Calcutta High Court
Dollar Industries Limited vs Estate Officer on 7 October, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Before The Hon'ble JUSTICE SUVRA GHOSH
WPO 844 of 2021
DOLLAR INDUSTRIES LIMITED
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND OTHERS
WITH
WPO 845 of 2021
VIJAYSHREE TEXTILES PRIVATE LIMITED
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 847 of 2021
M/S TURTLE LIMITED
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 848 of 2021
EXPRESS INDUSTRIAL COMPLEX PRIVATE LIMITED
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 849 of 2021
DESIGN GRID
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
2
WITH
WPO 850 of 2021
PRAMOD KUMAR JHAWAR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 851 of 2021
M/S BALKRISHNA SALES CORPORATION
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 852 of 2021
SANJOY KUMAR BAJORIA
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 853 of 2021
M/S IRIS CLOTHING LIMITED
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 854 of 2021
STYLISH PRECAST PRODUCTS LLP
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST AND ORS.
WITH
WPO 862 of 2021
PRISM KNIT-FAB (P) LTD AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
3
WITH
WPO 863 of 2021
HIMANSHU JHAWAR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 864 of 2021
M/S GOLDMAN TRADING PVT LTD AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 865 of 2021
RATNA TEXTILE AGENCY
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 866 of 2021
M/S GULSHAN ARTS AND PRINTERS AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 867 of 2021
RAJSHREE MECHANICAL UDYOG P. LTD AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 868 of 2021
JDS TRADE LINKS PVT LTD
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
4
WPO 869 of 2021
SHREE KRISHNA HOSIERY PVT LTD
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 870 of 2021
M/S MITTAL KNITWEAR PVT LTD
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 871 of 2021
M/S MANISHA CREATIONS
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 872 of 2021
SPACE INTERNATIONAL PVT LTD AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
WITH
WPO 873 of 2021
HP COTTON CASUALS PVT LTD AND ANR
VERSUS
ESTATE OFFICER, KOLKATA PORT TRUST
For the Petitioner: Mr. Kalyan Bandopadhyay,Sr. Adv.
Mr. Nilanjan Bhattacharjee,Adv.
Mr. Arpan Guha,Adv.
For the Respondent Nos. 1 to 5: Mr. Kishore Datta, Sr. Adv.
Mr. Subhankar Nag,Adv.
Mr. Snehashis Sen,Adv.
Mr. Abhishek Banerjee,Adv.
Hearing concluded on: 30.09.2021
Date: 07.10.2021
SUVRA GHOSH,J:-
1. As all the writ petitions pertain to an identical issue, they are disposed of
by a common judgment.
2. The prayer of the writ petitioner in W.P.O. 844 of 2021 is as follows:-
a) " A writ of and/or in the nature of Mandamus
to issue commanding the respondent
authorities concerned, to take appropriate
steps to dispose off the representations made
by the petitioners to the Estate Manager,
General Administration Department, Estate
Division, Kokata Port Trust, 15, Strand Road,
Kolkata-700001 lastly made on June 11,
2021 at the earliest within a specific time
frame;
b) A writ of and/or in the nature of Mandamus
to issue commanding the concerned
respondent authorities and/or their men and
agents and/or subordinates to take
appropriate and/or effective steps in respect
of the offers made by the petitioner to the
Estate Officer, „Kolkata Port Trust‟ for the
kind consideration and for settlement of
tenancy under tender cum auction procedure
on long term lease under the scheme of "right
of first refusal" in favour of the petitioner.
c) A writ of and/or in the nature of Mandamus
to issue commanding the concerned
respondent authorities and/or their men and
agents and/or subordinates from creating
third party interest in respect of the subject
land as described admeasuring about
595.877 and 31.89609 Square Meter at Plot
No. HL 227 at Foreshore Road, Howrah,
Police Station Shibpur;"
3. The admitted facts are laid down:-
The petitioners were inducted into demarcated portions of premises No.
103/24/1, Foreshore Road, Howrah, by the recorded lessee, Binani
Metals Ltd. and thereafter Ashamangal Portfolio Pvt. Ltd. and have been
occupying the premises for the last 20 years by paying rent for the same.
The Kolkata Port Trust being the owner of the land passed an order of
eviction against the petitioners under section 5 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 on 29-01-2010 in a
proceeding wherein the petitioners were not impleaded as parties and no
notice under section 4(1) of the Act of 1971 was issued upon them. The
petitioners challenged the said order of eviction before a coordinate bench
of this court and by a judgment passed on 24-09-2013, the learned court
directed service of notice upon the petitioners under section 4 of the 1971
Act by the Port Trust Authorities and a right of audience being given to
the petitioners. In compliance with the said order, notices under section 4
of the Act were issued upon the petitioners and upon hearing the
petitioners, an order of eviction was passed under section 5 of the 1971
Act on 30-11-2016. The petitioners are in occupation of the property till
date, such occupation being declared unauthorized by the authority.
