:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5591 OF 2008 WRIT PETITION NO. 5591 OF 2008 WRIT PETITION NO. 5591 OF 2008 M/s. Golden Chariot Airport ] a Registered Partnership firm ] having its address at Terminal ] 1-A, Car Parking Area, ] Santacruz, Mumbai 400 099 ]..Petitioners versus 1. Airports Authority of India] International Airports Division ] Chhatrapati Shivaji International Airport, Santacruz, ] Mumbai 400 099 ] 2. Mumbai International ] Airports Pvt. Ltd., a company ] registered and incorporated ] under the provisions of the ] Companies Act, 1956, having ] its Registered office at ] Chhatrapati Shivaji International Airport, 1st floor, Terminal ] 1B, Santacruz (East), ] Mumbai 400 099 ]..Respondents Shri Joaquim F. Reis with Shri Vinay J. Hegde for the Petitioners. Shri Girish Kulkarni with Shri Mayur Shetty and Dipankar Das i/b. M/s. M. V. Kini & Co. for the Respondent No. 1. Shri Virag Tulzapurkar, Senior Advocate with Shri Birendra Saraf, Shri Farid Karachiwala, Shri Bhani K. Manke, Shri Suraj Iyer, Nitesh Ramawat i/b. M/s. Wadia Gandhy & Co. for the Respondent No. 2. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. Date of Reserving Date of Reserving Date of Reserving the Judgment : 30.01.2009 the Judgment : 30.01.2009 the Judgment : 30.01.2009 Date of Pronouncing Date of Pronouncing Date of Pronouncing :2: the Judgment : 04.03.2009 the Judgment : 04.03.2009 the Judgment : 04.03.2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The petitioners have challenged the Order in Appeal of the Principal Judge, City Civil Court at Bombay, dismissing their appeal and confirming the order passed by the Estate Officer under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as "the Act"). 2. The area in question is a space admeasuring 5,000 sq. ft. in front of Terminal 1-A at the Bombay Airport owned by the Airports Authority of India - the respondent No.1. The petitioners came into possession of the premises under an Agreement entered into by the respondent No.1 after accepting the petitioners bid. The petitioners thus obtained a Licence for establishment and running of a deluxe restaurant at the aforesaid premises. The petitioners were allowed to make a construction of semi permanent nature. On the expiry of the licence they were to take away their furniture and installation and hand over vacant possession of the premises. During the period of construction for the first 90 days a licence fee at concessional rate was :3: to be paid. The licence itself was terminable by giving three months notice by either side. The respondent no.1 had the right to terminate the licence in case of any breach of conditions of the licence by the petitioners. 3. The period fixed by the Agreement was extended by the respondent No. 1. The respondent No. 1 then called upon the petitioners to vacate the premises on or before 26th May 2000. Apparently, the petitioners did not do so and instead filed the Civil Suit in the Bombay City Civil Court where the Court granted an injunction restraining the respondent No.1 from taking any action for eviction without following the due process of law. 4. The respondent No.1 then initiated the present proceedings before the Estate Officer under Sections 4, 5, 5A and 5B and 7 of the Act. They prayed for eviction, removal of construction made by the petitioners and recovery of damages. The damages were claimed on the basis of fees fixed under a new agreement entered into by the respondents with another party for the subsequent period. In their reply to the application for :4: eviction, the petitioners raised various defences. According to them they were entitled for a set off for loss of business when they could not function for a year. They claimed that they had made a heavy investment on the basis of oral promises from some Officers of the Authority interalia and also pleaded the bar of limitation. 5. Initially the Estate Officer before whom this application was filed was one V.K. Monga. This officer functioned as an Estate Officer till 20.11.2005 or thereabouts. On 23.11.2005 a new Estate Officer one Narendra Kaushal issued Notice dated 16.12.2005 as the next date of hearing in the matter. The order for eviction has been passed on 7.3.2006 by the new Estate officer. This change of officers and the ensuing turn of events has given rise to the most serious contention between the parties. 