The Board of Trustees for the Port of Kolkata and anr. Vs. Vijay Kumar Arya and ors. - Court Judgment

Sanjib Banerjee, J.

1. The scheme and import of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are called into question in this appeal from an order passed on the Arya respondents' petition under Article 226 of the Constitution of India. In effect, the learned Single Judge held that an alleged unauthorised occupant of public premises had a right for his version of things to be considered by the landlord before the matter could be brought before an estate officer under the said Act.

2. The relevant facts are not much in dispute. The appellants issued a notice on July 28, 2006 requiring the writ petitioners to deliver vacant and peaceful possession of the relevant premises to the authorised representative of the appellants. The grounds put forth appear from the material portion of the notice:

WHEREAS a lease for 30 years with one option of renewal with effect from 11-10-1990 in respect of 6437.435 sq.m of land at Transport Depot Road was granted to you with certain terms and conditions.

AND WHEREAS you have wrongfully parted with possession and inducted number of subtenants without the prior approval in writing from Kolkata Port Trust, the lessor, which constitutes a major breach of lease terms.

NOW THEREFORE I hereby give you notice to quit, vacate and deliver up vacant and peaceful possession of the property as detailed under schedule hereunder on 01-02-07 at 10-30 A.M. to the authorized representative of Kolkata Port Trust, who will be present at the site on the date and time as mentioned above. It is also hereby notified that all your relationship with the Board of Trustees for the Port of Kolkata stands determined ... It is also notified that in case of default in handing over possession of the land mentioned in the schedule hereunder as aforesaid, Kolkata Port Trust shall be at liberty to take recourses of law, civil or criminal or both, as may be advised without prejudice to any other rights, which may be available under law, and you will be held liable all costs and consequences arising there from. ...

It may be mentioned that there is no alternative but to place the matter before the Ld Estate Officer, The Adjudicating Authority under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 in case of default in compliance as above on the part of the notice ...

3. The writ petitioners issued a reply on August 11, 2006 denying breach of the terms of the lease and insisting that they were in possession of the premises.

4. They contended that they were entitled to sub-let the premises and urged that the notice to quit be withdrawn. The short reply may be seen in its entirety:

We are surprised and shocked to receive your above notice threatening termination of our lease in respect of the above mentioned land on the breach of lease terms which is denied by us, as we have not parted with possession of the above land leased to us and the entire premises is under our possession and control.

Please note that at the time of renewal of the lease on 23rd December 1997 for the period of Fresh Lease from 1990 to 2020 the subletting permission was also granted to us and alongwith the Lease Rent we are paying sub-letting fees promptly on the due date each month and there is no arrear in lease rent or sub-letting Fee.

Please also refer to your letter ref. Lnd. 4628/III dated 25th September 2000 vide which you had intimated to us that the lease rent and the sub-letting fees were increased by 25% from 11.10.2000 and the increased amount was and is being billed by you and is being paid by us on the due dates promptly.

In view of the above we view your above notice unjustified and incorrect and request to kindly vacate or withdraw the above illegal notice herewith.

5. The writ petition followed in January, 2007, a few days before the date set by the appellants for the writ petitioners to make over possession of the premises. In the petition it was urged that the writ petitioners had the authority to sub-let the premises and the three principal contentions appear from the following averments strewn over a very long paragraph 4 of the petition: 'The respondents have no jurisdiction whatsoever to terminate the lease and demand that your Petitioners quit and render vacant and peaceful possession on the ground alleged and without an order from the Estate Officer and without due process under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

The Respondents did not give your Petitioners any opportunity of being heard so that your Petitioners could present their case and produce their documents ...

The Respondents are trying to illegally deprive your Petitioners of their livelihood without following procedure established by law and/or due process.

6. In the impugned judgment and order by which the petition was disposed of after affidavits, the learned Judge upheld the writ petitioners' contention that the appellants as instrumentalities of the State could not act like a private landlord and determine the lease without complying with the principles of natural justice by affording the writ petitioners an opportunity to meet the allegations levelled against them. Such conclusion was reached after due consideration of the various sections of the Act, its purpose and having regard to the acceptable conduct on the part of an authority under Article 12 of the Constitution. The learned Judge framed the following three issues:

(1) Whether the Estate Officer appointed under the P.P. Act has the necessary authority and competence to determine the issue of legality, validity and/or propriety of the notice to quit issued by the Port Trust or not?

