It is
not disputed that Respondent No.1 contested the eviction
proceedings initiated by the appellant, against Respondent
No.2, Raj Virmani, as her power of attorney holder. It is also not
disputed that Raj Virmani was the tenant in the premises in
question, and her tenancy was terminated. Respondent No.1
failed to explain as to how thereafter he occupied the premises
without the consent of the Port Trust. From the record it also
reveals that the Respondent No 1 had the knowledge of the
eviction proceedings, and he contested on behalf of
Respondent No.2. As such, in our opinion, the appellate
authority has rightly questioned the locus of Respondent No.1
in maintaining the appeal along with application for condonation
of delay. The eviction order drawn against Respondent No.2
attained finality, who never filed nor attempted to file any appeal
against the order dated 4.8.2008 passed by the Estate Officer.
As such, respondent No.1 who was power of attorney holder of
Respondent No. 2, cannot be allowed to maintain the appeal on
his own behalf to protract the eviction proceedings. No doubt,
sub-section (2) of Section 4 of the Act requires issuance of
notice to those in occupation of public premises before the
eviction order is passed against such persons, but in the
present case before us, since the proceeding has been drawn
against unauthorised occupant (Raj Virmani), and to escape
eviction, she appears to have handed over possession of the
premises to Respondent No.1, as such, the subsequent
occupier cannot be said to be entitled to fresh notice. If such
person is allowed to maintain the appeal, by the time the
eviction proceedings are over against him, he might hand over
the possession of the premises to third or fourth party. Subsection
(2) of Section 4 of the Act cannot be restored to protect
the interest of such unauthorised occupants who enter into
possession, after eviction proceeding has been initiated against
their predecessor in possession.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9387 OF 2014
(Arising out of S.L.P.(c) No.19835 of 2010)
BOARD OF TRUSTEES
OF THE PORT OF KOLKATA ... APPELLANT
VERSUS
KALIPADA BHAKAT & ORS … RESPONDENTS
Citation;(2014) 10 SCC573
Dated;9-10-2014
Read original judgmenthere;click here
PRAFULLA C.PANT,J.
Leave granted.
2. This appeal is directed against the judgment and order
dated 5.2.2010 passed by the High Court of Calcutta whereby
said Court, exercising powers under Article 226 of the
Constitution of India, has allowed the application of the
respondent No.1, for condonation of delay filed before the
Page 2
appellate authority (District Judge/ Additional District Judge,
Alipore) and leave is granted to the said respondent to file the
appeal under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter to be referred to as ‘the Act’).
3. Brief facts of the case are that a plot of land measuring
133.41 sq. meters at 33 Coal Depot, Chetla Railway Siding also
known as Chetla Station Yard was allotted by the Port Trust to
Raj Virmani (present respondent No.2), on a month to month
lease basis, and the lease deed was executed on 1.2.1972.
The tenancy of the said tenant was terminated by the appellant
vide notice dated 1.7.1983. Thereafter, appellant, Board of
Trustee of the Port of Calcutta initiated eviction proceeding
against respondent No.2, Raj Virmani. In the year, 1992 the
present respondent No.1, Kalipada Bhakat, in said eviction
proceedings, appeared as power of attorney holder on behalf of
Raj Virmani. In the year 1994 respondent No.1 applied to the
Board of Trustee of the Port of Calcutta to induct him as a
tenant (which was not accepted). The Estate Officer,
respondent No.3 by its order dated 4.8.2008 directed eviction of
the unauthorised occupant from the premises with further
-2-
Page 3
direction for payment of arrears of rent and mesne profits. Said
authority, in its order, observed that present respondent No.1
has a right to establish his authority to occupy the premises but
failed to establish the same. From the order dated 4.8.2008
passed by the Estate Officer it is clear that Raj Virmani parted
with the possession of the public premises unauthorisedly to
respondent No.1 who is running his business in the name and
style of M/s. Bhakat Motors. Respondent No.2, Raj Virmani
never filed any appeal against the said order passed by the
Estate Officer. However, Respondent No.1, Kalipada Bhakat
attempted to file an appeal along with an application for
condonation of delay with the same. Said application was
contested before the appellate authority by the present
appellant. The plea taken by the respondent Kalipada Bhakat
before the appellate authority was that he had no knowledge of
the order sought to be challenged. The appellate authority after
hearing the parties, rejected the application vide its order dated
13.11.2009 with further observation that the present Kalipada
Bhakat has no locus standi to maintain the appeal. The
appellate authority further observed that there is no document
-3-
Page 4
showing that Kalipada Bhakat had any authority to occupy the
premises as he could not file any document showing that he
was the licensee or authorised to occupy on behalf of the
tenant, Raj Virmani. Aggrieved by said order of appellate
authority present respondent No.1 approached the High Court.