6. According to Shri Reis, the learned counsel for the petitioners, the facts which give rise to this contention were accidentally discovered by the petitioners from the record and proceedings of the Estate Officer produced before the Civil Court. It must be stated that Shri Tulzapurkar and Shri :5: Kulkarni, the learned counsels for the respondents did not dispute the correctness of the facts and submitted that there was no attempt by the respondents to conceal any aspect of the matter. The relevant facts are that after Monga was transferred to Kolkatta and had relinquished charge of his office at Mumbai, he visited Mumbai. Kaushal the Estate Officer who had taken over and was acting as an Estate Officer apparently met him and then wrote him a letter dated 11.8.2005 referring to some discussion during their meeting at Mumbai and forwarding a photocopy of the proceedings in the present matter. The purpose stated by him in his letter "for forwarding the brief to the undersigned" was to enable Monga to go through the proceedings and forward to Kaushal "a brief". The intention of these two Officers can only be gathered from what actually transpired. On 12.9.2005 Monga wrote a letter to Kaushal referring to his visit to Bombay Airport on 8th and 9th August 2005 for briefing, in particular on the Estate case of M/s. Golden Chariot Airport - the petitioners. Monga enclosed a "Draft summary of the case giving background, applicants and respondents claims and written statement of both the parties." He further wrote as under: :6: "As you will find from the enclosures, analysis of the case has been done based on the proceedings held and facts & figures on record. Based on my analysis, the findings have also been appended explicitly for your perusal. The other aspects like damage & compensation have also been addressed to besides analyzing the request of the respondents for re-examination and for re-opening the case". What was enclosed is the entire draft order complete with the title of the case, the cause title showing the array of parties, the appearances on behalf of the parties. The draft is virtually the entire order beginning with a brief description of the proceedings, the narration of the facts, reference to the litigation in the Civil Court, a full discussion of the matter; the whole order neatly divided under heading such as Analysis, Findings, Damages / Compensation. The only thing absent is the operative part of the order, which was presumably left for Kaushal to write. On receiving the entire order or the judgment as it were, Kaushal then listed the matter on 2 or 3 occasions and then closed it for orders. He proceeded to then pass an order dated 7.3.2006. The order delivered by Kaushal is exactly the order drawn by and forwarded to him at his request by Monga. In other words, it is verbatim et literatim i.e. word for word and :7: letter for letter, Monga’s draft prepared at Kolkatta. One can see what Shri Tulzapurkar the learned counsel for the respondent No. 2 took pains to point out i.e. the difference in a few words, such as "Bombay" to "Mumbai", "process" to "action"; corrections such as "clause to evoke" from "cause to invoke". One cannot however see any difference in the substance of the order i.e. the statements of facts, the reference to the law including case law and the analysis and the findings and even the words used. Notwithstanding the superficial changes, it is obvious that the order is a verbatim i.e. word for word reproduction. Black’s Law Dictionary, Eighth Edition while dealing with "verbatim" makes the following statement in regard to its meaning : "Courts have repeatedly held that, in the context of the requirement that a trial record must be "verbatim", absolute word-for word accuracy is not necessary and insubstantial omissions do not make a transcript "nonverbatim". 7. Shri Reis, the learned counsel for the petitioners submitted that the action showed the grossest non application of mind and the most undesirable form of an abdication of his own powers by Kaushal in favour of Monga. :8: 8. Shri Tulzapurkar, the learned counsel for the respondent No. 2 supported the order. It was submitted by him that merely because Kaushal appears to have adopted the order in its entirety by reproducing it the way Monga has written it in Kolkatta, it cannot be said that Kaushal did not apply his mind to the case because indeed two persons may have such similitude in thoughts, that using the same language need not be considered non application of mind. Shri Tulzapurkar further submitted the situation is not very different from when a judicial officer gets transferred and his successor is called upon to pronounce the judgment prepared by the earlier Judge. 9. Having considered the rival submissions, it seems necessary first to put the events in proper perspective. There is no reason why Kaushal who was hearing the case and was bound to deal with the case on his own, forwarded a photo copy of the entire proceedings of the matter to Monga who had been transferred to Kolkatta with the stated purpose that Monga may forward ’a brief’ to him. The action is wholly unwarranted. After receiving the papers Monga wrote out the entire order, neatly divided by sub headings, such as, Analysis, Findings, Damages :9: and suggested that Kaushal may take further action as deemed fit. On receiving the papers in Mumbai Kaushal in his turn appears to have decided to verbatim reproduce the entire order with few cosmetic changes and adding the operative part, delivered it. This order has eventually been upheld by the Bombay City Civil Court. 