L.M.J. Construction Private ... vs The Board Of Trustees
2023 Latest Caselaw 1485 Cal

                         In the High Court at Calcutta
                        Constitutional Writ Jurisdiction
                                 Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            W.P.A. No.25193 of 2015
                                      With
                             IA No. CAN 1 of 2021
                                      With
                                 CAN 2 of 2022

              L.M.J. Construction Private Limited and another
                                      Vs.
                            The Board of Trustees
                      for the Port of Kolkata and others

     For the petitioners              :     Mr. Surajit Nath Mitra,
                                            Mr. D.N. Sharma,
                                            Mr. Reetobrata Kumar Mitra,
                                            Ms. Sananda Mukhopadhyay,
                                            Mr. Abhirup Chakraborty

     For the KoPT                     :     Mr. Kishore Dutta,
                                            Mr. Somnath Bose

     Hearing concluded on             :     20.02.2023

     Judgment on                      :     28.02.2023



     Sabyasachi Bhattacharyya, J:-



1.   The petitioner no.1, L.M.J. Construction Private Limited is a company

     engaged in the business of letting out landed properties on rental basis and

     the petitioner no.2 is one of its directors.

2.   The present dispute relates to a property of the respondent no.1, Kolkata

Port Trust (KoPT) bearing Plot No. D297 at P-51, Hide Road Extension,

P.S.-Taratola, Kolkata- 700 088, measuring about 13378.03 Sq. Mtrs. The

First Belt comprises of 4220.40 Sq. Mtrs. and the Second Belt around

9157.63 Sq. Mtrs.

3. The KoPT, by an Indenture of Lease dated January 12, 1971, let out the

said property in favour of proforma respondent no.5, Avery India Limited

for a period of 10 years with effect from January 24, 1969.

4. An agreement for tenancy was subsequently entered into by respondent

no.5, Avery, in favour of the petitioner no.1 on March 14, 2003. Vacant

and peaceful possession of the land, with structures, was simultaneously

hand over to the petitioner no.1.

5. The KoPT had initiated an eviction proceedingbearing no. 394 of 2000

against respondent no.5 and an order of eviction was passed on March 7,

2011 by the Estate Officer in the said eviction proceeding. An appeal was

filed against the same by proforma respondent no.5.

6. In the meantime, in or about the month of September, 2014, a Notice was

published by the KoPT in its official website, expressing its intention to

grant "First Right of Refusal" to the sitting occupants of KoPT-properties on

the terms and conditions stipulated therein.

7. Admittedly, the petitioner no.1 had granted a leave and licence on April 1,

2013 to one Shree Venkatesh Films (P) Limited and one Magic Moments.

However, the petitioner no.1 carried on paying rent and incidental charges

to the KoPT-authorities.

8. The petitioner no.1 applied on December 30, 2014 pursuant to the Notice

published by the KoPT for availing provisions of the said notice as sitting

occupants.

9. Thereafter, in view of the delay in processing such application, the

petitioners filed a Writ Petition bearing WP No.22362(W) of 2015 and also

filed an intervention application for being added as a party to another Writ

Petition bearing WP No.19653(W) of 2015 filed by the KoPT for police

assistance to implement the Eviction Order dated March 7, 2011 against

Avery.

10. The writ petitions were taken up together on September 7, 2015 by a co-

ordinate Bench and were directed to be listed before the said Bench on

September 24, 2015. However, on September 13, 2015, a Sunday morning,

the KoPT-Authorities, allegedly with CISF personnel, took possession of the

disputed property and put a padlock over the main gate.

11. All this happened even when the petitioners' application dated December

30, 2014 pursuant to the Notice of the KoPT was kept pending by the KoPT

for consideration.

12. Subsequently, on September 16, 2015, the KoPT-Authorities issued a

communication, thereby rejecting the petitioners'

application/representation dated December 30, 2014. The said refusal is

under challenge in the present writ petition.

13. The learned Senior Advocate appearing for the petitioners contends that the

premise on which such rejection took place were erroneous. One of the

grounds was that during inspection on April 22, 2015, it was allegedly

found that the petitioner no.1, L.M.J. was not in possession. However, the

petitioner no.1 is very much in possession of the said property. Inasmuch

as some portions of the property are concerned, those were licensed out by

the petitioner no.1 in favour of Shree Venkatesh Films (P) Ltd. and Magic

Moments. However, a substantial portion of the property has all along

been occupied by the petitioner no.1.

