Pankaj Chakraborty v. Union of India & Ors.

n. Feeling aggrieved by such act of taking over possession of the plot of land as aforesaid in violation of Sections 4 & 5 of the said Act of 1971, the petitioner has approached this Court by way of the present writ petition. RESPONDENTS’ CASE IN THE AFFIDAVIT- IN-OPPOSITION:

#3. Briefly summed up the respondents’ case in the affidavit- in-opposition is as follows:- a. The predecessor in interest of the petitioner had been let in possession of the subject property on monthly rent on certain terms and conditions embodied in SMPK’s offer letter dated December 04, 1973. b. Due to non-payment of rent, a notice to quit dated May 13, 1992 was sent to the tenants but the same returned unserved. The same was thereafter affixed on the tenanted premises. c. Since the tenants did not abide by the notice and did not vacate the tenanted premises, an application was filed before the Estate Officer on May 31, 1993. d. The Estate Officer directed issuance of notice under Sections 5 and 7 of the said Act of 1971 and fixed September 28, 2021 as the returnable date. The said notice returned unserved and as such notice was affixed at the tenanted premises by the process server. e. In terms of the direction of the Estate Officer, the notice was thereafter published in the English daily - Times of India on October 27, 2021 and was also put up on the website of the SMPK in terms of the directions of the Estate Officer. f. Since the tenants failed to appear before the Estate Officer despite notices as aforesaid, the Estate Officer ultimately heard the matter on November 23, 2021 and passed two reasoned orders both dated February 02, 2022 under Sections 5 and 7 of the said Act of 1971 with directions for eviction of the tenants as well as for damages. g. As the Authorized Officer who had been appointed to execute the order of eviction failed to do so in view of resistance being put up at site, police assistance was sought. h. The Estate Officer allowed the application seeking police assistance on June 28, 2022 whereafter possession was taken by the Authorised Officer. i. It is the respondents’ case that bills had been duly raised from January 1992 to June 1992 but since notice to quit had been issued by the respondent Port Trust on May 13, 1992 therefore there was no reason to raise any bill after June 1992. PETITIONER’S CASE IN REPLY:

#4. The petitioner has denied all the material allegations in the affidavit-in- opposition and has asserted that no notice whatsoever starting from the alleged notice to quit till the last notice of hearing before the Estate Officer was ever served upon the petitioner. SUBMISSIONS ON BEHALF OF THE PETITIONER:

#5. A summary of the arguments made by Mr. Chatterjee learned Senior Advocate appearing for the petitioner (both orally and in writing) is as follows:- a. The respondent SMPK authorities have acted in abject violation of the provisions of the said Act of 1971. b. Upon perusal of the various documents annexed to the affidavit-in- opposition and the supplementary affidavit filed on behalf of the respondents, it would be evident that the notice to quit had been served upon Pradip Kumar Chakraborty whereas the license in respect of the subject plot stood in the name of the petitioner. In such view of the matter, the notice to quit cannot be said to have been served upon the petitioner. c. It stands admitted by the respondents that the notice under Section 4(1) of the said Act of 1971 returned unserved with the endorsement “insufficient address”. d. The affidavit-in-opposition and supplementary affidavit taken together also reveal that most of the documents pertaining to service of notice upon the petitioner could not be traced out by the respondents. e. The report of the process server does not conclusively prove that notice has been served upon the petitioner. f. The petitioner has duly received the notice of demand as well as the caveat and other documents sent to the petitioner’s address at 23/A, Bejoy Bose Road, Kolkata – 700025 which means that if notice had been sent to the petitioner at his actual address the same would have reached him. The said fact also establishes that no notice as regards the proceeding under the said Act of 1971 was ever served upon the petitioner. g. Since the entire proceeding has been initiated, continued and concluded without any notice and in abject violation of principles of natural justice, the same is bad in law and is liable to be set aside. h. Reliance was placed on a judgement rendered by the Hon’ble Division Bench of this Court in the case of Ramesh Kumar & Company Private Limited & Another vs. The Board of Trustees for the Port of Kolkata & Others1 to assert that in a similar situation, the Hon’ble Division Bench while dealing with appeals filed against orders passed in writ petitions where orders of eviction passed under Section 5 of the said Act 1 2016 SCC OnLine Cal 4455 of 1971 had been challenged, had directed restoration of possession to the appellants. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

#6. The arguments made by Mr. Dutta learned Advocate appearing for the respondents (both orally and in writing) are summarised below:- a. The writ petition should not be entertained at all inasmuch as the petitioner has alternative remedy of statutory appeal under Section 9 of the said Act of 1971. b. The question as to whether service has been effected or not lies in the domain of disputed questions of fact which cannot be decided by way of summary proceedings. c. The petitioner has admitted in the writ petition that before his eviction the subject property was under the possession of Dial Automobiles (Pvt.) Ltd. who was carrying on a different type of business other than the business for which the property had been let out. Such change of business was never intimated to SMPK and such change was done illegally. The respondents got knowledge thereof for the first time from the writ petition. d. The annexures to the affidavit-in-opposition and the supplementary affidavit would clearly reflect that all procedures have been followed in proceedings for eviction before the Estate Officer and there was due affixation of notice by the process server as also due publication thereof in an English Daily having circulation in the locality. The notice was also put up on the website of SMPK. e. Referring to annexures to the opposition especially Annexure R-4 (i.e. order dated September 28, 2021 passed by the Estate Officer) and Annexure R-6 (i.e. order dated November 23, 2020 passed by the Estate Officer) as also to Annexure R-12 to the supplementary affidavit being the process server report, it was contended that taken cumulatively, the same would adequately establish that due process of law was followed and notices were served. f. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of United Bank of India vs. Satyawati Tondon & Others2, for the proposition that a writ Court should refrain from exercising jurisdiction in cases where effective alternative remedy is available. ANALYSIS AND DECISION:

#7. This case presents an interesting paradox. While it initially suggests violation of principles natural justice by the respondents, grave enough to warrant annulment of the proceedings, upon a closer examination it reveals nothing more than unpardonable indolence on the part of the petitioner.

#8. To begin with, the following facts would reveal serious procedural lapses on the part of the respondents:- a. The notice to quit is addressed to both the petitioner as well his brother Shri Pradip Kumar Chakraborty but no postal document is available insofar as the petitioner is concerned. Returned envelope and A/D card evincing that notice had been sent to Shri Pradip Kumar Chakraborty are available. b. There is only one document available on record (Annexure R-11 to the supplementary affidavit filed on behalf of the respondents) that would indicate that a notice alleged to have been issued under Section 4(1) of