Oral Judgment:

1. Heard Mr Chodankar, the learned Central Government Standing Counsel for the Petitioner, and Mr Lotlikar, the learned Senior Advocate appearing with Ms. Volvoikar for the Respondent.

2. The challenge in this Petition is to the judgment and order dated 11.07.2008 passed in Regular Civil Appeal No. 32/2006, by which, the learned District Judge, acting as the Appellate Authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (said Act), has set aside the Estate Officer’s judgment and order dated 08.03.2006 in Case No. PP(E)/01/06, ordering the eviction of the Respondent on the ground that she was in unauthorized occupation of the public premises, which is Shop No. 14 in the Indian Navy Shopping Complex at Varunapuri, Mangor Hill, Vasco-da-Gama, Goa (public premises).

3. Mr Chodankar submitted that there is no dispute about the premises being “public premises” under the provisions of the said Act. He submitted that the Appellate Authority, by the impugned order, has recorded a finding that the Respondent was indeed in “unauthorized occupation” of the public premises. This finding has not even been challenged by the Respondent. In these circumstances, Mr Chodankar submitted that the order of eviction had to follow as a necessary sequitur. The impugned judgment and order, to that extent, takes a contrary view, vitiated by illegality and perversity, thereby warranting its interference by this Court.

4. Mr Chodankar submitted that the notices issued to the Respondent before initiating or at the parting of initiating the proceedings were legal and valid, and there was no infirmity therein to the extent that the impugned judgment and order hold otherwise that there is illegality and perversity, thereby warranting interference with the impugned judgment and order by this Court.

5. Without prejudice, Mr Chodankar submitted that these premises and the entire shopping complex are now dilapidated and are a necessity for redevelopment. He submitted that this Court should permit the Petitioner to redevelop the premises, leaving open the issue of entitlement of the Respondent to some rights or premises in the redeveloped project. He relied on the decision of the Hon’ble Supreme Court in the case of Life Insurance Corporation of India and Another Vs. Vita(Civil Appeal No. 2638 of 2023 decided on 11.12.2025).

6. Mr Lotlikar, the learned Senior Advocate for the Respondent, submitted that the Respondent was not allotted these premises as a service quarter whilst in service. He submitted that the allotment was under a scheme for the benefit of retired Naval Officers. He, therefore, submitted that strictly speaking, the premises in question may not answer the definition of public premises.

7. In any event, without prejudice, Mr Lotlikar submitted that the notice dated 09.01.2006, upon which, the Estate Officer’s eviction order was based, was ex-facie in breach of the provisions of Section 4 of the said Act, as interpreted by the Division Bench of this Court in the case of Minoo Framroze Balsara Vs. the Union of India and Others(AIR 1992 Bom 375). Therefore, he submitted that any proceedings based upon such a grossly defective notice were incompetent and correctly interfered with by the Appellate Authority.

8. Mr Lotlikar submitted that the finding in the impugned order about the Respondent being an unauthorised occupant is also vulnerable, and the Respondent should be allowed to challenge the same even without the necessity of filing separate proceedings. He submitted that typically, Petitions are not filed to question the findings simpliciter when the ultimate order favours the party. He submitted that there was nothing unauthorised in the occupation of the Respondent. In any event, the twin test of a person being in an unauthorised occupation, and the necessity of eviction of such a person, were not at all satisfied in the present case.

9. Mr Lotlikar, without prejudice, submitted that even the Respondent was not averse to any settlement, if some commitment was made for providing alternate premises in the redeveloped complex. He submitted that the Petitioner, without just cause, disconnected the electricity supply and allowed it to be disconnected for the entire complex, thereby rendering its operations very difficult. He submitted that the Petitioner cannot be allowed to take advantage of its own unjust and illegal actions to contend that redevelopment should be permitted without even lawfully evicting the Respondent or committing any allotment in the redeveloped complex. Still, Mr Lotlikar maintained that if any settlement offer was being proposed, the Respondent was not averse. He relied upon the decision of the Hon’ble Supreme Court in the case of Ashoka Marketing Ltd. and Another Vs. Punjab National Bank and Others((1990) 4 SCC 406) in support of his contentions.

10. The rival contentions now fall for determination.

11. Although the learned Counsel for either party, have raised several contentions, the Appellate Authority, in this case, by the impugned judgment and order has interfered with the Estate Officer’s eviction order, primarily on the ground that the notice dated 09.01.2006 issued under Section 4 of the said Act was grossly defective and any action based upon such a grossly defective notice was incompetent. Therefore, I propose to examine whether such reasoning is correct and, if so, whether it must be upheld.