(2) If the first issue is answered in the negative, whether the Port Trust was under any obligation to act fairly and reasonably consistent with Article 14 of the Constitution prior to determining the lease, and whether any case of infringement of right guaranteed by it been made out in the petition?

(3) To what relief, if at all, the petitioners are entitled to on facts and in the circumstances?

7. His Lordship noticed the definition of 'unauthorised occupation' under the said Act, the provisions for issuance of notice to show-cause by the estate officer, the procedure laid down by the Act for eviction of unauthorised occupants and the powers of the estate officer thereunder. The learned Single Judge observed that there was no provision in the said Act that conferred any authority on the estate officer to decide as to whether the termination of the lease or right to occupy the public premises was legal or valid. His Lordship held that if such jurisdiction were to be presumed, 'it would amount to conferring authority on the Estate Officer to sit in appeal over a decision to determine a lease taken by the lessor (owner of the public premises) which manifestly does not appear to the legislative intent.' In the same vein, the learned Judge continued, that if an estate officer was called upon to decide as to whether the reason for determining the lease was valid he would have to discharge quasi-judicial functions which the Act did not enjoin him to do. It was felt that the summary procedure for ensuring speedy eviction of unauthorised occupants would be frustrated if the estate officer were to go into the validity of the determination of the lease or the occupant's right to remain in possession. The learned Judge saw that the scope of the enquiry of the estate officer was limited merely to ascertaining whether the authority by which a party was entitled to remain in occupation of any public premises stood determined; and if the estate officer found that it was, he would only assess whether an order of eviction was called for. In short the impugned judgment concluded that the decision taken by the owner of the public premises to determine the lease or the right to occupy the same was not called into question before the estate officer.

8. The learned Single Judge cited an example: the case where an employee's services were terminated and the employee was required to vacate the public premises in his occupation. His Lordship held that if the estate officer were to be conferred the authority of delving into the basis for the notice to quit or determination of the right to occupy the public premises, per force he would be required to adjudicate on the basis of the termination of the services of the employee in such case.

9. The fundamental challenge to the judgment and order under appeal is directed against the following finding of the learned Single Judge:

This Court, therefore, holds that if a party intends to call in question an Article 12 authority's decision to revoke or determine the authority by which he was continuing in occupation of a public premises infringing his fundamental or other rights (even if the action be one in terms of the T.P. Act) on alleged non-existent grounds, such question can never be raised before the Estate Officer under the P.P. Act and if grounds are available for judicial review of the process of decision making leading to the ultimate decision of revocation or determination of the authority, a writ petition may be maintainable.

10. The principal foundation of the decision is the Supreme Court dictum in the judgment reported at : AIR1997SC3650 (Anamallai Club v. Government of T.N. and Ors.). The appellant in that case was granted licence in respect of a government land in Coimbatore district for sports and recreation purposes. A notice was issued terminating the licence under Section 3 of the Government Grants Act, 1895; the club was dispossessed of the land with police help; and, a writ petition followed before the Madras High Court. The petition succeeded and an appeal was carried to a Division Bench which upheld the termination of the licence and recorded a finding that there was no legal impediment to the resumption of possession of the land by the government without seeking aid of the provisions of the 1971 Act. The argument before the Supreme Court was that even assuming that the termination of the grant was in accordance with the grant itself, the resumption of possession without affording any opportunity to the licensee to be heard or following the procedure prescribed under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 was unwarranted and unsustainable.

11. The Supreme Court noticed a previous decision on the meaning of the expression 'due course of law' and the right of a person facing eviction to be ejected only in the manner provided by law. A distinction was made between the rights of persons in juridical possession and rank trespassers. It was held that law respects possession even if there is no valid title to support it and concluded that the State could not unilaterally take possession without taking recourse to a procedure that permitted the occupant a chance to put forward his case. Paragraph 8 of the report is relevant:

8. Law makes a distinction between persons in juridical possession and rank trespassers. Law respects possession even if there is no valid title to support it. Law does not permit any person to take law into his hands and to dispossess a person in actual possession without having recourse to a court. The object thereby is to encourage compliance of the rule of law and to deprive the person who wanted a person in lawful possession removed from possession according to proper form and to prevent him from going with a high band and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be a ground to permit the owner to take the law into his own hands and eject the person in juridical possession or settled possession without recourse to law.

