BOARD OF TRUSTEES OF THE PORT OF KOLKATAversusKALIPADA BHAKAT & ORS.

                    [2014] 12 S.C.R. 187

  BOARD OF TRUSTEES OF THE PORT OF KOLKATA                          A
                         v.
           KALIPADA BHAKAT & ORS.
          (Civil Appeal No. 9387 of 2014)
                     ·OCTOBER 9, 2014
                                                                    B
       [SUDHANSU JYOTI MUKHOPADHAYA AND
              PRAFULLA C. PANT, JJ.]

     Public Premises (Eviction of Unauthorised Occupants)
Act, 1971 - s.4 - Land allotted on lease - Termination of the       C
tenancy- In eviction proceedings, R-1 appeared as power of
attorney ·holder of R-2 (the allottee) - Eviction order -
Challenged by R-1 and not R-2 - Locus of R-1 to maintain
the statutory appeal - Held: R-1 being power of attorney holder
of R-2, cannot be allowed to maintain the appeal on his own         D
behalf - s. 4(2) is not applicable to such unauthorised
occupants, who enter into possession after initiation of eviction
proceedings against their predecessor in possession.

    Allowing the appeal with costs, the Court
                                                                    E
     HELD : Respondent No. 1, who was power of
attorney holder of -Respondent No. 2, cannot be allowed
to maintain the appeal on his own behalf to protract the
eviction proceedings. The proceeding has been drawn
against unauthorised occupant (respondent No. 2) and                F
to escape :eviction, she appears to have handed over
possession of the premises to Respondent No.1, as
such, the subsequent occupier cannot be entitled to,
fresh notice. Sub-section (2) of Section 4 of the Act
cannot be restored to, to protect the interest of such              G
unauthorised occupants who enter into possession,
after eviction proceeding has been initiated against their
predecessor in possession. [Para 7] [191-B-E]

                              187                                   H
    188      SUPREME COURT REPORTS               [2014] 12 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9387 of 2014.

        From the Judgment & Order dated 05.02.2010 of the High
    Court at Calcutta in CO No. 3991 of 2009.
8      Parag Tripathi, A.V. Rangam, Buddy A.R., Arunabh
    Ganguli for the Appellant.

          Susmita Lal for the Respondents.

          The Judgment of the Court was delivered by
c
          PRAFULLA C.PANT, J. 1. Leave granted.

       2. This appeal is directed against the judgment and order
  dated 5.2.2010 passed by the High Court of Calcutta whereby
D said Court, exercising powers under Article 226 of the
  Constitution of India, has allowed the application of the
  respondent No.1, for condonation of delay filed before the
  appellate authority (District Judge/ Additional District Judge,
  Alipore) and leave is granted to the said respondent to file the
E appeal under the Public Premises (Eviction of Unauthorised
  Occupants) Act, 1971 (hereinafter to be referred to as 'the Act').

       3. Brief facts of the case are that a plot of land measuring
  133.41 sq. meters at 33 Coal Depot, Chetla Railway Siding
  also known as Chetla Station Yard was allotted by the Port Trust
F to Raj Virmani (present respondent No.2), on a month to month
  lease basis, and the lease deed was executed on 1.2.1972.
  The tenancy of the said tenant was terminated by the appellant
  vide notice dated 1.7.1983. Thereafter, appellant, Board of
  Trustee of the Port of Calcutta initiated eviction proceeding
G against respondent No.2, Raj Virmani. In the year, 1992 the
  present respondent No.1, Kalipada Bhakat, in said eviction
  proceedings, appeared as power of attorney holder on behalf
  of Raj Virmani. In the· year 1994 respondent No.1 applied to
  the Board of Trustee of the Port of Calcutta to induct him as a
H tenant (which was not accepted). The Estate Officer,
BOARD OF TRUSTEES OF THE PORT OF KOLKATA v. 189
    KALIPADA BHAKAT [PRAFULLA C. PANT, J.]

respondent No.3 by its order dated 4.8.2008 cjirected eviction       A
of the unauthorised occupant from the premises with further
direction for payment of arrears of rent and mesne profits. Said
authority, in its order, observed that present respondent No.1
has a right to establish his authority to occupy the premises
but failed· to establish the same. From the order dated 4.8.2008     B
passed by the Estate Officer it is clear that Raj Virmani parted
with the possession of the public premises unauthorisedly to
respondent No.1 who is running his business in the name and
style of M/s. Bhakat Motors. Respondent No.2, Raj Virmani
never filed any appeal against the said order passed by the          c
Estate Officer. However, Respondent No.1, Kalipada Bhakat
attempted to file an appeal along with an application for
condonation of delay with the same. Said application was
contested before the appellate authority by the present
appellant. The plea taken by the respondent Kalipada Bhakat
                                                                     0
before the appellate authority was that he had no knowledge
of the order sought to be challenged. The appellate authority
after hearing the parties, rejected the application vide its order
dated 13.11.2009 with further observation that the present
Kalipada Bhakat has no locus standi to maintain the appeal.
The appellate authority further observed that there is no            E
document showing that Kalipada Bhakat had any authority to
occupy the premises as he could not file any document
showing that he was the licensee or authorised to occupy on
behalf of the tenant, Raj Virmani. Aggrieved by said order of
appellate authority present respondent No.1 approached the           F
High Court.

