IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

BEFORE :-

THE HON’BLE JUSTICE SHAMPA SARKAR

C.O 498 of 2022

Tata Scob Dealers Cal Limited & Anr.

vs.

Union of India and others

For the Petitioner : Mr. Swatrup Banerjee, Adv.

Ms. Somali Mukhopadhyay, Adv.

Mr. Sariful Haque, Adv.

For the Opposite Parties : Mr. Arabinda Sen, Sr. Adv.

Mr. Tapan Bhanja, Adv.

Judgment reserved on : 08.05.2026

Judgment pronounced on : 19.06.2026

Judgment uploaded on : 19.06.2026.

Shampa Sarkar, J.

1. This revisional application arises out of an order dated January 29,

2022 passed by the learned Additional District Judge, 1

st

Court at Howrah

in Misc. Appeal No. 125 of 2019. By the order impugned, the learned Judge

upheld the decision of the Estate officer dated July 5, 2019, inter alia,

holding that the said decision was passed in consonance with the directions

of the High Court in G.A. given 1160 of 2019 arising out APOT 40 of 2019. It

was held that the principles of natural justice were followed and the

provisions of the Public Premises Eviction of Unauthorised Occupants Act,

1971 (hereinafter referred to as the ‘said Act’) was squarely applicable in the

matter of eviction of the petitioner No. 1/company, which who was an

2

unauthorized occupant in respect of the premises owned by the then

Calcutta Port Trust, at present Shyama Prasad Mookherjee Port, Kolkata

(hereinafter referred to as the Port Trust).

2. Mr. Swatrup Banerjee, learned Senior Advocate for the petitioners

submitted that the order of the Estate Officer was without jurisdiction. The

proceeding under the then said Act was misconceived. According to Mr.

Banerjee, as the petitioner became a tenant, under the Port Trust (which

was governed by the Calcutta Port Trust Act, 1890), on the basis of a lease

agreement dated August 13, 1945, the provisions of the said Act, would not

be applicable. The date of entry of the petitioners was sometime in 1945.

The relevant date to be taken into consideration for applicability of the said

Act, was the date of entry into the premises. The land was leased out on

short term basis, initially for a period of two months and thereafter on

monthly basis, which was terminable by 15 days’ notice, expiring with the

end of the English Calendar, month on either side. Thus, it would be evident

that the petitioners continued to be a monthly tenant under the Port Trust.

The expression ‘public premises’ as defined under section 2(e) of the said

Act, did not extend to the subject premises, as the relevant date of entry was

prior to the promulgation of the said Act. The Act was given retrospective

effect from September 6, 1958. The premises were under the control of the

Board of Trustees, which was constituted under the Major Port Trust Act,

1963. Under the Major Port Trust Act, “public premises” was not defined.

The then Calcutta Port Trust or the Board of Trustees were ordinary

landlords and the petitioners were nothing but tenants , who would be

governed by the applicable local tenancy laws. The Calcutta Port Act, 1980

ceased to operate from the date of promulgation of the Major Port Trust Act,

3

1963, resulting in repeal of municipal assessment of the properties

belonging to the Port of Calcutta. It was further urged that the law laid down

by the Hon’ble Apex Court in Suhas H. Pophale Vs. Oriental Insurance

Company Limited & its Estate Officer reported in (2014) 4 SCC 657, had

not been followed either by the Estate Officer or by the Additional District

Judge. Mr. Banerjee submitted that the present case was identical to the

facts of Suhas H. Pophale (supra), inasmuch as, the land was given on

perpetual lease and the persons in possession of the same would not be

governed by the said Act. As the Hon’ble Apex Court had held that ,

occupants of premises which were given on long term lease prior to the

coming into effect of the said Act, could not be evicted by taking recourse to

the said Act, the orders impugned before this court is ought to be set aside.

Mr. Banerjee urged that, the aforesaid premises would be governed by the

tenancy laws of the State and the Additional District Judge bypassed the

decision of the Suhas H. Pophale (supra) by placing reliance on a decision

of a Single Bench of this Court in the matter Board of Trustees for the

Port of Kolkata Vs Metal Box India Limited and Another which was

reported in AIR 2021 Cal 331 . The decision in Metal Box (supra) was

distinguishable on facts. In the said case, Metal Box had come in possession

of the premises in question, prior to the enforcement of the said Act.

However, the agreement of Metal Box with the Calcutta Port Trust had

expired due to efflux of time and the lease had come to an end on June 10,

1982. Thereafter, a fresh agreement was executed between the parties when

the said Act was already in force, and on such facts, the decision was

rendered by the learned Single Judge, inter alia, holding that the said Act

would be applicable for eviction of Metal Box. Reliance was placed by the

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petitioners on a decision of another learned Single Judge of this Court dated

February 26, 2019, passed in C.O 674 of 2018. In the said decision as well,

the ratio of Suhas H. Pophale (supra) was followed and it was held that two

categories of tenants would be excluded from the scope and ambit of the

said Act namely, those who were tenants prior to the coming into force of

the said Act and those who were tenants prior to the premises becoming

public premises. It was further contended that the allegations and the

demand of the opposite parties against the petitioners, as also the notices

issued under Sections 4 and 7 of the said Act by the Estate Officer, would

indicate that the proceedings were drawn on the ground of raising

unauthorised constructions and subletting. No allegation of default in

payment of rent had been made. Moreover, the Port Trust had accepted the

Rs. 10 lakhs towards rent on the basis of an order of the Division Bench of

the High Court dated May 23, 2019. Thus, any further right to continue the

eviction proceedings had been waived. Mr. Banerjee vehemently urged this

Court to set aside the order of the Estate Officer and also of the Appeal

Court on the ground of illegality and failure on the part of the Port Trust to

produce documents, which would indicate that the premises would fall

within the definition of ‘public premises’ under the said Act, in view of the

date of entry of the petitioners. It was urged that the day the premises were

handed over to the petitioners i.e. sometime in August, 1945, a right had

been created in favour of the petitioners as lessees/tenants and the

provisions of the Bengal Tenancy Act, 1885 was the prevailing law. Section 4

of the Bengal Tenancy Act, 1885 classified tenants to mean tenure holders,

raiyats and under raiyats, and as such, the lease under the Port Trust

would be covered by the Act of 1885. Upon repeal of the 1885 Act, the West

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Bengal Premises Tenancy Act, 1956 and thereafter the Bengal P remises

Tenancy Act, 1997 were promulgated and as such, on the date of initiation

of the proceeding, the 1997 Act should have been applied.

3. Mr. Sen learned senior Advocate for the opposite parties urged that

there was neither any jurisdictional error nor any material irregularity in

exercise of power under Section 9 of the said Act, by the learned Appeal

Court. It was further contended that the Estate Officer was the competent

authority to pass an order of eviction of the petitioner No. 1 / company, in

accordance with the provisions of the said Act and pass necessary directions

upon the petitioners. The said Act was squarely applicable to the said

premises. The Calcutta Port was the first major port as per definition as well

as the only riverine port of the country. It came to be governed by a Trust on

October 17, 1870 on the appointment of a Commissioner for improvement of

the port of Calcutta as per Act V of 1870. The subject port was always a

public premise, inasmuch as, the same belonged to the Calcutta Port Trust

even prior to the lease of 1945. The land which was leased out to the

petitioner/company on a short term basis and thereafter month by month,

fell within the definition of ‘public premises’ under Section 2(e).

Unauthorized occupation was defined under Section 2(g) of the said Act and

it included any person who was using the public premises without any

authority of such occupation and continued in occupation of such premises

after the authorization by which the occupant was allowed to occupy the

premises had expired or had been determined for any reason whatsoever.

The short term lease, which was granted to the petitioners had expired.

Further continuation of the petitioners tenant on monthly basis, had been

determined by the port authority upon service of a notice to quit dated

6

August 8, 2014. Proceedings were instituted at the behest of the port

authority with the clear intention to get back possession of the premises in

question. The company was an unauthorized occupant. The Act of 1971

provided for a summary procedure for eviction of an unauthorized occupant.

The said Act also empowered the Estate Officer to initiate proceedings in

respect of such premises. Any proceeding for eviction of unauthorized

occupants from public premises, after September 16, 1958, would be

governed by the said Act. The provisions of the Bengal Tenancy Act, 1885

would not be applicable, inasmuch as, the 1885 Act was promulgated to

consolidate certain enactments relating to landlords and tenants within the

territories under the administration of the Lieutenant Governor of Bengal.

The Act extended its operation to all territories which were under the

administration of the Lieutenant Governor of Bengal, except the town of

Calcutta. On the date of execution of the lease agreement in the year 1945,

the subject premises was under the control of the Calcutta Port Trust and

as such, the 1885 Act was not applicable. It was further urged by Mr. Sen

that, the West Bengal Non-Agricultural Tenancy Act, 1949 would also not

govern the subject tenancy, inasmuch as, the petitioners were granted the

lease on a short term lease basis, in the year 1945. The Act of 1949 was

enacted for a specific purpose and had no manner of application in the

present case. Lastly, it was submitted that the decision in Suhas H.

Pophale (supra) was not distinguishable on the ground that the premises

involved in the decision of Suhas H. Pophale (supra), did not belong to any

public authority at the time of induction of the tenant. Thus, the Hon’ble

Apex Court had made a distinction on the basis of the date of entry of the

tenant into the premises which was not public premises on that date. It did

7

not belong to either a Government authority or any other public authority,

and as such, did not fall within the definition of Section 2(e) of the said Act.

It was further urged that objection with regard to non-applicability of the

said Act was barred by the principle of issue estoppel. Orders of the Estate

Officer had been challenged in two writ petitions and the only prayer of the

petitioners therein was that, the proceedings should be reopened from the

stage of inspection, by allowing further inspection, evidence and arguments.

Such prayer in the writ petitions would clearly indicate that the petitioners

had accepted the jurisdiction of the Estate Officer and also the applicability

of the said Act. The order of the writ court was not in favour of the

petitioners and accordingly the petitioners approached the Division Bench

by preferring appeal. The Division Bench allowed the prayer of the

petitioners to the extent of permitting a fresh joint inspection in the

presence of the parties and further hearing on the issue of unauthorized

construction, by allowing the petitioners equal opportunity to put forward

their case. It was specifically directed that, the principles of natural justice

should be followed.

4. Under such circumstances, the petitioners were estopped from raising

a question with regard to applicability of the said Act. It was urged that, the

very fact that the petitioners approached the writ court for an opportunity of

hearing and an opportunity to further adduce evidence before the Estate

Officer, and such prayer having been allowed by the Division Bench, the

applicability of the said Act and jurisdiction of the Estate Officer to initiate

proceedings thereunder, had already been upheld by the Division Bench in

the earlier proceeding.

8

5. According to Mr. Sen, there were outstanding dues account of unpaid

rent. The petitioners became unauthorized occupant s on and from

September 1, 2014, upon service of the notice dated August 8, 2014, by

which the lease was terminated, on the allegations of non-payment of rent,

unauthorized construction and unauthorized parting of the property in

favour of the petitioner No. 2. It was further urged that the learned

Additional District Judge, 1

st

Court at Howrah, upon affording sufficient

opportunity of hearing had passed the order impugned. Section 9 of the said

Act provided for an appeal against the order of the Estate Officer and

accordingly, the appeal was also maintainable in the eye of law, before the

learned Additional District Judge. Mr. Sen relied on the decision of Metal

Box (supra), in this regard.

6. Before dealing with the issues raised, it is necessary to discuss the

facts which emerge from the records and the affidavit-in-opposition filed by

the opposite parties. The petitioner No. 1/company, was granted a short

term lease initially for a period of two months and thereafter month by

month. Possession of the public premises was handed over to the company,

and the company occupied the premises since August 1945. The premises

were to be utilized for the purpose of storage of iron and steel materials. On

November 19, 2012, a letter was issued to the petitioner No. 1/company,

inter alia, alleging that the company had unauthorizedly parted with the

possession of the premises, thereby, inducting the petitioner No. 2. It was

further alleged that the company had amalgamated two adjacent plots, and

had raised unauthorized constructions. There were also unpaid dues. The

company was asked to remedy the breaches. On December 14, 2012, a final

notice was sent asking the petitioner No. 1 to remedy the breach. On August

9

8, 2014, the Port Trust terminated the lease with effect from August 31,

2014, for breach of the terms and conditions of the agreement i.e. non-

payment of rent, raising of unauthorized constructions and unauthorized

parting of the premises in favour of Madhu Kant Surelia. On October 07,

2016, an application was filed under the said Act, before the Estate Officer,

requesting initiation of eviction proceedings against the petitioner No. 1, and

for recovery of the total du es, with accrued interest. Accordingly,

proceedings were initiated bearing No. 1543, 1543/R, 1543/D of 2017.

Notices under sections 4 and 7 of the said Act were issued against the

petitioner No. 1. On June 9, 2017, Madhu Kant Surelia i.e. petitioner No. 2,

filed a reply to the show cause notices. The Port Trust filed a reply denying

all the contentions made by Madhu Kant Surelia in answer to the show

cause notices and also took strong objection to the claim that Madhu Kant

Surelia was the lessee. It was stated by the Port Trust that, there was

neither any privity of contract nor any jural relationship between Madhu

Kant Surelia and the Port Trust. No permission had been taken by the

petitioner no. 1 from the Port Trust before inducting Madhu Kant Surelia

and before raising the constructions. A joint inspection was held in terms of

the order of the Estate Officer on July 28, 2017 and the following breaches

were found:-

I. Unauthorized constructions;

II. Amalgamation of the Plots;

III. Three storied RCC structure with CI roof.

IV. Godown being used for manufacturing of electrical goods and iron goods.

7. On March 14, 2019, another joint inspection was carried out, and

encroachment and unauthorized constructions were found. The hearing was

10

concluded on March 19, 2019 and the parties were directed to file their

written notes of arguments. The said order was challenged by the petitioners

by filing WP No. 172 of 2019. The said writ petition was heard analogously

with a similar writ petition and the learned Single Judge refused to interfere

with the order of the Estate Officer. Both the writ petitions were disposed of

together. However, the time to file the written notes was extended. The

petitioners urged before the learned Single Judge who was hearing the writ

petition that the proceedings should be restored to the stage of re -

inspection and the Estate Officer should be directed to allow further

opportunity to the petitioners to adduce evidence, produce documents and

relevant materials, and controvert the findings arrived at during the course

of inspection. Such prayers were not allowed.

