TaxTMI 
TaxTMI 
2009 (3) TMI 604
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....espondent No. 5, M/s. Sea Rock Commerce Ltd., hereinafter referred to as Sea Rock at premises owned by Kolkata Port Trust. 3. The respondent No. 4, M/s. Warren Industrial, hereinafter referred to as respondent Warren, was at all material times a lessee under the respondent No. 1. Respondent Warren inducted respondent Sea Rock to occupy the said warehouse. 4.The petitioners claim to have been storing goods at the warehouse for consideration. 5. The respondent No. 1 initiated eviction proceedings against the Respondent Warren under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. On or about 6th February, 2007, an order was passed under Section 5 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 calling upon respondent Warren and all persons who might be in occupation to vacate the premises in question. 6. Mr. Ghosh, learned Senior Counsel appearing on behalf of the petitioners, drew the attention of this Court to the operative portion of the order dated 6th February, 2007. The operative portion of the said order is extracted hereinbelow for convenience : "ACCORDINGLY, Department is directed to draw up formal order of evic....
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....f the respondent No. 1, submitted that the respondent No. 1 was entitled in law to retain the goods and sell the same to realise the rent due from the tenant/lessee. 11. Mr. Mukherjee argued that Section 59 of the Major Port Trusts Act read with Section 6 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 gave Kolkata Port Trust, a right of lien in respect of all goods or articles lying at the public premises if rent was due in respect of the premises. Such a wide interpretation of Section 59 of the Major Port Trusts Act to confer right of lient on any goods or articles lying at the public premises in respect of which rent was in arrears, irrespective of the ownership of the goods or articles, could lead to absurd consequences. For example, a car placed for repair at a garage run at public premises owned by Kolkata Port Trust for a day or two could be detained, seized or sold to realise the rent due from the garage owner or may be some other person from the inception of the tenancy. 12. In Board of Trustees for the Port of Kolkata v. Indian Rayon Corporation Ltd. & Anr. reported in 1987 (28) E.L.T. 334 (Cal.) a Division Bench held as follows : "Und....
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....have been applicable with regard to the said consignment of woolen rags. But the contention now is that it is in respect of the said dues, relatable to woolen 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." 14. It is not for this Court exercising writ jurisdiction to decide the factual issue of whether the goods actually belong to the petitioner or the tenant from whom rent was due or payable. There can be no question of allowi....
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.... to be executed, is established. The fact, that the agent of the writ-petitioner, without taking due care to ascertain the ownership of the land, kept the goods on the land of the Port Trust Authority without taking any permission, was sufficient to attract the provision contained in Section 6 of the Act. The learned Single Judge, as it appears from the order impugned, did not consider the statutory provisions mentioned above." 16. The earlier judgement of the division Bench in Indian Rayon Corporation (supra) had not been cited before the Division Bench. The attention of the Division Bench was also not drawn to the judgement of the Supreme Court in Sriyanesh Knitters (supra). 17. It was strenuously argued by Mr. Mukherjee that the petitioners had an alternative remedy under the 1971 Act. Be it noted that neither the petitioners nor the respondent No. 5 were parties to the proceedings before the land manager. 18. The petitioners are aggrieved by the refusal of Kolkata Port Trust to allow removal of goods imported by the petitioners. There is nothing on record to show that there was any order of the Estate Officer with regard to the goods in question. 19. ....
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....ant. Section 5(1) empowers the Estate Officer to pass an order of eviction, directing that the public premises should be vacated by all persons in occupation thereof, forthwith or within the time specified in the order of eviction. 26. It is only when an order of eviction is not complied with on or before the date specified that the Estate Officer might evict the unauthorised occupants. 27. In Canoro Resources Ltd. (supra) also, the Division Bench did not hold that the 1971 Act in itself authorised retention of goods for the purpose of sale. It was on a conjoint reading of Section 6 of the 1971 Act with Sections 59 and 61 of the Major Port Trusts Act that the Court held that third party goods could be detained to realise the dues of port trust. 28. In the matter of W.P. No. 1116 of 2008 [APL (India) Pvt. Ltd. v. Board of Trustees for the Port of Kolkata & Ors.] this Court found that there was divergence in the views taken by two different Division Benches of this Court on scope and ambit of Section 59 of Major Port Trust Act, 1963. This Court, therefore, referred the said writ application to the Hon'ble Chief Justice for constitution of a Larger Bench to adjudi....