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2009 (8) TMI 773

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..... 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 Division Bench, consisting of two-judges. This is precisely the course adopted by the learned Single Judge. The direction issued by the learned Single Judge is to place the papers before the Chief Justice, "for passing appropriate orders." This direction cannot be read in isolation. Earlier in the judgment (para 51) the Learned Single Judge noticed the observations made by the Special Bench in the case of Ahamed Hossain S.K. (supra) that "if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench - 1116 of 2008 with W.P. Nos. 14192 (W) and 1449 of - Dated:- 20-8-2009 - Surinder Singh Nijjar, C.J., Indira Banerjee and Aniruddha Bose, JJ. REPRESENTED BY : S/Shri Pratap Chatterjee and Pradip Ghosh, Sr. Advocates, Tilak B .....

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..... 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 aforesaid plot from the KPT. The entire amount due to Reftech on account of ground rent and service charges has been paid. There are no dues outstanding against the petitioners. The petitioners have been using plot P 1 for the past 3-4 years. On 8th March, 2008 when some representatives of the petitioners had visited the plot for removing their containers, they found that the entrance gate of the plot had been locked. When Reftech was contacted it expressed its surprise and ignorance as to why the gate was locked. Subsequently, the petitioners were informed that Reftech was carrying on business from the aforesaid plot in association with Shalimar Tar Products Ltd., (herein after referred to Shalimar ). On further inquiry it transpired that KPT had instituted proceedings against Shalimar, sometime ago under the PPA. An order of eviction was passed by th .....

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..... anoro 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 consideration of the relevant provisions of both the Acts and the judgments cited by both sides, the learned Single Judge, formed an opinion that there is a conflict between the two aforesaid Division Bench judgments of this Court. Hence the reference. 3. We have heard the learned counsel for the parties at length. 4. At the outset Mr. Anindya Mitra raised a preliminary objection to the reference. Learned senior counsel submitted that there is no conflict between the earlier Division Bench and later Division Bench judgments. Even if there is a conflict the learned Single Judge ought not to have made the reference. The better course would have been to follow one or the other, depending on the opinion formed by the learned Single Judge. In support of his submissions learned counsel relied on the following judgments :- (1) M/s. Indo Swiss Time .....

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..... 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 paid. The Supreme Court upheld the view of the Bombay High Court in the case of M/s. Sriyanesh Knitters (supra). It has been laid down that the lien of the Board is for the amount of the rates leviable under the Act and for the rent due to it. It is also made clear that the goods which can be sold in exercise of lien are only those in respect of which any amount is due and payable to the Board. The Supreme Court also observed that the High Court was right in coming to the conclusion that the lien conferred on the Board under the MPTA was not a general lien but was a lien on specific goods. It is then submitted that the observations of the Division Bench in the case of Canoro Resources Ltd. (supra) are in conflict with the law laid down by the earlier Division Bench of this Court in the case of Indian Rayon Corporation Ltd. (supra). The issue is the sam .....

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..... ecific 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 is also addressed to a person who is evicted from the public premises in proceedings under the Act. In this particular case the notice dated 29th of March, 2008 published in the Telegraph, Calcutta, is addressed to Shalimar. By this notice Shalimar was directed to take possession of its property and to remove the same from the premises. It is only the property which remained in the premises after 14 days which was to be sold by public auction. Therefore, according to Mr. Chatterjee even KPT did not assert any lien on the property of the unauthorized occupants within the permissible period of 14 days. Therefore, according to the learned counsel conjoint reading of Section 59(1) with Section 6 of the PPA was not justified. These are two independent Acts. Both are procedural provisions aimed at achieving different results. Purposes of two Acts are total .....

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..... ent 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 apply when KPT exercised lien on goods belonging to an unauthorized occupant to recover the rent due from the tenant. In the case of Canoro Resources Ltd. (supra) the Division Bench was dealing with an altogether different situation and, therefore, there would be no conflict between Canoro Resources Ltd. and Indian Rayon Corporation Ltd. (supra). Learned senior counsel has also submitted that it is not impossible to reconcile the two judgments. The earlier Division Bench judgment in the case of Indian Rayon Corporation Ltd. (supra) dealt with rates in respect of goods whereas subsequent judgment in the case of Canoro Resources Ltd. (supra) dealt with rent for the building. Therefore, there is no conflict between the two. Even otherwise the learned Single Judge ought to have made a choice and followed one of the two judgments. Therefore, the reference wa .....