12. The appellants contend that there is sufficient safeguard under the said Act for a lessee or an occupier whose right to remain in occupation of the public premises has been determined by the landlord. The appellants suggest that a writ petition would never be maintainable against a notice issued by a landlord - which necessarily has to be a State or other authority within the meaning of Article 12 of the Constitution, in such a case - determining a lease or requiring the lessee or other occupier to deliver vacant possession of the public premises.

13. The analogy that is drawn is with a notice to show-cause. The appellants say that a notice simpliciter to show-cause may not be questioned in proceedings under Article 226 of the Constitution, just as a first information report may not be so challenged.

14. The proposition is probably not as absolute as counsel for the appellants would have. The writ court generally exercises its discretion not to entertain a challenge to a show-cause notice or a first information report on the ground that no prejudice is ordinarily caused to the writ petitioner in either case. That is a far cry from suggesting that a writ petition in either case would altogether be not maintainable. It is a case of self-restraint exercised by the writ court in directing the petitioner to pursue his remedy before an efficacious alternative forum. The concept of alternative remedy presupposes the writ court's authority to entertain the matter. The position is thus: a petition challenging a show-cause notice or a first information report would be maintainable but the writ court would be loath to exercise the authority unless exceptional circumstances as to jurisdiction or like are cited. In theory, any action of the State or other authority answering to the description found in Article 12 of the Constitution would be amenable to the writ jurisdiction. As to whether the writ court would proceed to enter into the merits of the matter when it notices an efficacious alternative remedy, is an entirely different matter.

15. Even the precedents that the appellants bring would drive the point home. The appellants refer to a judgment reported at : 2004(164)ELT141(SC) (Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr.) and place, in particular, paragraph 5 of the report:

5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the showcause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.

16. Another decision relied upon by the appellants is the judgment reported at (2006) 12 SCC 28 (Union of India and Anr. v. Kunisetty Satyanarayana). Paragraphs 13 to 16 of the report clarify the legal position:

13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Datt Sharma, etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or showcause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere showcause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.' In the judgment reported at : AIR1996SC691 (Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Ors.), which the appellants next cite, it was held that a high test had to be met by a writ petitioner challenging a show-cause notice for the writ court to receive the same. The discussion appears at paragraph 10 of the report:10. We are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a 'nullity' or totally 'without jurisdiction' in the traditional sense of that expression - that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India.

17. As to the provisions of the said Act of 1971 and the procedure thereunder, the appellants refer to a judgment reported at (Jiwan Dass v. Life Insurance Corporation of India). Paragraphs 3 and 4 explain the scheme of the said Act:

3. Similar contention on the anvil of Article 14 of the Constitution was raised on the ground that when the Delhi Rent Control Act provides remedy for ejectment on specific grounds and fixity of tenancy rights, giving blanket power to the public authorities under the Act is violative of Article 14. In Ashoka Marketing Ltd. v. Punjab National Bank this Court by a Constitution Bench, in a slightly different connotation, dealt with the similar contention in paragraphs 68 and 69 of its judgment and held that the scope of the provisions of the Public Premises Act cannot be cut down on the basis of the apprehension that the corporations like the nationalised banks or L.I.C. which are trading corporations and cannot be prescribed from buying the property in possession of the tenants at a low price and then evicting the tenants after terminating the tenancy and selling the property at a much higher value because the value of property in possession of tenants is much less as compared to vacant property. 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 actions of these companies and statutory bodies while dealing with their properties under the Public Premises Act will not have to be judged by the standard that they would not act as private landlords and their actions would be informed by reason and guided by public interest. Therefore, this Court had negatived the possibility of taking action against the tenants for letting out for higher rent or selling the property at a higher value.

