VIJAY KUMAR ARYA Vs. BOARD OF TRUSTEES

JUDGEMENT

(1.) CHALLENGE in this petition is to a notice dated 28. 7. 06 issued by the land Manager (In-Charge) of the Kolkata Port Trust. By the said notice, it has been conveyed to the petitioners, the lessees, that they have wrongfully parted with possession of leasehold land by inducting a number of sub-tenants without the prior approval in writing of the Port trust, the lessor, and this constitutes a major breach of the terms of the lease and, therefore, the petitioners were called upon to quit, vacate and deliver up vacant and peaceful possession of the same on 1. 2. 07 it was further conveyed thereby that the petitioners' relationship with the board of Trustees for the Port of Calcutta would stand determined on and from 1. 2. 07 and that the Board of Trustees has no intention/desire to revive the relationship. It was also conveyed that in case of default of handing over possession of the leasehold land by the date fixed, the matter would be referred to the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereafter the P. P. Act)seeking an order of eviction.

(2.) MR. Deb Burman, learned counsel for the petitioners has urged that the impugned notice does not contain material particulars of breach committed by the petitioners and the allegations are delightfully vague, indefinite and unspecific. The impugned notice is further called in question on the ground that the Port Trust, being an authority within the meaning of Article 12 of the Constitution of India, could not have unilaterally and in an arbitrary manner determine the lease without granting opportunity to the petitioners to disprove the absolutely incorrect and baseless allegations contained in it, for, according to him, sub-tenants were inducted by the petitioners after obtaining written permission from the Port Trust. The Port Trust having acted in clear breach of principles of natural justice as well as acted in an arbitrary and high-handed manner which is violative of Article 14 of the constitution, the petitioners have prayed for setting aside of the impugned notice with a direction upon the Port Trust to hear the petitioners and, thereafter, to pass an appropriate order in accordance with law. Mr. Deb Barman in support of his submissions placed reliance on the following decisions: (2007)2 SCC 181 : rqjesh Kumar v. Deputy Cit; (2004)3 SCC 214 : jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. ; (1989)3 SCC 293 : m/s. Dwarkadas Marfatia and Sons. v. Board of Trustees, Port of Bombay; and 1992 (2) CLJ 9 : lee and Muihead (I) Pvt. Ltd. v. The Board of Trustees for the Port of Calcutta and Ors.

(3.) MR. Sanyal, learned counsel for the Port Trust vehemently opposed the writ petition. According to him, the writ petition is not at all maintainable since it is an inchoate/premature application. He contended that there is no question of the Port Trust giving any opportunity of hearing to the petitioners prior to issuance of the notice to quit, for, it is not an administrative order but a notice issued in terms of section 111 (g) of the Transfer of Property Act (hereafter the T. P. Act ). He further contended that the Port Trust had issued the notice to quit only after it was convinced that the petitioners have breached the terms of the lease and to buttress his contention he placed relevant documents annexed to the counter affidavit filed by the Port Trust. According to him, if the petitioners intend to dispute the conclusions recorded by the Land manager in the impugned notice, they would have the opportunity of raising effective defence once a proceeding under the P. P. Act is initiated by issuance of a notice under section 4 thereof, for, the ground for seeking eviction would be breach of the terms of the lease deed and not that the authority to remain in occupation has been determined. It is his contention that the question as to whether a party is in unauthorized occupation of a public premises or not would, necessarily involve a determination as to whether the petitioners have; in fact, breached the terms of the lease deed or not and only on recording a satisfaction that there has, in fact, been a breach of the terms of the lease deed that the estate Officer would be justified in ordering eviction. He invited the attention of this Court to the various provisions of the P. P. Act and submitted that before making an order for eviction, the Estate Officer appointed thereunder has to record his satisfaction that ground exists for ordering eviction and, in the process, while the Estate Officer proceeds to determine the issue involved, he may compel attendance of any person for examining him on oath or require discovery and production of documents, and the petitioners would be well within their rights to dispute the material allegations contained in the Impugned notice and to prove that there has been no breach of the terms of lease at their instance. He referred to the provisions of section 111 (g) of the T. P. Act to contend that power has been exercised thereunder which does not contemplate giving of prior opportunity of hearing and, therefore, the contention raised by the petitioners in this respect is absolutely misconceived.