Bombay High Court
Assistant Division Engineer vs Shivmoori Jagatdev Kushwaha Partner Of ... on 20 August, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:35884
wp 6821 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6821 OF 2022
Shivmoori Jagatdev Kushwaha,
Age 39, Partner of M/s. Stuti Enterprises
Carrying on business at the Mumbai
Chatrapathi Shivaji Terminus, Central
Railway Employees Consumer
Co-operative Society Limited,
Ground Floor, CST, Mumbai - 400 001 ... Petitioner
versus
1. Assistant Division Engineer,
Divisional Railway Manager's
Office, Central Railway, Mumbai CST
2. Estate Officer, Divisional Engineer,
Central Railway Office of the Senior
Divisional Engineer, Annexure
Building, 3rd Floor,
Mumbai - 400 001.
3. The Official Liquidator,
The Mumbai Chattrapathi Shivaji
Maharaj Terminals, Central Railway
Employees Consumer Co-operative
Society Limited, (under Liquidation),
Ground Floor, Near to General
Manager's Office, CST,
Mumbai - 400 001 ... Respondents
WITH
INTERIM APPLICATION NO.8021 OF 2024
IN
WRIT PETITION NO.6821 OF 2022
Assistant Division Engineer
Divisional Railway Manager's Office
Central Railway, Mumbai CSMT ... Applicant
SSP 1/33
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and
Shivmoori Jagatdev Kushwaha,
Age 39, Partner of M/s. Stuti Enterprises
Carrying on business at the Mumbai
Chatrapathi Shivaji Terminus, Central
Railway Employees Consumer
Co-operative Society Limited,
Ground Floor, CST, Mumbai - 400 001 ... Petitioner
versus
1. Assistant Division Engineer,
Divisional Railway Manager's
Office, Central Railway, Mumbai CST
2. Estate Officer, Divisional Engineer,
Central Railway Office of the Senior
Divisional Engineer, Annexure
Building, 3rd Floor,
Mumbai - 400 001.
3. The Official Liquidator,
The Mumbai Chattrapathi Shivaji
Maharaj Terminals, Central Railway
Employees Consumer Co-operative
Society Limited, (under Liquidation),
Ground Floor, Near to General
Manager's Office, CST,
Mumbai - 400 001 ... Respondents
WITH
WRIT PETITION NO.2215 OF 2024
Union of India
through Assistant Divisional Engineer,
Divisional Railway Manager's Office,
Central Railway, CSMT, Mumbai - 400 001 ... Petitioner
versus
1. The Liquidator,
SSP 2/33
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Having his office at the Mumbai
Chhatrapati Shivaji Maharaj Terminus
Central Railway Employees Consumer
Co-operative Society Ltd., General
Manager Office, Ground Floor,
CSMT Mumbai - 400 001.
2. Shivmoorat Jagatdev Kushwaha &
Smt. Smita S. Kushwaha, Partners
of M/s. Stuti Enterprises (Conductor
of Business) Office at the Mumbai
Chhatrapati Shivaji Maharaj Terminus,
Central Railway Employees Consumer
Co-operative Society Ltd., General
Manager Office, Ground Floor,
CSMT, Mumbai - 400 001.
Mr. V.Y.Sanglikar with Mr. Hetal Patel, Mr. Suraj Shetye, Mr. Hemanshu Vyas,
Mr. Chetan Shah i/by Hetal Patel for Petitioner in WP No.6821 of 2022 and for
Respondent No.2 in WP No.2215 of 2024.
Mr. R.V.Govilkar, Sr. Advocate with Mr. T.J.Pandian, Mr. Gautam Modanwal,
Mr. Noor Jahan, Ms. Prajakta Joshi, Mr. Ankit Ojha i/by Mr. R.P.Ojha, for
Respondent Nos.1 and 2 in WP No.6821 of 2022 and for Petitioner in WP
No.2215 of 2024 and for Applicant in IA No.8021 of 2024.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 23 JUNE 2025
PRONOUNCED ON : 20 AUGUST 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith, and with the consent of the
parties, heard finally.
2. As these Petitions assail a common judgment and order dated 20 April
2022 passed by the Principal Judge, City Civil Court, they were heard
together and are being decided by this common judgment.
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3. By this Petition under Articles 226 and 227 of the Constitution of India,
the Petitioner takes exception to the judgment and order passed in Misc.
Appeal No.4 of 2019 by the learned Principal Judge, City Civil Court, Mumbai,
whereby the appeal preferred by the Petitioner along with Misc. Appeal No.7
of 2019 preferred by the Liquidator - Mumbai CST Central Railway
Employees Consumer Co-operative Society Limited (R3) came to be partly
allowed to the extent of modification of the quantum of damages, while
upholding the order of eviction passed by the Estate Officer (R2) directing the
Petitioner and Liquidator (R3) to vacate the premises admeasuring 875 sq.ft.
situated at Administrative Building, Central Railway, Mumbai (the subject
premises).
4. Shorn of unnecessary details, the background facts leading to this
Petition can be stated as under :
4.1 The Central Railway, Mumbai CSMT Central Consumers Co-operative
Society Limited (the Society) is a consumer co-operative Society of the
employees of the Central Railway. Central Railway (R1) allotted the subject
premises to the Society in terms of the policy of the Central Government to
allow the co-operative societies to operate on the railway premises. The
Society was formed to run rail bazar and/or manufacture and sale consumer
products, eatables/food articles in the railway precincts.
