IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 325 OF 2008 M/S. AQUARIUS PRIVATE LIMITED ... Petitioner Versus THE ESTATE OFFICER AND ANR., ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. Jimi John,Advocate for the petitioner. Mr. V. B. Nadkarni, Senior Advocate with Mr. Y.V. Nadkarni, Advocate for the respondents. Coram:- C. L. PANGARKAR, J. Date:- 30th January, 2009 P.C. 1. This writ petition is filed against the order passed by the Additional District Judge in an appeal under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The respondent herein is a Port Trust. The Port Trust contends that it is the owner of the property where the petitioner is carrying out the repairs of the Barges. Since the repairs were being carried out within the area belonging to Port Trust, the Port Trust decided to take action against the petitioner. Accordingly, the Estate Officer issued notice to the petitioner under the Public Premises (Eviction of Unauthorized Occupants) Act to show cause why the petitioner should not be evicted from the premises. 2. The petitioner submitted a reply to the said show cause notice and also filed the written statement. It was contended in the written statement that the area i.e. creek in which the repairs are being carried out, does not belong to the Port Trust. Since it is not the owner, it had no right to evict the petitioner. It was also contended that it was merely channel of water which was being used for discharge of the drain water etc. and the Port Trust had no authority to evict the petitioner from the that area. Negativing this contention, the Estate Officer directed the eviction of the present petitioner. 3. The petitioner, therefore, preferred an appeal before the District Judge bearing Miscellaneous Civil Appeal No.5/1990. The learned District Judge found that the creek area in which repairs were being carried out by the present petitioner, did not belong to Port Trust and, therefore, was not public premises within the definition of the Public Premises (Eviction of Unauthorized Occupants) Act. Holding so, he allowed the appeal and set aside the order of Estate Officer. The respondent Port Trust filed a writ petition before the High Court bearing No.319/1993. The High Court, after consideration of the various definitions etc., found that the area which was creek area, where the repairs were being carried out, would fall within the definition of public premises under the Public Premises (Eviction of Unauthorized Occupants) Act and remanded the matter back to the District Judge to decide the matter afresh. The matter was appeal and was once again heard by the learned Additional District Judge. He found that enough evidence was placed by the respondent before the Court to show that the area, in which the barges were being repaired by the present petitioner, belongs to the Port Trust. He found that the water body in which such repairs were being carried out, can also form the part in the Public Premises and holding so, he confirmed the eviction order. 4. The present petitioner feels aggrieved by the order and has preferred this writ petition. 5. Mr. Lotlikar, learned Counsel for the petitioner, submits that the petitioner was not given hearing by the Port Trust Authority as contemplated by Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act. Second ground that was raised by him, is that the disputed premises could not be treated as public premises as such because the creek cannot fall within the definition. 6. As far as the first ground is concerned, the learned Counsel for the respondent, brings to my notice that when appeal was heard before the District Judge, the present petitioner had not specifically raised any ground that he was not given any opportunity of personal hearing. After having gone through the appeal memo, it is apparent that no such specific ground is raised. Mr Lotlikar submits that the petitioner had raised before the First Appellate Court the contention that without examining the pertinent question, raised by the party, the respondent had passed the impugned order. No doubt, it is so alleged in the appeal memo, but then it has to be borne in mind that the present petitioner in para 4, has contended that the summons was issued to the present petitioner by the respondent calling upon it to appear before the respondent on 26.05.1988 and the appellant i.e. the petitioner did appear. Thereafter, notices were repeated by the respondent and the matter was specifically fixed for hearing in September 1988 and thereafter, in July 1989. These allegations in para 4, clearly go to show that the petitioner was summoned to appear before the respondent in person and the matter was adjourned in order to give opportunity to the petitioner to show cause why eviction should not be ordered. It can not lie in the mouth of the petitioner that no personal hearing was given by the Estate Officer. Even no such specific ground was raised before the Appellate Court as such. The same ground cannot be raised in the petition as is held in the decision of this Court in D.D. Kalal V. V. Shioram(FB) reported in AIR 1971 Bombay 151. 7. The learned Judge of the First Appellate Court has considered the definition of the words 'premises', 'public premises' under the Public Premises (Eviction of Unauthorized Occupants) Act as well as the definition of word 'land' as defined in the Major Port Trust Act. After consideration of these definitions together, the learned Judge has rightly found that the area of creek where the petitioner carries out repairs to the Barges, is public premises. I do not find that the interpretation as put by the learned Judge,is in any way perverse or even wrong. In view of this, I do not find that there is any substance in the writ petition. It is dismissed in limine. 8. At the request of the learned Counsel for the petitioner, it is directed that the petitioner should not be evicted for a period of 4 weeks with the understanding the the petitioner shall not alienate, transfer or create any third party interest or part with possession or induct any third party on the said premises. C. L. PANGARKAR, J. SMA