Judgment:
1. The appellants have impugned in this appeal the order dated 11th September, 2006, passed by the learned Single Judge. This impugned order was passed on an application for modification being CAN No. 6823 of 2006, Chairman Board of Trustees us. Ifteahan Khan (K. J. Sengupta, JJ.) (DB) 365 made by the appellants. In this appeal an application has been taken out for appropriate interim relief in this matter.
2. Mr. Kapoor, learned Counsel appearing for the appellants contends that the learned Trial Judge ought not to have entertained the writ petition at all as the writ petitioner, Iftekar Khan has no locus to file the same. If the writ petition is gone through minutely then it will appear that no affectation of right has been made out by Iftekar Khan in order to maintain the writ petition. There has been no case of any nature, either contractual or otherwise, as against the Port authority having been made out. As such, at the very first instance, the writ petition should have been dismissed. Of course it is admitted that at the initial stage, this point was not taken, but that does not mean that the point of jurisdiction cannot be agitated at a subsequent stage, as it goes to the very root of the matter. Iftekar Khan is not the owner of the goods which are lying in the premises; admittedly belonging to the Port authority. Several parties have come forward to claim the ownership. Mr. Kapoor submits that when the writ petitioner has no proprietary right or interest at all, how he can maintain the writ petition, is the first question which ought to have been decided by the learned Trial Judge.
3. Since this is a question of jurisdiction, we thought that this issue should be resolved at first. It will be apposite to record that this was not agitated earlier and being urged for the first time now. At an earlier stage, the learned Trial Judge passed interim order on 20th February, 2006. At that time too it does not appear from the order itself that the point of jurisdiction was taken.
4. Mr. Jayanta Kumar Mitra, learned Counsel for the writ petitioner Iftekar Khan contends that the Port authorities are estopped from raising this plea of jurisdiction at this stage after having submitted to the jurisdiction and abandoning the point of jurisdiction by making an application for modification. Appeal was preferred by his client Iftekar Khan against earlier interim order dated 20th February, 2007 and Port authority had filed cross-objection against the same order. In cross-objection, point of jurisdiction was taken. But neither the appeal nor the cross-objection was pressed.
5. It is stated that in view of dismissal of the appeal, cross-objection was also dismissed. We are unable to accept this plea as in case of dismissal of the appeal, the cross-objection could be proceeded with separately and independently. We are of the view that this plea of maintainability is, accordingly, hit by the principle of constructive res judicata if not expressed point of res judicata, because of dismissal of cross-objection.
6. It is settled position of the law that any decision rendered in the interlocutory stage, operates as res judicata at the subsequent stage of the same proceedings. Even if for argument's sake, Mr. Kapoor's contention that such a plea can be raised at any stage and every stage, because it really concerns with the lack of inherent jurisdiction is accepted, then we are to consider the contention of Mr. J. K. Mitra on this point also. For our assistance he has drawn our attention to the following decisions of the Supreme Court, reported in AIR 1966 SC page 828 (paragraph 8), 1976(1) SCC page 671 and 2000(7) SCC page 552.
7. Before we consider the decisions cited by Mr. Mitra, we are to examine the relevant statements and averments made in the writ petition as to how the writ petitioner's affectation of right is pleaded.
8. In paragraphs 3, 4, 6, 8 and 10 of the writ petition it has been stated as follows:
Paragraph 3:
That your petitioner states that your petitioner carries on the business of the transport contractor/handling agents for and on behalf of the different importers of the logs and used to stack them at the godown of the private respondent situated at Jhinjirapole, 3, Stockyard, Hide Road Extn., Kolkata-88Paragraph 4:
That your petitioner states that your petitioner has recently come to know that a dispute is going on by and between the Calcutta Port Trust authorities and the private respondent herein with regard to the possession and occupation of the said godown where your petitioner has stacked the logs to be delivered at different destinations at the instructions of the importers/ consignees of those logs.Paragraph 6:
That your petitioner states that on 21.1.2006 all on a sudden the concerned respondents accompanied by two police vans with a truck load of Central Industrial Security Force personnel came to the said premises of the private respondents and forcibly put up the brick wall obstructing the ingress and egress of men and materials of the petitioner. Not only that, but also the concerned respondents have dug up a wide trench infront of the main gate of the said premises with vindictive attitude, so as to prevent moment of the vehicles to be used for delivery of the logs which have been stacked at the said premises upon payment of storing charges to the private respondent herein.Paragraph 8:
That your petitioner states that the different consignees importers of those logs whose goods are stacked at the said site have become very much panicky since their customers are also pressing them hard to deliver those logs which then have already purchased for the running of their respective factories/ business.
The xerox copies of the challans of the customers whose logs are stacked at the said premises are annexed hereto and collectively marked with letter 'P/3.
Paragraph 10:That your petitioner submits that your petitioner has no concern with the Calcutta Port Trust authorities in respect of the lis pending by and between the Calcutta Port Trust authorities and the private respondent and in that view of the matter the Calcutta Port Trust has no claim over the goods of the petitioner and the Calcutta Port Trust authorities should not obstruct the petitioner from taking out those logs with the help of their own men/ vehicles in the interest of justice.