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4.2 On 9 March 2009, the Society issued a tender notice inviting bids for
running its business from the subject premises. As the Petitioner was a
successful bidder, the Society entered into a Conducting Agreement with the
Petitioner to run the Society's business from the subject premises for a term
of five years commencing from 1 April 2009 to 31 March 2014 on certain
terms and conditions, including a renewal clause.
4.3 As the society became financially unviable, the Deputy Registrar, Co-
operative Societies, Mumbai, passed an order dated 20 December 2012 to
wind up the affairs of the Society and appointed Liquidator (R3) to wind up the
affairs of the society. The Liquidator terminated the Conducting Agreement
executed by the Society in favour of the Petitioner. The latter invoked the
arbitration and by an order dated 16 January 2014, Arbitration Petition No.947
of 2013 came to be disposed with a direction that the Petitioner shall take
steps to get the arbitrator appointed, while allowing the Pettioner to continue
to be in possession of the subject premises till 8 April 2014 only. Beyond the
said date, the arbitration proceedings would continue only as regards the
claim of damages made by the Petitioner against the society.
4.4 By an order dated 2 April 2014, the appeal preferred against the
aforesaid order by the Petitioner came to be disposed with liberty to the
Railways to take any steps or to adopt proceedings in accordance with law for
the purpose of taking back the possession of the subject premises.
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4.5 In the meanwhile, the Liquidator (R3) executed a Second Conducting
Agreement with the Petitioner for a further term of five years i.e. 1 April 2014
to 31 March 2019.
4.6 On 18 November 2015, the Respondent No.1 issued notice to the
Petitioner under the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971, (the Public Premises Act, 1971) calling upon the Petitioner to
vacate the subject premises. It was followed by an application before the
Estate Officer under the Public Premises Act, 1971 seeking eviction of the
Petitioner from the subject premises. Eventually, by an order dated 17
November 2016, the Estate Officer directed the Petitioner to vacate the
subject premises and to pay damages in the sum of Rs.74,57,694.56 to the
Respondent No.1.
4.7 The Petitioner challenged the first order of Estate Officer dated 17
November 2016 before the learned Principal Judge, City Civil Court. By an
order dated 17 January 2017, the said appeal i.e. Misc. Appeal No.9 of 2016
came to be allowed. Learned Principal Judge was of the view that, in the
absence of the liquidator of the Society - original lessee, the proceedings
initiated against the Petitioner - opponent No.2, were not tenable.
4.8 On 18 October 2017, the Respondent No.1 again issued a show cause
notice calling upon the Petitioner and the Liquidator (R3) to show case as to
why they should not be evicted from the subject premises. Despite
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appropriate reply dated 28 October 2017, the Respondent No.1 ordered the
Estate Officer to initiate proceeding for eviction of the Petitioner and Liquidator
(R3). A show cause notice was, thereafter, issued by the Estate Officer on 2
November 2017.
4.9 By a judgment and order dated 31 August 2018, the Estate Officer
directed the Petitioner to vacate the subject premises opining, inter alia, that
the subject premises were unauthorizedly sublet to the Petitioner and also
that the subject premises was required for development of the area for the
tourism purpose by the railway administration. The Estate Officer thus
directed the Petitioner and Liquidator (R3) to vacate the subject premises
within 15 days from the date of receipt of the said order and pay a sum of
Rs.1,25,54,568/- towards damages.
4.10 Being aggrieved, the Petitioner filed Misc. Appeal No.4 of 2019, while
the Liquidator (R3) filed Misc. Appeal No.7 of 2019.
4.11 By the impugned judgment and order dated 20 April 2022, the appellate
authority was persuaded to dismiss the appeals holding, inter alia, that the
Petitioner was unauthorized occupant and was liable to deliver clear and
vacant possession of the subject premises.
4.12 Learned Principal Judge was, however, of the view that the
determination of the damages by the Estate Officer was on a higher side and
without considering the evidence of Mr. Hitendra K. Mehta, the valuer.
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Consequently, the damages was directed to be paid at the rate of Rs.3,125/-
p.m.
5. Being aggrieved by the aforesaid part of the impugned order to the
extent it reduced the quantum of damages, the Union of India has preferred
WP No.2215 of 2024.
6. It would be contextually relevant to note that the Liquidator (R3) had
also filed Writ Petition being No.6798 of 2022. However, the Liquidator (R3)
withdrew the said Petition, and, accordingly, only the challenge by the
Petitioner to the order of eviction survives.
7. I have heard Mr. Sanglikar, learned Counsel for the Petitioner in WP
No.6821 of 2022 and for Respondent No.2 in WP No.2215 of 2024 and Mr.
Govilkar, learned Advocate for the Petitioner in WP No.2215 of 2024 and for
Respondent Nos.1 and 2 in WP No.6821 of 2022, at some length. With the
assistance of the learned Counsel for the parties, I have also perused the
material on record.
