Laxmi B. Metkari vs Executive Engineer, North Mumbai ...
2017 Latest Caselaw 9655 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO. 12687 OF 2017


Laxmi B. Metkari                                                                   ]
Adult, Indian inhabitant                                                           ]
Residing at Sankalp Siddhi Tower                                                   ]
A Wing, Room Nos.103 & 104,                                                        ]
1st Floor, E.S. Patanwala Marg,                                                    ]
Byculla (East), Mumbai 400 027                                                     ]           ...           Petitioner

                       V/s.

1. Executive Engineer                                                              ]
North Mumbai Division,                                                             ]
Public Works Department                                                            ]
Andheri (West), Mumbai 400 058                                                     ]
                                                                                   ]
2. The Competent Authority                                                         ]
Brihanmumbai, having its office                                                    ]
at 404, 4th Floor D.D. Building,                                                   ]
Old Customs House,                                                                 ]
Shahid Bhagat Singh Marg                                                           ]
Fort, Mumbai 400 001                                                               ]           ...           Respondents



      •     Mr.Aseem Naphade i/b. Mr.Makrand P. Rege for the Petitioner.
      •     Ms.Kavita N. Solunke, A.G.P. for the Respondents-State.



                                   CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.


RESERVED ON                                    : 11 th DECEMBER, 2017.
PRONOUNCED ON                                  : 15 th DECEMBER, 2017.



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JUDGMENT :

1] Rule. Rule made returnable forthwith. Heard finally with

consent of learned counsel for both the parties.

2] By this Writ Petition filed under Article 227 of the

Constitution of India, the Petitioner is challenging the judgment and

order dated 14th September, 2017 passed by Principal Judge, City Civil

Court, Mumbai in Misc. Appeal No.74 of 2017 filed under Section 7 of

Bombay Government Premises (Eviction) Act, 1955 and the order

dated 9th October, 2017 passed in Review Petition No.23 of 2017.

3] By the first order, learned Appellate Court has confirmed

the order of eviction passed by the Competent Authority and by the

second order, it has dismissed the Review Petition filed by the

Petitioner.

4] It is not in dispute that the inquiry premises which is a

commercial premises situated at Mudran Kamgar Nagar, J.P. Road,

Andheri (West), Mumbai, where the Petitioner is running the flour

mill business, were given to her under a lease-deed dated 13 th June,

1981. The said lease-deed was renewed from time to time until 28 th

September, 2004, on which date the lease had expired. Thereafter, the

Petitioner had made several requests to the Government for renewal

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of the lease. The said requests were, however, not acceded to.

5] On 20th December, 2016, a show-cause-notice was issued to

the Petitioner, "as to why she should not be evicted from the premises

on the ground that the lease had expired and as such she has become

unauthorized occupant and further the premises are also required for

the purpose of the Government". The Petitioner appeared before the

Competent Authority and filed her reply on 10 th January, 2017,

contending inter-alia that, as she is in occupation of the premises for

almost 30 years by paying the rent regularly, she cannot be termed as

unauthorized occupant. Other contentions like equity, Petitioner being

a widow were also raised in the reply and thus, request was made to

withdraw the show-cause-notice.

6] After hearing the both the sides, the Competent Authority

was pleased to pass the order of eviction, which came to be challenged

before the Appellate Court on the ground that the order was passed

without following principles of natural justice, in as much as no

opportunity of hearing was given to the Petitioner. It was further

contended that the said order was contrary to the policy decision

taken by the Government on 17th April, 2017; whereby it has been

decided that until the final decision is taken in respect of renewal of

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lease agreement, no action of eviction should be taken in respect of the

lease premises in the area of Bandra (West) merely on the ground that

lease period has expired.

7] On behalf of the Respondent, it was denied that there was

violation of principles of natural justice. It was submitted that the

Petitioner was served with show-cause-notice. She has filed her reply.

She was heard in the matter and thereafter only the order came to be

passed. It was further submitted that the lease in respect of premises

in question has expired long back in the year 2004 and the reply filed

by the Petitioner to the show-cause-notice does not dispute that fact of

requirement of the premises for the purpose of Government. The

documents to the effect that in respect of the area under the premises

a contract has been awarded for construction of "Udyog Bhavan" and

the lay-out plan for the same was sanctioned, were also produced to

show that the eviction order passed by the Competent Authority needs

to be confirmed.

8] As far as the policy decision of the Government was

concerned on which the Petitioner has placed reliance, it was stated

that the said policy decision was applicable only to residential

premises of slum dwellers situate in Bandra area and it was not

applicable to the premises of the Petitioner, which were commercial

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premises, situate in Andheri (West).

