Atlantic Lubricants And Specialities Pvt. Ltd. & Anr. vs Board Of Trustees For The Port Of Kolkata & Others

Judicial adventurism is a dangerous thing. In a world of consumers, where we speak of the justice delivery system, forum shopping can perhaps not be

avoided. It is ironic that the attempt by the writ petitioners to establish a shopping mall in a renovated motion picture theatre of iconic status has fallen

foul of the Kolkata Port Trust authorities who allege that the writ petitioners have indulged in forum shopping and initially suppressed it.

Before dealing with the case made out by the writ petitioners, let me, in brief, record what the port trust authority has to say. It says that there is a

property, which belongs to the Kolkata Port Trust, a major port continued under the Major Port Trusts Act, 1963 and by virtue of Section 2(2)(v) of

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, this is therefore “public premisesâ€. It further says that one M/s. KREBS &

CIE (India) Ltd. was the original lessee of these public premises. It says that occupation of such original lessee was held to be unauthorised and a

huge sum to the tune of Rs. 26 crores is still due from the said original erstwhile lessee. Apparently, the Estate Officer appointed under the Act of

1971, who happens to be the employee of the respondent port trust and, according to Mr. Ashok Kumar Jena, learned advocate appearing for the Port

Trust authority, is absolutely unbiased and a paragon of all virtues is in seisin of the matter. Apparently, an application was made by the said erstwhile

original lessee, namely, M/s. KREBS & CIE (India) Ltd., where it sought the following relief :-

“Hence it is prayed that this learned court would be pleased to serve notice at least 48 hours before any proceeding or steps including the inventory

proceedings to the petitioner viz. Krebs Manufacturing & Services Limited, Registered Office at 28/3B, Sree Mohan Lane, Kolkata-&00026, and/or

pass such further order/orders as Your Hon’our may deem fit and proper.†At Paragraph 15 of the application, the erstwhile original lessee has

alleged as follows :-

“The Company namely KREBS Manufacturing & Services Limited, Registered Office at 28/3B, Sree Mohan Land, P.S. Kalighat, Kolkata-700026

is/was the only occupant of the entire tenancy and the entire machineries, documents, articles, belongings, infrastructures etc. are all of the Krebs

Manufacturing & Services Limited, Registered Office at 28/3B, Sree Mohan Lane, P.S. Kalighat, Kolkata-700026.â€​

Mr. Jena, learned advocate appearing on behalf of the Port Trust Authority, submits that this itself is an admission that all the belongings are

“owned†by the said M/s. Krebs Manufacturing & CIE (India) Limited. He submits that the present writ petitioners had applied before the Estate

Officer alleging that the articles, which are the subject matter of the present writ petition, belonged to them and were lying inside the public premises

and they applied for its release. When such release was not allowed by the Estate Officer without satisfaction to the pen of the respondent no. 1

towards rent/damage/interest on April 30, 2018, then and only then the present writ petition was filed on May 17, 2018 without disclosing the facts

about the earlier approach to the Estate Officer. The present writ petition was moved before the regular bench and, according to him, when the

regular bench on considering the submissions made on behalf of the petitioners on facts was not inclined to pass any interim relief, then leave was

sought to move the writ petition before the vacation bench. He, therefore, submits that the present writ petition is not only liable to be misconceived on

any relief sought, but is an abuse of process of law.

Mr. Saptangshu Basu, learned senior advocate appearing on behalf of the petitioners, on the other hand, submits that the power of the respondent no.

1 to remove the property of someone other than the occupant of the public premises is limited. He refers to a Full Bench decision of this court in the

case of APL (India) Pvt. Ltd.â€"vâ€"Port of Kolkata reported in 2009 S.C.C. Online Cal 1996 equivalent to (2009) 4 C.H.N. 146(FB), particularly,

the following paragraphs:“From the aforesaid it becomes apparent that the lien of the KPT is limited and referable to specific goods in relation to

which certain services have been performed under MPTA. This would include a general lien with regard to wharfinger charges plus demurrage. This

would be on the basis of Section 171 of the Indian Contract Act, 1872. We are also unable to agree with the submission of Mr. Anindya Mitra that

KPT would be entitled to sell goods in its custody which may be necessary if any rent is payable to the Board. Section 61(b) provides as under â€

‘(b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid.’ A bare perusal of

the provision would show that the Board can sell the goods in its custody in respect of which any rent is due and payable. The provision clearly speaks

of ‘any place on or in which such goods have been stored has not been paid’. To accept the submission of the learned counsel would be to

delete the words ‘any place on or in which the goods have been stored’. In our opinion, the aforesaid provision clearly relates to the

performance of services by KPT UNDER Section 42 of MPTA. Under this Act, KPT has the power to undertake various services with regard to

landing, shipping or transshipping, passengers and goods between vessels in the Port and the wharves, piers, quays or docks belonging to or in the

possession of the Board. It also has the power of receiving, removing, shifting, transporting, storing or delivering goods brought within the Board’s

premises. At that stage Calcutta Port Trust was the actual owner of the goods. In other words, after the goods are released by the shipowner, KPT is

responsible for storage and security of the goods. For these services, it charges rates, which would include rent for the plinth or the building in which

they are stored. Therefore, all rates and rents are relatable to the specified goods. We are, therefore, unable to accept the submission of Mr. Anindya

Mitra.

