IMPORTANT POINT
Interest of such unauthorised occupants cannot be protected who enter into possession after eviction proceeding has been initiated against their predecessor in possession.

JUDGMENT

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 appellan