Lee and Muihead (i) Pvt. Ltd. Vs. the Board of Trustees for the Port of Calcutta and ors. - Court Judgment

Ajoy Nath Ray, J.

1. In this writ petition, the writ petitioner challenges a notice of termination of a licence in regard to a flat in, a residential area at Haldia. The notice of termination is dated 15.1.87 and is annexure 'D' to the writ petition.

The writ petitioner, at all material times, was licensed by the respondent authorities to engage themselves as clearing agents, and thus enter into, for their purposes, the protected port area of both Calcutta and Haldia.

2. The flat was taken under an agreement of 1979-ostensibly under a licence, at a licence fee of Rs. 1,200/-, for three months, revocable on seven days' notice. Though the terms were such, the writ petitioner-licensee has continued in possession of the flat for the past 13 years, paying the agreed fees.

3. The case of the respondent Port Trust is that, the writ petitioner was a mere licensee in the flat. But the writ petitioner states that even according to a receipt dated as late as 25.6.87, moneys in respect of the flat were accepted as rental.

Be that as it may, it is on record that the Port Authorities once attempted to terminate the occupational agreement of the writ petitioner in 1982. By a letter dated 7th July 1982, the writ petitioner was asked to vacate within two months of receipt of the letter. It was said that the respondent-authority needed the flat for accommodation additionally needed for the increased number of its employees. A follow up letter of 29.11.82 asked the writ petitioner to remove all effects by 31st January 1983.

4. These two notices were admittedly given a go-bye ; by the aforesaid rental receipt of 1987, moneys were accepted for the period upto February 1987.

5. After the 1982 notices, the notice of 15th January, 1987 was served. The gap of several years is unexplained-both in the correspondence and in the Opposition filed on behalf of the respondent authorities. After the notice of 15.1.87, the Estate Manager served a Notice on 11.4.88 asking the writ petitioner to show cause under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act 1971. The said show cause notice is also under challenge.

6. Mr. P. K. Roy appearing for the writ petitioner, has said that the authority under the aforesaid Act would have jurisdiction, like an ordinary Court of Law, to pronounce upon the appropriateness of the termination notice dated 15th January, 1987. Mr. Majumdar appearing for the respondents, has said that such power would be available to the deciding authority under Section 8 of the said Act and that an appeal would lie therefrom under Section 9 to the District Judge.

7. Mr. Majumdar has relied in this regard upon the case of Ashoka Marketing reported in : [1990]3SCR649 and has submitted on the basis thereof that the Act has now been authoritatively pronounced as a permissible Constitutional procedure enabling quick summary eviction of unauthorised occupants by the concerned authorities. There can be no dispute with such submission of Mr. Majumdar.

8. Mr. Roy has submitted that though the Act is a self-contained Act and the authorities under Sections 8 and 9 could pronounce upon ordinary legal rights and liabilities, yet those authorities would be unable to make any pronouncement upon any Constitutional issues relating either to the fundamental rights or relating to such matters as could be invoked only under the Writ Jurisdiction of the High, Court. Mr. Roy has said that the termination notice of 15th January, 1987 is unconstitutional and is in breach of Article 14 of the Constitution of India. Even though the writ petitioner on record is only a Private Limited Company, no useful purpose would be served by directing directors and shareholders to be brought on record merely for the purpose of having names of citizens on record for the purpose of enforcement of their fundamental rights. It is an appropriate case where the Corporate veil should be pierced and the shareholders of the Company should be looked at for the purpose of deciding whether the notice of 15.1.87 is a breach of the mandates of Article 14 in relation to the said shareholders. It has been nobody's case that the company has as shareholders only foreign nationals and no Indian citizens, and as such, any consideration of the said issue would be an irrelevant diversion.

9. Mr. Roy has said that before issuance of the notice of 15.1.87, the writ petitioner should have been heard. Mr. Roy has further said that after letting on earlier termination notice of 1982 fall into abeyance, the respondent-authorities should not have suddenly and without any apparent reason issued a later notice for an identical reason without explaining their reasons for such sudden revival. Mr. Roy submitted that the action on record appeared to be uninformed by reason and accordingly unconstitutional.

Mr. Roy has relied upon two Supreme Court cases being those of Dwarakadas Marfatia reported in : [1989]2SCR751 and the case of Sree Lekha Vidhayathee reported in : AIR1991SC537 . Mr. Roy has referred to paragraphs 17 to 23 of the first decision and paragraphs 13, 47 and 48 of the second decision.