4. Learned counsel for the petitioners submits that the petitioners have no
grievance against the order of eviction passed on 30-11-2016. Drawing the
attention of the court to the relevant portion of the order which gives liberty
to the petitioners to approach the Estate Manager, Port Trust Authority for
regularisation of their respective areas in occupation or settlement of
tenancy, learned counsel submits that in terms of the said order an
application for regularisation/settlement of tenancy was filed before the
authority on 12-12-2016 which is still pending consideration. Learned
counsel further submits that a portion of outstanding dues in respect of
the land in question has been paid to the authority and the petitioners
undertake to pay all the remaining dues including interest thereon.
Learned counsel has also taken the court to the notice issued by the Port
Trust Authority submitted by way of a supplementary affidavit which
contains certain decision taken by the authority with regard to grant of
first right of refusal to the occupants of the property in a tender process on
payment of all outstanding dues. The notice says that the sitting occupants
may be considered for allotment of the particular land/structure in the
tender cum auction procedure on lease/licence and will get the first right
of refusal in the tender, upon filing an application with requisite
documents within six months from the date of publication of the notice
upon fulfilling the following conditions:-
(a) The original/recorded lessee/licensee ceases to exist;
(b) A decree/order for eviction from Competent Court of Law/Estate
Officer has been obtained;
(c) The aforesaid decree/order for eviction has been/will have to be
executed by taking over symbolic/paper possession from
original/recorded tenant/licensee; or KoPT takes paper possession
of that land/structure under any mutual arrangement, before
allotment.
5. Learned counsel submits that no such auction has been initiated by the
authority till date. Reliance is placed upon judgments of the Hon‟ble
Supreme Court in Senior Divisional Commercial Manager, South Central
Railways And Others v/s. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls
Welfare Association And Another reported in (2016) 3 Supreme Court
Cases 582 and in State of U.P. v/s. Smt. Pista Devi And Others with
Meerut Development Authority, Meerut v/s. Smt. Pista Devi And Others
reported in (1986) 4 Supreme Court Cases 251 and also a judgment in
Navroz Kershasp Mody v/s. Life Insurance Corporation of India, Mumbai
and others reported in 2013(6) Mh.L.J. 167 in support of his contention.
After extensive deliberation, learned advocate for the petitioners has
prayed for a direction upon the Port Trust Authority for holding the
auction. He also insists on recording an undertaking that in case of
failure to be the highest bidder in the auction, the petitioners shall vacate
the property in question within 48 hours of completion of auction.
6. Vehemently opposing the proposal of the petitioners, learned advocate
appearing for the Port Trust Authority submits that the order of eviction
dated 30-11-2016 was passed upon affording opportunity of hearing to all
the petitioners and in course of hearing, the petitioners made two fold
prayers before the authority - firstly for regularisation of their occupation
and secondly for settlement of tenancy under tender cum auction
procedure on long term lease under the scheme of " right of first refusal".
Learned advocate submits that after the order of eviction was passed the
authority was under no obligation to consider the representation filed by
the petitioners as the petitioners had their remedy in appeal. An amount
in excess of Rs. 5, 71, 00,000 /- is outstanding from the petitioners.
Though there is an observation of the Estate Officer in the order dated 30-
11-2016 granting liberty to the petitioners to approach the Estate
Manager for regularisation of their tenancy, nothing turns on such
observation as the Estate Officer could not have made such observation
dehors the circular. Referring to the circular annexed to the
supplementary affidavit filed by the petitioners, learned advocate for the
respondent authorities submits that eviction of the petitioners from the
property is mandatory for fetching the best price for the property in
auction. The petitioners, at best, are at liberty to participate in the
auction and can establish their right to the property afresh upon their
success in the auction. Learned advocate has placed reliance on the
judgment of an Hon‟ble Division Bench of this Court passed on 24-02-
2020 in F.M.A. 545 of 2020 wherein the learned court has held that the
unauthorized occupants should vacate the property for the property to
fetch the highest price in auction. According to learned advocate the writ
petitions may be allowed so far as prayer (b) is concerned.
7. It is not in dispute that the petitioners have been occupying the plots of
land for long. They have suffered an order of eviction passed by the
respondent authority and have thereafter made several communications
to the authority requesting the authority to intimate the outstanding dues
and interest thereon to enable the petitioners to clear the same. It is a fact
that in the order of eviction dated 30-11-2016 the Estate Officer granted
liberty to the petitioners to approach the Estate Manager, KoPT for
regularisation of their occupation "if permissible under the rule". The said
liberty carries with it a rider that "this forum of law has no jurisdiction to
entertain any matter regarding regularisation of occupation or settlement
of tenancy as prayed for on behalf of the occupants/interested parties".
