Calcutta High Court
Board Of Trustees For The Port Of ... vs Kanoi Tea Private Ltd. And Ors on 12 July, 2021
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(ORIGINAL SIDE)
A.P.O. 109 OF 2020
With
W.P.O 728 OF 2006
(G.A. 01 OF 2020)
BOARD OF TRUSTEES FOR THE PORT OF KOLKATA AND ORS.
.... Appellant (s)
Through: Mr. Joydip Kar, Sr. Adv.
Mr. Probal Mukherjee, Sr. Adv.
Mr. Amit Nag, Adv.
Mr. M. Roy, Adv.
Mr. S. Basak, Adv.
V/s
KANOI TEA PRIVATE LTD. AND ORS.
....Respondent(s)
Through: Mr. S.K. Kapur, Sr. Adv.
Mr. Shyamal Sarkar, Adv.
Mr. Sankarsan Sarkar, Adv.
Ms. Priyanka Prasad, Adv.
Mr. Meghajit Mukherjee, Adv.
Date: 12th July, 2021
Coram: HON'BLE JUSTICE RAJESH BINDAL, CHIEF JUSTICE (ACTING)
HON'BLE JUSTICE ARIJIT BANERJEE
ORDER
Arijit Banerjee, J.:
1. This appeal is directed against an order dated August 13, 2020,
passed by a Learned Single Judge of this Court in G.A. No.943 of 2020 and
G.A. No.944 of 2020 filed by the Board of Trustees for Port of Calcutta (in
short 'CPT') in a writ petition filed by the respondent Nos.1 & 2 herein.
2. The respondent no.1 company occupies premises as a tenant under
CPT. It appears that, inter alia, because of default in payment of rent, the
company suffered an order of eviction and also order for payment of arrear
of rent passed by the concerned Estate Officer. Such orders were challenged
by the company by filing the said writ petition. A prayer was also made for a
direction upon the CPT Authorities to consider the scheme submitted by the
company for liquidation of the dues of CPT.
3. On the writ petition, an order dated August 22, 2006 was passed, the
operative portion whereof reads as follows:
"Since I find that the total amount due and payable
excluding interest is in the tune of Rs.1.25 crores
approximately, the petitioner no.1 is directed to liquidate
the same in the manner following:-
(i) The petitioner no.1 shall pay a sum of Rs.20
lakhs in three equal instalments on or before
25th of each month starting from the month of
September, 2006.
(ii) The petitioner shall also pay concurrently a
sum of Rs.2.60 lakhs by 25th of each month for
liquidating the dues starting from the month of
September, 2006.
(iii) The petitioner no.1 shall also go on paying the
monthly rent regularly to the respondents.
If the petitioner no.1 goes on depositing the amount
and the monthly rent as directed, the impugned orders
dated 5th December, 2005, 22nd March and 15th May,
2006 shall remain stayed. However, in case the petitioner
fails to deposit anyone of the instalments or the current
rent as directed, interim order shall stand automatically
vacated and the order passed by the Estate Officer shall
stand revived. Let affidavit in opposition be filed by 20 th
September, 2006. Reply, if any, by 10th November, 2006.
Thereafter, parties are at liberty to mention for hearing
upon notice."
4. By an order dated November 10, 2006 the aforesaid order was
modified to the following extent:
"Heard learned advocates for the parties. Since it
has been submitted that the petitioners have deposited
the amount mentioned in 'I' and 'III' of the order dated
22nd August, 2006 and deposit of Rs.2.60 lacs has been
made for the months of September and October, 2006, in
view of the submissions made in paragraphs 7, 8 and 9 of
the writ petition, the order dated 22nd August, 2006 is
modified only to the extent that the payments for the
months of November and December, 2006 shall be
deposited with the Kolkata Port Trust authorities by 1st
March, 2007. It is made clear that the petitioners shall
also go on depositing Rs.2.6 lacs by 25th of each month,
beginning from January, 2007 in liquidation of the dues."
5. Nothing significant happened in the matter for fourteen years
thereafter.
