Bhaskar Bhattacharya, J.
1. This mandamus-appeal is at the instance of a third party in a writ-application and is directed against order dated March 5, 2007 passed by a learned Single Judge of this Court by which His Lordship disposed of a writ-application filed by the private respondent by setting aside the order passed by the Chairman of the Kolkata Port Trust which was impugned in the writapplication with the direction to the Port Trust Authority to rehear and dispose of the representation of the writ-petitioner afresh in the light of the observations made in the body of the order. Subsequently, by an order dated March 28, 2007, on an application of the Chairman and the Land Manager of the Kolkata Port Trust, who were the respondents Nos. 1 and 4 respectively, the earlier order dated March 5, 2008 was modified by specifically directing the Chairman of the Kolkata Port Trust (instead of Port Trust Authority) to dispose of the representation of the writ-petitioner as indicated earlier.
2. The facts giving rise to filing of the writ-application out of which the present appeal arises may be summed up thus:
a) On 1st May, 1978, the Kolkata Port Trust Authority granted lease of land measuring 3,092.09 sq. meter to one Kanji Panchanand Private Limited (hereinafter referred to as the Kanji) for a term of 10 years at the monthly rental of Rs. 1,855.25p. Although the lease expired on April 30, 1990, the Kanji did not deliver back possession as a result, the Port Trust Authority issued a notice dated July 1, 1990 asking the Kanji to vacate the land.
b) In spite of such notice, the Kanji having failed to deliver possession in favour of the lessor, the Port Trust Authority on 17th May, 1998 initiated proceedings for eviction under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as the Act) before the Estate Officer. The Estate Officer by his order dated May 25, 2000 passed an order of eviction against the Kanji.
c) Being dissatisfied with the order of eviction, the Kanji preferred an appeal before the learned District Judge but such appeal was dismissed on May 15, 2002. A revisional application filed by the Kanji before this Court was also dismissed on July 15, 2002 and consequently, the Port Trust Authority filed an application for execution and appointment of an authorised officer in terms of Section 5(2) of the Act on December 16, 2006.
d) At this stage, one Manish Tiwari filed a suit being Title Suit No. 989 of 2003 in the City Civil Court of Calcutta and obtained an order of injunction restraining the Port Trust Authority from taking possession of the leasehold land of the Kanji. Ultimately, such order of injunction was vacated on June 28, 2006 and the Port Trust Authority in execution obtained possession of the land from the Kanji on October 19, 2006 and seized some timbers and casing pipes, which were lying on the leasehold land at the time of taking delivery of possession.
e) The writ-petitioners claimed to be the owners of those casing pipes and their case was that they imported the pipes on October 13, 2006 for the purpose of sending those to Jorhat, Assam, and accordingly, a transporter was engaged for such transportation who unloaded the containers and dumped 300 pieces of casing pipes on a vacant land with the idea to gradually transport those pipes subject to the availability of trailers and in fact, out of 300 casing pipes, already 153 were transhipped and the balance 147 were lying on the open ground on the date of execution of the order of eviction against the Kanji.
f) In the past, the said transporter, on behalf of the writ-petitioner, filed another writ-application before this Court complaining the seizure of the casing pipes by the Port Trust Authority on the ground that those casing pipes had no connection with the former tenant of the Port Trust, and as such, those should be released immediately. Dipankar Datta, J. disposed of such writ-application by directing the writ-petitioner to make a representation before the Port Trust Authority within a specified time with a direction to the Chairman, Kolkata Port Trust, to dispose of such representation after giving an opportunity of hearing to the writ- petitioner.
g) Pursuant to the order passed by Datta, J., the Chairman, Kolkata Port Trust by order dated February 16, 2007 disposed of the representation by holding that the dues of the Kolkata Port Trust against the Kanji, its previous tenant, amounted to Rs. 76,36,783.11p. without interest and as such, in view of pendency of the proceedings for liquidation of dues before the Estate Officer under the provision of the Act, those goods could not be released as those were found to be lying on the leasehold property at the time of taking delivery of possession through execution.
h) Being dissatisfied with the aforesaid order passed by the Chairman of the Kolkata Port Trust, the writ-petitioner filed a fresh writ-application before this Court and as pointed out earlier, Jyotirmoy Bhattacharya, J. disposed of such application by directing the Chairman of the Port Trust to rehear the representation in the light of the observations made by His Lordship in the body of the order. His Lordship specifically held that unless it was established that there was co-relation between the writ- petitioner and the erstwhile tenant, the goods of the writ-petitioner could not be sold for realisation of the dues of the previous tenant.
3. Being dissatisfied, the Board of Trustees of the Kolkata Port Trust who were not parties to the writ-application have come up with this appeal with leave to file the same.
4. Mr. Anindya Mitra, the learned senior advocate appearing on behalf of the appellant has made threefold submission in support of this appeal.
5. First, Mr. Mitra contends that the writ-application filed by the private respondent was not maintainable in the absence of the appellant as party to the proceedings. According to him, in order to get any relief against the Kolkata Port Trust, a statutory authority, the Board of Trustees of the Port Trust constituted under the Major Port Trust Act is the necessary party and as such, the learned Single Judge ought to have dismissed the writ-application as not maintainable in the absence of the appellant.
