Eid Parry (India) Limited and Anr. Vs. Kolkata Port Trust and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/41532
CourtKolkata High Court
Decided OnJan-28-2015
JudgeBench
AppellantEid Parry (India) Limited and Anr.
RespondentKolkata Port Trust and Ors.
Excerpt:
apo194of 2014 w.p.1148 of 2007 in the high court at calcutta civil appellate jurisdiction original side eid parry (india) limited & anr. versus kolkata port trust & ors.before: the hon'ble chief justice mrs.manjula chellur the hon'ble justice joymalya bagchi date : 28th january, 2015. for the appellants : mr.pranab kumar dutta, sr.advocate with mr.shovendu banerjee, advocate for the respondents : mr.hirak mitra, sr.advocate with mr.somnath bose, advocate : appellant no.1 herein was the writ the court petitioner before the learned single judge and the writ petition went against the interest of the appellants. the admitted facts are as under : 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 respondentauthorities for renewal of the lease subsequent to the expiry of lease, they were in permissive possession of the property pending finalization 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. 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) appellants-writ act, petitioners.1971. right according from to the 22-2-2007, they were under the impression that the matter would be firs.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 kopt directed is maintainability to file of this their proceedings. 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." order passed on the next date of hearing being 293-2007 reads as under : “it is submitted on behalf of o.p.that kopt’s reply/objection received mentioned submitted therein, after in 5 the that it dated is 26-3-2007 weeks said without very has without any objection of annexures difficult to since been annexure kopt. as deal it as is indicated 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.” subsequent to this order dated 29-3-2007, the socalled 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 petitioners estate of on having officer, merits got the either without the opportunity orally or by appellant-writ of addressing filing written submissions so far as the merits of the proceedings. 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. 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. according to in the absence of learned counsel for the appellants, 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 appellants, considering maintainability, both oral the and learned counsel for arguments written, the only matter on was disposed of on merits of the proceeding. this has resulted in grave injustice to the appellants-writ petitioners.against this, learned counsel for respondent kopt authorities brings to our notice several portions of the learned opined else single judge’s order wherein learned judge has that to learned be other than considered. counsel for the maintainability reiterating respondent there the is said authorities nothing argument, 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. 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 maintainability 22.2.2007 submission order was order of with the clearly made regard to proceedings. indicates on behalf the what that happened on of question of after 29.3.2007 a 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. 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. the controvers.is whether the matter was heard on merits or on the question of maintainability of the show cause counsel notice on for the 26-7-2007. mr.datta, appellants-writ learned petitioners senior addressed arguments and it was recorded in the order dated 26-7-2007 as under. “heard sides. the considered materials on submissions/arguments the record. matter let on the of both the basis of final order be reserved.” 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 only absence his earlier order to hear the preliminary issue of maiantainability. in the 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. 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 appellantswrit 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 except letters regarding surrender intimating their of possession desire to to hand kopt 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. 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. 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. resultantly, the appeal is allowed and order of the learned single judge dated 18th august, 2009 is set aside. the amount which is already in deposit with the registrar, original side shall remain in deposit till expressed any final termination of the proceedings. be it recorded that we have not opinion on the merits of the matter and all contentions including the question of maintainability are kept open. ( manjula chellur, c.j.) (joymalya bagchi, j.) rs.ar(cr)
Judgment:

APO194of 2014 W.P.1148 of 2007 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side EID PARRY (INDIA) LIMITED & ANR.

Versus KOLKATA PORT TRUST & ORS.BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR The Hon'ble JUSTICE JOYMALYA BAGCHI Date : 28th January, 2015.

For the Appellants : Mr.Pranab Kumar Dutta, Sr.Advocate with Mr.Shovendu Banerjee, Advocate For the Respondents : Mr.Hirak Mitra, Sr.Advocate with Mr.Somnath Bose, Advocate : Appellant No.1 herein was the writ THE COURT petitioner before the learned single Judge and the writ petition went against the interest of the appellants.

The admitted facts are as under : 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 respondentauthorities for renewal of the lease subsequent to the expiry of lease, they were in permissive possession of the property pending finalization 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.

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) appellants-writ Act, petitioneRs.1971.

right According from to the 22-2-2007, they were under the impression that the matter would be fiRs.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 KoPT directed is maintainability to file of this their proceedings.

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." Order passed on the next date of hearing being 293-2007 reads as under : “It is submitted on behalf of O.P.that KoPT’s Reply/Objection received mentioned submitted therein, after in 5 the that it dated is 26-3-2007 weeks said without very has without any objection of annexures difficult to since been annexure KoPT.

as deal It as is indicated 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.” Subsequent to this order dated 29-3-2007, the socalled 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 petitioners Estate of on having Officer, merits got the either without the opportunity orally or by appellant-writ of addressing filing written submissions so far as the merits of the proceedings.

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.

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.

According to in the absence of learned counsel for the appellants, 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 appellants, considering maintainability, both oral the and learned counsel for arguments written, the only matter on was disposed of on merits of the proceeding.

This has resulted in grave injustice to the appellants-writ petitioneRs.Against this, learned counsel for respondent KoPT authorities brings to our notice several portions of the learned opined else Single Judge’s order wherein learned Judge has that to learned be other than considered.

counsel for the maintainability Reiterating respondent there the is said authorities nothing argument, 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.

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 maintainability 22.2.2007 submission order was order of with the clearly made regard to proceedings.

indicates on behalf the What that happened on of question of after 29.3.2007 a 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.

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.

The controveRs.is whether the matter was heard on merits or on the question of maintainability of the show cause Counsel notice on for the 26-7-2007.

Mr.Datta, appellants-writ learned petitioners Senior addressed arguments and it was recorded in the order dated 26-7-2007 as under.

“Heard sides.

the Considered materials on submissions/arguments the record.

matter Let on the of both the basis of Final Order be reserved.” 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 only absence his earlier order to hear the preliminary issue of maiantainability.

In the 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.

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 appellantswrit 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 except letters regarding surrender intimating their of possession desire to to hand KoPT 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.

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.

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.

Resultantly, the appeal is allowed and order of the learned Single Judge dated 18th August, 2009 is set aside.

The amount which is already in deposit with the Registrar, Original Side shall remain in deposit till expressed any final termination of the proceedings.

Be it recorded that we have not opinion on the merits of the matter and all contentions including the question of maintainability are kept open.

( MANJULA CHELLUR, C.J.) (JOYMALYA BAGCHI, J.) Rs.AR(CR)