* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.439 OF 2008 Ganpat B. Rawool ] Age : 70 years ] R/o : Indian Power Laundry, ] Applicant David Sassoon Industrial School, ] 83, T.H. Kataria Marg, Mahim, ] Mumbai – 400 016 ] Vs. 1. Children's AID Society ] through its Chief Officer ] 83, T.H. Kataria Marg, Mahim, ] Mumbai – 400 016 ] ] 2. The Competent Authority For ] Respondents Greater Mumbai ] 404, 4th Floor, D.D. Bldg. ] Old Custom House, S.B. Marg ] Fort, Mumbai – 400 001 ] ] 3. The Hon'ble Principal Judge ] City Civil Court, Mumbai ] Mr. N.V. Walawalkar i/by Mr. V.Y. Sanglikar, Advocate for Applicant. Mr. G.S. Godbole with Mrs. Geeta Mulekar Advocate for respondents No. 1 and 2. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 18h November, 2008 P.C. : 1. By this Revision Application, the applicant challenges order dated 21st June, 2008 passed by The Principal Judge, Bombay City Civil Court at Mumbai on Misc. Appeal No.110 of 2008 on the ground that the learned Judge has committed jurisdictional error in deciding the appeal. * 2 * 2. Respondent no.1 is the Children's Aid Society. It is a statutory body working under the Juvenile Justice Act. The affairs of the society are controlled by the Government of Maharashtra. The Chief Officer of the Society is a Gazetted Class-I Officer appointed by the Government of Maharashtra under the control of Ministry of Women and Child Welfare. The Home Minister is the President of the Society and the Minister for Women and child Welfare is the Vice-President. The Society is funded by the Government of Maharashtra. It runs and maintains childrens' home, one of them being David Sassoon Industrial School at Matunga, Mumbai. The appellant carries on laundry business in the name of Indian Power Laundry. As respondent no.1 was desirous of imparting training to its inmates in power laundry work, it allowed the appellant to install power laundry plant in the premises. For that purpose “Training Agreement” came to be executed between the appellant and respondent no.1 from time to time, the last agreement being dated 31st October, 1994. The period of the agreement was of five years which expired on 30th September, 1999. Pursuant to the agreement, the appellant has been in possession of a shed admeasuring 2788 sq.feet alongwith the closed open space admeasuring 3688 sq.feet situate in the compound of David Sassoon Industrial School, Matunga. The premises in occupation of the appellant are hereinafter referred to as disputed premises. * 3 * 3. One Kamal Singh had filed a public interest petition being Writ Petition NO. 1509 of 1998 drawing attention to the deficiencies in the various children's homes and praying for corrective directions to the Government. The Division Bench of this court presided over by the Hon'ble The Chief Justice had issued detailed directions pursuant to which two officers of the court had visited the Children's homes including David Sassoon Industrial School, Matunga and submitted their report. The Writ Petition was finally disposed off by the order dated 6th August, 1999 directing the State Government to look into the deficiencies and suggestions given in the report with further directions to comply with various provisions of Juvenile Justice Act, 1986 within a period of three months. It also gave directions as regards removal of encroachments on the premises of the children's homes. 4. As mentioned above the agreement in favour of the applicant was to expire on 30th September, 1999. A few months prior thereto, respondent no.1 sent letter dated 20th March, 1999 terminating the agreement. In the letter, it referred to the directions given by this court in Writ Petition No. 1509 of 1998 and stated that it intends to expand vocational training activities for which it requires land in possession of the applicant. As provided under Clause 17 of the Training Agreement, the appellant was given three months time to remove his belongings from the disputed * 4 * premises. The appellants' advocate replied vide letter dated 12th April, 1999 contending that the appellant has been in occupation of the disputed premises for a long time and has created an infrastructure for imparting training to the inmates of the school. He also contended that there is sufficient land lying vacant and un-utilised for expansion of the training activities by respondent no.1. After some more correspondence, when training agreement expired by efflux of time, respondent no.1 by its letter dated 1st November, 1999 called upon the appellant to vacate the disputed premises and hand over possession since the training agreement had expired. Since the appellant failed to comply with the request, on the application of respondent no.1, the competent authority sent notice dated 17th November, 1999 under Section 4(2) of the Bombay Government Premises Eviction Act to commence eviction proceedings. The appellant then produced letter dated 16th November, 2000 issued by Women and Child Welfare Department, Mantralaya informing that the government had decided to extend the agreement with the appellant for ten years. Therefore, the then competent authority passed order dated 30th April, 2001 keeping the eviction case in abeyance. Later, by the order dated 24th August, 2005 he closed the case by giving liberty to respondent no.1 to file fresh case, if necessary in future. 