6. In 2020 CPT approached the Learned Single Judge with an application
praying for a direction on the said company to pay arrear of port charges to
the tune of ₹16,84,76,089.23 and to vacate and hand over the premises in
question to CPT. On the said application the impugned order was passed on
August 13, 2020, the relevant portion whereof reads as follows:
"The application appears to be a periodic exercise
and nothing but a show of diligence on the part of the Port
in a matter in which it appears that Port officials are
complicit with the writ petitioners in avoiding the just dues
of the revenue.
It is inconceivable that the Port would suffer such an
order for 14 years and not take appropriate steps to
realise its dues unless its officials were in league with the
writ petitioners. The present application which has been
filed is without reference to the current dues at the old
rates. While it is submitted on behalf of the Port that the
writ petitioners have failed to pay even at the admitted
rates, the calculations furnished in the application are on
the basis of the increased rates which would not be
applicable because of the pendency of the writ petition
and the subsisting interim order.
On behalf of the writ petitioners every trick is
resorted to, to ensure that the application is not taken up.
Specious excuses are proffered to ensure that the hearing
of the writ petition is not immediately commenced.
Leave is given to the Port to file a supplementary
affidavit within a week from date indicating the dues that
remain outstanding at the admitted rates and not at the
enhanced rates. In the event it is discovered that money
due in terms of the subsisting interim order has remained
unpaid, the writ petitioners may face immediate eviction
without any further indulgence being afforded. It will be
open to the writ petitioners to remedy any breach in
payment before the matter appears next."
7. Being aggrieved, CPT is before us by way of the present appeal.
8. Appearing for CPT, Mr. Joydip Kar, Learned Senior Counsel submitted
that the Learned Single Judge erred in holding that the calculations
furnished in the application of CPT on the basis of increased rates would not
be applicable because of the pendency of the writ petition and the subsisting
interim order and in holding that the writ petitioners are liable to pay the
outstanding port dues at the admitted rates. It was submitted that the
relationship between CPT and the writ petitioner company as lessor and
lessee ceased to exist after expiry of the lease in 1985. Thereafter, no lease
deed was executed by and between the parties and as such, the question of
there being any admitted rate of rent does not and cannot arise. It was
further submitted that the interim order dated August 22, 2006 passed in
the writ petition must be read as directing the writ petitioner company to
pay monthly rents as per Schedule of Rents determined by the Tariff
Authority for Major Ports of India as revised from time to time. It was
submitted that the Schedules of rents are prepared in exercise of statutory
power under Section 49 of the Major Port Trusts Act, 1963 and have the
force of law. Hence, for occupying the concerned premises under CPT, the
writ petitioner company will have to pay charges in accordance with the
Schedules of rents applicable from time to time, particularly for the period
after expiry of the lease.
9. Mr. S.K. Kapur, Learned Senior Advocate appearing for the
respondent/writ petitioner company submitted that the company has been
making payment of rent to CPT at the rate of ₹1,18,461 per month. This was
the agreed lease rent. The interim order dated August 22, 2006 directed the
company to pay the monthly rent regularly to the respondents. This the
company has been doing. The interim order did not contemplate payment of
any higher rent by the company to CPT. The matter being pending before
this Court, no enhancement in the Schedule of Rates can have any bearing
on the matter and cannot impose any additional monetary burden on the
company. The Learned Single Judge rightly held that the increased rates
would not be applicable because of the pendency of the writ petition and the
subsisting interim order. CPT is at best entitled to receive arrear of rent at
the admitted rates and not at enhanced rates as observed by the Learned
Single Judge. There is no error in the order impugned. The appeal should be
dismissed.
10. We have considered the rival contentions of the parties.
11. The Board of Trustees for the Port of Calcutta (CPT) is constituted
under Section 3 of the Major Port Trusts Act, 1963 (in short in 'MPT Act').