8. The Estate Officer thereafter passed the final order on May 7, 2019.

The petitioners filed an appeal from the order of the learned Single Judge

dated April 5, 2019 and the Hon’ble Division Bench by an order dated May

23, 2019 directed a joint inspection to be held on May 31, 2019. It was

further directed that minutes of the inspection should be drawn on the date

itself, in presence of the parties. Their Lordships directed the Estate Officer

to hear the parties afresh, on the basis of the joint inspection and conclude

the proceedings by July 5, 2019. The final order of the Estate Officer was set

aside. The Division Bench also directed the petitioners to deposit Rs. 10

lakhs in favour of the Port Trust, against the outstanding dues. On May 31,

2019, further inspection of the premises were conducted and the petitioner

company was present. A report was prepared and the same w as submitted

before the Estate Officer on June 4, 2019. On June 25, 2019, further

hearing was held and both the parties participated in the hearing. The

11

parties filed their written notes. The Estate Officer passed the order on July

5, 2019, inter alia, holding that the allegation of unauthorized construction

stood proved. The company had committed breaches by abandoning the

public premises in favour of a rank outsider i.e. the petitioner No. 2 and

there had been default in the payment of rent. Thus, it was directed that, in

consonance with Section 5(1) of the said Act, the company and any person

in occupation of the said premises should vacate the same within 15 days

from the date of passing of the order and the Port Authority was entitled to

claim damages for unauthorized use and occupation of the property. The

Port Trust was granted liberty to submit a statement of the calculation of

the damages for the subsequent period, after the assessment vide order

dated May 7, 2019, indicating in detail the rate of charges, the period of

damages together with the basis on which such charges were claimed

against the petitioners. The petitioners preferred an appeal before the

learned Additional District Judge, 1

st

Court at Howrah by filing Misc. Appeal

No. 125 of 2019. The appeal was dismissed with reasons.

9. The land always belonged to the Calcutta Port Trust. A short term

lease was granted to the petitioner No. 1, initially for a period of two months

and thereafter, on monthly basis. The lease was terminable by 15 days’

notice expiring with the end of the English Calendar month on either side.

The lease in favour of the petitioner No. 1 was with effect from August 01,

1945.

10. On or about August 13, 1945, possession of the premises was handed

over to the company. The company had parted with the possession of the

property in favour of the petitioner No. 2, had amalgamated two adjacent

plots, had raised unauthorized construction and defaulted in payment of the

12

lease rent. The tenancy was terminated by a notice to quit and vacate on

August 8, 2014 with effect from September 1, 2014. The termination notice

is quoted below :-

“To Dated- August 8, 2014

M/s. Tata Scob Dealers Cal Ltd.,

20, Strand Road, Howrah-700 001

AND ALSO AT

P.T.R. Siding No. 16, Shalimar,

Howrah- 711 102

WHEREAS you have been granted a month to month lease by

Kolkata Port Trust in respect of land msg. 317.73 sq.m. at Shaliamr

P.T.R. Siding No.16, under Plate No. HL-434, as described in the

schedule below.

AND WHEREAS you have fai led and neglected to pay the rent and

taxes amounting to Rs.2,47,175-00, in respect of Plate No.HL434,

calculated upto July 2014 to the Kolkata Port Trust and also accrued

interest on the said outstanding dues amounting to Rs.3,93,647=88

calculated upto 05-08-2014 in respect of the said premises described

in the schedule below and you have failed to liquidate such

outstanding dues in spite of repeated requests from Kolkata Port

Trust and Final Notice being No. Lnd,3348/77/12/3741 dated 14-

12-2013.

AND WHEREAS you have made unauthorised construction on the

said land which is a major breach of the terms of the lease granted to

you and you have failed to remove the same despite repeated

requests from Kolkata Port Trust and Final Notice bearing no.

Lnd.3348/77/12/3741 dated 14-12-2013.

AND WHEREAS you have unauthorisedly parted with possession to

Madhu Sharma on the premises which is grossly illegal and

constitutes major violation of the terms and conditions of the said

lease.

Now, I do hereby give you notice that the Board of Trustees of the

Port of Kolkata hereby forfeit the said lease and in exercise of the

option to do so hereby determined the same and give you notice that

they will re-enter upon the demised land on 31-08-2014 at 11-30

A.M. when please arrange to quit, vacate and deliver up peaceful

possession of the Public Premises described hereunder to their duly

authorised representative who will then call at the site at the

appointed time for the purpose. It is also hereby notified that all your

relationship with the Board of Trustees for the Port of Kolkata stood

determined immediately after failure on your part to comply with the

requirement of Kolkata Port Trust for such grant of lease as offered to

you and you are liable to pay compensation charges for unauthorised

use and occupation of the public premises from 01-09-2014 upto the

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date of delivery of vacant and peaceful possession of the property

mentioned in the schedule hereunder to Kolkata Port Trust. This is

for you to take note that any payment tendered by you or received

from your end in respect of the period subsequent to the expiry of the

period as mentioned in this notice to quit will be deemed to have

been tendered by you as compensation for wrongful use and

occupation and acceptance of such p ayment will be without

prejudice to the notice to quit and also to the Kolkata Port Trust's

right to take further action in the matter. It is further notified that

Kolkata Port Trust has no intention and/or desire to revive your

status as tenant under the Board of Trustees for the Port of Kolkata.

It is also notified that in case of default in handing over vacant

possession of property mentioned in the schedule hereunder as

aforesaid, Kolkata Port Trust will be at liberty to take recourses of

law, civil or criminal or both as may be advised without prejudice to

any other rights, which may be available under law and you will be

held liable for all costs and consequences arising there from.

It may be mentioned that there is no alternative but to place the

matter before the Ld. Estate Officer, the adjudicating authority under

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971

in case of default in compliance as above on the part of the notice in

view of the bar in Court's jurisdiction under Section 15 of the Act in

respect of eviction, recovery of arrear rental dues and damages, etc.

as the Port's property is declared "Public Premises" as defined under

the said Act.

Schedule of Property

The said piece or parcel of land msg. 317.73 sq.mtrs. or thereabouts

situated at Shalimar P.T.R. Siding no.16, Howrah, Thana -Shibpur

Police Station, District & Registration District. Howrah. It is bounded

on the North partly by the Trustees' land occupied by Nalini Behari

Sett and partly strip of open land used as railway margin of safety

alongside railway truck, on the East by the Trustees land occupied

by M/s. Upendra Nath Mallick & Co., on the South by partly by the

Trustees land occupied by M/s. Upendra Nath Mallick & Co. and

partly Trustees land used as Road, on the West by the Trustees' land

occupied by Nalini Behari Sett. Trustees' means The Board of

Trustees for the Port of Kolkata.

(S.K. Dhar)

Estate Manager (I/C)

For and on behalf of the

Board of Trustees for the Port of Kolkata”

11. The relevant correspondence between the parties, indicating the

nature of the breach committed by the petitioner No. 1 in respect of the

premises in question etc. have been described in the affidavit-in-opposition

14

supported by document annexed thereto. The factual aspects have not been

disputed by Mr. Banerjee. The joint inspection in terms of the order of the

Estate Officer revealed that breaches had been committed. A writ petition

was filed by the petitioners, aggrieved by the procedure followed by the

Estate Officer. The petitioners alleged violation of the principles of natural

justice, inability to lead evidence, denial of the opportunity of cross-

examination, and inability of the petitioners to place their case in further

details, by participating in the proceeding. The learned Writ Court was of the

view that, as the petitioners had been served with the joint inspection report

and were granted opportunity to file written notes of arguments, the Estate

Officer had sufficiently adhered to the principles of natural justice. The

relevant portions of the order passed in the writ petition are quoted below :-

“Having heard the parties and considering materials placed, this

Court arrives at the following findings -

(A) That the scheme of enquiry, as laid down in the 1971 Act, was

implemented by the Respondent no.2/Estate Officer. The petitioning

companies were admittedly granted the opportunity of joint inspection.

(B) That the 1971 Act does not stipulate the minutes of the joint

inspection should be prepared on spot. It i s not denied that the

petitioners were not shown the Minutes and also granted the

opportunity to sign the joint minutes at the office of the Respondent

no.2/Estate Officer which the petitioning companies have again chosen

not to do.

(C) It is also not the position that the petitioning companies have not

been granted the opportunity to controvert the joint minutes of

inspection, since all materials connected to and arising out of the joint

minutes of inspection, were handed over to the petitioning companies

inviting them to file Written Notes of Argument/Objections.

(D) The insistence on an oral hearing with evidence to be produced and

complaining of the fact that refusal of such further oral evidence

amounts to denial of natural justice is not, to the mind of this Court, in

symmetry with the 1971 Act. Under Section 8 of the 1971 Act the

Respondent no.2/Estate Officer is required to hold an enquiry and

follow the canons of due process associated with such enquiry, which

the Respondent no.2 has attempted to do only to be time and again

opposed by the petitioners.

(E) To the further mind of this Court, the Respondent no.2/Estate

Officer did grant the petitioners an opportunity to controvert the joint

minutes by way of filing oral evidence. As discussed earlier, t he

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Exception Application at the stage when the enquiry proceedings have

begun, without participating in the initial proceedings as required by

law is itself exceptionable. It is trite that natural justice is not a strait

jacket formula.

(F) The principle of natural justice must fit into the factual format. In

the facts of the present case, by granting the petitioning companies the

opportunity to file their Written Notes of Argument/Objections to the

materials received by them of the joint inspection, to the further mind

of this Court, the requirement of natural justice stood fulfilled.

For the above recorded reasons, the order of the Respondent

no.2/Estate Officer is not interfered with.

However, time is extended by a fortnight from date for the petitioners to

file their Written Notes of Argument/Objections before the Respondent

no.2/Estate Officer as directed by his order dated 19th March, 2019

and reiterated by his order dated 2nd April, 2019.

It is made clear that in the event such Written Notes of

Argument/Objections are not received by the Respondent no.2/Estate

Officer within the period, as extended above, the Respondent

no.2/Estate Officer shall be free to conclude the proceeding under the

1971 Act in accordance with law.

Before parting with the discussion, it will be useful to mention that in

respect of both the petitioning companies a common Power of Attorney

was handed over to the Respondent no.2/Estate Officer of an individual

without explaining in any manner whatsoever his association with the

petitioning companies except, only for the purpose of contesting the

eviction proceedings.

Both W.P. No. 171 of 2019 and W.P. No. 172 of 2019 stand thus

disposed of.”

12. It is pertinent to mention here that, two writ petitions were filed by

two companies, who were leased out separate pieces of land by Calcutta Port

Trust on similar terms and conditions and both of whom were facing

eviction proceedings. Both the writ petitions were disposed of together,

namely, W.P No. 171 of 2019 and W.P No. 172 of 2019. Thereafter, the

Estate Officer passed the order of eviction. The order of the single Judge was

challenged in an appeal being A.P.O.T 40 of 2019. It was directed that joint

inspection should take place on May 31, 2019 at 12 noon, report should be

prepared and the petitioners could file exceptions to the report. The minutes

of the proceedings should be drawn on the date itself, in presence of the

parties and the petitioners should sign the minutes. In the event, a fresh

16

report was prepared, the Estate Officer should hear the matter afresh on the

basis of the report, if any. The petitioners were directed to deposit a sum of

Rs. 10 lakhs with the authorities as a condition precedent for availing of the

opportunity. The order of the Division Bench is quoted below :-

“Under such circumstances, let a joint inspection take place on 31st

May 2019 at 12 noon, for which no further notice shall be served

upon either of the parties, and in the event the petitioners are not

represented on the said date, the earlier joint inspection report

prepared on behalf of KOPT shall be taken to be correct and the

Estate Officer shall decide the matter on the basis of the existing joint

inspection report, after taking into consideration the exception filed by

the writ petitioners, in accordance with law. It is made clear that the

Minutes of the proceedings should be drawn on that date itself in

presence of the parties and the writ petitioners shall sign the Minutes

of the said meeting with their comments, if any, and may supplement

such objection by a detailed representation, if they feel it necessary,

but not later than one week from 31st May 2019.

In the event a fresh report is prepared in terms of this order, the

Estate Officer shall hear the matter afresh on the basis, of the said

joint inspection report and, if necessary, shall permit oral examination

of the witnesses of either of the parties and shall conclude such

proceedings by 5th July 2019.

The petitioners shall by 30 May 2019 deposit a sum of Rs. 10 lakh

with the KOPT authorities as a condition precedent for availing this

opportunity, as we are of the view that on 19th March 2019 the

explanation offered for not signing the joint inspection report is not

convincing, failing which the final order passed by the Estate Officer

on 7th May 2019 shall remain. Unless there are compelling reasons,

the Estate Officer shall not grant any adjournment to either of the

parties. We make it clear that we have not gone into the merits of the

matter and the Estate Officer shall decide the matter following the

principles of natural justice and keeping in mind the decision of the

Supreme Court in New India Assurance Co. Ltd. vs. Nusli Neville

Wadia reported at 2008 (3) SCC 279.”