10. Shri Tulzapurkar, the learned counsel for the respondent No. 2 indeed submitted that the inference that the Authority did not apply his mind cannot be drawn from a mere adoption of language. The submission must be rejected in the present case. Here there is not a mere adoption of the language by another but a gross and complete abdication of his own function by one officer and a complete surrender to the mental process, the point of view and even the words of another. The abdication and surrender in the present case is gross because there was not even a requirement of any statute to consult an officer who had earlier dealt with the case. This is in clear violation of Sections 4 and 5 of the Act, which requires the Estate officer to consider himself: (a) The cause if any shown by any person :10: against a notice; (b) consider any evidence produced by him in support, then give a personal hearing, satisfy himself that the public premises are in unauthorise occupation and then make an order of eviction for reasons to be recorded therein that the public premises shall be vacated etc. Section 5 reads as under:- "5. Eviction of unauthorised occupants.- 5. Eviction of unauthorised occupants.- 5. Eviction of unauthorised occupants.- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or a part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction [on or before the date specified in the said order or within fifteen days of the date of publication under sub-section (1), whichever is later,] :11: the estate officer or any other officer duly authorised by the estate officer in this behalf [may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary." 11. In Section 5 Parliament has not used the word "himself" for denoting who should consider the cause shown by the noticee and decide. To Parliament in its wisdom it must have been obvious that all these acts must be done by the Estate Officer on his own and upon an independent application of mind. This method of arriving at a decision is far too well known to require statements in statutes. 12. As to the requirement that the authority empowered by statute must himself apply his mind or whether it is permissible for such an authority to adopt the entire reasoning and decision taken or suggested by another, several decisions which do not squarely deal with such an issue were cited at the bar. 13. Shri Reis, the learned Counsel for the petitioner relied on the decision of the Supreme :12: Court in New India Assurance Co. Ltd. Vs. Nusli New India Assurance Co. Ltd. Vs. Nusli New India Assurance Co. Ltd. Vs. Nusli Neville Wadia & another (2008) 3 SCC 279. Neville Wadia & another (2008) 3 SCC 279. Neville Wadia & another (2008) 3 SCC 279. After reproducing Section 5 of the Act, Their Lordships have observed as follows:- "Where an application is filed for eviction of an unauthorized occupant it obligates the Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorized occupation of the public premises and that he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of its case also upon giving him a personal hearing, if any, as provided under Clause (ii) of sub-section (2) of Section 4 of the Act." It is no doubt true that Their Lordships observed that it is obligatory for the Estate Officer ‘to apply his mind so as to enable him to form an opinion’, and there is no doubt that Their Lordships meant that he must apply his own mind. It must be noticed that the issue did not arise in the same manner as it has arisen in this case. 14. The question now is whether Kaushal has "considered" the cause shown by the petitioners in accordance with Section 5 of the Act. The :13: requirement "to consider" imposed by Section 5 on the Estate Officer is complete and total. It does not allow the Estate Officer to partly consider the case and allow some one else to dictate to him some other part, or by submitting to the wish or instructions of another. In Administrative Law Eighth Edition by H.W.R. Wade & C.F. Forsyth, the learned Authors observed as follows: "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void." In the same treatise, the learned Authors have considered the permissible guidance which an Authority may take from another, in the following words: "Clearly these rules ought not to be carried to the length of preventing one government department from consulting another, or of preventing government agencies from acting :14: in accordance with government policy. There must always be a difference between seeking advice and then genuinely exercising one’s own discretion, on the one hand, and, on the other hand, acting obediently or automatically under someone else’s advice or directions." The present case is not that of one government department consulting another as a statutory or administrative necessity and it can be hardly said the Estate Officer Kaushal sought advice and then genuinely exercised his own discretion. The record indicates that the only effort which he made was to refer the entire matter to Monga for a decision and