-: 1 :- wp-1345/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1345 OF 2011 Sanjay Kumar Rameshwarprasad Sharma. ..Petitioner. Versus Union of India and Ors. ..Respondents. Mr. R. N. Sanghavi for the petitioner. Mr. Sanjiv Punalekar for R-1 & 2. Coram : RANJIT MORE, J. Date : May 3, 2011. P. C. : 1. Heard learned counsel for the respective parties. 2. The petition arises from the proceedings for eviction under the Public Premises [Eviction of Unauthorised Occupants] Act, 1971 [for short, “the said Act”.] The petitioner was working as a Helper in the Unit-Run-Canteen of Station Headquarter, Dehu Road of respondent no.1 - Union of India, Ministry of Defence. As such he was allotted quarter bearing No.583/13 Type-II, Indrayani Darshan, Dehu Road owned by respondent no.1. [for the sake of brevity hereinafter referred as “the quarter”.] By the order dated 10th October 1999 the work of the petitioner was terminated and notice was given to him to vacate the quarter. This High Court in Writ Petition No.6154 of 1999 quashed and set aside the srp -: 2 :- wp-1345/11 termination of the petitioner on the ground that due process of law was not followed. Thereafter the petitioner was issued eviction notice on 30th April 2006 with a direction to vacate the quarter on or before 1/1/2007. This notice was challenged by the petitioner before the Central Administrative Tribunal, Mumbai [for short “CAT”] by filing Original Application No. 438 of 2007. The Central Administrative Tribunal by its order dated 13/3/2008 quashed the order / notice being beyond the procedure established by law. 3. Respondent no.2 by his notice dated 2nd July 2009, which the petitioner claims to have received on 6th July 2009, asked the petitioner to show cause, within 15 days, as to why he should not be evicted from the quarter. The petitioner filed reply to the said notice and raised defence that CAT vide its order dated 13th July 2008 had already directed respondent no.1 to re-instate him. He also pleaded that he continues to be a government servant and therefore there is no question of asking him to vacate the quarter. He further raised defence that by the order dated 13/3/2008 passed by CAT in Original Application No.438 of 2007, the earlier eviction proceeding was quashed. Respondent no.2 by his order dated 2nd July 2009 after considering the reply filed by petitioner, passed final order of eviction. 4. The petitioner being aggrieved, preferred an appeal under -: 3 :- wp-1345/11 section 9 of the said Act. The petitioner in addition to the grounds he had raised in reply to the notice of eviction, raised fresh grounds, namely, notice is bad, the quarter number mentioned in the notice is wrong and no opportunity of hearing was given to him. All these objections were overruled by the appellate authority and consequently his appeal came to be dismissed. The petitioner being aggrieved by this order, has filed the present writ petition. 5. Mr. Sanghavi, learned counsel for the petitioner submitted that the petitioner is a government servant as is evident from the orders passed by CAT and this court, whereby the earlier action of respondent no.1 terminating petitioner's work was quashed and set aside. He submitted that therefore the petitioner's occupation of the quarter cannot be termed as unauthorised. He further submitted that the petitioner was not afforded an opportunity of personal hearing and the impugned order of eviction is required to be quashed and set aside on this ground alone. He lastly submitted that eviction notice is bad and the correct quarter number is also not mentioned in the said notice. In support of his arguments, Mr. Sanghavi relied upon following Apex Court judgments. -: 4 :- wp-1345/11 (i) Nusli Neville Wadia v/s. New India Assurance Co., Ltd & Ors. [2006(4) BCR 345] (ii) New India Assurance Co., Ltd & Anr v/s. Nusli Nevelle Wadia & ors. [2007 DGLS (Soft) 1297] (iii) Nandini J.Shah and Ors v/s. LIC of India & Ors. [2008(5) BCR 234]. 6. Mr. Punalekar, learned counsel appearing on behalf of respondent nos.1 & 2, on the contrary, supported the impugned order. He submitted that in view of the Apex Court decision in R.R.Pillai v/s. Commanding Officer, H.Q.S.A.C. (U) & Ors. [2009 AIR SCW 5830], the petitioner cannot claim to be a government servant. He further submitted that the petitioner was offered opportunity of personal hearing, however, he has not availed the same. It was also submitted that eviction notice is perfectly legal and valid and the petitioner’s objections should not be entertained. 