without jurisdiction or the vires of
an Act is challenged. In the instant case, I am of the view that the
petitioners have been unable to make out any exceptional
circumstances (far less any circumstances) warranting exercise of
jurisdiction of the Writ Court. Accordingly, I find that the petitioner has
an available statutory, alternative and efficacious remedy under the Act.
In view of the aforesaid, the writ petition stands dismissed.
7. The petitioners are left free to urge all grounds that may be available to
them in law in the proceedings before the Estate Officer should any
such proceeding be initiated against them. I clarify that there is no
embargo on the respondent authorities in bringing the matter before the
Estate Officer with utmost expedition. All points are left open to be
decided by the Estate Officer without being influenced by any
observation or finding in this order.
8. Accordingly, WPA 8341 of 2021 stands dismissed. There shall be no
order as to costs.
9. Urgent certified photostat copies of this judgment, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
(Ravi Krishan Kapur, J.)
