Amal Krishna Das vs Board of Trustees for The Port of Calcutta and Others

Pranab Kumar Chattopadhyay, J.—The petitioner herein initiated another round of legal battle against the Board of Trustees for the Port of Calcutta by challenging the impugned order dated June 17, 2005 passed by the said Board of Trustees for the Port of Calcutta pursuant to the earlier order dated 28th April, 2004 passed by this Hon''ble court in the earlier writ petition filed by the petitioner herein being C. O. No. 16158 (W) of 1992. It has been urged on behalf of the petitioner that the impugned order dated June 17, 2005 passed by the Board of Trustees for the Port of Calcutta is liable to be set aside and/or dismissed as the said order was passed by the respondent Port Trust authorities before disposal of the review application filed by the petitioner for reviewing the earlier order of this Court passed on 28th April, 2004 on the earlier writ petition filed by the petitioner herein being C. O. No. 16158 (W) of 1992. It has also been submitted on behalf of the petitioner that the aforesaid impugned order dated June 17, 2005 had been passed by the respondent authorities without following the mandate given in the judgment dated 28th April, 2004 passed earlier by this court while finally deciding the writ petition being CO. No. 16158 (W) of 1992.

Mr. Saktinath Mukherjee, learned Senior Counsel representing the petitioner submits that there are errors apparent on the face of the record in the order of the Hon''ble Justice Pradipta Ray (as His Lordship then was) passed on April 28, 2004 in the aforesaid petition being C. O. No. 16158 (W) of 1992 and therefore, an application for reviewing the said order was filed before this court which was numbered as R.V.W. 1817 of 2004. From the records it appears that the said review application was filed on 8th June, 2004 but the same has not yet been listed for hearing before the appropriate Bench of this Hon''ble court. Mr. Mukherjee submits that in view of pendency of the aforesaid review application, the Board of Trustees ought to have stayed the proceeding and not to have passed the impugned order.

Mr. Mukherjee further submits that there is no scope to come to the conclusion that the land in question is in commercial zone and there is also no scope under the regulations issued by the respondents themselves to convert an industrial land into a commercial land. The learned Advocate of the petitioner also submitted that the classification of land under 1992 Schedule is only applicable in respect of vacant land and not otherwise. Mr. Mukherjee, learned Senior Counsel representing the petitioners submits that there cannot be any forfeiture of tenancy after payment of rent till the current period. Mr. Mukherjee further submits that the respondents herein have received the rent and issued documentary evidence in acknowledgment of the acceptance thereof till September, 2005 i.e. after institution of this writ petition.

It has also been submitted by the learned counsel of the petitioner that upon accepting rent on the basis that the land in question is situated in the industrial zone at least till September. 2005, the respondent authorities herein cannot take a different stand and levy rent at the commercial rate as mentioned in the impugned order dated 17th June, 2005. Mr. Mukherjee relied upon the following decisions in support of the aforesaid contentions:

1) (1987) 1 CHN 116 (DB) [M/s. Bungo Steel Furniture (Private) Ltd. vs. Pulin Chandra Daw] (Paras 2, 4, 6 & 7]

2) AIR 1940 Patna 478 (DB) (Shiva Prasad Singh vs. Smt. Mandira Kumari Debi) (Pages 478 01 and 479 CI]

Mr. Mukherjee, learned Senior Counsel representing the petitioner specifically urged before this court that the respondent authorities did not disclose any reason for demanding rent at commercial rate in respect of the premises in question. Mr. Mukherjee also submits that nondisclosure of the reasons for demanding the aforesaid rent at the commercial rate even after acceptance of the same at the industrial rate and issuance of documents showing acceptance of the same till September. 2005 is totally against the rule of law. The learned Counsel of the petitioners referred to and relied upon the following decision of the Supreme Court in this regard :

Mahabir Auto Stores and others Vs. Indian Oil Corporation and others, [Paras 12, 14, 16, 18, 19 & 20]

It has been submitted on behalf of the petitioner that as the petitioner had all along paid rent on the basis that the land in question is situated in the industrial zone, there cannot be any valid reason for making any payment in respect of the said land treating the same in the commercial zone. It has been specifically submitted on behalf of the petitioner that there is no unauthorised sub-letting at the premises in question and according to the petitioner, sub-letting to the State Bank of India cannot be said to be unauthorised.