5. However, by subsequent instructions communicated * 5 * by letter dated 16th September, 2005 the earlier instructions regarding renewing the agreement stood withdrawn. Consequently, respondent no.1 once again filed fresh eviction proceedings under his “P” Form dated 17th April, 2006 to evict the appellant from the disputed premises. The competent authority then served show cause notice dated 9th May, 2006 under Section 4(2) of the Bombay Government Premises Eviction Act, 1955. The appellant sent his reply dated 18th August, 2006 and Eviction Case No. 23860/ 489/2008 came to be filed against the appellant. The respondent attended the eviction proceedings and filed his written statement. Both the sides filed their written submissions and also advanced oral arguments. The competent authority passed the eviction order dated 9th April, 2008 holding that agreement between the appellant and respondent no.1 having been expired, the appellant was in unauthorised occupation of the disputed premises. He also recorded his satisfaction, that the disputed premises were required by the government for carrying out statutory provisions of Juvenile Justice Act, 1986 for imparting vocational training for the children of respondent no.1-Society. 6. Being aggrieved by the order, the appellant preferred appeal under Section 7 of the Bombay Government Public Premises Eviction Act, 1955 to the Bombay City Civil Court at Bombay. That appeal was heard and finally disposed off by the impugned order. The learned Principal Judge has * 6 * held that respondent No.1 is “State” and disputed premises are “Government Premises”. Further the “Training Agreement” executed with the appellant having expired, the appellant is in unauthorised occupation of the disputed premises. 7. Mr.Walawalkar, learned counsel for the appellant submits that the learned Principal Judge has committed jurisdictional error in holding that the disputed premises are government premises attracting application of the Bombay Government Premises Eviction Act. According to Mr.Walawalkar, respondent no.1 is a public charitable trust and registered as a Society. It is not a government body and therefore provisions of Bombay Government Premises Eviction Act, 1955 are not applicable. The learned Principal Judge has rightly considered the status of respondent no.1 as described at para 2 above and held that respondent no.1 is to be treated as “State”. He has also referred to the definition of the Government Premises given in Section 2(b) of the Act and held that disputed premises fall within the definition. Mr. Godbole, learned counsel for respondent no.1 draws attention of the court to the letter dated 26th July, 2007 sent by the appellant to the learned Minister for Women and Child Welfare, a copy whereof is annexed by the appellant to the present proceedings. In the said letter, the appellant refers to proceedings filed by him in civil court in the year 1963 and complains that the only decision he got from the civil Court after 17 long years is the * 7 * decision that the disputed premises are government premises. In that case, the appellant cannot be allowed to contend that the disputed premises are not government premises. Mr.Godbole next submits that this court has already held that premises of the very Children's Home are government premises. He has produced copy of order dated 16th April, 2008 passed by this court in Writ Petition No. 1438 of 2008 upholding the order of eviction passed by the learned Principal Judge, Bombay City Civil Court in respect of another person occupying some portion in David Sassoon Industrial School, Matunga. Lastly there is the decision of the Apex Court in Sheela Borse vs. Children AID Society reported in AIR 1987 Supreme Court Page 656 referred to in the impugned order. In the said decision, the Apex Court has held that respondent No. 1 is to be treated as “State”. In these circumstances, I find no substance in the submission advanced on behalf of the appellant that disputed premises are not government premises and the provisions of Bombay Government Premises Eviction Act are not attracted to it. 8. Mr.Walawalkar submits that the very information supplied by the Chief Officer of respondent NO. 1 to the competent authority for initiating action of eviction was incorrect. He draws attention to Column No.13 of the intimation dated 7th December,1999 from the Chief Officer of respondent No.1 to the competent authority. Item No.13 is * 8 * in respect of other additional information. It is mentioned therein that private power laundry being run in the compound of David Sassoon Industrial School, Matunga is not very conducive to the security of the children. Mr. Walawalkar points out that the question of security of the children has never cropped up at any stage in any of the proceedings. Therefore reference thereto in the intimation to the competent authority would amount to supplying incorrect information and any action taken by the competent authority based on such intimation given should not stand scrutiny of law. The intimation pointed out by Mr. Walawalkar is in respect of the earlier eviction proceedings against the applicant. These proceedings came to be closed by the order of the competent authority. Therefore, any incorrect information allegedly given to the competent authority in the old eviction action can have no bearing on the subsequent independent eviction proceedings. It is then submitted