14. Another ground of rejection was that proforma respondent no.5 Avery,

being the erstwhile lessee, was still in existence and had paid

compensation charges even recently in respect of the premises. Hence, the

condition of cessation of existence of the original/recorded lessee, a pre-

requisite for consideration of a request for regularization of sitting

arrangement as per the Notice of KoPT, was not applicable.

15. Learned senior counsel for the petitioners submits that there is nothing on

record to show that any inspection was carried out on April 22, 2015. An

inspection report relied on by the co-ordinate Bench was authored by the

Land Manager of the KoPT, who was the same person who acted as an

Estate Officer and had passed the order of eviction against Avery.

16. In the report of inspection submitted before the court, it was admitted that

there were several structures containing files and other documents.

However, it was suppressed that those documents and files belonged to the

petitioner no.1, indicating that the petitioner no.1 is still in physical

occupation of a substantial portion of the property.

17. Moreover, it was suppressed that access to such structures were obtained

through the men and agents of the petitioner no.1, under whose possession

the said structures have been all along. It is further submitted that the

purported report dated October 14, 2015 submitted by Mr. S.K. Dhar, the

Land Manager of KoPT was not filed in terms of the order dated October 13,

2015 passed by the co-ordinate Bench. It did not mention the total floor

space of the premises nor identified the party in possession of the entire

constructed area. It was not reflected in the report that the possession of

M/s. Shree Venkatesh Films (P) Ltd. as licensee of L.M.J. was in law the

possession of L.M.J., which pertains to 5417.595 Sq. Mtrs. area. The

possession with regard to the rest of the plot comprised of about 8040.202

Sq. Mtrs. was not disclosed. Some vacant sheds shown as "F" and "G" in

the plan annexed to the report were previously used by M/s. Magic

Moments. However, the L.M.J. was in possession of the said sheds at the

relevant juncture. Several other structures shown as "K", "O" and "R",

although in possession of the petitioner no.1, containing old files, scrap

materials, etc., was not indicated to be so.

18. The Learned Senior Advocate for the petitioners places reliance on an

objection taken to such report by way of exception affidavit and submits

that several documents, including trade licence of L.M.J. Constructions,

provisional fire NOC in favour of the L.M.J., agreement dated March 14,

2003 between Avery and L.M.J., work order issued by L.M.J. for

constructing underground water reservoir at the premises, receipts and

bills issued by the security agency for providing security guards at the

premises were entirely overlooked in the report.

19. In fact, the main gate of the subject premises was under lock and key and

the keys were lying with the security agencies employed by L.M.J., who

opened the same by removing padlock on instruction of the deponent of the

exception affidavit.

20. Most of the files of the L.M.J. Constructions and its group companies are

lying at the subject premises which were shown to the Land Manager who

failed to record the same in the impugned report. Photographs and

almirahs and boxes containing such records were made a part of the

exception affidavit. It is submitted that the said exception affidavit remains

uncontroverted by the KoPT.

21. Although it was alleged in the refusal order impugned in the writ petition

that Avery, the erstwhile lessee, was still in existence, such existence of

Avery in the said premises was not reflected from any material whatsoever.

The purported report dated October 14, 2015 did not mention the existence

of Avery in the premises.

22. It is argued that the mention of existence of the original/recorded lessee in

the Notice published by the KoPT in September, 2014 has to be read in the

context of the premises-in-question. It does not and cannot mean that the

original/recorded lessee would otherwise cease to be in existence

altogether.

23. The learned Senior Advocate for the petitioners submits that the

petitioners, having acted on the basis of the representations made by the

KoPT-Authorities, have an independent cause of action on the basis of the

promissory estoppel, for which no case of detriment has to be proved

otherwise. In support of such submissions, the learned Senior Advocate

cites (1979) 2 SCC 409 [M/s. Motilal Padampat Sugar Mills Co. Ltd. Vs. State

of Uttar Pradesh and others] and (2016) 6 SCC 766 [Manuelsons Hotels

Private Limited Vs. State of Kerala and others].

24. From the letter dated September 17, 2015 written by the advocate of Shree

Venkatesh Films (P) Ltd. (annexed at page 133 of the writ petition) it would

appear that Shree Venkatesh Films was in possession of 69,000 Sq. Foot

and the rest of the premises was occupied by others. However, the said

letter, relied on by the KoPT, clearly admitted that such 69,000 Sq. Foot

area was temporarily licensed to Shree Vekatesh Films and that the entire

premises was protected by various security agencies deputed by L.M.J.

Admittedly Magic Moments was not in possession of any part of the

premises.