4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice if the premises are occupied for agricultural or manufacturing purposes, and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises 'unauthorised occupation' under Section 2(g) of the Act postulates that the tenancy 'has been determined for any reason whatsoever'. When the statute has advisedly given wide powers to the public authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act. Take for example that a premises is let out at a low rent years back like the present one. The rent is unrealistic. With a view to revise adequate market rent, tenant became liable to ejectment. The contention then is, action is violative of Article 21 offending right to livelihood. This contention too is devoid of any substance. An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. So the doctrine of livelihood cannot indiscriminately be extended to the area of commercial operation. ...

18. The next judgment, reported at : [2002]3SCR783 (Corporation of Calicut v. K. Sreenivasan), that the appellants rely on, quotes from Jiwan Dass and reiterates the legal position. The last authority that the appellants bring in support of their contention is the judgment reported at : AIR2008SC876 (New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr.). Paragraphs 25 to 29, 37 and 49 of the report leave little room for further argument on the scope of the said Act of 1971:

25. Where an application is filed for eviction of an unauthorised occupant it obligates the Estate Officer to apply his mind so as to enable him to form an opinion that the respondent is a person who has been in unauthorised occupation of the public premises and that he should be evicted. When a notice is issued in terms of Section 4 of the Act, the noticee may show cause. Section 5 of the Act postulates that an order of eviction must be passed only upon consideration of the show cause and any evidence produced by him in support of its case also upon giving him a personal hearing, if any, as provided under Clause (ii) of Sub-section (2) of Section 4 of the Act.

26. Although Section 5 ex facie does not make any classification in regard to the two classes of tenancies but the same is evident from the decisions rendered by this Court as also by the different High Courts.

27. The occupants of public premises may be trespassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service.

28. However, there may be another class of tenants who are required to be evicted not on any of the grounds mentioned hereinbefore but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for its own use and occupation.

29. Furthermore a proceeding may be initiated under Section 4 simpliciter. A composite proceedings may also be initiated both under Sections 4 and 7 of the Act. In the latter category of cases the landlord would be required to establish not only the bona fide need on its part but also quantum of damages to which it may held to be entitled to, in the event that an order is passed in favour of the establishment.

37. Thus under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 the occasion would arise for multi-level inquiry: primary inquiry will be to arrive at a conclusion on 'unauthorised occupant', and intermediate inquiry would be as to the eviction of 'unauthorised occupant'.

49. Section 5 of the Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice under Section 4 is issued by the Estate Officer on formation of his opinion as envisaged therein it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submissions in support of his case. Literal meaning in a situation of this nature would lead to a conclusion that the landlord is not required to adduce any evidence at all nor is it required even to make any oral submissions. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. It may not even be permitted to adduce any evidence in rebuttal to the one adduced by the noticee nor it would be permitted to advance any argument. Is this contemplated in law? The answer must be rendered in the negative. When a landlord files an application, it in a given situation must be able to lead evidence either at the first instance or after the evidence is led by the noticee to establish its case and/or in rebuttal to the evidence led by the noticee.

19. The Arya respondents, the writ petitioners, say that a very short question had been raised before the learned Single Judge and decided in their favour. They assert that a landlord which is also a State or authority within the meaning of Article 12 of the Constitution is precluded from acting as any private landlord, driven by mere profit or commercial motive. They say that no action of the State may be uninformed, particularly if it exposes a citizen to a harsh consequence of being removed from a place of business. The writ petitioners contend that if a statutory authority landlord seeks to determine a lease or terminate the authority of an occupier to remain in its public premises, it ought to afford the lessee or occupier a chance to present its version of the matter and, thereafter, take an informed decision. The emphasis is on the principles of natural justice, that a statutory authority may not suo motu take a decision without reference to the lessee or occupier or without allowing the lessee or occupier to participate in the process culminating in the decision to determine the lease or terminate the authority to remain in possession of the public premises.

20. The writ petitioners refer to the definition of 'unauthorised occupation' that appears in Section 2(g) of the Act and stress on the phrase 'has expired or has been determined' appearing therein. Section 4(1) of the said Act is referred to and the phrase 'is of opinion that any persons are in unauthorised occupation of any public premises' is placed to say that the estate officer's jurisdiction begins after a lessee or an occupier is shown to be in unauthorised occupation of any public premises. In effect, the writ petitioners' argument is that the estate officer only proceeds against an unauthorised occupant and does not address the question whether the person proceeded against is, in fact, in unauthorised occupation of the concerned public premises.

