Calcutta High Court (Appellete Side)
Lmj Constructions Private Limited And ... vs The Board Of Trustee For The Port Of ... on 19 September, 2024
Author: T. S. Sivagnanam
Bench: T. S. Sivagnanam
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble The Chief Justice T. S. Sivagnanam
and
The Hon'ble Justice Hiranmay Bhattacharyya
MAT/971/2023
IA NO: CAN/2/2023
LMJ CONSTRUCTIONS PRIVATE LIMITED AND ANR.
VS
THE BOARD OF TRUSTEE FOR THE PORT OF KOLKATA AND ORS.
For the Appellants : Mr. D.N. Sharma,
Mr. Abhirup Chakraborty....advocates
For the Respondent No. 1 : Mr. Kishore Datta,
Mr. Somnath Bose...advocates
Reserved on : 24.07.2024
Judgment on : 19.09.2024
Hiranmay Bhattacharyya, J.:-
1. This intra Court appeal is at the instance of the writ petitioner and is
directed against a judgment and order dated 28.02.2023 passed by a
learned Single Judge in WPA No. 25193 of 2015.
2. The appellant approached the Writ Court praying for a direction upon the
respondent nos. 1 to 4 to take a fresh decision on the representation of the
appellant no. 1 dated 30.12.2014 after setting aside the decision taken by
authorities of the Board of Trustees for the Port of Kolkata (for short "KoPT")
vide communication dated 16.09.2015.
3. The appellant no.1 is a company engaged in the business of letting out
landed properties on rental basis. Appellant no. 2 is one of the directors of
the appellant no. 1 company. The property which is the subject matter of
dispute in this appeal relates to a property of KoPT bearing plot no. D297 at
P-51 Hide Road Extension under Police Station Taratala, Kolkata- 700 080
measuring about 13378.03 Square Meters. The first belt comprises of
4220.40 Square Meters and the Second belt of around 9157.63 Square
Meters.
4. The said property was let out by KoPT in favour Avery India Limited i.e., 5th
respondent herein by an indenture of lease dated 12.01.1971 for a period of
ten years with effect from 24.01.1969. The appellant no. 1 claims to have
been inducted in respect of the structures on the said land by virtue of an
agreement of tenancy dated 14.03.2003.
5. KoPT initiated an eviction proceeding bearing no. 394 of 2000 against the
5th respondent herein. The Estate Officer passed an order of eviction on
07.03.2011.
6. In the meantime a notice was published by the KoPT in its official website
sometimes in the month of September, 2014 expressing its decision to grant
"first right of refusal" to the sitting occupants in respect of lands/structure
of KoPT on the terms and conditions contained in the said notice.
7. Pursuant to the said notice appellant no. 1 applied on 30.12.2024 for
availing the "first right of refusal" in the tender process in respect of the land
and structure which is claimed to be in the occupation of the appellant no.
1.
8. KoPT filed a writ petition being WP No. 19653(W) of 2015 for police
assistantce to implement the eviction order dated 07.03.2011 passed
against Avery India Limited.
9. The appellants filed a writ petition being WP No. 22632(W) of 2015 alleging
inaction on the part of the authorities of KoPT in processing the aforesaid
application of the appellants.
10. The appellants also filed an intervention application for being added as a
party in WP No. 19653(W) of 2015.
11. During the pendency of the aforesaid writ petitions the authorities of KoPT
took possession of the disputed property on 13.09.2015 and put a padlock
over the main gate.
12. The appellants' representation dated 30.12.2014 was rejected by the KoPT
authorities by a letter issued by the Estate Manager dated 16.09.2015. The
said refusal was challenged by the appellants herein in the writ petition out
of which the instant appeal arose. By the impugned order, the learned
Single Judge dismissed the said writ petition.
13. Being aggrieved, the writ petitioners have approached this Court.
14. The learned advocate appearing in support of the appeal contended that the
learned Single Judge erred in law by holding that the expression "ceases to
exist" appearing in "Clause a" of the notice issued by the KoPT shall mean
the original/recorded tenant/licensee does not exist anymore. He contended
that the said expression has to be read vis-a-vis the property itself i.e., the
said Clause will apply only if the recorded tenant/licensee is no longer on
the property. He further contended that the appellant herein was very much
in possession of the property in question and only in respect of some portion
of the same Sree Venkatesh Films Private Limited and Magic Moments were
allowed to posses by virtue of license agreements. He submitted that no
inspection was carried out on 22.04.2015 and the purported report dated
14.10.2015 was not filed in terms of the order dated 13.10.2015 passed by
the Coordinate Bench. He contended that Avery India Limited was/is not in
possession of the property in question. He submitted that since Avery India
Limited had transferred its right to the lands and structures in favour of the
appellants and Sree Venkatesh Films and Magic Moments were only licensee
for a temporary period, the appellant no. 1 falls within the definition of
"sitting occupants" as contained in the notice issued by the KoPT on
September, 2014.
