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Whether the High Court of Calcutta whereby, exercising powers under Article 226 of the Constitution of India, has allowed the application of the respondent No.1, for condonation of delay filed before the appellate authority (District Judge/ Additional District Judge, Alipore) and leave is granted to the said respondent to file the appeal under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred to as ‘the Act’). is correct = No- Respondent No.1 contested the eviction proceedings initiated by the appellant, against Respondent No.2, Raj Virmani, as her power of attorney holder. It is also not disputed that Raj Virmani was the tenant in the premises in question, and her tenancy was terminated. Respondent No.1 failed to explain as to how thereafter he occupied the premises without the consent of the Port Trust. From the record it also reveals that the Respondent No 1 had the knowledge of the eviction proceedings, and he contested on behalf of Respondent No.2. As such, in our opinion, the appellate authority has rightly questioned the locus of Respondent No.1 in maintaining the appeal along with application for condonation of delay. The eviction order drawn against Respondent No.2 attained finality, who never filed nor attempted to file any appeal against the order dated 4.8.2008 passed by the Estate Officer. As such, respondent No.1 who was power of attorney holder of Respondent No. 2, cannot be allowed to maintain the appeal on his own behalf to protract the eviction proceedings. No doubt, sub-section (2) of Section 4 of the Act requires issuance of notice to those in occupation of public premises before the eviction order is passed against such persons, but in the present case before us, since the proceeding has been drawn against unauthorised occupant (Raj Virmani), and to escape eviction, she appears to have handed over possession of the premises to Respondent No.1, as such, the subsequent occupier cannot be said to be entitled to fresh notice. If such person is allowed to maintain the appeal, by the time the eviction proceedings are over against him, he might hand over the possession of the premises to third or fourth party. Sub-section (2) of Section 4 of the Act cannot be restored to protect the interest of such unauthorised occupants who enter into possession, after eviction proceeding has been initiated against their predecessor in possession. 8. Therefore, in our opinion, High Court erred in law in allowing the application of condonation of delay moved by the respondent no.1 before appellate court, and granting him leave to appeal, against order of Estate Officer.=2014-Oct.Part-CIVIL APPEAL NO. 9387 OF 2014 (Arising out of S.L.P.(c) No.19835 of 2010) BOARD OF TRUSTEES OF THE PORT OF KOLKATA … APPELLANT VERSUS KALIPADA BHAKAT & ORS … RESPONDENTS

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9387 OF 2014
(Arising out of S.L.P.(c) No.19835 of 2010)
BOARD OF TRUSTEES
OF THE PORT OF KOLKATA … APPELLANT

VERSUS
KALIPADA BHAKAT & ORS … RESPONDENTS

J U D G M E N T

PRAFULLA C.PANT,J.
Leave granted.

2. This appeal is directed against the judgment and order dated 5.2.2010
passed by the High Court of Calcutta whereby said Court, exercising powers
under Article 226 of the Constitution of India, has allowed the application
of the respondent No.1, for condonation of delay filed before the appellate
authority (District Judge/ Additional District Judge, Alipore) and leave is
granted to the said respondent to file the appeal under the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred
to as ‘the Act’).

3. Brief facts of the case are that a plot of land measuring 133.41 sq.
meters at 33 Coal Depot, Chetla Railway Siding also known as Chetla Station
Yard was allotted by the Port Trust to Raj Virmani (present respondent
No.2), on a month to month lease basis, and the lease deed was executed on
1.2.1972. The tenancy of the said tenant was terminated by the appellant
vide notice dated 1.7.1983. Thereafter, appellant, Board of Trustee of the
Port of Calcutta initiated eviction proceeding against respondent No.2, Raj
Virmani. In the year, 1992 the present respondent No.1, Kalipada Bhakat, in
said eviction proceedings, appeared as power of attorney holder on behalf
of Raj Virmani. In the year 1994 respondent No.1 applied to the Board of
Trustee of the Port of Calcutta to induct him as a tenant (which was not
accepted). The Estate Officer, respondent No.3 by its order dated 4.8.2008
directed eviction of the unauthorised occupant from the premises with
further direction for payment of arrears of rent and mesne profits. Said
authority, in its order, observed that present respondent No.1 has a right
to establish his authority to occupy the premises but failed to establish
the same. From the order dated 4.8.2008 passed by the Estate Officer it is
clear that Raj Virmani parted with the possession of the public premises
unauthorisedly to respondent No.1 who is running his business in the name
and style of M/s. Bhakat Motors. Respondent No.2, Raj Virmani never filed
any appeal against the said order passed by the Estate Officer. However,
Respondent No.1, Kalipada Bhakat attempted to file an appeal along with an
application for condonation of delay with the same. Said application was
contested before the appellate authority by the present appellant. The plea
taken by the respondent Kalipada Bhakat before the appellate authority was
that he had no knowledge of the order sought to be challenged. The
appellate authority after hearing the parties, rejected the application
vide its order dated 13.11.2009 with further observation that the present
Kalipada Bhakat has no locus standi to maintain the appeal. The appellate
authority further observed that there is no document showing that Kalipada
Bhakat had any authority to occupy the premises as he could not file any
document showing that he was the licensee or authorised to occupy on behalf
of the tenant, Raj Virmani. Aggrieved by said order of appellate authority
present respondent No.1 approached the High Court.