     4. The High Court in the impugned order observed that
the question whether the applicant has any right or not to
maintain the appeal is required to be decided by the authority       G
concerned at the appropriate stage. It further observed that in
view of Section 4 of the Act, the Estate Officer should have
given opportunity by issuing show cause notice to the
unauthorised occupant. The High Court took the view that
since the applicant (the present respondent No.1) would be           H
    190      SUPREME COURT REPORTS                (2014] 12 S.C.R.


A evicted by the eviction proceedings, as such, it cannot be said
  that he had no locus to maintain the appeal. With the above
  observation, the High Court allowed the application for
  condonation of delay moved before the appellate authority, and
  granted leave to file the appeal. Aggrieved by the said order
B dated 5.2.2010 passed by the High Court in CO No.3991 of
  2009, the present appeal has been filed before this Court.

       5. Learned counsel for the appellant submitted that the
  respondent no.1 is rank trespasser in the public premises
C originally let out by the Port Trust to Raj Virmani. Respondent
  No.1 has admittedly entered into possession of the public
  premises unauthorisedly under an arrangement with the original
  tenant, without permission of the Port Trust. It is further pointed
  out that since Respondent No.1 appeared before the Estate
  Officer as constituted attorney of Raj Virmani, as such, there
D was no illegality in the order passed by the appellate authority
  in dismissing the application of Respondent No.1 in personal
  capacity challenging the order of the Estate Officer.

        6. On the other hand learned counsel for the Respondent
E No.1 argued that Respondent No.1 cannot be denied right of
  appeal as he is in possession of the premises, and the
  impugned order passed by the High Court suffers from no
  illegality.

F       7. We have considered rival submissions of the parties. It
  is not disputed that Respondent No.1 contested the eviction
  proceedings initiated by the appellant, against Respondent
  No.2, Raj Virmani, as her power of attorney holder. It is also
  not disputed that Raj Virmani was the tenant in the premises
  in question, and her tenancy was terminated. Respondent No.1
G failed to explain as to how thereafter he occupied the premises
  without the consent of the Port Trust. From the record it also
  reveals that the Respondent No 1 had the knowledge of the
  eviction proceedings, and he contested on behalf of
  Respondent No.2. As such, in our opinion, the appellate
H authority has rightly questioned the locus of Respondent No.1
BOARD OF TRUSTEES OF THE PORT OF. KOLKATA v. 191
    KALIPADA BHAKAT [PRAFULLA C. PANT, J.]
in maintaining the appeal along with application for condonation      A
of delay. The eviction order drawn against Respondent No.2
attained finality, who never filed nor attempted to file any appeal
against the order dated 4.8.2008 passed by the Estate Officer.
As such, respondent No.1 who was power of attorney holder
of Respondent No. 2, cannot be allowed to maintain the appeal         B
on his own behalf to protract the eviction proceedings. No
doubt, sub-section (2) of Section 4 of the Act requires issuance
of notice to those in occupation of public premises before the
eviction order is passed against such persons, but in. the
 present case before us, since the proceeding has been drawn          c
 against unauthorised occupant (Raj Virmani), and to escape
eviction, she appears to have handed over possession of the
 premises to Respondent No.1, as such, the subsequent
 occupier cannot be said to be entitled to fresh notice. If such
 person is allowed to maintain the appeal, by the time the
                                                                      0
eviction proceedings are over against him, he might hand over
the possession of the premises to third or fourth party. Sub-
section (2) of Section 4 of the Act cannot be restored to protect
the interest of such unauthorised occupants who enter into
possession, after eviction proceeding has been initiated
against their predecessor in possession.                              E

     8. Therefore, in our opinion, High Court erred in law in
allowing the application of condonation of delay moved by the
respondent no.1 before appellate court, and granting him leave
to appeal, against order of Estate Officer. Accordingly, we allow     F
the appeal with costs, and set aside the impugned order of the
 High Court passed on 05.02.2010 in C.O.No.3991 of 2009.
 However, on furnishing undertaking within a period of fifteen
days, by the respondent No.1, to vacate the premises and hand
over the possession to the appellant within six months from           G
today, we allow such time on condition that the respondent No.1
shall deposit occupational charges with the Estate Officer or
the appellant, for the period from August, 2008 to September,
2014 at the rate of Rs.10,000/- (Rupees ten thousand only) per
                                                                      H
    192       SUPREME COURT REPORTS            [2014] 12 S.C.R.


A month within a period of one month from today. In case the
  Respondent No.1 fails to furnish such undertaking or fails to
  comply the condition as above, the Estate Officer may execute
  the order dated 04.08.2008, forthwith. In case premises are not
  handed over as under taken, contempt proceedings may also
B be drawn.

    Kalpana K. Tripathy                            Appeal allowed.