Vijay Kanodia vs Food Corporation of India and Others

Sanjib Banerjee, J.—The writ petitioner assails the conduct of the Food Corporation of India in throwing the petitioner out from the premises whereat the petitioner had been in occupation for more than 30 years.

The petitioner says that under an agreement of April 22, 1978, the first respondent created a tenancy in respect of an area of about 1037 sq.ft. on the fourth floor of premises No.10A, Middleton Row, Calcutta - 700 071 at a monthly rent of Rs.933.30. The petitioner asserts that such tenancy was governed by the relevant tenancy laws.

By a notice dated June 28, 1978, the first respondent sought to terminate the tenancy on the ground that the first respondent for its own use required the area under the petitioner''s occupation. The notice mentioned that should the petitioner fail to comply with the demand contained therein, the petitioner would be treated as an unauthorized occupant in respect of the public premises. Following such notice, the first respondent initiated eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and a notice u/s 4(1) of the said Act followed from an official claiming to be the estate officer. The petitioner contested the proceedings an order was made therein for eviction of the petitioner. Such order of August 31, 1988 was carried in appeal in Miscellaneous Appeal No. 2 of 1998 filed before the City Civil Court.

On July 17, 1990 the appeal was allowed and the matter was sent back to the estate officer for consideration as to whether the first respondent required the premises for its own use and occupation. A second round of proceedings commenced before the estate officer which culminated in an order of May 27, 1994 requiring the petitioner to remove himself from the public premises within 30 days from the date of the order. Another appeal followed and an interim order was made on July 7, 1994 in Miscellaneous Appeal No. 6 of 1994 staying the order of the estate officer. A writ petition was also lodged before this Court wherein an order was passed on June 8, 1994 requiring the parties to maintain status quo. Such petition stood dismissed for default on November 17, 2005 and an application for restoration of the same has remained pending since December 2005.

The petitioner claims that in spite of'' the order of injunction subsisting in the appeal from the estate officer''s order of May 27, 1994, the first-respondent''s officers forcibly evicted the petitioner on the night of January 23, 2009. The petitioner says that substantial valuables of the petitioner remain locked in, and challenges the arbitrary acts and conduct of the respondents in these proceedings. Upon the matter being moved on notice, it was submitted by the respondents that the appeal from the order of the estate officer had been dismissed in default and though an order was made on May 2, 2006 readmitting the appeal subject to payment of costs of Rs.500/-, such costs had not been put in as a consequence whereof the order of May 2, 2006 stood vacated. The operative portion of the order, which is anomalous, reads as follows:

"that the Misc. Case being No. 2251/96 be allowed on contest but with a cost of Rs.500/- (C.P.). Appellant/petitioner is hereby directed to pay the cost positively before the ensuing Summer Vacation, failing which, the instant order stands vacated and the appeal be restored to its original file and number. Fix 8-6-06 for hearing the appeal."

This matter was adjourned upon the petitioner being taken by surprise by such submission made on behalf of the respondents. The matter appeared on an another occasion thereafter when the petitioner was unable to produce any document to suggest that the costs had been tendered. Upon the matter being taken up on February 18, 2009, the petitioner says that subsequent to the order of May 2, 2006, the appeal had been heard on more than one occasion and it may be presumed that either the costs were tendered or that the respondents had waived their right to receive the payment. The petitioner has relied on the order sheet in Miscellaneous Appeal No. 6 of 1994 and it appears that on June 8, 2006 the petitioner herein had sought a date for hearing of two applications that had been filed; that on June 9, 2006 and January l, 2007 the hearing was adjourned; and, that on subsequent dates the matter had been called on but no effective hearing took place.

