Calcutta High Court (Appellete Side)
Marathon Electronic Motors ... vs Syama Prasad Mookerjee Port And ... on 5 May, 2022
May 5, 2022
Sl. No.18
Court No.1
s.biswas
FMA 266 of 2022
With
CAN 1 of 2022
CAN 2 of 2022
Marathon Electronic Motors (India) Limited and another
vs.
Syama Prasad Mookerjee Port and another
Mr. Saktinath Mukherjee, Senior Advocate
Mr. Aniruddha Chatterjee,
Mr. Siddhartha Banerjee,
Mr. Suchayan Bandopadhyay,
Mr. Soumajit Majumder, Advocates
... for the appellants
Mr. Subhankar Nag,
Mr. Snehashis Sen,
Mr. Abhishek Banerjee, Advocates
... for the respondents
Heard learned counsel for the parties.
This appeal at the instance of the writ petitioners
questions the order of the learned Single Jude dated 21st
January, 2022 whereby the petition has been dismissed
on the ground of availability of remedy of appeal.
The appellant had approached the Writ Court
questioning the order dated 30.12.2021 passed by the
Estate officer requiring the appellant to pay the
damages/compensation/mesne profit for wrongful and
unauthorized occupation of the public premises for the
period from 1st August, 2007 to 12th July, 2021
amounting to `19,33,00,102.25/- only.
Submission of learned counsel for the appellant is
that the appellant was lawfully holding the land and
premises in question and the order dated 10.05.2010
FMA 266 of 2022
passed by the Estate Officer holding the occupation of the
appellant to be unauthorized and further upholding the
notice of the respondents demanding possession as valid,
lawful and binding, was the subject-matter of challenge in
appeal at the instance of the appellant and the Additional
District Judge, Alipore by the interim order dated
24.03.2011 had stayed the order of the Estate officer
dated 10.05.2010 subject to payment of current rent per
month.
He further submits that the appeal is still pending
and the order of stay is operating yet the impugned order
dated 13.12.2021 has been passed treating the appellant
to be in unauthorized occupation of the premises and
requiring him to pay the damages.
He submits that the entire action is arbitrary and
violative of Article 14 of the Constitution of India and
therefore in terms of the judgment of the Hon'ble
Supreme Court in the matter of Jamshed Hormusji
Wadia vs. Board of Trustees, Port of Mumbai and
another reported in (2004) 3 SCC 214, the writ petition
ought to have been entertained without relegating the
appellant to remedy of appeal.
The prayer has been opposed by learned counsel for
the respondents submitting that since the appellant is in
unauthorized occupation of the premises, he is liable to
pay the damages, three times of normal rent and the
same has been calculated in the impugned order and the
FMA 266 of 2022
proceedings relating to damages are independent
proceedings.
It is undisputed that appellant has already vacated
the premises in July, 2021 and till vacating of the
premises, the appellant had paid off the current charges
as per the interim order, which is still operating.
Having regard to the nature of controversy involved
in the matter and considering the submission which has
been advanced by learned counsel for the appellant and
also taking note of the orders which have been pointed
out, we are of the opinion that case for grant of interim
relief is made out. Accordingly the impugned order dated
13.12.2021 is stayed till the next date of hearing.
Learned counsel for the respondents is granted six
weeks' time to file affidavit-in-opposition, thereafter
affidavit-in-reply be filed within two weeks.
List on 10th August, 2022.
[Prakash Shrivastava, C.J.]
[Rajarshi Bharadwaj, J.]
