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2017 Supreme(Cal) 839
IN THE HIGH COURT OF CALCUTTA
I.P. MUKERJI, PROTIK PRAKASH BANERJEE, JJ.
ERI-Tech Ltd. - Appellant
Versus
The Board of Trustees for Port of Kolkata - Respondent
APO No. 145 of 2016 and WP No. 645 of 2005
Decided on : 21-12-2017
For the Appellant :Mr. Sabyasachi Chowdhury, Mr. Anirban Roy, Mr. V.V.V. Sastri, Ms. Deepabali Dutta and Ms. Nikita Jhunjhunwala, Advocates.
For the Respondent:Mr. Hirak Mitra, Mr. Kinjal Kumar Boral, Advocate.
The money paid by the appellant to the respondent during the pendency of the writ petition was without prejudice to the rights and contentions of the parties. Since the writ petition was dismissed, the appellant is entitled to get back the said sum.
Headnote:
PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1971 - SECTION 4 - SECTION 7 - WRIT PETITION - INTERIM ORDER - PAYMENT OF MONEY - WITHOUT PREJUDICE TO THE RIGHTS AND CONTENTIONS OF THE PARTIES - APPROPRIATION OF MONEY - RESTITUTION - PRINCIPLES OF ASSESSMENT OF DAMAGES.
Fact of the Case:
The appellant was a lessee under the respondent. The lease expired on 1st January, 1997. The respondent was only interested in granting a fresh lease of 15 years with effect from 2nd January, 1997 but the appellant wanted it for 99 years from 1st March, 2003. The respondent would be willing to grant it for 99 years from 1st March, 2003 upon payment of a premium of Rs. 1,08,90131 and occupation charges from 2nd January, 1997 up to 28th February, 2003, amounting to Rs. 18,52,481. The appellant filed two writ petitions before the High Court. In the first writ petition, an interim order was passed asking the appellant to show their bona fide by depositing Rs. 15 lakhs with the Kolkata Port Trust Authorities. The appellant did not deposit the sum and hence the writ application was dismissed. Thereafter, the appellant filed another writ (WP No. 645 of 2005). They claimed that the respondent was required to grant a fresh lease in their favour for 99 years. On the apprehension that the respondent was to not grant them this lease but instead grant it in favour of some other party the first and second writ applications were preferred in the High Court. In the second writ by an interim order dated 30th march, 2005, the High Court directed the appellant to deposit a sum of Rs. 15 lakhs. In the final hearing of the writ on 27th January, 2016, the High Court disposed of the writ by vacating all the interim orders. The Estate Officer was asked to complete the eviction proceedings as expeditiously possible within four weeks from the date of communication of this order. He was to quantify the charges payable by the appellant for their occupation of the property from the date of their possession. The appellant came to court asking for an order for a fresh lease to be executed in its favour by the Kolkata Port Trust. The last proceeding in this court before Mr. Justice Basak is the most relevant. In its order dated 20th January, 2016 this court noted that the appellant had to pay a sum of Rs. 1 crore to the Kolkata Port Trust by 25th January, 2016. It added that this payment was to be made without prejudice to the rights and contentions of the parties. The property in question was public premises under the Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The appellant was evicted following the procedure mentioned in Section 4 of the said Act. The Estate Officer has also the jurisdiction under Section 7 thereof to make a calculation of arrear rent due and payable by the appellant to the port and also the power to assess the occupation charges or mesne profits payable by them for wrongful occupation of the said premises. Till date no such assessment has been made or even proposed to be made by this statutory authority. The Kolkata Port has purported to adjust this sum against their dues as computed by them without taking recourse to Section 7 of the said Act. There is not even a notice making a preparation for initiating a proceeding thereunder, for this purpose. Now, that the negotiations have failed, the lease has not been renewed or a fresh lease granted. The appellant handed back the property to the Kolkata Port Trust. This sum was paid or deposited without prejudice during the negotiation process.
Finding of the Court:
The payment or deposit of Rs. 1 crore 15 lakhs made by the appellant was to facilitate such negotiation by showing their bona fide, in my view. The property in question was public premises under the Public Premises (Eviction of Unauthorised Occupants) Act, 1972. As my learned brother has pointed out in his separate judgment, the appellant was evicted following the procedure mentioned in Section 4 of the said Act. The Estate Officer has also the jurisdiction under Section 7 thereof to make a calculation of arrear rent due and payable by the appellant to the port and also the power to assess the occupation charges or mesne profits payable by them for wrongful occupation of the said premises. Till date no such assessment has been made or even proposed to be made by this statutory authority. The Kolkata Port has purported to adjust this sum against their dues as computed by them without taking recourse to Section 7 of the said Act. There is not even a notice making a preparation for initiating a proceeding thereunder, for this purpose. Now, that the negotiations have failed, the lease has not been renewed or a fresh lease granted. The appellant handed back the property to the Kolkata Port Trust. This sum was paid or deposited without prejudice during the negotiation process.
