: 1 : wp-4720-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4771 OF 2011 WITH WRIT PETITION NO. 4768 OF 2011 WRIT PETITION NO. 4773 OF 2011 WRIT PETITION NO. 4782 OF 2011 M/s. Global Marketing .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4718 OF 2011 WITH WRIT PETITION NO. 4719 OF 2011 WRIT PETITION NO. 4720 OF 2011 WRIT PETITION NO. 4721 OF 2011 Sara Associates .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4766 OF 2011 Abdul Aziz Mohd. Kasam Shaikh .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4767 OF 2011 Abdul Rehman Mohammed Yasin Ansari & Anr .. Petitioners v/s. The Estate Officer & Ors. .. Respondents : 2 : wp-4720-11=.doc WITH WRIT PETITION NO. 4769 OF 2011 Mohammed Yusuf Mohammed Gaus & Anr. .. Petitioners v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4770 OF 2011 Amir Jahan Ikhlaq .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4772 OF 2011 Anas Zainuddin Badri .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4777 OF 2011 Mrs. Ayesh Mohd. Sabir Chawantiwalla & Anr. .. Petitioners v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4779 OF 2011 Shakuntala B. Patted .. Petitioner v/s. The Estate Officer & Ors. .. Respondents : 3 : wp-4720-11=.doc WITH WRIT PETITION NO. 4780 OF 2011 Noor Mohd. Yusuf Millwala & Farhan Yusuf Millawala and Anr. .. Petitioners v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4781 OF 2011 Ishtiyaq Ahmed Abdul Majeed Qureshi .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4783 OF 2011 Mohd. Hussain Mohd. Yusuf Sakharwala .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4784 OF 2011 Arif Yunus Navsariwala .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4785 OF 2011 Zubaida Ismail Bilakhiya .. Petitioner v/s. The Estate Officer & Ors. .. Respondents : 4 : wp-4720-11=.doc WITH WRIT PETITION NO. 4786 OF 2011 Farida Mohd. Zakaria Shaikh .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4787 OF 2011 Mohammed Rafiq M. Gaus & Mohammed Shafiq M. Gaus and Anr. .. Petitioners v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4788 OF 2011 Mohd. Azam Noor Mohd. Bagban .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4789 OF 2011 Roshan Banu Ali Husain Hemani .. Petitioner v/s. The Estate Officer & Ors. .. Respondents WITH WRIT PETITION NO. 4790 OF 2011 Shaikh Ashfaq Suleman .. Petitioner v/s. The Estate Officer & Ors. .. Respondents : 5 : wp-4720-11=.doc WITH WRIT PETITION NO. 4791 OF 2011 Ishwar Manglomal Gajra & Anr. .. Petitioners v/s. The Estate Officer & Ors. .. Respondents ......... Mr. S.K. Srivastav with Ms. Gayatri Sharma i/b S.K. Srivastav & Co. for the petitioner/s in WP 4720/11, 4218/11, 4719/11, 4721/11. Mr. P.K. Dhakephalkar, Sr. Counsel with Mr. S.K. Srivastav & Smt. S.T. Shaikh with Ms. Gayatri Sharma i/b S.K. Srivastav & Co. for the petitioner/s in WP-4766/11 to 4791/11 Mr. Kevik Setalwad with Mr. Jaydeep Deo & Rajinder Kumar for respondent nos. 2 and 3 in all petitions. ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 10th AUGUST, 2011. Not on Board. Upon production taken on board. P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. 3. Respondent no.1, the Estate Officer who has passed the impugned order is a formal party. Accordingly, by consent of the : 6 : wp-4720-11=.doc parties, we proceed to hear these matters for final disposal forthwith. 4. For the nature of order that we propose to pass, it may not be necessary to mention the factual background in detail. It is indisputable that the land in question is owned by the respondent no.2, PWD. Some time on 6th July, 1939, the same was leased out to Mr. Mohamedbhoy Abdullabhai Moonim, in his individual capacity. It appears that he later on transferred all his rights in the property in question in favour of a private limited company of which, he was the Director and Shareholder i.e. M/s. Abdullabhai Faizullabhai Pvt. Ltd.. The said private limited company later on transferred part of the property in favour of Sara Associates, a partnership firm, some time in September, 1997. It appears that M/s. Abdullabhai Faizullabhai Pvt. Ltd. assigned their rights in the disputed property in favour of Global Marketing, a partnership firm. The said Global Marketing then entered into correspondence with the Executive Engineer and requested to transfer all the rights in its favour in respect of the suit land. The Estate Officer having realised that the property was unauthorisedly developed and third party rights were created therein, initiated action under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. He issued show cause notices to the occupants in the tenements in the structure constructed on the suit land. Each of : 7 : wp-4720-11=.doc the occupants were served with show cause notices. The Estate Officer issued show cause notice also to Global Marketing, as to why action should not be proceeded under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act of 1971. 5. On the basis of the said show cause notices, the proceedings were initiated against each of the occupants, who are petitioners before this Court in the respective petitions. In the said proceedings, the principal and the only defence taken on behalf of the occupants / petitioners herein, was that no eviction notices have been issued to Sara Associates and Global Marketing and only action is taken against the said occupants / petitioners. For that reason the matter cannot be proceeded against the occupants / petitioners, who are occupying the tenements in the capacity of tenants of Global Marketing or Sara Associates, as the case may be. The Estate Officer however, negatived that objection and proceeded to pass order of eviction against each of the occupants / petitioners herein, on the finding that they were not in a position to produce any document in their favour, executed by the appropriate Authority under Article 299 of the Constitution of India. On the said finding, the Estate Officer proceeded to dispose of the show cause notices and ordered eviction of the concerned occupants the petitioners herein. These orders were challenged before the City Civil : 8 : wp-4720-11=.doc Court at Bombay by way of separate appeals filed by each of the petitioners. The said appeals have been disposed of together by common judgment and order dated 19th and 20th May, 2011. Against the said decision, the present petitions have been filed. 