1 Wp4834.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4834 OF 2010 Unitex Products Private Limited. .. Petitioner Vs Life Insurance Corporation of India & Anr. .. Respondents -- Shri Aspi Chinoy, Senior Counsel with Shri Gautam Patel and Ms Angeline Rodriques i/by M/s. Negandhi Shah for the Petitioner. Shri D.J. Khambata along with Dr. Poornima Adwani and S/Shri Himanshu Kode, Ajay Khaire and Ms Rupali Pawar i/by M/s. Law Point for Respondent No.1. -- CORAM : A.S.OKA, J. DATE : 6th SEPTEMBER, 2010 ORAL JUDGMENT : . Submissions of the learned counsel appearing for the parties were heard on the earlier date. With a view to appreciate the submissions, it will be necessary to make a reference to the facts of the case. The dispute relates to the flat and garage situated in a Building known as Jeevan Jyot at Napean Sea Road, Mumbai. Admittedly, the building is owned by the 1st Respondent- Life Insurance Corporation of India. On 19th April, 2003, a fresh lease was executed by and between the Petitioner and the 1st Respondent. In February, 2007, the Petitioner made a request to the 1st Respondent to renew a lease which was to expire on 30th November, 2007. The said request was turned down by the 1st Respondent. On 3rd 2 Wp4834.10 January, 2009, a notice was issued by the 1st Respondent to the Petitioner stating that the lease was operative till 30th November, 2007 and it was decided not to renew the lease as the premises are required for a bona fide use of the 1st Respondent. A reliance was placed in the said notice on communications issued by the 1st Respondent from 30th October, 2007 onwards calling upon the Petitioner to vacate the premises and hand over peaceful possession thereof to the 1st Respondent. It was stated that on failure of the Petitioner to vacate the premises, the proceedings will be initiated under the Public Premises ( Eviction of unauthorized Occupants ) Act, 1971( hereinafter referred to as “the said Act”). 2. Accordingly, the proceedings were initiated under the said Act and the Estate Officer issued a notice to the Petitioner. The proceedings were contested by the Petitioner by filing a reply. Various contentions were raised in the reply. 3. The Estate Officer passed an order dated 10th January, 2009 directing the Petitioner to vacate the said premises. A separate order was passed by the Estate Officer on the same date directing the Petitioner to pay damages at the rate of Rs.7,45,792/- per month from 1st March, 2009 till 31st December, 2009 and interest thereon at the rate of 9% per annum. The Estate Officer came to a conclusion that the Petitioner was in unauthorised occupation of the premises with effect from 1st March, 2009. The Estate Officer recorded a finding that the 1st Respondent has established bona fide 3 Wp4834.10 requirement. 4. An appeal was preferred by the petitioner against both the orders before the learned Judge of the City Civil Court. By the impugned judgment and order dated 5th May, 2010, the orders passed by the Estate Officer were modified. The learned Judge held that the 1st Respondent has not established the bona fide requirement. However, the order of eviction was confirmed on the ground that the lease expired by efflux of time and therefore, the Petitioner was in unauthorized occupation. The learned Judge held that the compensation payable by the Petitioner will be at Rs. 1,10,000/- per month from 1st March, 2009 till the date of delivery of possession instead of a sum of Rs.7,45,792/- per month as directed by the Estate Officer. To that extent, the order of the Estate Office was modified. These orders of eviction are impugned in this petition under article 227 of the Constitution of India. 5. Learned Senior Counsel appearing for the Petitioner has taken the Court through the findings recorded by the Estate Officer and by the learned Judge of the City Civil Court. He relied upon a decision of the Division Bench of this Court in the case of Minoo Framroze Balsara v. Union of India & Ors, (AIR 1992 Bombay 375 ). He invited attention of the Court to various paragraphs of the said decision including Paragraphs 39 and 40. He submitted that Section 4 of the said Act has been interpreted by the Division Bench. He submitted that Section 4 of the said Act provides that 4 Wp4834.10 the Estate Officer must be satisfied that the person is in unauthorised occupation of the public premises and that he should be evicted. He pointed out that the Division Bench held that the Estate Officer should record satisfaction on two aspects before passing an order of eviction . He submitted that the Division Bench held that the Estate Officer must record a satisfaction that the person concerned is in unauthorised occupation of the public premises and also that the person deserves to be evicted. He also invited attention of the Court to what is held by the Division Bench of this Court in Paragraphs 34 and 35 of the said decision. He submitted that the Estate Officer is not under an obligation to pass an order of eviction on finding that a person is in unauthorized occupation. He submitted that only after recording satisfaction on both the grounds that the Estate Officer gets jurisdiction to pass an order of eviction. He pointed out that in the present case there is no satisfaction recorded by the Estate Officer that the Petitioner should be evicted. 