9. In the context of the aforesaid statements and averments following have been made in the writ petition:
(a) A writ of mandamus and/or in the nature of mandamus commanding the respondents concerned and each one of them to remove the obstruction in ingress and egress from the said premises so as to allow the petitioner to take out the logs with the help of their own men/vehicles from the said site at Jhinjhira Pole, 3, Stock Yard, Hide Road Extension, Kolkata- 88 within the reasonable time without interruption of any nature by Kolkata Port Trust authorities pending disposal of the instant writ application;
(b) A writ of certiorari and/or in the nature of certiorari commanding the respondents concerned to send up all records and proceedings so that the conscionable justice may be done;
(c) Rule 'NISI' in terms of prayers (a) and (b) above;
(d) Ad interim order by way of direction upon the respondents concerned and each one of them to remove the obstruction in ingress and egress from the said premises so as to allow the petitioner to take out the logs with the help of their own men/vehicles from the said site at Jhinjhira Pole, 3, Stock Yard, Hide Road Extn., Kolkata- 700 088 within the reasonable time without any interruption of any nature by Kolkata Port Trust authorities pending disposal of the instant writ application;
(e) Ad interim order in terms of prayer (d) above;
(f) Costs and incidental thereto be paid by the respondents to the petitioner;
(g) Such other order or further order or orders, direction or directions be given as Your Lordships may deem fit and proper.
10. The question of locus standi has to be examined at this stage going by the statements and averments made in the writ petition and the documents annexed to the writ petition. Mr. Kapoor is right in saying that from the documents annexed to the writ petition it will appear that the writ petitioner is not the owner nor has any proprietary right and interest over the goods.
11. Mr. Pratap Chatterjee has appeared on behalf of the respondent No. 8 and says in no uncertain terms that his client has engaged the writ petitioner as handling agent and he wants delivery of the goods through him.
12. At this stage prima facie, we find that the petitioner is having interest to take custody of the goods as an agent. The goods are kept and/or stacked at the premises undisputedly owned by the Port authority.
13. In the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. reported in : [1966]2SCR172 , the Supreme Court has examined the question of locus of a person to maintain a writ under Article 226. In paragraph 8 of the said judgment it is viewed as a statement of law as follows:
This Court held in the decision cited supra that 'ordinarily' the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest: it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression 'ordinarily' indicates, a person who has been prejudically affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof.
14. This case has relied on an earlier decision of the Apex Court in the case of Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal reported in : AIR1962SC1044 . In this case, the question of locus, for the first time was stated. Thereafter, subsequently, the same principle of law has been followed in the case of Jashbhai Motibhai Desai v. Roshan Kumar reported in : [1976]3SCR58 . In the case, the Apex Court has explained the phraseology 'aggrieved person'. In paragraph 13 of the said judgment it is stated as a proposition of law, as follows:
Who is an 'aggrieved person' and what are the qualifications requisite for such a status? The expression 'aggrieved person' denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression 'aggrieved person'. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction.
15. Again in paragraph 22 of the said judgment it has been observed as follows:
An aggrieved person has been held to be one who has a more particular or peculiar interest of his own beyond that of the general public, in seeking that the law is properly administered.
16. The Supreme Court in the case of Tashi Delek Gaming Solutions Ltd. v. State of Karnataka and Ors. reported in : AIR2006SC661 , while following the earlier decisions, as quoted above, in paragraph 34 observed as follows:
If by a statutory provision the right of an agent to carry on his business is affected, he may, in our considered opinion, in his own right maintain an action. The question came up for consideration before this Court in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. Therein a question arose as to whether the petitioner therein who had a right to manage Oriental Gas Company for a period of 20 years and to receive remuneration for the same could question the vires of the law whereby the said Oriental Gas Company was taken over as a result whereof, his right to continue in the business was affected. It was held that the petitioner company had such a right.
17. In paragraph 35 Their Lordships concluded as follows :
Once it is held, in view of the aforementioned pronouncement that the appellants had legal rights to challenge the validity or otherwise of the said notification issued by the State of Karnataka, there cannot be any doubt whatsoever that they would have independent rights to maintain the writ application.
18. In view of the aforesaid authoritative pronouncements of the Supreme Court we now cull out the proposition of law as to locus to file and maintain a writ petition. In order to file a writ petition one has to establish his affectation of right so as to get redressal of grievance. Such a right may be proprietary or fiduciary right, or even some enforceable interest. It may be as an owner either in the capacity as trustee or beneficiary or may be as an agent, or even in some cases a citizen not having specifically personal interest may approach the Writ Court alleging infraction of provision of law to enforce the provision of law of the land and this has been settled by Supreme Court in S.P. Gupta's case reported in AIR 1982 SC 149.
19. We have already stated that prima facie case has been made out by the petitioner. The writ petitioner's right qua agent of handling and delivery of the goods to the respective owners is affected. The goods are kept in the Port premises, either lawfully or unlawfully, obviously he has right to remove the goods in accordance with law. Such right is certainly affected by the action of the Port authority by withholding removal of the goods from the Port premises. Therefore, we are unable to accept the contention of Mr. Kapoor that the writ petitioner has no locus to maintain the writ petition. We thus hold that the writ petitioner has been able to establish its enforceable right in the writ jurisdiction as being an affected person.
20. Now, the question is as to whether the learned Trial Judge was justified in passing an order for removal on the conditions stipulated therein or not. For this purpose, this Court will hear this matter again on Tuesday week (8.5.2007).
21. Let xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court) be given to the learned Lawyers for the parties upon making application for obtaining xerox certified copy of this order.