by Mr. Walawalkar that reference to the Writ Petition filed in the High Court and the orders passed therein in the intimation to the competent authority would naturally bring some kind of a pressure on the competent authority who would feel compelled to pass the eviction order. Besides the applicant is not a party to that Writ Petition. Reference to the Writ Petition and the orders passed therein was inevitable because that has probably spurred respondent no.1 in doing some introspection as regards it's functioning. However what would be relevant is * 9 * whether there was in fact some pressure experienced by the Competent Authority. This would get reflected in the eviction order. Perusal of the eviction order passed by the competent authority does not create any impression that the order has not been passed objectively. The reference to the Writ Petition comes towards the fag end of the order. 9. Mr.Walawalkar, next submits that notice sent by the competent authority under Section 4(2) of the Bombay Government Premises Eviction Act, 1955 does not indicate prima-facie satisfaction of the competent authority in issuance of the show cause notice, as required by the decision of Division Bench of this court in Minoo Framroze Balsara V/s. The Union of India and Ors. reported in AIR 1992 Bom.page 375 . The decision cited holds that prima- facie satisfaction of the competent authority must be twofold. Firstly, the addressee is in unauthorised occupation of public premises and secondly that he should be evicted. Perusal of the notice sent by the competent authority in the instant case, in my opinion, cannot be said to be deficient in this regard. The notice starts with the expression of prima-facie satisfaction of the competent authority. Since the notice is a show cause notice, the competent authority is not expected to be elaborate about his satisfaction on both the counts and/or give reasons for the same. According to Mr.Walawalkar, there is one more * 10 * defect in the notice and that is, it does not state details of the requirement of the disputed land by respondent no.1. Firstly, the notice is essentially on the ground of expiry of the agreement. Secondly, it cannot be said that the appellant suffered any prejudice on that count because the requirement of respondent no.1 has been made abundantly clear in the earlier correspondence between the appellant and respondent No.1. Therefore, this defect in the notice cannot be fatal to the eviction action. 10. Relying on the same decision, Mr.Walawalkar next submits that in the order of eviction, the competent authority must record his reasons for passing an order of eviction. It is submitted that even if a person is found to be in unauthorised occupation of the public premises, the competent authority is not obliged to make an order of eviction. Therefore, he has to consider whether the addressee should be vacated. The last paragraph of the eviction order passed by the competent authority records reasons for passing eviction order. The competent authority has recorded his satisfaction that the disputed premises are required for carrying out statutory provisions of Juvenile Justice Act in respect of imparting vocational training for the children of respondent no.1. 11. Mr. Walawalkar refers to the decision of the Apex Court in New India Assurance Company Limited Vs. Nusli * 11 * Neville Wadia and another reported in (2008) 3 Supreme Court Cases 279 and submits that it was incumbent on the part of respondent No.1 to lead evidence on the ground of eviction before the competent authority. In the absence of such evidence, it cannot be said that the case of eviction against the applicant stood proved. There is no doubt that none of the parties led evidence before the competent authority. None of the parties had in fact even expressed desire to lead evidence. It is to be noted here that it was not contended before the Competent Authority that the ground of eviction did not stand established for want of oral evidence. Besides the Apex Court in its decision cited does not hold that in every eviction proceeding, there must be evidence adduced on the ground of requirement of public premises on the part of the State. The decision clearly omits the certain occupants of public premises out of it's bounds. These are described at paragraph no. 27 of the Judgment. The same reads as follows: “27. The occupants of public premises may be trespassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service.” The applicant herein falls under the third category of occupants mentioned at paragraph 27 above. Besides, * 12 * respondent no.1 was seeking eviction of the applicant essentially on the ground of expiry of the Training Agreement. 