6. The learned Senior Counsel appearing for the Petitioner also placed reliance on a decision of this Court dated 7th May, 2010 in Writ Petition No. 3037 of 2003 filed on the original side ( A.F. Fernandes & Co. & Another v. Union of India & Others ). The learned Senior Counsel has also placed reliance on what is observed in Paragraph 4 of the said decision. He submitted that the finding of the City Civil Court that the bona fide need is not established has not been challenged by the 1st Respondent. He pointed out that the only finding recorded by the Estate Officer is that the lease has 5 Wp4834.10 come to an end by efflux of time and the satisfaction on the second point is not at all recorded which is a condition precedent for passing an order of eviction. He submitted that in fact the Division Bench in the case of Minoo Framroze Balsara (supra) has held that even a show cause notice can be issued only after a prima facie satisfaction is recorded on both the aspects. He, therefore, urged that only on the ground that the period of lease has expired, the order of eviction could not have been passed and could not have been confirmed by the City Civil Court. 7. The learned Senior Counsel appearing for the 1st Respondent supported the impugned judgments and orders. He stated that the 1st Respondent does not intend to challenge that part of the impugned judgment and order of the City Civil Court by which a ground of bona fide need has been rejected. 8. I have given careful consideration to the submissions. The learned Senior Counsel appearing for the Petitioner has relied upon Paragraph 34 of the decision of the Division Bench of this Court in the case of Minoo Framroze Balsara (supra) which reads thus:- “34. ......... The provisions of Sections 4 and 5 of the Eviction Act, 1971, deal with the procedure for the eviction of an unauthorized occupant and must be read together. Section 4 prescribes that the unauthorised occupant must be issued with a notice in writing to show cause why an order of eviction should not be passed against him. That notice has to be issued by the Estate Officer provided he is of the 6 Wp4834.10 opinion that the addressee of the notice is in unauthorised occupation of public premises and that he should be evicted. Prima facie satisfaction of the Estate Officer is a sine qua non of the issuance of the show cause notice. The prima facie satisfaction must be two-fold; firstly, that the addressee is in unauthorised occupation of public premises, and, secondly, that, he should be evicted. The notice must set out the grounds on which the order of eviction is proposed to be made. It must, therefore, state not only why the addressee is thought to be in authorised occupation but also why it is thought that he should be evicted. It must inform the addressee that he is entitled to show cause against the proposed order of eviction. The addressee cannot effectively show cause unless he knows why the Estate Officer is of the opinion that he is in unauthorised occupation. He also cannot show effective cause unless he knows why his eviction is proposed. The provisions of Section 4 makes it clear that th addressee may seek a personal hearing from the Estate Officer and may lead evidence for the purposes of showing cause against the proposed order of eviction. This is clear also from the provisions of Section 8 which vest in the Estate Officer the powers of a Civil Court in regard to the summoning of witnesses and examining them on oath and the discovery and production of documents.” 9. In Paragraph 39, the Division Bench held that Sections 4 and 5 of the said Act must be read together and harmoniously. This observation was made in the context of the use of the word “may” in Section 5 of the said Act. The Division Bench held that the word “may” in Section 5 of the said Act does in fact mean “may” and though the Estate Officer may be satisfied that the public premises are in unauthorised occupation, he is not obliged to make an order of eviction unless he is satisfied that the person who is in unauthorised occupation should be evicted. The Division Bench in paragraph 35 of the decision has observed 7 Wp4834.10 thus:- “35. ..... Plainly, he must consider the addressee’s case on both grounds, viz., whether he is in unauthorised occupation of public premises and whether he should be evicted. Even if he finds that the addressee is in unauthorised occupation, the Estate Officer is not obliged to make an order of eviction; he ‘may’ make it. It is, therefore, that he has to consider whether the addressee should be evicted. He is obliged, if he makes an order of eviction, to record his reasons. The