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2009 (8) TMI 773

..... ho had no connection with the unauthorized occupier of the public premises cannot be asked to bear the burden of the mischief committed by such unauthorized occupier - The owner had imported the goods. They were kept on open ground for the purpose of sending the same to further destination. Clearly, therefore, KPT had no claim against the goods on account of rates and rents for services rendered under Section 42 of the MPTA. In such circumstances, the provisions of Section 59 and 61 of MPTA were not at all relevant for deciding the controversy between the parties.- Port trust not having general lien under Section 59 of Major Port Trust Act, 1963 to cover goods of party having no privity of contract with it and which were sought to be sold in execution proceeding under PPA, 1971 – Section 59 and 61 of Major Port Trust Act, 1963 - the issue with regard to the ambit of Sections 59 and 61 has been correctly decided by the Division Bench in Indian Rayon Corporation Ltd. (1987 -TMI - 41874 - HIGH COURT AT CALCUTTA).

reference to larger bench - Held that: when a Single Judge makes a reference to the Chief Justice for constitution of a Larger Bench, it can only mean a reference to a .....

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..... ctions 5 and 6 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as PPA). The petitioner nos. 1 to 17 are liners and steamer agents of liners, engaged in the business of shipping, inter alia, of providing services and facilities like ocean freighting and logistical support to the exim trade. They are in business of taking the transportation of containerized cargo to and from the port of Kolkata as liners and the steamer agents of liners on the basis of bill of lading. These companies are direct and an important link to the exim trade by way of carrying laden export containers from parts of India to various overseas destinations and bringing import laden containers of several cargo beneficiaries to India. These companies had entered into agreements with Reftech Container Services Pvt. Ltd. (hereinafter referred to as Raftech) for storage and repair of the containers at a plot of land known as P 1 Plot of the Kolkata Port Trust (herein after referred to as KPT) at Transport Depot Road, Taratala, Calcutta. Reftech had represented to the petitioners that it had a valid licence and permission to carry on business of storage of containers at the a .....

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..... bmissions Mr. Tilak Basu, learned counsel for the petitioners, relied upon a judgment of the Division Bench of this Court in the case of Board of Trustees for the Port of Calcutta v. Indian Rayon Corporation Ltd. & Anr. [1987 (28) E.L.T. 334 (Cal.)] and a judgment of the Supreme Court in the case of The Board of Trustees of the Port of Bombay & Ors. v. M/s. Sriyanesh Knitters [1999 (112) E.L.T. 373 (S.C.) = AIR 1999 SC 2947]. On the basis of the judgments it was submitted by Mr. Bose that lien of the Calcutta Port Trust under Section 59 of the MPTA, 1963 would only be for its rates and rents against the goods on which such rates and rents had accrued. On the other hand, Mr. Anindya Mitra, learned senior counsel appearing for the respondent, relied on a judgment of the Division Bench in the case of Board of Trustees for the Port of Kolkata v. Canoro Resources Ltd. & Ors. [2008(1) CHN 141]. On the basis of this judgment it was canvassed by Mr. Mitra that reading the provisions of Section 59 of the MPTA, 1963 with Section 6 of the PPA, 1971 gave the KPT a lien in respect of any goods or articles lying at the public premises, if rent was due in respect of the premises. Upon .....

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..... 6.  Mr. Pratap Chatterjee submits that the scope of Section 59 was considered by this Court in the case of Indian Rayon Corporation Ltd. (supra). The Division Bench has given a clear finding that the lien is limited to the goods in respect of which rates and rents are due. It cannot travel to goods of a third party or even other goods of the contracting party. Learned counsel further submitted that under any circumstances lien can only be exercised against the party that commits default, even under general law. It is further submitted that Section 59 has also been interpreted by the Bombay High Court in the case of M/s. Sriyanesh Knitters (supra). In that case it was submitted by the learned counsel appearing for the Board of Trustees, Bombay Port that the Board has a general lien in respect of any goods which came into the custody of the Board. It was repelled by the Division Bench with the observations that the plain reading of Sub-Section (1) of Section 59 of the Act indicates that the lien conferred on the Board under Section 59 of the Act is not a general lien but a lien on specific goods. The lien is limited only to those goods in respect of which the rates due are not p .....