The powers of KPT under Sections 59 and 61 of MPTA would have no relation to the goods of a stranger lying at the KPT premises which may be

under unauthorized occupant. To this extent, we are unable to agree with the observations of the Division Bench in Canoro Resources Ltd. (supra).

…. …… ……. …… …. …… ……. ……

For the reasons stated above, we are unable to accept the submission of Mr. Anindya Mitra that there is no conflict between the earlier Division

Bench Judgment in Indian Rayon Corporation Ltd. (supra) and the later Division Bench Judgment in Canoro Resources Ltd. (supra). The view taken

in first part of paragraph 18 of the judgment in Canoro Resources Ltd. (supra) is contrary to the law laid down by the Supreme Court and, therefore,

cannot be said to be good law.â€​

In the said decision, it was also held that :-

“A precedent, however, ceases to be a binding precedent.

(i) if it is reversed or overruled by a Larger Bench or the Supreme Court

(ii) when it is affirmed or reversed on a different ground.

(iii) when it is inconsistent with the earlier decisions of the Bench of the same rank of that High Court.

(iii) when it is sub silentio, and

(iii) when it is rendered per incuriam.â€​

Mr. Basu further submits that the Estate Officer had no jurisdiction to entertain the matter pertaining to a stranger in view of the Full Bench decision

referred to above. He submits that whether his clients had approached the Estate Officer, or not is neither a material fact nor does it any way prevent

them from coming before this court. If it is not a material fact, then not disclosing it is not fatal to the case nor is it an abuse of process. He submits,

on instruction, that there is no one in the name of Abhijit Halder, who is connected with his clients. Therefore, the signature purported to have been put

on behalf of his clients by the said Abhijit Halder before the Estate Officver, is not at all relevant. This is not merely his submission from the Bar, but

he has taken the leave of the court to file a supplementary affidavit wherein at paragraph 6, such averment is clearly there and has been affirmed as

being true to his clients’ knowledge.

With regard to the aforesaid submission of Mr. Basu, Mr. Jena relies upon an unreported decision of this court dated September 20, 2013 rendered in

the case of Atlantic Lubricants and Specialities Pvt. Ltd. & anr. vs. Board of Trustees for the Port of Kolkata & Others by a co-ordinate bench of

this court. Though subsequent to the Full Bench decision of this court, as referred to by Mr. Basu, it has not referred to the said decision. It has

preceded on the basis that Section 6 of the Act of 1971 is applicable even to the strangers in terms of the following paragraph of the decision dated

September 20, 2013:-

“The contention that Section 6 of the said Act of 1971 contemplates only the property of the lessee left behind at the public premises to be dealt

with by the authority, is fallacious. Indeed, Section 6(2) of the said Act in its last limb recognises that after the property left at the public premises is

disposed of by the estate officer in accordance with the procedure under such section, the balance of the sale proceeds has to be made over to the

‘person or persons’ as may be entitled thereto. What Section 6 of the said Act implies is that the goods that are left at the public premises at the

time of the authority taking over possession thereof under the said Act of 1971 ought to be disposed of in accordance with the procedure recognized in

the provision and, after adjusting the sale proceeds against the dues of the authority, an adjudication may be made, if necessary, as to who would be

entitled to the balance.â€​

Mr. Basu submits that the judgement of the co-ordinate bench of this court, as aforesaid, does not show that that the Full Bench decision and the law

laid down authoritatively was considered by the coordinate bench. He submits that the law laid down by the Full Bench has passed sub silentio. Mr.

Basu submits that regardless of how much money is due from the erstwhile lessee, a stranger, who has merely availed of services of a carrier/agent

to get goods necessary for his establishment, cannot be made to pay any rent or damages payable by the lessee. He also submits that Mr. Jena’s

submission relating to M/s. KREBS & CIE (India) Ltd. being the owner of the goods in question cannot arise since Mr. Jena has fairly submitted that

a logistic company, which was the sub-tenant of the original lessee had kept its customers’ goods in the leasehold. Therefore, by no stretch of

imagination can paragraph 15 of the application filed by the said company, as extracted above, be expanded to mean that the said erstwhile lessee is

the owner of the goods. “Of theâ€​ cannot be read as “the owner ofâ€​.

Though Mr. Jena has submitted that M/s. KREBS & CIE (India) Ltd. is not a party in the present proceeding and this is a fatal defect and according

to the Proviso to Order I, rule 9 of the Code of Civil Procedure read with Rule 53 of the writ rules, the writ petition ought to be dismissed for non-

joinder of necessary parties, I think that this is a curable defect and can be cured by directing that M/s. KREBS & CIE (India) Ltd. be added as a

party in the present proceeding subject to necessary amendments and/or corrections being carried out by the office in the cause title of the writ

petition before the Mandamus Department in presence of its Section Head within 7 days from reopening of this Court after summer vacation. It is so

directed.