Estate Officer’s order must, therefore, state why he is satisfied that the addressee is in unauthorised occupation of public premises and why he should be evicted therefrom.” The Division Bench in Paragraph 40 observed thus:- “40. .....Nor can we accept the submission that the word ‘therefore’ has to be read into Section 4, that is to say that Section 4 has to be read so: “If the Estate Officer is of the opinion that any persons are in unauthorised occupation of any public premises and therefore that they should be evicted, the Estate Officer shall issue......” As we have stated, the Estate Officer must, before he issues the notice under Section 4, be of opinion that “persons are in unauthorised occupation of public premises and that they should be evicted.......”. It is of significance that the words “and that” emphasised above have been used and not just the word :and:. They leave us in doubt that the Estate Officer must have formed the opinion on both counts before he issues the notice.” 10. As held by the Division Bench of this Court in Paragraph 35 of the said decision, the Estate Officer is under an obligation to consider the case of the person to whom the notice is addressed on both the grounds whether he is in unauthorised occupation of the public premises and whether he should be evicted. It is necessary for the Estate Officer to consider whether the addressee of the notice should be evicted. In the 8 Wp4834.10 present case, it is true that the ground of bona fide need has not been established. The learned Senior Counsel appearing for the Petitioner had invited the attention of the Court to the cross-examination of the Officer of the 1st Respondent on this aspect. However, it is not necessary to go into that aspect inasmuch as the ground of bona fide need has not been accepted by the learned Judge of the City Civil Court in the appeal and the said finding is not under challenge. 11. Perusal of the order of the Estate Officer shows that the said officer was conscious of the requirement of law as laid down in the case of Minoo Balsara (supra). He has framed the points for determination. The point No.4 is whether the Petitioner was in unauthorised occupation of the scheduled premises? Point No.5 is whether bona fide requirement is proved ? The point No.6 is whether the Petitioner should be evicted? As far as Point No.4 is concerned, the Estate Officer has relied upon the relevant clause in the lease which provides that the lease shall come to an end on 30th November, 2007. The request of the Petitioner for renewal of lease has been rejected by the 1st Respondent. There is no dispute about the terms and conditions incorporated in the lease and therefore, the Estate Officer has rightly recorded that the possession of the Petitioner after expiry of the lease by efflux of time was not authorised. It is true that the Point Nos.5 and 6 have been considered together by the Estate Officer. Perusal of the clause (ii) of the findings recorded on Point Nos.5 and 6 indicate that the Estate Officer has not considered the Point No.6 only in the context of 9 Wp4834.10 bona fide need. He has noted that apart from the fact that the lease has expired and the same has not been renewed, the decision of the first Respondent not to renew lease was informed to the Petitioner well in advance before the expiry of the lease and was confirmed by the subsequent communications. On 12th June, 2007, the Petitioner made a request to the 1st Respondent to extend the lease for a further period. By communication dated 12th November, 2007 , the 1st Respondent informed the Petitioner that the competent authority has decided not to renew the lease and the Petitioner was made aware of the said decision. The Estate Officer has recorded reasons and has observed that there is no justifiable reason as to why the first Respondent should not resume possession. Thus, the Estate Officer has recorded satisfaction on both the counts. As far as this aspect is concerned, the Appellate Court has recorded general agreement with the judgment and order of the Estate Officer except on the ground of bona fide need. The Appellate Court has also noted that there was a decision not to renew lease and there was no prayer made directing the 1st Respondent to re-open the issue. In the circumstances, the submission of the learned Senior Counsel appearing for the Petitioner cannot be accepted that no satisfaction has been recorded on the second ground. There is no reason why the Petitioner should continue after the expiry of lease especially when it is not the case of of the Petitioner that it has protection under Rent Control Legislation. 10 Wp4834.10 12. In the circumstances, there is no reason to interfere with the impugned order in writ jurisdiction. The Writ Petition is accordingly rejected. On the prayer made by the learned senior counsel appearing for the Petitioner, it is directed that the order of eviction shall not be executed for a period of three months from today. (A.S.OKA, J)