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2015 DIGILAW 59 (CAL)

Eid Parry (India) Limited v. Kolkata Port Trust

2015-01-28

JOYMALYA BAGCHI, MANJULA CHELLUR

body2015
JUDGMENT : Appellant No.1 herein was the writ petitioner before the learned single Judge and the writ petition went against the interest of the appellants. The admitted facts are as under : 2. One Parry & Company Ltd. initially obtained a lease of property from the then Calcutta Port Trust in or about the year 1979. It was renewed for a period of 10 years from time to time till 30th September 1999. Said Parry & Co.Ltd, got amalgamated with another company and presently it is known as EID Parry (India) Ltd. According to the appellants, when they were negotiating with the respondent-authorities for renewal of the lease subsequent to the expiry of lease, they were in permissive possession of the property pending finalisation of the terms of fresh lease to be entered into between the parties. According to appellants-writ petitioners, the negotiation fell through and the writ petitioner-company surrendered possession of the premises. According to the appellants-writ petitioners, the order passed by Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was incorrect and there was no justification to proceed with the orders without rendering any opportunity to appellants to address arguments on merit. We need not refer to the other factual situation as the main contention of the appellants-writ petitioners is violation of principles of natural justice as they had no opportunity to address arguments on the main matter before the Estate Officer. 3. We have gone through the order sheets pertaining to the matter pending before the Estate Officer in respect of proceedings initiated under Public Premises (Eviction of Unauthorised Occupants) Act, 1971. According to the appellants-writ petitioners, right from 22-2-2007, they were under the impression that the matter would be first heard on the question of maintainability of the proceedings pending before the Estate Officer and later the main matter would be heard on merits. He took us through the order dated 22-2-2007 at page 257 of the paper books which reads as under : "Heard submission of both the sides and considered the matter on the basis of materials on record. I will deliver my order with regard to the question of maintainability of this proceedings. KoPT is directed to file their reply for my consideration within a fortnight from the date of passing of this order. O.P. should file the reply thereafter, if any, within a fortnight thereafter. I will deliver my order with regard to the question of maintainability of this proceedings. KoPT is directed to file their reply for my consideration within a fortnight from the date of passing of this order. O.P. should file the reply thereafter, if any, within a fortnight thereafter. I propose to take up the matter on 29-3-2007 at 3.00 p.m. All concerned are directed to act accordingly." 4. Order passed on the next date of hearing being 29- 3-2007 reads as under : "It is submitted on behalf of O.P. that KoPT's Reply/Objection dated 26-3-2007 has since been received after 5 weeks without any annexure as mentioned in the said objection of KoPT. It is submitted that without annexures as indicated therein, it is very difficult to deal with the matter in appropriate manner. Considered the matter. KoPT is directed to provide O.P. with the annexures as indicated in the objection of KoPT as filed on 26-3-2007 immediately upon intimation to me. The next date for hearing etc. for deciding the question at issue will be fixed up after hearing from KoPT's side. All concerned are directed to act accordingly." 5. Subsequent to this order dated 29-3-2007, the so called error, according to the appellants-writ petitioners seems to have occurred, i.e., though written arguments were submitted on the question of maintainability of the proceedings followed by oral arguments, the matter came to be disposed of on merits without the appellant-writ petitioners having got the opportunity of addressing Estate Officer, either orally or by filing written submissions so far as the merits of the proceedings. 6. Apparently, on 21-6-2007, the order sheet at page 283 of the paper book indicate, on that day the appellants-writ petitioners were not present but there is an indication that next date of hearing, i.e., 26-7-2007 must have been intimated to the parties. The essence of this order dated 21-6-2007 was intimated, but according to the appellants-writ petitioners' counsel, they were all along under the impression that the matter would be taken up for addressing arguments on the preliminary question of maintainability alone on 26-7-2007 and not on merits of the proceedings. Therefore, his contention is that arguments, if any, on 21-6-2007 was with regard to the maintainability of the proceedings alone. 7. Therefore, his contention is that arguments, if any, on 21-6-2007 was with regard to the maintainability of the proceedings alone. 7. Subsequently on 27-8-2007 the final order came to be passed by referring to the arguments of Pranab Kumar Dutta, Senior Counsel appearing for the writ petitioners only on the point of maintainability of the show cause notice under section 7(3) of the said Act for damages. It also refers to submission of written notes of argument. However, the order dated 27-8-2007 is on merits also by referring to the arguments on the maintainability of the proceeding. 8. According to learned counsel for the appellants, in the absence of opportunity being granted to address on merits of the proceedings, there was no justification on the part of Estate Officer concerned to proceed to pass orders on merit of the proceedings as well after raising as many as 10 issues based on the pleadings pending before him. In other words, according to learned counsel for appellants, considering the arguments only on maintainability, both oral and written, the matter was disposed of on merits of the proceeding. This has resulted in grave injustice to the appellants-writ petitioners. 9. Against this, learned counsel for respondent KoPT authorities brings to our notice several portions of the learned Single Judge's order wherein learned Judge has opined that other than maintainability there is nothing else to be considered. Reiterating the said argument, learned counsel for the respondent authorities contends that apart from the question of maintainability, there is no other issue that was raised either in the pleadings or in the writ petition or in the appeal by the respondents. Therefore, there was no other stand or defence so far as the merits of the proceedings. Hence, according to learned Senior Counsel, Mr. Mitra arguing for the respondent-Trust, the order of Estate Officer is justified which is confirmed by the learned Single Judge and the appeal deserves to be dismissed. 