REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3910 OF 2013    

BOARD OF TRUSTEES FOR THE PORT OF  KOLKATA AND ORS.    …APPELLANTS  

VERSUS

APL (INDIA) PVT. LTD. AND ORS.             …RESPONDENTS

WITH CIVIL APPEAL NO. 3912 OF 2013 CIVIL APPEAL NO. 3911 OF 2013

J U D G M E N T

S. ABDUL NAZEER, J.

1. These appeals, arising out of a reference to the Full Bench of

the Calcutta High Court, raise an important question on the

meaning, interpretation and applicability of Section 6 of the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short

'the PP Act').  The issue revolves around the right of the appellants

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(hereinafter referred to as the "Port Trust") to seize and dispose of

goods and materials  lying on the "public premises" which goods

may not necessarily belong to the erstwhile tenant/licensee of such

"public premises" under the PP Act.

2. The brief facts of the case necessary for  disposal  of these

appeals are as under:

3. A piece of land altogether measuring 17238.15 sq. mtr.

situated at Transport Depot Road, P.S. Taratola, Kolkata, (for short

'the  premises')  was  allotted to  M/s.  Shalimar  Tar  Products  Ltd.

(hereinafter referred to as 'the STPL') by way of Deed of Assignment

dated 06.12.1963.   The STPL stopped the payment of rent to the

Port Trust since 1973.  The lease in respect of the premises granted

in favour of the STPL expired by afflux of time in the year 1981.

Therefore, the Port Trust issued a notice dated 31.08.2000 to the

STPL to quit the premises and deliver its possession.  As the STPL

failed to deliver back possession of the premises, the Port Trust

initiated the  proceedings for  eviction,  as  well  as for recovery  of

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arrears of rent and dues on account of unauthorized occupation

before the Estate Officer under the provisions of the PP Act.

4. The Estate  Officer  issued a notice  dated 24.01.2006 under

Sections 4 and 7 of the PP Act to the STPL.   All  the concerned

persons in occupation of the premises were also notified by affixing

the aforesaid notices on the outer wall of the premises.  The STPL

duly appeared before the Estate Officer.  

5. The Estate Officer, upon hearing the Port Trust and the STPL,

passed an order of eviction on 09.07.2007, and also directed the

STPL to pay damages for unauthorized use and occupation of the

premises amounting to Rs.2,46,64,411/­, calculated upto

30.06.2005, excluding the interest thereon.  The Port Trust applied

to the Estate Officer for execution of the said order and

appointment of an authorized officer for recovery of the possession

of the premises under the provisions of the PP Act.   On

19.02.2008, the  Estate  Officer  passed an order  appointing Smt.

Subarna Thakur, Officer­in­Charge (Estate) of the Port Trust as an

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authorized officer for recovery of possession in terms of the order of

eviction dated 09.07.2007.

6. The authorized officer took possession of the premises and

the containers stacked thereon.  Immediately upon eviction and

taking possession, the Port Trust deployed security guards for

protection of the  premises.  Several  containers remained at the

premises at the time of taking possession.

7. After taking possession, the authorized officer wrote a letter

dated 10.03.2008 informing the Estate Officer that the land has

been recovered from the STPL on 08.03.2008 along with the

containers stacked on the premises. The Estate Officer passed an

order directing the authorized officer to take inventory of the

materials/articles/goods lying on the premises in the presence of a

competent officer of the Port Trust and also directed the issue of

notice under Section 6 of the PP Act for disposal of the properties

left by the unauthorized occupant and also to publish a copy of the

said notice in the newspaper as per the provisions of the PP Act

and the rules made thereunder for disposal of the property lying on

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the premises. In the said proceedings, the respondent No.6

appeared on 10.03.2008 and filed an application seeking

permission to remove the  huge  number of containers from  the

premises.   The Estate Officer rejected the application, which has

not been questioned by the sixth respondent.

