Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3910 OF 2013
BOARD OF TRUSTEES FOR THE PORT OF
KOLKATA AND ORS. …APPELLANTS
VERSUS
APL (INDIA) PVT. LTD. AND ORS. …RESPONDENTS
WITH
CIVIL APPEAL NO. 3912 OF 2013
CIVIL APPEAL NO. 3911 OF 2013
J U D G M E N T
S. ABDUL NAZEER, J.
1 . These appeals, arising out of a reference to the Full Bench of
the Calcutta High Court, raise an important question on the
meaning, interpretation and applicability of Section 6 of the Public
Signature Not Verified
Digitally signed by
MANISH SETHI
Date: 2019.02.21
17:07:01 IST
Reason:
Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short
'the PP Act'). The issue revolves around the right of the appellants
1
(hereinafter referred to as the "Port Trust") to seize and dispose of
goods and materials lying on the "public premises" which goods
may not necessarily belong to the erstwhile tenant/licensee of such
"public premises" under the PP Act.
. The brief facts of the case necessary for disposal of these
2
appeals are as under:
3 . A piece of land altogether measuring 17238.15 sq. mtr.
situated at Transport Depot Road, P.S. Taratola, Kolkata, (for short
'the premises') was allotted to M/s. Shalimar Tar Products Ltd.
(hereinafter referred to as 'the STPL') by way of Deed of Assignment
dated 06.12.1963. The STPL stopped the payment of rent to the
Port Trust since 1973. The lease in respect of the premises granted
in favour of the STPL expired by afflux of time in the year 1981.
Therefore, the Port Trust issued a notice dated 31.08.2000 to the
STPL to quit the premises and deliver its possession. As the STPL
failed to deliver back possession of the premises, the Port Trust
initiated the proceedings for eviction, as well as for recovery of
2
arrears of rent and dues on account of unauthorized occupation
before the Estate Officer under the provisions of the PP Act.
4 . The Estate Officer issued a notice dated 24.01.2006 under
Sections 4 and 7 of the PP Act to the STPL. All the concerned
persons in occupation of the premises were also notified by affixing
the aforesaid notices on the outer wall of the premises. The STPL
duly appeared before the Estate Officer.
5 . The Estate Officer, upon hearing the Port Trust and the STPL,
passed an order of eviction on 09.07.2007, and also directed the
STPL to pay damages for unauthorized use and occupation of the
premises amounting to Rs.2,46,64,411/, calculated upto
30.06.2005, excluding the interest thereon. The Port Trust applied
to the Estate Officer for execution of the said order and
appointment of an authorized officer for recovery of the possession
of the premises under the provisions of the PP Act. On
19.02.2008, the Estate Officer passed an order appointing Smt.
Subarna Thakur, OfficerinCharge (Estate) of the Port Trust as an
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authorized officer for recovery of possession in terms of the order of
eviction dated 09.07.2007.
6 . The authorized officer took possession of the premises and
the containers stacked thereon. Immediately upon eviction and
taking possession, the Port Trust deployed security guards for
protection of the premises. Several containers remained at the
premises at the time of taking possession.
7 . After taking possession, the authorized officer wrote a letter
dated 10.03.2008 informing the Estate Officer that the land has
been recovered from the STPL on 08.03.2008 along with the
containers stacked on the premises. The Estate Officer passed an
order directing the authorized officer to take inventory of the
materials/articles/goods lying on the premises in the presence of a
competent officer of the Port Trust and also directed the issue of
notice under Section 6 of the PP Act for disposal of the properties
left by the unauthorized occupant and also to publish a copy of the
said notice in the newspaper as per the provisions of the PP Act
and the rules made thereunder for disposal of the property lying on
4
the premises. In the said proceedings, the respondent No.6
appeared on 10.03.2008 and filed an application seeking
permission to remove the huge number of containers from the
premises. The Estate Officer rejected the application, which has
not been questioned by the sixth respondent.
8 . In terms of the aforesaid order, a notice under subsection (1)
of Section 6 of the PP Act was issued by the Estate Officer to
remove or cause to be removed or disposed of by public auction
any property remaining on the premises. A copy of the said notice
was also issued through a local daily newspaper. The
respondents/writ petitioners herein preferred a writ petition, inter
alia , seeking permission to remove the containers lying on the
premises by contending that they could not be restrained from
removing the containers till realization of dues from the STPL. It
was further contended that the Port Trust had wrongly withheld
the containers belonging to them and that they had no privity of
contract with the Port Trust and, therefore, not liable to pay any
rent to the Port Trust.