25. Since Avery had transferred its rights to the land and the structure to

L.M.J vide agreement dated March 14, 2003, under which Shree Venkatesh

Films and Magic Moments were temporary licensees for a period, the

petitioner no.1 comes within the purview of "sitting occupant" as envisaged

in the Notice of September, 2014 issued by the KoPT.

26. Inasmuch as the KoPT has placed reliance on the Order dated October 15,

2015 passed in the writ petitions regarding apparent non-production of any

evidence recording presence of L.M.J. in the premises against which no

appeal had been preferred, the said order was an interim order passed in

the writ petitions and it cannot be contended that the same attained

finality.

27. The petitioners have produced several documents to show their possession

in respect of the premises and have also asserted their possession in the

exception affidavit to the report filed by Mr. S.K. Dhar.

28. The next argument of the KoPT, which is sought to be controverted by the

petitioners, is that the agreement between Avery and the petitioner no.1

was executed after termination of Avery's tenancy and initiation of the

eviction proceedings before the Estate Officer. In such context, the learned

Senior Advocate for the petitioners argues that the notification of

September, 2014 does not provide that the sitting occupant had to enter

into the particular KoPT-property during subsistence of the tenancy. The

petitioner no.1 had entered into the disputed property on the basis of the

agreement dated March 14, 2003 with Avery but without any approval of

KoPT. As such, the petitioner no.1 could not be termed as a rank outsider

or encroacher, who has been excluded by the Notice. As on the date of

rejection of its application, the KoPT had taken wrongful possession of the

premises during pendency of the first writ petition filed by the petitioner

being WP No.22363(W) of 2015 upon having obtained an adjournment on

September 7, 2015 from the co-ordinate Bench by misrepresentation. As

such, the KoPT cannot argue that the petitioner no.1 was not in possession

on the date of rejection of the application, thus precluding the petitioner

from being a sitting occupant for the purpose of the Notice of 2014.

29. The contention of the KoPT that the petitioner no.1 has not altered its

position on the basis of the Notice issued by the KoPT is not tenable in the

eye of law, it is argued, as held by the judgments of the Supreme Court

cited by petitioners.

30. As such, the petitioners seek a writ of mandamus quashing the

communication dated September 16, 2015 whereby the petitioners'

application for availing the benefit of the September, 2014 Notice was

rejected. It is prayed that the representation/application of the petitioner

no.1 dated December 30, 2014 be considered afresh on merits in terms of

the Notice of September, 2014 published by the KoPT. The petitioners have

also sought for other ancillary reliefs.

31. The learned Senior Advocate appearing on behalf of the KoPT, on the other

hand, submits that the petitioner was not a sitting occupant as on the date

of the application (December 30, 2014) inasmuch as the petitioners' case is

that on April 01, 2013, the petitioner inducted M/s. Venkatesh Films (P)

Ltd. and M/s. Magic Moments Motion Pictures Pvt. Ltd. as licensees under

it. It has not been pleaded by the petitioner that such licensees have

vacated the premises, handing over possession to the petitioner. Rather, in

the order dated November 23, 2015, a co-ordinate Bench of this Court

recorded that possession was delivered to the respondents by Venkatesh

Films.

32. Again, Venkatesh Films, by an advocate's letter dated September 17, 2015,

informed the Estate Manager, KoPT as well as the writ petitioner no.1 that

it was occupying 50,000 Sq. Feet and 19,000 Sq. Feet and Magic Moments

was occupying 18,000 Sq. Feet, that is, the entire premises and Avery India

Limited was having a two-storied building at the premises.

33. Such letter is annexed at pages 133 and 134 of the writ petition.

34. It is next argued by the KoPT that there was no contemporaneous objection

to such contention of the Venkatesh Films by the writ petitioner.

35. It was noticed by the co-ordinate Bench in the order dated October 15,

2015 that Venkatesh Films was found in occupation of the premises

(69,000 Sq. Feet) at the time of taking over possession of the premises. It

was further recorded that the writ petitioner could not produce any

evidence regarding its presence in the premises and the objection of the

writ petitioner in regard to its contention was overruled by the Court. No

appeal has been carried from such finding, it is argued, and the same has

attained finality.

36. It is next argued by the KoPT that the exception filed by the petitioner to

the Inspection Report dated October 14, 2015 is also without substance.

With regard to the exception, it is argued, it clearly appears that the

petitioner was aware of the eviction proceedings at the time of entering into

the agreement with Avery India Limited.

37. In paragraph 01 of the writ petition, it is claimed that the petitioner is

engaged in letting out landed properties on rent, whereas the Trade License

annexed to the exception shows that the petitioner is a dealer in "non-food

items, electrical goods".

