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2015 Supreme(Bom) 277
High Court of Judicature at Bombay
M.S. SONAK, J.
Gajanan Shivram Lele & Others – Appellant
Versus
Dena Bank & Another – Respondent
Writ Petition Nos. 11606 of 2014, 11609 of 2014, 11610 of 2014 & 11611 of 2014
Decided on: 23-02-2015
Advocate Appeared
For the Petitioners:V.Y. Sanglikar, Advocate.
For the Respondents:R1, Rajesh Shethia, Advocate.
Headnote:Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 3 Proof of bias. In order to establish bias, it must be shown that Estate Officer concerned had some personal interest in matter. There is no necessity to refer to several other decisions, upon which reliance was placed by ’S’. The aforesaid two decisions of the Apex Court provide that in order to establish bias, it shall have to be demonstrated that the Estate Officer concerned had some personal interest in the matter or that he has acted in the matter concerned or has already taken a decision which he may be interested in supporting. Undoubtedly, this is a matter of factual enquiry.
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 4 Civil Procedure Code, 1908, Section 9-A Eviction proceeding before Estate Officer. Direction issued by Estate Officer that issue of jurisdiction shall be considered alongwith main application for eviction, not arbitrary. The provisions contained in Section 9-A of the CPC per se do not apply to proceedings before the Estate Officer under the provisions of the said 1971 Act. In the present cases, the question as to whether or not the petitioners are pre-nationalisation tenants/occupants is a disputed question of fact. If therefore, the Estate officer has deferred the decision upon such issue together with the main application, it cannot be said that the Estate Officer has either acted without jurisdiction or exceeded the jurisdiction vested in him. With regard to matters of procedure, it is not possible to lay do any strait-jacket formulae. The procedure to be adopted shall essentially depend upon the fact situation of the matter.
In a given case, if there is no dispute with regard to the factual aspects, the Estate Officer can be directed to address the issue of jurisdiction at the very outset. in the present case, however the issue as to whether or not the petitioners are pre-nationalisation tenants/occupants of the said premises, as a question which would require evidence and proof Rather than permit evidence on this aspect alone, the Estate Officer by the impugned orders, has directed that such issue of jurisdiction shall be considered along with the main applications seeking eviction of the petitioners. There is no arbitrariness in such an approach. These are not the cases where the petitioners plea that the Estate Officer lacks jurisdiction in the matters has been rejected or turned down. Accordingly, there is no case made out to interfere with the impugned orders made on 7 August 2014 in the facts and circumstances of the present cases.
[2011 (2) All MR 510 Disting.].
1. Rule in each of these petitions. With the consent of and at the request of the learned counsels for the parties, Rule is being disposed of finally.
2. In each of these cases, proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (“said Act”) are pending before Mr. E. Rajshekhar, Estate Officer, the respondent no.2 herein. The petitioners have however invoked the extra ordinary jurisdiction of this Court, mainly urging the following:-
a) That the petitioners being pre-nationalisation tenants / occupants of the suit premises, cannot be proceeded against under the provisions of the said Act in view of the law laid down by the Apex Court in the case of Dr. Suhas H. Pophale vs. Oriental Insurance Co. Ltd. & its Estate Officer (AIR 2014 SC 1509);
b) That Mr. E. Rajshekhar, the Estate Manager had himself recommended the action of eviction against the petitioners and even proposed a line of action to secure the same. Therefore, there is a reasonable apprehension that Mr. E. Rajshekhar is biased.
3. In each of these petitions, the petitioners filed an application before the Estate Officer urging want of jurisdiction in view of the decision of the Supreme Court in the case of Dr. Suhas Pophale (supra). The Estate Officer, by order dated 7 August 2014 has, in terms has held that the documents upon which the petitioners relied to prove their claim of being pre-nationalisation tenants/occupants are required to be proved, in accordance with law and accordingly, it would be appropriate that all the contentions of the petitioners are kept open to be decided finally along with the main application seeking eviction of the petitioners.
4. In so far as the challenge to the orders dated 7 August 2014 are concerned, Mr. Sanglikar, the learned counsel for the petitioners in each of these petitions submitted that the issue raised, being one of jurisdiction, the Estate Officer was obliged to decide the same at the outset and not to defer consideration thereof along with the main application seeking eviction of the petitioners. In this regard, analogy was attempted to be drawn from the provisions contained in Section 9A of the Civil Procedure Code (CPC) (as applicable in the State of Maharashtra) and the decisions of this Court in the case of Mukund Ltd. vs. Mumbai International Airport & Ors. (2011 (2) AIR Bom R 754), Mr. Nusli Neville Wadia vs. The New India Assurance Co. Ltd. & Anr. (Writ Petition No. 490 of 2008 decided on 28.02.2008).
5. The provisions contained in Section 9A of the CPC per se do not apply to proceedings before the Estate Officer under the provisions of the said Act. Section 9A provides that where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue is to be decided by the Court as a preliminary issue. The decision in the case of Mukund Ltd. (supra) basically concerns the interpretation of the provisions of Section 9A of CPC, as applicable in the State of Maharashtra. There is no similar provision under the said Act.
6. Mr. Sanglikar however contended that the principles of Section 9A of CPC ought to apply to proceedings before the Estate Officer. In the case of Nusli Wadia (supra), this Court did direct the Estate Officer to decide the issue of jurisdiction, because if the Estate Officer were to agree with the petitioner that he had no jurisdiction, the matter would terminate then and there. Such direction, came to be issued in the facts of the said case. The decision in the case of Nusli Wadia (supra) is not an authority for the proposition that this is the only course to be adopted by an Estate Officer, irrespective of the facts and circumstances of the case.
7. In the present cases, the question as to whether or not the petitioners are pre-nationalisation tenants / occupants is a disputed question of fact. If therefore, the Estate officer has deferred the decision upon such issue together with the main application, it cannot be sai