21. A judgment reported at : [1990]1SCR983 (Assam Sillimanite Ltd. and Anr. v. Union of India and Ors.) is placed by the writ petitioners in support of their contention that a hearing is indispensable before a government body can determine a lease. Paragraph 12 of the report is placed in such context:

12. In our opinion, the decision in Ram Kishan's case : [1988]3SCR1015 fully covers the present case and should be followed by us. In fact, we think that the subsequent amendment in 1986 lends support to the plea of the petitioners. Though it is true that the scope of Section 4A(1) has been widened, the insertion of Sub-section (3) clearly reflects a statutory intention that an opportunity of hearing must be given before the order of termination is passed, presumably as such an order widely affects the rights of the lessees. We are not able to agree with Shri Datar that under Section 4A, as it stood before 1986, no useful purpose would have been served by the giving of such an opportunity. Several situations and circumstances can be conceived of where, given an opportunity of hearing, the lessee may be able to either dissuade the Government from terminating the leases prematurely or in persuading the Government to do it subject to certain safeguards for its benefit. For example, the lessee may be able to show that the public sector corporation to whom it is proposed to entrust the working of the mines is not yet adequately equipped to exploit the mines and that, at least for some more time the status quo should continue; or, again, if there is only a short period before the leases are to expire in the normal course, the lessee may be able to persuade the Government that no great advantage would be derived by premature terminating of the lease. These are only illustrative. Several such other situations can be thought of. It is very difficult, therefore, to accept the contention that because an order under Section 4A is to be passed in order to give effect to a policy of the Government, it is not necessary or useful to provide the lessees, whose leases are about to be terminated, an opportunity of hearing. We, therefore, hold, respectfully following the decision in Ram Kishan's case (supra), that the order passed under Section 4A, dated 7-12-1972 is null and void as it violated the principles of natural justice and was passed without giving an opportunity to the lessees of being heard.

22. A judgment reported at : [1990]3SCR649 (Ashoka Marketing Ltd. and Anr. v. Punjab National Bank and Ors.) is cited by the writ petitioners. Though such decision does not appear to further the writ petitioners' cause, paragraph 30 of the report may be noticed:

30. The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words 'whether by way of grant or any other mode of transfer' in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law.

23. The contesting respondents finally bring a judgment reported at : 2004(176)ELT24(SC) (Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr.) to show that the State as landlord has to be a model landlord and has always to act with Article 14 of the Constitution as the guiding spirit. Paragraphs 14 and 16 of the report are placed:

14. The Bombay Port Trust is an instrumentality of State and hence an 'authority' within the meaning of Article 12 of the Constitution. (See Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay : [1989]2SCR751 .) It is amenable to writ jurisdiction of the court. This position of law has not been disputed by either party. The consequence which follows is that in all its actions, it must be governed by Article 14 of the Constitution. It cannot afford to act with arbitrariness or capriciousness. It must act within the four corners of the statute which has created it and governs it. All its actions must bee for the public good, achieving the objects for which it exists, and accompanied by reason and not whim or caprice.

16. The position of law is settled that the State and its authorities including instrumentalities of States have to be just, fair and reasonable in all their activities including those in the field of contracts. Even while playing the role of a landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India.

24. The legal issue that has arisen is as to the extent of the estate officer's authority under the said Act of 1971. While it is an attractive argument that it is only upon an occupier at any public premises being found as an unauthorised occupant would he be subject to the estate officer's jurisdiction for the purpose of his eviction, the intent and purport of the said Act and the weight of legal authority that already bears on the subject would require such argument to be repelled. Though the State in any capacity cannot be arbitrary and its decisions have always to be tested against Article 14 of the Constitution, it is generally subjected to substantive law in the same manner as a private party would be in similar circumstances. That is to say, just because the State is a landlord or the State is a creditor, it is not burdened with any onerous covenants unless the Constitution or a particular statute so ordains.

