Kanoi Tea Private Limited And ... vs Board Of Trustees For The Port Of ...
2023 Latest Caselaw 1181 Cal/2

                       In The High Court at Calcutta
                      Constitutional Writ Jurisdiction
                               Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya


                        WPO NO.728 OF 2006
              IA NO: GA/2/2020 (OLD NO.GA/943/2020)
                  GA/3/2020 (OLD NO.GA/944/2020)
             KANOI TEA PRIVATE LIMITED AND ANOTHER
                                VS.
          BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA

                                   WITH

                       WPO NO.506 OF 2006
             KANOI TEA PRIVATE LIMITED AND ANOTHER
                               VS.
          BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA


For the petitioners      :    Mr. Partha Sarathi Sengupta, Sr. Adv.,
                              Mr. Shyamal Sarkar, Sr. Adv.
                              Mr. Sankarsan Sarkar, Adv.
                              Mr. Meghajit Mukherjee, Adv.
                              Ms. Priyanka Prasad, Adv.

For the respondent        :   Mr. Kishore Datta, Sr. Adv.,

Mr. Ashok Kumar Jena, Adv.

Hearing concluded on     :    04.04.2023

Judgment on              :    16.05.2023

The Court:

1. The Estate Officer of the Kolkata Port Trust (KoPT) passed an order on

December 5, 2005 in Proceeding No. 398 of 2001 directing the

petitioner-Company to pay arrear rent of Rs.1,20,00,000/- at the rate

of Rs.5,00,000/- per month. The said order has been challenged in

WPO No.506/2006.

2. In the same eviction proceeding, the Estate Officer passed an order of

eviction on May 15, 2006, which has been assailed in WPO No.728 of

2006. The said order has been passed by the Estate Officer "subject

to decision in" WPO No.506 of 2006 or order passed by competent

court of law.

3. Learned senior counsel appearing for the petitioner argues that the

eviction proceeding was bad, being without any notice to quit

terminating the tenancy of the petitioner.

4. It is argued that the lease of the petitioner expired on June 1, 1985

and by a letter dated August 18, 1986, the KoPT granted a monthly

tenancy to the petitioner with effect from June 1, 1985, which has not

been determined till date. Hence, the petitioner never was or is an

unauthorised occupant, which is a sine qua non for initiation of any

proceeding under the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 (in brief, "the 1971 Act"). Hence, the Estate

Officer had no jurisdiction to initiate or continue any proceeding

under the said statute against the petitioner.

5. Section 2(g) of the 1971 Act defines "unauthorised occupation", inter

alia, as the occupation of a person after the authority to occupy the

premises has expired or has been determined.

6. The purported letter dated September 9, 1999, it is argued, is not a

proper notice to quit. It has alleged that due to non-payment of the

requisite amount within the stipulated time in terms of the order of

the Division Bench, the petitioner was to hand over possession of the

premises to the KoPT at 11 a.m. on October 1, 1999. The petitioner

argues that violation of an order of the Division Bench might, at the

worst, attract contempt but cannot be a ground of eviction within the

meaning of the 1971 Act or otherwise.

7. The pre-condition of formation of an opinion under Section 4, it is

argued, as envisaged in AIR 2008 Cal 285 [Smt. Arati Ghosh and others

Vs. Satyanarayan Tripathi], has not been satisfied in the present case.

8. It is argued that the Estate Officer has to form an opinion that the

occupant is an unauthorised occupant for proceeding under Section

4.

9. The notice under Section 4 of the 1971 Act dated February 2, 2001

alleged that the petitioner has violated the "fundamental condition for

grant of tenancy", failed to pay rental itself after expiry of the lease

period on May 31, 1985, that the petitioner is in occupation without

any authority under the law and that the petitioner had failed to

comply with the Order dated February 9, 1999 passed by a Division

Bench of this court. Again, the KoPT alleged in the same notice that

the petitioner was in unauthorised occupation on and from October 1,

1999.

10. The petitioners argue that the allegation of "violation of the

fundamental condition for grant of tenancy" is vague and does not

make any sense or is a ground under Section 4 of the 1971 Act.

11. The letter dated August 18, 1996 issued by the KoPT granting

monthly tenancy to the petitioner was deliberately suppressed

according to the KoPT and was not considered by the Estate Officer,

thereby vitiating the entire eviction proceeding against the petitioner.