9] On the basis of these rival contentions, the learned

Appellate Court framed necessary points for its consideration and was

pleased to hold that the possession of the Petitioner in the premises

had become unauthorized on the receipt of the service of notice. It was

further held that the principles of natural justice were properly

followed in the case and hence, there was no substance in the

grievance raised by the Petitioner on that count.

10] As regards the policy decision of the Government dated

17th April 2017, it was held that it was not applicable to the premises of

the Petitioner as the said policy was applicable to hutment dwellers in

Bandra area; whereas the Petitioner's premises are situated in

Andheri area and they are commercial premises. Accordingly, learned

Appellate Court confirmed the order of eviction passed by the

Competent Authority on 14th September, 2017.

11] The Petitioner, thereafter, moved the Review Petition

No.23 of 2017 before the Appellate Court on 5th October, 2017

contending inter-alia that the Petitioner has come across the letter

dated 1st August, 2017, containing the policy decision taken by the

Government that "no action of eviction would be taken in respect of

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commercial premises situate in Andheri merely because the

agreement for lease has come to an end". In view of this letter, it was

submitted by the Petitioner that it is a new and important fact which

needs to be considered and as the only ground on which the order of

eviction was passed by the Competent Authority was that the lease of

the Petitioner's premises has come to an end, in the light of this policy

decision taken by the Government, the eviction proceedings cannot be

taken against her and hence order of eviction is liable to be set-aside.

12] The learned Appellate Court was however pleased to reject

this contention on the ground that this letter dated 1 st August, 2017

was very much in possession of the Petitioner as she has received the

same on 10th September, 2017 i.e. before her appeal came to be

dismissed on 14th September, 2017 and therefore, it cannot be

accepted that it was not within her knowledge, even after exercise of

due diligence. It was held that on this sole ground itself Review

Petition made was not tenable.

13] Secondly, it was held that in the instant case, the order of

eviction was passed not only on the ground that the lease has expired

but also on the ground that the premises are required by the

Government and this fact was not disputed by the Petitioner in her

reply to the show-cause-notice. In view thereof, the learned Appellate

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Court held that no ground for review is made out and accordingly

dismissed the Review Petition.

14] While challenging this order of learned Appellate Court,

the submission of learned counsel for the Petitioner is that except for

making a tick-mark to the ground that the premises are required for

the Government purpose, the show-cause-notice dated 20 th December,

2016 is conspicuously silent about the purpose for which they are

required. Even the impugned order of eviction passed by the

Competent Authority also does not discuss or even refer to this ground

of the premises being required for the Government purpose. It is

submitted that only at the time of hearing of the appeal this ground

was advanced and some documents were tried to be produced. Thus, it

is submitted that the Government is changing its stand from time to

time. Initially it was contended that the policy decision dated 17 th

April, 2017 of not evicting the persons merely on ground of expiry of

leased agreement was applicable to the residential premises situated

at Bandra (East), Mumbai.

15] Thereafter, when the Petitioner produced on record a

letter dated 1st August, 2017 showing the policy decision taken by the

Government that no eviction proceedings should be initiated against

the authorized gala holders situated in Bandra (East), Mumbai only on

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the count of expiry of the lease period, till the final decision in the said

behalf is taken by the Government, now the Respondent has taken a

stand that this letter is not applicable to those gala holders who have

also committed the breach of conditions of the agreement and for that

purpose in this Writ Petition, the letter dated 1 st November, 2017 is

produced to that effect. It is thus urged that the Respondent has

changed its stand from time to time just to defeat the equitable claim

of the Petitioner. The Petitioner is entitled to be treated on equal

footing like other gala holders in the same area and hence now

entirely new ground is tried to be made out in Affidavit-in-Reply filed

on behalf of the Respondent Executive Engineer by Anita Pardeshi in

this Writ Petition that the premises of the Petitioner are required for

the implementation of the Government project of "Udyog Bhavan". It

is submitted that, it is totally a new ground, which was neither stated

before the Estate Officer nor before the Appellate Court by filing

Affidavit-in-Reply. Thus, according to learned counsel for the

Petitioner, as the Appellate Court has rejected the Petitioner's Review

Petition on the ground that the premises are also required for the

development of "Udyog Bhavan", the said order needs to be quashed

and set-aside, as the Competent Authority has not passed eviction

order on that ground.