8. In terms of the aforesaid order, a notice under sub­section (1)

of  Section 6  of the  PP  Act  was issued  by the  Estate  Officer to

remove or cause to be removed or disposed of by public auction

any property remaining on the premises.   A copy of the said notice

was also issued through a local daily newspaper. The

respondents/writ petitioners herein preferred a writ petition,  inter

alia, seeking  permission to remove the containers lying on the

premises  by contending that they  could  not  be restrained from

removing the containers till realization of dues from the STPL.   It

was further contended that the Port Trust had wrongly withheld

the containers belonging to them and that they had no privity of

contract with the Port Trust and, therefore, not liable to pay any

rent to the Port Trust.

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9. The Port Trust opposed the writ petition.  The learned Single

Judge of the  Calcutta  High Court,  while  holding that there  are

different views taken by two different  Division Benches of the

Calcutta High Court on the scope and ambit of Section 59 of the

Major Port Trusts Act, 1963, (for short 'the MPT Act'), referred the

matter to the Chief Justice for constitution of a  larger Bench to

determine the following question:  

"Whether Section 59 of the  Major Port Trusts  Act,  1963, read  with  Sections  5 and 6 of the 1971 Act confers on KPT a right  of lien  on, or the right to  detain, seize and/or sell the goods of third parties, lying on the public premises, for realization of arrears of rent due from tenants, irrespective of whether the owner of those goods had any privity of contract with KPT".

10. The Full Bench of the High Court held that the observations

of the Division Bench in  The Board of Trustees for the Port of

Kolkata  v.  Canoro Resources Ltd. & Ors.  reported in 2008  (1)

CHN 941, (for short 'Canoro Resources') on Sections 59 and 61 of

the MPT Act were at best  obiter dicta.   While holding so, the Full

Bench opined that there was no conflict between the judgments of

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the Division Bench in Board of Trustees for the Port of Calcutta

v.  Indian Rayon Corpn. Ltd. & Ors., reported in 1987 (28) ELT

334 (Cal.), (for short 'Indian Rayon') and Canoro Resources.  The

observations of the Full Bench are as under:

"With  due  respect to the  observation of the Division Bench, we are not in agreement with the same.  In our opinion, Sections 59 and 61 of  MPTA cannot be read  into proceedings under PPA, 1971. There can be no general lien under Section  59  of  MPTA which  would  cover the goods of a party having no privity of contract with KPT, which are sought to be sold in execution proceeding under PPA, 1971.  The Division Bench in fact notices that KPT had in execution obtained possession  of the land from  its tenant, and seized some timbers and casing pipes which were lying on the lease hold lands at the time of taking delivery of possession.  The owner had imported the goods.   They were kept on open ground for the purpose of  sending the same to further destination.   Clearly, therefore, KPT had no claim against the goods on account of rates and rents for services rendered under Section 42 of the MPTA. In such circumstances, the provisions of Section 59 and 61 of MPTA were not at all relevant for deciding the controversy between the parties.   The  issue decided by  the  Division Bench did  not  arise  on the pleadings.  Nor was the point argued

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by any of the parties.   The three points argued by the parties, 1) that KPT should have been made a party, 2) under Section 6 of  the PPA, 1971 KPT was entitled to sell the goods, even of a stranger, found in/on premises under unauthorized occupation and 3) that alternative remedy was available.  Therefore, in our opinion, findings in paragraph 18 are at best only obiter dicta.  In our opinion, the first part of para 18 of the judgment does not deal with the issue raised  before the  Court. Mr.  Anindya Mitra  had not  even raised the issue about the power of KPT under Sections 59 or 61.  No grievance had also been made while Mr. Jayanta Kumar Mitra, learned counsel for the petitioners submitted that the KPT had wrongly invoked Sections 59 and 61 of MPTA. The whole issue was limited only to the powers of KPT under the PPA, 1971.   In our  opinion, it  was  a territory travelled into by the Division Bench, without being invited therein, either in the pleadings or the submissions of  the  learned counsel. These observations, therefore, cannot be treated as a precedent on  interpretation of Sections 59 and 61 of MPTA.   In our opinion, the issue with regard to the ambit of Section 59 and 61 has been correctly  decided by the  Division Bench in  Indian Rayon Corporation Ltd. (supra).   This judgment is in consonance with the law laid down by the Supreme Court in  M/s. Sriyanesh Knitters (supra).