8. Mr. Sanglikar, learned Counsel for the Petitioner, took a slew of
exceptions to the impugned judgment and order passed by the Principal
Judge, City Civil Court. Firstly, according to Mr. Sanglikar, the Estate Officer
as well as the Appellate Authority committed manifest error in law in not
deciding as to whether the subject premises is the public premises, and,
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therefore, the jurisdictional condition for exercise of the powers under the
Public Premises Act, 1971 was not fulfilled. Secondly, both the authorities
proceeded on a completely incorrect premise that the subject premises has
been allegedly sublet to the Petitioner. Thirdly, the show cause notice
addressed by the Estate Officer was wholly defective. The order of eviction
could not have been passed on the basis of such infirm and defective show
cause notice. A composite show cause notice for recovery of possession and
for damages is not legally tenable. The Estate Officer was enjoined to issue
show cause notice in the prescribed Forms. Failure to do so, was fatal to the
tenability of the proceeding for eviction under the Public Premises Act, 1971.
9. To this end, Mr. Sanglikar placed reliance on the decision of a learned
Single Judge of this Court in the case of Mine Manager, Manganese Ore
(India) Ltd. and Anr. V/s. Shyam s/o Kunjilal Yadav1. Reliance was also
placed on a judgment of the learned Single Judge of the Delhi High Court in
the case of ANZ Grindlays Bank, Plc. V/s. Union of India and Ors.2
10. To buttress the submission that the jurisdictional fact ought to have
been decided by the Estate Officer, Mr. Sanglikar placed reliance on the
judgment of the Supreme Court in the case of Jagmittar Sain Bhagat and
Ors. V/s. Director, Health Services, Haryana and Ors.3
11. Thirdly and more importantly, Mr. Sanglikar would urge, the provisions
1 2002(3) Mh.L.J. 917
2 2006(91) DRJ 453
3 (2013) 10 SCC 136
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of the Public Premises Act, 1971 are not at all attracted to the subject
premises as it is a Railways property. According to Mr. Sanglikar, the property
of the railways is not covered under the definition of Public Premises as
defined under Section 2(e) of the Act, 1971. This submission was not at all
delved into by the authorities below. To lend support to this submission, Mr.
Sanglikar placed a very strong reliance on the decision of the Uttarakhand
High Court in the case of Ravi Shankar Joshi V/s. Union of India and Ors.4
12. Mr. Sanglikar would further urge that the decision making process was
also infirm as Mr. R.K.Garg, who initially acted as the Estate Officer, was
himself instrumental in initiating action against the Petitioner, in his capacity
as the representative of the Railways administration. In such circumstances,
the entire action stood vitiated. To draw home this point, Mr. Sanglikar placed
reliance on a judgment of a learned Single Judge of this Court in the case of
Gajanan Shivram Lele V/s. Dena Bank and Anr.5.
13. Per contra, Mr. Govilkar, learned Senior Advocate for Respondent
Nos.1 and 2, would urge that the challenge to the impugned orders of eviction
is wholly untenable, especially at the instance of the Petitioner when the
Society has already withdrawn WP No.6798 of 2022. The Petitioner in WP
No.6821 of 2022 has no independent right to occupy the subject premises.
The term of 'conducting agreements', which were otherwise in breach of the
5 2015(3) Mh.L.J. 735
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terms and conditions of the grant of the premises to the Society, has expired
long back. There is no semblance of right and interest in the Petitioner to hold
on to the subject premises dehors the claim of the society. In the strict sense
of the term, the Petitioner cannot be said to be in possession of the subject
premises.
14. Mr. Govilkar urged with a degree of vehemence that, this Court has
repetitively held that the agreement between the Petitioner and the Society
did not bind the Railways and the latter was at liberty to initiate appropriate
action to resume the possession of the subject premises. Mr. Govilkar took
the Court through the orders passed by the Court in Arbitration Petition
No.947 of 2013 dated 16 January 2014; by the Appeal Bench in Appeal (L)
No.106 of 2014 in Arbitration Petition No.947 of 2013 on 2 April 2014, and on
22 April 2014 in Notice of Motion (L) No.868 of 2014 in Appeal No.106 of
2014, and Chamber Summons No.189 of 2019 in Execution Application (L)
No.2081 of 2018 dated 1 April 2019, to bolster up the submission that this
Court has consistently ruled that the agreement between the Petitioner and
the Society and the consequent orders in the arbitration proceedings did not
bind the Railways. Therefore, the endeavour of the Petitioner to perpetuate
the unauthorized occupation by reference to such agreement and the orders
passed in the arbitration proceedings behind back of the Railways, cannot be
countenanced.
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15. At any rate, the licence to conduct the business in the subject premises
came to an end in the year 2019. If the Petitioner has any remedies qua the
said Conducting Agreement, the Petitioner can enforce the same against the
Society and not against the Railways with whom he had no privity of contract,
much less, against the subject premises.
16. On the aspect of the legality and validity of the decision making process
by the Estate Officer, Mr. Govilkar would urge, the technical objections now
sought to be raised on behalf of the Petitioner that the notice was not served
in the prescribed Form, the lease of the society was not terminated or that the
determination was vitiated on account of the bias of Mr. R.K.Jain, do not
deserve any consideration as the fact remains that the Petitioner had an
efficacious opportunity of hearing before the Estate Officer, in as much as the
Petitioner cross-examined the witnesses of the Railways and adduced
evidence in his defence. At no point of time, any prejudice was pleaded by
the Petitioner.