38. Thirdly, a fire broke out at the premises in 2013 and the Director of Fire

Prevention Unit, Government of West Bengal issued a letter on November

29, 2013 to the petitioner recommending fire safety measures in respect of

a studio found at the premises. Hence, the premises were used by the

Venkatesh Films (P) Ltd. and Magic Moments, who are engaged in film

production. Thus, the exception taken out by the writ petitioner is of no

substance, it is contended, particularly since the inspection report was

accepted by this Court.

39. The agreement between Avery India Limited and the writ petitioner was

executed on March 14, 2003, that is, after termination of Avery India

Limited's tenancy by the respondent no.1 and after the initiation of the

eviction proceeding before the Estate Officer. Therefore, the writ petitioner

did not acquire any right in law to possess the premises.

40. The notice of September, 2014, it is submitted, is not applicable to the writ

petitioner for several reasons.

41. The original/recorded lessee did not cease to exist, which was a necessary

pre-requisite for applicability of the notice.

42. The order of eviction has to be executed by taking symbolic/paper

possession from the original/recorded tenant/licensee. The physical

possession was initially taken from Avery India Limited on September 13,

2015 but on the same day, Venkatesh Films broke open the padlock and

illegally repossessed the premises. Finally, under the direction of this

Court, the respondent no.1 regained possession on November 16, 2015, as

recorded in the order dated November 23, 2015.

43. That apart, a person in possession cannot come within the expression

"sitting occupant" when admittedly the writ petitioner parted with

possession to Venkatesh Films (P) Limited and Magic Moments. There is

no dispute regarding such parting of possession, since there is no

document on record to show that the writ petitioner got back possession

from M/s. Venkatesh Films or M/s. Magic Moments.

44. Respondent no.1 got possession on November 16, 2015 from M/s.

Venkatesh Films. Parties agreed on November 23, 2015 that Venkatesh

Films and Magic Moments had delivered possession on November 16, 2015

to the KoPT. Hence, there is no dispute that the writ petitioner was not in

possession.

45. Referring to the judgments cited by the petitioners, learned counsel

appearing for the respondents argues that M/s. Motilal Padampat Sugar

Mills Co. Ltd. (supra) is on the applicability of principles of promissory

estoppel. The said principle, it was held, applies where there is a clear and

unequivocal promise to create legal relationship and on the basis of such

promise, one has altered his position to his detriment, where the principle

is invoked to prevent injustice by enforcement of the promise.

46. In the present case, however, there is no clear and unequivocal promise

made by the respondent no.1/KoPT in the notice dated September, 2014.

Even assuming some promise was made, the petitioner did not alter its

position to its detriment. Hence, the said judgment does not apply to the

present case.

47. On similar grounds, Manuelsons Hotels Private Limited (supra) is also not

applicable to the present case.

48. Thus, it is submitted that the writ petition ought to be dismissed by this

Court.

49. Upon a consideration of the submissions of parties and the materials on

record, it is evident that the most relevant document is the Notice of

September, 2014 published by the KoPT.

50. Certain preconditions are to be satisfied by a sitting occupant to get the

first right of refusal under the purview of the said notice, which are as

follows:

(i) It entered the property on the basis of certain arrangement with the

recorded tenant/licensee.

(ii) It did not have approval of KoPT but is not a rank outsider or

encroacher in respect of the property as on January 2, 2014.

(iii) It files the application complete in all respect along with requisite

documents within six months from the date of publication of the

notice.

(iv) The original/recorded lessee/licensee ceases to exist.

(v) A decree/order for eviction from a competent court of law/Estate

Officer has been obtained.

(vi) The said 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 the

land/structure under any mutual arrangement, before allotment.

(vii) In case of more than one sitting occupant, lease/license in respect of

areas occupied by respective sitting occupants will be processed for

willing occupants only, on recovery of dues on pro-rata area basis,

provided each space has separate access.

51. Let us now examine whether all the above criteria have been fulfilled in the

present case by the petitioner.