Mr. Kapoor, learned Senior Counsel representing the respondents-Port Trust authorities, however, submits that the writ petitioner herein had committed various breaches of the terms and conditions of the lease executed with the petitioner, namely, unauthorised encroachments of the land of the Calcutta Port Trust authorities and making constructions on the said encroached area apart from wrongful sub-letting and various other defaults. Mr. Kapoor further submits that for the aforesaid breaches, the lease was not renewed and the respondents-Port Trust authorities by the letter dated 23rd April, 1992 intimated the petitioner regarding his liability to pay charges for the illegal occupation on license basis in accordance with the statutory prescribed schedule of rates made and published under the provisions of Major Port Trust Act. 1953.

On receipt of the said letter dated 23rd April, 1992, the petitioner filed a writ petition before this Hon''ble court being C.O. No. 16158 (W) of 1992. On the aforesaid writ petition an interim order was passed on 23rd September. 1994 to the effect that the said petitioner could continue to make payment at the old rate without prejudice to the rights and contentions of the parties. Ultimately, the aforesaid writ petition was finally disposed of by Pradipta Pay, J. (as His Lordship then was) on 28th April, 2004 with the following directions:

The writ petitioner will provisionally pay all arrears of rent/licence fee at the rate of Rs. 243/- per 100 Sq. Mtr. per month and service charges and other charges, if any, as prescribed in the Schedule of Rent published on March 31, 1988 for the period from December 16, 1991 to December 15, 2001 by 30th June, 2004.

If the writ petitioner pays and clears all arrears as directed and within the period as prescribed hereinabove the Board of Trustees or any other Competent Authority of the Port Trust will consider and decide expeditiously whether the petitioner''s tease of the disputed land should have been renewed from December 16, 1991 for 10 years on the basis of the renewal clause. The petitioner will be given an opportunity of hearing at the time of the said consideration.

If the Board of Trustees or the Competent Authority decides that the lease should have been renewed, the rent and other charges at the rates prescribed under the Schedule published on March 31, 1988 would be realised from the writ petitioner for the period from December 16, 1991 to December 15, 2001.

If the Board of Trustees or the Competent Authority decides that the lease should not have been renewed, the writ petitioner would be liable to pay licence fee/rent at the rate of Rs. 243/-per 100 Sq. Mtr. per month and service and other charge if any, prescribed under the Schedule published on March 31, 1988 for the period from December 16, 1991 to May 20, 1992 and thereafter at the rate prescribed under different Schedules notified from time to time upto December 15, 2001 on the basis that the disputed leased land of the petitioner was situated in industrial zone.

5 The disputed land of the writ petitioner would be treated as developed land situated in industrial zone upto December 15, 2001. Thereafter, Port Trust Authorities are at liberty to levy rent/licence fee on the basis that the disputed land was/is situated in commercial zone from December 16, 2001.

No direction is being issued for the period after December 15, 2001 inasmuch as the said period is not covered by the present writ petition.

Undisputedly, no appeal was preferred from the aforesaid order passed on 28th April, 2004 and therefore, the said order has become final and binding upon the parties.

Pursuant to the aforesaid order dated 28th April, 2004, the Board of Trustees for the Port of Calcutta held a meeting upon notice to the petitioner. It is admitted by the respondents that at the time of hearing of this matter before the said Board of Trustees, the learned Advocate representing the petitioner submitted that a review application had been filed before this Hon''ble Court for reviewing the said order dated 28th April, 2004. However, it has been urged on behalf of the respondents that no copy of the said review application was produced at the time of hearing before the said Board of Trustees and furthermore, no further particulars including the date on which the said review application was filed before this court was disclosed by the said learned Advocate of the petitioner.

Mr. Kapoor, learned Senior Counsel representing the Board of Trustees submits that in order to frustrate the attempts of the petitioner to delay the adjudication of the issues by the Board pursuant to the directions of this Hon''ble. Court, the said prayer made on behalf of the petitioner for adjournment of the hearing was not allowed as during the pendency of the review application, this Hon''ble court did not pass any order staying the aforesaid hearing by the Board. The Board of Trustees for the Port of Calcutta therefore, upon hearing the submissions of the respective parties and considering the written notes of arguments submitted on behalf of the petitioner passed a reasoned order on 17th June, 2005. The relevant extracts from the said order are quoted hereunder:

The Trustees also noted that the petitioner had committed various breaches by way of encroachment on KoPT land and unauthorised construction of structures on the encroached area during the initial period of 10 years of the lease commenced from 16-12-1981. Besides, they also unauthorisedly subleased/sublet a portion of the constructed building on the leasehold land in favour of State Bank of India. For these reasons, the lease in favour of the petitioner was not renewed w.e.f. 16-12-1991. The Trustees further noted that the unauthorised subleasing/subletting in favour of State Bank of India is still subsisting. The land policy guideline issued by the Central Government as well as the existing schedule of rent for KoPTs land and buildings do not have any provision for regularisation of such unauthorised subleasing/ subletting.

