Objection On Maintainability Hits Root Of Judicial Proceeding If It Raises 'Pure Question Of Law' Or Points 'Inherent Lack Of Jurisdiction': Calcutta HC

The present proceedings arose of a lease agreement entered into between the lessee "International Engineering and Construction Company'' signed on behalf by the instant petitioner and the Kolkata Port Trust (respondent no. 1). The dispute forming the subject matter of the instant proceeding is a quit notice issued by the respondent no. 1 under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in respect of the immovable property which formed the subject of the aforesaid lease agreement.

Counsels for the respondent contended that the writ petition was not maintainable as the same was preferred by the instant petitioner in personal capacity and that the lessee being a private company, was an independent and separate juristic entity in the eyes of the law and that a prayer for execution of fresh lease deed, as made in the said writ petition, amounted to a relief in the form of specific performance which could not be entertained by a writ court. It was further argued that the petitioner had inducted subtenants and erected structures without permission, which is a major breach of the erstwhile lease-deed.

Dismissing the objections raised by the respondents as being made belatedly, the Single Judge Bench of Justice Sabyasachi Bhattacharya placed reliance upon the judgments of the Supreme Court in Kanak (Smt) & Anr. v. U.P. Avas Evam Vikas Parishad & Ors., reported at (2003) 7 SCC 693 and the Allahabad High Court in Suresh Chandra Tewari v. District Supply Officer & Anr. reported in 1992 SCC OnLine All 234 to hold that respondent no. 1, on account of its failure to raise any objection in respect of the non-maintainability of the writ petition at the earlier stages of the proceedings, was precluded from raising such objection at the time of final hearing. The Court held:

"However, inasmuch as the objection with regard to maintainability of the Writ Petition is concerned, the same cannot be upheld, although the petitioner stated in Paragraph Nos.2 and 3 of the Writ Petition that the International Engineering and Construction Company is a private company and that the petitioner is one of the Directors thereof. There are several reasons for turning down such objection. First, as rightly argued by the petitioner and held by the Supreme Court in Kanak (Smt) and another (supra) and by the Division Bench of the Allahabad High Court in Suresh Chandra Tewari (supra), since the KoPT never took the objection as regards non-maintainability of the writ petition at any earlier point of time, either at the inception or in its affidavit-in-opposition or even when the interim order was extended from time to time, the KoPT is precluded from raising such objection at the eleventh hour when the writ petition is being heard finally."

It further observed that an objection on maintainability of a writ petition does not hit the root of the writ petition if such an objection is not in the nature of a question of law or inherent lack of jurisdiction.

"The maintainability issue has primarily been raised on the ground that the lessee is an independent juristic entity, distinct and separate from the present petitioner, in view of being a company incorporated under the Company Law. However, it is noticed from the affidavit-in-opposition of the KoPT itself, filed in connection with the Writ Petition, that no objection as to maintainability has been raised therein. Rather, in Paragraph no.3(1) of the opposition, it is admitted by the KoPT itself that M/s. International Engineering and Construction Company (IECC) is a sole proprietorship with Mr. Vijay Kumar Khanna as the Proprietor," the Court noted.

The Court however dismissed the petition on merits, noting that there is no valid ground for the writ petitioner to challenge the quit notice on any ground whatsoever as the same was issued well within the authority of the Kolkata Port Trust. It found that there was no deemed renewal of the lease agreement and consequently, the petitioners had no basis to challenge the quit notice.

Case: Vinay Kumar Singh v. Kolkata Port Trust & Ors., WPA 21399 of 2007

Date: 09.11.2022

Citation: 2022 LiveLaw (Cal) 336 

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