4. The High Court in the impugned order observed that the
question whether the applicant has any right or not to maintain
the appeal is required to be decided by the authority concerned
at the appropriate stage. It further observed that in view of
Section 4 of the Act, the Estate Officer should have given
opportunity by issuing show cause notice to the unauthorised
occupant. The High Court took the view that since the applicant
(the present respondent No.1) would be evicted by the eviction
proceedings, as such, it cannot be said that he had no locus to
maintain the appeal. With the above observation, the High
Court allowed the application for condonation of delay moved
before the appellate authority, and granted leave to file the
appeal. Aggrieved by the said order dated 5.2.2010 passed by
the High Court in CO No.3991 of 2009, the present appeal has
been filed before this Court.
-4-
Page 5
5. Learned counsel for the appellant submitted that the
respondent no.1 is rank trespasser in the public premises
originally let out by the Port Trust to Raj Virmani. Respondent
No.1 has admittedly entered into possession of the public
premises unauthorisedly under an arrangement with the original
tenant, without permission of the Port Trust. It is further pointed
out that since Respondent No.1 appeared before the Estate
Officer as constituted attorney of Raj Virmani, as such, there
was no illegality in the order passed by the appellate authority
in dismissing the application of Respondent No.1 in personal
capacity challenging the order of the Estate Officer.
6. On the other hand learned counsel for the Respondent
No.1 argued that Respondent No.1 cannot be denied right of
appeal as he is in possession of the premises, and the
impugned order passed by the High Court suffers from no
illegality.
7. We have considered rival submissions of the parties. It is
not disputed that Respondent No.1 contested the eviction
proceedings initiated by the appellant, against Respondent
-5-
Page 6
No.2, Raj Virmani, as her power of attorney holder. It is also not
disputed that Raj Virmani was the tenant in the premises in
question, and her tenancy was terminated. Respondent No.1
failed to explain as to how thereafter he occupied the premises
without the consent of the Port Trust. From the record it also
reveals that the Respondent No 1 had the knowledge of the
eviction proceedings, and he contested on behalf of
Respondent No.2. As such, in our opinion, the appellate
authority has rightly questioned the locus of Respondent No.1
in maintaining the appeal along with application for condonation
of delay. The eviction order drawn against Respondent No.2
attained finality, who never filed nor attempted to file any appeal
against the order dated 4.8.2008 passed by the Estate Officer.
As such, respondent No.1 who was power of attorney holder of
Respondent No. 2, cannot be allowed to maintain the appeal on
his own behalf to protract the eviction proceedings. No doubt,
sub-section (2) of Section 4 of the Act requires issuance of
notice to those in occupation of public premises before the
eviction order is passed against such persons, but in the
present case before us, since the proceeding has been drawn
-6-
Page 7
against unauthorised occupant (Raj Virmani), and to escape
eviction, she appears to have handed over possession of the
premises to Respondent No.1, as such, the subsequent
occupier cannot be said to be entitled to fresh notice. If such
person is allowed to maintain the appeal, by the time the
eviction proceedings are over against him, he might hand over
the possession of the premises to third or fourth party. Subsection
(2) of Section 4 of the Act cannot be restored to protect
the interest of such unauthorised occupants who enter into
possession, after eviction proceeding has been initiated against
their predecessor in possession.
8. Therefore, in our opinion, High Court erred in law in
allowing the application of condonation of delay moved by the
respondent no.1 before appellate court, and granting him leave
to appeal, against order of Estate Officer. Accordingly, we
allow the appeal with costs, and set aside the impugned order
of the High Court passed on 05.02.2010 in C.O.No.3991 of
2009. However, on furnishing undertaking within a period of
fifteen days, by the respondent No.1, to vacate the premises
and hand over the possession to the appellant within six
-7-
Page 8
months from today, we allow such time on condition that the
respondent No.1 shall deposit occupational charges with the
Estate Officer or the appellant, for the period from August, 2008
to September, 2014 at the rate of Rs.10,000/- (Rupees ten
thousand only) per month within a period of one month from
today. In case the Respondent No.1 fails to furnish such
undertaking or fails to comply the condition as above, the
Estate Officer may execute the order dated 04.08.2008,
forthwith. In case premises are not handed over as under
taken, contempt proceedings may also be drawn.
…………………………………………….J.
[SUDHANSU JYOTI MUKHOPADHAYA]
…………………………………………….J.
[PRAFULLA C. PANT]
New Delhi;
October 09, 2014.