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9 . The Port Trust opposed the writ petition. The learned Single
Judge of the Calcutta High Court, while holding that there are
different views taken by two different Division Benches of the
Calcutta High Court on the scope and ambit of Section 59 of the
Major Port Trusts Act, 1963, (for short 'the MPT Act'), referred the
matter to the Chief Justice for constitution of a larger Bench to
determine the following question:
"Whether Section 59 of the Major Port
Trusts Act, 1963, read with Sections 5
and 6 of the 1971 Act confers on KPT a
right of lien on, or the right to detain,
seize and/or sell the goods of third
parties, lying on the public premises, for
realization of arrears of rent due from
tenants, irrespective of whether the
owner of those goods had any privity of
contract with KPT".
10 . The Full Bench of the High Court held that the observations
of the Division Bench in The Board of Trustees for the Port of
v. . reported in 2008 (1)
Kolkata Canoro Resources Ltd. & Ors
CHN 941, (for short 'Canoro Resources' ) on Sections 59 and 61 of
the MPT Act were at best obiter dicta . While holding so, the Full
Bench opined that there was no conflict between the judgments of
6
the Division Bench in Board of Trustees for the Port of Calcutta
v. Indian Rayon Corpn. Ltd. & Ors ., reported in 1987 (28) ELT
334 (Cal.), (for short ' ') and . The
Indian Rayon Canoro Resources
observations of the Full Bench are as under:
"With due respect to the observation of
the Division Bench, we are not in
agreement with the same. In our opinion,
Sections 59 and 61 of MPTA cannot be
read into proceedings under PPA, 1971.
There can be no general lien under
Section 59 of MPTA which would cover
the goods of a party having no privity of
contract with KPT, which are sought to be
sold in execution proceeding under PPA,
1971. The Division Bench in fact notices
that KPT had in execution obtained
possession of the land from its tenant,
and seized some timbers and casing pipes
which were lying on the lease hold lands
at the time of taking delivery of
possession. The owner had imported the
goods. They were kept on open ground
for the purpose of sending the same to
further destination. Clearly, therefore,
KPT had no claim against the goods on
account of rates and rents for services
rendered under Section 42 of the MPTA.
In such circumstances, the provisions of
Section 59 and 61 of MPTA were not at all
relevant for deciding the controversy
between the parties. The issue decided
by the Division Bench did not arise on
the pleadings. Nor was the point argued
7
by any of the parties. The three points
argued by the parties, 1) that KPT should
have been made a party, 2) under Section
6 of the PPA, 1971 KPT was entitled to
sell the goods, even of a stranger, found
in/on premises under unauthorized
occupation and 3) that alternative remedy
was available. Therefore, in our opinion,
findings in paragraph 18 are at best only
obiter dicta. In our opinion, the first part
of para 18 of the judgment does not deal
with the issue raised before the Court.
Mr. Anindya Mitra had not even raised
the issue about the power of KPT under
Sections 59 or 61. No grievance had also
been made while Mr. Jayanta Kumar
Mitra, learned counsel for the petitioners
submitted that the KPT had wrongly
invoked Sections 59 and 61 of MPTA.
The whole issue was limited only to the
powers of KPT under the PPA, 1971. In
our opinion, it was a territory travelled
into by the Division Bench, without being
invited therein, either in the pleadings or
the submissions of the learned counsel.
These observations, therefore, cannot be
treated as a precedent on interpretation
of Sections 59 and 61 of MPTA. In our
opinion, the issue with regard to the
ambit of Section 59 and 61 has been
correctly decided by the Division Bench
in Indian Rayon Corporation Ltd.
(supra). This judgment is in consonance
with the law laid down by the Supreme
Court in M/s. Sriyanesh Knitters
(supra).
For the reasons stated above, we are
unable to accept the submission of Mr.
8
Anindya Mitra that there is no conflict
between the earlier. Division Bench
Judgment in Indian Rayon Corporation
Ltd. (supra) and the later Division Bench
judgment in Canoro Resources Ltd.
(supra) . The view taken in first part of
paragraph 18 of the judgment in
Canoro
is contrary to the
Resources Ltd. (supra)
law laid down by the Supreme Court and
therefore, cannot be said to be good law."
11 . After answering the reference as above, the Full Bench
directed placing of the writ petition before the learned Single Judge
for decision on merits. The Port Trust has challenged the legality
and correctness of the aforesaid judgment of Full Bench in these
appeals.
12 . Appearing for the appellants, Shri Parag P. Tripathi, learned
senior counsel, submits that the premises in question is a "public
premises" as defined under the PP Act. There is no bar for the Port
Trust to initiate action for eviction of unauthorized occupant from
the premises or to dispose of goods and materials lying in public
premises which may not necessarily belonging to the erstwhile
tenant/licensee of the said premises. The Port Trust has initiated
action for the eviction of the unauthorized occupant under the PP
Act. The Port Trust has not initiated any action under the MPT
9
Act. Section 6 of the PP Act must be read and interpreted on its
own. It is not dependent upon Sections 59 and 61 of the MPT Act.