Pursuant to such observation the petitioners filed a representation before
the Estate Manager for regularisation of occupation and for grant of long
term lease. Such option for regularisation was also given to the occupants
of the property in question by the coordinate bench in judgment dated 24-
09-2013, the judgment remaining unchallenged. Admittedly the
representation filed by the petitioners is still pending consideration by the
authority. However, learned advocate for the petitioners has submitted
that the petitioners are willing to participate in the tender cum auction in
respect of the property. The circular of the authority with regard to tender
cum auction procedure and grant of first right of refusal to the
occupants/petitioners indicates fulfilment of certain conditions.
Conditions (a) and (b) appear to have been fulfilled. With regard to
condition (c) requiring execution of the decree for eviction by taking
symbolic/paper possession from the original/recorded tenant/licensee,
such symbolic possession may be taken by the Port Trust Authority prior
to initiating the tender process. The circular does not insist on taking
physical possession of the property from the occupants and indicates
sufficiency of symbolic/paper possession for the purpose. The Hon‟ble
Division Bench of this Court, in the judgment referred to earlier, stressed
on eviction of the occupants from the premises and delivery of the
physical possession thereof in favour of the Port Trust Authority. The fact
situation of the present case can be distinguished. The notice/circular
issued by the respondent authority deals with the pre-requisites of the
tender cum auction which was not the case before the Hon‟ble Division
Bench. In view of the provision for taking symbolic/paper possession of
the property, the authority can under no circumstances insist on delivery
of physical possession.
8. It is a fact that the bid for the property is likely to suffer if the petitioners
continue in physical possession of the property. Fetching the best price
for a Government property is the object of the auction. Nevertheless, when
the circular of the authority itself provides for symbolic/paper possession
of the property to be taken by the authority and delivery of physical
possession is not a criteria therein, it is incumbent upon the respondent
authority to abide by the terms of the circular.
9. In the judgment in Senior Divisional Commercial Manager (supra), the
Hon‟ble Supreme Court has encouraged allotment of railway property in
favour of licensees, fixing occupation charges for the same and renewing
such licensees in order to prevent deprivation of right to livelihood of self-
earning small units. Regularisation of tenancy has also been encouraged
in the judgment in Navroz Kershasp Mody (supra). The judgment in State
of U.P. v/s. Smt. Pista Devi And Others (supra) speaks about providing a
house site or shop site of reasonable size on reasonable terms to
expropriated persons having no house or shop in the urban area.
10. The petitioners finally confine themselves to prayer (b) of the writ petition
praying for effective steps to be taken by the Port Trust Authority for
settlement of tenancy under tender cum auction procedure on long term
lease under the scheme of "right of first refusal" in favour of the
petitioners. Learned advocate for the authority also concedes to the
proposal of the petitioners for participation in the tender cum auction.
11. Upon consideration of the entire facts and circumstances of the case and
submissions made on behalf of the parties, this court is of the view that
the respondent authority be directed to initiate the tender cum auction
process in terms of the notice/circular issued by the authority. The
authority is at liberty to take symbolic/paper possession of the land from
the petitioners in terms of the said notice. The petitioners having occupied
the premises in question on the basis of an arrangement with the original
lessee but without any approval of the authority, shall have the right to
participate in the tender with the "first right of refusal". Such
participation of the petitioners shall be subject to their having cleared all
the dues including interest payable to be calculated and furnished by the
Estate Officer. The Estate Officer shall communicate the outstanding
amount including interest payable by the petitioners to the
petitioners/advocate on record of the petitioners within a fortnight from
communication of this order and the petitioners shall clear the entire
dues within a month thereafter, failing which the respondent authority
shall be at liberty to execute the order of eviction. In the event the
petitioners establish themselves as the highest bidder in the auction, their
possession in respect of the property shall be regularised immediately.
12. As a pre-condition for initiation of tender cum auction, the order of
eviction dated 30-11-2016 be executed in terms of the circular of the Port
Trust Authority annexed to the supplementary affidavit filed by the
petitioners (symbolic/paper possession). The respondent authority is
restrained from creating any third party interest in respect of the property
in question till completion of the tender process. However, the order of
eviction shall remain valid and shall be executed by evicting the
petitioners from the property if the petitioners fail to exercise their right of
first refusal in the tender process for any reason whatsoever.
13. The writ petitions are disposed of accordingly.
14. There shall however be no order as to costs.
15. Urgent certified website copies of this judgment, if applied for, be supplied
to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)