6. Having considered submissions of learned counsel for the respective parties and having gone through the impugned order alongwith compilation of writ petition and case laws cited by the learned counsel, I do not find merit in the petition. There is no dispute that the petitioner’s work was initially terminated by respondent no.1, however, the order terminating his work was -: 5 :- wp-1345/11 quashed and set aside by the CAT and the said order of CAT is confirmed by this Court. It is also an admitted position that earlier petitioner was directed to vacate the quarter by respondent no.2 and this order was also quashed and set aside. The termination order of the petitioner as well as subsequent order directing him to vacate the quarter was set aside on the basis of decision of the Apex Court in the case of Union of India v/s. Mohd. Aslam & Ors. reported in (2001) 1 SCC 720. The correctness of the law declared by the Supreme Court in Mohd. Aslam’s case (supra) was doubted and therefore a reference was made to the Three Judges’ Bench of the Supreme Court. That reference has been decided by the Supreme Court in R.R.Pillai’s case (supra) and the Apex Court has now held that the employees working in the Unit Run Canteens [URCs] are not government servants. In view of the law declared by the larger bench of the Supreme Court, now it is clear that CAT has no jurisdiction to entertain the applications of the employees working in the URCs. The petitioner, in view of this judgment, now cannot claim to be a government servant, resultantly his occupation of the said quarter becomes unauthorised. 7. The reply given by the petitioner to the eviction notice is annexed at Exhibit-“B” to the petition. In his reply, the only defence the petitioner has taken is that he continues to be a -: 6 :- wp-1345/11 government servant and the order of CAT under which the earlier direction given to him to vacate the said quarter came to be set aside. However, in view of the settled position of law mentioned above, it is clear that the petitioner is not a government servant and hence not at all entitled to claim any locus to the said quarter belonging to the Government. 8. Though the petitioner has submitted its reply to the eviction notice, he did not appear for hearing on the given date and time. From the affidavit-in-reply filed by the respondents, it is clear that the petitioner was asked to remain present on 17/6/2009 for personal hearing. However, he did not remain present. Respondent no.2-Estate Officer after considering the petitioner’s reply, and the settled position of law, has passed the eviction order against the petitioner. The only defence the petitioner has raised before the Estate Officer about his status as government servant coupled with the fact that he was not afforded an opportunity of personal hearing. I find no merit in the petitioner's contention that opportunity of hearing was not given to him by respondent no.2 before passing the eviction order. There is no dispute about the principle laid down by the Apex Court in Nusli Neville Wadia v/s. New India Assurance Co., Ltd & Ors. [2006(4) BCR 345], New India Assurance Co., Ltd & Anr v/s. Nusli Nevelle Wadia & ors. [2007 -: 7 :- wp-1345/11 DGLS (Soft) 1297] and Nandini J.Shah and Ors v/s. LIC of India & Ors. [2008(5) BCR 234]. However, the ratio of the said decisions is not applicable to the present case. 9. The validity and legality of the notice is also challenged by the petitioner on the ground that the correct number of the quarter is not mentioned in the eviction notice. I have perused the notice. In Clause (a) of Notice, the quarter number is mentioned as “583/11 Type II, Indrayani Darshan”. However, in the schedule, the correct Quarter number is mentioned, i.e., “583/13 Type II, Indrayani Darshan”. The petitioner himself has brought to the notice of Estate Officer that the correct quarter number is “583/13 Type II, Indrayani Darshan”. Thus, there is typographical error in Clause (a) of the eviction notice. The petitioner is in possession of only one quarter, namely, “583/13 Type II, Indrayani Darshan”. The petitioner understood this notice in respect of the said quarter and filed reply to the eviction notice qua “583/11 Type II, Indrayani Darshan” only. In these circumstances, some typographical error in mentioning quarter number would not render the eviction proceedings illegal. 10. The petitioner also submitted that eviction order is passed -: 8 :- wp-1345/11 under section 4 of the said Act. I have gone through the said eviction order, which is annexed at Exhibit-“C” to the petition. The order makes reference to the said notice under section 4. The eviction order further makes reference to the reply and thereafter final order of eviction is passed. In that view of the matter, the petitioner’s objection cannot be entertained. 11. Taking overall view of the matter, I find that the petitioner cannot claim to be a government servant in view of the position settled by the Apex Court in R.R.Pillai’s case (supra) and therefore his occupation of the quarter becomes unauthorised. The petitioner's reply to the eviction notice is considered by the Estate Officer. The petitioner was also afforded an opportunity of personal hearing but he did not remain present. The only defence to the eviction proceeding was that petitioner was a government servant and earlier direction to him to vacate the quarter was quashed and set aside. These directions were based on the decision of the Apex court in Mohd. Aslam’s case (supra). However, the said decision being overruled by the larger bench of the Supreme Court in R.R.Pillai’s case (supra), I find no substance in the petition and same is accordingly dismissed. 12. At this stage, Mr. Sanghavi, learned counsel for the petitioner -: 9 :- wp-1345/11 seeks sometime to approach the higher Court. The earned counsel for the respondents opposes the prayer. However, in order to enable the petitioner to approach higher Court and in the interest of justice, the interim relief granted by an order dated 17/2/2011 shall remain in operation for the period of 10 weeks from today. (RANJIT MORE, J.)