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..... sel right to property cannot be defeated without due process of law. Even though right to property may not be a fundamental right but it is still a constitutional right under Article 300(A) of the Constitution of India. According to the learned counsel Section 59 of the MPTA cannot be interpreted in the manner laid down by the Division Bench in the case of Canoro Resources Ltd. (supra). If such an interpretation is accepted it would lead to an absurdity. Therefore, the earlier view has to be preferred. Learned counsel also submitted that the interpretation placed on Section 59(1) & (2) cannot be influenced by the provision contained in Section 6 of the PPA, 1971. This Act does not give an additional right under Section 59. The provision of Section 6 cannot be intermingled with the provisions of Section 59(1) of the MPTA. Both the Acts deal with specific remedies in specific circumstances. According to the learned counsel a bare perusal of Sections 5 and 6 PPA would show that the orders passed thereunder is for eviction of unauthorized occupants from public premises. The provisions in Sections 5 and 6 are in personam. Even the notice issued in form C under Section of 6(1) of PPA .....

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..... d 61 with Section 6 of the PPA has correctly recorded that the Board not only has lien over the goods found on the land of the port for any rent due or payable but also a right to sell those goods and to appropriate the sale proceeds towards the rental dues. This would be immaterial even if the goods do not belong to the party from which the amount is due. Learned counsel makes a particular reference to Section 59(1) & (2) and submits that the Board has a lien for the amount of rates due in respect of any goods and also for the rent due to the Board for any buildings stacking areas in which any goods are stored. Such lien of the Board has a priority over all other liens and claims in view of Section 59(2). When Section 59(1) & (2) are read together with Section 61 the meaning is clear that the KPT has the power to sell the goods if rates and rent are not paid within the stipulated time. The Calcutta High Court in the case of Indian Rayon Corporation Ltd. (supra) and the Supreme Court in the case of M/s. Sriyanesh Knitters (supra) were dealing only with the question of lien on goods in respect of rates and rent dues. Therefore, the ratio of law laid down therein would not ap .....

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..... icular persons against other goods belonging to other persons or against money paid by another person in respect of such other goods. The appellant, in the instant case, was not entitled to treat the respondent No. 4 as the principal in respect of goods cleared by it and adjust its claim in respect of some goods against the dues in respect of others. Ex facie, the respondent No. 4 was the agent who acted on behalf of different principals in respect of different consignments of goods. 9. The Supreme Court in M/s. Sriyanesh Knitters (supra) was considering an appeal from the Division Bench judgment of the Bombay High Court in Board of Trustees of the Port of Bombay & Ors. v. Mr. Sriyansh Knitters - AIR 1983 Bombay 88 wherein the Division Bench held as follows : 12. ... ... ... Strong reliance was placed on the words in respect of any goods appearing in this sub-section to claim that the Board s lien is not restricted only to the specific goods but is available in respect of any goods which come into the custody of the Board. It is not possible to accept this submission. The plain reading of sub-section (1) of S. 59 of the Act indicates that the expression in respect of any g .....

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..... ase the amount which was claimed by the appellants was in respect of the consignment of woollen rags. There can be little doubt that in respect of the amount claimed by the Board the provisions of Ss. 59 and 61(1) would have been applicable with regard to the said consignment of woollen rags. But the contention now is that it is in respect of the said dues, relatable to woollen rags, that the Board has a general lien on the subsequent consignment of acrylic fibre. This contention is clearly untenable because, as we have already observed, Ss. 59 and 61(1) give a lien on those goods in respect of which amount is claimed or due under S. 59. The Board was not demanding or claiming lien on acrylic fibre on the ground that any amount in respect of acrylic fibre was due. Once it appears that the lien referred to in Ss. 59 and 61(1) is only (on) those goods in respect of which amount is due it is clear that the said provisions do not contemplate a general lien as contended by the appellants. The High Court, in our opinion, was right in coming to the conclusion that the lien conferred on the board under S. 59 of the MPT Act was not a general lien but was a lien on specific goods. 11. F .....

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..... on order had been passed by the Estate Officer under the PPA, 1971 against the tenant of KPT. In execution of the aforesaid order, KPT obtained possession of the land from the tenant and seized some timbers and casing pipes which were lying on the lease hold land at the time of taking delivery of possession. The owner of these goods challenged the action of the KPT in a writ petition. The writ petition was disposed of by a learned Single Judge of this Court by directing the petitioner to make representation before KPT and with a further direction to the competent authority to dispose of such representation after giving an opportunity of hearing to the writ petitioner. Representation was disposed of by holding that proceedings for recovery of dues to the KPT on account of rent and interest were pending against the previous tenant. Therefore, the goods could not be released as those were found to be lying on the resold property at the time of delivery of possession through execution. This order was again challenged in a writ petition by the owner of the goods, who was not a tenant of KPT. This writ petition was disposed of by the learned Single Judge by directing the Chairman of the .....

