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Raj Virmani
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 … Continue reading