17. Mr. Govilkar would further submit that, in exercise of supervisory
jurisdiction, it is the decision making process, which is required to be
examined and not the merits of the decision. In the case at hand, the material
on record would indicate that the Petitioner had an efficacious opportunity of
hearing and there was no glaring procedural defect in the proceedings before
the Estate Officer. Nor can it be urged that any fundamental right of the
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Petitioner is violated. In these circumstances, Mr. Govilkar would urge, no
interference is warranted in the impugned orders of eviction.
18. As regards the ground that the subject premises is not a 'public
premises' within the meaning of Section 2(e) of the Public Premises Act,
1971, Mr. Govilkar submitted that the question whether the premises
belonging to the Railways satisfies the definition of Public Premises, does not
arise for determination as, in the instant case, the survey register indicates
that the subject premises is a government land. Attention of the Court was
invited to the copies of the survey register in respect of C.S.No.1454.
19. Mr. Govilkar placed reliance on a judgment of the Supreme Court in the
case of Naresh Kumar V/s. Addl. District Judge, Varanasi6, wherein it was
enunciated that, the Union of India has dominion over the property and if the
said property had been entrusted to the Railway Club, it does not cease to
belong to the Union of India, and, thus, the definition of Public Premises under
Section 2(e) would apply to such property.
20. The aforesaid submissions now fall for consideration.
21. To begin with, it may be apposite to note the facts that bear upon the
Petitioner's claim over the subject premises. Incontrovertibly, the subject
premises was allotted to the Consumer Co-operative Society. The letter
dated 15 February 2012 (page 302 - Vol. I) indicates that the society had
6 AIR Online 1995 SC 812
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accepted the allotment on the terms and conditions given in Annexure A
appended thereto. It was provided that the Society shall not, inter alia, sublet
the premises or activity therein to anybody, assign or sublet or transfer any
interest in whole or in part of the licence. Any contravension thereof would
entail the termination of the allotment without notice.
22. The subject premises was to be used for the following purposes :
"5. The Society is permitted to use the premises for :
a. running a Consumer Co-operative store for sale of
items such as foodstuff, clothes, grocery, general consumer
merchandise, etc.
b. Selling ready to food items like, Vada Paav, Samosa,
Kachori etc., subject to the condition that these items will not
be cooked / prepared / manufactured in the premises.
c. dispensing tea/ coffee etc., through tea/coffee vending
machines only."
23. Clause 16 of the Terms and Conditions provided that no outsider
would be allowed to act as a salesman / Manager and such arrangement shall
be strictly prohibited.
24. Secondly, the claim of the Petitioner emanates from the Conducting
Agreement dated 8 April 2009 executed by the Society in favour of the
Petitioner. A bare perusal thereof make it abundantly clear that the Society
and the Petitioner intended to execute only Conducting Agreement and not
form any other jural relationship. Clause 22 of the said Conducting Agreement
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explicitly provides that the possession and control of the entire premises shall
always remain with the owner / registered society. Clause 23 makes the
position even more clear by incorporating that the Conductor / Partnership
firm' shall have no right, title or interest whatsoever in the subject premises or
any portion thereof, and the Conductor shall only be entitled to have the use
of the facilities as aforesaid. Clause 25 authorized the Society to terminate
the Conducting Agreement after giving two months notice. Clause 32 further
provided that, notwithstanding anything contained in the said Agreement, the
said Agreement shall not to be the basis for claiming any relationship with the
Society under the provisions of the Maharashtra Rent Control Act, 1999 as it
was a temporary arrangement for conducting the business sanctioned by the
Society for a temporary period.
25. The aforesaid nature of the jural relationship between the Petitioner and
the Society, on the one hand, and the absence of privity of contract between
the Petitioner and the Railway Administration, on the other hand, deserve to
be kept in view while deciding the nature of the occupation of the Petitioner in
the subject premises.
26. The manner in which this Court, albeit in the matters which arose out
of the disputes between the Petitioner and the Society, dealt with the nature of
the jural relationship between the Petitioner and the Railway Administration,
though may not be decisive, yet assumes importance.
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26.1 In the order dated 16 January 2014 passed in Arbitration Petition
No.947 of 2013, this Court recorded that the agreement between the
Petitioner and the Society did not bind the Railways. Therefore, even if the
case of the Petitioner based on the Conducting Agreement was accepted,
under the terms of the agreement, the Petitioner could not continue in
possession beyond 8 April 2014. Thus, while reiterating that the Conducting
Agreement was not binding on the Railways, it was directed that the Petitioner
shall take steps to get an Arbitrator appointed and only on that condition, the
Petitioner would continue to be in possession till 8 April 2014. Arbitration
proceedings would, thereafter continue only as regards the claim for damages
made by the Petitioner against the Society.
26.2 When the Petitioner challenged the said order in Appeal (L) No.106 of
2014, the Liquidator filed an affidavit stating that he intended to extend the
Agreement in favour of the Petitioner by another term of five years. When the
Railways raised an objection on the ground that the Liquidator was not
entitled to do so, the Appellate Bench clarified that the Railways were always
at liberty to take any steps or to adopt proceedings in accordance with law for
the purpose of taking back possession of the subject premises.