-8-
Print Page
not disputed that Respondent No.1 contested the eviction
proceedings initiated by the appellant, against Respondent
No.2, Raj Virmani, as her power of attorney holder. It is also not
disputed that Raj Virmani was the tenant in the premises in
question, and her tenancy was terminated. Respondent No.1
failed to explain as to how thereafter he occupied the premises
without the consent of the Port Trust. From the record it also
reveals that the Respondent No 1 had the knowledge of the
eviction proceedings, and he contested on behalf of
Respondent No.2. As such, in our opinion, the appellate
authority has rightly questioned the locus of Respondent No.1
in maintaining the appeal along with application for condonation
of delay. The eviction order drawn against Respondent No.2
attained finality, who never filed nor attempted to file any appeal
against the order dated 4.8.2008 passed by the Estate Officer.
As such, respondent No.1 who was power of attorney holder of
Respondent No. 2, cannot be allowed to maintain the appeal on
his own behalf to protract the eviction proceedings. No doubt,
sub-section (2) of Section 4 of the Act requires issuance of
notice to those in occupation of public premises before the
eviction order is passed against such persons, but in the
present case before us, since the proceeding has been drawn
against unauthorised occupant (Raj Virmani), and to escape
eviction, she appears to have handed over possession of the
premises to Respondent No.1, as such, the subsequent
occupier cannot be said to be entitled to fresh notice. If such
person is allowed to maintain the appeal, by the time the
eviction proceedings are over against him, he might hand over
the possession of the premises to third or fourth party. Subsection
(2) of Section 4 of the Act cannot be restored to protect
the interest of such unauthorised occupants who enter into
possession, after eviction proceeding has been initiated against
their predecessor in possession.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9387 OF 2014
(Arising out of S.L.P.(c) No.19835 of 2010)
BOARD OF TRUSTEES
OF THE PORT OF KOLKATA ... APPELLANT
VERSUS
KALIPADA BHAKAT & ORS … RESPONDENTS
Citation;(2014) 10 SCC573
Dated;9-10-2014
Read original judgmenthere;click here
PRAFULLA C.PANT,J.
Leave granted.
2. This appeal is directed against the judgment and order
dated 5.2.2010 passed by the High Court of Calcutta whereby
said Court, exercising powers under Article 226 of the
Constitution of India, has allowed the application of the
respondent No.1, for condonation of delay filed before the
Page 2
appellate authority (District Judge/ Additional District Judge,
Alipore) and leave is granted to the said respondent to file the
appeal under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter to be referred to as ‘the Act’).
3. Brief facts of the case are that a plot of land measuring
133.41 sq. meters at 33 Coal Depot, Chetla Railway Siding also
known as Chetla Station Yard was allotted by the Port Trust to
Raj Virmani (present respondent No.2), on a month to month
lease basis, and the lease deed was executed on 1.2.1972.
The tenancy of the said tenant was terminated by the appellant
vide notice dated 1.7.1983. Thereafter, appellant, Board of
Trustee of the Port of Calcutta initiated eviction proceeding
against respondent No.2, Raj Virmani. In the year, 1992 the
present respondent No.1, Kalipada Bhakat, in said eviction
proceedings, appeared as power of attorney holder on behalf of
Raj Virmani. In the year 1994 respondent No.1 applied to the
Board of Trustee of the Port of Calcutta to induct him as a
tenant (which was not accepted). The Estate Officer,
respondent No.3 by its order dated 4.8.2008 directed eviction of
the unauthorised occupant from the premises with further
-2-
Page 3
direction for payment of arrears of rent and mesne profits. Said
authority, in its order, observed that present respondent No.1
has a right to establish his authority to occupy the premises but
failed to establish the same. From the order dated 4.8.2008
passed by the Estate Officer it is clear that Raj Virmani parted
with the possession of the public premises unauthorisedly to
respondent No.1 who is running his business in the name and
style of M/s. Bhakat Motors. Respondent No.2, Raj Virmani
never filed any appeal against the said order passed by the
Estate Officer. However, Respondent No.1, Kalipada Bhakat
attempted to file an appeal along with an application for
condonation of delay with the same. Said application was
contested before the appellate authority by the present
appellant. The plea taken by the respondent Kalipada Bhakat
before the appellate authority was that he had no knowledge of
the order sought to be challenged. The appellate authority after
hearing the parties, rejected the application vide its order dated
13.11.2009 with further observation that the present Kalipada
Bhakat has no locus standi to maintain the appeal. The
appellate authority further observed that there is no document
-3-
Page 4
showing that Kalipada Bhakat had any authority to occupy the
premises as he could not file any document showing that he
was the licensee or authorised to occupy on behalf of the
tenant, Raj Virmani. Aggrieved by said order of appellate
authority present respondent No.1 approached the High Court.
