03.09.2026 Court No. 12 Item No.03 Cp/Gb F.M.A. No. 266 of 2022 With CAN 1 of 2022 With CAN 2 of 2022 With CAN 3 of 2022 With CAN 4 of 2026 Marathon Electronic Motors (India) Limited & Anr. Vs. Syama Prasad Mookerjee Port & Anr. Mr. Saktinath Mukherjee, Sr. Advocate, Mr. Aniruddha Chatterjee, Sr. Advocate, Mr. Siddhartha Banerjee, Mr. Suchayan Bandyopadhyay, Mr. Souradeep Banerjee, Ms. Sanjana Sinha, Ms. Aditi Gupta …..for the appellants. Mr. Subhankar Nag, Mr. Snehashis Sen, Mr. Abhishek Banerjee, Mr. Debdutta Mukhopadhyay ….for the respondents. 1. The appeal arises out of an order dated January 21, 2022, passed in WPA 674 of 2022. By the order impugned, the learned Single Judge disposed of the writ petition, granting liberty to the appellants to approach the appellate forum, subject to the law of limitation. 2 2. Such order was passed on the basis of a preliminary objection raised by the respondents. According to His Lordship, every order of the Estate Officer made under Sections 5, 5(b), 5(c) or 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as ‘the said Act’), was appealable before the learned District Judge, under Section 9 of the said Act. 3. The contention of the appellants is that, the order passed by the Estate Officer in exercise of power under Section 7 of the said Act was without jurisdiction, but such objection was not entertained by the learned Single Judge, solely on the ground of existence of an alternative remedy. 4. Mr. Mukherjee, learned senior advocate appearing for the appellants submits that, the issue before the learned Single Judge was whether an order under Section 7 of the said Act could be passed in the teeth of an order staying the operation of the order of the Estate Offier. 5. According to Mr. Mukherjee, the eviction proceeding and the proceeding with regard to arrear rent were heard analogously by the appellate forum and the order of the Estate Officer dated May 10, 2010 had been stayed. Mr. Mukherjee submits that, by order dated May 10, 2010, the Estate Officer had also directed the 3 respondents to submit a report regarding their claim on account of damages, upto the date of recovery of possession by the appellants. The respondents were directed to indicate the details of the computation of damages by applying the rate of charges, so claimed for the respective period, for consideration of the Estate Officer. Such order had been stayed. Thus, the order passed by the Estate Officer dated December 13, 2021, under Section 7 of the said Act corresponding to the proceeding being 912/R of 2007 was wholly without jurisdiction. The order was passed in violation of the order passed by the learned appellate forum dated March 24, 2011. Mr. Mukherjee indicates the relevant paragraphs of the said order, in support of his contention that, the appellate forum had passed the order of stay of operation of the impugned order dated May 10, 2010, in its totality and the order dated May 10, 2010 was passed in both the proceedings, namely, proceeding No.912 and 912/R of 2007. 6. Mr. Nag, learned advocate appearing for the respondents submits that, the learned Single Judge did not commit any illegality or material irregularity in passing the order impugned. According to Mr. Nag, an order under Section 7 of the said Act is appealable under Section 9 of the 4 said Act. The order under Section 7 was passed in proceeding No.912/R of 2007. The said proceeding had not reached its logical conclusion before the Estate Officer. The finality of the order passed in proceeding No.912 under Section 5 of the said Act was under challenge before the appellate forum. The said forum stayed the portion of the order connected with the eviction proceeding. Section 7 was a continuation of proceedings and was permissible in law. The claim for damages was the outcome of the order of eviction and as a consequence thereof, the Estate Officer had permitted the authority to place the calculations with regard to the claim for damages under Section 7(2) of the said Act. Accordingly, such order was complied with by the respondents and the proceeding under Section, namely, 912/R was reached to its logical conclusion. 7. Mr. Nag, has relied upon a decision of a three Judges Bench of the Allahabad High Court in the matter of Yogesh Agarwal Vs. Estate Officer & Ors., reported in AIR 2016 All 41, in support of the contention that, this court, in exercise of jurisdiction under Article 226 of the Constitution of India, should not grant any relief to the appellants, which was available by way of a statutory appeal. As the legislature had provided 5 for an appeal against orders passed under Sections 5, 7 etc. of the said Act, it is not open for this court to pass any order. This Court should not expand the ambit of the pending appeal by holding that the order of stay will also cover the proceedings under Section 7 of the said Act. 8. We have heard the rival contentions. 