Mr. Jena submits that the Full Bench decision of this court, as referred to above, has been stayed by the Hon’ble Supreme Court. He submits a

copy of the order dated December 4, 2009 passed by the Hon’ble Supreme Court in Special Leave to Appeal (Civil) No. 30385 of 2009 in support

of such submission. However, that is merely an interim stay of the order and not the stay of the judgment laying down the law. Besides, Mr. Basu

rebuts this submission by contending that the stay of operation of the order in a pending appeal before the apex court does not amount to any

declaration of law, but is only binding on the parties to the said proceedings. In this connection, Mr. Basu refers to a decision in the case of Pijush

Kanti Chowdhuryâ€"vâ€"State of West Bengal & Others. reported in 2007 S.C.C. Online Cal 267 equivalent to (2007) 3 C.H.N. 178 wherein a

division bench of this court held as follows ;-

“….and at the same time, such interim order does not destroy the binding effect of the judgment of the High Court as a precedent because while

granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court

which is impugned.â€​

However, the question of public money, which has been raised by Mr. Jena on behalf of his clients and that it is still due must be balanced with the

necessity of Mr. Basu’s clients to get the goods they have already paid for, worth about Rs. One crore or slightly more, since without such goods

they cannot start operation of the mall which is required for the heritage building, Metro Cinema and its attendant Mall as proposed, to turn profitable

and which presently earns nothing but lies idle. Mr. Basu submits, on instruction that this must be done by July 2018. He submits that considerable

credit has been taken from the various suppliers and/or financial institutions and thus special equities favour his client over the respondent Port Trust

Authorities. He submits that due to intransigence of statutory authorities in respect of someone else’s dues, his clients should not be trapped by the

financial laws of the country.

The rival submissions of the parties appearing today have truly posed a Scylla of unpaid public dues on the one hand and a Charybdis of a non-

performing asset. I find a strong prima facie case in favour of allowing commercial activity to go on in Kolkata and for it to continue to develop.

Therefore, I find a strong prima facie case for creating an arrangement so that Mr. Basu’s clients would be in a position to utilize the goods in

question without, however, the right of the Kolkata Port Trust to claim the goods which Mr. Basu’s clients would utilize, being lost. I would rather

avoid both the sharp rocks and the whirlpool, by keeping the property in custodia legis with however, the right of user passing to the writ petitioners till

the disposal of the writ petition. Accordingly, I pass the following interim orders:-

Since I am told that the auction has been directed by the Estate Officer to be held by his order dated May 11, 2018, such auction is stayed till disposal

of this writ petition. Mr. Danish Taslim, learned advocate, and a member of the Calcutta High Court Bar Association, sitting in Room No.12, is

appointed as special officer with his assistants/juniors, to go and take physical possession of the goods in question after a joint inventory os made,

where Mr. Basu’s clients’ representatives and representatives of the Port Trust shall be present. The learned Special Officer shall be entitled

to a remuneration of 2000 g.ms. and the other expenses reasonably incurred by him, including arrangements of travel, accommodation and reasonable

repast, and expense of stenographers and typists for making the minutes and inventory. This shall be paid in equal shares by the writ petitioners and

the respondent no. 1, but shall be paid by the writ petitioners at the first instance. Further remuneration, if any, shall be at the discretion of the court.

The Estate Officer is directed to be personally present at the time when such inventory is made and possession is taken by the learned special officer.

On taking possession, the Learned Special Officer shall allow the writ petitioners to utilize the said goods only if and after the writ petitioners file with

him an undertaking in the form of an affidavit affirmed by both the partners of the writ petitioner firm that in the event, the writ petition ultimately fails,

they shall pay a sum of Rs. 2 crores to the respondent no. 1 and shall further allow the learned special officer to return the said goods after

dismantling the same at the writ petitioners’ establishment at Metro Cinema and Mall and at such dismantling and return to the respondent no.1

shall be made at the cost of the writ petitioners.

The goods shall be in constructive custody of the learned special officer and shall be released only on filing of such undertaking by the petitioners. The

Special Officer shall file his report alongwith the minutes and the said undertaking in the original, in Court on the next date fixed, after retaining copies

with him. Mr. Basu’s clients shall be entitled to file a supplementary affidavit taking into account the orders disclosed to him by Mr. Jena. The

respondents are directed to file their affidavit in opposition to the writ petition within a period of eight weeks after reopening; reply thereto, if any, by

four weeks thereafter and the writ petition shall appear for hearing thirteen weeks hence before the appropriate bench. It is made clear that this order

is passed only in the present writ petition and shall not be binding effect on any other writ petition. It is further made clear that during the subsistence

of the interim order, the constitution of the partnership firm of the writ petitioners cannot be changed nor the interest of the firm or the writ petitioners

in the development be transferred. All observations made above are tentative. Let photostat plain copies of this order duly countersigned by the

Assistant Registrar (Court) be made available to the learned advocates for the parties for taking steps in the matter.