12. The allegation in the Section 4 notice that the lease of the petitioner

expired on May 31, 1985 and, in the same breath, that the petitioner

is in unauthorised occupation on and from October 1, 1999, are

clearly contradictory to each other.

13. There is also no explanation as to why suddenly the authorised

occupation of the petitioner became unauthorised on October 1, 1999.

14. It is further argued by the learned Senior Advocate for the petitioner

that the impugned order of eviction is violative of principles of natural

justice and suffers from procedural impropriety and illegal

contravention of the Wednesbury principle. The impugned order

dated May 15, 2006 was passed ex parte without any prior notice of ex

parte hearing and is bad, being in violation of principles of natural

justice. For such proposition, the petitioner relies on AIR 2005 Cal

353 [Srikumar Lahiri Vs. Smt. Sonali Lahiri].

15. Apart from that, the petitioner did not appear in the proceeding on

April 18, 2006 and, without communicating the next date to the

petitioner, the ex parte order dated May 15, 2006 was passed, which

was, thus, violative of the principles of natural justice and null and

void. The petitioner places reliance on B.R. & Co. Rice & Oil Mills Vs.

Union of India and another, reported at 1991 SCC OnLine P&H 146 in

support of such proposition.

16. Judicial discipline demanded that the Estate Officer, being a quasi

judicial authority under the supervision of this Court, should have

waited for the outcome of the first writ petition in which the Estate

Officer was a party. However, the order of eviction was passed despite

the pendency of the same. When a proceeding is pending before a

superior forum, it is argued, it is expected that a subordinate quasi

judicial authority should stay its hands. For such proposition, the

learned Senior Advocate relies on (2021) 375 ELT 633 Bom (DB) [Parle

International Limited Vs. Union of India and others], 2007 SCC OnLine

Bom 102 [Kishor s/o Bhikansingh Rajput Vs. Preeti w/o Kishor Rajput]

and (1976) 1 SCC 975 [S. Abdul Karim vs. M.K. Prakash and others].

17. The KoPT had to prove its case of unauthorised occupation by the

petitioner by adducing evidence, which the Estate Officer was obliged

under Rule 5 of the Rules framed under the 1971 Act to record

summarily, to be a part of the record.

18. The Estate Officer was also obliged under Section 8 of the 1971 Act to

summon or enforce attendance of any person and examining him on

oath, requiring discovery and production of documents and/or

exercise of the powers of the Civil Court under Section 5 of the said

Act.

19. None of above procedural safeguards was observed, it is contended.

The petitioner relies on (2008) 3 SCC 279 [New India Assurance

Company Limited Vs. Nusli Neville Wadia and another] in such context.

20. It is next argued that the Estate Officer merely acted as a recovery

agent passing directions on how arrears would be paid by the

petitioner. It was an exercise under Section 7 of the 1971 Act,

although no proceeding under Section 7 has been initiated till date,

nor has any notice under the said Section been given to the petitioner.

Hence, the impugned order of payment made against the petitioner

was bad in law.

21. Regarding the availability of alternative remedy as a bar to the writ

petition, it is argued that in view of the pendency of the writ petition

for the last sixteen years, it should not be thrown out at this stage

merely on the ground of maintainability. The learned Senior Advocate

relies on (2012) 4 SCC 786 [Krishan Lal Vs. Food Corporation of India

and others] and (1991) 1 CLJ 538 [Srikanta Bar Vs. State of West

Bengal and others] in support of such proposition.

22. The impugned order of eviction, being incomplete/conditional and

subject to the outcome of the first writ petition, was not a final order

under Section 5 of the 1971 Act and hence not appealable under

Section 9 of the said Act. Hence, the issue of alternative remedy

cannot be argued by the respondent.

23. The issue of alternative remedy should be raised and decided at the

earliest opportunity so that a litigant is not prejudiced by the action of

court since the objection is in the nature of a demurrer. In the

present case, the plea of alternative remedy having not been raised at

the threshold, the same cannot be taken at this belated stage. The

petitioner cites (2004) 4 SCC 268 [U.P. State Bridge Corporation Limited

and others Vs. U.P. Rajya Setu Nigam S. Karmachari Sangh] for such

proposition.

24. It is argued that the respondents have filed affidavit and taken

advantage of the interim order of payment of the writ petitioners of

Rs.1,25,00,000/- and are estopped from raising the plea of alternative

remedy after sixteen years. The learned Senior Advocate for the

petitioner, in support of the same, cites (2010) SCC OnLine Cal 2555

[M/s. Paramount Leathers Vs. Regional Provident Fund Commissioner

and another].