26.3 Lastly, in Chamber Summons No.148 of 2019 in Execution Application
(L) No.2081 of 2018, when directions were sought that the Officer of the High
Court be directed to execute and admit the execution and also effect
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registration of the Conducting Agreement on behalf of the Society, since
Conducting Agreement had expired on 31 March 2019, this Court declined to
accede to the said prayer recording, inter alia, that there was no direct privity
of contract between the Railways and the Award.
27. The submissions sought to be canvassed by Mr. Sanglikar touching
upon the breach of the provisions contained in the Public Premises Act 1971
and the Rules framed thereunder, the defect in the notices issued by the
Railways and the Estate Officer before the commencement of the
proceedings, and the vitiation of the proceeding on account of bias, are
required to be appreciated keeping in view the aforesaid status of the
Petitioner qua subject premises and the nature of his claim.
28. On first principles, if the Petitioner has no right to assert possession
over the subject premises, de hors the concession given by the society to
conduct the business which the society was entitled to carry on under the
terms of the allotment by the Railways, and, thus, no independent right and
interest to hold on to the premises, it becomes debatable where the Petitioner
can mount the aforesaid challenge to the order of eviction especially when the
challenge by the society thereto came to be withdrawn.
29. Nonetheless, this Court considers it appropriate to briefly delve into the
aforesaid grounds of exception to the impugned order, assiduously canvassed
by Mr. Sanglikar. An effort was made by Mr. Sanglikar to draw home the point
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that the allotment in favour of the society was not lawfully terminated.
Attention of the Court was invited to an admission in the cross-examination of
PW-1 that the Railways had not issued a termination notice as such. Taking
the Court through the contents of the notice dated 18th October 2017, styled
as departmental show cause notice, Mr. Sanglikar, would urge that the said
notice can never be construed to be a termination notice.
30. The learned Principal Judge was not persuaded to accede to the
aforesaid submission The learned Principal Judge was of the view that a
notice of termination need not be construed very strictly. This view of the
learned Principal Judge is legally impeccable. It is well-recognized the title or
nomenclature of a document is not of decisive significance. If the notice dated
18th October 2017 is read as a whole, it becomes abundantly clear that the
Railways had called upon the society as well as the Petitioner to vacate the
subject premises. The notice refers to the acts of commission and omission
on the part of the society in breach of the terms and conditions of allotment.
The society was specifically informed that the society had entered into the
Conducting Agreement with the Petitioner in breach of the terms and
conditions of the allotment of the subject premises and without the consent
and knowledge of the Railways. Qua the Petitioner, it was categorically
stated that the Petitioner (Noticee No.2) had no legitimate right to continue to
occupy the Railways property. The occupation of the Petitioner was wholly
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unauthorized. The society and the Petitioner were put to notice that they were
liable to be evicted under the Public Premises Act 1971.
31. If the notice dated 18th October 2017 is read a a whole, it becomes
abundantly clear that the Railways has adverted to all the material facts,
including the breach on the part of the society and the nature of the
occupation of the Petitioner, the cause which constrained the Railways to
seek vacant possession of the subject premises. Therefore, the submission
on behalf of the Petitioner that there was no lawful termination of allotment
does not carry any substance.
32. Mr. Sanglikar then urged that the Estate Officer had mechanically
issued the notice dated 2nd November 2017 without application of mind. It was
submitted that the Estate Officer was enjoined to first satisfy himself that the
noticee was in unauthorized occupation of the public premises and that he
was required to be evicted therefrom. The material on record, according to Mr.
Sanglikar, does not indicate that the Estate Officer had recorded such
satisfaction before the notice dated 2nd November 2017 came to be issued
under Section 4 r. w. Section 7 of the Public Premises Act 1971.
33. In order to lend support to the aforesaid submission, Mr Sanglikar
placed a strong reliance on a judgment of this Court in the case of Minoo
Framroze Balsara Vs The Union of India & Ors.7
7 AIR 1992 Bom 375.
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34. In the case of Minoo Framroze Balsara (supra), after analyzing the
provisions of the Public Premises Act 1971, this Court held, inter alia, that
Section 4 prescribes that the unauthorized occupant must be issued with
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 unauthorized 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; first, that the addressee is in
unauthorized 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 an unauthorized 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 unauthorized occupation. He also cannot show effective
cause unless he knows why his eviction is proposed.
35. The aforesaid enunciation elucidates the purpose of the notice under
Section 4 of the Public Premises Act 1971. It emphasis that, issuance of a
notice under Section 4 is not an empty formality. The noticee must be
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informed of the grounds which the Estate Officer considers sufficient to
warrant the eviction of the noticee from the public premises. Sub-Section (2)
of Section 4 expressly mandates that the notice shall specify the grounds on
which the order of eviction is proposed to be made.
36. Thus there can be no quarrel with the aforesaid proposition. In the facts
of the case, however, it cannot be said that the show cause notice dated 2 nd
November 2017 was defective and infirm. The show cause notice refers to the
notice dated 18th October 2017 issued by the Railways and the reasons which
rendered the occupation of the premises by the Petitioner unauthorized and
also the grounds on which the Petitioner was proposed to be evicted.
