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Reportable  

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

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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  

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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  

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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.  

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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  

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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  

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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  

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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.

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