12. Section 4 of the said Act requires the Estate Officer to issue notice to show cause to a party if the Estate Officer has information that any person is in unauthorised occupation of any public premises and that he should be evicted.

13. Sections 4 and 5 of the said Act, as obtained on the date of the notice under Section 4, i.e., 09.01.2006, and on the date the Estate Officer made the eviction order, i.e., 08.03.2006, read as follows: -

                   “5. Sections 4 and 5 read thus :

                   “Section 4.(1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

                   (2) The notice shall -

                   (a) specify the grounds on which the order of eviction is proposed to be made; and

                   (b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises,--

                   (i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and

                   (ii) to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.

                   (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons.

                   (4) Where the estate officer knows or has reasons to believe that any persons are in occupation of the public premises, then, without prejudice to the provisions of sub-sec. (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.

                   Section 5 (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under S. 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Cl. (b) of sub-sec. (2) of S. 4, the estate officer is satisfied, that the public premises arc in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

                   (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the dale of its publication under sub-sec. (1), which is later, the estate officer or any other officer duly authorised by the estate officer in his behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."

14. The Division Bench of this Court in the case of Minoo Balsara (supra) interpreted the above two provisions to hold that the provisions contemplate two preconditions to the issuance of the show cause notice. The first precondition is the record of the opinion by the Estate Officer that the person to whom the notice is issued must be in unauthorised occupation. The second precondition is that the person to whom the notice is addressed must, in the opinion of the Estate Officer, need to be or should be evicted. The argument now advanced by Mr Chodankar is that once the Noticee is found to be in unauthorised occupation as a sequitur, such a person must be evicted, as a matter of course, which was not accepted by the Division Bench of this Court.

15. The above is evident from the discussion in paragraphs 34 to 45, which are transcribed below for the convenience of reference:-

                   “35. Under Section 5 the Estate Officer must consider the cause that is shown by the addressee. 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 validity of the Estate Officer's conclusions would be tested in appeal, which is before a District Judge or equivalent judicial officer.

                   36. In the case of Ashoka Marketing Ltd. (supra), the Supreme Court said, "It has been urged by the learned counsel for the petitioners that many of the corporations referred to in Section 2(e)(2)(ii) of the Public Premises Act, like the nationalised Banks and the Life Insurance Corporation, arc trading corporations and under the provisions of the enactments whereby they are constituted these corporations are required to carry on their business with a view to earn profit, and that there is nothing to preclude these corporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as compared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay : "Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigour of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords, must be judged by that standard." These observations were made in the context of the provisions of the Bombay Rents, Hotel and Lodging House Rates' Control Act, 1947 whereby exemption from the provisions of the Act has been granted to premises belonging to the Bombay Port Trust. The consequence of giving overriding effect to the provisions of the Public Premises Act is that premises belonging to companies and statutory bodies referred to in Clauses (2) and (3) of Section 2(e) of the Public Premises Act would be exempted from the provisions of the Rent Control Act. The provisions of the companies and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act while dealing with their properties under the Public Premises Act will, therefore, have to be judged by the same standard." It may, therefore, be concluded that the Government company or corporation must so act not only when terminating the authority of an occupant of public premises of its ownership to occupy the same but also when, thereafter, it seeks his eviction therefrom. The Estate Officer, in making the inquiry under Section 5, would, therefore, have to consider whether or not the termination of the authority was informed by reason and guided by public interest and also whether his eviction satisfied the same tests. This, necessarily, would also apply in appeal.

                   37. We cannot accept Mr. Seervai's submission that, in so construing Sections 4 and 5, we would be reading them down or reading words into them; we read them as they stand. Nor are we reading the standards laid down in the Marfatia and Ashoka Marketing cases into Sections 4 and 5. These cases set out the norms by which the actions of Government companies and corporations in respect of their tenants have to be judged. Government companies and corporations arc obliged to conform to such norms and their actions must be judged by the Estate Officer and in appeal accordingly.

                   38. It was Mr. Seervai's submission that the Eviction Act, 1971, conferred unfettered power and unguided discretion. He referred in support of this submission to the judgment of a Division Bench of the Karnataka High Court in The Indian Bank Ltd. v. M/s. Blaze and Central (P.) Ltd., AIR 1986 Kar 258. Interpreting Section 5 of the Eviction Act, 1971, the Division Bench held that the only point for enquiry under Section 5 was whether or not a person was an unauthorised occupant of public premises and nothing more. If a person to whom notice was issued under Section 4 calling upon him to show cause why he should not be evicted were to plead that he was not in unauthorised occuaption, it became necessary for the Estate Officer to enquire whether such a plea was valid. But if he did not dispute that he had become an unauthorised occupant or, having raised a dispute, failed to prove that he was not an unauthorised occupant, the Estate Officer was empowered to pass an order of eviction under Section 5. The jurisdiction of the Estate Officer under Section 5 was "only to he satisfied as to the unauthorised occupation of the person concerned and not about the bona fide requirements of the public authority or about comparative hardship just because the respondent chose to raise the pleas as they were not relevant to the inquiry under S. 5 of the Act."