37. If the show cause notice dated 2nd November 2017, is read in
conjunction with the notice dated 18th October 2017, addressed by the
Railways, it cannot be said that the Estate Officer had not recorded the
subjective satisfaction that the Petitioner was in unauthorized occupation and
thus, notice was required to be issued under Section 4 of the Public Premises
Act 1971 to the society and the Petitioner. Nor can it be said that the
Petitioner was prejudiced in his defence as the said notice did not equip him
to show cause to the proposed action of eviction.
38. Mr. Sanglikar next urged that the aforesaid show cause was addressed
by RK Jain, Estate Officer-Divisional Engineer, CST, Mumbai. Since RK Jain
had earlier taken part in the process to seek the permission of the Registrar to
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proceed against the Liquidator and in initiating the action under the Public
Premises Act 1971, the entire action was vitiated on account of official bias.
39. Mr. Sanglikar, placed reliance on a judgment of this Court in the case of
Gajanan Shivram Lele (Supra). In the said case, the Petitioners therein had
invoked the writ jurisdiction of this Court as the Estate Officer, Respondent
No.2 therein, before whom the proceedings under the Public Premises Act
1971 were pending, had himself recommended the action of eviction against
the Petitioners. In that context, this Court held that since the Respondent No.2
therein, had himself already done some act or taken decision in the matter
concerned, the apprehension expressed by the Petitioners that the
Respondent No.2 may be interested in supporting his act or decision in the
matter concerned, cannot, in the facts and circumstances of the said case, be
described as some unreasonable apprehension.
40. I am afraid the aforesaid decision is of any assistance to the Petitioner.
The material on record indicates that the Petitioner had filed an Application
dated 4th December 2017 seeking recusal of RK Jain from the eviction
proceedings and, thereupon, on 11th January 2018, RK Jain, recused himself
from the said proceedings and another Estate Officer came to be appointed.
Thereafter, all the parties, including the Petitioner, were provided an effective
opportunity of hearing by the successor Estate Officer.
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41. In this view of the matter, the broad submission of Mr. Sanglikar that the
proceeding was totally vitiated on account of the official bias of RK Jain does
not merit acceptance unreservedly. By no stretch of imagination, can it be said
that the Petitioner and the society did not get an effective opportunity of
hearing. Therefore, the challenge to the order passed by the Estate Officer on
the count of bias also falls through.
42. Mr. Sanglikar further urged that the show cause notice was not issued
in accordance with the provisions of the Public Premises Act 1971 and the
Rules framed thereunder. Firstly a composite show cause notice under
Section 4 and Section 7 of the Public Premises Act 1971 was infirm.
43. Amplifying the submission, Mr. Sanglikar would urge that under Rule 3
of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, a
notice or order under the Public Premises Act 1971 shall be in one of the
appropriate forms appended to those Rules. The form of notice under Section
4 of the Public Premises Act 1971, is prescribed in Form-A. Whereas the form
of notice under Section 7 of the Public Premises Act 1971 is prescribed in
Form-D. Therefore, a composite notice under Section 4(2) and 7 of the Public
Premises Act 1971 was not in consonance with the provisions of the Public
Premises Act 1971 and the Public Premises Rules 1971.
44. A proper show cause notice is indispensable to sustain an action of
eviction under the Public Premises Act 1971. To buttress this submission, Mr.
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Sanglikar placed reliance on a judgment of this Court in the case of Shyam
Kunjilal Yadav (Supra).
45. In the case case of Shyam Kunjilal Yadav (supra), the show cause
notice proceeded on the premise that the Respondent therein had ceased to
be in the employment of the Appellant 25 years ago and was thus in
unauthorized occupation of the public premises. It, however, emerged that
neither the Respondent nor his father nor any member of the family had been
in the service either of the Appellant or the predecessor in interest of the
Appellant.
46. In that context, this Court observed that the issuance of a proper notice
to show cause is a mandatory requirement of the statute. The show cause
notice was fundamentally flawed in the said case and the eviction
proceedings, was, therefore, liable to be quashed and set aside on the
aforesaid ground.
47. There can be no duality of opinion that a proper and valid show cause
notice in conformity with the statutory requirement must precede the action of
eviction. However, the aforesaid decision does not advance the cause of the
submission on behalf of the Petitioner. As noted above, the intrinsic evidence
of the notice dated 2nd November 2017, coupled with the notice issued by the
Railways on 18th October 2017, gave a fair and complete indication of the
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reasons which weighed the Estate Officer to initiate the action for eviction
against the Petitioner.
48. In the totality of the circumstances, the fact that a notice was issued to
the Petitioner under the provisions contained in Section 4(2) and Section 7 of
the Public Premises Act 1971 does not detract materially from the legality and
validity of the said notice.
49. Mr. Sanglikar would urge that the Estate Officer did not at all advert to
the question whether the subject premises falls within the definition of Public
Premises under Section 2(e) of the Public Premises Act, 1971. Inviting
attention of the Court to the issues settled by the Estate Officer, Mr. Sanglikar
would submit the order passed by the Estate Officer suffers from the vice of
the non-consideration of the most relevant issue, namely, whether the subject
premises constituted a public premises. It is only when the premises satisfies
the definition of public premises under Section 2(e), the Estate Officer gets
jurisdiction. Therefore, it was incumbent upon the Estate Officer to frame and
decide the said issue.