6. The principal argument of the Counsel appearing for the petitioners is that the Authority without issuing notices to Sara Associates and Global Marketing, could not have proceeded against the petitioners herein merely because they are occupants of the concerned tenements. It was argued that if the notices were issued to Sara Associates and Global Marketing and those parties were able to produce material to establish the fact that the said parties were not unauthorised occupants of the disputed property, since the petitioners herein were claiming rights in the respective tenements through them, the question of evicting the petitioners on the finding that they are unauthorised occupants would not arise. Moreso, until the Estate Officer did not record finding that the said Sara Associates and Global Marketing had no rights to induct third party as their tenant in the disputed property. 7. Counsel appearing for the respondents supported the opinion recorded by the Estate Officer as well as the City Civil Court, which is : 9 : wp-4720-11=.doc impugned in these petitions. 8. Having heard Counsel for the parties, we are of the considered opinion that the respondent No.1 having issued notices to Global Marketing was expected to take those proceedings to its logical end and could not have selectively proceeded against the petitioners, who were occupying the tenements in the building, which itself was constructed by Global Marketing or Sara Associates, as the case may be. It is fairly accepted by the Counsel for the respondents that the Estate Officer did not issue any notice to Sara Associates so far. We have no hesitation in holding that unless the Estate Officer were to proceed against the Sara Associates and Global Marketing, who claimed to be sub-lessee and assignee respectively and give them opportunity to establish the fact that they were in lawful occupation of the land and building constructed thereon, the question of proceeding against the petitioners herein, who are merely occupying the tenements in the said building as tenants, would be not only half hearted attempt but also improper. 9. We, therefore, while setting aside the impugned decisions, restore the show cause notices issued to the petitioners herein to the file of the Estate Officer to its original number, to be proceeded afresh after giving notice to Sara Associates. It will be open to the Estate Officer to : 10 : wp-4720-11=.doc segregate the proceedings against Sara Associates and Global Marketing and to decide the same in the first instance, if he finds it so convenient. 10. At any rate, the Estate Office would be obliged to first pronounce upon the stand taken by the Sara Associates and Global Marketing and depending on the outcome thereof, may have to take appropriate action against the petitioners herein, who are merely occupants in the tenements of the building constructed by Sara Associates or Global Marketing, as the case may be. More so because the petitioners herein are not claiming independent rights in the tenements occupied by them and have made it more than clear in the pleadings filed before the Estate Officer as well as the Writ Petition and also reiterated that position through their Counsel that they would stand or fall on the basis of finding to be recorded against Sara Associates and Global Marketing respectively. 11. Accordingly, we dispose of these petitions with liberty to the Estate Officer to issue show cause notice to Sara Associates in the first place and thereafter proceed against Sara Associates and Global Marketing and also the petitioners herein, who are occupants in the tenements in the building in question constructed on the disputed land, : 11 : wp-4720-11=.doc together or one after the other, as may be convenient to the Estate Officer. 12. Counsel for the respondents submits that the Estate Officer may be in a position to issue show cause notice to Sara Associates within ONE week from today. That assurance is accepted. After the show cause notice is issued, within one week therefrom and not later than two weeks from the issuance of show cause notice to Sara Associates, the matter be taken up by the Estate Office, within which time Sara Associates as well as Global Marketing would file their response and documents on which they propose to rely. Counsel appearing for Sara Associates Mr. Srivastav on instructions states that Sara Associates would waive their rights of statutory notice period, if any, and would abide by this arrangement. Counsel appearing for Global Marketing also assure us on the same terms. As a matter of fact, show cause notice is already issued to Global Marketing, the Global Marketing waives notice for appearance before the Estate Officer. Both the Sara Associates and Global Marketing would appear before the Estate Officer on 25th August, 2011 at 11.00 a.m. on which date, the Estate Officer may proceed with the hearing of the matters on the terms already indicated above. The Estate Officer shall decide those proceedings in accordance with law. All questions raised are left open to be decided : 12 : wp-4720-11=.doc by the Estate Officer on its own merits and in accordance with law. 13. Looking to the gravity of the case stated in the show cause notice, already issued to the petitioners and Global Marketing, we hope and trust that the Estate Officer shall conclude the said proceedings as expeditiously as possible and preferably within SIX weeks from 25th August, 2011. Needless to observe that each of the petitioner will either appear personally or through their representative before the Estate Officer on 25th August, 2011 at 11.00 a.m., when the show cause notices already issued against them would proceed further for hearing. 14. Petitions are disposed of in the above terms. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)