On the basis of the above judgment passed by the Hon''ble High Court, Calcutta, on 28-04-2004, upon perusal of the written submission of the petitioner as well as considering the submission of the authorised representative of petitioner during the course of personal hearing held on 18.5.2005 and performance of the party during continuance of the lease and on collective application of mind, the Board of Trustees for the Port of Kolkata decided to consider the occupation of the petitioner on the concerned land of 100 sq. mtrs. at Haldia on licence basis for a period of 10yrs. w.e.f. 16-12-1991 at the following rates:

Period

Rate

Remarks

From 16-12-1991 to 20-05-1992.

@ Rs. 243/- per 100 sq. mtrs. per month plus service charges @ Rs. 6/- per 100 sq. mtrs. per month i.e. Rs. 2490/- per month.

As per schedule of Rent for land and buildings of KoPT at Haldia-of 1988.

From 21-05-1992 to 01-12-1999.

@ Rs. 502/- per 100 sq. mtrs. per month i.e. Rs. 5020/- per month:

As per Schedule of Rent for land and buildings of KoPT at Haldia of 1992.

From 02-12 1999 to 15-12-2001.

@ Rs. 1266.50/- per 100 sq. mtrs. per month i.e. Rs. 12,665/-per month with 5% escalation in monthly rent after every one year w.e.f. 2-12-1999.

As per Schedule of Rent for land and buildings of KoPT at Haldia-of 1999.

The petitioner again challenged the validity and/or legality of the aforesaid order dated 17th June, 2005 passed by the respondents Board of Trustees for the Port of Calcutta in the present writ petition. The petitioner has urged the following issues in the present writ petition for adjudication by this Hon''ble Court:

a) That the order dated 17th June, 2005 has been passed contrary to the mandate given in the judgment dated 28th April, 2004.

b) That a review application had been filed against the order dated 28th April, 2004, which had not been noted by the Board of Trustees.

c) That the Schedules of Rates published under the said Act had no application to the petitioner.

The petitioner herein has specifically mentioned in the present writ petition that the impugned order dated 17th June, 2005 has been passed by the respondents Board of Trustees for the Port of Calcutta in clear violation of the directions issued by this court and. specifically mentioned in the earlier judgment dated 28th April, 2004 passed by Pradipta Ray, J. as according to the petitioner, the Board of Trustees refused to demand the rent and other charges at the rate prescribed under the Schedule published on 31st March, 1988 from the writ petitioner for the period December 16, 1991 to December 15, 2001. In the earlier judgment dated 28th April, 2004, passed in C.O. No. 16158 (W) of 1992 Pradipta Ray, J. was pleased to give various directions including the direction mentioned herein below:

If the Board of Trustees or the Competent Authority decides that the lease should have been renewed, the rent -and other charges at the rates prescribed under the Schedule published on March 31, 1988 would be realised from the writ petitioner for the period from December 16, 1991 to December 15, 2001.

Referring to the aforesaid direction, learned Advocate of the petitioner submits that the respondent Board of Trustees for the Port of Calcutta by the order dated 17th June, 2005 illegally raised demand from the petitioner for the period 21-05-1992 to 15th December. 1999 as per schedule of Rent for land and buildings of KoPT at Haldia of 1992 and for the period 02-12-1999 to 15-12-2001 as per schedule of Rent tor land and buildings of KoPT at Haldia of 1999. In ray view, the aforesaid argument has been advanced on the basis of wrong factual premise. In terms of the earlier direction passed by this Hon''ble Court on 28th April, 2004, the rent and other charges at the rate prescribed under the Schedule published on 31st March, 1988 would be applicable if the Board of Trustees or the competent authority decides that the lease of the petitioner should have been renewed.

In the present case, the lease in favour of the petitioner was not renewed w.e.f. 16-12-1991 by the Board of Trustees for the Port of Calcutta and the same has been specifically mentioned in the impugned order dated 17th June, 2005. The Board of Trustees for the Port of Calcutta decided to consider the occupation of the petitioner on the concerned land at Haldia on licence basis only for a period of 10 years w.e.f. 16-12-1991 to 15-12-2001 and the licence fees have been charged as per schedule of rent applicable at the relevant point of time. In the aforesaid circumstances, it cannot be said that the Board of Trustees for the Port of Calcutta passed the impugned order dated 17th June, 2005 in violation of any specific direction passed earlier by this court and mentioned in the Judgment dated 28th April, 2004.

