Board Of Trustees vs Kalipada Bhakat And Ors

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 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 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 tenant (which was not accepted). The Estate Officer, respondent No.3 by its order dated 4.8.2008 directed eviction 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 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 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 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 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 High Court.

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 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 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 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 be drawn.

October 09, 2014.