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..... nced by Mr. Anindya Mitra and has contended that the Kolkata Port Trust being adequately represented in the writ application through its Chairman and the said Chairman of the Kolkata Port Trust having not only complied with the order of this Court in past but also prayed for review of the order for specifically directing him to dispose of the representation of the writ petitioner, the plea of the appellant that the writ application was not maintainable was not tenable in the eye of law. 10. As regards the plea of existence of alternative remedy taken by the appellant, Mr. Mitra contends that existence of alternative remedy is not an absolute bar in entertaining a writ application and such plea not having been taken at the initial stage was not entertainable for the first time before the appellate forum. 11. As regards the provisions contained in the Act for disposal of any moveable found at the public premises at the time of execution of an order of eviction, Mr. Mitra contends that in this case it has been sufficiently established that there was no connection of the writ petitioner or its transporter with the Kanji, the original tenant of the Port Trust, and as such, for .....

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..... the rent for that land. In the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the same principle has been adopted and according to section 6 thereof, if at the time of execution of any order of eviction from the public premises, any goods are found on the public premises, those goods will be liable to sale for the realization of the dues towards unauthorized occupation and the real owner of the goods cannot take the plea of ignorance of the ownership of the land or of the dues of the unlawful occupier against whom the execution proceeded for the purpose of recovery of those goods or avoiding the sale thereof. The object of giving notice to the owner as contemplated in the statutes is not for hearing any objection of the owner of the goods against the confiscation of his goods but for the purpose of giving him an opportunity to purchase the same in public auction and to lay claim over the balance amount of the sale-proceeds, if any, remains after meeting the liability of the unauthorized occupier. 19. With due respect to the observation of the Division Bench, we are not in agreement with the same. In our opinion, Sections 59 and 61 of MPTA cannot be read into .....

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..... 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. 21. In view of the above, it would not be possible to accept the submission of Mr. Anindya Mitra that the learned Single Judge was at liberty to follow either of the Division Bench judgments. The reference to Larger Bench, in our opinion, was the appropriate course to adopt. 22. The preliminary issue raised by Mr. Anindya Mitra has already been answered by two Full Bench judgments of this Court in the cases of Ahmad Hossain SK. v. State of West Bengal [(2001) 2 CHN 762] and Bhowanipore Gujarati Education Society v. Kolkata Municipal Corporation [(2008) 4 CHN 420] . 23. In the case of Ahmad Hossain S.K. (supra), two earlier judgments of this court were relied upon before the Learned Single Judge. The Learned Single Judge proceeded and con .....

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..... or can the Court Appeal refuse to follow judgments of the House of Lords. A corollary of the rule is that the courts are bound only by decisions of higher courts and not by those of lower or equal rank. A High Court Judge is not bound by a previous High Court decision, though he will normally follow it on the principle of judicial comity, in order to avoid conflict of authority and to secure certainty and uniformity in the administration of justice. If he refuses to follow it, he cannot overrule it; both decisions stand and the resulting antimony must wait for a higher court to settle. 32. A precedent, however, ceases to be a binding precedent. (i) if it is reversed or overruled by a Larger Bench or the Supreme Court (iij 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. (iv) when it is sub silentio, and (v) when it is rendered per incuriam. 33. Subba Rao, J. (As High Lordship then was) in Dr. K. C. Nambiar v. State of Madras, AIR 1953 Madras 351, laid down certain salutary principles that were later also approved by a Full Bench of the Andhra Pradesh High Court in S .....

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..... Division Bench. 27. These observations were reiterated by the subsequent Full Bench in the case of Bhowanipore Gujarati Education Society (supra) in the following words : 57. A perusal of the aforesaid observations would clearly show that a Single Judge of a High Court is bound not only by judgment of a Division Bench but also of a co-ordinate Bench, i.e. Single Judge. It is also laid down that a Single Judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view. When a Division Bench of two-Judges differs from the judgment of another Division Bench of two-Judges, it has to refer the case to a Full Bench. On the other hand, a Single Bench cannot differ from a judgment of a Larger Bench except when that decision or a judgment relied on in the decision has been specifically overruled by the Full Bench or the Supreme Court. If the decision of the Larger Bench is found by the Single Judge to be inconsistent with the law laid down by another Division Bench, Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench. We are of the co .....

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