52. Insofar as the first ground is concerned, the petitioner had entered into the

property on the basis of a certain arrangement with Avery. However, the

question which arises is whether Avery itself was a recorded

tenant/licensee at the relevant juncture, when the petitioner came into

possession. It is to be noted that the lease agreement with the present

petitioner was entered into by Avery on March 14, 2003. However, the lease

granted by the KoPT in favour of Avery had already expired by then and an

eviction proceeding had been initiated against Avery by the KoPT on

September 18, 2000. Hence, as on March 14, 2000, that is, the entry point

of the petitioner, Avery was merelya tenant by sufferance. However, in

Indian law, a tenant by sufferance is not on a much better footing than a

trespasser. At best, in the Indian perspective, a 'tenancy by sufferance' is a

juridical fiction and offers protection to such a "tenant" till eviction is

obtained by due process of law. Between the expiry of Avery's lease and

passing of the eviction order on March 7, 2011, thus, Avery was merely one

notch higher in legal status than a rank trespasser. Thus, it was

somewhere between a rank outsider or encroacher, but not a "recorded

tenant/licensee". As such, it cannot be said that the very first criterion of

the Notice is fulfilled.

53. The peculiarity of the present case is that the second condition, however, is

fulfilled inasmuch as the petitioner could not be said to be a rank outsider

or encroacher at the relevant juncture, that is, on January 2, 2014, since it

had already been inducted in the premises and in occupation thereof.

54. The third condition was fulfilled since the petitioner filed an application

and no objection has been taken by the respondents with regard to the said

application having been incomplete or filed beyond time.

55. The fourth condition, again, raises questions. The argument of the

petitioner is that "ceases to exist" has to be read vis-à-vis the property

itself, that is, in the event the recorded tenant/licensee is no longer on the

property, by whatever reason, the said clause ought to apply. On the other

hand, the respondents argue that the expression "ceases to exist" has to be

read as unqualified, meaning that the original recorded tenant/licensee

does not exist anymore. If a juristic person, the same has ceased to exist

and if a biological being, has died.

56. Taking the said phrase in the perspective and context of the notice itself,

the second interpretation, that is, of the respondents, appears to be more

plausible and logical. This is because otherwise, there might be an

overlapping between the first and the second conditions. If the petitioner's

interpretation is lent to the phrase-in-question, "ceases to exist" would

coincide with the termination of arrangement between the KoPT and the

original tenant/licensee. Moreover, it might very well happen that, during

subsistence of an existing juridical relation between the occupant and the

KoPT, a company in possession is wound up or a juristic person closes

down. To distinguish between such situation and an expiry of the tenure of

the agreement simpliciter, the second interpretation would have to be lent

to the expression under query. Thus, the fourth condition has also not

been satisfied in the present case.

57. The fifth and sixth conditions have been fulfilled, since the KoPT has

obtained an order of eviction and had to take possession by taking

symbolic possession as Avery was physically not occupying the property

but only its buildings were still lying there.

58. The seventh point, that is, pro-rata allocation of the property between

several agreeable occupants, obviously, would be redundant and premature

to consider at this stage.

59. The cloud sought to be cast by the respondents on the possession of the

petitioner is primarily on the basis of the report filed by the Land Manager

of the KoPT, who himself acted as the Estate Officer passing the eviction

order against Avery and, as such, is not free from doubt, since the estate

officer himself could not be a judge of his own cause. Such identity between

the officers had not been pointed out to the concerned coordinate Bench

and recorded before the same while passing the order of appointment.

Moreover, there has been no formal acceptance by the court of the said

report filed by the Land Manager; rather, an elaborate exception filed

against the same by the petitioner is on record. Hence, the petitioner's plea

could not be turned down on such score alone. In fact, it would be rather

beyond the scope of the writ court to enter into the merits of the question of

possession upon detailed assessment of evidence and examination of

witnesses.

60. However, in view of the first and fourth conditions, as discussed above,

having not been satisfied, the petitioner's application for taking benefit of

the September, 2014 Notice of the KoPT was rightly refused by the KoPT.

61. The petitioner has cited two judgments of the Supreme Court, being (1979)

2 SCC 409 [M/s. Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar

Pradesh and others] and (2016) 6 SCC 766 [Manuelsons Hotels Private

Limited Vs. State of Kerala and others] on the argument of Promissory

Estoppel.

62. However, in the present case, the basic foundation of Promissory Estoppel

are not satisfied. Neither there is any "unconscionable departure" by the

KoPT from its notice of September, 2014, nor did the petitioner act upon

the representation made thereby. The petitioner had already entered the

premises in 2003, much before the issuance of the notice. Thus, such act

of the petitioner was not pursuant to the notice. That apart, there was no

'departure' from the notice at all, as discussed above. Hence, the ratio of

the said judgments do not apply at all in the present context.

63. In such circumstances, there is no scope of interference in the present writ

petition. Accordingly, WPA 25193 of 2015, along with IA No. CAN 1 of 2021

and CAN2 of 2022, are dismissed on contest.

64. There will be no order as to costs.

65. Urgent certified copies, if applied for, be issued to the applicants subject to

compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )