Crawford Bayley and Co. and ors. Vs. the Union of India (Uoi) and ors. - Court Judgment

Excerpt:
(i) tenancy - constitutional validity of tenancy laws - section 3 of public premises (eviction of unauthorised occupants) act,1971, articles 14 and 254 of constitution of india and maharashtra rent control act, 1999 - constitutional validity of section 3 of challenged on ground of being violative of article 14 - impugned section deals with appointment of estate officers - in view of apex court decision in which provisions of article 254 was considered submission of petitioners that provisions of act of 1999 would prevail over the provisions of act of 1971 cannot be sustained - while acting as estate officers under section 3 officers of third respondent would not be acting as judge in their own cause - no violation of article 14 established - held, no infirmity in provisions of act of 1971. (ii) termination - section 3 of public premises (eviction of unauthorised occupants) act, 1971- tenancy terminated by estate officer (eo) by issuing show cause notice in exercise of power available under provisions of act - validity of notice challenged - challenge to show cause notice cannot be entertained at present stage - submissions can be raised in reply to show cause notice - eo will have to consider submission on its own merits - remedy of approaching principal of city civil court also available to petitioner - in view of availability of adequate alternate remedies present petition rejected. - - precisely, this very question was considered by the supreme court in its judgment in the case of accountant and secretarial services pvt. in our opinion, apart from the fact that even according to the allocation of business rules, authority appears to be vested in the finance ministry to issue notification under section 3 of the public premises act in so far as the premises belonging to the nationalised banks are concerned, the submission is too technical to invalidate an action which is otherwise perfectly valid. it goes without saying that it is the ministry of finance which is the concerned department for the banks and therefore, it is the officer in the ministry of finance who would be conversant with the ranking of the officers in the banks and therefore, it would be the ministry of finance which would be in a better position to decide the rank of the officer than the ministry of urban development. it is a well settled position and it has been considered in detail by the supreme court in its judgment in the case of union of india and anr.d.k. deshmukh, j.1. the petitioner no. 1 is a firm of advocates and solicitors whereas petitioner nos. 2 and 3 are its partners. by this petition filed under article 226 of the constitution of india, they seek an order from this court striking down the provisions of section 3 of the public premises (eviction of unauthorised occupants) act 1971, (hereinafter referred to as the said act for the sake of brevity) on the ground that it is violative of the guarantee under article 14 of the constitution of india. they also seek an order setting aside the notice of termination of tenancy dated 17th april 2002 issued by the respondent no. 2 as also a show cause notice dated 3rd october, 2002 issued by the respondent no. 2 under the provisions of the said act. the petitioners also claim a writ of prohibition prohibiting the respondent no. 2 from proceeding with case no. 3 of 2002 initiated by him against the petitioners under section 4 of the act. the facts that are material and relevant for disposing of this petition are that the respondent no. 3 - state bank of india owns a building in fort, mumbai. according to the petitioners, the management of the imperial bank which was the predecessor of the respondent no. 3 had leased out to the petitioner no. 1 certain premises in the building of the respondent no. 3 in the year 1943. the ground floor and the second floor of the said building are occupied by the respondent no. 3 - bank. the lease granted in favour of the petitioners was renewed from time to time. for the last time, it was renewed and that lease was in force till the year 1973. though the lease has not been renewed by the respondent no. 3, the petitioner no. 1 continues to occupy the building and according to the petitioner no. 1, it is a tenant of the premises. by a notice dated 6th january 2000, the respondent no. 3 had terminated the tenancy of the petitioner no. 1 on the ground that the respondent requires the premises to accommodate their capital market branch, personal banking branch and other branches. by a notice dated 17th april 2002, the termination notice dated 6th january 2000 was withdrawn. thereafter, again by notice dated 17th april, 2002, the monthly tenancy of the petitioner no. 1 of the premises was terminated at the end of the calendar month next to the calendar month in which the notice was received by the petitioner no. 1. the respondent no. 3 gave several reasons in the notice for terminating the tenancy of the petitioner no. 1. the respondent no. 2 has issued a show-cause notice under sub-section (1) and clause (b)(ii) of sub-section (2) of section 4 of the act to the petitioner no. 1 to show cause why an order of eviction from the premises should not be passed against the petitioner no. 1. it is this show cause notice issued by the respondent no. 2 which is the real cause for filing the present petition. a notice was issued to the respondents pursuant to which the respondent no. 2 has filed affidavit in reply. at the request of the petitioners by an order dated 8th april 2003, the government of maharashtra was directed to produce the letter addressed by the government of maharashtra seeking assent of the president in respect of the maharashtra rent control act 1999. accordingly, the letter was produced and inspection was given to the petitioners. 