It is argued that the judgment of the Division Bench of the High
Court in Indian Rayon has no application to the facts of the
present case. It is unnecessary for the Court to conjointly read
Sections 59 and 61 of the MPT Act and Sections 5 and 6 of the PP
Act for the purpose of evicting an unauthorized occupant. It is
further argued that the Full Bench ought to have held that the
proceedings initiated by the Port Trust also covers the
respondents/writ petitioners and that they are bound by the order
of the Estate Officer passed under Sections 5 and 6 of the PP Act.
. On the other hand, Shri Chira Ranjan Addy, learned counsel
13
appearing for the respondents, submits that there is no privity of
contract between the Port Trust and the respondents/writ
petitioners and that the Port Trust does not acquire any right in
respect of the goods of the third parties. Hence, the observations
made in Canoro Resources cannot be justified. The
respondents/writ petitioners being third parties, their goods can
never be the subjectmatter of lien having regard to the express
10
language contained in Section 61 of the MPT Act. It is further
argued that the writ petition is pending before the learned Single
Judge of the High Court and that all contentions in relation to the
application Section 6 of the PP Act can be considered by the High
Court. The Full Bench has considered all the aspects of the case
and has clarified the legal position. This Court in Board of
Trustees of the Port of Bombay and Ors. v. Sriyanesh Knitters ,
(1999) 7 SCC 359, has considered the scope of different provisions
of the MPT Act and has held that these provisions do not authorize
the Port Trust to have general lien over goods belonging to the writ
petitioners.
14 . We have carefully considered the submissions of the learned
counsel made at the Bar and perused the materials placed on
record.
. It is not in dispute that the premises is a "public premises" as
15
defined under the PP Act. The Port Trust initiated action for
eviction of the STPL, an unauthorized occupant of the premises
under the provisions of the PP Act. The STPL has contested the
proceedings before the Estate Officer. On 09.07.2007, Estate
11
Officer passed an order of eviction and also directed the STPL to
pay the damages for unauthorized use and occupation of the
premises. Notice was issued under Section 5(1) of the PP Act for
evicting the STPL. It is clear from the records that all the persons
concerned with the premises were also notified in accordance with
law. An order was passed on 19.02.2008 appointing an authorized
officer for recovery of possession in terms of the aforesaid order of
eviction. The authorized officer took possession of the premises
and the containers lying on the premises. The authorized officer
was permitted to take inventory of the materials/articles goods
lying on the premises and was also directed to issue notice under
Section 6 of the PP Act for disposal of the properties left by the
unauthorized occupant. A notice was also published under Section
6(1) of the Act in the local newspaper to remove or cause to be
removed or dispose of by public auction any property remaining
within the premises. At this stage, the respondents/writ petitioners
have filed the writ petition before the High Court for a direction to
the Port Trust to permit them to remove the containers belonging
to them which were lying on the premises.
12
16 . The PP Act provides for eviction of occupants from public
premises and for certain incidental matters. This Act was enacted
to provide for a speedy machinery for the eviction of unauthorized
occupants of the public premises. It is clear from the statement of
object and reasons of the PP Act that 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.
17 . Section 2(g) defines the expression 'unauthorised occupation'
in relation to public premises as under:
( g) "unauthorized 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".
13
18 . Section 5 lays down the procedure for eviction of
unauthorized occupants. Section 5A was inserted by Act 61 of
1980, which has come into force with effect from 20.12.1980.
This Section provides for removal of unauthorized construction on
or against or in front of any public premises. The relevant
provisions for the purpose of this case are subsection (1)(b) and
subsection (3) of Section 5A, which are as under:
"5A. Power to remove unauthorized
constructions, etc. (1) No person
shall
(a) …….
(b) display or spread any goods.
(c) …….
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) …….
(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
other animal has been brought or kept,
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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."
19 . Section 6 provides for disposal of the property left on the
public premises by unauthorized occupants. The relevant sub
Sections for the purpose of this case are subsections (1A) and (2)
of Section 6, which are as under:
"6. Disposal of property left on pub
lic premises by unauthorized occu
pants.
(1) …..
(1A) Where any goods, materials, cattle
or other animal have been removed
from any public premises under
section 5A, the estate officer may, after
giving fourteen days’ notice to the
persons owing such goods, materials,
cattle or other animal and after
publishing the notice in at least one
newspaper having circulation in the
locality, dispose of, by public auction,
such goods, materials, cattle or other
animal.
15
(1B) …..