25. The petitioner has paid huge sums of rent/occupation charges from

time to time and the order impugned in the first writ petition has

worked itself out. Hence, no ground for eviction subsists in any event.

26. Learned counsel for the respondent refutes the contentions of the

petitioner and submits that the lease-deed dated April 6, 1977 expired

by efflux of time and was not renewed any further.

27. Hence, the petitioner is an unauthorised occupant within the meaning

of Section 2(g) of the 1971 Act.

28. The judgment of a co-ordinate Bench dated January 5, 1999,

declaring the petitioner as an unauthorised trespasser, has attained

finality. Hence, the petitioner, after withdrawing the Special Leave

Petition against the same, cannot argue that the petitioner is not an

unauthorised trespasser.

29. There is no denial of the charges claimed by the respondent by the

writ petitioner. Hence, the petitioner has admitted the demand raised

by the respondent, which has been recorded by the Estate Officer in

the final order of eviction dated May 5, 2006.

30. It is argued that the order dated January 5, 1999 of this Court

granted liberty to the respondent to take steps for recovery of

reasonable charges for occupation. Thus, nothing much was left to be

adjudicated by the Estate Officer.

31. The petitioner itself offered a scheme of liquidation of dues, it is

submitted. Such an offer presupposes unequivocal admission of the

dues. On the basis of such admission of default in payment of rent,

the petitioner is not entitled to invoke the equity jurisdiction of this

Court, it is argued.

32. Next dealing with the submissions of the petitioner, learned counsel

for the KoPT argues that the lease expired by efflux of time on May 31,

1985. There was option for renewal and it was never renewed.

Although the respondents offered for renewal of lease by a letter dated

September 27, 1985, by a reply dated October 24, 1985, the petitioner

sought to accept such offer conditionally, which was rejected on

December 6, 1985 by the respondents.

33. Upon a subsequent request by the petitioner for reconsideration, the

same was also rejected on July 11, 1986, a review of which was

sought by the petitioner on July 31, 1986.

34. The petitioner, expressing its inability to pay the premium demanded

by the respondents, requested by a letter dated January 12, 1987 for

treating the relationship between the parties as a month to month

tenancy.

35. The petitioner also filed a writ petition bearing WP No. 2115(W) of

1987 challenging the enforcement of the Rent Schedule, which was

dismissed by a co-ordinate Bench of this Court vide order dated

January 6, 1999. In the said order, it was observed that the petitioner

is an unauthorised trespasser and that the respondents would be at

liberty to take steps for eviction against the petitioner in the same

manner as against an unauthorised trespasser as well as to take steps

for recovery of reasonable charges from the petitioner for occupation

from 1985 till that date.

36. An appeal was preferred, in which an order was passed on February

9, 1999, granting stay of operation of the order for one month on

condition that the petitioner deposits a sum of Rs.10,00,000/- and

occupation charges for February, 1999 to the tune of Rs.96,988/-

within one month thereof. The petitioner was also directed to deposit

a further sum of Rs.30,00,000/- in three equal monthly instalments

each, along with monthly occupation charges of Rs.96,988/-, the first

of which was to be deposited by April 15, 1999 and thereafter within

the fifteenth day of each succeeding month till the amount of

Rs.40,00,000/- was liquidated. Even thereafter, the petitioner was to

go on paying the occupational charges at the rate of Rs.96,988/-

within the fifteenth day of each succeeding month till disposal of the

appeal or until further orders, whichever was earlier. The Division

Bench observed that in default of compliance with the order, the stay

would automatically stand vacated.

37. A special leave petition filed against the same was dismissed as

withdrawn on July 10, 200.

38. The KoPT argues that the petitioner failed to pay in terms of the order

of the Division Bench, for which the stay stood vacated and the order

of the co-ordinate bench dated January 6, 1999 became enforceable.

Upon such failure of the petitioner to comply with the order dated

February 9, 1999, the respondents issued a notice on September 9,

1999 directing the petitioner to hand over vacant and unencumbered

possession of the property on October 1, 1999.

39. Thereafter a proceeding for eviction against the petitioner was initiated

before the Estate Officer on December 12, 2000.

40. On February 2, 2001, the Estate Officer issued a notice under Section

4 of the 1971 Act. The petitioner filed an application for extension of

time to file written objection on February 23, 2001. However, the

Estate Officer heard the submissions of both sides and reserved final

orders. Ultimately, on March 8, 2001, the eviction order was passed

by the Estate Officer.