15. The learned advocate appearing for KoPT submitted that the appellants
cannot claim to be "sitting occupants" as the appellants have inducted Sree
Venkatesh Films Private Limited and M/s Magic Moments Private Limited as
licensee in respect of the said property. He further submitted that a
Coordinate Bench in the order dated 15.10.2015 noticed that Sree
Venkatesh Films was in occupation of premises measuring about 69000 sqft
at the time of taking over possession of the premises. He submitted that the
appellants could not produce any evidence with regard to its possession in
respect of the property in question. He further contended that the agreement
between Avery India Limited and the appellants was executed on 14.03.2003
i.e., after the termination of tenancy of Avery India Limited by the 1st
respondent and after initiation of the eviction proceedings before the Estate
Officer and, therefore, the appellants did not acquire any legal right to
possess the premises.
16. Heard the learned advocates for the parties and the perused the materials
placed.
17. By an indenture of lease dated 12.06.1971, KoPT let out the property
bearing plot no. D297 at P51 Hide Road Extension measuring about
13378.03 sqft in favour of Avery India Limited for a period of 10 years with
effect from 24.01.1969. The said lease expired on 23.11.1999. KoPT initiated
an eviction proceeding bearing no. 394 of 2000 against Avery India Limited.
During the pendency of the eviction proceedings, the appellants were
inducted into said property as a tenant in respect of the lands and
structures by virtue of a tenancy agreement dated 14.03.2003.
18. KoPT published a notice in the month of September, 2014 in its official
website expressing its intention to grant "first right of refusal" to the sitting
occupants of KoPT properties. From a bare reading of the said notice it is
evident that KoPT decided to grant "first right of refusal" only to the "sitting
occupants" in the tendering process to be taken up for allotment of
particular lands/structure in respect of lands/structures of KoPT provided
they file their application complete in all respect along with requisite
documents within six months from the date of publication of the said notice
upon fulfilling the conditions contained in the said notice.
19. The expression "sitting occupants" has been defined in the said notice to
mean such occupants who had entered into a particular KoPT property on
the basis of certain arrangement with the recorded tenant/licensee but
without any approval of KoPT and who are not rank outsiders or
encroachers in respect of that KoPT property.
20. The expression "rank outsiders or encroachers" has also been defined in the
said notice to mean an occupier who encroached into KoPT property which
is not leased/licensed to anybody.
21. The property in respect of which the appellants are claiming to be "sitting
occupants" was leased in favour of Avery India Limited at a particular point
of time and the appellants claim to have been inducted into the said
property of KoPT on the basis of certain arrangement with Avery India
Limited. Therefore, the appellants do not fall within the definition of "rank
outsiders or encroachers" in respect of KoPT property.
22. It is not the case of the appellants that they entered into the property in
question which is admittedly a KoPT property with the approval of KoPT.
23. The issue that arises for consideration is whether the alleged entry of the
appellants into the property in question was on the basis of certain
arrangement with the recorded tenant/licensee.
24. The period of lease stood expired on 23.11.1999. After expiry of the lease,
the continuance in occupation by Avery India Private Limited of the property
in question who is a public premises amounts to "unauthorised occupation"
as defined in Section 2(g) of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971. Thus after expiry of lease, the status of Avery India
Ltd is that of an unauthorised occupant and not recorded tenant/licensee.
25. Appellants claim to have entered into the KoPT property by virtue of a
tenancy agreement entered into between Avery India Limited and the
appellants. The tenancy agreement was entered into after expiry of the
period of lease and also after initiation of eviction proceeding against Avery.
On the date of execution of the tenancy agreement, the status of Avery was
that of an unauthorised occupant and not a recorded tenant. Avery did not
have any legal right to execute a tenancy agreement at the relevant point of
time.
26. This Court, therefore, holds that the entry into the KoPT property by the
appellants cannot be said to be on the basis of certain arrangement with the
recorded tenant.