13. Accordingly, Rs. 10 lakhs was deposited with the port authority.

Thereafter, a joint inspection was held and the Estate Officer passed the

final order, upon hearing all the parties. With regard to the procedure

followed by the Estate Officer, the following discussions are necessary. The

notices issued by the Estate Officer are quoted below :-

“Office of the Estate Officer Proceedings & No. 1543 of 2017

17

Kolkata Port Trust Order No. 01 Dated 12.01.2017

15, Strand Road, 4

th

Floor, Kolkata 700001 Board of Trustees of the Port of Kolkata

And Court Room at The 2nd Floor of Kolkata vs

Port Trust’s Head Office, Old Buildings, Tata Scob Dealers Cal Ltd.

15, Strand Road, Kolkata - 700001

To.

Tata Scob Dealders Cal Ltd.,

20, Strand Road,

Kolkata- 700001

AND ALSO AT

Besides, P.T.R. Siding No. 16,

Shamilar, Howrah-711102

AND ANY PERSON/S INTERERESTED ON

THE PROPERTY UNDER SCHEDULE

Whereas I, the undersigned, am of opinion on the grounds specified below

that you are in unauthorised occupation of the public premises mentioned

in the schedule below and that you should be evicted from the said

premises.

GROUNDS

THAT YOU HAVE VIOLATED THE FUNDAMENTAL CONDITION FOR GRANT

OF SHORT TERM MONTHLY LEASE IN RESPECT OF PUBLIC PREMISES BY

KOLKATA PORT TRUST (KOPT). THAT YOU HAVE DEFAULTED IN MAKING

PAYMENT OF THE MONTHLY RENT AND TAXES AND ALSO ACCRUED

NTEREST THEREON, HAS PARTED WITH POSSESSION OF THE PREMISES

TO RANK OUTSIDERS AND HAVE MADE UNAUTHORIZED CONSTRUCTION

ON THE PUBLIC PREMISES IN CL EAR VIOLATION OF THE TERMS AND

CONDITIONS OF LEASE IN QUESTION. THAT YOU HAVE FAILED AND

NEGLECTED TO HAND OVER POSSESS ION VIDE NOTICE TO QUIT DATED

08.08.2014 AS SERVED UPON YOU BY KOPT. THAT YOU HAVE LOST

YOUR AUTHORITY WHATSOEVER TO OCCUPY THE PUBLIC PR EMISES

AFTER EXPIRY OF THE PERIOD AS MENTIONED IN THE SAID NOTICE TO

QUIT DATED 08.08.2014. AS SUCH YOU ARE A WRONGFUL OCCUPANT

OF THE PREMISES IN QUESTION AND IS LIABLE TO BE EVICTED FROM

THE PUBLIC PREMISES. A N APPLICATION FROM KOPT DATED 07.10 .2016

ATTACHED HERETO WHICH ALSO FORMS A PART OF THE GROUND.

Now, therefore, in pursuance of Sub-Section (3) of section 7 of the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971, I hereby call upon

you to show cause on before 25.01.2017 why such an ord er of eviction

should not be made.

And in pursuance of Clause (b) (ii) of Sub-Section 2 of Section 4, I also call

upon you to appear before me in person or through the duly authorised

18

representative capable to answer all material questions connected with the

matter along with the evidence which you intend to produce in support of

the cause shown on 25.01.2017 at 12.30 P.M. for personal hearing. In case

you fail to appear on the said date and time, the case would be decided

exparte.

SCHEDULE OF THE PUBLIC P REMISES

REFERRED TO ABOVE

The said piece and parcel of land measuring about 371.73 Sq. mtrs or

thereabouts situated at Shalimar P.T.R. Siding No. 16, Howrah, PS-

Shibpur, District and Registration District Howrah. It is bounded by on the

North partly by the Trustees land occupied by M/s Nalini Behari Sett and

partly strip of open land used as Railway margin of safety alongside Railway

Track, on the East by the Trustees land occupied by M/s. Upendra Mallick

& Co. on the South by partly by the Trustees land occupied by M/s.

Upendra Nath Mallick & Co. and partly by Trustees land used as road, on

the West by the Trustees land occupied by Nalini Behari Sett.

Trustee's means the Board of Trustees for the Port of Kolkata.

Dated : 16.01.2017 Sd/-

ESTATE OFFICER”

“

(Form “F”)

PROCEEDINGS NO. 1543 /D OF 2017

ORDER NO. 01 DT. 12.01.2017

Form of notice under Sub Section (3) or Section 7 of the Public Premises

Eviction of Unauthorised Occupants Act,1971.

To

Shri/Smt./Km/M/s.

Tata Scob Dealders Cal Ltd.,

20, Strand Road,

Kolkata – 700001 AND ALSO AT

Beside P.T.R. Siding No. 16.

Shalimar. Howrah- 7111102

Whereas I, the undersigned, am satisfied that you are/ were in

unauthorised occupation of the public premises mentioned in the

SCHEDULE-I below:

19

And, whereas, in exercise of the powers conferred on me by sub- section (2)

of Section 7 of the Public Premises (Eviction of Unauthorised Occupants).

Act, 1971. I consider the damages amounting to Rs. 1,02,483.00 (Rupees

One lakh two thousand four hundred eighty three only.) are due for the

period (s) and at the rate(s) shown in SCHEDULE -II below an account of

unauthorised use and occupation of the said premises:

And, whereas, in exercise of the powers conferred on me by Sub - Section

(2A) of Section 7 of the Premises (Eviction of Unauthorised Occupants)

Act,1971, I consider that you are also liable to pay compound interest to

Kolkata Port Trust, Government/Statutory Authority on the said arrears at

the rate determined by the undersigned till its final payment.

Now, therefore, under the provisions of Sub-section (3) of Section 7 of the

Act, I, hereby, call upon you to show-cause on or 25.01.2017 why an order

requiring you to pay the said damages together with interest should not be

made.

SCHEDULE -I

The said piece and parcel of land measuring about 371.73 Sq. mtrs or

thereabouts situated at Shalimar P.T.R. Siding No. 16, Howrah, PS-

Shibpur, District and Registration District Howrah. It is bounded by on the

North partly by the Trustees land occupied by M/s Nalini Behari Sett and

partly strip of open land used as Railway margin of safety alongside Railway

Track, on the East by the Trustees land occupied by M/s. Upendra Mallick

& Co. on the South by partly by the Trustees land occupied by M/s.

Upendra Nath Mallick & Co. and partly by Trustees land used as road, on

the West by the Trustees land occupied by Nalini Behari Sett.

Trustee's means the Board of Trustees for the Port of Kolkata.

SCHEDULE -II

Period Rate at

which

assessed

Amount

assessed

Amount

paid

Balance in

Arrears

01.09.2014

to

12.08.2016

As per the

rate of Port

Trust’s Rent

Schedule/s

as time to

time Notified

in Official

Gazettee/s

for the

relevant

period.

Rs.1,02,483.00/- Nil Rs.1,02,483.00/-

Sd/-

20

Signature and seal of the Estate Officer”

“PROCEEDINGS NO. 1543 /R OF 2017

ORDER NO. 01 DT. 12.01.2017

To

Shri/Smt./Km/M/s.

Tata Scob Dealders Cal Ltd.,

20, Strand Road,

Kolkata – 700001 AND ALSO AT

Beside P.T.R. Siding No. 16.

Shalimar. Howrah- 711102

Whereas I, the undersigned, am satisfied that you are/ were in occupation

of the Public Premises described in the Schedule below:

And Whereas in exercise of the powers Conferred on me by sub-section (1) of

section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act,

1971, I consider that a sum of Rs.2,47,175.00/- (Rupees Two Lakhs Fourty

Seven Thousand One Hundred Seventy five only) being arrears of rent from

the 31st day of March, 1978 upto the 31

st

day of August, 2014 (both day

inclusive) in respect of the said premises is due and payable by you to the

Statutory Authority (Kolkata Port Trust).

And whereas in exercise of the powers conferred on me by sub-section (2A)

of section 7 of the Public Premises (Eviction of Unauthorised Occupants Act,

1971, I consider that you are also liable to pay compound interest to the

Statutory Authority (Kolkata Port Trust) on the said arrears at the rate

determined by the undersigned till its final payment:

Now, therefore, in pursuance of sub-section (3) of section 7 of the Public

Premises (Eviction of Unauthorised Occupants) Act 1971, I hereby call upon

you to above-cause on or before the 25.01.2017 why an order requiring you

to pay the said arrears of rent together with compound interest should not

be made.

SCHEDULE

The said piece and parcel of land measuring about 371.73 Sq. mtrs or

thereabouts situated at Shalimar P.T.R. Siding No. 16, Howrah, PS -

Shibpur, District and Registration District Howrah. It is bounded by on the

North partly by the Trustees land occupied by M/s Nalini Behari Sett and

partly strip of open land used as Railway margin of safety alongside Railway

Track, on the East by the Trustees land occupied by M/s. Upendra Mallick

21

& Co. on the South by partly by the Trustees land occupied by M/s.

Upendra Nath Mallick & Co. and partly by Trustees land used as road, on

the West by the Trustees land occupied by Nalini Behari Sett.

Trustee's means the Board of Trustees for the Pott of Kolkata.

Sd/-

Signature and seal of the Estate Officer”

14. Sections 4, 5 , 5(A), 5(B) and 7 of the said Act, are quoted below :-

“4. Issue of notice to show cause against order of eviction.—[(1) If

the estate officer has information that any person is in unauthorised

occupation of any public premises and that he should be evicted, the

estate officer shall issue in the manner hereinafter provided a notice

in writing within seven working days from the date of receipt of the

information regarding the unauthorised occupation calling upon the

person concerned to show cause why an order of eviction should not

be made.

(1A) If the estate officer knows or has reasons to believe that any

person is in unauthorised occupation of the public premises, then,

without prejudice to the provisions of sub -section (1), he shall

forthwith issue a notice in writing calling upon the person concerned

to show cause why an order of eviction should not be made.

(1B) Any delay in issuing a notice referred to in sub-sections (1) and

(1A) shall not vitiate the proceedings under this Act.]

(2) The notice shall—

(a) specify the grounds on which the order of eviction is proposed to be

made; and (b) require all persons con cerned, that is to say, all

persons who are, or may be, in occupation of, or claim interest in, the

public premises,—

(i) to show cause, if any, against the proposed order on or before such

date as is specified in the notice, being a date not [later than] seven

days from the date of issue thereof, and

(ii) to appear before the estate officer on the date specified in the

notice along with the evidence which they intend to produce in

support of the cause shown, and also for personal hearing, if such

hearing is desired.]

(3) The estate officer shall cause the notice to be served by having it

affixed on the outer door or some other conspicuous part of the public

premises, and in such other manner as may be prescribed,

whereupon the notice shall be deemed to have been duly given to all

persons concerned.

5. Eviction of unauthorised occupants.— [(1) If, after considering the

cause, if any, shown by any person in pursuance of a notice under

section 4 and any evidence produced by him in support of the same

and after personal hearing, if any, given under sub-clause (ii) of clause

(b) of sub-section (2) of section 4, the estate officer is satisfied that the

public premises are in unauthorised occupation, the estate officer

shall make an order of eviction, for reasons to be recorded therein,

22

directing that the public premises shall be vacated, on such date as

may be specified in the order but not later than fifteen days from the

date of the order, by all persons who may be in occupation thereof or

any part thereof, and cause a copy of the order to be affixed on the

outer door or some other conspicuous part of the public premises:

Provided that every order under this sub-section shall be made by the

estate officer as expeditiously as possible and all endeavour shall be

made by him to issue the order within fifteen days of the date

specified in the notice under sub-section (1) or sub-section (1A), as the

case may be, of section 4.

(2) If any person refuses or fails to comply with the order of eviction 3

[on or before the date specified in the said order or within fifteen days

of the date of its publication under sub-section (1), whichever is later,]

the estate officer or any other officer duly authorised by the estate

officer in this behalf [may after the date so specified or after the expiry

of the period aforesaid, whichever is later, evict that person] from, and

take possession of, the public premises and may, for that purpose,

use such force as may be necessary.

Provided that if the estate officer is satisfied, for reasons to be

recorded in writing, that there exists any compelling reason which

prevents the person from vacating the premises within fifteen days,

the estate officer may grant another fifteen days from the date of

expiry of the order under sub-section (1) to the person to vacate the

premises.

5A. power to remove unauthorised constructions, etc. —(1) No

person shall—

(a) erect or place or raise any building or 7 [any movable or immovable

structure or fixture]

(b) display or spread any goods,

(c) bring or keep any cattle or other animal, 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) Where any building or other immovable structure or fixture has

been erected, placed or raised on on any public premises in

contravention of the provisions of sub-section (1), the estate officer

may serve upon the person erecting such building or other structure

or fixture, a notice requiring him either to remove, or to show cause

why he shall not remove such building or other structure or fixture

from the public premises within such period, not being less than

seven days, as he may specify in the notice; and on the omission or

refusal of such person either to show cause, or to remove such

building or other structure or fixture from the public premises, or

where the cause shown is not, in the opinion of the estate officer,

sufficient, the estate officer may, by order, remove or cause to be

removed the building or other structure or fixture from the public

premises and recover the cost of such removal from the person

aforesaid as an arrear of land revenue.

(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

23

other animal has been brought or kept, 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.]