12. It is lastly submitted by Mr.Walawalkar that the Government cannot be allowed to act like a private landlord while dealing with its tenants. He submits that the State is expected to act in accordance with certain constitutional consciousness and act in a fair and reasonable manner. In this connection, he relies upon a decision of the Apex Court in the case of M/s. Dwarkadas Marfatia and Sons V/s.Board of Trustees of the Port of Bombay reported in (1989) 3 Supreme Court Cases,293. Perusal of the entire eviction proceedings shows that respondent no.1 has acted fairly in the public interest and in the interest of its wards. Since, the year 1963 there has been only one vocational training activity for the children. No fault can be found with respondent no.1 for wanting to expand the vocational training activities to suit the time. Besides the applicant has not produced any material as regards the total number of children trained and employed by him since the year 1963. Such particulars are not forthcoming even for the recent years. It is to be remembered that the agreement between the appellant and respondent No.1 is not a lease or license agreement for occupation of the disputed premises. The agreement is titled as “Training Agreement”. If one reads * 13 * recitals to the agreement they are entirely focused on the training activity. The approach of the appellant to respondent NO.1 was also for entrusting to him work of training of the Society's inmates in the work of running a Power Laundry. Clause 18 of the agreement clearly defines the status of the applicant qua the disputed premises. The same reads as follows : “18. The intention of the Society is not to create any right of whatsoever nature in favour of the said Shri Rawool in said premises and the said Shri Rawool shall not claim any right at any time. The objective of this agreement is to give training to the inmates of the Society in the said Power Laundry.” Therefore on expiry of the agreement if respondent No. 1 proposed to either change or expand the vocational training to it's inmates, it cannot be said that the action is without constitutional consciousness or unfair or unreasonable. In fact it is unfortunate that in all these years respondent no.1 had slipped into total inaction as regards it's objects. The objects of respondent No.1 as stated in the recital to the agreement are of care, training, treatment and rehabilitation of destitute, neglected, victimised, mentally retarded, orphan and delinquent children. Therefore, it is bound to consider different avenues of vocational training that can be made available to its inmates from time to time. There is one more reason why respondent No. 1 cannot be accused of being * 14 * unfair or unreasonable. In the eviction proceedings, when the appellant moved the concerned Ministry and procured letter dated 16th November,2000 for extension of the agreement for a period of ten years, Respondent No.1 and the competent authority had held their hands by way of giving an opportunity to the appellant. Thereafter they waited patiently for more than five years. It is only when definite instructions came from the Ministry that the agreement was not to be renewed that the respondent No.1 initiated fresh eviction proceedings. 13. Perusal of the impugned order shows that the Principal Judge, Bombay City Civil Court in deciding the Appeal against the order of the competent authority has rightly considered all the aspects. There is no jurisdictional error committed by him in any manner. In the circumstances, Civil Revision Application must be dismissed with costs. 14. While parting with the judgment, the conscience of this Court compels it to further observe that so much has been said about the attitude and approach to be adopted by the State. There can be no dispute that the State cannot act like a private property owner and its every decision or plan must be public interest oriented. However, in the considered opinion of this Court an identical duty is cast upon citizen also. Any citizen who is associated with welfare activity * 15 * of the State for women, destitute children or any other under-privileged section of the society, must have interest of the society at heart. Association with such institutions is a kind of symbiosis of commercial interest of a citizen and the welfare activity of the State for the benefit of the particular under privileged section of the society. He must know that by it's very nature it is bound to put some restraints or limitations on the rights enjoyed over the properties or trade or activity. Therefore with the passage of time, when the change of activity is either required or planned or proposed, the citizen involved must honourably and gracefully bow out. Instead of showing such attitude, the appellant herein is making every effort to cling to the property. Though the last agreement with him expired on 30th September,1999 he has continued in the premises for nine long years, depriving the destitute children a better future. This has been done despite the knowledge that the agreement does not create any right in the demised premises in him. Such conduct justifies imposition of substantial costs on him. O R D E R Civil Revision Application is dismissed with costs quantified at Rs.25,000/-. The costs to be paid within a period of three months from today. * 16 * On the application of Mr. Walawalkar, the Appellant is granted time of three months to vacate the disputed premises and hand over possession to respondent No. 1. He shall file an undertaking to the effect that he shall handover vacant possession of the disputed premises within a period of three months from today. The Undertaking to also state that the appellant has not created any third party rights in the disputed premises so far and that he will not create any third party rights in future. The Undertaking to be filed within a period of one week from today. It is clarified that the Undertaking will be without prejudice to the right of the appellant to challenge this order. [SMT.R.P.SONDURBALDOTA,J]