For the reasons stated above,  we are unable to accept  the submission of  Mr.

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Anindya  Mitra that there is no conflict between the earlier.   Division Bench Judgment in Indian Rayon Corporation Ltd. (supra) and the later Division Bench judgment in  Canoro Resources Ltd. (supra).   The view taken in first part of paragraph 18 of the judgment in Canoro Resources Ltd. (supra) is contrary to the law laid down by the Supreme Court and therefore, cannot be said to be good law."

 11. After answering the reference as above, the Full Bench

directed placing of the writ petition before the learned Single Judge

for decision on merits.   The Port Trust has challenged the legality

and correctness of the aforesaid judgment of Full Bench in these

appeals.  

12. Appearing for the appellants, Shri Parag P. Tripathi, learned

senior counsel, submits that the premises in question is a "public

premises" as defined under the PP Act.  There is no bar for the Port

Trust to initiate action for eviction of unauthorized occupant from

the premises or to dispose of goods and materials lying in public

premises  which  may  not  necessarily belonging to the erstwhile

tenant/licensee of the said premises.  The Port Trust has initiated

action for the eviction of the unauthorized occupant under the PP

Act.   The Port Trust has not initiated any action under the MPT

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Act. Section 6 of the PP Act must be read and interpreted on its

own.  It is not dependent upon Sections 59 and 61 of the MPT Act.

It is argued that the judgment of the Division Bench of the High

Court in  Indian  Rayon  has  no application to the facts of the

present case.   It is unnecessary for the Court to conjointly read

Sections 59 and 61 of the MPT Act and Sections 5 and 6 of the PP

Act  for the purpose of evicting an unauthorized occupant.  It is

further argued that the Full  Bench ought to have held that the

proceedings initiated by the Port Trust also covers the

respondents/writ petitioners and that they are bound by the order

of the Estate Officer passed under Sections 5 and 6 of the PP Act.

13. On the other hand, Shri Chira Ranjan Addy, learned counsel

appearing for the respondents, submits that there is no privity of

contract between the Port Trust and the respondents/writ

petitioners and that the Port Trust does not acquire any right in

respect of the goods of the third parties. Hence, the observations

made in  Canoro Resources  cannot be justified. The

respondents/writ  petitioners being third parties, their  goods can

never be the subject­matter of lien having regard to the express

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language contained  in Section 61 of the MPT Act.   It is further

argued that the writ petition is pending before the learned Single

Judge of the High Court and that all contentions in relation to the

application Section 6 of the PP Act can be considered by the High

Court.  The Full Bench has considered all the aspects of the case

and has clarified the legal position.   This Court in  Board of

Trustees of the Port of Bombay and Ors. v. Sriyanesh Knitters,

(1999) 7 SCC 359, has considered the scope of different provisions

of the MPT Act and has held that these provisions do not authorize

the Port Trust to have general lien over goods belonging to the writ

petitioners.   

14. We have carefully considered the submissions of the learned

counsel  made  at the  Bar  and  perused the  materials  placed  on

record.   

