Calcutta High Court (Appellete Side)
Ct. 8 vs Syama Prasad Mookerjee Port & Ors on 14 March, 2023
FMAT 29 of 2023
Item-6. CAN 1 of 2023
14-03-2023
sg
Sandip Tiwari
Ct. 8 Versus
Syama Prasad Mookerjee Port & Ors.
Mr. Sakya Sen, Adv.
Mr. Shuvasish Sengupta, Adv.
Mr. Biswajib Ghosh, Adv.
Mr. Abhishek Agarwal, Adv.
Ms. Rupa Singh, Adv.
Mr. Amir Ali, Adv.
...for the appellant
Mr. Snehashis Sen, Adv.
Mr. Aditya Sarkar, Adv.
...for the respondent no.1
Mrs. Rajashree Roy, Adv.
Ms. Oisani Mukherjee, Adv.
...for the respondent nos. 2-6
Ms. Sutapa Sanyal, Adv.
Mr. Anand Farmania, Adv.
...for the State
The appellant has filed an appeal against the judgment and
order passed the learned Chief Judge, City Civil Court at Calcutta
in a suit for declaration and permanent injunction filed by the
appellant/plaintiff.
A suit for declaration presupposes that the appellant has
legal right to continue in occupation of the property in question. A
suit for declaration is filed when the plaintiff's title is in cloud.
Briefly stated, the appellant is in occupation of the suit property in
the capacity as a employee of one M/s. Indian Steel Equipment. In
a proceeding initiated under Section 4 of the Public premises
(Eviction of Unauthorised Occupants) Act, 1971 an order of
eviction was passed against M/s. Indian Steel Equipment. The
plaintiff has no independent right, title and interest over and in
respect of the premises in question. The plaintiff claims its right
through Indian Steel Equipment. Even if it is assumed that the
possession of the plaintiff is that of a sub-tenant, the creation of
sub-tenancy pre-supposes a written consent from the landlord. The
order of eviction of Indian Steel Equipment is binding on the
appellant.
Mr. Sakya Sen, learned Counsel appearing on behalf of the
appellant has relied upon a decision of a coordinate Bench of this
Court in Kusum Products Ltd. & Anr. vs. Life Insurance
Corporation of India & Ors. reported in (2020) 4 CAL LT 403
(HC) to argue that even if the appellant is a trespasser or is in
unauthorized occupation, he is liable to be evicted in accordance
with law meaning thereby, he would be entitled to a notice under
Section 4 of the Public premises (Eviction of Unauthorised
Occupants) Act, 1971 and a proper ceremonial proceeding has to
be initiated for his removal.
We are unable to accept the said submission. We have
invited the learned Counsel to prima facie establish at least its
independent right in the suit property. We could not find any
evidence of independent right of the appellant or even a
semblance of right of the appellant to claim possession or remain
in possession of the suit premises.
Under such circumstances, we feel that the appellant is not
entitled to any order of injunction.
Moreover, the learned Counsel for the State has submitted
that possession has been delivered in favour of the respondent and
has filed a report of the officer-in-charge of the North Port Police
Station to that effect. The said report is taken on record.
The learned Counsel for the appellant submits that at the
time of taking possession by the State authorities, few belongings
had remained inside the room. The appellant shall on a written
request being made to that effect indicating the articles or
belongings lying inside the room shall be entitled to the return of
belongings, if any, on proper identification in presence of the Port
and Police authorities. A Minute should be drawn up in presence
of the Port and Police authorities to be duly signed by the parties
and shall be kept in the custody of the Port Authorities. A copy of
the said Minute shall be supplied to the appellant.
With the aforesaid direction, the appeal and the applications
stand dismissed.
However, there shall be no order as to costs.
(Uday Kumar, J.) (Soumen Sen, J.)