(2) Where any property is sold under
subsection (1), the sale proceeds
thereof shall, after deducting the
expenses of the sale and the amount, if
any, due to the Central Government or
the [statutory authority] on account of
arrears of rent or damages or costs, be
paid to such person or persons as may
appears to the estate officer to be
entitled to the same:
Provided that where the estate officer
is unable to decide as to the person or
persons to whom the balance of the
amount is payable or as to the
apportionment of the same, he may
refer such dispute to the civil court of
competent jurisdiction and the
decision of the court thereon shall be
final".
20 . It is clear from the above provisions that any person in
occupation of the public premises without authority for such
occupation is an unauthorized occupant. The expression 'spread
on any public premises', contained in subsection (1)(b) of Section
5A in the context also means 'lying on any premises'. Subsection
(3) of Section 5A authorizes the Estate Officer to remove any goods
lying on any public premises after an order of eviction has been
made under Section 5 of the Act. It is immaterial whether the said
16
goods belong to the erstwhile tenant/licensee or to any other party.
Subsection (1A) of Section 6 authorises the Estate Officer to
dispose of such goods/materials, etc. after giving fourteen days'
notice to the persons owning such goods and other procedure
prescribed therein. It is not necessary that the persons owning the
goods lying on the premises should be erstwhile tenants/licensees.
It is also not necessary that there should be a privity of contract
between the Port Trust and the third party to whom such goods
and materials belong for disposing of the property by the Estate
Officer under Section 6.
. In , the Division Bench was dealing exclusively
21 Indian Rayon
with lien under the MPT Act. It has not considered eviction of
unauthorized tenants under Section 6 of the PP Act. This judgment
is in conformity with the judgment of this Court in
M/s. Sriyanesh
Knitters (supra).
22 . In Canoro Resources the Division Bench was considering the
matter where an eviction order had been passed by the Estate
Officer under the PP Act. In the execution of the said order, the
17
Estate Officer obtained possession of the land from the tenant and
seized the timber and casing pipes which were lying on the
leasehold land. The owner of these goods, challenged the order of
the Estate Officer in a writ petition by contending that there was no
privity of contract between him and the Port Trust. In this
background, the Division Bench held that a conjoint reading of
Sections 59 and 61 of the MPT Act visavis Sections 5 and 6 of the
PP Act make it clear that if any goods are found to be lying on the
land of the Port Trust, and for such land any rent is due or
payable, the Port Trust has not only the lien over the goods, but
also the right to sell those goods so as to appropriate the sale
proceedings towards the rental dues.
23 . As noticed above, the proceeding initiated in Canoro
Resources was under the PP Act. Therefore, it was not necessary
for the Division Bench to read Sections 59 and 61 of the MPT Act
into the proceeding initiated under the PP Act. The Full Bench, in
our view, was justified in holding that those observations were, at
best, obiter dicta . The Full Bench was also justified in holding that
there is no conflict between the two judgments of the Division
18
Bench in Indian Rayon and Canoro Resources .
24. In the instant case, the contention urged on behalf of the Port
Trust is that even if the goods belonging to the third parties are
found lying on the premises after an order of eviction passed under
Section 5, it was entitled to sell the goods and deduct from the sale
proceeds any amount due to the Port Trust on account of arrears of
rent or damages, etc and that the balance of the sale proceeds
shall be paid to such person or persons, as may appear to the
Estate Officer, to be entitled for the same. We are in complete
agreement with this submission made on behalf of the Port Trust.
We are of the view that Section 6 of the PP Act has been enacted
with obvious purpose of enabling statutory authorities to take all
consequential steps after receiving possession of public premises
and for recovery of dues, etc. The said provision ought not to be
interpreted in a way which defeats the very purpose of its
enactment. Section 6 of the PP Act must be read independent of,
and not dependant on, Sections 59 and 61 of the MPT Act. As
noticed above, Section 6 of the PP Act applies, inter alia , to the
persons who keep their goods in the public premises whether they
19
are tenants/licensees, subtenants or any other parties. The Estate
Officer, under Section 6 of the PP Act, is entitled to sell the goods
even of a stranger, found in/on the premises under unauthorized
occupation.
. The Full Bench of the High Court had already directed the
25
writ petition to be placed before the learned Single Judge for
decision on merits. We request the learned Single Judge of the
High Court to decide the writ petition expeditiously, preferably
within a period of six months from the date of receipt of a copy of
this Order, keeping in mind the observations made in this
Judgment.
26 . The Civil Appeals are disposed of in the above terms. There
will be no order as to costs.
…………………………………J.
(A.K. SIKRI)
…………………………………J.
(ASHOK BHUSHAN)
…………………………………J.
(S. ABDUL NAZEER)
New Delhi;
February 21, 2019.
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