1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.463 OF 2009 Kadamba Transport Corporation Ltd., through their Managing Director, Shri S.V. Naik, having office at Paraiso de Goa, Alto Porvorim, Bardez, Goa. …. Petitioner V/s 1. Mrs. Madhu Mehendiratta, House No.711, Lalita, SBI Colony, Torda, Alto-Porvorim, Goa. 2. Officer on Special Duty and Estate Officer, Kadamba Transport Corporation Ltd., having office at Paraiso de Goa, Alto Porvorim, Bardez, Goa. …. Respondents Mr. A.R. Kantak, Advocate for the Petitioner. Mr. M.S. Usgaonkar, Senior Advocate with Mr. Sudin Usgaonkar, Advocate for Respondent No.1. CORAM : N.A. BRITTO, J. DATE : 10th JUNE, 2010 JUDGMENT: Rule. By consent, heard forthwith. 2. This Writ Petition is directed against the order dated 18/12/2008 of the learned District Judge, Panaji passed in an appeal filed under Section 12(2) of the Goa Public Premises (Eviction of Unauthorized Occupants) Act, 1988 (Act, for short). 2 3. The respondent no.1 was occupying premises belonging to the petitioner pursuant to a lease dated 10/05/1985. The petitioner herein by notice dated 14/11/2002 called upon the respondent no.1 to hand over vacant and peaceful possession of the said premises and to pay arrears of license fees and as the said notice was not complied with, a complaint was filed to the Estate Officer, who issued a show cause notice dated 24/05/2003. The Estate Officer in the said notice stated that the respondent no.2 was in unauthorized occupation of the premises on the grounds of (1) non payment of license fees amounting to Rs.3,16,347.28 as on 28/02/2003 and (2) non renewal of leave and license agreement. 4. The respondent no.1, therefore, was directed in terms of Section 4(1) to show cause on or before 16/06/2003 why an order of eviction should not be against him, and further was directed in terms of Section 4(2)(b)(ii) to appear before the Estate Officer to show cause and for personal hearing on 16/06/2003. According to the petitioner, the said notice was issued in Form A as provided in the schedule appended to the Act. Respondent No.1 filed a reply. In the said reply, the respondent no.1, inter alia stated, that he was not interested in the premises. He stated that both the grounds were unsustainable and further stated that non-payment of licence fees did not make him an unauthorised occupant, etc. 3 5. At present, there is no dispute that the respondent no.1 has ceased to occupy the premises i.e. shop no.32. The dispute is only as regards the finding given by the learned District Judge that no arrears of license fees could have been recovered from respondent no.1 in the absence of a notice contemplated under Section 10(4) of the said Act. In fact, the Estate Officer by order dated 27/08/2007 ordered the eviction of the respondent no.1 and required him to pay Rs.22,22,138/- with interest at 10% per year. 6. In the opinion of the learned District Judge the show cause notice dated 24/05/2003 was only as regards the order of eviction on the ground for non-payment of license fees and non-renewal of leave and license agreement and that there was non compliance with the provisions of Section 10(4) of the Act. 7. Admittedly, Section 4 of the Act deals with a notice to show cause against an order of eviction and Section 10 of the Act deals with power to require payment of rent or damages. Notice in the case of former is to be sent in Form A and in latter case in Form O. 8. Did the Act contemplate two notices to be sent in a case where the occupant was in unauthorised occupation and was also liable to pay arrears of fees? 4 9. Shri Kantak, the learned Counsel on behalf of the petitioner has submitted that the show cause notice to the respondent no.1 was issued in the prescribed form, namely Form A. He further submits that in case of recovery of arrears of rent, Section 10 provides a notice to be given in Form O. Learned Counsel has further submitted that the controversy involved herein is no longer res integra and is already covered by a Division Bench judgment of this Court in the case of the very petitioner i.e. M/s. Kadamba Transport Corporation Ltd., V/s. Shri Sitakant G. Bhobe (1991 (2) GLT 55). 10. However, Shri Usgaonkar, the learned Senior Counsel appearing on behalf of respondent no.1 submits that the said judgment is not applicable to the facts of the case. Firstly, because in that case, prior to the proceedings initiated by the Estate Officer, a notice was given on behalf of KTC calling upon the respondents therein to vacate as well as to pay the arrears of rent. Learned Senior Counsel further submits that non-payment of arrears of rent was not a ground of eviction and the ground of eviction put forward in the present case was non-renewal of leave and license agreement. Shri Kantak, as regards the first submission, has submitted that in this case also prior to initiation of proceedings before the Estate Officer, on behalf of the petitioner, a notice dated 14/11/2002 was issued to the respondent no.1 calling upon 5 him to vacate the suit premises, as well as, to pay the arrears of rent. 11. There is no dispute that the reported case of KTC was with reference to the proceedings of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the provisions of Section 4 & 7 of that Act correspond to Section 4 & 10 of the present Act. Learned Senior Counsel also submits that the Estate Officer had also called upon the respondent to pay the arrears of rent in that case which is not the case in the present case. 12. A perusal of the reported Division Bench judgment clearly shows that the controversy involved herein is fairly covered by that judgment of this Court. The learned Division Bench has clearly held that; “once notice was given and that show cause notice specified the ground of eviction, namely, the non-payment of the arrears of license fees from November 1981, the first respondent had ample of opportunity of knowing the ground of his eviction and the fact that his eviction was sought together with the recovery of arrears of license fees.” The learned Division Bench therefore held that they were unable to accept that in addition to the show cause notice issued, a separate show cause notice under sub-section (3) of Section 7 (now corresponding to sub- section 3 of Section 10 was necessary. The learned Division Bench further held that on the facts and circumstances of the case, the notice 6 given by the Estate Officer also covers the requirement of sub-section (3) of Section 7 and therefore they fail to understand as to how there could be any complaint that Section 7 (now Section 10) was not complied with by the Estate Officer. 13. The ratio of the Division Bench judgment dated 14/11/1991 is squarely applicable to the facts of the case at hand. There was a notice dated 14/11/2002 sent to respondent no.1 calling upon him to hand over vacant possession of the said premises and to pay arrears of rent. The show cause notice clearly specified that one of the grounds of eviction was non payment of license fees of Rs.3,16,347.28 as on 28/02/2003. The respondent no.1 did not dispute the said payment in his reply. His reply on the contrary shows that a demand was made against him for the said payment. In the circumstances therefore there was no need of another show cause notice in Form 'O' having been issued to him. The finding of the learned District Judge is not as per law laid down by this Court . The answer to the question formulated herein above, has got to be in the negative. 14. In the light of the said judgment and on the facts of the case at hand, the conclusion arrived at by the learned District Judge can be faulted. The petitioners therefore are entitled to the arrears of fees of Rs.3,16,347.28 as on 28/02/2003 which have now been further 7 quantified by the Estate Officer to Rs.22,22,138/- with simple interest at 10% per annum. 15. Consequently, the Writ Petition succeeds. The impugned order of the learned District Judge dated 18/12/2008 is hereby set aside and that of the Estate Officer is restored, with no order as to costs. Rule made absolute on the above terms. N.A. BRITTO, J. NH/-