1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3522 OF 2009 Gope Laxmichand Badlani ... Petitioner v/s Oriental Bank of Commerce & ors. ... Respondents Mr.Haresh M. Jagtiani with Mohan Bir Singh for the petitioner. Mr.Vimal Gupta for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 8TH JUNE, 2009 P.C.: 1. The petition has been filed against the order of the appellate authority under the Public Premises (Eviction) Act, dated 25.2.2009 which confirms the order passed by the Estate Officer under the aforesaid Act. 2. The petitioner was an employee of the respondent No.1 Bank and according to the Bank, they allotted the petitioner the premises being Flat No.14, Bhole Apartment, 17th Road, Khar 2 (West), Mumbai-400 052. A notice was issued by the Bank to the petitioner directing him to vacate the premises as the petitioner had been dismissed from service on 17.11.1999. However, the petitioner failed to vacate the premises and, therefore, a show cause notice was issued to him under Section 5(1) of the Public Premises (Eviction) Act. One of the grounds for eviction was that the Bank had a bonafide requirement for the premises. 3. The Estate Officer after considering the evidence on record has upheld the contention of the Bank and has directed the petitioner to vacate the premises. Aggrieved by this order, the petitioner filed an appeal before the Principal Judge, City Civil Court i.e. the appellate authority under the Act. The appellate authority confirmed the order passed by the Estate Officer. 4. The learned counsel appearing for the petitioner has raised the following submissions- (i) The petitioner was not afforded a hearing as required under Section 1 of the Act. (ii) The petitioner was not permitted to lead oral evidence in order to establish his case that he was not in unauthorised occupation of the premises since the premises were in fact owned by him and not by the Bank. 3 (iii) The Bank had not proved its requirement of the premises. 5. It is contended by the learned counsel that such submissions have been considered by the Supreme Court in the case of Minu Framroz Balsara v/s Union of India, reported in 1992, Bombay 375, in which it has been held that besides establishing that a person is in unauthorized occupation of the premises, it is necessary to establish that the premises are bonafide required by the public sector undertaking/ government before evicting such a person. He contends that neither the Estate Officer nor the appellate authority have considered these submissions. He points out that the Estate Officer has not granted any adjournment nor produced the witnesses nor did the Estate Officer permit the petitioner's representation to orally argue and advance the submissions on behalf of the petitioner after the evidence was closed. 6. On behalf of the Bank, the learned counsel has submitted that the Estate Officer has considered the written submissions which were furnished by the petitioner's representative and, therefore, there was compliance with the rules of natural justice while conducting the inquiry. He also submits that the petitioner had given a list of five witnesses in order to examine them; however the addresses of three of these 4 witnesses were not furnished and, therefore, it was impossible for the Estate Officer to issue notices to the said persons without any addresses being given. 7. As regards the issue of bonafide requirement, the learned advocate for the Bank submits that it is well known that the Bank would have to accommodate its officers who are residing in Mumbai after being transferred here in residential premises owned by the Bank. He points out that the petitioner though terminated from service continues to occupy the premises of the Bank. He further submits that there was no need for the Estate Officer to permit the petitioner to examine any witnesses when the documents which were on record speak for themselves. 8. After considering the submissions of the learned counsel for the parties and the orders impugned in this petition, I am of the view that the order of the Estate Officer and consequently of the appellate authority, must be set aside. 9. It is a cardinal principle of law that a person in unauthorized occupation of public premises can be evicted only after affording him a personal hearing and in compliance with the rules of natural justice. In the present case, there can be no doubt that the Estate Officer has chosen to flout the 5 rules of natural justice; firstly, by not permitting the petitioner to examine his witnesses; and secondly, by not affording his representative an opportunity to advance oral submissions after the evidence was closed. This has resulted in great injustice to the petitioner. Assuming the petitioner is in an unauthorized occupation, he can be evicted only by following due process of law. It is necessary to afford him a personal hearing in accordance with law. He can be evicted under the provisions of the Public Premises (Eviction) Act only after following the principles of natural justice. 10. Apart from this, the Bank has failed to prove that it requires the premises bonafide to accommodate its officers. The witness of the Bank when asked in the cross-examination, whether there was any record to establish that the Bank required the premises, has only answered this question by stating that it is a matter of record. However, such record was not produced by the Bank before the Estate Officer. Therefore, it is surprising that the Estate Officer has concluded that the Bank required the premises to accommodate its officers. There was no evidence on record to draw this inference. The appellate authority while dealing with this contention has observed that the judicial note can be taken about the dearth of accommodation in the city of Mumbai and that the answers given by the aforesaid witness did not, in 6 any manner, "diminish his statement that the suit premises were required for being allotted to other officers of the respondent Bank who have been posted at Mumbai. The need of the subject premises for being allotted to the employee, being omnipresent must be lurking in the mind of the Estate Officer, which has been reflected by him in his notice to show cause, but not in so many words in the eviction orders passed.” 11. The aforesaid observations indicate that these were clearly conjectures or surmises drawn by the appellate authority. A person cannot be evicted from public premiseson this basis. 12. The petition is, therefore, allowed. 13. The matter is remanded to the Estate Officer for a fresh decision. The Estate Officer shall permit the Bank to prove its case that it requires the premises bonafide by leading appropriate evidence, if so advised. 14. The Estate Officer shall also permit the petitioner to lead such evidence as required in rebuttal. The Estate Officer will also permit the petitioner's representative to submit oral arguments after the evidence is complete besides furnishing written argument, if so required. 7 15. Till then, the petitioner may continue to occupy the premises. 16. The proceedings shall be remanded to a person other than the person who has passed the impugned order. 17. In view of the above order, the Civil Application No.1033 of 2009 stands disposed of. ..... 8