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Judgment
Jayanta Kumar Biswas, J.—The petitioner in this writ petition dated March 12, 2009 is seeking a mandamus commanding the respondents to cancel Annexure P-5 at p. 42, a certificate dated May 9, 2001 issued by the Estate Officer, Haldia Dock Complex of the Calcutta Port Trust to the Collector, Midnapore u/s 14 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Around Rs. 8 lakh was claimed under the certificate on account of rent arrears, subletting fee arrears and interest for several periods falling between November 17, 1985 and August 31, 2000.
The petition has been presented on behalf of the petitioner by one Sudhangshu Ghosh. He has described himself as a director of the petitioner, and has stated in the affidavit accompanying the petition that he was duly authorised to sign, date and verify the petition by solemn affirmation made by him on behalf of the petitioner.
In para. 21 (a) it has been stated that before issuing the certificate no notice u/s 7 was served on the petitioner, and hence there was no question of issuing the certificate. In para 28 it has been stated that the writ petition has been taken out challenging the certificate, since the certificate was issued without following the procedure mentioned in Section 7 of the Act. In para 29 it has been stated that the estate officer was aware of pendency of a writ petition registered under CO. No. 3569(W) of 1988 involving the question of revision of rent, and hence the officer should not have issued the certificate u/s 14 claiming rent at the increased rate. In para 31 it has been stated that the very basis of the claim under the certificate is bad in law, since no notice u/s 7 was served, no opportunity of hearing was given, and no order was served. All these averments have been verified by Sudhangshu by the solemn affirmation made by him that they are true to his knowledge.
The matter was taken up for hearing on March 17, 2009 when Mr. Mukherjee, counsel for the port trust, produced xerox of the Section 7 notice dated November 21, 2000; the petitioner''s response to the Section 7 notice through its lawyer''s letter dated December 22, 2000; the letter of the estate officer dated January 5, 2001 sent to the petitioner in reply to its lawyer''s letter dated December 22, 2000 and extending time to submit reply to the Section 7 notice till January 21, 2001; and the final order u/s 7 of the estate officer dated February 5, 2001. Xerox of these documents were supplied to Mr. Bhattacharyya, counsel for the petitioner. Hearing was adjourned until today to enable him to obtain instructions.
Now he submits that in paras. 21 (a), 28, 29 and 31, Sudhangshu, presenting the writ petition on behalf of the petitioner, has not made any false statement. He has admitted the fact of writing the letter dated December 22, 2000 to the estate officer in the capacity of the lawyer of the petitioner. It was he who wrote the letter on behalf of the petitioner. He has drawn my attention to the lawyer''s notice dated July 10, 2006, at p.44, calling upon the estate officer to rescind the certificate.
In para. 9 of the notice it was alleged that the estate officer did not give any notice u/s 7, no hearing in connection with the matter took place, and no final order made u/s 7 was served, and hence there was no question of issuing a certificate u/s 14. In para. 10 the estate officer was called upon to supply copy of the Section 7 notice, if, according to the estate officer, it was served, hearing was given and order was made. The estate officer was also called upon to supply a copy of the final order, if he made one. In para 11 of the notice the following case was stated: "It is needless to mention herein that had any notice been served, hearing took place and an order been passed, then my client must have preferred an appeal before the Appellate Officer, u/s 9 of the Act, 1971."
Alleging that the estate officer did not comply with the demands made in the legal notice dated July 10, 2006, and take steps to rescind the certificate, the present writ petition was taken out. Although Mr. Bhattacharyya has strenuously argued that Sudhangshu has not made any false statement on oath, I am not prepared to accept the position. Sudhangshu has stated on oath repeatedly that no notice u/s 7 of the Act was served on the petitioner, and this averment he has verified by the solemn affirmation made by him as true to his knowledge. This is a clear false statement.
The admitted position is that the Section 7 notice dated November 21, 2000 was served on the petitioner who responded to it through none other than Mr. Bhattacharyya who wrote the letter dated December 22, 2000 produced by the port trust. The fact of responding by the lawyer''s letter dated December 22, 2000 has been totally suppressed in the writ petition. There can be no doubt that this suppression is deliberate. Instead of appearing before the estate officer and filing an application seeking adjournment, the petitioner chose to respond to the Section 7 notice dated November 21, 2000 only by sending a letter of its lawyer dated December 22, 2000 via post. The estate officer took cognizance of the letter, and considering the prayer for extension, he extended time to file reply to the Section 7 notice till January 21, 2001.
Mr. Bhattacharyya has argued at the bar that the letter of the estate officer dated January 5, 2001 was kept by the estate officer in his drawer, and that the estate officer never sent the letter to the petitioner. Such a serious allegation has been made only at the bar. The petitioner has not stated anything anywhere in the writ petition that though it sought extension of time by the lawyer''s letter dated December 22, 2000, the estate officer did not give any reply to the letter. The admitted position is that until giving the legal notice dated July 10, 2006 the petitioner did not take any step whatsoever for ascertaining what happened to the proceedings initiated by the estate officer by issuing the Section 7 notice dated November 21, 2000 and in connection wherewith it sought extension of time to file reply.
These facts lead to an irresistible conclusion that Sudhangshu has not only deliberately suppressed material facts, but has also made a false statement knowing that the statement is false. Hence the writ petition should not only be dismissed, but proceedings should also be initiated against Sudhangshu for making false statement on oath. But for the reasons stated hereinafter, I do not propose to initiate any proceedings against him.
The above-noted facts have been detected by me at the admission stage of the writ petition, and I have been requested by Mr. Bhattacharyya not to initiate any proceedings against Sudhangshu. He has said that the petitioner has taken a point that since final order made by the estate officer u/s 7 was not served, it was deprived of an opportunity of appealing to the appropriate forum in terms of the provisions of Section 9 of the Act.
There is no dispute that against the final order of the estate officer dated February 5, 2001 made u/s 7 the petitioner, if it wanted, was entitled to appeal to the forum mentioned in Section 9 within the period prescribed for the purpose. According to Mr. Mukherjee, the final order made by the estate officer u/s 7 was duly communicated to the petitioner in accordance with the provisions of law. He has said that the allegation that the order was not communicated and thus the estate officer deprived the petitioner of the opportunity of appealing u/s 9 is absolutely incorrect.
Today an appeal against the final order u/s 7 dated February 5, 2001 is apparently time-barred. I do not find any reason to examine whether it is for the fault of the estate officer that the appeal has become time-barred. The question, in my opinion, will be relevant only if an appeal is filed, and it should be examined only by the forum competent to entertain the appeal. In this writ petition in which only the validity of the certificate issued u/s 14 has been questioned, I see no reason why I should examine for whose fault the appeal has become time-barred. The question relevant only to admission of an appeal, if filed, after condoning delay, is totally irrelevant in this writ petition unconnected with admission of any appeal.
For these reasons, I dismiss the writ petition. Xerox of the documents, referred to hereinbefore, shall be kept in the records of the case. There shall be no order for costs. Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.