2. after an affidavit was filed by the respondent no. 2, the petitioners, at the hearing, sought permission to urge two more grounds, we granted the permission and heard the learned counsel on those points also, subsequently the petitioners have been permitted to incorporate those grounds in the petition by amending the same. accordingly, amendment has been carried out. 3. the learned counsel appearing for petitioners firstly submits that the provisions of the maharashtra rent control act 1999 (hereinafter referred to as the maharashtra rent act for the sake of brevity) prevail over the provisions of the said act in view of article 254(2) of the constitution of india. it is submitted that after the enactment of the maharashtra rent act, that act applies to all premises belonging to the respondent no. 3 and therefore, the petitioner no. 1 is a protected tenant under the provisions of the maharashtra rent act and therefore, an order for eviction of the petitioner no. 1 from the suit premises cannot be made under the provisions of the said act. it is submitted that the maharashtra rent act is a law made by the legislature of the state in respect of matters enumerated under the concurrent list i.e. entries 6 and 46. the public premises act is an earlier law made by the parliament of india, also under the concurrent list i.e. entry 6. it is submitted that the maharashtra rent act was reserved for the assent of the president of india as it contains provisions repugnant to the earlier law made by the parliament. the maharashtra rent act being a later act and having been reserved and having received the assent of the president of india, would prevail over the public premises act. it is submitted that in terms of provisions of article 254(2) of the constitution of india, once the president has accorded assent to the state act, the provisions of the state act would prevail over to laws made by the parliament i.e. public premises act. 4. the second submission advanced by the learned counsel appearing for petitioners is that the provisions of section 3 of the public premises act which require that in case of premises belonging to a statutory authority, the central government shall only appoint an officer of the statutory authority as estate officer, are violative of provisions of article 14 of the constitution. it is submitted that such a provision tends to make the estate officer a judge in his own cause. the learned counsel relies on a judgment of the supreme court in the case of state of karnataka v. shri rameshwar rice mills, reported in (1987) 2 scc 160. it is submitted that the estate officer was part of the decision making process in regard to the issuance of notice of termination of tenancy dated 17th april 2002 on the petitioners as he was at the relevant time assistant general manager, estates and premises of the respondent no. 3 and therefore, now he cannot act impartially. 5. the third submission made on behalf of the petitioners it that the show cause notice that has been issued is contrary to the binding guidelines issued by the central government from time to time in relation to the exercise of powers for eviction under the public premises act, dated 14th january 1992, 5th august 1992, 9th june 1998 and 30th may 2002. it is submitted that the guidelines that have been issued by the government of india are binding on the authorities including the respondent no. 2 inasmuch as those guidelines have been issued by the government of india in view of the judgment of the supreme court in the case of ashoka marketing ltd. and anr. v. punjab national bank and ors., reported in : [1990]3scr649 . the fourth submissions is that the government of india allocation of business rules 1961 allots the powers of the central government under the provisions of the act to the ministry of urban development and not to the ministry of finance. the order appointing the respondent no. 2 as estate officer has been made by the ministry of finance and not by the ministry of urban development and therefore, it being contrary to the provisions of the allocation of business rules, it is inoperative and therefore, the respondent no. 2 has no jurisdiction to issue the show cause notice. the fifth submission is that the respondent no. 2 has been appointed as estate officer by order dated 24th june 2002 which refers to the notification dated 29th july 1988. it is submitted that the notification dated 29th july 1988 has been superseded by notification dated 25th july 1993 and therefore on the date on which the notification dated 24th june 2002 appointing respondent no. 2 as the estate office was issued, the notification dated 29th july 1988 was not in force, it having been superseded by the notification dated 25th january 1993. 6. the learned counsel in support of these submissions. relies on following decisions of the supreme court:- i) fonseca (p) ltd. v. l.c. gupta : air1973sc563 ii) dattatraya moreshwar pangarkar v. state of bombay and ors. iii) p. joseph john v. the state of travancore, cochin 1954 scr 1011 iv) major e.g. barsay v. state of bombay air 1961 1762 7. we have heard the learned counsel appearing for respondents. according to the learned counsel, the first submission of the learned counsel appearing for petitioners has no substance in view of the judgment of the supreme court in the case of kaisar-i-hind pvt. ltd. and anr. v. national textile corporation ltd. and ors., reported in : [2002]supp2scr555 . 