5B. Order of demolition of unauthorised const ruction.—(1) Where

the erection of any building or execution of any work has been

commenced, or is being carried on, or has been completed, on any

public premises by any person in occupation of such public premises

under an authority (whether by way of grant or any other mode of

transfer), and such erection of building or execution of work is in

contravention of, or not authorised by, such authority, then, the

estate officer may, in addition to any other action that may be taken

under this Act or in accordance with the terms of the authority

aforesaid, make an order, for reasons to be recorded therein, directing

that such erection or work shall be demolished by the person at

whose instance the erection or work has been commenced, or is being

carried on, or has been completed, within such period, as may be

specified in the order 1

Provided that no order under this sub-section shall be made unless

the person concerned has been given, by means of a notice [of not

less than seven days] served in the prescribed manner, a reasonable

opportunity of showing cause why such order should not be made.

(2) Where the erection or work has not been completed, the estate

officer may, by the same order or by a separate order, whether made

at the time of the issue of the notice under the proviso to sub-section

(1) or at any other time, direct the person at whose instance the

erection or work has been commenced, or is being carried on, to stop

the erection or work until the expiry of the period within which an

appeal against the order of demolition, if made, may be preferred

under section 9.

(3) The estate officer shall cause every order made under sub-section

(1), or, as the case may be, under sub-section (2), to be affixed on the

outer door, or some other conspicuous part, of the public premises.

(4) Where no appeal has been preferred against the order of demolition

made by the estate officer under sub-section (1) or where an order of

demolition made by the estate officer under that sub-section has been

confirmed on appeal, whether with or without variation, the person

against whom the order has been made shall comply with the order

within the period specified therein, or, as the case may be, within the

period, if any, fixed by the appellate officer on appeal, and, on the

failure of the person to comply with the order within such period, the

estate officer or any other officer duly authorised by the estate officer

in this behalf, may cause the erection or work to which the order

relates to be demolished.

(5) Where an erection or work has been demolished, the estate officer

may, by order, require the person concerned to pay the expenses of

such demolition within such time, and in such number of

instalments, as may be specified in the order.

24

7. Power to require payment of rent or damages in respect of

public premises.—(1) Where any person is in arrears of rent payable

in respect of any public premises, the estate officer may, by order,

require that person to pay the same within such time and in such

instalments as may be specified in the order.

(2) Where any person is, or has at any time been, in unauthorised

occupation of any public premises, the estate officer may, having

regard to such principles of assessment of damages as may be

prescribed, assess the damages on account of the use and occupation

of such premises and may, by order, require that person to pay the

damages within such time and in such instalments as may be

specified in the order.

(2A) While making an order under sub-section (1) or sub-section (2),

the estate officer may direct that the arrears of rent or, as the case

may be, damages shall be payable together with [compound interest]

at such rate as may be prescribed, not being a rate exceeding the

current rate of interest within the meaning of the Interest Act, 1978

(14 of 1978).]

(3) No order under sub-section (1) or sub-section (2) shall be made

against any person until after the issue of a notice in writing to the

person calling upon him to show cause [within seven days from the

date of issue thereof], why such order should not be made, and until

his objections, if any, and any evidence he may produce in support of

the same, have been considered by the estate officer.

(3A) If the person in unauthorised occupation of residential

accommodation challenges the eviction order passed by the estate

officer under sub-section (2) of section 3B in any court, he shall pay

damages for every month for the residential accommodation held by

him.

(4) Every order under this section shall be made by the estate officer

as expeditiously as possible and all endeavour shall be made by him

to issue the order within fifteen days of the date specified in the

notice.”

15. Section 8 is quoted below :-

“8. Powers of estate officers.—An estate officer shall, for the purpose

of holding any inquiry under this Act, have the same powers as are

vested in a civil court under the Code of Civil Procedure, 1908 (5 of

1908) when trying a suit in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and

examining him on oath;

(b) requiring the discovery and production of documents;

(c) any other matter which may be prescribed.”

16. The Estate Officer was empowered to hold an enquiry. He enjoyed

some of the powers vested in a Civil Court under the Code of Civil

Procedure. Thus, I do not find any procedural irregularity.

25

17. It is an admitted fact that the lease was terminated by a notice to quit

and vacate. After the period mentioned in the notice was over, the

petitioners became unauthorized occupants in respect of the premises in

question. The premises in question were always owned by the Calcutta Port

Trust, even at the time of entry of the petitioner No. 1. The breaches, which

were detected by the Estate Officer during inquiry and which also found

reflection in the order of the writ court, are findings of fact which this court

need not dwell upon. Moreover, no arguments were advanced, assailing

such factual findings. Both the Estate Officer and the Appeal Court have

relied upon such factual findings which have not been controverted in these

proceedings. Although an allegation was made that evidence was not

allowed to be led, both the Estate Officer and the Appeal Court have given

elaborate reasons thereby, justifying the decision of the Estate Officer.

18. Moreover, the Division Bench in APOT 40 of 2019 permitted further

inspection, and allowed a further opportunity of hearing before the Estate

Officer. The matter was taken up for hearing once again upon compliance

with the direction of the Division Bench in APOT 40 of 2019. Arguments

were advanced and parties were allowed to place their respective case laws.

The Estate Officer went through the documents which were available on

record, and passed the order. Certain issues with regard to unpaid dues,

unauthorized parting of the property and termination of the lease had

already been decided, upon hearing the parties. The Division Bench had

directed holding of a fresh joint inspection and fresh hearing on the said

report. The joint inspection report indicated that unauthorized construction

had been made. Each of the objections of the petitioners was negated by the

Estate Officer with reasons. It was found that most of the documents which

26

the petitioners sought production of before the Estate Officer, ought to have

been in the custody of the petitioners. They failed to produce the same.

Moreover, according to the Estate Officer, those documents were not

relevant for the proceeding. During the course of hearing, the petitioners did

not adduce evidence, be it documentary or oral. Reliance was placed by the

petitioners on the decision of the Apex Court in New India Assurance

Company Ltd. vs. Navil Wadia reported in (2008) 3 SCC 279. The Estate

Officer was not satisfied with the submissions of the petitioners. It was

specifically recorded as follows :-

“I am not satisfied with mere filing of applications by Shri Surelia

when he is not ready to produce any evidence on the issue of

unauthorised construction. It is true that the Hon'ble Division Bench

had directed this Forum to permit oral examination of the witnesses of

either of the parties, but when there is no effort to lead any evidence

(oral/documentary) on behalf of Shri Surelia there is little scope to go

ahead with any sort of oral examination. Instead of leading evidence

on the issue of unauthorised construction (as was the direction of the

Hon'ble Division Bench of the Calcutta High Court) Shri Surelia

instead chose to rake up different and distinct issues such as

applicability and jurisdictional validity of the P.P. Act of 1971,

applicability of the Limitation Act, 1963. claim of arbitrary

enhancement of rent etc even though there is no real "evidence" that

he wants to produce or lead before this Forum on the issue of

unauthorised construction. In my humble view, such raising of the

way new/fresh issues (whi ch have no bearing or connection

whatsoever with the unauthorised constructions) by and on behalf of

Shri Surelia are not in consonance with the direction of the Hon'ble

Division Bench of the Calcutta High Court. In due compliance to the

direction of the Hon'ble Division Bench, this Forum has tried to

explore all facets of natural justice and never denied any opportunity

to Shri Surelia during the course of the re-hearing. Shri Surelia

and/or his Ld Advocate has been heard at length on 18.06.2019 and

25.06.2019 and were allowed to file applications as and when they

desired. An opportunity to file written notes was also granted after

conclusion of the hearing on 25.06.2019 as an opportunity to Shri

Surelia to come back with any further evidence if it so chooses. The

opportunity was taken and written notes came to be filed by the Ld

Advocate of Shri Surelia on 28.06.2019 but again bereft of any

evidence whatsoever. Again, for the sake of natural justice I am not

inclined to consider the allegation of KoPT as regards “encroachment”

as mentioned in the fresh Joint Inspection report dated 31.05.2019

inasmuch as such an allegation had never been brought by KoPT

27

earlier. Be that as it may, this Forum is bound to conclude the re-

hearing in the manner as directed by the Hon'ble Division Bench. and

within the available time-frame, a lot of opportunities has been

granted to Shri Surelia to disprove the contention of KOPT

unauthorised construction but I must say that Shri as regards Surelia

has failed to disprove such allegations. As I have mentioned above,

Shri Surelia could not produce any sanctioned plan of the

construction and could not mention anything about the period of

construction. Coming to the nature of construction, a feeble attempt

has been made by Shri Surelia to portray the construction as

structure" whereas the ground realities are entirely "temporary

removal different. It reveals from the fresh joint inspection dated

31.05.2019, read with attached sketch map bearing no. 9860 -2-H

dated 31.05.2019, that the constructions are of the nature of R.C.C.

structures measuring 616.27 sqm and C.I.R structures measuring

306.65 sqm. It has been explained by KoPT in its comments dated

24.06.2019 that such huge R.C.C. (Reinforcement cement concrete)

and C.I.R. (corrugated iron shaded room) structures are ipso-facto

evidentiary of permanent construction. In my view, the nature of the

constructions suggest that they are intended to be used for a

prolonged period of time and the suggestion of Shri Surelia that they

are "temporary removal structures” is far from the truth. The very

photographs of the exterior/interior of the structure as taken on

31.05.2019 ( and submitted vide KoPT’s application dated 04.06.2018)

reveal that it is construction intended for long-term beneficial use and

I have no hesitation that it is neither a temporary nor a removable

structure in any sense. A temporary structure for storage of goods

implies basic shed with bamboo or other similar material which is the

subject matter of natural decay. The way, cement and concrete has

been used to build a huge structure implies that it is not intended for

mere temporary use but is intended for long term commercial use. In

view of all these, I am not at all agreeable to the suggestion of Shri

Surelia and consequently, I hereby re-affirm my earlier view that the

O.P. Company is definitely guilty of having carried out unauthorised

constructions without any approval of the Port Authority or the

Municipal Authority which is a clear violation of the Clause IV (a) of

the duly registered lease deed between the parties, by which the O.P.

Company had been debarred to erect any buildings, structures,

erections or other structural works on the demised premises without

the licence in writing of the lessor (і.e. KoPT)”

19. It was the specific finding of the Estate Officer that the allegation of

unauthorized construction stood proved. The order dated May 7, 2019

already contained allegations of several breaches which were proved. It was

the specific finding that the public premises was leased in favour of a rank

outsider, namely, Madhu Kant Surelia @ Madhu kanta Sharma.

28

Accordingly, the order was passed for eviction, and permission was granted

to the Port Trust, to prepare a statement of calculation for the damages to be

recovered from the unauthorized occupant. The following directions were

issued:-

“ACCORDINGLY, in terms of Sec. 5(1) of the P.P. Act, 1971, I hereby

grant 15 days time to O.P. Company and any person/s whoever may

be in occupation, to vacate the premises make it clear that all persons

whoever may be in occupation, including Madhu Kant Surelia alias

Madhu Surelia alias Madhu Kant Sharma, are liable to be evicted by

this order read with the order dated 07.05.2019 and the “Form -B"

issued thereunder and the Port Authority is entitled to claim damages

for unauthorized use and occupation of the property against O.P.

Company in accordance with Law up to the date of recovery of

possession of the same.

KoPT shall have the liberty to submit a statement comprising details

of its calculation of damages after the period already assessed vide

order dated 07.05.2019, indicating therein the details of the rate of

such charges, and the period of the damages (i.e. till the date of taking

over of possession) together with the basis on which such charges are

claimed against O.P., for appropriate consideration of this Forum for

the purpose of assessment of such damages as per Rule made under

the Act.

This order is passed on 05.07.2019 in due obedience to the Order

dated 23.05.2019 passed by the Hon ble Division Bench of the Hon'ble

High Court, Calcutta in GA No. 1160 of 2019, APOT No. 40 of 2019

with W.P. No. 172 of 2019. Needless to mention, therefore, this order

shall abide by the further directions, if any, of the Honble High Court

Calcutta or any other competent Court of Law.”

20. An appeal was preferred under Section 9 of the said Act.

21. The primary grounds of appeal before the learned Additional District

Judge were as follows :-

“The Ld. Court below/Estate Officer has erred in law and in the facts

of the instant case.

2. The Ld. Court below/Estate Officer has even after being directed by

the Hon'ble High Court at Calcutta by the order dated 23/05/2019

did not follow the principles of natural justice and has passed the

impugned judgment and order dated 0 5/07/2019 in proceeding No.

1543, 1543R, 1543D of 2017 vide order sheet No.78.

3. The Ld. Court below/Estate Officer has erred in law by not

appreciating and following the procedure as laid down in the public

premises (Eviction of Unauthorized Occupants) Act, 1971 and in a

most whimsical and arbitrary manner has passed the impugned

29

judgment and order dated 05/07/2019 in proceeding No.1543,

1543R, 1543D of 2017 vide order sheet No.78.

4. The Ld. Court below/Estate Officer has erred in law by not allowing

the appellants to adduce evidence and cross-examine the witnesses as

was directed by the order dated 23/05/2019 by the Hon'ble High

Court at Calcutta in G.A No.1160 of 2019, A.P.O.T No.39 of 2019 with

W.P NO.171 of 2019.

5. The Ld. Court below/Estate Officer erred in fact by not allowing to

examine the documents by way of oral evidence and by relying on

unilateral documents produced by the respondents, without having

any basis and nor proving the same by following the minimum

principles of evidence as has been envisaged in the Act of 1971

thereby passing the impugned judgment and order dated 05/07/2019

in proceeding No.1543, 1543R, 1543D of 2017 vide order sheet No.72.

6. The Ld. Court below/Estate Officer erred in holding that in respect

of agreements amongst the parties, the Act of 1971 applies whereas, it

is settled law that for such agreements executed prior to the

enactment of the Act of 1971, the Act will not apply and the same will

not have a retrospective effect, withou t there being expressed

provision in the Act applying the same and has thereby completely

erred in passing of the impugned judgment and order dated

05/07/2019 in proceeding No.1543, 1543R, 1543D of 2017 vide order

sheet No.72 and so on.”

