mgn 1 wp-3438-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3438 OF 2011 State of Maharashtra & Ors. ..Petitioners Versus Union Bank of India & Ors. ..Respondents Mr.A.A. Kumbhakoni, Special Counsel along with Mr. A.B. Vyagyani, AGP for petitioners. Mr. Shekhar Naphade, Sr. Advocate along with Mr. Harihar Bhave i/b. Bhave & Co., for respondent No.1. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. Tuesday, 21 st June, 2011 PC: What is challenged in this petition filed under Article 226 of the Constitution of India is the order dated 12th March, 2011 passed by the Estate Officer, in case No.1 of 2010 under the Public Premises (Eviction of Unauthorised Occupants) Act,1971 (hereinafter referred to as the P.P.(E) Act), instituted by the respondent-Union Bank of India. 2. By the impugned order the Estate Officer has rejected the application of the present petitioners (respondents before the Estate Officer) raising preliminary issue that the eviction case under the P.P. (E) Act is not maintainable. mgn 2 wp-3438-11.sxw 3. Mr. Kumbhakoni, the learned Special Counsel for the petitioners has relied on the decision of the Division Bench of this Court in Persis Kothawalla vs. Life Insurance Corporation of India & Anr., 2004 (2) All M.R. 686 in support of the contention that the provisions of the P.P. (E) Act cannot be used for converting the statutory tenancy of the petitioners into unauthorised occupation simply by serving them notice purporting to terminate the petitioners tenancy. The learned Counsel has relied upon the principles laid down by the Division Bench in the above decision and contended that since the petitioners have been admitted to be the statutory tenants in the notice dated 29th December, 2009 issued by the respondent bank, the petitioners are entitled to the protection of the Maharashtra Rent Control Act, 1999. It is submitted that the Rent Control Act may not apply to the premises belonging to the Government when the Government is landlord, but the Rent Control Act will apply in respect of the premises let or given on licence to the Government. 4. It is further submitted in the alternative that in any way of the matter, the guidelines issued by the Central Government under the P.P. (E) Act provided that the said Act can be resorted into only in genuine and legitimate cases and that no genuine tenant should suffer at the hands of the law. The learned Counsel has also relied on guideline (iii) that a person in occupation of any premises should not be treated or declared to be unauthorised occupant merely on service of notice of termination of tenancy, but fact of unauthorised occupation shall be decided by following the due procedure of law. 5. On the other hand the learned Senior Counsel for the respondent bank has opposed the petition and strongly relied on the decision of the Division Bench of this Court in Crawford Bayley and Co. and Ors. mgn 3 wp-3438-11.sxw vs. Union of India and Ors, 2003 (5) Mh. L.J. 129 as well as the decision of the Apex Court confirming the said judgment which is reported in (2006) 6 SCC 25. The learned Counsel has also relied on the following observations in para.16 of the judgment of the Division Bench of this Court in Crawford Bayley and Co. and others vs. Union of India and Others (supra):- “16. Now so far as the third submission is concerned, according to the show cause notice and the grounds mentioned therein on the basis of which an order of eviction is proposed to be made against the petitioners, are contrary to the guidelines issued by the Central Government. According to the petitioners, the guidelines issued by the Central Government from time regulate the exercise of power by Estate Officer under section 3 of the Public Premises Act. In our opinion, however, this challenge to the show cause notice cannot be entertained at this stage. The submission that the grounds mentioned in the show cause notice are contrary to the guidelines can be raised by the petitioners in reply to the show cause that has been issued and in case such a submission is made, obviously the Estate Officer will have to consider it on its own merits. The said Act provides further remedy of an appeal to the Principal Judge of the City Civil Court. The submission can also be raised in appeal before the Principal Judge of the City Civil Court. Presently only a show cause notice has been issued to the petitioners. The remedy of raising this submission in reply to the show cause notice and in appeal before the Principal Judge of the City Civil Court, in our opinion, is adequate and therefore, a challenge to the validity of the show cause notice on this ground cannot be entertained at this stage. It may be mentioned here that on behalf of the respondent No.3 -Bank it was contended that these guidelines are not binding on the Estate Officer. In our opinion, this contention can be raised by the respondent No.3 before the Estate Officer and therefore, we do not propose to deal with this contention.” mgn 4 wp-3438-11.sxw 6. Having heard the learned Counsel for the parties, we are of the view that since no final order of eviction has been passed by the Estate Officer under the P.P. (E) Act and the Estate Officer has merely rejected the application of the petitioners herein (respondents before the Estate Officer) for raising the preliminary issue and since the Estate Officer himself has clarified that the matter will be examined on merits including the Government guidelines, the petition is not required to be entertained at this stage. In case the Estate Officer passes an order adverse to the petitioners herein, the petitioners will also have a further remedy of appeal before the Principal Judge of the City Civil Court, Mumbai. 7. At this stage the learned Counsel for the petitioners, however, submits that by the impugned order the Estate Officer has made various observations in paragraphs 20 and 21. 8. We make it clear that the findings given and the observations made by the Estate Officer in paragraphs 20.4 and 21.1.1 shall be treated as tentative and in case the final order of the Estate Officer goes against the petitioners herein, the petitioners will be at liberty to challenge those findings and observations in the appeal which may be filed against the final order. 9. Subject to the above liberty and observations, the petition is dismissed at this stage as premature without going into the merits of the rival contentions. All contentions are kept open. CHIEF JUSTICE GIRISH S. GODBOLE, J.