8. so far as the second submission is concerned, it is submitted by the respondents that in view of the judgment of the supreme court in the case of accountant and secretarial services pvt. ltd. and anr. v. union of india and ors., reported in : air1988sc1708 , it has no substance. it is further pointed out that so far as the validity of the provisions of the public premises act is concerned, it has been held to be valid by the supreme court by its judgment in the case of northern india caterers pvt. ltd. v. state of punjab, reported in : [1967]3scr399 . it is further submitted that the validity of the provisions of chapter 5a of the bombay municipal corporation act and the bombay government premises act 1955 have also been considered by the supreme court in the light of the provisions of article 14 of the constitution and an alternate remedy provided by the act has been held to be valid by its judgment in the case of maganlal bhhaganlal (p) ltd. v. municipal corporation of greater bombay and ors. , reported in (1974) 2 scc 402. the learned counsel for respondents also relies on a judgment of the division bench of this court in the case of union of india and ors. v. v.d. tulzpurkar and ors., reported in ilr 1967 bom 671 to contend that the submission of the learned counsel appearing for petitioners that the respondent no. 2 is acting as a judge in his own cause has no substance. 9. it is further submitted that the third submission of the learned counsel appearing for petitioners that because the grounds given in the show cause notice are contrary to the various guidelines issued by the government of india, cannot be considered by this court in a writ petition filed challenging the show cause notice, because such a ground can be raised by the petitioners before the estate officer who has issued the show cause notice as also in the appeal that they can file before the city civil court in case the decision of the estate officer goes against them. the leaned counsel appearing for respondents also submitted that the guidelines are not binding on the estate officer. in so far as the fourth submission is concerned, the learned counsel submits that the provisions of article 166 which are para materia to the provisions of article 77 of the constitution of india, are directory and not mandatory as held by the supreme court in p. joseph john's case referred above. it is submitted that in any case it is clear from the provisions of the allocation of business rules that power of the central government under section 4 of the said act can be exercised by the ministry of finance. it is further submitted by the respondents that in any case the petition does not disclose any patent illegality in the show cause notice and therefore, this court should not entertain the present petition which basically challenges the sow cause notice issued by the estate officer as adequate alternate remedy is provided to the petitioners by the said act. 10. from the rival submission, it is clear that first challenge to the validity of the show cause notice issued by the estate officer under the provisions of the said act to the petitioner no. 1 is based on the provisions of article 254 of the constitution of india. clauses 1 and 2 of article 254 are relevant which read as under:- '254. inconsistency between laws made by parliament and laws made by the legislatures of state- (1) if any provision of a law made by the legislature of a state is repugnant to any provision of a law made by parliament which parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of clause (2), the law made by parliament, whether passed before or after the law made by the legislature of such state, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the state shall, to the extent of the repugnancy, be void. (2) where a law made by the legislature of a state with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by parliament or an existing law with respect to that matter, then, the law so made by the legislature of such state shall, if it has been reserved for the consideration of the president and has received his assent, prevail in that state; provided that nothing in this clause shall prevent parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the legislature of the state.' it is clear that so far as the laws made on the subjects in the concurrent list are concerned, in case of repugnancy between the law made by the parliament and state legislature, the law made by the parliament prevails. an exception has been made to this general rule by sub-article (2) of article 254 which lays down that if the legislature of a state makes any law on a subject on which parliament has a already made a law, then in case of repugnancy of the provisions of two laws, the law made by the state legislature, in case such law has been reserved for consideration of the president and has received his assent, would prevail in the state. in the present case, admittedly the public premises act is a law made by the union parliament on a subject in the concurrent list and was in existence in 1999 when the maharashtra rent act was enacted. it is also an admitted fact that the maharashtra rent act was reserved for consideration of the president and received assent of the president. the submission of the petitioners is that as the tenancy of the petitioners is protected by the provisions of the maharashtra rent act and it prescribes a different procedure for eviction of tenants than the one which is provided in