22. Admittedly, the West Bengal Non-Agricultural Tenancy Act, 1949 and

Bengal Tenancy Act, 1885 do not have any application. Some of the

provisions of the Bengal Tenancy Act, 1885 are quoted below :-

“1. (1) This Act may be called the Short title. Bengal Tenancy

Act, 1885.

(2) It shall come into force on such date (hereinafter called

the commencement of this Act) as the Local Government,

with the previous sanction of the Governor- General in

Council, may, by, notification in the local official Gazette,

appoint in this behalf.

(3) It shall extend by its own operation to all the territories

for the time being under the administration of the

Lieutenant-Governor of West Bengal, except the town of

Calcutta, [any area constituted a Municipality under the

provisions of the Bengal Municipal Act, 1884, or part

thereof, and specified in a notification in this behalf by the

local Government,] the Division of Orissa, and the Schedule

Districts specified in the third Part of the First Schedule of

the Scheduled Districts Act, 1874; and the Local

Government may, with the previous sanction of the

Governor-General in Council, by notification in the local

official Gazette, extend the whole or any portion of this Act

to the Division of Orissa or any part thereof.

30

2. (1) The enactments specified in Schedule I hereto annexed

are repealed in the territories to which this Act extends by its

own operation.

(2) When this Act is extended to the Division of Orissa or

any part thereof, such of those enactments as are in force in

that Division or part, or, where a portion only of this Act is so

extended, so much of them as is inconsistent with that

portion, shall be repealed in that Division or part.

(3) Any enactment or document referring to any enactment

hereby repealed shall be constructed to refer to this Act or to

the corresponding portion thereof.

(4) The repeal of any enactment by this Act shall not revive

or existing at the commencement of this Act.”

23. The above provisions categorically indicate that the premises in

question fell outside the purview of the Bengal Tenancy Act, 1885. The West

Bengal Non-Agricultural Tenancy Act, 1949 also does not have any

application in this regard. The petitioner No. 1 was a lessee under the

statutory authority (Port Trust) initially, for a specific term and thereafter as

a monthly tenant on the basis of a lease agreement.

24. The learned Appeal Court rightly held that, no interference could be

called for in the procedure followed by the Estate Officer, inasmuch as, the

Estate Officer had specifically recorded that neither any oral nor

documentary evidence was ever sought to be adduced by the petitioners.

Opportunity had been given to the petitioners to make de novo submissions

on the basis of the final inspection report, but instead of producing any

evidence either demonstrating the errors in the joint inspection report or in

the earlier findings of the Estate Officer with regard to the allegation of

unauthorized occupation, non-payment of dues and illegal parting of the

property in favour of petitioner No. 2, the learned Advocate for the

petitioners sought directions upon the Port Trust for production of

documents which were supposed to be in their custody. Moreover, the

31

Estate Officer found that such documents were totally irrelevant for the

purpose. The factual findings of the Estate Officer were not interfered with

by the Appeal Court. It was rightly held that the order of the Division Bench

of the High Court did not direct full-fledged hearing from the date of

initiation of the proceeding. The order of the Division Bench only restricted

the issue to the allegation of unauthorized construction and allowed the

parties to advance further arguments and adduce evidence on such finding,

upon fresh inspection being made. The Estate Officer and the learned

Appeal Court both came to the finding that the records demonstrated that

allegation levelled by the Port Trust were genuine.

25. Thus, the breach of the terms and conditions of the monthly lease /

tenancy having been proved, the only issue which now calls for a decision is

whether the ratio in Suhas H. Pophale (supra) should be applied in this

case or not. Mr. Banerjee’s contention was that, as per the ratio of the said

decision, the entire proceeding was rendered illegal and void ab initio, and

the decision of the Estate Officer and the Appeal Court ought to be set aside

as the proceedings suffered from jurisdictional error. The deposit of Rs. 10

lakhs was a pre-condition to avail of the opportunity of a further inspection,

leading evidence and hearing. Acceptance of such deposit as per the

direction of the Division Bench, does not make the eviction proceeding

vulnerable on the ground of waiver.

26. The applicability of the 1971 Act was rightly decided by the learned

Appeal Court, inasmuch as, the notice of eviction to quit and vacate was

issued after the promulgation of the said Act. The said Act had already come

into force when the petitioners had become unauthorized occupants. Upon

expiry of the date mentioned in the notice to quit and vacate, the petitioners

32

were unauthorized occupants. Thus, the proceedings were initiated by the

Estate Officer. On the date of the proceeding the petitioners were governed

by the said Act.

27. Moreover, the decision of Suhas H. Pophale (supra) has been

overruled by the Hon’ble Apex Court in the decision of Life Insurance

Corporation of India (supra). Suhas H. Pophale (supra) laid down the law

that, any occupant who had come into possession of the premises prior to

September 16, 1958 would not be subject to eviction under the said Act, but

would be treated to be a tenant under the local Rent Control Act, and could

be evicted only under the local law. In Life Insurance Corporation of India

(supra), a contrary view was taken by a larger bench, comprising of three

Hon’ble Judges of the Apex Court. The Hon’ble Apex Court held that, the

decision in Suhas H. Pophale (supra) was bad law, being in direct conflict

with the decision of the Hon’ble Apex Court in Ashoka Marketing Limited

(supra). It was held that, in rendering the decision in Suhas H. Pophale

(supra), the Hon’ble two Judges bench had not only contradicted, but also

disregarded the decision of a bench of larger strength.

28. Thus, the contention of Mr. Banerjee that, the petitioner No. 1 having

come into possession in August 1945, could not be evicted under the said

Act, as the premises was not public premises on the date of entry into

possession, were contrary to the decision of the Hon’ble three Judges bench

in Life Insurance Corporation of India (supra).

29. Further contention that the petitioners were covered by the definition

of ‘tenant’ either under the Bengal Tenancy Act, 1885, or the Non -

Agricultural Tenancy Act, 1949 on the date of entry and later as per the

definition in the West Bengal Public Premises Tenancy Act, 1997 after the

33

repeal of the 1885 Act, 1949 Act and the 1956 Act, is totally misconceived.

In Ashoka Marketing Limited (supra), it was laid down that the said Act,

would have an overriding effect over the Rent Control Act. The provisions of

the said Act would have to be applied even to such public premises, which

were within the bounds of the Rent Control Act and no exceptions could be

created on the basis of the date of coming into force of the said Act.

30. Section 2(e) of the said Act defines public premises and Section 2(g) of

the said Act defines unauthorised occupation, which are as follows:-

“2(e) “public premises” means— (1) any premises belonging to,

or taken on lease or requisitioned by, or on behalf of the Central

Government, and includes any such premises which have been

placed by that Government, whether before or after the

commencement of the Public Premises (Eviction of

Unauthorised Occupants) Amendment Act, 1980 (61 of 1980)

under the control of the Secretariat of either Ho use of

Parliament for providing residential accommodation to any

member of the staff of that Secretariat;”

(2) any premises belonging to, or taken on lease by, or on behalf

of,—

(i) any company as defined in section 3 of the 3 [the Companies

Act, 2013 (18 of 2013)], in which not less than fifty-one per

cent. of the paid-up share capital is held by the Central

Government or any company which is a subsidiary (within the

meaning of that Act) of the first-mentioned company;

(ii) any corporation (not being a company as defined in section 3

of the [the Companies Act, 2013 (18 of 2013)], or a local

authority) established by or under a Central Act and owned or

controlled by the Central Government;

(iii) any company as defined in clause (20) of section 2 of the

Companies Act, 2013 (18 of 2013) in which not less than fifty-

one per cent. of the paid up capital is held partly by the Central

Government and partly by one or more State Governments and

includes a company which is a subsidiary (within the meaning

of that Act) of the first-mentioned company and which carries

on the business of public transport including metro railway.

(iiia) any University established or incorporated by any Central

Act,];

(iv) any Institute incorporated by the Institutes of Technology

Act, 1961 (59 of 1961);

(v) any Board of Trustees or any successor company constituted

under or referred to in the Major Port Trusts Act, 1963 (38 of

1963);]

34

(vi) the Bhakra Management Board constituted under section 79

of the Punjab Reorganisation Act, 1966 (31 of 1966), and that

Board as and when re-named as the Bhakra-Beas Management

Board under sub-section (6) of section 80 of that Act.

(vii) any State Government or the Government of any Union

territory situated in the National Capital Territory of Delhi or in

any other Union territory,

(viii) any Cantonment Board constituted under the

Cantonments Act, 1924 (2 of 1924); and]

(3) in relation to the [National Capital Territory of Delhi],—

(i) any premises belonging to the [Council as defined in clause

(9) of section 2 of the New Delhi Municipal Council Act, 1994

(44 of 1994) or Corporation or Corporations notified under sub-

section (1) of section 3 of the Delhi Municipal Corporation Act,

1957 (66 of 1957),] of Delhi, or any Municipal Committee or

notified area committee,

(ii) any premises belonging to the Delhi Development Authority,

whether such premises are in the possession of, or leased out

by, the said Authority; and

(iii) any premises belonging to, or taken on lease or

requisitioned by, or on behalf of any State Government or the

Government of any Union Territory,

(iv) any premises belonging to, or taken on lease by, or on behalf

of any Government company as defined in clause (45) of section

2 of the Companies Act, 2013 (18 of 2013).

(4) any premises of the enemy property as defined in clause (c)

of section 2 of the Enemy Property Act, 1968 (34 of 1968).

2(g) “unauthorised 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.”

31. Admittedly, the Port Trust was the owner of the property when the

petitioner No. 1 had entered into the premises. The monthly tenancy

continued. On account of the several breaches, the notice of termination

was issued. The petitioners continued to occupy the premises thereafter.

Such occupation was without any legal authority, as the lease/tenancy had

been terminated. The petitioner No. 1 also defaulted in payment of the lease

rent, raised unauthorized construction, alienate d the property and

35

amalgamated two adjacent plots. The breaches of the terms and conditions

of the lease, led to termination.

32. The said Act, envisages a special procedure for eviction of

unauthorized occupants from public premises. The special procedure seeks

to facilitate speedy recovery of possession of public premises by avoiding

technicalities and possibility of delay. The constitutional validity of the said

Act and the summary procedure for eviction has been upheld by an Hon’ble

five Judges Bench of the Apex Court in Kaiser-I-Hind Pvt. Ltd. & Ors vs

National Textile Corporation Ltd. & Ors reported in (2002) 8 SCC 182.

It was also held that the said Act would prevail over the state laws. The

relevant portions are quoted below:-

“40. Once the PP Eviction Act is enacted then the Bombay Rent

Act would not prevail qua the repugnancy between it and the PP

Eviction Act. To the extent of repugnancy, the State law would be

void under Article 254(1) and the law made by Parliament would

prevail. Admittedly, the duration of the Bombay Rent Act was

extended up to 31-3-1973 by Maharashtra Act 12 of 1970. The

result would be from the date of the coming into force of the PP

Eviction Act, the Bombay Rent Act qua the properties of the

Government and government companies would be inoperative. For

this purpose, language of Article 254(1) is unambiguous and

specifically provides that if any provision of law made by the

legislature of the State is repugnant to the provision of law made

by Parliament, then the law made by Parliament whether passed

before or after the law made by the legislature of the State, would

prevail. It also makes it clear that the law made by the legislature

of the State, to the extent of repugnancy, would be void.

41. Hence, once the PP Eviction Act came into force w.e.f. 23-8-

1971, the existing Bombay Rent Act would be void so far as it is

repugnant to the law made by Parliament as in view of Article

254(1), the law made by Parliament would prevail.

* * *

* * *

60. From the aforesaid observations, it is clear that when the

President gave assent to the Kerala Act in 1962, there was no

repugnancy to the Act made by Parliament or some existing law in

concurrent field. However, before grant of subsequent assent in

1967 to the Act extending the life of the Kerala Act by another two

years, the declaration of electricity as an essential article had been

36

made and was part of the Act. Thereafter, the Court observed that

the assent of the President should be deemed not merely to the

substitution of the words “five years” by the words “seven years” in

the Kerala Act but to the Act as a whole, that is the Act as

amended by the 1967 Act and any repugnancy between the Kerala

Act and the Electricity Act, 1910 and the Electricity (Supply) Act,

1948 should be deemed to have been cured by such assent.

61. From the aforesaid discussion, it would appear that (a) if there

is extension of the duration of the temporary Act, it cannot be said

that the new Act is enacted, the old Act continues and its life is

extended; (b) however, while extending the duration if there is any

substantial amendment in the statutory provisions as found

in Basantlal Banarsilal case [AIR 1955 Bom 35 : 55 Bom LR 614] it

cannot be said that it was mere extension of the existing law.

Additional contention

62. On behalf of the appellant, the following additional ground is

raised in the written submission.

“Article 254(1) incorporates the principle of supremacy of

parliamentary law — it applies to any provision of ‘a law made by

the legislature of a State’ which is repugnant to any parliamentary

law or (which is repugnant) to any existing law. Article 254(1)

opening part, does not expressly give supremacy to parliamentary

law over existing State/provincial law — i.e. law made in the

Provinces before the Constitution: hence Constitution (sic), the

Bombay Amending Act 43 of 1951 (the first law enacted by the

State Legislature after the Constitution) — even though a mere

extension law — must constitutionally be regarded as a law made

by the legislature of a State, for purposes of applicability of Article

254(1), which it could only be if it was a substantive law re-

enacting or incorporating the provisions of the 1947 Act, post-

Constitution. That it was reserved for the consideration of the

President and received his assent lends support to the fact that it

was not a mere extension but treated as a substantive enactment.”