27. In order to fall within the definition of sitting occupant, two conditions are to
be satisfied-
(i) Entry into the KoPT property on the basis of certain arrangement with the
recorded tenant/licensee but without approval of KoPT and
(ii) They are not rank outsiders or encroachers in respect of KoPT property.
28. The appellants failed to satisfy one of the aforesaid twin conditions.
29. Accordingly, the appellants cannot claim to be "sitting occupants" in respect
of KoPT property.
30. By virtue of the said notice of September, 2014 only the "sitting occupants"
can claim "first right of refusal" provided they file their application complete
in respect along with requisite documents within six months from the date
of publication of the said notice upon fulfilling the conditions which are as
follows -a) the original/recorded tenant/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
lands/structure under any mutual arrangement before allotment.
31. In the case on hand a decree for eviction has been passed by the Estate
Officer against Avery India Limited. The Estate Manager, in the letter dated
16.09.2015, has specifically recorded that KoPT took over peaceful
possession of the premises in question on 13.09.2015 from M/s Avery India
Limited at about 7 a.m. and put its padlock on the main entrance of the
premises and subsequently at about 10.30 a.m. on the same day, some
persons of M/s Avery India Limited claiming to be the men and agents of
M/s Sree Venkatesh Films broke open KoPT's padlock and wrongfully took
possession of the said premises. It was further stated that M/s Avery India
Limited, the erstwhile licensee of KoPT in respect of the said premises is still
in existence and also that M/s Avery India Limited has paid compensation
charges even in the last month i.e., August, 2015 in respect of the said
premises. The Estate Manager recorded that Avery India Limited is still in
existence.
32. The aforesaid observation made in the letter dated 16.09.2015 with regard
to existence of Avery has been challenged by the appellants herein by
contending that the expression "ceases to exist" shall have to be read in the
context of the premises in question. As would be evident from the letter
dated 16.09.2015, the Estate Manager observed that Avery India Limited is
still in existence. It appears to this Court that the Estate Manager
interpreted the expression "ceases to operate" to mean that the original/
recorded tenant does not exist anymore.
33. It is well settled that the authority which floats the tender and has authored
the tender document is the best judge as to how the documents have to be
interpreted. If two interpretations are possible then the interpretation of the
author must be accepted and the Court cannot sit in appeal over the
authority. The interpretation of the expression "ceases to exist" given by the
Estate Manager, who is the author of the tender document, is a possible
interpretation and, therefore, this Court is not inclined to interfere with
such interpretation of the expression "ceases to exist".
34. To the mind of this Court, the learned Single Judge was right in holding that
the expression "ceases to exist" has to be read as unqualified to mean that
the original recorded tenant/licensee does not exist anymore.
35. The learned advocate for the appellants, in course of his argument, however,
did not dispute that Avery India Limited is still in existence.
36. It appears from the record that under the directions of this Hon'ble Court
KoPT regained possession of the property in question on 16.11.2015 as
recorded in the order dated 23.11.2015.The learned Single Judge after
considering the materials on record arrived at a factual finding that the
appellant was not in possession of the property in question.
37. The learned advocate for the appellant would strenuously contend that the
appellant no. 1 is very much in possession of the property and would rely
upon the objection taken to the report by way of an exception affidavit as
well as other documents. Even if the contention of the appellant is accepted
that they are in possession of property in question, such possession cannot
be said to be in the capacity of "sitting occupants" as this Court has already
observed that the appellants cannot claim to be a "sitting occupant" in
respect of the KoPT property.
38. By virtue of the notice issued in September, 2014 only "sitting occupants"
were eligible to grant "first right of refusal" in the tendering process to be
taken up for allotment of land/structure of KoPT. The appellant is not a
"sitting occupant". That apart one of the pre-requisite for consideration of
the request for regularisation of "sitting occupants" is that the
original/recorded licensee ceased to exist and such condition also has not
been satisfied in the case on hand.
39. The learned Single Judge assigned cogent reasons in support of the
ultimate conclusions. This Court is, therefore, of the considered view that
the decision of the Estate Manager dated 16.09.2015 as well as the
judgment and order of the learned Single Judge dated 28.02.2023 calls for
no interference.
40. Accordingly, the appeal along with connected application stands dismissed.
There shall be no order as to costs.
41. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
I agree.
(T.S. Sivagnanam, CJ.) (Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita, Rinki)