Section 5 of the Act provides that the Board shall be a body corporate
having perpetual succession with power to acquire, hold or dispose of
property. Section 49 of the Act reads as follows:-
"49. Scale of rates and statement of conditions for
use of property belonging to Board.-(1) [The Authority
shall from time to time, by notification in the Official
Gazette, also frame a scale of rates on payment of which,
and a statement of conditions under which, any property
belonging to, or in the possession or occupation of, the
Board, or anyplace within the limits of the port or the port
approaches may be used for the purposes specified
hereunder:-]
(a) Approaching or lying at or alongside any buoy,
mooring, wharf, quay, pier, dock, land, building or
place as aforesaid by vessels;
(b) Entering upon or playing for hire at or on any
wharf, quay, pier, dock, land, building, road, bridge
or place as aforesaid by animals or vehicles carrying
passengers or goods;
(c) Leasing of land or sheds by owners of goods
imported or intended for export or by steamer agents;
(d) Any other use of any land, building, works,
vessels or appliances belonging to or provided by the
Board.
(2) Different scales and conditions may be framed for
different classes of goods and vessels.
[(3) Notwithstanding anything contained in sub-section (1),
the Board may, be auction or by inviting tenders, lease
any land or shed belonging to it or in its possession or
occupation at a rate higher than that provided under sub-
section (1).]
12. 'Authority' has been defined in Section 2(aa) of the MPT Act to mean
the Tariff Authority for Major Ports (in Short 'TAMP') constituted under
Section 47- A of the MPT Act.
13. It thus appears that TAMP is a statutory authority constituted under
the MPT Act which has the power and obligation, from time to time to frame
a scale of rates according to which CPT is entitled to charge rent from
persons to whom CPT lets out its land for any purpose. These scales of rates
framed from time to time by TAMP are binding on CPT and any person who
occupies CPT land as a lessee or in any other capacity. CPT is a public
authority rendering public service and its land must be put to such use as
would generate maximum revenue for general public benefit.
14. In the present case, the petitioner company was admittedly a lessee in
respect of CPT land. The lease expired on May 31, 1985. In spite of
negotiations, no fresh lease came to be executed in favour of the company.
The company continued to enjoy the land in question. There were defaults
on its part in payment of occupational charges. The company faced eviction
proceedings under the provisions of the Public Premises (Eviction of
Unauthorised Occupants), Act 1971. It suffered an eviction order. It
challenged the order by way of a writ petition, in which the interim order
dated August 22, 2006, was passed. The interim order granted protection to
the company against eviction so long as the company went on paying the
monthly rent to CPT. We are of the view that this would mean monthly
rent/occupational charge as revised from time to time by the scales of rates
framed by TAMP from time to time. We are told that the scale of rates has
been upgraded in 1983, 1988, 1996, 2011 and 2016. In our considered
opinion, to avail of the benefits of the interim order dated August 22, 2006,
the company must pay to CPT the occupational charge as enhanced by the
successive scales of rates framed by TAMP from time to time. Any other
understanding of the order will confer undue benefit on the respondent as it
will be paying rent at a lesser rate despite eviction order against it as
compared to a person, who is a lessee.
15. The company is enjoying valuable public property. It must pay
occupational charges at the market rate as reflected in the scale of rates
framed from time to time by TAMP in exercise of statutory power.
16. We are also in agreement with Learned Senior Counsel for CPT that
there is no 'admitted rate' in the present case. There is absolutely no
justification for the company paying monthly occupational charges at the
rate of ₹1,18,461/-. It appears from an affidavit of CPT affirmed in
September 2020 that applying the scale of rates of 2016, monthly
rent/occupational charges payable by the company to CPT would be
₹9,16,806/-.
17. Hence we modify the order under appeal to the extent that CPT will be
entitled to recover occupational charges from the writ petitioner company in
accordance with the applicable scales of rates framed and notified by TAMP
from time to time including any penalty, if any, for delayed payment thereof.
18. The appeal is allowed to that extent.
19. We do not interfere with the other observations of the Learned Single
Judge in the order under challenge. We are also of the view that there has
been complete lack of diligence and inexcusable tardiness on the part of the
concerned officers of CPT in pursuing matter of recovery of the dues of CPT
from the company which are in the nature of public money.
20. The appeal and the stay application are accordingly disposed of.
21. Urgent certified photocopy of this judgment and order, if applied for,
be given to the parties upon compliance of necessary formalities.
KOLKATA (ARIJIT BANERJEE) (RAJESH BINDAL)
12.07.2021 JUDGE CHIEF JUSTICE (ACTING)
P. Hazra (P.A.)