6. Secondly, Mr. Mitra contends that the Act having invested the Estate Officer with the duty to seize any moveable found at the time of execution of the order of eviction and to sell those items for realisation of the dues of the lessor, the learned Single Judge erred in law in holding that in the absence of any co-relation between the unauthorised occupant and the writ-petitioner, the Port Trust Authority was not entitled to sell the goods belonging to the writ-petitioner.
7. Thirdly, Mr. Mitra submits that under the provisions of the Act, the Estate Officer being the appropriate authority to decide the disputes involved herein, the learned Single Judge erred in law in directing the Chairman of the Port Trust to decide such question in stead of asking the writ-petitioner to approach the appropriate forum under the Act if it was dissatisfied with the order passed by the Estate Officer.
8. Mr. Mitra, therefore, prays for setting aside the order passed by the learned Single Judge and for dismissal of the writ-application on the abovementioned grounds.
9. Mr. Jayanta Kumar Mitra, the learned senior Advocate appearing on behalf of the writ-petitioner/respondent has, however, opposed the aforesaid contentions advanced by Mr. Anindya Mitra and has contended that the Kolkata Port Trust being adequately represented in the writ-application through its Chairman and the said Chairman of the Kolkata Port Trust having not only complied with the order of this Court in past but also prayed for review of the order for specifically directing him to dispose of the representation of the writ petitioner, the plea of the appellant that the writ-application was not maintainable was not tenable in the eye of law.
10. As regards the plea of existence of alternative remedy taken by the appellant, Mr. Mitra contends that existence of alternative remedy is not an absolute bar in entertaining a writ-application and such plea not having been taken at the initial stage was not entertainable for the first time before the appellate forum.
11. As regards the provisions contained in the Act for disposal of any moveable found at the public premises at the time of execution of an order of eviction, Mr. Mitra contends that in this case it has been sufficiently established that there was no connection of the writ-petitioner or its transporter with the Kanji, the original tenant of the Port Trust, and as such, for realisation of the arrears of rent due from the Kanji, the property admittedly belonging to the writ-petitioner cannot be seized or sold in terms of the provisions of the Act. Mr. Mitra contends that third party who had no connection with the unauthorised occupier of the public premises cannot be asked to bear the burden of the mischief committed by such unauthorised occupier. Mr. Mitra, therefore, prays for dismissal of this appeal.
12. Therefore, the first question that falls for determination in this appeal is whether the writ-application, in the absence of the Board of Trustees of the Kolkata Port Trust, was maintainable.
13. After hearing the learned Counsel for the parties and after going through the provisions contained in the Major Port Trust Act, we find that the Calcutta Port Trust is represented by a Board of Trustees constituted under the provisions of the said Act and such Board is a body corporate having perpetual succession and the Port Authority is required to be sued in the name of the Board. In the writ-application, out of which the present appeal arises, the grievance of the writpetitioner is against the Kolkata Port Trust and therefore, the Port must be represented by the Board of Trustees constituted under the Major Port Trust Act. We, therefore, find substance in the contention of Mr. Anindya Mitra, the learned Counsel appearing on behalf of the Board that the writ-application was not maintainable without impleading the Board as party. In other words, no effective order could be passed against the Port Trust Authority without impleading the Board and by merely making some of officers of the Port as parties to the proceedings, the writ-application could not be maintained.
14. However, having regard to the fact that we, as appellate court, have also heard the Board of Trustees on merit of the case, we do not propose to dismiss the writ-application on that ground and accordingly, to avoid multiplicity of proceedings, we intend to dispose of the writ-application on merit after giving opportunity of hearing to the Board who has preferred this appeal.
15. The next question is whether the writ-petitioner who has admittedly kept its goods on the land belonging to the Port Trust Authority through its transporter can avoid the rigour of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 simply because its transporter unknowingly kept the goods in question on such land even if we assume for the sake of argument that the goods were damped mistakenly and the writ-petitioner or its transporter had no connection with the unauthorised occupier against whom the order of eviction had been passed.
16. To appreciate the aforesaid question, it will be profitable to refer to the Sections 5 and 6 of the Act which are quoted below:
5. Eviction of unauthorised occupants.--(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of Sub-section (2) of Section 4, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under Sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary.
6. Disposal of property left on public premises by unauthorised occupants.--(1) Where any persons have been evicted from any public premises under Section 5 or where any building or other work has been demolished under Section 5B, the estate officer may, after giving fourteen days' notice to the persons from whom possession of the public premises has been taken and after publishing the notice in at least one newspaper having circulation in the locality, remove or cause to be removed or dispose of by public auction any property remaining on such premises.
(1-A) Where any goods, materials, cattle or other animal have been removed from any public premises under Section 5A, the estate officer may, after giving fourteen days' notice to the persons owning such goods, material, cattle or other animal and after publishing the notice in at least one newspaper having circulation in the locality, dispose of, by public auction, such goods, materials, cattle or other animal.