25. If the said Act or the special provisions as enshrined therein were not there, the State or any authority under Article 12 of the Constitution as a landlord or owner of any premises would, in such circumstances, be governed by the provisions of the Transfer of Property Act and have recourse to the procedural law under the Civil Procedure Code. In the absence of any special enactment, like the Rent Control Act or other statute, a landlord may determine a lease or issue notice that any occupier on its premises was no longer welcome. The determination of the lease or any notice to quit the premises would not ipso facto entitle the landlord to resume possession of his land, unless the lessee or the occupier voluntarily succumbs to the demand. In the usual course, a landlord would be required to file a suit and justify therein his decision to determine the lease or notice to quit; await the decree; and, if successful, execute it in the manner recognised by the Code.

26. There is no dispute here - and it is implicit in the writ petitioners' argument - that if the land in question is public premises, the manner of eviction is provided under the said Act of 1971. What is in dispute is whether the noticee under Section 4 of the Act can question the decision of the statutory authority landlord to determine the lease or terminate the authority to remain in occupation of the public premises.

27. Since the parties are agreed that the immovable property in question here would be public premises within the meaning of the said Act, some of the other provisions of the Act of 1971 need to be seen:

2. Definitions. - ...

(g) 'unauthorised occupation', in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.

4. Issue of notice to show cause against order of eviction. - (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 concerned.

5. Eviction of unauthorised occupants. - (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under Clause (b) of Sub-section (2) of Section 4, the estate officer is satisfied that the public premises are 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 date of its publication under Sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this 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.'

8. Power of estate officers. - An estate officer shall, for the purpose of holding any inquiry under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) any other matter which may be prescribed.

9. Appeals. - (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under Section 5 or Section 5B or Section 5C or Section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in this behalf.

(2) An appeal under Sub-section (1) shall be preferred,:

(a) in the case of an appeal from an order under Section 5 within twelve days from the date of publication of the order under Sub-section (1) of that Section;

(b) in the case of an appeal from an order under Section 5B or Section 7, within twelve days from the date on which the order is communicated to the appellant; and

(c) in the case of an appeal from an order under Section 5C, within twelve days from the date of such order:

Provided that the appellate officer may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time,

(3) Where an appeal is preferred from an order of the estate officer, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit:

Provided that where the construction or erection of any building or other structure or fixture or execution of any other work was not completed on the day on which an order was made under Section 5B for the demolition or removal of such building or other structure or fixture, the appellate officer shall not make any order for the stay of enforcement of such order, unless such security, as may be sufficient in the opinion of the appellate officer, has been given by the appellant for not proceeding with such construction, erection or work pending the disposal of the appeal;

(4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible.

(5) The costs of any appeal under this section shall be in the discretion of the appellate officer.

(6) For the purposes of this section, a presidency-town shall be deemed to be a district and the chief justice or the principal judge of the city civil court therein shall be deemed to be the district judge of the district.

10. Finality of orders. - Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

15. Bar of jurisdiction. - No court shall have jurisdiction to entertain any suit or proceeding in respect of:

(a) the eviction of any person who is in unauthorised occupation of any public premises, or

(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under Section 5A, or

(c) the demolition of any building or other structure made, or ordered to be made, under Section 5B, or

(cc) the sealing of any erection or work or of any public premises under Section 5C, or

(d) the arrears of rent payable under Sub-section (1) of Section 7 or damages payable under Sub-section (2), or interest payable under Sub-section (2A), of that section, or

(e) the recovery of:

(i) costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5A, or

(ii) expenses of demolition under Section 5B, or

(iii) costs awarded to the Central Government or statutory authority under Sub-section (5) of Section 9, or

(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.