41. A challenge was preferred against the eviction order in WP No.520 of

2001, upon which a co-ordinate bench, vide order dated March 28,

2001, set aside the eviction order and remanded the matter to the

Estate Officer, further directing status quo to be maintained.

42. After remand, the Estate Officer, by an order dated May 7, 2001, fixed

May 18, 2001 for production of documents, giving evidence and for

hearing. On June 15, 2001, the petitioner made a proposal for

settlement and submitted a Pay Order for Rs.10,00,000/-.

43. For consideration of the settlement proposal, the proceedings were

adjourned before the Estate Officer on seven dates. The matter was

also adjourned for other reasons, according to the KoPT, on twelve

other occasions. On November 21, 2004, the Estate Officer directed

the petitioner to submit a scheme for liquidation of dues or to contest

the eviction proceeding. Thereafter several adjournments were sought

by the petitioner. The petitioner also failed to appear on certain

occasions. Again, on May 17, 2005, the Estate Officer directed the

petitioner to file a comprehensive scheme for liquidating the dues of

the respondents, and, upon non-appearance of the petitioner on

August 22, 2005, it was recorded on September 6, 2005 that the

petitioner had failed to liquidate the respondents‟ dues.

44. On February 8, 2005, the petitioner filed a scheme for liquidating the

dues before the Estate Officer. A revised scheme was filed on

December 5, 2005, which was rejected by the Estate Officer with a

direction on the petitioner to pay Rs. 4,00,000/- towards occupation

charges for December, 2005 and at the rate of Rs.5,00,000/- per

month from January, 2006. Thereafter, several other directions

ensued regarding payment, but the petitioner failed to make such

payments. Ultimately, the petitioner filed WPO No.506 of 2006

challenging the order dated December 5, 2005. Finally an order of

eviction was passed by the Estate Officer on May 15, 2006.

45. On behalf of the respondents, it is argued that the lease dated April 6,

1977 expired by efflux of time and was not renewed any further,

rendering the petitioner an „unauthorised occupier‟ within the

meaning of Section 2(g) of the 1971 Act.

46. Secondly, it is argued that the order dated January 5, 1999 of the co-

ordinate Bench attained finality. In the said order, the petitioner was

declared as an unauthorised trespasser, which also attained finality

upon withdrawal of the special leave petition by the petitioner.

47. Learned counsel appearing for the KoPT next argues that there is no

denial of the charges claimed by the respondents by the petitioner.

Hence, the petitioner has admitted the demand raised by the

respondents, which was recorded by the Estate Officer in his final

order of eviction dated May 15, 2006.

48. Further, in the order dated January 5, 1999, the co-ordinate Bench

granted liberty to the respondents to take steps for recovery of

reasonable charges for occupation. Hence, not much was left for

adjudication by the Estate Officer. Hence, it is argued that the

impugned order does not call for interference.

49. The petitioner having offered a scheme for liquidation of dues also

presupposes that there was unequivocal admission of dues. On such

admission of default in payment of rent, the petitioner, it is argued, is

not entitled to invoke the equity jurisdiction of this Court.

50. The KoPT refutes the argument of the petitioner that the letter of the

respondents dated September 9, 1999 directing handing over

possession amounts to contempt of the order of the Division Bench,

on the ground that the order dated January 5, 1999 is clear in respect

of the dues and attained finality in view of the non-interference by the

Division Bench and the Supreme Court.

51. The petitioner had argued that several letters of different dates show

that the tenancy was continuing on month to month basis with effect

from June 1, 1986, which is controverted by the KoPT on the ground

that such letters are prior to the order of the co-ordinate Bench dated

January 5, 1999. Learned counsel appearing for the KoPT places

reliance on the judgment of Delhi Development Authority Vs. Anant Raj

Agencies Private Limited, reported at (2016) 11 SCC 406 to controvert

the petitioners‟ submission that there was no determination of

tenancy.

52. Regarding the contention of the petitioners that there was no notice to

quit, the KoPT places reliance on the notice dated September 9, 1999

in conjunction with Delhi Development Authority (supra).

53. The respondents argue that no formation of opinion was required

under Section 4 of the 1971 Act, since the petitioner neglected to pay

rental dues but is continuing to occupy the premises after the expiry

of the lease on and from May 30, 1985.