10. On perusal of order dated 22.2.2007, we note that learned Senior Counsel, Mr. Pranab Kumar Dutta was present on behalf of appellants-writ petitioners. He categorically submitted that the matter was heard with regard to the maintainability of the show cause notice issued under section 7(3) of the Act. 10. On perusal of order dated 22.2.2007, we note that learned Senior Counsel, Mr. Pranab Kumar Dutta was present on behalf of appellants-writ petitioners. He categorically submitted that the matter was heard with regard to the maintainability of the show cause notice issued under section 7(3) of the Act. In fact, the Estate Officer also took note of such contention and made an order that he would deliver order with regard to the question of maintainability of the proceedings. What happened after 22.2.2007 order clearly indicates that on 29.3.2007 a submission was made on behalf of appellants-writ petitioners that though reply objection dated 26.3.2007 was received, no copies of the annexures mentioned in the reply objection were supplied, therefore, there was a direction to furnish annexures as indicated in the reply objection of KoPT. The next sentence is very important so far as order dated 29.3.2007, which says, 'the next day for hearing for deciding the question at issue will be fixed up after hearing from KoPT side and all concerned are directed to act accordingly'. Reading of the last but one sentence of order dated 29.3.2007 together with order dated 22.2.2007 would certainly give an impression that the question at issue was with regard to maintainability of show cause notice issued under section 7(3) of the Act and that would be heard. However, on 21.6.2007, the matter was taken up on being mentioned by KoPT. The next date of hearing was fixed on 26.7.2007. 11. On perusal of the original order sheet, even if there are some over-writings with regard to serial number of the proceedings and also the dates, on perusal of the original records and hearing senior counsel Mr. Mitra we are of the opinion that it would be a case of inadvertence on the part of Estate Officer to make such over-writings because of mentioning wrong number and the date. 12. The controversy is whether the matter was heard on merits or on the question of maintainability of the show cause notice on 26-7-2007. Mr. Datta, learned Senior Counsel for the appellants-writ petitioners addressed arguments and it was recorded in the order dated 26-7-2007 as under. "Heard the submissions/arguments of both sides. Considered the matter on the basis of materials on record. Let the Final Order be reserved." 13. Mr. Datta, learned Senior Counsel for the appellants-writ petitioners addressed arguments and it was recorded in the order dated 26-7-2007 as under. "Heard the submissions/arguments of both sides. Considered the matter on the basis of materials on record. Let the Final Order be reserved." 13. Neither the order dated 21-6-2007 nor the order dated 26-7-2007 indicates that the Estate Officer has reviewed his earlier order dated 22-2-2007 to hear the preliminary question of maintainability of the proceedings as indicated on 22-2-2007 and would proceed to hear the matter on merits. There is no indication in any of these orders prior to 27-8-2007 that an opportunity was given to the appellants-writ petitioners to address arguments on merit since Estate Officer reviewed his earlier order to hear only the preliminary issue of maiantainability. In the absence of such indication when learned Senior Counsel arguing for the appellants-writ petitioners categorically submits that on behalf of his clients he never argued on merits of the proceeding, we fail to understand how Estate Officer could have proceeded to dispose of the matter without hearing the appellants-writ petitioners on merit. 14. Learned Senior Counsel for respondents contends that there could not be any argument on merits. On perusal of issues, especially issue No.9, we are of the opinion, the same could not have been decided by the Estate Officer without giving an opportunity of hearing to the appellants-writ petitioners. On the other hand, at page 300 in the final order dated 27-8-2007, Estate Officer indicates that no evidence has been led on behalf of O.P. to substantiate his statement regarding surrender of possession to KoPT except letters intimating their desire to hand over possession to KoPT prior to actual delivery of possession. Had an opportunity been given to the appellants-writ petitioners, they would have been in a position to explain how their intention to surrender was intimated, in what terms, etc. In the absence of giving such an opportunity when the matter was fixed only to hear the question at issue, that is, maintainability of the show cause notice, we are of the opinion, Estate Officer is not justified in alleging that no evidence was led on behalf of the appellants-writ petitioners regarding actual surrender of possession of the property. In the absence of giving such an opportunity when the matter was fixed only to hear the question at issue, that is, maintainability of the show cause notice, we are of the opinion, Estate Officer is not justified in alleging that no evidence was led on behalf of the appellants-writ petitioners regarding actual surrender of possession of the property. Therefore, we are of the opinion, definitely there were several issues or relevant matters that could have been brought on record, if only the appellants-writ petitioners were given opportunity to address on the main matter. 15. In that view of the matter, we are of the opinion, the order dated 27-8-2007 by the Estate Officer deserves to be set aside and the matter is remanded back to the Estate Officer for fresh consideration. It is pertinent to mention that having regard to long pendency of the matter, there is no need to hear the maintainability point and merits of the matter separately. Estate Officer shall hear the parties both on the point of maintainability and merits of the proceedings together after giving opportunity to both the parties and dispose of the matter within three months from the date of communication of this order. 16. Resultantly, the appeal is allowed and order of the learned Single Judge dated 18th August, 2009 is set aside. 17. The amount which is already in deposit with the Registrar, Original Side shall remain in deposit till final termination of the proceedings. 18. Be it recorded that we have not expressed any opinion on the merits of the matter and all contentions including the question of maintainability are kept open. APO No. 194 of 2014 is allowed.