Judgment:
1. Both the revisional applications are directed against an order dated. 31st March, 2000 passed by Estate Officer, Calcutta Port Trust in proceeding No. 287/1999 and proceeding No. 308 of 1999 by which applications for setting aside of a notice under section 7 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and recalling of an order dated. 5th November, 2008 passed by the Estate Officer, were dismissed.
2. Before dealing with the points raised by the respective Counsels appearing for the parties, the facts of the instant case is required to be narrated. The estate officer issued notices under section 4 of the Premises (Eviction of Unauthorised Occupants) Act, 1971 upon the petitioner to show cause as to why an order of eviction shall not pass against it. Pursuant to the same, a proceeding was initiated being proceeding No. 287 / 1999 by the Estate Officer and ultimately an order for eviction was passed by the Estate Officer against the petitioner under section 5 of the said Act.
3. The petitioner challenged the said order of eviction by filing an appeal before the City Civil Court, Calcutta under section 9 of the said Act. The said appeal was ultimately dismissed. The order of the Appellate Authority was challenged by the petitioner before this Court in W.P. 1321 of 2002, but this Court did not find fault in the said order and dismissed the said writ petition. The order dismissing the writ petition was further assailed by the petitioner in intra court Appeal being No. A.P.O.T No. 603 of 2006 and the Division Court, ultimately, found that there is no illegality or infirmity in the order impugned before it and dismissed the said appeal. Thus the order of eviction stood affirmed.
4. Subsequently, the estate officer issued notice under section 7 (3) of Premises (Eviction of Unauthorised Occupants) Act, 1971 claiming the damages for unauthorized or wrongful occupation of the petitioner in respect of the public premises. The said notice had been issued in a proceeding which commenced on the basis of a notice under Section 4 of the said Act and where an order for eviction was passed. The petitioner filed an application for setting aside the said notice issued under section 7 of the said Act.
5. The said application is rejected by the Estate Officer holding that the notice under section 7 of the said Act is legal and within the jurisdiction of the Estate Officer in view of Section 15 of the said Act.
6. Mr. Abhrajit Mitra, learned Advocate appearing for the petitioner assailed the said order in contending that the said notice under section 7 of the Act was issued under disposed of proceeding and as such is not legal and is liable to be quashed and rescinded. He further submits that the authorities have to initiate a separate proceeding as the same relates to the recovery of compensation or damages to be determined independently under section 7 of the said Act.
7. He relies upon a judgment of the Apex Court in case of New Delhi Municipal Committee –vs- Kalu Ram and Another reported in AIR 1976 SC 1637 to contend that the time barred claim of money cannot be recovered by initiating a proceeding under section 7 of the said Act.
8. Mr. Anjan Pal, learned advocate appearing for the Opposite Party submits that the Limitation Act does not apply to a proceeding before the Estate Officer as the Estate Officer is not a court and relies upon a judgment of the Madhya Pradesh High Court in case of L.S.Nair –vs- Hindustan Steel Limited, Bhilai and Others reported in AIR 1980 Madhya Pradesh 106. He further argues that an order passed under section 7 of the said Act can be challenged in an appeal under section 9 of the said Act and thus there is an alternative efficacious remedy under the statute. The High Court under Article 226 and 227 should not interfere with an order in view of an existence of alternative efficacious remedy under the statute. To buttress such submissions, reliance is placed up of judgment of the apex court in case of Sadhana Lodh v. National Insurance Co. Ltd. reported in AIR 2003 SC 1561 and in case of Surya Dev Rai v. Ram Chander Rai reported in AIR 2003 SC 3044 and in case of Shalini Shyam Shetty v. Rajendra Shankar Patil reported in 2011 (1) W.B.L.R. 47 (SC).
9. Having heard the submission of the respective parties, it would be profitable to quote Section 7 of the Premises (Eviction of Unauthorised Occupants) Act, 1971, which reads thus :
“ 7. Power to require payment of rent or damages in respect of public premises.- (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorized occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
((2A) While making an order under sub-section (1) or sub-section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978).)
(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.”
10. On a bare reading of the said provision it appears that the estate officer cannot pass an order directing the unauthorized occupant to pay the damages upon assessing the same, unless a notice to show cause is issued upon the said unauthorized occupant. Sub-section (3) of Section 7 mandates such notice to be issued inviting objection and also permitting the parties to adduce evidence in support of the claims made before the estate officer.
