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Judgment
Sabyasachi Bhattacharyya, J
The present two revisional applications and the connected application are taken up together for hearing because those arise from the same impugned order.
The petitioner in C. O. No. 3305 of 2019, upon suffering an order of eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, took out an appeal, being P. P. Appeal No. 7 of 2010, and obtained an order of stay of operation of the Estate Officer's order of eviction therein.
Such an ad interim order was extended from time to time till June 21, 2019, when, it appears from the records, that the said order was not extended. Subsequently, the Estate Officer took possession of the premises, since there was no order of stay.
Immediately thereafter the petitioner in C.O. No. 3305 of 2019 took out three applications, respectively for restoration of the stay order, for restoration of possession and for injunction restraining the opposite party from transferring, encumbering and/or alienating the property-in-question in favour of any third party. All three applications were disposed of by the impugned order.
By the impugned order, the appellate court held, inter alia, that stern measures were to be taken due to the hot haste in taking possession and directed the Estate Officer to be present on the next date. However, the prayer of the petitioner in C. O. No. 3305 of 2019 for restoration of possession was not granted, although the stay order previously granted was restored.
The appellate court also granted injunction restraining the opposite parties and their men and agents from creating any third party interest in respect of the property-in-question.
Learned senior counsel appearing for the petitioner in C. O. No. 3305 of 2019 argues that the appellate court did not record specifically, that an application was filed for extension but not moved on June 21, 2019, in the order of the said date.
The subsequent attempt, in the impugned order, on the part of the appellate court apparently seems to provide a justification to the non-extension of stay, without going into the question as to whether actually such an application for extension was refused for not having been moved on the relevant date, that is, June 21, 2019.
By placing reliance on certain documents annexed to the connected application, bearing CAN 9762 of 2019, it is submitted that the present premises is a part and parcel of a larger scheme of rehabilitation for the property-in-question, that is, Metal Box India Limited. There has been several litigations in connection therewith, including a writ petition before the Delhi High Court for similar reliefs, for a direction that the sanctioned scheme dated October 3, 1996 was not applicable to the port trust and to restrain the petitioner therein from removing goods from the premises situated at P-48, Hide Road Extension, Kolkata- 700 088, which is the present property-in-dispute, and for other reliefs. The matter was ultimately relegated by the Delhi High Court to the BIFR and then the matter went to the appellate forum and was remanded to the BIFR. It appears that before the BIFR, the parties were directed to arrive at a settlement.
It is thus submitted that, in hot haste, the Estate Officer dispossessed the petitioner from the premises-in-question, which would directly affect the said larger scheme from taking effect and would frustrate the scheme, thereby going much beyond the limited interest of the parties in the present litigation.
Learned senior counsel appearing for the petitioner in C. O. No. 2926 of 2019 and for the opposite parties in C. O. No. 3305 of 2019, on the other hand, submits that the remarks by the appellate court about the conduct of the Estate Officer were unwarranted. In fact, the non-extension of the interim order by the appellate authority vide order no. 50 dated June 21, 2019 was well within the knowledge of both sides, since both sides were represented though their counsel on that date. Kolkata Port Trust lodged a caveat, after waiting for one month thereafter, on July 23, 2019 in connection with the order dated June 21, 2019. After waiting for about a fortnight thereafter, the Estate Officer dispossessed the Metal Box India Limited, having no other option. In fact, the observations as to the Estate Officer having acted in hot haste, as found in the present impugned order, are squarely challenged by the Port Trust, since the Estate Officer had, in fact, waited for a sufficiently long period before dispossessing the Metal Box India Limited, and could not be faulted for doing so in any manner whatsoever.
Learned counsel for the petitioner in C. O. No. 2926 of 2019, refers to the portion of the order requiring personal appearance of the Estate Officer, as directed by the impugned order, and submits that the said personal appearance was also unwarranted in view of the observations made against the Estate Officer being without any basis whatsoever. A challenge is also thrown to the ad interim order granted by the Estate Officer, more so, since the appeal is already at the hearing stage.
It is submitted on behalf of the Port Trust that this Court may direct the appeal to be decided, in the event of non availability of the lower court records, on the basis of photocopies of relevant documents filed by both the parties, to avoid unnecessary delay.
Upon hearing both sides, it is evident that, although nothing was recorded vide order no. 50 dated June 21, 2019 passed by the appellate authority as regards an application for extension being filed on behalf of the Metal Box India Limited, but not being moved, it is apparent from the said order itself that the ad interim order, which was being extended by the previous orders, copies of which are annexed to the present revisional applications, no such extension was granted by the said order dated June 21, 2019. This must have been within the knowledge of both sides, as rightly pointed out by learned counsel for the Port Trust, since the said order itself records that both sides were present by filing hazira through learned advocates.
In view of the Metal Box having not taken any steps for further extension of the order for more than one month after such non-grant of extension, it cannot be said that the appellate court was justified in directing the Estate Officer to be present to explain his alleged misconduct.
Although it may have been somewhat justified for the appellate court to hold that the Estate Officer was in a bit of hot haste in ousting the Metal Box India Limited from possession, in view of no specific refusal of ad interim stay having been spelt out in any of the orders, although the fact of non extension amounted to the said order having been vacated, the Estate Officer ought to have been more cautious since an order of stay was subsisting for a considerably long period and the matter was sub judice before the appellate forum.
However, be that as it may, it is made clear that the remarks passed against the Estate Officer in the impugned order shall not influence the appellate authority or any other authority in future, in taking an adverse view against the Estate Officer personally, since the Estate Officer only did his duty in dispossessing the judgment debtor in the absence of any stay order for more than a month.
The appellate forum acted without jurisdiction in directing the order of stay to be revived, since, in view of the ouster of the Metal Box India Limited from the property-in-dispute not being unlawful, although arguably irregular due to pendency of the appeal and the long subsistence of a stay order passed by the appellate forum, it cannot be said that the Estate Officer did not evict the Metal Box India Limited without due process of law.
As such, C. O. No. 2926 of 2019, C. O. No. 3035 of 2019 and CAN 9762 of 2019 are disposed of by modifying the impugned order to the effect that the portion of the impugned order directing the Estate Officer to be personally present on the next date before the appellate authority is set aside.
The portion of the impugned order, whereby the stay of the eviction order, granted previously, was revived, is also set aside.
However, it is made clear that the injunction by the appellate authority against the Port Trust and its men and agents from creating any third party interest on the property-in-question till disposal of the appeal, is retained.
The appellate forum, being the Additional District Judge, Sixth Court at Alipore, District- South 24 Parganas, is directed to dispose of P. P. Appeal No. 7 of 2010, as expeditiously as possible, without granting any unnecessary adjournment to either of the parties, peremptorily within November 29, 2019.
It is made clear that in the event the lower court records are not available before the appellate authority, the appellate authority will give sufficient time to both the parties to produce photocopies of the relevant records and, if necessary, to prepare paper books for proper and final disposal of the appeal, if need be.
It is made clear that that this court has not gone into the merits of the appeal at all and the appellate authority will be free to adjudicate the appeal on its own merits in accordance with law, without being influenced in any manner whatsoever by any of the observations made in this order or in the order passed by the appellate authority.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.