The petitioner relies on the judgments reported at Assa Nand Vs. Harish Kumar and Others, and Prem Sagar and Others Vs. Phul Chand and Others, to say that if a conditional order is made within the meaning of section 35B of the Civil Procedure Code, the failure to meet the condition without any contemporaneous protest would result in a presumption of however by the party in whose favour the condition is made. In the first of the cited judgments, the revisional petitioner before the Punjab and Haryana High Court had filed the suit for declaration and injunction in the year 1979. When the suit was taken up for trial on February 6, 1981, the plaintiff was not ready and an adjournment was requested which was allowed subject to payment of costs of Rs.30/-. Despite the costs not being paid, the suit appeared on several subsequent occasions without any effective hearing. In March 1982 the defendants moved an application for dismissal of the suit on the ground of non-payment of the costs. The suit was dismissed and the order was carried before the High Court. On such facts it was held as follows:

"6....Thus, it will be reasonable to conclude that in a case where the costs imposed are not paid, on that very date when the costs are to be paid, the attention of the Court should be drawn so that further prosecution of the suit may take place only if necessary compliance has been made. If no such step is taken by the party who intents to invoke the provisions of section 35-B of the Code, and remains silent and allows the Court to proceed with the suit he cannot be allowed to agitate the alleged non-payment, if any, after that date. In such a situation, the provisions of section 35-B of the Code are not at all attracted. . . ."

In Prem Sagar, the petitioner before the High Court had lodged an application in the trial Court for obtaining a succession certificate. A date was fixed for a written reply to be filed by the respondents. Upon default in filing the reply, a prayer for adjournment and extension of time was allowed by the trial Court subject to payment of costs of Rs.29/-. On the adjourned date the reply was received but the question of costs was not raised. The, matter was adjourned. On the next adjourned date, the petitioner filed an application u/s 35B of the Code to urge that the defence be struck out for the costs not having been tendered. Such application failed and the matter was carried to the High Court and was referred to a Full Bench in view of conflict of judicial opinion. The Full Bench answered the relevant question in the following words:

"6.... Therefore, if on the date next following the date of the order of payment of costs the issue is not raised by either of the parties or taken notice of by the Court, it cannot be said that thereafter on all or any subsequent date the same can be resuscitated or that section 35-B would continue to apply with all it rigaur thereafter as well. Indeed it seems inevitable that if on the crucial date fixed for the payment of costs the question is not raised at all, then impliedly a waiver of the right arising in favour of the party entitled to costs would necessarily follow. Therefore, on subsequent dates it would not be open to the parties to reopen the issue at their will and seek the barring of the further prosecution of the suit or the defence u/s 35-B afresh. It is axiomatic that the law is for the vigilant and not for those who blissfully sleep over their rights."

In neither of the judgments cited did the order for payment of costs contain the rider that upon the costs not being tendered, the action or the defence would stand rejected. Despite the peculiar wording of the order of May 2, 2006 in the instant case, it implied that upon costs not being paid before the summer vacation, the order would stand vacated. It is not necessary in the present context to express any firm view as to whether such rider as in the relevant order in this case would take it beyond the principle recognised in either reported case cited. The petitioner here has also not produced its application filed under Order XLI Rule 19 of the Code to show that the prayer therein was both for readmission of the appeal and for revival of the interim order that was subsisting on the appeal prior to its dismissal.

The only issue is as to whether the respondents are guilty of arbitrary or improper conduct in having, in effect, implemented the order of the estate officer on the night of January 23, 2009. Given the facts and the order dated May 2, 2006 together with the undeniable position that no costs had been tendered by the petitioner in terms of the order dated May 2, 2006, it was possible for the respondents to take a view that there was no impediment to the order of the estate officer being implemented.

The scope of the present petition is limited. The issue here is whether an instrumentality of the State had acted unconscionably to cause serious prejudiced to the complaining petitioner. It need not be conclusively answered in these proceedings as to whether the appeal against the estate officer''s order still survives or whether the interim order of July 7, 1994 subsists. It would do if it were appreciated that the respondent authority''s understanding of the situation was not outlandish or so peculiar that no reasonable person in its position could have so acted. On such test, the respondents'' action passes muster and no order is called for on the petition.

In the light of the view taken, it would be useless to keep the petition pending and permit the petitioner to rely on any further material in its reply to assail the respondents'' conduct. The petitioner is left free to urge all grounds that may be available to him before the City Civil Court if that Court takes the view that the appeal still survives.

W.P. No. 66 of 2009 is dismissed without any order as to costs.

Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.