Issues: Whether the appellant is entitled to get back the sum of Rs. 1.15 crores paid by it to the respondent during the pendency of the writ petition.
Ratio Decidendi: The High Court held that the appellant is entitled to get back the sum of Rs. 1.15 crores paid by it to the respondent during the pendency of the writ petition. The High Court observed that the payment or deposit of Rs. 1 crore 15 lakhs made by the appellant was to facilitate such negotiation by showing their bona fide. The property in question was public premises under the Public Premises (Eviction of Unauthorised Occupants) Act, 1972. The appellant was evicted following the procedure mentioned in Section 4 of the said Act. The Estate Officer has also the jurisdiction under Section 7 thereof to make a calculation of arrear rent due and payable by the appellant to the port and also the power to assess the occupation charges or mesne profits payable by them for wrongful occupation of the said premises. Till date no such assessment has been made or even proposed to be made by this statutory authority. The Kolkata Port has purported to adjust this sum against their dues as computed by them without taking recourse to Section 7 of the said Act. There is not even a notice making a preparation for initiating a proceeding thereunder, for this purpose. Now, that the negotiations have failed, the lease has not been renewed or a fresh lease granted. The appellant handed back the property to the Kolkata Port Trust. This sum was paid or deposited without prejudice during the negotiation process.
Final Decision: The appeal is disposed of on the above terms and all interim orders and undertakings stand vacated and discharged. The parties shall bear their own costs.
I.P. Mukerji, J.
I have read the judgment proposed to be delivered by my learned brother. I am in full concurrence with it. However, I would like to add a few words.
2. At one point of time, the appellant was a lessee under the first Respondent No. 1. The lease was granted in favour of the J.J.H. Industries Private Ltd and thereafter enjoyed by the appellant from 2nd January, 1967 for 30 years. It expired on 1st January, 1997. This respondent was only interested in granting a fresh lease of 15 years with effect from 2nd January, 1997 but the appellant wanted it for 99 years 2003. The said respondent would be willing to grant it for 99 years from 1st March, 2003 upon payment of a premium of Rs. 1,08,90131 and occupation charges from 2nd January, 1997 up to 28th February, 2003, amounting to Rs. 18,52,481. But it appears that the appellant could not come to a decision, as to what they wanted. By this letter, this respondent also asked the appellant to handover possession of the subject property. Then came two writ applications before this Court, preferred by the appellant.
3. The first one was WP No. 1523 of 2003 (Eri-Tech Ltd. & Ors. v. Union of India & Ors.) On 31st July, 2003, an interim order was passed by this Court asking the appellant to show their bona fide by depositing Rs. 15 lakhs with the Kolkata Port Trust Authorities. At the time of argument, I was told that this sum was not deposited by the appellant and hence the writ application was dismissed.
4. Thereafter, the appellant filed another writ (WP No. 645 of 2005). They claimed that the first respondent was required to grant a fresh lease in their favour for 99 years. On the apprehension that the respondent was to not grant them this lease but instead grant it in favour of some other party the first and second writ applications were preferred in this Court.
5. In the second writ by an interim order dated 30th march, 2005, this Court directed the appellant to deposit a sum of Rs. 15 lakhs. But one sentence in the order is very crucial. It said that this sum of Rs. 15 lakhs was to be "deposited" by the appellant and accepted by the respondent No. 1 "without prejudice to the rights and contentions of the parties".
6. On 20th January, 2016, in the same writ this Court recorded in another interim order that the appellant had offered to pay to the respondent by 25th January, 2016 Rs. 1 crore "wholly without prejudice to the rights and contentions of the parties".
7. In the final hearing of the writ on 27th January, 2016, Mr. Justice Basak disposed of the writ by vacating all the interim orders. The Estate Officer was asked to complete the eviction proceedings as expeditiously possible within four weeks from the date of communication of this order. He was to quantify the charges payable by the appellant for their occupation of the property from the date of their possession.
8. The position now is that the appellant has delivered back possession of the subject property to the Respondent No. 1. The said respondent is in possession of the property. The appellant wants return of this sum of Rs. 1,15,000,00/-.
9. Mr. Sastri assisted by Ms. Dutta submitted that this sum was deposited as directed by this Court pending negotiations between the parties wholly without prejudice to the rights and contentions of the parties. The negotiations having failed, it ought to be returned by the first respondent.
10. On the other hand, it was contended on behalf of the port authorities by Mr. H.K. Mitra, learned senior advocate that the lease of the appellant expired long ago on 1st January, 1997. Since then they were in unauthorised occupation of the subject property. A large sum on account unpaid rental was due and payable by them. Apart from that damages or mesne profits payable by them for unauthorised use or occupation of the property had also to be computed. The dues of the appellant towards the respondent Port Trust was much more than the sum of Rs. 1 crore 15 lakhs of the petitioner he