the public premises act, there is a clear repugnancy between the provisions of the maharashtra rent act and the public premises act and as the maharashtra rent act has received assent of the president of india, its provisions would prevail over the provisions of the public premises act and therefore, the show cause notice issued by the respondent no. 2 is without authority of law. it is an admitted position that the field which is presently occupied by the maharashtra rent act was till its enactment in the year 1999 was occupied by the bombay rent act which was enacted by the legislature of the state of maharashtra and that that act had also received the assent of the president of india. in view of the correspondence produced by the government of maharashtra before us, pursuant to a direction issued by the us, it is clear that the assent of the president of india so far as the provisions of the maharashtra rent act are concerned, was sought and received in relation to the provisions of the transfer of property act and presidency small causes court act and not in relation to the provisions of the public premises act. thus, so far as the aspect of assent of the president of india is concerned, the position of the bombay rent act and the maharashtra rent act is identical. the supreme court in its judgment in the case of kaisar-i-hind pvt. ltd. referred to above, has considered the provisions of article 254, the provisions of the bombay rent act and the provisions of the public premises act. in paragraph 28, after referring to a judgment of the division bench of this court, which was under challenge before the supreme court in that case, the supreme court has observed:- 'thereafter, the court rightly relied upon the decision in the gram panchayat case for arriving at the conclusion that the assent of the president was sought to the extension acts for the purpose of overcoming its repugnancy between the bombay rent act on the one hand and the transfer of property act and the presidency small cause courts act on the other. the efficacy of the president's assent was limited to that purpose only. therefore, the public premises eviction act would prevail and not the bombay rent act.' thus, the supreme court has in clear terms held that the provisions of the bombay rent act do not prevail over the provisions of the public premises act. in this view of the matter therefore, the submission of the petitioners that the provisions of the maharashtra rent act would prevail over the provisions of the public premises act has no substance and has to be rejected. 11. for considering the second submission advanced on behalf of the petitioners, it is necessary to refer to the provisions of section 3(a) of the public premises act which read as under:- '3. appointment of estate officers - the central government may, by notification in the official gazette:- (a) appoint such persons, being gazetted officers of government (or of the government of any union territory) or officers of equivalent rank of the (statutory authority), as it thinks fit, to be estate officers for the purposes of this act.' perusal of the provisions of section 3 shows that in so far as the premises of statutory authorities are concerned, the central government can appoint an officer of the statutory authority as estate officer who is equivalent in rank to a gazetted officer of the government of india. the submission of the petitioners is that the provisions of section 3 of the public premises act, which obliges the government of india to appoint an officer of a statutory authority to whom the premises belong as estate officer, is violative of the provisions of article 14 of the constitution of india. precisely, this very question was considered by the supreme court in its judgment in the case of accountant and secretarial services pvt. ltd. referred to above and the supreme court in paragraph 32 observes thus:- '32. dr. chitale, while initially formulating his contentions, outlined an argument that the provisions in the 1971 act appointing one of the officers of the respondent bank as the estate officer is violative of article 14. we do not see any substance in this contention. in the very nature of thinks, only an officer or appointee of the government, statutory authority of corporation can be though of for implementing the provisions of the act. that apart, personal bias cannot necessarily be attributed to such officer either in favour of the bank or against any occupant who is being proceeded against, merely because he happens to be such officer, moreover, as pointed out earlier, the act provides for an appeal to an independent judicial officer against orders passed by the estate officer. these provisions do not, therefore, suffer from any infirmity.' the question whether an officer of the statutory authority who is appointed as an estate officer, while issuing show cause notice can be said to be acting as a judge in his own cause was considered by the division bench of this court in its judgment in the case of union of india and ors. v. v.d. tulzapurkar and ors. referred to above. in that case, an order made by the estate officer appointed under section 3 of the public premises act was set aside by the principal judge of the city civil court only on the ground that the estate officer who made the order of eviction was bias, because the same officer was working as estate manager and therefore, according to the principal judge of the city civil court, he would be acting as a judge in his own cause while he decides the matter as estate officer, functioning under section 3 of the public