28. After the Ashoka Marketing case the question that is posed here should scarcely have arisen. Any further doubt is now settled by the Nusli Neville Wadia judgment. Though an estate officer under the said Act is not required to be versed in law, he has sufficient powers to decide the question as to whether a noticee under Section 4 of the said Act is an unauthorised occupant and it is the adjudication on such score against the noticee that will permit him to proceed to evict the occupant adjudged to be unauthorised. Just as in the case of any landlord governed by the Transfer of Property Act such landlord would have to justify his decision to determine the lease or terminate the authority of the occupier to remain in possession in a civil suit instituted either by the landlord for eviction or by the lessee or occupier to challenge the notice, so is it with a statutory authority landlord under the said Act of 1971. The said Act merely removes the authority of the civil court to adjudicate such issue and places it before an estate officer under the said Act to decide the matter in summary proceedings. The estate officer has to look into all material before him and, in fit cases, receive oral evidence before he can arrive at a conclusion as to whether the noticee under Section 4 of the said Act is in unauthorised occupation of the public premises. If he holds that the noticee is, indeed, an unauthorised occupant he proceeds to remove the noticee and his belongings from the public premises; if he finds that the noticee is entitled to continue in possession, the matter is over. It is only the entire scope of adjudication on such issues that it removed from a civil court and is placed before the estate officer; the substantive law under the Transfer of Property Act may still be cited before the estate officer and taken into account by him for the purpose of his adjudication. The usual process under the Civil Procedure Code is merely substituted by a summary procedure before the estate officer. The only difference is that the lessee or occupier of any public premises may not bring a matter before the estate officer of his own accord, such lessee or occupier may only defend his position as respondent if the estate officer is moved by the statutory authority landlord. As always, any act of the State or an instrumentality of the State has to answer to the demanding standards of Article 14 of the Constitution and a noticee under Section 4 of the said Act is not precluded from urging such ground before the estate officer. The entire purpose of the estate officer issuing notice to an alleged unauthorised occupant and the procedure to be followed under Section 5 of the said Act is rooted to the indispensable canons of natural justice.

29. The power of the estate officer under Section 8 of the said Act as of any civil court while trying a suit and the subjecting of the estate officer's judgment to appeal before a district judge are sufficient safeguards to balance against the provisions of Section 15 of the Act, barring the regular court's authority to receive an action in respect of such matters.

30. In the Anamallai Club matter, the State landlord had issued a notice to determine the licence and proceeded to take possession with police help, basing the authority to do so on its notice and the terms of the relevant grant. The licensee was not afforded any opportunity or forum to agitate the rationale of the State decision to revoke the licence. It was a case of gross breach of the principles of the natural justice in that the licensee had merely received the notice and thereafter been removed without a chance to urge anywhere that it had right to continue in possession. Under the said Act of 1971 a notice to quit issued by a statutory authority landlord of any public premises is subjected to scrutiny before the estate officer. As in a civil suit that a landlord would be required to institute if the lessee or occupier did not pay heed to a notice to quit, so would a statutory authority landlord be liable to justify, before the estate officer, its decision to determine the lease or revoke the occupier's authority to remain in possession of the public premises. It is not an Anamallai Club situation where a notice to quit is issued the previous moment and bulldozers immediately follow.

31. If the estate officer is seen to have no authority under the said Act to address the question as to whether the noticee under Section 4 of the said Act is in unauthorised occupation, it would result in the Anamallai Club situation. But the estate officer clearly has the statutory sanction to adjudicate upon such matter. If the estate officer were to start on the premise that the noticee was an unauthorised occupant and not entertain any challenge in such regard, there would be little left for him to adjudicate upon. For, if a person is in unauthorised occupation surely he has to be evicted. The elaborate safeguards in Section 4 and Section 5 of the said Act would then be meaningless and superfluous.

32. In Assam Sillimanite Ltd. there was a premature termination of the mining lease. A writ petition was filed to quash the premature termination without any relief on account of damages or compensation. The petition under Article 32 of the Constitution remained pending for about 17 years. The Supreme Court held that it would not be proper to ask the petitioner to file a suit for damages and appointed an arbitrator to determine the compensation. What is of significance is that the premature termination was on the basis of Section 4-A that was introduced into the Mines and Minerals (Regulation and Development) Act, 1951 by an amendment of 1972. The Supreme Court found that the order of termination in that case could not be sustained as it afforded the lessee no opportunity of being heard. Yet, upon noticing that the relevant mining lease had been granted in favour of another party, the Supreme Court ordered that compensation be assessed for a period of five years from the date of termination or upto the date of expiry of the lease whichever was less.