4. The High Court in the impugned order observed that the
question whether the applicant has any right or not to maintain
the appeal is required to be decided by the authority concerned
at the appropriate stage. It further observed that in view of
Section 4 of the Act, the Estate Officer should have given
opportunity by issuing show cause notice to the unauthorised
occupant. The High Court took the view that since the applicant
(the present respondent No.1) would be evicted by the eviction
proceedings, as such, it cannot be said that he had no locus to
maintain the appeal. With the above observation, the High
Court allowed the application for condonation of delay moved
before the appellate authority, and granted leave to file the
appeal. Aggrieved by the said order dated 5.2.2010 passed by
the High Court in CO No.3991 of 2009, the present appeal has
been filed before this Court.
-4-
Page 5
5. Learned counsel for the appellant submitted that the
respondent no.1 is rank trespasser in the public premises
originally let out by the Port Trust to Raj Virmani. Respondent
No.1 has admittedly entered into possession of the public
premises unauthorisedly under an arrangement with the original
tenant, without permission of the Port Trust. It is further pointed
out that since Respondent No.1 appeared before the Estate
Officer as constituted attorney of Raj Virmani, as such, there
was no illegality in the order passed by the appellate authority
in dismissing the application of Respondent No.1 in personal
capacity challenging the order of the Estate Officer.
6. On the other hand learned counsel for the Respondent
No.1 argued that Respondent No.1 cannot be denied right of
appeal as he is in possession of the premises, and the
impugned order passed by the High Court suffers from no
illegality.
7. We have considered rival submissions of the parties. It is
not disputed that Respondent No.1 contested the eviction
proceedings initiated by the appellant, against Respondent
-5-
Page 6
No.2, Raj Virmani, as her power of attorney holder. It is also not
disputed that Raj Virmani was the tenant in the premises in
question, and her tenancy was terminated. Respondent No.1
failed to explain as to how thereafter he occupied the premises
without the consent of the Port Trust. From the record it also
reveals that the Respondent No 1 had the knowledge of the
eviction proceedings, and he contested on behalf of
Respondent No.2. As such, in our opinion, the appellate
authority has rightly questioned the locus of Respondent No.1
in maintaining the appeal along with application for condonation
of delay. The eviction order drawn against Respondent No.2
attained finality, who never filed nor attempted to file any appeal
against the order dated 4.8.2008 passed by the Estate Officer.
As such, respondent No.1 who was power of attorney holder of
Respondent No. 2, cannot be allowed to maintain the appeal on
his own behalf to protract the eviction proceedings. No doubt,
sub-section (2) of Section 4 of the Act requires issuance of
notice to those in occupation of public premises before the
eviction order is passed against such persons, but in the
present case before us, since the proceeding has been drawn
-6-
Page 7
against unauthorised occupant (Raj Virmani), and to escape
eviction, she appears to have handed over possession of the
premises to Respondent No.1, as such, the subsequent
occupier cannot be said to be entitled to fresh notice. If such
person is allowed to maintain the appeal, by the time the
eviction proceedings are over against him, he might hand over
the possession of the premises to third or fourth party. Subsection
(2) of Section 4 of the Act cannot be restored to protect
the interest of such unauthorised occupants who enter into
possession, after eviction proceeding has been initiated against
their predecessor in possession.
8. Therefore, in our opinion, High Court erred in law in
allowing the application of condonation of delay moved by the
respondent no.1 before appellate court, and granting him leave
to appeal, against order of Estate Officer. Accordingly, we
allow the appeal with costs, and set aside the impugned order
of the High Court passed on 05.02.2010 in C.O.No.3991 of
2009. However, on furnishing undertaking within a period of
fifteen days, by the respondent No.1, to vacate the premises
and hand over the possession to the appellant within six
-7-
Page 8
months from today, we allow such time on condition that the
respondent No.1 shall deposit occupational charges with the
Estate Officer or the appellant, for the period from August, 2008
to September, 2014 at the rate of Rs.10,000/- (Rupees ten
thousand only) per month within a period of one month from
today. In case the Respondent No.1 fails to furnish such
undertaking or fails to comply the condition as above, the
Estate Officer may execute the order dated 04.08.2008,
forthwith. In case premises are not handed over as under
taken, contempt proceedings may also be drawn.
…………………………………………….J.
[SUDHANSU JYOTI MUKHOPADHAYA]
…………………………………………….J.
[PRAFULLA C. PANT]
New Delhi;
October 09, 2014.
-8-
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