premises act. before this court, the order of the principal judge, city civil court was challenged. the division bench has considered the scheme of the act and has observed thus:- 'in connection with the issue of bias it is always important to notice that bias is a question of fact and therefore a finding that bias existed must be founded on sufficient evidence brought on record. in this case, however, no evidence whatsoever was led on behalf of the petitioner no. 2 that the estate officer was a biased person. when a person becomes a judge in his own cause, the fact of bias may be presumed against him and the orders passed by him may, on the ground of bias, be held to be invalid. in the present case, the estate officer had no personal interest in the ownership of the building in procuring the order of eviction against the respondent no. 2. he was acting as a tribunal prescribed under the provisions of the act. therefore, it would not be correct to hold that he was a biased tribunal and further on that presumption to held that the order of eviction passed by him was invalid.' the division bench then proceeds to take into consideration the scheme of the act and observes thus:- 'the bias of private personal knowledge in respect of these matters is by diverse provisions of the act expected to exist in the inquiry officer and/or the tribunal constituted under the act for passing orders of eviction. such bias therefore should ordinarily not be a ground for holding that the inquiry made under the act is by a biased tribunal and the orders passed by such a tribunal should not be held to be invalid as violating the principles of natural justice. the above is the result of the scheme in the act for constitution of tribunal and inquiries to be held by such tribunal for the purpose of passing eviction orders under the act. it is quite clear that the leaned principal judge did not take into consideration, the above scheme in the act whilst arriving at the conclusion contained in his appellate judgment. .....the question is whether is holding the above inquiry, the petitioner no. 2 was acting as a judge in his own cause. in this connection it requires to be noticed that the premises in question did not belong to the petitioner no. 2. he was personally not aggrieved with the unauthorised occupation of the premises by the respondent no. 2. the premises admittedly belonged to the central government. the premises were required to be vacated for the purposes of the central government. the petitioner no. 2 was not personally concerned in any manner with the relief of evicting the respondent no. 2 from the premises in question.' in view of the above referred judgments, therefore, in our opinion, it can be safely said that there is no substance in the submission of the learned counsel that while acting as estate officer under section 3 of the public premises act, the officer of the respondent no. 3 would be acting as a judge in his own cause and therefore, there is an infirmity in the provisions of section 3 of the public premises act. 12. perusal of the judgment of the supreme court in the case of northern india caterers pvt. ltd. referred to above shows that the validity of the provisions of the public premises act has been considered vis-a-vis provisions of article 14 of the constitution of india and the supreme court has held that the provisions of the act are not violative of the guarantee of article 14 of the constitution of india. the same conclusion has been reached by the supreme court in its judgment in the case of municipal corporation of greater bombay v. maganlal chhaganlal pvt. ltd. referred to above and therefore, in our opinion, the submission of the learned counsel for petitioners that the provisions of the said act are violative of guarantee of article 14 of the constitution of india has no substance. 13. now, taking up last two submission of the learned counsel for petitioners that the respondent no. 2 has no authority to issue the show cause notice is concerned, the submission is that sub-article (3) of article 77 of the constitution of india vests in the president rule making authority to frame rules for allocation among ministers of the business of the government of india. it is submitted that in exercise of this rule making power, the president of india has framed rules called 'government of india (allocation of business) rules 1961'. it is submitted that rule 2 of these rules lays down that the business of the government of india shall be transacted in the ministries, departments, secretariats and offices specified in the first schedule to these rules. according to the petitioners, as per the first schedule, the powers under the public premises act have been allotted to the department of urban development. it is further submitted that rule 3 of these rules lays down that that the distribution of subjects among the departments shall be as specified in the second schedule. it is submitted that even according to the second schedule, the powers under the public premises act have to be exercised by the department of urban development. it is further submitted that the petitioners have annexed at exh. 