1O. In my opinion, Mr. Roy correctly submits on the basis of the aforesaid authorities that by reason only of the existence of a contract between the State or other public authority and the affected party, the State is not relieved from all public law duties. Even in case of contracts terminable at will, the State is not to effect such termination whimsically and without any cause. Unless some reason exists, and can be seen to exist, from the records or affidavits in the proceeding, an action by a State would be of the category of unreasonable action.

11. In the instant case, no reason is seen to exist, why after a lapse of five years, the flat was again called for. No reason is seen, why the earlier notices were not proceeded with for the purpose of effecting an eviction then and at that time.

12. An ordinary Licensor would not be subject to these questions. An ordinary Licensor can terminate a licence terminable at will unilaterally, but the State is not permitted to do so. In case of long standing relationships, it should be an ordinary duty of the State or public authorities to take the other party, i.e. the licensee into confidence. Such taking into confidences would take the shape of either a discussion or a hearing or some sort of negotiation. In the present case, the notice of 15th January, 1987 came suddenly, and, to go by the records only, almost whimsically.

13. Could the Port Authorities again allow the notice of 15th January, 1987 as well as the show cause notice of 11th April, 1988 to fall into oblivion Indeed they could. But if they do so, they cannot subsequently revive these actions without reasonable cause being apparent therefor. If they were thus to be permitted to threaten eviction and drop the threat, and again in the future, to start at any time a process of eviction again, without explaining reasons for such to and fro action, they would be acting whimsically. From the records in this proceeding, it does appear to be a little whimsical to drop the 1982 attempts at eviction and recommence the whole process afresh and anew in 1987.

14. Even at the cost of repetition, it must be emphasized that these breaches of duty on the part of the respondent by not taking the writ petitioner into confidence and revival of a dropped proceeding for eviction these issues could not be tried either before the authority under the 1971 Act or before any Civil Court. The point has to be adjudged before a Court competent to pronounce upon the Constitutional issues and before no other authority.

14A. Mr. Majumdar also relied upon the case of Manton Company reported in : AIR1982Cal461 . Mr. Majumdar appropriately submitted on the basis thereof that upon service of a notice of eviction and upon expiry of the time limited thereby, the occupant becomes an unauthorised occupant immediately upon such expiry. This point has a value in this case. The Estate Manager being incompetent to deal with the constitutional issues, would, conceivably under the circumstances, find nothing wrong with the notice dated 15th January, 1987, under the ordinary law of the land. The authority, would, therefore, be compelled to treat the writ petitioner as a trespasser, and an order for eviction would naturally follow. This shows that the instant writ has been filed, because the issues arguable herein cannot be agitated before any alternative forum. Either this Court pronounces the action of the respondent to be unconstitutional or the notice of 15th January, 1987 is passed for ever to be sound-both from the standpoint of the Indian Administrative Law as well as from the standpoint of the Indian Constitutional Law. For the reasons aforesaid, I am of the opinion that the notice of 15.1.87 should be struck down for breach of both the aforesaid administrative and constitutional requirements.

15. If the notice of 15.1.87 perishes, the show cause notice of 11th April, 1988 would also automatically perish. It would so perish not because of any lack of jurisdiction for issuance thereof, but because, by reason of the disappearance of the termination notice of 15th January, 1987, the reasons for. belief of the authority that the writ petitioner is in unauthorised occupation, would also be materially affected. In simple words, if there were no preliminary notice to quit or evict, the authority would not initiate proceedings for eviction under the 1971 Act. It is similar to an eviction suit or a plaint being incompetent in the absence of a notice terminating the tenancy.

16. In Constitutional matters, it would not matter at all, if the writ petitioner had taken either time to file an answer to the show cause notice or if the writ petitioner had even filed such an answer. Needless to say, there can be no estoppel against fundamental rights, nor can an erring State or other public authority respondents succeed on such issues as waiver where questions of natural justice and reasonableness of action are in issue.

17. For similar reasons, the document annexed to the affidavit-in-reply is not very material; that is an offer by the Port authorities for granting or lease new plots of land. It is hardly arguable that because the shareholders of the writ petitioner could obtain through their Company a new plot, and build thereupon, their constitutional rights in relation to the existing flat already under occupation of the writ petitioner company have been obliterated.

18. For the reasons aforesaid, the writ petition succeeds. There shall be writs absolute in the nature of Certiorari quashing the notices dated 15.1.87 and 11.4.88, copies whereof are Annexure 'G' and 'F to the writ petition. Needless to say, the respondents shall not act any further on the aforesaid quashed notice and shall treat all action taken thereupon or thereunder as invalid and nonest.

There will be no order as to costs.

19. Stay of operation of this order is prayed for, but the same is refused. One reason for such refusal is that there were already protective interim orders and even if this order were stayed, such protective interim orders would continue to protect the writ petitioner.