54. From October 1, 1999, it is argued, the petitioners‟ occupation is

totally unauthorised, having been declared as an unauthorised

trespasser. As far as the petitioners‟ argument regarding non-service

of a prior notice under Section 7 of the 1971 Act is concerned, it is

argued by the KoPT that the Estate Officer did not assess the amount

of damages but only recorded the default in payment of rent.

55. Learned counsel for the KoPT also distinguishes the judgments cited

by the petitioner and argues that none of those come in aid of the

petitioner.

56. Upon hearing learned counsel for the parties, it is clear that one of the

plinths of the submissions of KoPT is the order of the co-ordinate

Bench dated January 5, 1999. In the said judgment, it was observed

that, had it not been for interim orders passed in aid of the writ, the

petitioners‟ possession would have been that of rank trespassers. The

premise of such order was that the lease expired in the year 1985. It

was also observed by the learned Single Judge that the Port

Authorities would be at liberty to take steps against the writ petitioner

for eviction "in the same manner as against an unauthorised

trespasser". It is argued by the KoPT that, in view of the observations,

the petitioner was rendered an unauthorised occupant of the disputed

premises.

57. In such context, a perusal of the definition of "unauthorised

occupation" under Section 2(g) of the 1971 Act would be useful. As

per such definition, „unauthorised occupation‟ in relation to any

public premises means the occupation by any person of the public

premises without authority for such occupation and includes the

continuance in occupation by any person of the public premises after

the authority (whether by way of grant or any other mode of transfer)

under which he was allowed to occupy the premises has expired or

has been determined for any reason whatsoever.

58. In the present case, admittedly, a lease had been executed in favour of

the petitioner which had expired by efflux of time in the year 1985.

59. In the Show Cause Notice dated February 2, 2001, the KoPT stated

that on and from May 31, 1985, after the expiry of the lease, the

petitioner was rendered an unauthorised occupant.

60. However, in the same breath, the KoPT also mentioned that the

petitioners‟ occupation became "totally unauthorised" on and from

October 1, 1999.

61. The petitioner has alleged that subsequent to such expiry, the

petitioner was treated to be a monthly tenant by the KoPT, on which

premise it has also been argued that the petitioners‟ occupation was

not unauthorised within the contemplation of the statute.

62. Insofar as the allegation of the KoPT that the petitioners‟ occupation

became totally unauthorised on and from October 1, 1999, however,

the entire premise of such argument is the order of the learned Single

Judge dated January 5, 1999. A close scrutiny of such order

indicates that the occasion to prefer the challenge in the writ petition,

which was decided on January 5, 1999, was the challenge of the

petitioner to the imposition of premium, which was held to be valid,

being in accordance with the gazetted scheme. However, the

observations of the learned Single Judge to the effect that the

petitioner was to be treated as an „unauthorised trespasser‟ could not,

by any stretch of imagination, be treated to be a conclusive

adjudication on the question of whether the petitioners‟ occupation

was „unauthorised‟ within the contemplation of Section 2(g) of the

1971 Act.

63. Hence, the reliance placed on such observation by the KoPT, in the

absence of anything else, is not sufficient for the purpose of

ascertaining whether the petitioners were in unauthorised occupation

for the purpose of the 1971 Act.

64. It has been rightly argued by the petitioners that violation of the

direction of the co-ordinate Bench to pay a particular amount could at

best draw the consequences of vacating the stay and/or contempt,

but, per se, could not be a valid ground for holding the petitioners to

be in unauthorised occupation. Moreover, the learned Single Judge

had clearly given the liberty to the KoPT to take steps against the writ

petitioner for eviction "in the same manner as against an

unauthorised trespasser". Such liberty itself indicates that the KoPT

was to follow-up by initiating due proceedings as envisaged in the

1971 Act. However, the earlier mention in the show cause notice of

unauthorised occupation of the petitioners on and from May 31, 1985

could have been a ground for holding the petitioners to be in

unauthorised occupation.

65. Even if the subsequent mention of unauthorised occupation from

October 1, 1999 is held to be superfluous, the same cannot render the

entire notice invalid on such score alone. The said mention, at best,

was over and above the earlier pleading that the unauthorised

occupation commenced from May 31, 1985. It is well-settled that,

while construing a notice, it has to be seen whether the same was

sufficiently intelligible to the noticee. A hyper technical approach

while interpreting a notice has been deprecated by courts time and

again.

