1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3037 OF 2003 1. A.F. Ferguson & Co. being a partnership firm registered under the provisions of the Indian Partnership Act, 1932 and having its office at Allahabad Bank Building, 1st Floor, Bombay Samachar Marg, Mumbai 400 001 2. Shri. Byram Phiroze Shroff, of Mumbai Indian Inhabitant, residing at Jaiji Terarce, Sleater Road, Grant Road, Mumbai 400 007. ... Petitioners Versus 1. The Union of India, Aayakar Bhavan, M.K. Raod, New Marine Lines, Mubai 400 022. 2. Shri. B.N. Rattan, being the Estate Officer purportedly appointed under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, who is also the Deputy General Manager of Respondent No. 3, having his office at Regional Office, Manish Commercial Centre, 216-A, Dr. Annie Besant Raod, Worli, Mumbai 400 025. 3. The Allahabad Bank, being a nationalized Bank, having been nationalized under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and having its office at Allahabad Bank, Fort, Branch 37, Mumbai Samachar Marg, Fort, Mumbai 400 023. ... Respondents Mr. R.A. Dada, Sr. Counsel with Mr. Percy Gandhi i/by Craword Bayley & Co. for Petitioners. 2 Mr. Y.R. Mishra for R.No. 1. Mr. Vineet B. Naik i/by Pandya Gandhi & Co. For R. Nos. 2 and 3. CORAM : FERDINO I. REBELLO & A.A. SAYED, JJ. DATED : MAY 07, 2010 ORAL JUDGMENT (Per Ferdino I. Rebello,J.).: By the present petition, Petitioner had prayed amongst other prayers for declaring Section 3 of the Public Premises Eviction of Unauthorized Act, 1971 as arbitrary and discriminatory. That prayer has been given up. The relief sought now is to quash and set aside the notice of termination dated 26.3.2003 issued by Respondent No. 3 (Allahabad Bank), the show cause notice issued by Respondent No. 2 dated 30.9.2003 (Estate Officer) and proceedings initiated by Respondent No. 2 against the Petitioners by issuing show cause notice dated 30.9.2003. There are other reliefs which we need not advert to. 2. At the time when rule was issued, interim relief was also granted in terms of Prayer Clause (e) which was to restrain Respondent Nos. 2 and 3 from taking any steps or action in furtherance of the impugned show cause notice dated 30.9.2003 and notice of termination dated 26.6.2003. It is the case of the Petitioners that Respondent No. 3 has made several attempts to 3 evict the Petitioner from the premises. The Petitioner herein were compelled to file suits consequent where upon notices were withdrawn. It is the case of the Petitioners that the action of Respondent Nos. 2 and 3 in terminating the tenancy and issuing show cause notice discloses non application of mind and or is clearly arbitrary. The notice to show cause it is submitted does not disclose the ground or reason for the satisfaction arrived at by Respondent No. 2 . On this ground alone the Petition is liable to be dismissed. It is next contended that considering the previous notice, the action is mala fide. The show cause notice once again discloses no reasons and a statutory authority cannot arbitrarily terminate tenancy of its tenants unless reasons which can be discerned from the record of the case. It is also contended that Respondent No. 2 who was acting as Estate Officer was clearly not the person designated by the Central Government in its notification dated 12.7.1995 issued under Section 3 of the P.P. Act to act as the Estate Officer. For the aforesaid reasons, it is the case of the Petitioners that the Petition should be allowed. 3. The respondents have filed their reply contesting the reliefs as claimed for by the Petitioners. It is stated that in the notice of termination of tenancy the Bank had clearly stated, its case, that they were in dire need of the premises for its operations which have extended multifold, coupled with the fact that in view of the introduction of the Maharashtra Rent Control Act, 1999, the landlords of several premises have filed proceedings 4 against the Bank in a number of courts and even orders have been passed against the Bank directing to vacate the premises occupied by them as tenants. The Estate Officer has acted on the notice of termination. It therefore, must be held that the grounds in the notice of termination, constitutes the grounds as in the show cause notice and consequently there is no infirmity. It is contended that the Respondents have issued notices to the Petitioners in the past and for technical defaults those had to be withdrawn. That by itself would not make the action of the Respondents mala fide in as much as the Respondents require the premises to house their own officers. It is also set out in the additional affidavit which was filed by Shri. Anilkumar Gupta, that the Estate Officer was competent to issue show cause notice and conduct the proceedings as the posts of Deputy General Manager and Regional Manager are equivalent posts and their pay scales is the same being equal. For all the aforesaid reasons, it is stated that the Petition should be dismissed. 