'g' to the petition notification dated 29th july 1988 which has been issued by the under secretary in the department of economic affairs (banking division). by that notification, in so far as the respondent no. 3 and its premises in the state of maharashtra are concerned, premises officer of the respondent no. 3 has been appointed as estate officer. it is further submitted that the under secretary in the department of economic affairs issued a notification dated 25th january 1993 superseding the notification dated 29th july 1988 and by that notification in so far as the premises of the respondent no. 3 in the state of maharashtra are concerned, assistant general manager, state bank of india, bombay has been appointed as an estate officer. it is thus submitted that the respondent no. 2 is functioning and is exercising the powers as estate officer under the public premises act. the power of the central government to appoint an estate officer under section 3 of the public premises act as per the government of india (allocation of business rules) 1961 can be exercised by the urban development department and not by the department of economic affairs. therefore, the notification dated 29th july 1988 and the notification dated 25th january 1993 are illegal and therefore, power of the estate officer under the provisions of the public premises act is not validly conferred on the respondent no. 2 and hence the show cause notice issued by the respondent no. 2 is per-se invalid. 14. now, perusal of the notification dated 29th july 1988 at exh. 'g' to the petition shows that the notifications appointing estate officers in relation to the premises of the nationalised banks are concerned, have been issued by the department of economic affairs since 1975. in fact by notification dated 29th july 1988, the notification issued by the ministry of finance, department of banking dated 12th june 1975 has been superseded. thus, as per the record, at least from 1975, in so far as the premises belonging to the nationalised banks are concerned, it is the finance department of the government of india which has been exercising powers of the central government under section 3 of the public premises act. even the notification dated 25th january 1993, which supersedes the notification dated 29th july 1988, has been issued by the ministry of finance, department of economic affairs, banking division. perusal of the provisions of the act shows that by section 3 power is vested in the central government to appoint estate officer. the term 'central government' has not been defined by the act but section 3(8) of the general clauses act defines that term. it lays down that the central government in relation to anything done or to be done after the commencement of the constitution, means the president. sub-article (1) of article 77 lays down that all executive actions of the government of india shall be expressed to be taken in the name of the president. sub-article (2) of article 77 of the constitution lays down that orders and other instruments made and executed in the name of the president shall be authenticated in such a manner as may be specified in rules and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the president. the president of india has on 25th october 1958 made an order in exercise of the powers under sub-article (2) of article 77 of the constitution. in so far as the present petition is concerned, it is sub-article (2)(a) of article 77 which is relevant. it reads as under:- '77(2)(a). orders and other instruments made and executed in the name of the president shall be authenticated by the signature of a secretary, additional secretary, joint secretary, deputy secretary. under secretary or assistant secretary to the government of india;' it is thus clear that power of the central government under section 3 of the said act is to be exercised to the president by virtue of the provisions of sub-article (2) of article 7 of the constitution, orders and other instruments made and executed in the name of the president of india are to be authenticated in the manner laid down in the rules. the notifications issued which are relevant for the present purpose have been issued by the central government, the appointments have been made by the central government and the notifications have been authenticated by an under secretary to the government of india. sub-article (2) of article 77 of the constitution reads as under:- 'order and other instruments made and executed in the name of the president shall be authenticated in such manner as may be specified in rules to be made by the president, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the president.' relying on the provisions of sub-article (2) of article 77 of the constitution, it was therefore contended on behalf of the respondents that as the notifications issued by the finance ministry or authenticated by the under secretary to the government of india, now it cannot be said that the notifications have not been made by the president of india. on behalf of the respondents, reliance is also placed on a judgment of the supreme court in the case of dattatraya moreshwar pangarkar v. state of bombay and ors., reported in : 1952crilj955 . perusal of that judgment shows that the provisions of article 166 of the constitution which are para materia to the provisions of article 77 of the constitution have been held to be directory and therefore, merely because an order of the government has not been authenticated properly will not result in invalidation of that order. nevertheless, it will have to be shown that order has been me by the proper authority to whom that particular business has been allocated by the rules framed under article 77 of the constitution. in so far as this aspect of the matter is concerned, it appears that by notification dated 25th september 1985, the first and second schedules to the government of india (allocated of business) rules 1961 have been amended. it further appears that though as per the amended second schedule to the