63. The aforesaid submission requires to be rejected mainly

because Article 254(1) as quoted above clearly inter alia provides

that if any provision of a law made by the legislature of a State is

repugnant to any provision of a law made by Parliament then the

law made by Parliament, whether passed before or after the law

made by the legislature of such State, shall prevail. It also provides

that the law made by the legislature of the State shall, to the

extent of repugnancy, be void.

64. Further, in the present case, there is no question of

considering that the Bombay Rent Act was an existing law as

defined under Article 366(10). Explanation III to Article 372

specifically provides that nothing in the said article shall be

construed as continuing any temporary law in force beyond the

date fixed for its expiration or the date on which it would have

expired if the Constitution had not come into force. Therefore,

there is no question of applying the concept of “existing law” as

defined under Article 366 to a law of which duration is extended

37

from time to time. Article 254(1), inter alia, also provides that if

any provision of a law made by the legislature of a State is

repugnant to any provision of an existing law, the existing law

shall prevail and law made by the legislature of the State shall to

the extent of repugnancy be void but in the present case there is

no question of applying the said part of Article 254(1).

65. The result of the foregoing discussion is:

1. It cannot be held that summary speedier procedure prescribed

under the PP Eviction Act for evicting the tenants, sub-tenants or

unauthorised occupants, if it is reasonable and in conformity with

the principles of natural justice, would abridge the rights conferred

under the Constitution.

2. (a) Article 254(2) contemplates “reservation for consideration of

the President” and also “assent”. Reservation for consideration is

not an empty formality. Pointed attention of the President is

required to be drawn to the repugnancy between the earlier law

made by Parliament and the contemplated State legislation and

the reasons for having such law despite the enactment by

Parliament.

(b) The word “assent” used in clause (2) of Article 254 would in

context mean express agreement of mind to what is proposed by

the State.

(c) In case where it is not indicated that “assent” is qua a

particular law made by Parliament, then it is open to the Court to

call for the proposals made by the State for the consideration of

the President before obtaining assent.

3. Extending the duration of a temporary enactment does not

amount to enactment of a new law. However such extension may

require assent of the President in case of repugnancy.

WPs (Civil) Nos. 1056, 1081 of 1991 and 162 of 1992

* * *

* * *

68. These writ petitions are filed challenging the vires of certain

provisions of the PP Eviction Act. In view of the order passed

above, these writ petitions are dismissed.”

33. The Constitution Bench in Ashoka Marketing Limited (supra) ,

addressed the question as to whether a person who was inducted as a

tenant of certain premises, which became public premises for the purpose of

the said Act and whose tenancy had expired or had been terminated, could

be evicted from the premises as being person in unauthorized occupation of

the premises under the provisions of the said Act, or whether such person

could invoke the protection of the Delhi Rent Control Act, 1951. The issue in

38

a nutshell was, whether the provisions of the 1971 Act would override the

provisions of the State Rent Control Act in respect of premises which would

come within the purview of both the enactments. An interpretation of the

decision in Ashoka Marketing Limited (supra) was rendered in Life

Insurance Corporation of India (supra) as follows:-

“Interpretation in Ashoka Marketing Ltd.

43. In dealing with the above issue, the five-Judge Bench of

this Court observed that the Rent Control legislations fall within

the ambit of Entries 6, 7 and 13 of List III of the Seventh

Schedule to the Constitution. The Rent Control Act has been

enacted by Parliament in exercise of its legislative power under

Article 246(4) of the Constitution. On the other hand, the PP

Act, 1971 which deal with the eviction of unauthorised

occupants from the premises belonging to or taken on lease or

requisitioned by or on behalf of the Central Government would

fall within Entry 32 of List I, being law with respect to a property

of the Union. At the same time, it was stated that in relation to

the properties belonging to the various legal entities mentioned

in sub-sections (2) and (3) of Section 2(e) of the PP Act, 1971

would stand covered by Entries 6, 7 and 46 of List III.

44. Thus, both the statutes, namely, the Rent Control Act

and the PP Act, 1971 were enacted by the same legislature in

exercise of the legislative powers in respect of the matters

enumerated in the Concurrent List and the Union List,

respectively. The Court stated that in its opinion, the question

whether the provisions of the PP Act, 1971 override the

provisions of the Rent Control Act had to be considered in light

of the principles of statutory interpretation applicable to the

laws made by same legislature.

45. The Court proceeded to highlight such principle of

statutory interpretation observing: (Ashoka Mktg. case [Ashoka

Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 : (1992)

74 Comp Cas 482] , SCC p. 438, para 50)

“50. One such principle of statutory interpretation which is

applied is contained in the Latin maxim: leges posteriores

priores conterarias abrogant (later laws abrogate earlier contrary

laws). This principle is subject to the exception embodied in the

maxim: generalia specialibus non derogant (a general provision

does not derogate from a special one.) This means that where

the literal meaning of the general enactment covers a situation

for which specific provision is made by another enactment

contained in the earlier Act, it is presumed that the situation

was intended to continue to be dealt with by the specific

provision rather than the later general one (Bennion, Statutory

Interpretation, pp. 433-34).”

39

Domain of two statutes

46. It was observed that the Delhi Rent Control Act is an

earlier enactment, whereas the PP Act, 1971 is subsequently

enacted law and thus, it being the enactment later in point of

time, represents the last will of Parliament. The Court observed

that the PP Act, 1971 should, therefore, prevail over the Delhi

Rent Control Act unless it can be said that the PP Act, 1971 is a

general enactment, whereas the Rent Control Act is a special

enactment.

47. Explaining the operational status of the rent control

legislation and the PP Act, 1971, it was observed: (Ashoka Mktg.

case [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC

406 : (1992) 74 Comp Cas 482] , SCC pp. 439-40, para 55)

“55. The Rent Control Act makes a departure from the

general law regulating the relationship of landlord and tenant

contained in the Transfer of Property Act inasmuch as it makes

provision for determination of standard rent, it specifies the

grounds on which a landlord can seek the eviction of a tenant, it

prescribes the forum for adjudication of disputes between

landlords and tenants and the procedure which has to be

followed in such proceedings. The Rent Control Act can,

therefore, be said to be a special statute regulating the

relationship of landlord and tenant in the Union Territory of

Delhi.”

48. The PP Act, 1971 intends for speedy eviction, stated the

Constitution Bench: (Ashoka Mktg. case [Ashoka Mktg.

Ltd. v. Punjab National Bank, (1990) 4 SCC 406 : (1992) 74

Comp Cas 482] , SCC p. 440, para 55)

“55. … The Public Premises Act, 1971 makes provision for a

speedy machinery to secure eviction of unauthorised occupants

from public premises. As opposed to the general law which

provides for filing of a regular suit for recovery of possession of

property in a competent court and for trial of such a suit in

accordance with the procedure laid down in the Code of Civil

Procedure, the Public Premises Act, 1971 confers the power to

pass an order of eviction of an unauthorised occupant in a

public premises on a designated officer and prescribes the

procedure to be followed by the said officer before passing such

an order.”

49. It was thus clearly expressed that the PP Act, 1971 is a

special statute and that it will override the Rent Control Act:

(Ashoka Mktg. case [Ashoka Mktg. Ltd. v. Punjab National Bank,

(1990) 4 SCC 406 : (1992) 74 Comp Cas 482] , SCC p. 440, para

55)

“55. … Therefore, the Public Premises Act, 1971 is also a

special statute relating to eviction of unauthorised occupants

from public premises. In other words, both the enactments,

namely, the Rent Control Act and the Public Premises Act, 1971,

are special statutes in relation to the matters dealt with therein.

Since, the Public Premises Act, 1971 is a special statute and not

40

a general enactment the exception contained in the principle

that a subsequent general law cannot derogate from an earlier

special law cannot be invoked and in accordance with the

principle that the later laws abrogate earlier contrary laws, the

Public Premises Act, 1971 must prevail over the Rent Control

Act.”

34. The Hon’ble Apex Court discussed the policy and purpose behind the

special enactments and held that both the enactments would operate in

their respective realms. Relevant paragraphs are quoted below:-

“50. As both the enactments are “special enactments” in their

respective realms, the five-Judge Bench observed on the basis of

the principle stated in Ram Narain v. Simla Banking & Industrial

Co. Ltd. [Ram Narain v. Simla Banking & Industrial Co. Ltd.,

(1956) 2 SCC 75 : (1956) 26 Comp Cas 280 : AIR 1956 SC 614]

that when each enactment is a special Act, the ordinary

principle that a special law overrides a general law does not

afford any clear solution. In such circumstances, it was stated,

it would be desirable to determine the overriding effect of one or

the other of the relevant provisions in these two Acts, in a given

scenario, on much broader considerations of the purpose and

policy underlying the two statutes and the clear intendment

conveyed by the language of the relevant provisions therein.

51. After referring to several other decisions, the proposition

was stated thus: ( Ashoka Mktg. case [Ashoka Mktg.

Ltd. v. Punjab National Bank, (1990) 4 SCC 406 : (1992) 74

Comp Cas 482] , SCC p. 442, para 61)

“61. The principle which emerges from these decisions is that in

the case of inconsistency between the provisions of two

enactments, both of which can be regarded as special in nature,

the conflict has to be resolved by reference to the purpose and

policy underlying the two enactments and the clear intendment

conveyed by the language of the relevant provisions therein.”

52. It was stated that the consequence of giving overriding effect

to the provisions of the PP Act, 1971 over the Rent Control Act

would be that the buildings belonging to companies,

corporations and autonomous bodies referred to in Section 2(e)

of the PP Act, 1971 would be excluded from the ambit of the

Rent Control Act in the same manner as properties belonging to

the Central Government. It was further stated that the

Government while dealing with the citizens in resp ect of

property belonging to it would not act for its own purpose as a

private landlord but would act in public interest.

Legislative intent recognised

53.Ashoka Mktg. [Ashoka Mktg. Ltd. v. Punjab National Bank,

(1990) 4 SCC 406 : (1992) 74 Comp Cas 482] c onsidered the

object and purpose of the PP Act, 1971 and the overall

41

legislative intendment behind the enactment. It was held that

the object and purpose of the PP Act, 1971 would give it an

overriding effect over the provisions of the Rent Control Act,

even though, the relevant sections of both the PP Act, 1971 and

the Delhi Rent Control Act contained a non obstante clause. The

Court provided that the scope of the provisions of the Public

Premises Act cannot be whittled down on the basis of the

apprehension that the Corporations like nationalised banks or

the Life Insurance Corporation are trading Corporations

interested in earning profit. They cannot be precluded from

buying the properties in possession of the tenants at low price

and then vacating the tenants after terminating the tenancy and

thereafter selling the property at higher price.

54. Negating the contention that the provisions of the PP Act,

1971 if given overriding effect would be exploited by such

corporations to expand the business with a view to earn profit, it

was observed: (Ashoka Mktg. case [Ashoka Mktg. Ltd. v. Punjab

National Bank, (1990) 4 SCC 406 : (1992) 74 Comp Cas 482] ,

SCC p. 446, para 69)

“69. … The consequence of giving overriding effect to the

provisions of the Public Premises Act, 1971 is that premises

belonging to companies and statutory bodies referred to in

clauses (2) and (3) of Section 2(e) of the Public Premises Act,

1971 would be exempted from the provisions of the Rent Control

Act. The actions of the companies and statu tory bodies

mentioned in clauses (2) and (3) of Section 2(e) of the Public

Premises Act, 1971 while dealing with their properties under the

Public Premises Act, 1971 will, therefore, have to be judged by

the same standard.”

55. The Constitution Bench with above interpretational

philosophy and cogent reasons stated further: (Ashoka Mktg.

case [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC

406 : (1992) 74 Comp Cas 482] , SCC p. 446, para 70)

“70. … we are unable to accept the contention of the learned

counsel for the petitioners that the provisions contained in the

Public Premises Act, 1971 cannot be applied to premises which

fall within the ambit of the Rent Control Act. In our opinion, the

provisions of the Public Premises Act, 1971, to the extent they

cover premises falling within the ambit of the Rent Control Act,

override the provisions of the Rent Control Act and a person in

unauthorised occupation of public premises under Section 2(e)

of the Act cannot invoke the protection of the Rent Control Act.”

35. Moreover, the West Bengal Premises Tenancy Act, 1956 as also 1997,

exclude government undertakings or enterprises or statutory bodies from

the purview of the said Act. Thus, had the 1971 Act not been promulgated,

42

the remedy for the Port Trust would have been to proceed under the general

law, i.e., under the Transfer of Property Act, seeking eviction.

36. The reasons underlying the exclusion of property belonging to the

government from the ambit of the Rent Control Act w ere discussed in

Ashoka Marketing (supra). The said Act sub-served public interest by

making available for public use, those premises belonging to the government

or public authority. Paragraph 62 to 70 of Ashoka Marketing are quoted

below:-

“62. The Statement of Objects and Reasons for the enactment of

the Rent Control Act, indicates that it has been enacted with a

view:

(a) to devise a suitable machinery for expeditious adjudication of

proceedings between landlords and tenants;

(b) to provide for the determination of the standard rent payable

by tenants of the various categories of premises which should be

fair to the tenants, and at the same time, provide incentive for

keeping the existing houses in good repairs, and for further

investments in house construction; and

(c) to give tenants a larger measure of protection against

eviction.

This indicates that the object underlying the Rent Control Act is

to make provision for expeditious adjudication of disputes

between landlords and tenants, determination of standard rent

payable by tenants and giving protection against eviction to

tenants. The premises belonging to the government are excluded

from the ambit of the Rent Control Act which means that the Act

has been enacted primarily to regulate the private relationship

between landlords and tenants with a view to confer certain

benefits on the tenants and at the same time to balance the

interest of the landlords by providing for expeditious

adjudication of proceedings between landlords and tenant.