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16]                    Per contra, learned A.G.P. for the Respondents has

supported the impugned order by submitting that in the show-cause-

notice, the ground that the premises are required for the Government

purpose was clearly tick-marked and therefore, the Petitioner was

very much aware of the said ground. Even the perusal of the judgment

of the Appellate Court shows that this ground was advanced in the

course of argument by placing on record the documents pertaining to

the project of the Government and lay-out plan showing that the

premises is causing hindrance in the implementation of the said

project. Thus, it is submitted that this is not a new ground which is

being made out and if this ground is to be accepted then the policy

decision communicated by letter dated 1st August, 2017 cannot be of

any help to the Petitioner. Reliance is also placed on the letter dated 1 st

November, 2017 to submit that if the gala holders had committed the

breach of terms and conditions of the lease agreement, then they will

not be entitled to get the benefit of the policy decision communicated

by letter dated 1st August, 2017.

17] In order to appreciate the rival contentions raised by

learned counsel for the Petitioner and learned A.G.P., first and

foremost, this Court has to go to the show-cause-notice issued to the

Petitioner on 20th December, 2016. It is in printed proforma containing

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the various grounds, as laid down in Section 4 of the Bombay

Government Premises (Eviction) Act. It contains only 5 grounds and

out of them, 3 grounds are tick-marked therein. Those grounds are as

follows:

"i) Agreement of lease is expired and therefore, the possession of the Petitioner is become unauthorized.

ii) The period of lease has expired hence the possession has become unauthorized and

iii) The premises are required for the Government purpose."

18] Thus in the show-cause-notice the fact that the premises

are required for the Government purpose is only tick-marked.

However, it is not elaborated as to for which Government purpose the

premises are required and therefore, it appears that in his reply, the

Petitioner has not challenged this ground that the premises are

required for the Government purpose. He has only given reply relating

to the ground of his being in arrears of rent and stating that he has

applied repeatedly for extension and renewal of the lease period.

19] The impugned order passed by the Competent Authority

also goes to show that the Competent Authority has considered only

the ground of non payment of rent and non renewal of the lease

agreement and held that, on that count, the Petitioner's possession

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has become unauthorized. The Competent Authority has then

considered the policy decision dated 17th April 2017, on which the

Petitioner has relied upon, that of the slum dwellers in the Bandra

area are not to be evicted merely because the lease period has expired.

It was held that the said letter is in respect of the residential premises

of the slum dwellers in Bandra area and cannot be applicable to the

commercial premises of the Petitioner situate in Andheri. The entire

order of the Competent Authority is conspicuously silent as to the

ground of the premises being required for the purpose of Government

project.

20] It is pertinent to note that in the appeal also the Petitioner

has challenged the order of the Competent Authority in respect of the

findings recorded by it, namely, pertaining to arrears of rent and non

renewal of the lease agreement. What is surprising to note is that in

the appeal, no reply in affidavit was filed by the Respondent to contend

or to bring on record that apart from the ground of non renewal of

lease or non payment of rent, the ground of premises being required

for Government purpose is also required to be considered. As can be

seen from paragraph 13 of the impugned judgment of the Appellate

Court, only at the time of argument, additional contention was raised

regarding the requirement of the Government and for that purpose

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some documents were placed on record pertaining to the project of the

Government and lay-out plan showing that the premises of the

Petitioner were causing hindrance in implementation of that project.

The Appellate Court has not dealt with those documents, may be

because the said ground was not considered by the Competent

Authority.

21] However, when the Petitioner in his Review Petition

pointed out the letter dated 1 st August, 2017 showing that the policy

decision has been taken by the Government that no action would be

taken in respect of the lease premises merely because the agreement

for lease has come to an end, the Appellate Court considered that this

letter is not of help to the Petitioner as he would not be covered by the

policy decision in view of the fact that the Respondent, on the basis of

the documents showed that a contract was awarded in respect of

construction of "Udyog Bhavan" on the premises of which a part is

occupied by the Petitioner and that premises was causing hindrance

in the said development. It was held by the Appellate Court that as in

the instant case the expiry of the lease is not the sole ground, the

policy decision dated 1st August, 2017 will not be of benefit to the

Petitioner.

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22]                    In paragraph No.5 of its order in Review Petition, the

Appellate Court, however, accepted the fact that before the Competent

Authority the proceedings for eviction were initiated solely on the

ground that lease period had expired and Applicant had become

unauthorized occupant. Thus, the Appellate Court has also

categorically held that the ground that the premises were also

required for the purpose of the Government project was not at all

considered by the Competent Authority and the Competent Authority

has passed the order of eviction only on the ground that lease period

had expired.