11. The ‘unauthorized occupation’ is defined under section 2(g) of the said Act, which reads thus:
“2 (g) “unauthorized occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.”
12. Thus unless a person is found to be in unauthorized occupation, neither the proceeding under section 7 nor the proceeding under section 4 of the said Act can be initiated. The estate officer while considering the proceeding which ended with an order for eviction passed under section 5 of the said Act, framed as many as eight issues therein and one of the issues is whether the petitioner is liable to pay the damages for their occupation or not.
13. The said issue is duly answered by the estate officer holding that the petitioner is liable to pay damages for wrongful occupation of the property on and from 1.4.1990. The said order was assailed in an appeal under section 9 of the said Act but the appellate Court affirmed the same. The petitioner further questioned the said order in a writ proceeding before this Court but the same was also dismissed. An intra court appeal against the order of dismissal of the writ petition was also rejected. Thus the liability to pay the damages which was crystalised by the order of estate officer stood affirmed in a various proceeding initiated by the petitioner.
14. The petitioner cannot escape from the liability of payment of an amount on account of damages to be calculated from 1.4.1990.
15. The contention of the petitioner that a separate proceeding should be initiated on the basis of a notice under section 7 of the said Act is not tenable.
16. The three-judges Bench of the apex court in case of Pasupuleti Venkateswarlu v. Motor & General Traders reported in (1975) 1 SCC 770 while holding that the procedure is a handmade of administration of justice observed :
“4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.”
7. It has been held by the apex court in case of Ramankutty Guptan v. Avara reported in (1994) 2 SCC 642 that the procedural aspect unless touches the jurisdiction of the court should be applied to subserve the substantive justice to the litigants and not to defeat it.
8. Yet in another judgment the apex court in case of Rani Kusum v. Kanchan Devi & Ors. reported in (2005) 6 SCC 705 reiterated the same principle in following words :
“10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.
11. The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in the judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar.)
13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth.) A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh.)
14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”
9. Whether the notice has to be issued bearing a new number or issued under the proceeding which is initiated against the petitioner makes no distinction to the liability of the petitioner or entitlement of the claimant in relation to the damages to be assessed and determined under section 7 of the said Act by the estate officer.
10. The petitioner shall be at liberty to take all points including the point of limitation before the estate officer and if such point is taken the estate officer is under obligation to deal with and/or decide the said issue in accordance with law. Even otherwise I do not find that there is any provision in the said Act which provides the recording of a new number and creating an embargo to decide the matter in accordance with the provisions of the said Act in already initiated proceeding.
11. The estate officer has been empowered to assess the damages on account of unauthorized use and occupation of the premises under section 7(2) of the said Act. Thus the estate officer is required to asses the quantum of the damages and not its liability as the same has already been crystalised by the estate officer at the time of passing an order under section 5 of the said Act.
13. The preliminary order for liability to pay the damages from a specified date has already been passed by the estate officer and thus the assessment of damages cannot said to be independent proceeding so as to registered a separate proceeding by the estate officer.
14. Thus I do not find any merit in the submission of the petitioner.
15. The other point which has been taken by the opposite party that this court under Article 227 of the Constitution is not competent to entertain the said application in view of an existence of ultimate remedy provided under the said Act, is also not tenable.
Section 9 of the said Act provides that an appeal shall lie against an order passed under section 7 of he said Act. What has been challenged by the petitioner in this revisional application is that the notice issued by the estate officer under section 7 (2) of the said Act is liable to be quashed, rescinded and set aside as the same has been issued under the disposed of proceeding. There is no order passed under section 7 by the estate officer which can be said to be assailed in an appeal under section 9 of the said Act. Thus I find that the revisional application under Article 227 is maintainable.
16. There is no quarrel to the proposition of law enunciated by the apex court in case of Sadhana Lodh (supra), Surya Dev Rai (supra) and Shalini Shyam Shetty (supra) that if there is an efficacious alternative remedy available to the litigant the high court shall be slow and circumspect in exercising its power under Article 226 and 227 of the Constitution. As indicated above, this is not a case where the provision of appeal applies so as to denude the power under Article 126 and 127 of the Constitution of India. As indicated above, on other point I find that there is no merit in the instant revisional application and both the revisional application being C.O. 2122 of 2009 and C.O. 2048 of 2009 are dismissed on merit.
17. There shall be no order as to costs.
18. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.