rules, the powers of the central government under the public premises act have been allocated to the ministry of urban development, the powers to administer all laws relating to the indian banks whether nationalised or not, have been allocated to the ministry of finance, department of economic affairs, banking division. it further appears that it is pursuant to this allocation that powers of the central government under the public premises act in so far as the premises belonging to the nationalised banks are concerned, are being exercised by the ministry of finance, at least from 1975. thus, it appears that there is an authority vested in the ministry of finance of the government of india to exercise powers of the central government under section 3 of the public premises act. in other words, it cannot be said that the finance ministry does not possess any authority whatsoever to issue notifications appointing estate officers in so far as the premises of the nationalised banks are concerned under section 3 of the public premises act. the power under section 3 is that of the central government. the ministry of finance, which has issued the notifications, is admittedly part of the central government, perusal of sub-article (3) of article 77 of the constitution shows that the president has to frame rules under that sub-article for allocation among ministers of the business of the government for more convenient transaction of that business. thus, the purpose behind framing of the rules under sub-article (3) of article 77 of the constitution is for convenient transaction of business. even according to the petitioners, a notification appointing respondent no. 2 as estate officer as per the provisions of the government of india (allocation of business) rule 1961 could have been validly made by an under secretary to the government of india, sitting in the urban development ministry. but according to the petitioners, if the notification appointing respondent no. 2 has been made by an under secretary to the government of india sitting not in the urban development department but in the ministry of finance, the notification is invalid. in our opinion, apart from the fact that even according to the allocation of business rules, authority appears to be vested in the finance ministry to issue notification under section 3 of the public premises act in so far as the premises belonging to the nationalised banks are concerned, the submission is too technical to invalidate an action which is otherwise perfectly valid. in any case, the invalidity, real or supposed, in the appointment of the respondent no. 2 is not of such a magnitude as to oblige this court to entertain challenge to that authority at the stage when only show cause notice is issued, in exercise of its extraordinary jurisdiction under article 226 of the constitution of india. in our considered opinion, the founding fathers did not confer extraordinary jurisdiction on the high court for doing this. the petitioners have approached the court at a stage when only show cause notice has been issued. it is further to be seen here that in terms of the provisions of section 3 of the public premises act, the central government is obliged to appoint only an officer of the respondent no. 3 as estate officer in respect of the premises of the respondent no. 3. therefore, the only thing that was to be decided by the central government while making appointment of estate officer in relation to the premises of the respondent no. 3 was to decide the rank of the officer who will exercise the power under section 3. thus, the area of discretion vested in the central government in the appointment of estate officer under section 3 of the act in relation to the premises of the respondent no. 3 is extremely narrow inasmuch as it is only to the extent of deciding the rank of the officer who is to exercise the power. in our opinion, assuming that the powers of the central government under the public premises act have not been allocated to the ministry of finance, considering that the allocation of business rules are framed only to facilitate more convenient transaction of the business, the decision of the central government as to the rank of the officer of the respondent no. 3 who is to be appointed as estate officer, can be more appropriately taken by an officer in the ministry of finance which is closely connected with the banks than an officer in the urban development department. thus, what has actually happened is that instead of an under secretary in the department of urban development using a notification indicating the rank of the officer of the respondent no. 3 who is to exercise powers under section 3 of the public premises act, an officer in the finance ministry has done it. in our opinion, exercise of the power of the central government which, as observed above, now is restricted only to deciding the rank of the officer of the respondent no. 3, can be safely said to be more conveniently exercised by an officer in the finance department than an officer in the urban development department. it goes without saying that it is the ministry of finance which is the concerned department for the banks and therefore, it is the officer in the ministry of finance who would be conversant with the ranking of the officers in the banks and therefore, it would be the ministry of finance which would be in a better position to decide the rank of the officer than the ministry of urban development. in our opinion, assuming that the power under the public premises act is not allocated to the ministry of finance, issuance of the notification by ministry of finance will be merely an irregularity and not an illegality so as to strike at the very root of the validity of the notification issued under section 3 of the said act. as pointed out above, presently only a show cause notice has been issued by the respondent no. 2 and therefore, in our opinion, it would not be appropriate to entertain such a challenge at this stage. 