66. Hence, the question which remains for consideration is whether the

petitioner was in unauthorised occupation on and from May 31, 1985,

that is, after the expiry of the lease by efflux of time.

67. A cardinal issue in that regard which comes in the way of the KoPT is

whether a valid monthly tenancy was created subsequent to the expiry

of the first lease between the petitioner and the KoPT.

68. The petitioner has relied on certain communications between the

parties to argue that such monthly tenancy was, in fact, given to the

petitioner.

69. On January 12, 1987, a letter was written by the petitioner to the

Land Manager, KoPT stating the petitioners‟ inability to pay the

premium of Rs. 5,88,347,68p and the petitioner also asked for the

tenancy to be continued on month to month basis with effect from

June 1, 1985. The petitioner also denied having received any bill in

that regard. Hence, as on that date, there was admittedly no

consensus between the parties regarding the creation of a monthly

tenancy.

70. The petitioner has annexed in its list of dates a purported letter

written by the Land Manager of the KoPT to the petitioner dated

August 18, 1986 where it was intimated to the petitioner that rent

bills are being issued in the name of the petitioner at the standard

rate of rent, treating the tenancy to be continuing on month to month

basis with effect from 1st June, 1985. However, it is clear from the

letter dated January 12, 1987 that even thereafter, the petitioner

disputed the premium claimed by the KoPT, which claim was held to

be valid by the learned Singe Judge in the order dated January 5,

1999. Not only that, the petitioner also indicated that they had not

received any bill as pleaded by the KoPT in the letter dated August 18,

1985. Hence, by the denial of receipt of such bills and to pay the

premium, the petitioner expressed its admission that there was no

consensus on the continuation of a month to month tenancy till then.

71. Subsequently, the order dated January 5, 1999 was passed.

Thereafter, an order has been passed by a Division Bench making the

operation of the order of the learned Single Judge subject to deposit of

certain amounts. The petitioners having not complied with such

order, the interim order stood automatically vacated in terms of the

said order. By a letter dated September 9, 1999, the KoPT intimated

the petitioner that due to failure to pay the requisite amount,

authorised representatives of the KoPT would visit the site on October

1, 1999.

72. Apparently, such mention of the said date was the premise of the

KoPT claiming that the petitioner rendered to be in "totally

unauthorised" occupation subsequent to the said date, although the

petitioners were actually in unauthorised occupation from much prior

to that. The use of the term "totally" in the notice, to prefix

"unauthorised", was definitely to add effect to the already

unauthorised occupation since the year 1985, which was merely

recognised from time to time by different forums. However, such

mention cannot be said to be so contrary to the earlier mention of

„unauthorised occupation‟ from 1985 in the same notice which would

vitiate the notice itself.

73. In any event, a perusal of the entire subsequent communications

between the parties does not indicate anything to hold that, at any

point of time, there was consensus between the parties regarding the

grant of a monthly tenancy by the KoPT to the petitioner. In the

absence of unequivocal consensus, the petitioners‟ argument that

there was a grant of monthly tenancy cannot be accepted.

74. In Delhi Development Authority (supra), the Supreme Court

categorically observed, by placing reliance on Ashoka Marketing

Limited and another Vs. Punjab National Bank and others [(1990) 4

SCC 406], that the provisions of the 1971 Act, to the extent they cover

premises falling within the ambit of the Rent Control Act, override the

provisions of the Rent Control Act and a person in unauthorised

occupation of public premises cannot invoke the protection of the

Rent Control Act. In paragraph no. 27 thereof, it was found by the

Supreme Court that the Transfer of Property Act, 1982 is a general

law governing the landlord and tenant relationship in general and that

the specific Rent Control Acts are an advancement over the Transfer of

Properties Act, providing more protection to the tenant. In the light of

such observations, it was concluded by the Supreme Court in Delhi

Development Authority (supra) that the Transfer of Property Act is not

applicable in respect of public premises.

75. Such being the latest position on the issue, it cannot be said by any

stretch of imagination that the petitioner would get the protection

either of the Rent Control Act or the Transfer of Property Act, insofar

as the provisions regarding eviction are concerned. The Show Cause

Notice of the KoPT, as held earlier, was in full compliance of Section 4

of the 1971 Act. The superfluous mention of the petitioner becoming

"totally unauthorised" from October 1, 1999 cannot vitiate the entire

notice insofar as the specific date of expiry of the previous lease was

also mentioned as a ground.