after the latter willingly obliged him, the entire judgment as it were, was adopted verbatim without exercising his own discretion. The only possible conclusion is that the Estate Officer Kaushal had failed to consider the cause shown by the Petitioners as required by Section 5 of the Act. 15. Section 5 requires the Officer who exercise the power under that Section to consider the cause himself. In the present case, the Estate Officer has not done so himself and has acted in gross violation of the mandate of the law. The Order of the Estate Officer is therefore null and void. :15: 16. At this stage, it may be noted that the Appellate Authority i.e. the City Civil Court has dismissed the petitioners appeal under Section 9 of the Act. The Appellate Court has accepted the Order passed by the Estate Officer and has even observed that the order delivered by Kaushal is similar to the draft forwarded by Monga and the reasoning is almost the same. The Appellate Court has however observed that it cannot be inferred from those circumstances that the Estate Officer did not apply his mind. Peculiarly, the Appellate Court has observed that the situation is similar to a situation when a Judicial Officer prepares a judgment but does not deliver it due to his transfer and the successor finds on record the point separated for consideration. The Appellate Court has not pursued the analogy thereafter. It is however clear that if the Appellate Court means to say that the Judgment prepared by the earlier Judicial Officer can be delivered by the succeeding Judicial Officer without hearing the case and as his own judgment without applying his mind, the observation of the Appellate Court is completely misdirected. The Appellate Court has further observed that merely because the reasoning given by Monga is repeated by Kaushal, it cannot be said that :16: the latter did not apply his own mind for deciding the matter. Obviously, this is not a case of repetition of someone else’s reasoning. It is a case where somebody else’s reasoning has been reproduced word to word as a result of complete abdication of function. Moreover, the Appellate Court has overlooked the fact that there was no justification whatsoever for Kaushal to forward the case papers to Monga who had been transferred to Kolkatta for any purpose much less for obtaining a draft order as it were. For the reasons stated hereinabove, the Appellate Order is liable to be set aside. 17. It is well settled that when a statute calls upon the Authority or officer to form an opinion and take a decision he must apply his own mind to the situation, consider its various aspects himself and give a decision himself. The law does not tolerate an officer who is entrusted with the responsibility of taking a decision referring the case to another officer and then verbatim adopting the latter’s reasonings and views without any effort on his own part. A consideration of the case by officer is the live link between the facts and the decision. Such an officer is not entitled to refer the matter to :17: any one else for receiving "brief" complete analysis and findings and then merely deliver what he receives as his own order. 18. At this juncture, it may be noted that many arguments were made by the learned counsels appearing for the parties on the basis of the roznama and the pleadings before the Estate Officer Kaushal. The issue agitated by the parties was whether Kaushal had properly closed the matter for orders on 23.12.2005 after hearing it on earlier dates, and whether the said Estate Officer has wrongly rejected the permission sought by the petitioners for examining the Officer of the respondent No. 1. Having held that the order is vitiated and void for the reasons stated earlier, it is not necessary to deal with this aspect of the matter. 19. The learned counsel for the respondents state that a case similar to the present case does not seem to have fallen for consideration of Courts. The learned counsel for the petitioners, however, relied on some decisions which emphasis on the importance of a Judge applying his own mind and recording of ultimate mental process leading from :18: dispute to its solution. In Smt Smt Smt. Swaran Lata Ghosh Swaran Lata Ghosh Swaran Lata Ghosh Vs. Harendra Kumar Banerjee & another AIR 1969 SC Vs. Harendra Kumar Banerjee & another AIR 1969 SC Vs. Harendra Kumar Banerjee & another AIR 1969 SC 1167 1167 1167, where Their Lordships observed in paragraph 6 as follows: "Trial of a civil dispute in court is intended to achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge, a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest; it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal. The Appellate Court will then have adequate material on which it may determine whether the facts are properly ascertained, the law :19: has been correctly applied and the resultant decision is just. It is unfortunate that the learned Trial Judge has recorded no reasons in support of his conclusion, and the