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..... aring 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 goods has to be read in connection with the expression the amount of all rates leviable by the Board. The sub-section provides that in respect of amount of rates due to the Board in respect of any goods, the Board shall have the lien on such goods and may seize and detain the same until such rents are fully paid. The words such goods obviously have reference to those goods in respect of which the rates due to the Board are not fully paid. It is, therefore, not possible to accept the submission of Shri Zaiwala that a general lien in respect of any goods of the importers is conferred on the Board by the provisions of S. 59(1) of the Act. In this connection, it would be also advantageous to make reference to the provisions of sub-s. (1)(a) of S. 61 of the Act. S. 61 of the Act enables the Board to sell the goods in respect of which the lien is exercised u .....

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..... n 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. 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. 12. 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 : (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. 13. 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 spea .....

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..... 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 Port Trust to rehear the representation. The learned Single Judge specifically held that unless it was established that there was co-relation between the writ petitioner and the erstwhile tenant, the goods of the writ petitioner could not be sold for realization of the dues of the previous tenant . This finding of the learned Single Judge was challenged in appeal before the Division Bench by KPT. The Division Bench says that KPT was not a party to the writ application. The submissions made by the learned counsel for KPT were as follows : 4. Mr. Anindya Mitra, the learned Senior Advocate appearing on behalf of the appellant has made threefold submission in support of this appeal. 5. First, Mr. Mitra contends that the writ application filed by the private respondent was not maintainable in the absence of the appellant as party to the proceedin .....

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..... d 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 realization of the arrears of rent due from the Kanji, the property admittedly belonging to the writ petitioner cannot be seized or sold in terms of the provisions of the Act. Mr. Mitra contends that third party who 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. Mr. Mitra, therefore, prays for dismissal of this appeal. 16. Considering these submissions, although the Division Bench held that the writ petition was not maintainable as KPT had not been made a party, the appeal was considered on merits to avoid multiplicity of proceedings. In paragraph 15, the Division Bench observes as follows : 15. The next question is whether the writ petitioner who has admittedly kept its goods on the land belonging to the Port Trust Authority .....

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..... se 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 proceedings under PPA, 1971. There can be no general lien under Section 59 of MPTA which would cover the goods of a party having no privity of contract with KPT, which are sought to be sold in execution proceeding under PPA, 1971. The Division Bench in fact notices that KPT had in execution obtained possession of the land from its tenant, and seized some timbers and casing pipes which were lying on the lease hold lands at the time of taking delivery of possession. 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 .....

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..... hmad 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 considered the matters on merits and expressed the view as under : ...... I have not been able to accept the contentions of the petitioner based on the aforementioned two judgments of this Court and accordingly I request the Hon ble Chief Justice to constitute a larger Bench for reconsideration of the matters indicated above. 24. The Acting Chief Justice was pleased to direct that in view of the judgment dated 5-10-99 passed by Justice Barin Ghosh, let the matter be placed before the Larger Bench. It was submitted by the counsel for the petitioner that the Learned Single Judge should have followed the binding precedent of the Division Bench judgment of the same court. 25. On the other hand, it was submitted by the learned counsel for the State that the Chief Justice has inherent power to refer any matter of some importance to a Full Bench. The .....

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..... 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 Subbarayudu v. The State, AIR 1955 AP 87 (FB). They are as follows : 34.  A Single Judge is bound by a decision of a Division Bench exercising appellate jurisdiction. If there is a conflict of Bench decisions, he should refer the case to a Bench of two Judges who may refer it to a Full Bench. A Single Judge cannot differ from a Division Bench unless a Full Bench or the Supreme Court overruled that decision specifically or laid down a different law on the same point. But he cannot ignore a Bench decision, as I am asked to do on the ground that some observations of the Supreme Court made in a different context might indicate a different line of reasoning. A Division Bench must ordinarily respect another Division Bench of co-ordinate jurisdiction but if it differs, the case should be referred to a Full Bench. This procedure would avoid necessary conf .....

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..... 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 considered opinion 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 Division Bench, consisting of two-judges. This is precisely the course adopted by the learned Single Judge. The direction issued by the learned Single Judge is to place the papers before the Chief Justice, for passing appropriate orders. This direction cannot be read in isolation. Earlier in the judgment (para 51) the Learned Single Judge noticed the observations made by the Special Bench in the case of Ahamed Hossain S.K. (supra) that if the decision of the Larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the Single Judge would be to refer the matter to the Division Bench. 28. These observations, in our opinion, would be a complete answer t .....

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