23] Now the question for consideration is whether the ground

which is not considered by the Competent Authority that of premises

being required for the Government project can be accepted in the

appeal and on that count the benefit of the policy decision dated 1 st

August, 2017 can be denied to the Petitioner. In this respect, learned

counsel for the Petitioner has rightly placed reliance on the judgment

of the Apex Court in the case of Mohinder Singh Gill vs. Chief Election

Commissioner, New Delhi & Ors., (1978) 1 SCC 405 , wherein

paragraph (8), the Hon'bnle Apex Court was pleased to observe as

follows:

"8. The second equally relevant matter is that when a

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statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older."

24] Thus, the legal position is very well settled in view of the

decision of the Apex Court that when a statutory functionary has

made an order based on certain ground, its validity must be judged on

the ground so mentioned and cannot be supplemented by fresh ground

in the shape of affidavit or otherwise. In other words, the orders

publicly made in exercise of statutory authority cannot be construed

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in the light of explanations subsequently given by the officer making

the order, of what he meant or of what was in his mind or what he

intended to do. Otherwise, an order which is bad in the beginning may

by the time it comes to the Court on account of a challenge, get

validated by additional grounds latter brought out.

25] In the instant case, the only ground on which the

Competent Authority has passed the order of eviction is that the lease

period has expired and therefore, the possession of the Petitioner has

become unauthorized. The ground of the premises being required for

the Government project was neither advanced in enquiry before the

Competent Authority nor it was considered by the Competent

Authority.

26] In such situation whether that ground which was vaguely

tick-marked in the printed show-cause-notice can be advanced as

additional ground for eviction of the Petitioner; especially, when, as

pointed out, the policy decision of the Government contained in the

letter dated 1st August, 2017 states that no action would be taken in

respect of the leased premises merely because the agreement for lease

has become to an end. The Petitioner's premises are squarely covered

under that policy decision as the Competent Authority has passed the

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order of the Petitioner's eviction only on the ground that lease period

has expired. There is nothing in the order passed by the Competent

Authority to show that the Petitioner has committed the breach of any

terms and conditions of the lease-deed or the premises were required

for the purpose of Government. Even in the appeal, no Affidavit-in-

Reply was filed on behalf of the Respondent to show that this ground

was considered or was applicable in respect of the premises in

question.

27] In that view of the matter, even the letter dated 1 st

November, 2017 on which reliance is placed in this Writ Petition

cannot be of much help to the Respondents because as per the said

letter, the policy decision of 1st August, 2017 will not be applicable to

those premises where there is breach of the terms and conditions of

the lease agreement. Here nothing is brought out in the order of even

the Competent Authority to show that there was breach on the part of

the Petitioner in respect of the lease agreement. The only ground on

which therefore eviction order is passed is that of the expiry of the

lease and on that sole ground the Petitioner cannot be evicted, in view

of the subsequent policy decision taken on 1st August, 2017.

28]                    In this context, learned counsel for the Petitioner has also



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relied upon the judgment of the Apex Court in the case of Minoo

Framroze Balsara vs. The Union of India & Ors., AIR 1992 Bom.375 ,

wherein paragraph No.40, it was held that under Section 4 of the Act,

"the Estate Officer may arrive at an opinion that the person is in

unauthorized occupation of public premises and that he should be

evicted". Both these conditions are essentially to be proved. Therefore,

Estate Officer i.e. Competent Authority has to arrive at a finding that

not only the Petitioner is in unauthorized occupation but further that

the Petitioner needs to be evicted on this ground that the premises of

the Petitioner are required for the Government project. No such

finding is arrived at by the Competent Authority in this case.

29] In such situation, there is much substance in the

submission advanced by learned counsel for the Petitioner that, if the

Petitioner is entitled to the benefit of policy decision dated 1st August,

2017, then the Respondents have to make out the further ground that

Respondents require the premises for Government purpose. As no

such finding is arrived at by the Competent Authority, the matter

needs to be remanded to the Competent Authority for taking a

decision afresh.

30]                    In view thereof, this Writ Petition is allowed. The impugned



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orders passed by the Appellate Court 14 th September, 2017 and 9th

October, 2017 are set-aside. The matter is remanded to the Competent

Authority for initiating fresh action against the Petitioner on the

grounds which may be available for it, including the ground that

premises are required for the purpose of the Government.

31]                    Rule is made absolute in above terms.



32]                    Writ Petition is accordingly disposed of.




                                               [DR.SHALINI PHANSALKAR-JOSHI, J.]