9. The subject matter of challenge in the writ petition was the jurisdiction of the Estate Officer to continue with the proceeding under Section 7 of the said Act and pass a consequential order. By the order, damages on account of unauthorized occupation of the appellants upto December 13, 2021, that is, upto the date of delivery of possession, had been imposed. We find that proceeding no.912 was the eviction proceeding and the proceeding no.912/R was in respect of claim for arrear rent and damages. By an order dated May 10, 2025, the Estate Officer held that the department was entitled to draw up an order of eviction under Section 5 of the said Act, by giving the appellants 15 days’ time to vacate the premises. Person/entity in occupation of the premises was directed to vacate the same in terms of the order passed by the Estate Officer under Section 5 of the said Act. It was further directed that the port trust would be entitled to claim 6 damages for unauthorized use and occupation of the property from the appellants, in accordance with law and up to the date of recovery of possession. By the same order, the claim of the principal amount of the respondents amounting to Rs.1,79,45,012.08/- as on February 28, 2010 towards the rental charges was accepted. Further, the respondents were directed to prepare details of computation of damages for the respective period (details of computation with rents applicable for the relevant period), for the consideration of the Estate Officer, so that the Estate Officer could assess the quantum of damages as per the Act and the Rules. The entire direction including the entitlement of the respondents towards damages and with regard to computation of damages, was stayed by the appellate forum. Thus, any further proceeding on the basis of the report filed by the respondents in compliance of such order, in our view, was also stayed by the appellate forum. 10. The relevant portions of the order of the appellate forum, are quoted below:- “Heard both sides and on perusal of stay petition and documents filed by the Appellant I am of the view that the Appellant has made out a strong prima facie case against the impugned order and the instant appeal is the continuation of the Proceeding No.912 of 2007 and 912/R of 2007 and I also find there is urgency and if the stay will not be granted 7 then the appeal will be infractuous and the appellant will be highly prejudiced. Under the facts and circumstances of the case, I am inclined to allow the prayer of the Appellant by passing an order of stay of operation of the impugned order dated 10.05.10 passed by the Ld. Estate Officer, Kolkata Port Trust in Proceeding No.912 of 2007 and 912/R of 2007 till disposal of the P.P. Appeal, subject to payment of current rent per month Appellant shall pay the same and the Respondent may accept such amount from the appellant without prejudiced to the rights and contentions of the parties. The stay petition is thus disposed of with above observations.” 11. We accept the contention of Mr. Mukherjee that, once the right to claim damages and the direction upon the respondents to furnish a report before the Estate Officer with regard to calculation of damages, had been stayed with a condition that monthly rent from the date of the order of the appellate forum would be payable, the Estate Officer could not have proceeded to pass the order under Section 7. The order was passed in violation of the direction of the appellate forum. 12. In support of his contentions, Mr. Mukherjee places reliance on the decision in the matter of Shangrila Food Products Ltd. & Anr. versus Life Insurance Corporation of India & Anr., reported in (1996) 5 Supreme Court Cases 54. It was held that, unless an occupant was first adjudged to be an unauthorized occupant, his liability to pay damages did not arise. In other words, if he was 8 an authorized occupant, he was required to pay rent. In this case, the finding that the appellants were unauthorised occupants and the consequential directions passed in consonance with such finding, have been stayed by the appellate forum. When the appellants were in occupation of the premises, occupational charges had not been claimed by the respondents by approaching the appellate forum. 13. We are of the view that the learned Single Judge erred in not considering the fact that the order passed by the Estate Officer was in violation of the stay order of the court. The said order cannot be given effect to until the appeal is decided. Unless the appeal court holds that the appellants are unauthorised occupants and the order of eviction was properly passed, the order by the Estate Officer for payment of damages, shall be kept in abeyance. The question of payment of damages cannot arise. The condition imposed for grant of stay was accepted by the parties 14. Under such circumstances, the order impugned before the learned Single Judge dated December 13, 2021, passed by the Estate Officer under Section 7 shall remain stayed till the disposal of the appeal. As the appeal is pending from 2010, the learned appellate forum is directed to dispose 9 of the appeal positively within a period of three months from date. The order passed under Section 7 will be subject to the final decision in the appeal. 15. Accordingly, the appeal and the connected applications are disposed of. 16. Parties are directed to act on the basis of the server copy of this order. (Shampa Sarkar, J.) (Arjun Ray Mukherjee, J.)