                   39. With great respect to the learned Judges of the Karnataka High Court, we are unable to agree. Their judgment takes no account of Section 4. In our view, it is imperative that Sections 4 and 5 be read together and harmoniously. Further, no account is taken of the use of the word 'may' in Section 5. Thereunder, even if the Estate Officer is satisfied that the public premises are in unauthorised occupation he 'may' make an order of eviction. The judgment does not hold that the word 'may' should be construed to mean 'shall'. We have stated above that when Sections 4 and 5 are read together and harmoniously, it becomes dear that the word 'may' in Section 5 does in fact mean 'may' and that 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 in unauthorised occupation should be evicted.

                   40. We are also unable to accept Mr. Seervai's submission that Section 4 does not contemplates two pre-conditions to the issuance of a show cause notice and that the only pre-condition is the opinion of the Estate Officer that the person to whom he addresses the notice is in unauthorised occupation of public premises. 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.

                   41. Support may be drawn from the judgment of this Court in Union of India v. V. D. Tulzapurkar (ILR 1967 Bom 671). The Division Bench analysing Section 4 of the Eviction Act, 1971, said: ". before commencing any inquiry against unauthorised occupation of public premises the Estate Officer is required to form an opinion that there are persons in unauthorised occupation of such premises and that it is necessary that they should be evicted from the premises unauthorisedly occupied by them. There is thus an indication in Section 4 of the Act that the Tribunal constituted under the Act has to initially form an opinion in respect of the matters to be decided finally by him after giving an opportunity to show cause and recording evidence."

                   42. It is important to note that the Division Bench was of the view that the Estate Officer had finally to decide under Section 5 'matters' in respect of which he had initially formed an opinion under Section 4, viz., that "there are persons in unauthorised occupation of such premises and that it is necessary that they should be evicted". The judgment, therefore, supports also the interpretation that we have placed upon Section 5 viz., that the Estate Officer must thereunder decide both whether the person to whom he has addressed the notice under Section 4 is in unauthorised occupation of public premises and whether he should be evicted therefrom.

                   43. Reference was made by Mr. Seervai to the judgment of the Calcutta High Court in Standard Literature Co. v. Union of India. In this judgment, it was held by a Special Bench of the Calcutta High Court that all that sub-section (2) of Section 4 of the Eviction Act, 1958, required, was that the notice under sub-section (1) should specify the grounds on which order of eviction was proposed to be made. If notice to quit had been validly served and the period specified therein had expired, then the person served was in unauthorised occupation. This was sufficient ground for an order of eviction. The person concerned had no defence because the West Bengal Premises Tenancy Act, 1956, did not apply to premises belonging to Government and, therefore, where the tenancy of a person had been properly determined under the Transfer of Property Act, then, in the case of premises belonging to Government, there was no defence to eviction.

                   44. With respect, this finding appears to have been reached only on the consideration that a tenant of property belonging to Government was in a "somewhat worse position than a person holding private land." The finding appears to have been given without construing the terms of Section 4 and without harmoniously reading the provisions of Sections 4 and 5.

                   45. It may also be noted that these and Karnataka and Calcutta High Court judgments were delivered before the judgments of the Supreme Court in the Marfatia and Ashoka Marketing cases.”

16. In the present case, the Section 4 notice issued by the Estate Officer on 09.01.2006 records the opinion that the Respondent was in unauthorised occupation of the public premises and should be evicted from them. This is simply a mechanical paraphrase of the requirements of Section 4. In the grounds accompanying the notice, there is reference to only why, in the opinion of the Estate Officer, the Respondent was in unauthorised occupation of the public premises. However, there is no whisper as to why the Respondent should be evicted from the public premises. That is why Mr Chodankar was compelled to make the argument of sequitur, which argument has been expressly rejected by the Division Bench of this Court in the case of Minoo Balsara (supra).

17. Section 4 notice dated 09.01.2006, which is on page 13 of the paper book of this Petition, is transcribed below for the convenience of reference.