50. To this end, Mr. Sanglikar placed reliance on the judgment of a learned
Single Judge of the Delhi High Court in the case of ANZ Grindlays Bank,
Plc. V/s. Union of India and Ors. (supra), wherein it was enunciated that to
invoke the provisions of the Public Premises Act, 1971, it should be shown
that the property in question falls within the term of the public premises under
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the Act, 1971, and the Petitioner is in unauthorized occupation of the same,
and, unless that is done, the Estate Officer cannot assume jurisdiction and
proceed to make orders.
51. Reliance was also placed on the judgment of the Supreme Court in the
case of Carona Ltd. V/s. Parvathy Swaminathan and Sons8 wherein the
import of "jurisdictional fact" was expounded. The observations of the
Supreme Court in paragraphs 27 and 28 read as under :
"27. Stated simply, the fact or facts upon which the
jurisdiction of a Court, a Tribunal or an Authority depends
can be said to be a 'jurisdictional fact'. If the jurisdictional
fact exists, a Court, Tribunal or Authority has jurisdiction to
decide other issues. If such fact does not exist, a Court,
Tribunal or Authority cannot act. It is also well settled that
a Court or a Tribunal cannot wrongly assume existence of
jurisdictional fact and proceed to decide a matter. The
underlying principle is that by erroneously assuming
existence of a jurisdictional fact, a subordinate Court or an
inferior Tribunal cannot confer upon itself jurisdiction
which it otherwise does not posses.
28. In Halsbury's Laws of England, (4th Edn.), Vol.1,
para 55, p.61; Reissue, Vol.1(1), para 68, pp.114- 15, it
has been stated:
"Where the jurisdiction of a tribunal is dependent on
the existence of a particular state of affairs, that state of
affairs may be described as preliminary to, or collateral to
the merits of the issue. If, at the inception of an inquiry by
8 (2007) 8 SCC 559
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an inferior tribunal, a challenge is made to its jurisdiction,
the tribunal has to make up its mind whether to act or not
and can give a ruling on the preliminary or collateral issue;
but that ruling is not conclusive".
The existence of a jurisdictional fact is thus a sine qua non
or condition precedent to the assumption of jurisdiction by
a Court or Tribunal." (emphasis supplied)
52. Mr. Sanglikar also banked upon the enunciation of law in the case of
Jagmittar Sain Bhagat and Ors. V/s. Director, Health Services, Haryana
and Ors. (supra), wherein the Supreme Court postulated that the conferment
of jurisdiction is a legislative function and it can neither be conferred with the
consent of the parties or by a superior court and if the Court passes a decree
having no jurisdiction over the matter, it would amount to nullity as the matter
goes to the root of the cause. If the Court / Tribunal inherently lacks
jurisdiction, the acquiescence of party equally not be permitted to perpetrate
and perpetuate defeating the legislative animation. The Court cannot derive
jurisdiction apart from the statute.
53. Lastly, Mr. Sanglikar placed a very strong reliance on the decision of the
Uttarakhand High Court in the case of Ravi Shankar Joshi V/s. Union of
India and Ors.(supra), to draw support to the submission that the Public
Premises Act, 1971 will not apply to the property belonging to the Railways. In
the said case, after adverting to the definition of the Public Premises under
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Section 2(e), the Uttarakhand High Court held that the Public Premises Act,
1971 will not be applicable to the properties which belong to the Railways, as
they would not be falling within any of the clauses of the definition of the
Public Premises. The Uttarakhand High Court was of the view that the
Railways have been independently dealt with under List I Entry No.22 of
Seventh Schedule to the Constitution. Being an independent body, directly
under the control of the Government of India, the Railways is neither the local
body nor the public corporation covered by the definition under Section 2(e) of
the Public Premises Act, 1971.
54. In contrast to this, Mr. Govilkar would urge that, in the facts of the case
at hand, the question of the subject premises not being a public premises
does not arise. Inviting attention of the Court to the survey register, Mr.
Govilkar would urge, the land on which the subject premises is situated is the
government land. The beneficial ownership of the property bearing
C.S.No.1454 is shown to vest with the Railways. Therefore, the primary
character of the property as the property of the Central Government does not
change.
55. Mr. Govilkar would further submit that the issue of the Railways
property being the public premises is no longer res integra. Reliance was
placed on the judgment of the Supreme Court in the case of Naresh Kumar
V/s. Addl. District Judge, Varanasi (supra).
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56. For the applicability of the Public Premises Act, 1971, the premises in
question must indubitably fall within the ambit of 'public premises' as defined
under Section 2(e) of the Public Premises Act, 1971. Undoubtedly, the
existence of public premises is the jurisdictional fact. The provisions under
the Public Premises Act, 1971 can be invoked only when the premises falls
within the definition of 'public premises'. To the aforesaid extent, the
submissions of Mr. Sanglikar merit acceptance.
57. But the abstract submission of Mr. Sanglikar that the provisions of the
Public Premises Act, 1971, do not apply to the Railway premises cannot be
accepted. That question would be required to be answered in the backdrop of
the facts of the given case. If there is material to indicate that the property in
question, belongs to the Government, the primary requirement stands
satisfied even if the Railways exercises possessory control and dominion over
such property. The expression "belonging to" is wider in connotation than
ownership. In the case at hand, as noted above, the survey register indicates
that the property is the government land.