76. The Estate Officer duly formed an opinion as envisaged under Section

4 of the 1971 Act and, as such, cannot be faulted. Insofar as the

argument that no Section 7 notice having been issued, there was no

occasion for the Estate Officer to assess damages or arrear rents and,

such notice was not necessary at all. What the Estate Officer did was

to act on the prayer of the petitioners themselves for a settlement on

the issue of rent. Hence, the same could not vitiate the proceedings

before the Estate Officer. In such circumstances, the proceeding

under Sections 4 and 5 of the 1971 Act undertaken by the Estate

Officer was perfectly justified and cannot be faulted in law.

77. Insofar as the order of the Estate Officer dated December 5, 2005,

directing the petitioner to pay arrear of rent and impugned in WPO

No.506 of 2006, is concerned, the petitioners themselves submitted

before the Estate Officer asking for instalments and seeking numerous

adjournments for arriving at a resolution on the issue of payment of

rents.

78. The Estate Officer, after giving several opportunities to the petitioner

to resolve the issue, ultimately passed the order dated December 5,

2005 to pay the amount. By asking for instalments and not denying

the arrears, the petitioners admitted the rates of occupation charges.

In any event, there was already an adjudication by a co-ordinate

Bench to the effect that the KoPT has been charging occupation

charges at gazetted rates, which had attained finality. Thus, there was

no occasion for any adjudication by the Estate Officer under Section 7

of the 1971 Act, to necessitate any prior notice under the said Section.

79. Hence, per se, such order cannot be faulted as being without

jurisdiction.

80. The petitioners‟ argument regarding the order challenged in the first

writ petition having worked itself out is also not tenable in law. The

deposits made by the petitioners were paid as occupation charges for

the continuance of possession of the petitioners even after being

rendered unauthorised occupants. In any event, the said deposits

have "worked themselves out" as adjustments against the occupation

charges payable by the petitioners during the entire tenure of their

occupation.

81. Moreover, the deposits were made in a sub judice matter, pursuant to

the Court‟s direction and were without prejudice to the rights and

contentions of the parties.

82. Equally untenable is the petitioners‟ argument that the eviction order

impugned in the second writ petition was incomplete, being made

"subject to" the order of the prior writ. Such rider in the order was, at

best, redundant since the eviction order was otherwise well-supported

by reasons and the proceeding was undertaken in due process of law,

being preceded by due show cause notice under Section 4 of the 1971

Act. Non-compliance of the co-ordinate Bench‟s order or the Estate

Officer‟s order was not a ground of eviction by themselves, but only

endorsed further the fact that the petitioners were defaulters in

payment of occupation charges. The eviction order, thus, did not

hinge on the outcome of WPA 506 of 2006 but was justiciable on its

own strength.

83. As far as the eviction proceeding is concerned, the grounds discussed

by the Estate Officer were well within the ambit of the 1971 Act. As

discussed above, the petitioners were patently in unauthorised

occupation of the property within the contemplation of Section 2(g) of

the 1971 Act since the expiry of the first lease of the petitioners and,

hence, there was no illegality or irregularity in the procedure adopted

by the Estate Officer.

84. The argument of the petitioners‟ that the notice under Section 4 and

the subsequent eviction proceeding amounted to contumacious action

is not tenable in the eye of law since the Estate Officer acted well

within his jurisdiction in giving adequate opportunity of hearing to

both sides and finally passing the order of eviction in accordance with

law. The conditional stay order initially passed by the co-ordinate

Bench stood automatically vacated on the failure of the petitioners to

duly deposit the amount, which was a condition for such stay. Hence,

there was no bar to the Estate Officer proceeding with the eviction

proceeding and passing the final eviction order.

85. Thus, there is no scope of interference in either of the writ petitions.

Accordingly, WPO No.728 OF 2006, along with IA NO: GA/2/2020

(OLD NO.GA/943/2020) GA/3/2020 (OLD NO.GA/944/2020) as well

as WPO No.506 of 2006, are dismissed on contest without any order

as to costs.

86. Urgent certified copies of this order shall be supplied to the parties

applying for the same upon due compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )

Later

A prayer for stay of operation of the above judgment and order

is made after the passing of the judgment.

Since the refusal of such prayer may have the effect of the

petitioners being ousted from the premises with immediate effect,

such stay is granted for a period of 30 days from date.

Let this be treated to be a part of the above judgment.

( Sabyasachi Bhattacharyya, J. )