(1-B) Notwithstanding anything contained in Sub-sections (1) and (1-A), the giving or publication of any notice referred to therein shall not be necessary in respect of any property which is subject to speedy and natural decay, and the estate officer may, after recording such evidence as he may think fit, cause such property to be sold or otherwise disposed of in such manner as he may think fit.
(2) Where any property is sold under Sub-section (1), the sale proceeds thereof shall, after deducting the expenses of the sale and the amount, if any, due to the Central Government or the statutory authority on account of arrears of rent or damages or costs, be paid to such person or persons as may appear to the estate officer to be entitled to the same:
Provided that where the estate officer is unable to decide as to the person or persons to whom the balance of the amount is payable or as to the apportionment of the same, he may refer such dispute to the civil court of competent jurisdiction and the decision of the court thereon shall be final.(2-A) The expression 'costs', referred to in Sub-section (2), shall include the cost of removal recoverable under Section 5A and the cost of demolition recoverable under Section 5B.
17. In this connection, Sections 59 and 61 of the Major Port Trust Act are also to some extent relevant and quoted below:
59. Board's lien for rates.--(1) For the amount of all rates leviable under this Act in respect of any goods, and for the rent due to the Board for any buildings, plinths stacking areas, or other premises on or in which any goods may have been placed, the Board shall have a lien on such goods, and may seize and detain the same until such rates and rents are fully paid.
(2) Such lien shall have priority over all other liens and claims, except for general average and for ship-owner's lien upon the said goods for freight and other charges where such lien exists and has been preserved in the manner provided in Sub-section (1) of Section 60, and for money payable to the Central Government under any law for the time being in force relating to customs, other than by way of penalty or fine.
61. Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged.--(1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner such goods or so much thereof as, in the opinion of the Board, may be necessary-
(a) if any rates payable to the Board in respect of such goods have not been paid, or
(b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or
(c) if any lien of any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charge has made to the Board an application for such sale.
(2) Before making such sale, the Board shall give ten days' notice of the same by publication thereof in the Port Gazette, or where there is no Port Gazette, in the Official Gazette and also in at least one of the principal local daily newspapers:
Provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of.(3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known, notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent.
(4) Notwithstanding anything contained in this section, arms and ammunition and controlled goods may be sold at such time and in such manner as the Central Government may direct. Explanation.--In this section and Section 62-
(a) 'arms and ammunition' have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959);
(b) 'controlled goods' means goods the price or disposal of which is regulated under any law for the time being in force.
18. A conjoint reading of the aforesaid statutory provisions makes it abundantly clear that if any goods are found on the land of the Port and for such land any rent is due or payable, the Port Authority has not only the lien over those goods but also right to sell those goods to appropriate the sale proceeds towards the rental dues after a specified period and it is immaterial whether the person liable to pay rent to the Port Authority for the land is the owner of those goods or not. In other words, if somebody unknowingly keeps any goods on the land of the Port, his goods would be liable to sale for realisation of the dues of the rent for the land notwithstanding the fact that he had no connection with the person who was liable to pay the rent for that land. In the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the same principle has been adopted and according to Section 6 thereof, if at the time of execution of any order of eviction from the public premises, any goods are found on the public premises, those goods will be liable to sale for the realisation of the dues towards unauthorised occupation and the real owner of the goods cannot take the plea of ignorance of the ownership of the land or of the dues of the unlawful occupier against whom the execution proceeded for the purpose of recovery of those goods or avoiding the sale thereof. The object of giving notice to the owner as contemplated in the Statutes is not for hearing any objection of the owner of the goods against the confiscation of his goods but for the purpose of giving him an opportunity to purchase the same in public auction and to lay claim over the balance amount of the sale-proceeds, if any, remains after meeting the liability of the unauthorised occupier.
19. The learned Single Judge, therefore, erred in law in holding that the writpetitioner could not be held liable for the dues of the unlawful occupant, unless some sort of link, between the writ-petitioner and the unlawful occupant against whom the order of eviction was sought to be executed, is established. The fact, that the agent of the writ-petitioner, without taking due care to ascertain the ownership of the land, kept the goods on the land of the Port Trust Authority without taking any permission, was sufficient to attract the provision contained in Section 6 of the Act. The learned Single Judge, as it appears from the order impugned, did not consider the statutory provisions mentioned above.
20. We, therefore, set aside the orders dated March 5, 2007 and March 28, 2007 passed by the learned Single Judge and hold that undisputedly, at the time of execution of the order of eviction passed under Section 5 of the Act against the Kanji, the erstwhile lessee, the goods in question having been kept on the land under execution without taking permission from the Port Trust Authority, the writ-petitioner is not entitled to get back those goods without meeting the liability of the Kanji and that the Estate Officer is at liberty to proceed in accordance with the provisions of the Act for sale of those goods. The writ-petitioner, it is needless to mention, is at liberty to seek its remedy before the appropriate forum if it is of the view that the provisions contained in the Act have not been complied with.
21. The mandamus-appeal is, thus, allowed. The writ-application filed by the private respondent, consequently, is dismissed on the grounds mentioned above.
22. In the facts and circumstances, there will be, however, no order as to costs.
Rudrendra Nath Banerjee, J.
23. I agree.