4. The High Court in the impugned order observed that the question
whether the applicant has any right or not to maintain the appeal is
required to be decided by the authority concerned at the appropriate stage.
It further observed that in view of Section 4 of the Act, the Estate
Officer should have given opportunity by issuing show cause notice to the
unauthorised occupant. The High Court took the view that since the
applicant (the present respondent No.1) would be evicted by the eviction
proceedings, as such, it cannot be said that he had no locus to maintain
the appeal. With the above observation, the High Court allowed the
application for condonation of delay moved before the appellate authority,
and granted leave to file the appeal. Aggrieved by the said order dated
5.2.2010 passed by the High Court in CO No.3991 of 2009, the present appeal
has been filed before this Court.

5. Learned counsel for the appellant submitted that the respondent no.1
is rank trespasser in the public premises originally let out by the Port
Trust to Raj Virmani. Respondent No.1 has admittedly entered into
possession of the public premises unauthorisedly under an arrangement with
the original tenant, without permission of the Port Trust. It is further
pointed out that since Respondent No.1 appeared before the Estate Officer
as constituted attorney of Raj Virmani, as such, there was no illegality in
the order passed by the appellate authority in dismissing the application
of Respondent No.1 in personal capacity challenging the order of the Estate
Officer.

6. On the other hand learned counsel for the Respondent No.1 argued that
Respondent No.1 cannot be denied right of appeal as he is in possession of
the premises, and the impugned order passed by the High Court suffers from
no illegality.

7. We have considered rival submissions of the parties. It is not
disputed that Respondent No.1 contested the eviction proceedings initiated
by the appellant, against Respondent No.2, Raj Virmani, as her power of
attorney holder. It is also not disputed that Raj Virmani was the tenant in
the premises in question, and her tenancy was terminated. Respondent No.1
failed to explain as to how thereafter he occupied the premises without the
consent of the Port Trust. From the record it also reveals that the
Respondent No 1 had the knowledge of the eviction proceedings, and he
contested on behalf of Respondent No.2. As such, in our opinion, the
appellate authority has rightly questioned the locus of Respondent No.1 in
maintaining the appeal along with application for condonation of delay. The
eviction order drawn against Respondent No.2 attained finality, who never
filed nor attempted to file any appeal against the order dated 4.8.2008
passed by the Estate Officer. As such, respondent No.1 who was power of
attorney holder of Respondent No. 2, cannot be allowed to maintain the
appeal on his own behalf to protract the eviction proceedings. No doubt,
sub-section (2) of Section 4 of the Act requires issuance of notice to
those in occupation of public premises before the eviction order is passed
against such persons, but in the present case before us, since the
proceeding has been drawn against unauthorised occupant (Raj Virmani), and
to escape eviction, she appears to have handed over possession of the
premises to Respondent No.1, as such, the subsequent occupier cannot be
said to be entitled to fresh notice. If such person is allowed to maintain
the appeal, by the time the eviction proceedings are over against him, he
might hand over the possession of the premises to third or fourth party.
Sub-section (2) of Section 4 of the Act cannot be restored to protect the
interest of such unauthorised occupants who enter into possession, after
eviction proceeding has been initiated against their predecessor in
possession.

8. Therefore, in our opinion, High Court erred in law in allowing the
application of condonation of delay moved by the respondent no.1 before
appellate court, and granting him leave to appeal, against order of Estate
Officer. Accordingly, we allow the appeal with costs, and set aside the
impugned order of the High Court passed on 05.02.2010 in C.O.No.3991 of
2009. However, on furnishing undertaking within a period of fifteen days,
by the respondent No.1, to vacate the premises and hand over the possession
to the appellant within six months from today, we allow such time on
condition that the respondent No.1 shall deposit occupational charges with
the Estate Officer or the appellant, for the period from August, 2008 to
September, 2014 at the rate of Rs.10,000/- (Rupees ten thousand only) per
month within a period of one month from today. In case the Respondent No.1
fails to furnish such undertaking or fails to comply the condition as
above, the Estate Officer may execute the order dated 04.08.2008,
forthwith. In case premises are not handed over as under taken, contempt
proceedings may also be drawn.

…………………………………………….J.
[SUDHANSU JYOTI MUKHOPADHAYA]
…………………………………………….J.
[PRAFULLA C. PANT]

New Delhi;
October 09, 2014.
———————–
-8-

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