15. It is not in dispute that the premises is a "public premises" as

defined under the PP Act. The Port Trust initiated action for

eviction of the STPL, an unauthorized occupant of the premises

under the provisions of the PP Act.   The STPL has contested the

proceedings before the Estate Officer.   On 09.07.2007, Estate

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Officer passed an order of eviction and also directed the STPL to

pay the damages for unauthorized use and occupation of the

premises. Notice was issued under Section 5(1) of the PP Act for

evicting the STPL.  It is clear from the records that all the persons

concerned with the premises were also notified in accordance with

law.  An order was passed on 19.02.2008 appointing an authorized

officer for recovery of possession in terms of the aforesaid order of

eviction.   The authorized officer took possession of the premises

and the containers lying on the premises.   The authorized officer

was  permitted to take inventory  of the  materials/articles goods

lying on the premises and was also directed to issue notice under

Section 6 of the PP Act for disposal of the properties left by the

unauthorized occupant.  A notice was also published under Section

6(1) of  the Act in the local newspaper to remove or cause to be

removed or dispose of by public auction any property remaining

within the premises. At this stage, the respondents/writ petitioners

have filed the writ petition before the High Court for a direction to

the Port Trust to permit them to remove the containers belonging

to them which were lying on the premises.    

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16. The  PP  Act  provides for eviction of occupants from public

premises and for certain incidental matters.  This Act was enacted

to provide for a speedy machinery for the eviction of unauthorized

occupants of the public premises. It is clear from the statement of

object and reasons of the PP Act that it has become impossible for

government to take  expeditious action even  in  flagrant  cases  of

unauthorised occupation of public premises and recovery of rent or

damages for such unauthorised occupation. It is, therefore,

considered imperative to restore a speedy machinery for the

eviction of persons who are in unauthorised occupation.

17. Section 2(g) defines the expression 'unauthorised occupation'

in relation to public premises as under:­

(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".

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18. Section 5 lays down the procedure for eviction of

unauthorized occupants.  Section 5A was  inserted by Act  61 of

1980,  which has come into force  with effect from  20.12.1980.

This Section provides for removal of unauthorized construction on

or against or in front of any public premises.   The relevant

provisions for the purpose of this case are sub­section (1)(b) and

sub­section (3) of Section 5A, which are as under:­

"5A. Power to remove unauthorized constructions, etc.­  (1) No person shall­

(a)  …….

(b) display or spread any goods.

(c)  …….

on, or against, or in front of, any public  premises except  in  accordance with the authority (whether by way of grant or  any  other  mode  of transfer) under which he was allowed to occupy such premises.

(2) …….

(3)  Where any  movable structure or fixture has been erected, placed or raised, or any goods have been displayed  or  spread,  or  any  cattle  or other animal has been brought or kept,

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on any public premises, in contravention of the provisions of sub­ section (1)  by  any  person, the  estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue."

19. Section  6  provides for  disposal  of the  property left  on the

public  premises  by  unauthorized occupants.  The relevant  sub­

Sections for the purpose of this case are sub­sections (1A) and (2)

of Section 6, which are as under:­

"6. Disposal of property left on pub­ lic  premises by unauthorized occu­ pants.­

(1)  …..

(1A) Where any goods, materials, cattle or other animal have been removed from any public premises under section 5A, the estate officer may, after giving fourteen days’ notice to the persons owing such goods,  materials, cattle or other animal and after publishing the  notice in  at least one newspaper having circulation in the locality, dispose of, by public auction, such goods, materials,  cattle or other animal.

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(1B) …..

(2)  Where any property  is  sold under sub­section (1), the sale proceeds thereof shall, after deducting the expenses of the sale and the amount, if any, due to the Central Government or the [statutory authority] on account of arrears of rent or damages or costs, be paid to such person or persons as may appears to the estate officer to be entitled to the same:

Provided that where the estate officer is unable to decide as to the person or persons to  whom  the balance of the amount is payable or as to the apportionment of the same, he  may refer such dispute to the civil court of competent jurisdiction and the decision of the court thereon shall be final".

20.  It is clear from the above provisions that any person in

occupation of the public premises without authority for such

occupation is an unauthorized occupant.   The expression 'spread

on any public premises', contained in sub­section (1)(b) of Section

5A in the context also means 'lying on any premises'.  Sub­section

(3) of Section 5A authorizes the Estate Officer to remove any goods

lying on any public premises after an order of eviction has been

made under Section 5 of the Act. It is immaterial whether the said

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goods belong to the erstwhile tenant/licensee or to any other party.

