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IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
L.M.J. Construction Private Limited & Another - Appellant
Versus
The Board of Trustees for the Port of Kolkata & Others - Respondent
W.P.A. No. 25193 of 2015 with IA. No. CAN. Nos. 1 of 2021 with 2 of 2022
Decided On : 28-02-2023
LANDLORD AND TENANT - EVICTION - POSSESSION - SITTING OCCUPANT - FIRST RIGHT OF REFUSAL - APPLICABILITY - CONDITIONS - INTERPRETATION - PROMISSORY ESTOPPEL - NON-APPLICABILITY.
Fact of the Case:
The petitioner, a company engaged in letting out landed properties on rental basis, entered into an agreement for tenancy with the erstwhile lessee of a property owned by the Kolkata Port Trust (KoPT) in 2003. Subsequently, the KoPT initiated eviction proceedings against the erstwhile lessee and obtained an eviction order in 2011. In 2014, the KoPT issued a notice expressing its intention to grant "First Right of Refusal" to the sitting occupants of KoPT-properties on certain terms and conditions. The petitioner applied for availing the provisions of the notice, but its application was rejected by the KoPT on the ground that the petitioner was not in possession of the property and that the erstwhile lessee was still in existence.
Finding of the Court:
The court held that the petitioner did not satisfy all the conditions required to be a "sitting occupant" under the KoPT's notice. The court found that the petitioner had entered the property on the basis of an arrangement with the erstwhile lessee, who was no longer a "recorded tenant/licensee" at the relevant time. The court also found that the petitioner was not a rank outsider or encroacher, but it did not satisfy the condition that the original/recorded lessee/licensee had ceased to exist. The court further held that the petitioner's reliance on the doctrine of promissory estoppel was misplaced as there was no "unconscionable departure" by the KoPT from its notice and the petitioner did not act upon the representation made thereby.
Issues: 1. Whether the petitioner satisfied the conditions required to be a "sitting occupant" under the KoPT's notice? 2. Whether the petitioner's reliance on the doctrine of promissory estoppel was justified?
Ratio Decidendi: 1. The conditions required to be a "sitting occupant" under the KoPT's notice are: (i) the occupant entered the property on the basis of a certain arrangement with the recorded tenant/licensee; (ii) the occupant did not have the approval of the KoPT but is not a rank outsider or encroacher in respect of the property as on January 2, 2014; (iii) the occupant files an application complete in all respects along with requisite documents within six months from the date of publication of the notice; (iv) the original/recorded lessee/licensee ceases to exist; (v) a decree/order for eviction from a competent court of law/Estate Officer has been obtained; (vi) the said decree/order for eviction has been/will have to be executed by taking over symbolic/paper possession from the original/recorded tenant/licensee or the KoPT takes paper possession of the land/structure under any mutual arrangement, before allotment; (vii) in case of more than one sitting occupant, the lease/license in respect of areas occupied by respective sitting occupants will be processed for willing occupants only, on recovery of dues on a pro-rata area basis, provided each space has separate access. 2. The doctrine of promissory estoppel applies where there is a clear and unequivocal promise to create a legal relationship and on the basis of such promise, one has altered his position to his detriment, where the principle is invoked to prevent injustice by enforcement of the promise.
Final Decision: The court dismissed the petitioner's writ petition, holding that the petitioner did not satisfy all the conditions required to be a "sitting occupant" under the KoPT's notice and that its reliance on the doctrine of promissory estoppel was misplaced.
JUDGMENT
1. The petitioner no.1, L.M.J. Construction Private Limited is a company engaged in the business of letting out landed properties on rental basis and the petitioner no.2 is one of its directors.
2. The present dispute relates to a property of the respondent no.1, Kolkata Port Trust (KoPT) bearing Plot No. D297 at P-51, Hide Road Extension, P.S.-Taratola, Kolkata- 700 088, measuring about 13378.03 Sq. Mtrs. The First Belt comprises of 4220.40 Sq. Mtrs. and the Second Belt around 9157.63 Sq. Mtrs.
3. The KoPT, by an Indenture of Lease dated January 12, 1971, let out the said property in favour of proforma respondent no.5, Avery India Limited for a period of 10 years with effect from January 24, 1969.
4. An agreement for tenancy was subsequently entered into by respondent no.5, Avery, in favour of the petitioner no.1 on March 14, 2003. Vacant and peaceful possession of the land, with structures, was simultaneously hand over to the petitioner no.1.
5. The KoPT had initiated an eviction proceedingbearing no. 394 of 2000 against respondent no.5 and an order of eviction was passed on March 7, 2011 by the Estate Officer in the said eviction proceeding. An appeal was filed against the same by proforma respondent no.5.
6. In the meantime, in or about the month of September, 2014, a Notice was published by the KoPT in its official website, expressing its intention to grant “First Right of Refusal” to the sitting occupants of KoPT-properties on the terms and conditions stipulated therein.
7. Admittedly, the petitioner no.1 had granted a leave and licence on April 1, 2013 to one Shree Venkatesh Films (P) Limited and one Magic Moments. However, the petitioner no.1 carried on paying rent and incidental charges to the KoPT-authorities.
8. The petitioner no.1 applied on December 30, 2014 pursuant to the Notice published by the KoPT for availing provisions of the said notice as sitting occupants.
9. Thereafter, in view of the delay in processing such application, the petitioners filed a Writ Petition bearing WP No.22362(W) of 2015 and also filed an intervention application for being added as a party to another Writ Petition bearing WP No.19653(W) of 2015 filed by the KoPT for police assistance to implement the Eviction Order dated March 7, 2011 against Avery.
10. The writ petitions were taken up together on September 7, 2015 by a coordinate Bench and were directed to be listed before the said Bench on September 24, 2015. However, on September 13, 2015, a Sunday morning, the KoPT-Authorities, allegedly with CISF personnel, took possession of the disputed property and put a padlock over the main gate.
11. All this happened even when the petitioners’ application dated December 30, 2014 pursuant to the Notice of the KoPT was kept pending by the KoPT for consideration.
12. Subsequently, on September 16, 2015, the KoPT-Authorities issued a communication, thereby rejecting the petitioners’ application/representation dated December 30, 2014. The said refusal is under challenge in the present writ petition.
13. The learned Senior Advocate appearing for the petitioners contends that the premise on which such rejection took place were erroneous. One of the grounds was that during inspection on April 22, 2015, it was allegedly found that the petitioner no.1, L.M.J. was not in possession. However, the petitioner no.1 is very much in possession of the said property. Inasmuch as some portions of the property are concerned, those were licensed out by the petitioner no.1 in favour of Shree Venkatesh Films (P) Ltd. and Magic Moments. However, a substantial portion of the property has all along been occupied by the petitioner no.1.
14. Another ground of rejection was that proforma respondent no.5 Avery, being the erstwhile lessee, was still in existence and had paid compensation charges even recently in respect of the premises. Hence, the condition of cessation of existence of the original/recorded lessee, a prerequisite for consideration of a request for regularizati
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