63. As mentioned earlier, the Public Premises Act has been

enacted with a view to provide for eviction of unauthorised

occupants from public premises. In the Statement of Objects

and Reasons for this enactment reference has been made to the

judicial decisions whereby the 1958 Act was declared as

unconstitutional and it has been mentioned:

“The court decisions, referred to above, have created serious

difficulties for the government inasmuch as the proceedings

taken by the various Estate Officers appointed under the Act

either for the eviction of persons who are in unauthorised

occupation of public premises or for the recovery of rent or

43

damages from such persons stand null and void.... 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 of public premises keeping in view at

the same time the necessity of complying with the provisions of

the Constitution and the judicial pronouncements, referred to

above.”

This shows that the Public Premises Act has been enacted to

deal with the mischief of rampant unauthorised occupation of

public premises by providing a speedy machinery for the

eviction of persons in unauthorised occupation. In order to

secure this object the said Act prescribes the time period for the

various steps which are required to be taken for securing

eviction of the persons in unauthorised occupation. The object

underlying the enactment is to safeguard public interest by

making available for public use premises belonging to Central

Government, companies in which the Central Gover nment has

substantial interest, corporations owned or controlled by the

Central Government and certain autonomous bodies and to

prevent misuse of such premises.

64. It would thus appear that, while the Rent Control Act is

intended to deal with the general relationship of landlords and

tenants in respect of premises other than government premises,

the Public Premises Act is intended to deal with speedy recovery

of possession of premises of public nature, i.e. property

belonging to the Central Government, or companies in which the

Central Government has substantial interest or corporations

owned or controlled by the Central Government and certain

corporations, institutions, autonomous bodies and local

authorities. The effect of giving overriding effect to the provisions

of the Public Premises Act over the Rent Control Act, would be

that buildings belonging to companies, corporations and

autonomous bodies referred to in Section 2(e) of the Public

Premises Act would be excluded from the ambit of the Rent

Control Act in the same manner as properties belonging to the

Central Government. The reason underlying the exclusion of

property belonging to the Government from the ambit of the

Rent Control Act, is that the Government while dealing with the

citizens in respect of property belonging to it would not act for

its own purpose as a private landlord but would act in public

interest. What can be said with regard to government in relation

to property belonging to it can also be said with regard to

companies, corporations and other statutory bodies mentioned

in Section 2(e) of the Public Premises Act. In our opinion,

therefore, keeping in view the object and purpose underlying

both the enactments viz. the Rent Control Act and the Public

Premises Act, the provisions of the Public Premises Act have to

44

be construed as overriding the provisions contained in the Rent

Control Act.

65. As regards the non-obstante clauses contained in Sections

14 and 22 and the provisions contained in Sections 50 and 54

of the Rent Control Act, it may be stated that Parliament was

aware of these provisions when it enacted the Public Premises

Act containing a specific provision in Section 15 barring

jurisdiction of all courts (which would include the Rent

Controller under the Rent Control Act). This indicates that

Parliament intended that the provisions of the Public Premises

Act would prevail over the provisions of the Rent Control Act in

spite of the abovementioned provisions contained in the Rent

Control Act.

66. It has been urged by the learned counsel for the petitioner

that there is no conflict between the provisions of the Rent

Control Act and the Public Premises Act and that both the

provisions can be given effect to without one overriding the

other. In this regard, it has been pointed out that since no

provision has been made in the Public Premises Act for the

termination of the lease, the provisions of the Rent Control Act

can be held applicable up to the stage of termination of the

lease, and thereafter, proceedings can be initiated for eviction

under the provisions of the Public Premises Act. In support of

this submission, reliance has been placed on Dhanpal Chettiar

case [(1979) 4 SCC 214 : (1980) 1 SCR 334] , wherein it has

been held that in view of the special provisions contained in the

State Rent Control Acts, it is no longer necessary to issue a

notice under Sections 106 of the Transfer of Property Act to

terminate the tenancy because in spite of the said notice the

tenant is entitled to continue in occupation by virtue of the

provisions of the said Acts. In the said case, it has been further

laid down that the relationship between the landlord and tenant

continues till the passing of the order of eviction in accordance

with the provisions of the Rent Act, and therefore, for the

eviction of the tenant in accordance with the law, an order of the

competent court under the Rent Control Act is necessary. This

would mean that in order to evict a person who is continuing in

occupation after the expiration or termination of his contractual

tenancy in accordance with law, two proceedings will have to be

initiated. First, there will be proceedings under Rent Control Act

before the Rent Controller followed by appeal before the Rent

Control Tribunal and revision before the High Court. After these

proceedings have ended they would be followed by proceedings

under the Public Premises Act, before the Estate Officer and the

Appellate Authority. In other words, persons in occupation of

public premises would receive greater protection than tenants in

premises owned by private persons. It could not be the intention

of Parliament to confer this dual benefit on persons in

occupation of public premises.

67. It has also been urged that in Section 22 of the Rent Control

Act, special provision has been made for recovery of possession

45

of premises belonging to a company or other body corporate or

any local authority or any public institution and that premises

belonging to companies, corporations and autonomous bodies

mentioned in clauses (2) and (3) of Section 2(e) of the Public

Premises Act would be covered by the said provision and that in

view of this special provision it is not necessary to have a further

provision in the Public Premises Act for the recovery of

possession belonging to those bodies, and therefore, the

provisions of the Public Premises Act should be confined in their

application to premises other than premises covered by the Rent

Control Act. Section 22 of the Rent Control Act provides as

under:

“22. Where the landlord in respect of any premises is a ny

company or other body corporate or any local authority or any

public institution and the premises are required for the use of

employees of such landlord or in the case of a public institution

for the furtherance of its activities, then, notwithstanding

anything contained in Section 14 or any other law, the

Controller may, on an application made to him in this behalf by

such landlord, place the landlord in vacant possession of such

premises by evicting the tenant and every other person who may

be in occupation thereof, if the Controller is satisfied—

(a) that the tenant to whom such premises were let for use as a

residence at a time when he was in the service or employment of

the landlord, has ceased to be in such service or employment; or

(b) that the tenant has acted in contravention of the terms,

express or implied, under which he was authorised to occupy

such premises; or

(c) that any other person is in unauthorised occupation of such

premises; or

(d) that the premises are required bona fide by the publ ic

institution for the furtherance of its activities.

Explanation.— For the purpose of this section, “public

institution” includes any educational institutional, library,

hospital and charitable dispensary but does not include any

such institution set up by any private trust.”

68. The said special provision shows that, it enables recovery of

possession of premises of which the landlord is a company or

other body corporate or any local authority or any public

institution in certain circumstances viz. if the premises are

required for the use of the employees of such landlord. In the

case of public institutions possession can also be obtained

under this provision if the premises are required for the

furtherance of its activities. In other words, recovery of

possession is permissible under this provision only in certain

circumstances and for certain purposes. In spite of this

provision Parliament has considered it necessary to extend the

Public Premises Act to premises belonging to companies,

corporations and statutory bodies mentioned in clauses (2) and

(3) of Section 2(e) by widening the definition of the expression

46

“public premises” in Section 2(e) of the Public Premises Act. The

scope and ambit of the aforesaid power conferred under the

Public Premises Act cannot be restricted by reference to the

provision contained in Section 22 of the Rent Control Act.

69. It has been urged by the learned counsel for the petitioners

that many of the corporations referred to in Section 2(e)(2)(ii) of

the Public Premises Act, like the nationalised banks and the Life

Insurance Corporation, are trading corporations and under the

provisions of the enactments whereby they are constituted these

corporations are required to carry on their business with a view

to earn profit, and that there is nothing to preclude these

corporations to buy property in possession of tenants at a low

price and after buying such property evict the tenants after

terminating the tenancy and thereafter sell the said property at

a much higher value because the value of property in possession

of tenants is much less as compared to vacant property. We are

unable to cut down the scope of the provisions of the Public

Premises Act on the basis of such an apprehension because as

pointed out by this Court in Dwarkadas Marfatia and

Sons v. Board of Trustees of the Port of Bombay [(1989) 3 SCC

293] : (SCC p. 306, para 27)

“...every activity of a public authority especially in the

background of the assumption on which such authority enjoys

immunity from the rigours of the Rent Act, must be informed by

reason and guided by the public interest. All exercise of

discretion or power by public authorities as the respondent, in

respect of dealing with tenants in respect of which they have

been treated separately and distinctly from other landlords on

the assumption that they would not act as private landlords,

must be judged by that standard.”

These observations were made in the context of the provisions of

the Bombay Rents, Hotel and Lodging Houses R ates (Control)

Act, 1947 whereby exemption from the provisions of the Act has

been granted to premises belonging to the Bombay Port Trust.

The consequence of giving overriding effect to the provisions of

the Public Premises Act is that premises belonging to companies

and statutory bodies referred to in clauses (2) and (3) of Section

2(e) of the Public Premises Act would be exempted from the

provisions of the Rent Control Act. The actions of the companies

and statutory bodies mentioned in clauses (2) and (3) of Section

2(e) of the Public Premises Act while dealing with their

properties under the Public Premises Act will, therefore, have to

be judged by the same standard.

70. For the reasons aforesaid, we are unable to accept the

contention of the learned counsel for the petitioners that the

provisions contained in the Public Premises Act cannot be

applied to premises which fall within the ambit of the Rent

Control Act. In our opinion, the provisions of the Public

Premises Act, to the extent they cover premises falling within the

ambit of the Rent Control Act, override the provisions of the

Rent Control Act and a person in unauthorised occupation of

47

public premises under Section 2(e) of the Act cannot invoke the

protection of the Rent Control Act.”

37. In Jain Ink (supra), the Hon’ble Apex Court held that, what was

germane for the purpose of interpretation of Section 2(g) was, whether or not

the person concerned was in occupation of the public premises when the

said Act was passed. In Jain Ink (supra) also, the appellant had continued

to possess the property after the said Act had come into force and had

accepted LIC as the landlord. It was held that, as the appellant therein was

issued a notice under Section 106 of the Transfer of Property Act, the

appellant/tenant fell within the ambit of the definition of Section 2(g) of the

said Act and had become an unauthorised occupant after having been

served a notice to quit and vacate. The claim for protection under the Rent

Control Act was denied. It was held as follows:

“5. It would be seen that before a person could be said to be in an

unauthorised occupation, the Act required the following conditions:

(1) that the occupant had entered into possession before or after the

commencement of the Act,

(2) that he had entered into such possession otherwise than under

and in pursuance of any allotment, lease or grant.

That Act, therefore, lays special stress on only one point, namely, the

entry into possession. Thus, if the entry into possession had taken

place prior to the passing of the Act, then obviously the occupant

concerned would not be an unauthorised occupant. What made the

occupancy unauthorised was his entry into possession at a particular

point of time. It was in construing these provisions that this Court

held that if the appellants in that case were in possession before the

sale of the property to the government, their entry into possession

could not be said to be unauthorised. These observations, however,

would have absolutely no application to the i nstant case where

Section 2(g) defines unauthorised occupation thus:

“ ‘Unauthorised 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.”

To begin with, it is manifest that Section 2(g) does not use the word

“possession” or the words “entry into possession” at any point of time

48

at all. The section merely requires occupation of any public premises.

Entry into possession connotes one single terminus viz. the point of

time when a person enters into possession or occupies the property

whereas occupation is a continuous process which starts right from

the point of time when the person enters into possession or occupies

the premises and continues until he leaves the premises. What is

germane for the purpose of interpretation of Section 2(g) is whether or

not the person concerned was in occupation of the public premises

when the Premises Act was passed. In the instant case, it is not

disputed that the appellant continued to occupy the property even

after the Premises Act came into force and in fact accepted the LIC as

his landlord. In these circumstances, therefore, the case of the

appellant squarely falls within the ambit of the definition of

‘unauthorised occupation’ as contemplated by Section 2(g). There is

yet another aspect of the matter which distinguishes the present case

from the language employed in the Punjab Act. Section 2( g) is an

inclusive definition and consists of two separate limbs— (1) where a

person is in occupation in relation to any public premises without

authority for such occupation, and (2) even if the possession or

occupation of the tenant continues after the lease is determined. In

the instant case, the lease was doubtless determined by the landlord

by a notice under Section 106 of the Transfer of Property Act whose

validity for purposes of deciding the question of law has not been

questioned by the learned Counsel for the appellant. Therefore, there

can be no doubt that the appellant was in unauthorised occupation of

the premises once the lease was determined. The second limb

mentioned in Section 2(g) is conspicuously absent from the provisions

of the Punjab Act. For these reasons, we overrule the first contention

raised by the counsel for the appellant and we hold, agreeing with the

High Court, that the appellant was undoubtedly in unauthorised

occupation of the premises.