                   “Headquarters

                   Goa Naval Area Vasco da Gama

                   Goa — 403 803

                   Case No. PP(E) – 01/06

                   NOTICE UNDER SUB SECTION (I) AND CLAUSE (B)(II) OF SUB SECTION (2) OF SECTION 4 OF PUBLIC PREMISES

                   (Eviction of Unauthorised occupants Act, 1971)

                   To,

                   Smt. Shanti Devi

                   Shop No. 14, Shopping Complex

                   Varunapuri, Vasco da Gama

                   Goa - 403 801

                   Whereas I, the undersigned, am of opinion, on the grounds specified below that you are in unauthorised occupation of the Public Premises mentioned in the schedule below and that you should be evicted from the said premises.

                   GROUNDS

                   You have continued to occupy Shop No. 14 in Indian Naval Shopping Complex, Varunapuri belonging to the Union of India, hereinafter referred to as the said premises, despite termination of your lease agreement by Commanding Officer, INS Hansa with effect from 10 Oct 05 i.e. on the expiry of your tenancy month. Besides, the said termination notice specifically provided that if your tenancy be ending on any other date than as mentioned above, then your tenancy stood terminated on the close of such date of your tenancy month, which would expire after the expiry of 15 days of service of the notice on you. The notice having been served on 23 Sep 05, and you have not handed over the free and vacant possession of the said premises till to date.

                   Now, therefore in pursuance of sub-section (1) of Section 4 of the Act. I hereby call upon you to show cause on or before the 17 Jan 06 that why such an order of eviction should not be made.

                   And in pursuance of clause (b) (II) of sub-section (2) of Section 4, I also call upon you to appear before me in person or through a duly authorised representative capable to answer all material questions connected with the matter along with the evidence which you intend to produce in support of the cause shown, on 17 Jan 06 at 1500 hrs, at Community Hall, Varunapuri, for personal hearing. In case, you fail to appear on the said date and time, the case will be decided ex parte.

                   SCHEDULE

                   (a) Type - Shop

                   (b) Area - 220 sq. ft.

                   (c) Specification - A permanent shop in Varunapuri shopping complex designated as shop no 14.

                   Date: 09 Jan 2006

                   Ref: PP(E) 01/06

                   sd/-

                   (BR Sen)

                   Commodore Estate Officer”

18. The notice also proceeds on the basis that, as a sequitur, once a person is found to be in unauthorised occupation of public premises, such a person needs to be evicted from the said premises. The Division Bench has expressly rejected such a premise in the case of Minoo Balsara (supra). Besides, such a premise ignores the expression “and”, which connects the twin satisfactions, which the Estate Officer is required to record in such matters.

19. In a given case, a person may be an unauthorised occupant, but still may be able to satisfy the authorities that such unauthorized occupation need not lead to his eviction for various reasons. For example, the person may point out the nature of allotment and how the default pointed out was condonable or regularizable. The Noticee may also plead proportionality. These are only some instances of defence that would be available to a Noticee, as observed by the Division Bench in the case of Minoo Balsara (supra). Full effect will have to be given to the recording of twin satisfactions on the aspect of unauthorised occupation, and the argument of the need to evict the sequitur was expressly rejected.

20. The decision in Life Insurance Corporation of India (supra) does not address the issue with which we are concerned in the present matter. This decision only reiterates the law in Ashoka Marketing Limited (supra) and holds that the earlier view in Suhas H. Pophale Vs. Oriental Insurance Company Limited and its Estate Officer(2014 (4) SCC 657), is not correct.

21. Minoo Balsara (supra), in fact, relies extensively on Ashoka Marketing Limited (supra), which, inter alia, provides a rationale for the enactment of special legislation in respect of public premises. One reason is that the Government or Government bodies to whom the said Act would apply will typically not act like private landlords and will justify their actions on the principles of fairness that ought to inform the actions of public authorities.

22. The Appellate Authority, in this case, has basically found fault with the Section 4 notice dated 09.01.2006. The decision of the Appellate Authority on this count aligns with the decision of this Court in Minoo Balsara (supra). Mr Chodankar was unable to place on record any decision either reversing, overruling, or watering down the ratio of the Division Bench decision in the case of Minoo Balsara (supra).

23. Accordingly, for all the above reasons, no case is made out to interfere with the Appellate Authority’s order. However, it could be clarified that the Petitioner is entitled to proceed in accordance with the law by issuing a proper notice should they so desire.

24. Mr Chodankar’s contention that the Petitioner should be allowed to redevelop while leaving all contentions open cannot be accepted. To proceed with redevelopment, the Petitioner will have to secure the Respondent's eviction in accordance with the law. In the alternative, the parties are always free to settle their dispute on terms acceptable to them. Nothing in this order would hinder such an attempt.

25. Accordingly, this Petition is liable to be dismissed, and it is hereby dismissed.

26. There shall be no order as to costs.