- (1.) THIS application has arisen in connection with an appeal preferred by the petitioner/appellant from an order dated 11th September, 2006 passed by a learned Single Judge of this Court in CAN No. 6823 of 2006 arising out of W. P. No. 3497 (W) of 2006 for stay of operation of the impugned order. The order impugned was passed on the application filed by the appellant for modification of an earlier order dated 20th February, 2006 passed by the same learned Single judge. By the order impugned the learned Single Judge has passed order slightly modifying earlier order to the extent to direct the respondent No. 8 to furnish an unconditional bank guarantee for a sum of Rs. 30,50,000/- within a period of fortnight from the date of passing of the order. Upon deposit of the said bank guarantee the applicant Board shall allow the petitioner to remove the logs. For the said purpose the Board shall take all steps including demolition of the brick wall, if any, which is standing in the way of removing the logs.
(2.) IN the application for modification the appellant before us asked for an order that the logs in question lying in the plots of land of Kolkata Port Trust shall not be allowed to remove without securing the total dues of the rent/ damages in terms of the order dated February 20, 2006 of this Hon'ble Court. Actually, it appears that the calculation arrived at by the learned Trial Judge initially for payment of occupation charges was not accepted and the claim of the appellant was much more. The Chairman, Board of Trustees was not satisfied with the aforesaid order and hence appeal was preferred. The following facts emerge before us have been narrated hereunder: in or about January, 2006 first respondent, the writ petitioner stored imported consignment of logs at the storage place which is under physical custody of the respondent No. 8 after clearance from the customs authorities. However, they could not remove the goods as the Port authorities dug trenches and put up wall to prevent removal of the goods from the storage place and this had happened on or about 21st January, 2006. On or about 20th February, 2006 the first respondent, the writ petitioner, being aggrieved by detention of the goods by the appellant herein, filed a writ petition. On that date an order was passed allowing removal of the logs on condition that 25% of the total amount of rent of Rs. 31,45,000/- calculated at the rate of 85,000/- per month for the period of January, 2003 to January, 2006 i. e. Rs. 7,86,250/- was to be paid. The balance was directed to be paid in equal instalments in the subsequent months. The writ petitioner, in or about April, 2006 without carrying out the said direction preferred an appeal against the said order dated 20th February, 2006 and the appellant herein also filed the cross-objection against the said order. On 27"' june, 2006 both the appeal and the cross-objection were dismissed as not being pressed. Hence, in terms of the ear her order dated 20th February, 2006 the first instalment of Rs. 7,86,250/- was tendered for payment and demanded release of the goods. Thereafter the aforesaid application was made by the appellant before us. It appears further from the records that on or about 28th October, 2005 the respondent No. 7, one M/s. Shaw Enterprises, the sole proprietor of which is shri Rajeswar Shaw, filed a writ petition in this Court on or about 28th October, 2005 against the Port authorities, inter alia, praying for a writ of mandamus commanding the respondents particularly Port authorities not to interfere with the peaceful possession for enjoyment of the suit premises by the petitioner and other consequential reliefs. The basis of making the aforesaid writ petition was that the respondent No. 7 herein has been in possession of a plot of land in question since 2003 and as such carrying on business on the said plot of land by storing of goods and materials and also logs imported from different countries which is also known as warehouse business. On 20th October, 2005 the said respondent (the writ petitioner herein) obtained interim order as prayed for, for limited period and thereafter the said interim, order stood automatically vacated due to efflux of time. The said writ petition has not been heard out as yet though all affidavits have been completed. As such whether the possession and occupation of the respondent No. 7 is unauthorised or not or as such it can get relief therein, cannot be observed nor decided by this Court in any manner whatsoever. In this case, according to us, of course prima facie the dispute is whether the appellant herein is entitled to the damage for storing and keeping the imported logs at the premises owned by the Port authorities or not. In this case no decision can be rendered fixing the liability against the respondent No. 7. On the aforesaid factual aspect of the matter the application was heard after completion of filing of the affidavit.
(3.) MR. Kapoor, appearing for the respondent, contends in substance that it is an admitted fact that the vacant and openland admeasuring 13. 466. 22 square meter belongs to the Port authorities. This plot of land was leased out and/or let or licensed out by the Port authorities to the Tata International Limited. In or about June, 2002 the plot was duly surrendered and vacated by the said tata licensee. From the beginning of 2003 the respondent No. 8 illegally trespassed and encroached upon the said plot and unauthorisedly started occupying and possessing the same for commercial purpose. In course of this illegal business respondent No. 7 let out it to the third parties for valuable consideration without any authorities, consent or permission from the Port authorities.;