15. it is further submitted on behalf of the petitioners that the respondent no. 2 has, alongwith his affidavit, filed copy of the letter dated 24th june 2002. it is stated in the letter that:- 'consequent upon your appointment as assistant general manager, premises and estate department, mumbai l.h.o., you will also be working as premises officer to exercise the powers conferred by section 3 of the public premises (eviction of unauthorised occupants) act 1971 (40 of 1971) as per the gazette notification dated 29th july 1988.' on the basis of this letter, it is submitted that the respondent no. 2 derives authority to exercise powers under section 3 of the public premises act from the notification dated 29th july 1988 and the notification dated 29th july 1988 was superseded by a notification dated 25th january 1993 and therefore the respondent no. 2 cannot exercise any powers under section 3 of the public premises act. now, perusal of the notification dated 29th july 1988 shows that in so far as the respondent no. 3 - bank is concerned, the premises officer has been appointed as estate officer. by a notification dated 25th january 1993. assistant general manager, state bank of india, bombay has been appointed as estate officer in so far as the premises of the respondent no. 3 - bank in the state of maharashtra are concerned. it is nobody's case that the respondent no. 2 does not hold the post of assistant general manager. in fact, the letter dated 24th june 2002 referred to above says that as a consequence of the appointment of the respondent no. 2 as assistant general manger, he will exercise the powers under section 3 of the public premises act. the only mistake that has been committed is that instead of referring to the notification dated 25th january 1993, the notification dated 29th july 1988 has been referred to. as the respondent no. 2 is the assistant general manager in terms of the notification dated 25th january 1993, he can exercise the powers of the central government under section 3 of the public premises act in relation to the premises of the respondent no. 3 in the state of maharashtra are concerned. merely because in the letter dated 24th june 2002 wrongly reference has been made to the notification dated 29th july 1988, the appointment of the respondent no. 2 as estate officer cannot be said to be invalid. the authority of the respondent no. 3 to exercise powers under section 3 of the public premises act is derived from the notification issued by the central government under section 3 of the said act dated 25th january 1993. thus, the exercise of powers by the respondent no. 2 is referable to the notification dated 25th january 1993, mere mention of a wrong notification will not invalidate the order. it is a well settled position and it has been considered in detail by the supreme court in its judgment in the case of union of india and anr. v. tulshiram patel, reported in : (1985)iillj206sc and the supreme court has observed:- 'further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists.' thus, the submission has no substance. 16. now so far as the third submission is concerned, according to the petitioners, the show cause notice and the grounds mentioned therein on the basis of which an order of eviction is proposed to be made against the petitioners, are contrary to the guidelines issued by the central government. according to the petitioners, the guidelines issued by the central government from time to time regulate the exercise of power by estate officer under section 3 of the public premises act. in our opinion, however, this challenge to the show cause notice cannot be entertained at this stage. the submission that the grounds mentioned in the show cause notice are contrary to the guidelines can be raised by the petitioners in reply to the show cause that has been issued and in case such a submission is made, obviously the estate officer will have to consider it on its own merit. the said act provides further remedy of an appeal to the principal judge of the city civil court, the submission can also be raised in appeal before the principal judge of the city civil court. presently only a show cause notice has been issued to the petitioners. the remedy of raising this submission in reply to the show cause notice and in appeal before the principal judge of the city civil court, in our opinion, is adequate and therefore, a challenge to the validity of the show cause notice on this ground cannot be entertained at this stage. it may be mentioned here that on behalf of the respondent no. 3 - bank it was contended that these guidelines are not binding on the estate officer. in our opinion, this contention can be raised by the respondent no. 3 before the estate officer and therefore, we do not propose to deal with this contention. taking overall view of the matter therefore, the petition as framed and filed cannot be entertained and it is rejected. at the request of the petitioners, the operation of the ad-interim order made by this court is continued for a period of eight weeks from today. parties to act on the copy of this order duly authenticated by the associate / personal secretary as true copy. certified copy expedited.