58. At this juncture, reference to the judgment of the Supreme Court in the
case of Naresh Kumar V/s. Addl. District Judge, Varanasi (supra), would
be apposite. In that case, the Union of India (Eastern Railways) owned a
cinema building. The management of the club building including an
Auditorium and machinery etc., had been entrusted by the Eastern Railways
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Administration to the Railway Cinema Club. The Auditorium of Railway
cinema was hired by the Appellant therein for a period of five years for
screening feature films.
59. When the Estate Officer, Eastern Railways, initiated proceedings for the
eviction of the Appellant, on expiry of the contract period, it was, inter alia,
contended that under Section 2(e) of the Public Premises Act, 1971, the
words 'belonging to' should mean the Central Government must have control
over the property. Where the Railway Administration had handed over the
property to the Railway Cinema Club, which had, in turn, licenced the
Auditorium to the Appellant, it cannot be said that the Government of India
(Railway Administration) had control over the property.
60. Repelling the submissions, the Supreme Court held as under :
"5......If admittedly the property belongs to the Union of India,
the Railway Cinema Club had been entrusted with the
running of the cinema house together with the equipments.
It found its running was not a profitable venture. Therefore,
by inviting tenders, the offer of the appellant came to be
accepted and that was how he became the licencee for a
period of five years from 1982 from the Railway Club. After
the expiry of the period, the estate officer invoked the
provisions of the Act for evicting the appellant. We are
clearly of the view that merely because the Railway Club
invited tenders the property did not cease to belong to the
Union of India (the Eastern Railway Department). It still had
dominion over the property. Advisedly under Section 2(e)
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Parliament has used the words "belonging to" and not
ownership. If, therefore, the Union of India has dominion
over the property and if the said property had been entrusted
to the Railway Club, by such mere entrustment it does not
cease to belong to the Union of India. Therefore, the
definition under Section 2(e) will apply."
(emphasis supplied)
61. The aforesaid enunciation of law appears to be on all four with the facts
of the case at hand. In the case at hand as well, the entrustment by the
Railways of the subject premises was to a consumer society which had, in
turn, entrusted the business therein to the Petitioner under a Condcuting
Agreement. The Railway administration, thus, exercised dominion over the
subject premises. In this view of the matter, I find it difficult to accede to the
submission of Mr. Sanglikar that the Estate Officer exercised jurisdiction not
vested in him by law.
62. The conspectus of aforesaid consideration is that, none of the grounds
canvassed by Mr. Sanglikar are worthy of acceptance. Moreover, having
regard to the nature of the claim of the Petitioner, especially after the expiry of
the term of the second Conducting Agreement as well, the Petitioner cannot
be permitted to agitate the aforesaid grounds which the Society could have
legitimately urged. Writ Petition No.6821 of 2022, therefore, fails.
Writ Petition No.2215 of 2024 :
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63. The Railway administration is aggrieved by the impugned order which
modifies the quantum of damages. Learned Principal Judge, City Civil Court,
has evaluated the valuation reports pressed into service by the Railway
administration, the Society and the Petitioner in WP No.6821 of 2022.
Learned Principal Judge on a careful evaluation of each of the valuation
reports found that the evidence of Mr. Hitendra K. Mehta, valuer appointed by
the Society (Opponent No.1), appeared worthy of acceptance as Mr. Mehta
had prepared the valuation report after considering all the relevant factors,
including the condition of the premises, its location and the availability of the
amenities. In contrast, the reports of other valuers were on the basis of the
ready-reckoner and market rental of commercial premises.
64. In the backdrop of the aforesaid assessment of the valuation reports by
the learned Principal Judge, this Court in exercise of writ jurisdiction does not
find it expedient to interfere with such appreciation, which is essentially rooted
in facts. Moreover, in view of the settlement arrived at between the Railway
Administration and the Society, inter alia, that the Railway administration shall
abide by the impugned order, as amended by the order dated 4 May 2022, in
regard to the levy of damages, pursuant to which, the Society has withdrawn
the challenge to the impugned order, the issue of quantum of damages need
not be again opened and determined by this Court in exercise of the extra-
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ordinary writ jurisdiction. Thus, Writ Petition No.2215 of 2024 also deserves
to be dismissed.
65. Hence, the following order :
ORDER
(i) Writ Petition No.6821 of 2022 stands dismissed.
(ii) In view of dismissal of Writ Petition No.6821 of 2022, IA No.8021
of 2024 stands disposed.
(iii) Writ Petition No.2215 of 2024 also stands dismissed.
(iv) Rule discharged.
(v) No costs.
( N.J.JAMADAR, J. )
66. At this stage, Mr. Sanglikar, the learned Counsel for the petitioner, in
WP No.6821 of 2022, seeks continuation of the interim relief.
67. Mr. Gowilkar, the learned Senior Advocate for the respondent - Union
of India, opposes the prayer.
68. Since the interim relief is in operation, it shall continue for a period of
four weeks upon the petitioner furnishing an undertaking not to part with the
possession of the subject premises and otherwise create any third party
interest in the subject premises, within one week from today.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 20/08/2025 22:02:31