Mr. Kapoor, learned Senior Counsel representing the respondent Board of Trustees for the Port of Calcutta submits that the Schedules of rates published in 1992 and 1999 are statutorily prescribed and mandatory schedules, which chronologically supplanted one and other and also were notified to replace the preceding schedules including that of 1988. It is noteworthy that the writ petitioner did not challenge the schedules of Rates as notified on 21st May, 1992 in its earlier writ petition and this was the express finding of Pradipta Ray, J. in the order dated 28th April, 2004. The relevant extract from the: said judgment dated 28th April, 2004 is quoted hereunder:

The writ petitioner, in fact, has not challenged the Schedule of Rent as notified on May 21, 1992.

As a matter of fact, Pradipta Ray, J. in the aforesaid earlier judgment dated 28th April, 2004 has specifically held as hereunder:

Thus it is not possible to hold that the revision of Schedule of rent/ licence fee on March 31, 1988 and on May 21, 1992 was without any basis, arbitrary or unreasonable.

Furthermore, no ground has also been taken in the present writ petition challenging the legality and/or validity or vires of the promulgation of the aforesaid two schedules of 1992 and 1999 and therefore, the said question cannot be decided in the present writ petition in absence of specific challenge. For aforementioned reasons, it cannot be said that the Schedules of Rates of rent for land and buildings of KoPT at Haldia of 1992 and 1999 are invalid and/or inoperative.

Since the respondent Board of Trustees for the Port of Calcutta refused to renew the lease in favour of the petitioner w.e.f. 16-12-1991, question of charging rent and other charges at the rates prescribed under the schedule published on March 31, 1988 pursuant to the earlier direction passed by this Court on 28th April, 2004 cannot and does not arise.

The other issue raised on behalf of the petitioner in this writ petition is that the review application filed against the order dated 28th April, 2004 was not taken into consideration by the Board of Trustees for the Port of Calcutta before deciding the matter and passing the final order on 17th June, 2005.

From the records it appears that the said review application was filed on 8th June, 2004 by the petitioner before this Hon''ble Court and no step was taken for early disposal of the same. Curiously enough, the said review application has not yet been decided by this Hon''ble Court. The respondent Board of Trustees cannot wait for an indefinite period for deciding the matter pursuant to the specific directions passed earlier by this court in view of mere filing of a review application by the petitioner herein.

It is not the contention of the petitioner that the respondent Board of Trustees for the Port of Calcutta with undue haste proceeded in the matter in order to render the review application filed by the petitioner infructuous. From the conduct of the petitioner I am satisfied that the said petitioner was not at all serious with regard to the said review application and did not take proper steps for early disposal of the same. Since the said review application has not yet been decided I am not inclined to make any comments with regard to the merits of the said review application although some serious comments have been made by Mr. Kapoor in respect of the merits of the said review application.

In my opinion, the petitioner herein filed the Review Application with an intention to prevent the respondent Board of Trustees for the Port of Calcutta from deciding the issues pursuant to the earlier direction passed by this court in the judgment and order dated 28th April, 2004 at an early date. However, in my view, mere pendency of the review application cannot prevent the respondent Board of Trustees for the Port of Calcutta from deciding the issues pursuant to the earlier direction passed by this Court.

The learned Counsel appearing on behalf of the petitioner although referred to and relied upon various decisions of the Hon''ble Supreme Court but in my view, the same are hardly of any assistance for deciding the issues raised in this writ petition. The learned Counsel of the petitioner, however, vaguely argued before this court that the rates mentioned in the impugned order dated 17th June, 2005 are not the normal rate as per Schedule of Rent of 1992 and 1999 and the respondent authorities herein have illegally imposed absurd penal rent without any reason. In my opinion, the Board of Trustees for the Port of Calcutta cannot demand rent from the petitioner at the penal rate even as per Schedule of Rent of 1992 and 1999 as the petitioner herein was in occupation of the land in question pursuant to the interim order/orders granted earlier by this Court in different proceedings.

For the aforementioned reasons, I direct the Board of Trustees for the Port of Calcutta to review the rates mentioned in the impugned order dated 17th June, 2005 immediately in order to ensure that no penal rate is charged from the petitioner even as per the Schedule of Rent prevailing at the relevant point of time and communicate the decision to the petitioner upon granting reasonable time for making payment of the amount as may be assessed upon reviewing the rates in terms of this order.

This Writ Petition thus stands disposed of. There will be, however, no order as to costs. All parties concerned are to act on a xerox signed copy of this judgment and order on the usual undertaking.