4. We may first consider the issue as to whether the proceedings before Respondent No. 2 can be said to be validly initiated. The main contention of the Petitioners, is that, the show cause notice issued by Respondent No. 2 does not disclose that he was satisfied that the ground exists for eviction of the Petitioners which is a mandatory requirement. For that purpose we may refer to the judgment of the learned Division Bench of this Court in Minoo Framroze Balsara Vs. Union of India, AIR 1992 BOM 375 where this court 5 observed as under : “The provisions of Sections 4 and 5 of the Eviction Act, 1971, deal with the procedure for the eviction of an unauthorised 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 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.” 6 On perusal of the show cause notice and the requirement of opportunity to meet the grounds for eviction, it will not be possible for the Petitioner to show cause. In the instant case, Respondent No. 2 has not disclosed the grounds based on which satisfaction was formed apart from efflux of time. On this count alone the petition is liable to be allowed. 5. The second contention which has now to be answered is whether the action of Respondent Nos. 2 and 3 is mala fide. Petitioner pursuant to show cause notice dated 29.1.1991 had filed W.P. No. 1288 of 1991. That was dismissed as not pressed on 13th March, 2002. A fresh show cause notice was issued on 25.11.2002. Petitioners filed Writ Petition No. 511 of 2003 which was disposed of by order dated 2.5.2003. In that petition a statement was made that the impugned notice would be withdrawn and accordingly the petition was allowed to be withdrawn. Writ Petition NO. 511 of 2003 came to be filed challenging the notice. After this the third show cause notice was issued. In our opinion, merely because several show cause notices have been issued by itself would not make the action mala fide and or arbitrary. It will be open to the Petitioners to establish mala fides. Merely because Respondent Nos. 2 and 3 were issuing show cause notices which do not conform with the Act and rules framed thereunder would not make the act mala fide. In 7 our opinion, therefore, that ground has to be rejected. 6. We then come to the ground whether Respondent No. 2 could have acted as Estate Officer. The Petitioners have specifically raised the ground that Respondent No. 2 was holding the post not of Regional Manager but of Deputy General Manager. Two posts it is set out are different and not inter changeable. The notification issued by the State Government on 12.7.1975 under Section 3 of the Act confers power on the Regional Officer, Allahabad Bank, Mumbai in respect of the premises belonging to or taken on lease or requisitioned by the Banks set out therein. We are concerned herein with Allahabad Bank. Considering the controversy and as there was no satisfactory reply, we had called on the Respondent No. 3 to file additional affidavit in the matter. The affidavit has been filed by Mr. Anilkumar Gupta, General Manager wherein it is set out that the post of Deputy General Manager and Regional Manager are equivalent posts and their pay scale is same being equal. It is pointed out that there exists no post of Regional Manager in the particular region, the head was the Deputy General Manager himself. Whatever may be the position in law, we have to proceed to first consider the facts. In terms of the Notification, power is conferred only on the Regional Manager. Admittedly there is no post of Regional Manager in Mumbai. Respondent No. 3 was posted as Deputy General Manager. In other words, Respondent No. 3 8 whether the post is equivalent to Regional Manager or not was not the designated authority and the issuance of show cause notice is without jurisdiction and consequently liable to be quashed and set aside. Once the power is conferred on an Officer by post, then that Officer alone who can exercise the powers and functions of the post. It does not follow that because an officer is posted as Estate Officer holding an equivalent post and is transferred to the area where the post of Regional Manager does not exist, it must mean that the Deputy ‘General Manager is the Regional Manager. We are not prepared to accept this contention. Once the power is conferred by post then it is that person alone holding that post who can invoke jurisdiction. In the instant case, as the person who issued the show cause notice is not the Regional Manager, in our opinion, the action is by a person not so designated and consequently the proceedings are liable to be quashed and set aside being arbitrary. In the light of that, Rule made absolute in terms of Prayer Clauses (b) and (d). We make it clear that disposal of the Petition will not preclude the Respondent No. 3 from taking fresh steps, if in law, they are so entitled. In the circumstances of the case, there shall be no order as to costs. (A.A. SAYED,J.) (FERDINO I. REBELLO,J.) 9