6. The second contention put forward by Mr Rao was that in view of

the provisions of the Rent Act which override the provisions of the

Premises Act, Section 14 of the Rent Act completely bars recovery of

possession of any premises except in accordance with the procedure

laid down in the Rent Act. It was contended by Mr Rao that although

the Premises Act was passed in 1971, it has been given retrospective

effect from September 16, 1958 and, therefore, should be construed

as a law having been passed in 1958 and as the Rent Act was passed

in 1959 it overrides the Premises Act. We are, however, unable to

agree with this argument. In the first place, the Premises Act was

passed in 1971 and came into force on August 23, 1971, that is to

say, long after the Rent Act was passed in 1959. The mere fact that by

virtue of a fiction the Premises Act was given retrospective effect from

1958 will not alter the date when the Premises Act was actually

passed, that is to say, August 23, 1971. In these circumstances,

therefore, the Premises Act being subsequent to the Rent Act would

naturally prevail over and override the provisions of the Rent Act. It

was further contended by Mr Rao that the Rent Act being a special law

as compared to the Premises Act, it will override the Premises Act

without going into the question as to which of the two Acts were prior

49

in point of time. In support of his contention the counsel relied on a

decision of this Court in Sarwan Singh v. Kasturi Lal [(1977) 1 SCC

750, 760 : (1977) 2 SCR 421] where this Court observed as follows:

(SCC p. 760, para 20)

“When two or more laws operate in the same field and each contains a

nonobstante clause stating that its provisions will override those of

any other law, stimulating and incisive problems of interpretation

arise. Since statutory interpretation has no conventional protocol,

cases of such conflict have to be decided in reference to the object and

purpose of the laws under consideration.” (emphasis supplied)

7. It is true that in both the Acts there is a non-obstante clause but

the question to be determined is whether the nonobstante clauses

operate in the same field or have two different spheres though there

may be some amount of overlapping. The observations cited above

clearly lay down that in such cases the conflict should be resolved by

reference to the object and purpose of the laws in consideration.

In Ram Narain v. Simla Banking & Industrial Co. Ltd. [AIR 1956 SC

614 : 1956 SCR 603 : (1956) 26 Com Cas 280] , this Court made the

following observations:

“It is, therefore, desirable to determine the overriding effect of one or

the other of the relevant provisions in these two Acts, in a given case,

on much broader considerations of the purpose and policy underlying

the two Acts and the clear intendment conveyed by the language of

the relevant provisions therein.”

8. In the light of the principles laid down in the aforesaid cases we

would test the position in the present case. So far as the Premises Act

is concerned it operates in a very limited field in that it applies only to

a limited nature of premises belonging only to particular sets of

individuals, a particular set of juristic persons like companies,

corporations or the Central Government. Thus, the Premises Act has a

very limited application. Secondly, the object of the Premises Act is to

provide for eviction of unauthorised occupants from public premises

by a summary procedure so that the premises may be available to the

authorities mentioned in the Premises Act which constitute a class by

themselves. That the authorities to which the Premises Act applies are

a class by themselves is not disputed by the counsel for the appellant

as even in the case of Northern India Caterers Pvt. Ltd. v. State of

Punjab [AIR 1967 SC 1581 : (1967) 3 SCR 399] such authorities were

held to form a class and, therefore, immune from challenge on Article

14 of the Constitution. Similarly, the summary procedure prescribed

by the Premises Act is also not violative of Article 14 as held by this

Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of

Greater Bombay [(1974) 2 SCC 402 : (1975) 1 SCR 1] .

9. Thus, it would appear that both the scope and the object of the

Premises Act is quite different from that of the Rent Act. The Rent Act

is of much wider application than the Premises Act inasmuch as it

applies to all private premises which do not fall within the limited

exceptions indicated in Section 2 of the Premises Act. The object of the

Rent Act is to afford special protection to all the tenants or private

landlords or landlords who are neither a corporation nor government

or corporate bodies. It would be seen that even under the Rent Act, by

50

virtue of an amendment a special category has been carved out under

Section 25-B which provides for special procedure for eviction to

landlords who require premises for their personal necessity. Thus,

Section 25-B itself becomes a special law within the Rent Act. On a

parity of reasoning, therefore, there can be no doubt that the Premises

Act as compared to the Rent Act, which has a very broad spectrum, is

a special Act and overrides the provisions of the Rent Act.

38. Upon enactment of the 1971 Act, the Port Trust could proceed against

the petitioners under the said Act. The said Act was enacted to deal with the

mischief of rampant unauthorized occupation of public premises, by

providing a speedy machinery for eviction of such persons. The petitioner

No. 1/ company was in possession when the said Act was promulgated, with

retrospective effect from September 16, 1958.

39. The Hon’ble Apex Court in Kaikhosrou (chick) Kavasji Framji

(supra) observed as follows:-

“49. At this stage we consider apposite to take note of the

Constitution Bench decision of this Court wherein this Court after

examining and upholding the constitutional validity of the PP Act in

Kaiser-I-Hind (P) Ltd. v. National Textile Corporation. (Maharashtra

North) Ltd. reiterated the view taken by this Court in an earlier

decision of Northern India Caterers (P) Ltd. v. State of Punjab that the

PP Act does not create any new right of eviction but it only creates a

remedy for a right which already exists under the general law. In other

words, it was held that it only provides a remedy which is speedier

than the remedy of a suit under the general law.”

40. The relevant paragraphs of Gyan Mahendra Swarup v. Life

Insurance Corporation of India reported in 2018 SCC Online Cal 5803

are quoted below:-

“36. Hence, the Transfer of Property Act cannot be said to provide

any special protection to the occupier vis-à-vis the 1971 Act, akin to

that provided by the 1997 Actor for that matter any other State

Rent Control Act.

37. Moreover, a combined reading of Section 3(a) (iii) of the 1997

Act, which exempts premises owned by the Government

undertakings or enterprises from the operation of the said Act, and

51

the definition of "public premises" for the purpose of the 1971 Act,

which includes such premises within the fold of the said Act, point

unerringly to the conclusion that there is no conflict between the

1997 Act and the 1971 Act. The 1971 Act is thus a special statute

governing the public premises, which are under discussi on at

present, thereby automatically excluding the applicability of the

Transfer of Property Act, 1882 to such premises.

38. Under the aforesaid circumstances, the Estate Officer could not

be said to have acted without jurisdiction in taking up the

proceeding under Section 5 of the 1971 Act for adjudication upon

holding the same to be maintainable.

39. That apart, in the present case, the notice to quit dated May 2,

2017 sufficiently satisfied the pre-requisite envisaged under Section

2(g) of the 1971 Act as well as Section 111, alternatively Section

106, of the Transfer of Property Act insofar as determination of the

previous jural relationship between the parties was concerned.

Hence, the Estate Officer had jurisdiction, in any event, to entertain

and decide the proceeding under Section 5 of the 1971 Act, since

the petitioner had already been rendered to be in 'unauthorized

occupation' as contemplated under Sections 2(g) and 4 of the 1971

Act by the notice to quit.”

41. The issue under reference in Life Insurance Corporation of India

Limited (supra) are quoted below:-

“2. The referral order dated 17-3-2015 [LIC v. Vita (P) Ltd., 2015 SCC

OnLine SC 1995] , aforementioned, reads as under: ( LIC

case [LIC v. Vita (P) Ltd., 2015 SCC OnLine SC 1995] , SCC OnLine SC

para 1)

“1. In these petitions, in fact, the ratio decided by the two-Judge

Bench of this Court in Suhas H. Pophale v. Oriental Insurance Co.

Ltd. [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2014) 4 SCC

657 : (2014) 2 SCC (Civ) 685] , is contrary to the decision of the

Constitution Bench rendered in Ashoka Mktg. Ltd. v. Punjab National

Bank [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406 :

(1992) 74 Comp Cas 482] . Therefore, these matters need to be heard

by a three-Judge Bench.”

3. It is accordingly that the present batch of cases came to be posted

before this Court, which await answer to the issue referred to.

Issue under reference

4. The principal question that arises for determination in this batch of

matters is whether the provisions of the PP Act, 1971 would prevail

over the respective State Rent Control legislations, in relation to

premises let out prior to the commencement of the said Act, as against

the premises let out after its enforcement but before their acquisition

or transfer to the Government or any statutory corporation, by which

52

the character of such premises stood transformed into “public

premises” within the meaning of the Act.”

42. The issue which fell for decision in Life Insurance Corporation of

India (supra) was whether a valid distinction could be made between

tenants who were in occupation of the premises prior to the enforcement of

the said Act, and those who entered into occupation subsequent thereto, but

before such premises were taken over by the government or a government

corporation as the case may be, and whether in such cases the operation of

the said Act was intended to be only prospective in nature.

43. In Suhas H. Pophale (supra), the Division Bench carved out two

categories of persons in occupation of premises which became public

premises, for the purpose of applying to them the provisions of the said Act.

It was held that, for premises which became public premises, the relevant

date would be September 16, 1958 or on whichever later date the concerned

premises had become public premises, that is, the date on which it was

acquired by any public body or nationalised bank or company, insurance

companies etc. All persons/entities falling within the definition of tenant

who were occupying the premises prior to September 16, 1958, would not

come within the ambit of the said Act, and those persons/entities could not

be said to be in unauthorised occupation as per its definition under the said

Act. Thus, according to the Division bench in Suhas H. Pophale (supra), it

would not be open to such company or corporations to issue notices and

proceed against those occupants under the said Act. Any such proceeding

would be void and illegal. It was further held in Life Insurance

Corporation of India (supra) that, as a consequence of the overriding effect

of the provisions of the said Act over the Rent Control Act, buildings

53

belonging to companies, corporations, central government and other

autonomous bodies referred to under Section 2(e) of the said Act, would be

excluded from the ambit of the Rent Control Act in the same manner as

properties belonging to the Central Government. The conclusions of the

large bench are quoted below:-

“Conclusions

77. In view of the foregoing discussion, reasons and analysis, the

following position of law emerges:

77.1. In view of the law laid down by the Constitution Bench in

Ashoka Mktg.¹ and the three-Judge Bench decision in Jain Ink, the

view taken in Suhas H. Popha le² which is a two-Judge Bench

decision, is palpably incorrect and unjustified. Suhas H. Pophale²

cannot and does not hold the field.

77.2. Since, the propositions laid down in Suhas H. Pophale runs

contrary to the decisions laid down by the Benches of larger strength

in Ashoka Mktg. and Jain Ink², the same is bad in law.

77.3. The ratio decidendi by the Bench of larger strength is binding on

the Bench of the smaller strength, irrespective of the fact whether the

judgment by the Bench of the larger strength is a priori or posterior,

in point of time.

77.4. A Bench of the smaller strength cannot mark a departure from

the decision of the Bench of larger strength, so as to vary the ratio of

the Bench of larger strength, in guise of explaining the decision of the

larger Bench.

77.5. It was not permissible for the two-Judge Bench in Suhas H.

Pophale to interpret the statutes and lay down propositions in conflict

with what was laid down by the Constitution Bench in Ashoka Mktg.2

and by a three-Judge Bench in Jain Ink², when the set of material

facts in the background of the controversy dealt with, were similar,

77.6. In laying down the propositions incongruent to and contrary to

the law laid down in Ashoka Mktg.2, the Bench in Suhas H. Pophale

disregarded the principle of stare decisis and violated the well-settled

law of precedent.

78. As a sequitur, this Court reiterates the propositions of law laid in

Ashoka Mktg.2

78.1. Both categories of statutes, namely, the PP Act, 1971 on one

hand, and the Bombay Rent Control Act, 1947, the Maharashtra Rent

Control Act, 1999, the Delhi Rent Control Act, 1958 and similar Rent

Control legislations, on the other hand, are special laws. Therefore, in

order to determine as to which Act will apply in case of conflict,

reference has to be made to the purpose and policy underlying the two

enactments and the clear intendment conveyed by the language of the

relevant provisions therein. Keeping in view the object and purpose

underlying both the enactments, that is, the PP Act, 1971 and th e

Rent Control Acts, the provisions of the PP Act, 1971 shall override

the provisions in the Rent Control legislations.

54

78.2. The PP Act, 1971 and the State Rent Control Acts are special

enactments in themselves. Rule generalia specialibus non derogant

will not apply. Having regard to the purpose, policy and legislative

intent of the PP Act, 1971, the same would prevail over the State Rent

Control Acts in respect of eviction of "unauthorised occupants" of

"public premises" as defined in Section 2(g) of the Act.

78.3. The provisions of the PP Act, 1971, to the extent they cover the

premises falling within the ambit of the Rent Control Act, override the

provisions of the Rent Control Act.

78.4. A person in unauthorised occupation of "Public Premises" under

Section 2(e) of the Act cannot invoke the protection of the Rent Control

Act.

78.5. In cases where the tenanted premises are claimed to be

governed by the State Rent Control Act and the same have also

become "Public Premises" within the meaning in Section 2(e) of the PP

Act, 1971, for their unauthorised occupation, the PP Act, 1971 will

have application. 78.6. The statutory machinery envisaged under the

PP Act, 1971, could be activated for recovery of possession of public

premises by any government or public e ntity mentioned in the

definition. 78.7. The PP Act, 1971 will apply to the tenancies which

may have been created and in existence either before coming into

force of the Act or which may have been created subsequent to coming

into the force of the Act.

78.8. Two conditions must be satisfied for the applicability as above.

Firstly, the tenanted premises must fall within the purview of

definition under Section 2(e) of the PP Act, 1971. Secondly, the

premises should have been in unauthorised occupation.

78.9. Termination of tenancy of "Public Premises" by issuing notice

under Section 106 of the Transfer of Property Act, 1882 is one of the

modes which would render the occupation of the tenant unauthorised,

post the date specified in such notice. This would hold true in respect

of tenancies created before or after coming into force of the PP Act,

1971.

78.10. Invocation and applicability of the provisions of the PP Act,

1971 is not dependent upon the aspect of possession. What is

material is the occupation of the premises which has become

unauthorised occupation. The occupation is a continuous concept.

78.11. The propositions enunciated in Suhas H. Pophale, as noticed in

para 19 of this judgment, do not, in our considered view, state the

correct position of law. The observations made therein, with great

respect, are not in consonance with the settled legal principles and

runs contrary to the principle of stare decisis and stand overruled to

that extent.

79. The reference is answered accordingly.”

44. Under such circumstances, reliance of the petitioners on the decision

of Suhas H. Pophale (supra), was totally misconceived.

55

45. The order impugned is upheld and the revisional application is

dismissed.

46. Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the relevant parties upon fulfilment of requisite formalities.

(Shampa Sarkar, J.)