33. In view of the bar, under Section 15 of the said Act, of the civil court's jurisdiction to entertain any suit or proceedings in respect of eviction of any person who is in unauthorised occupation of any public premises, if the estate officer does not have authority to adjudicate as to whether a person is in unauthorised occupation of the concerned public premises it would lead to an anomalous situation with the writ court being the only forum available to the alleged unauthorised occupant. Such an interpretation would leave the said Act of 1971 very vulnerable. The estate officer must be seen to have the power to adjudicate the fundamental issue as to whether a noticee under Section 4 of the said Act is in unauthorised occupation. It is only upon such interpretation that the said Act of 1971 would be a complete code in respect of matters relating to the determination of a lease of any public premises or termination of the authority to occupy such public premises and the consequential eviction of the occupier upon him being adjudged to be in unauthorised occupation. Both the Ashoka Marketing and the Nusli Neville Wadia judgments support this view. That is not to say that a writ petition would not be maintainable if it challenged the landlord's decision to determine a lease relating to any public premises or terminate the authority to be in occupation of the same; but the writ court would usually guide the petitioner to the alternative forum before the estate officer. It is true that a lessee or occupier of any public premises cannot approach the estate officer under the said Act for challenging any decision of the landlord of any public premises, but the decision of the statutory landlord is not binding on the lessee or the occupier till the landlord runs it past the estate officer in accordance with the procedure contemplated by the said Act of 1971. In fit cases - and notwithstanding the alternative remedy - a writ petition challenging the landlord's decision may progress but only upon the challenge being on the ex facie lack of jurisdiction of the authority or on the absolute perversity of the decision. And it is here that the example given in the impugned judgment can be accommodated. If a statutory authority terminates the services of an employee and issues him a notice to quit the public premises in the employee's occupation, then the employee can challenge the decision of termination of his services in appropriate proceedings and seek an order arresting the consequences of his impugned termination. But such an extreme example would not lay down the rule for the clear import of the said Act to be blurred. There can be several other cases where the estate officer may not be best-suited to assess the circumstances leading to the statutory landlord's notice to quit the public premises, it is for this reason that the maintainability of a writ petition is never ruled out. But in cases where the relationship is as between lessor and lessee or owner and occupier or like nature, the writ court would scarcely allow the petition challenging the landlord's notice to quit to progress and would point the petitioner to the alternative forum available.

34. A writ petition founded on a challenge to the decision of the landlord of any public premises may ordinarily not be entertained if it is based on the breach of the principles of natural justice, for the procedure under the said Act would take care of such complaint if the landlord seeks to make the decision to determine the lease or terminate the authority to occupy the public premises, effective. In the instant case the writ petitioners raised a dispute, not questioning the jurisdiction of the appellants but questioning their motive and their rationale.

35. These were fit matters that ought to have been left to be assessed by the estate officer in the event the appellants chose to make their decision effective by moving the estate officer. The notice of July 28, 2006 issued by the appellants made it clear that the appellants would place the matter before the estate officer in case of default on the writ petitioners' part to comply with the notice. There was no suggestion, far less a possibility as in the Anamallai Club case, of the appellants attempting to forcibly take over possession of the public premises. There could have been no apprehension, in such circumstances, on the writ petitioners' part that they would be condemned unheard as the writ petitioners were still left free to urge all grounds taken in their reply of August 11, 2006 before the estate officer when the appellants applied before such officer. It is not necessary that a statutory authority landlord be required to consider the response to a notice to quit before such landlord can take the matter before the estate officer. It is always open to a statutory landlord to withdraw its notice to quit upon receiving the lessee or occupier's reply thereto, but if the statutory landlord chooses to take the matter to the estate officer, it cannot always be faulted. In other words, it is not incumbent on the statutory landlord to deal with the objections raised by a lessee or an occupier in response to the notice to quit before the statutory landlord can carry the demand to the estate officer.

36. The writ petitioners are left free to urge all grounds that may be available to them in the proceedings before the estate officer, should the appellants choose to take that route. There will, however, be no embargo on the appellants in bringing the matter before the estate officer.

37. The appeal succeeds and the writ petition stands dismissed. There will be no order as to costs.

38. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

39. I agree.