Sub­section (1A) of Section 6 authorises the Estate Officer to

dispose of  such goods/materials,  etc.  after  giving  fourteen days'

notice to the persons owning such goods and other procedure

prescribed therein.  It is not necessary that the persons owning the

goods lying on the premises should be erstwhile tenants/licensees.

It is also not necessary that there should be a privity of contract

between the Port Trust and the third party to whom such goods

and materials belong for disposing of the property by the Estate

Officer under Section 6.

21. In Indian Rayon, the Division Bench was dealing exclusively

with  lien under the MPT Act.   It  has not considered eviction of

unauthorized tenants under Section 6 of the PP Act. This judgment

is in conformity with the judgment of this Court in M/s. Sriyanesh

Knitters (supra).

22. In Canoro Resources the Division Bench was considering the

matter  where  an  eviction  order  had  been  passed  by the  Estate

Officer under the PP Act.   In the execution of the said order, the

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Estate Officer obtained possession of the land from the tenant and

seized the timber and casing pipes which were lying on the

leasehold land.  The owner of these goods, challenged the order of

the Estate Officer in a writ petition by contending that there was no

privity of contract between him and the Port Trust. In this

background, the  Division Bench held that  a conjoint reading of

Sections 59 and 61 of the MPT Act vis­a­vis Sections 5 and 6 of the

PP Act make it clear that if any goods are found to be lying on the

land of the Port Trust, and for such land any rent is due or

payable, the Port Trust has not only the lien over the goods, but

also the right to  sell those  goods so as to  appropriate the  sale

proceedings towards the rental dues.   

23. As noticed above, the proceeding initiated in  Canoro

Resources was under the PP Act.  Therefore, it was not necessary

for the Division Bench to read Sections 59 and 61 of the MPT Act

into the proceeding initiated under the PP Act.  The Full Bench, in

our view, was justified in holding that those observations were, at

best, obiter dicta.  The Full Bench was also justified in holding that

there is  no conflict between the two judgments of the  Division

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Bench in Indian Rayon and Canoro Resources.   

24. In the instant case, the contention urged on behalf of the Port

Trust is that even if the goods belonging to the third parties are

found lying on the premises after an order of eviction passed under

Section 5, it was entitled to sell the goods and deduct from the sale

proceeds any amount due to the Port Trust on account of arrears of

rent  or damages,  etc and that the balance of the sale proceeds

shall  be paid to such person or persons,  as may appear to the

Estate  Officer, to  be entitled for the same.  We are in  complete

agreement with this submission made on behalf of the Port Trust.

We are of the view that Section 6 of the PP Act has been enacted

with obvious purpose of enabling statutory authorities to take all

consequential steps after receiving possession of public premises

and for recovery of dues, etc.   The said provision ought not to be

interpreted in a way which defeats the very purpose of its

enactment.  Section 6 of the PP Act must be read independent of,

and not dependant on, Sections 59 and 61 of the MPT Act.   As

noticed above, Section 6 of the PP Act applies,  inter alia,  to the

persons who keep their goods in the public premises whether they

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are tenants/licensees, sub­tenants or any other parties. The Estate

Officer, under Section 6 of the PP Act, is entitled to sell the goods

even of a stranger, found in/on the premises under unauthorized

occupation.

25. The Full Bench of the High Court had already directed the

writ petition to be placed before the learned Single Judge for

decision on merits.  We request the learned Single  Judge of the

High  Court to decide the  writ petition expeditiously, preferably

within a period of six months from the date of receipt of a copy of

this Order, keeping in mind the observations made in this

Judgment.

26. The Civil Appeals are disposed of in the above terms.   There

will be no order as to costs.  

            …………………………………J.            (A.K. SIKRI)

        …………………………………J.            (ASHOK BHUSHAN)

…………………………………J.            (S. ABDUL NAZEER)

New Delhi; February 21, 2019.

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