Gangjee @ Ganjee Sajun & Co. vs Punjab National Bank

Siddhartha Chattopadhyay, J.—Challenging the order dated 11.09.2007, passed by the Estate Officer, Punjab National Bank, the petitioner herein challenged the said order before the City Civil Court XII Bench, who also upheld the finding of the Estate Officer vide its order dated 28.02.2013. At the time of filing miscellaneous appeal before the learned City Civil Court the following grounds were taken by the petitioner viz. (1) no opportunity was given to the appellant to appear before the Estate Officer (2) no notice of termination was served, (3) order was passed behind his back and that he was not given a personal hearing. The learned First Appellate Court dealt with these issues and found the decision of the Estate Officer as correct.

In this revisional application the petitioner herein contended that the present petitioner was not cross-examined and no notice was served upon all the occupants. In course of hearing learned Counsel appearing on behalf the opposite party has submitted that in the revisional application at page 9 para 6 the present petitioner has nowhere stated as to whom they have sublet the space in question and naturally he could not take the advantage of his own wrong. This apart, cross-examination of present petitioner was not mandatory for the Estate Officer since it is a summary trial.

In the interest of effective adjudication, factual aspect of the case is to be re-visited. The respondent bank is now a nationalised bank having many branches. The suit premises was purchased by the erstwhile Hindustan Commercial Bank and upon its merger the respondent bank became the owner of the suit premises. After a considerable years, the respondent bank found that the present appellant is in occupation as a tenant in this space as provided in the schedule, who was inducted by the predecessor of the respondent bank as a monthly tenant. The respondent bank being the owner of the entire premises, issued the eviction notice upon the respondent on 07.06.2004 and asked the appellant to quit and vacate the said possession of this space within 15 days from the date of receiving of the notice. The grounds mentioned in the said eviction notice was for reasonable and bona-fide requirement of the respondent bank. Subsequently, a corrigendum notice was issued also on 11.05.2007. In spite of the said notices, the appellant tenant did not deliver the respondent bank the peaceful and vacant possession of the suit premises and as such the appellant was considered as an unauthorized occupant. In exercise of the power conferred under the Act of 1971, the Estate Officer was appointed. It has been further contended that the cause of action of the case arose on 24th June, 2004. It also appears that the opposite party (present petitioner) had given reply to the notice dated 07.06.2004. After hearing both sides the Estate Officer was pleased to pass the impugned order holding that the said notification is advisory in nature. Applicant''s contention that since consent decree was passed, the Estate Officer cannot pass eviction order accordingly it is not at all maintainable. The Estate Officer held that the situation prevalent in 1958 is squarely different as on 2007. He has also considered that, on the strength of consent decree, the present opposite party has allowed the petitioner to use the premises as a tenant only and such consent does not give any right in nature of perpetual occupancy to the tenant. He also categorically stated that the present opposite party bank was not a made a party to such consent decree and so he is not bound by the said decree.

Learned Counsel appearing on behalf of the petitioner has argued that the impugned order was not in consonance with the law. According to him, the present petitioner has obtained a compromise decree in connection with the ejectment suit No. 187/1958, wherein subletting power was given to the present petitioner. Therefore, there is no illegal act alleged to have been done by the present petitioner.

At the time of hearing, learned Counsel appearing on behalf of the petitioner has contended that the ground of reasonable requirement has not been established and the notice itself is bad in law. It was also argued that this petitioner is enjoying the suit property for the last 70 years also and he so cannot be termed as an unauthorized occupant. It was also contended that principles of natural justice was not followed and so the impugned order does not sustain.

The petitioner relied on the decision reported in (2008) 3 SCC 279 in connection with New India Assurance Company Limited v. Nusli Nevillee Wadia & Anr., wherein certain principles have been laid down in that decision vide Paras 49, 57 and 58. Learned Counsel appearing on behalf of the opposite party relied on a decision reported in 2008 (1) CLJ Cal 2016 in connection with Smt. Nilima Majumdar & Ors. v. State of West Bengal & Ors. Now I am to consider the decision referred to by the present petitioner. In Para 49 of the said judgment, Hon''ble Apex Court held "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." Hon''ble Apex Court has held that when notice under Section 4 is issued by the Estate Officer then it is for the noticee not only to show cause in respect thereof but also adduce evidence and make oral submission and support of his case. Literal meaning in such a situation would lead to a conclusion that the landlord is not required to be adduced any evidence at all. Such a literal construction would lead to an anomalous situation because the landlord may not be heard at all. When a landlord filed an application 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.

It is also to be kept in mind that Estate Officer is a quasi-judicial authority and may not follow the procedural laws in its entirety. This is a summary trial. In this instant case, the show cause notice was issued and termination notice was also issued. The present petitioner adduced evidence but he was not cross-examined. If he was not cross-examined then no prejudice is caused to him. It is the choice of the other side to cross-examine him or not. In Para 57 the Hon''ble Apex Court held "We, however, must not shut our eyes to the objects for which the Act was enacted. It provided for a speedy remedy. The Estate Officer is expected to arrive at a decision as expeditiously as possible. The provisions of the Code of Civil Procedure and the Evidence Act being not applicable, what is necessary to be complied with is the principles of natural justice." So it is to be seen whether principles of natural justice has been followed or not. In the instant case, the petitioner was given that opportunity and nothing has been ordered without hearing him.

Learned Counsel appearing on behalf of the opposite party relied on a decision reported in 2008 (1) CLJ Cal 216, in connection with Nilima Majumdar & Ors. v. State of West Bengal & Ors. wherein our Division Bench has clearly held that the compromise decree passed by the Civil Court is not binding on the Estate Officer since he was not a party to the said proceeding. While passing that judgment Hon''ble Division Bench held "it is now a settled law that any declaration granted under Section 34 of the Specific Relief Act is a judgment in personem and is binding only against the parties to the proceedings." Therefore, the present petitioner''s claim that on the basis of compromise decree he is in possession and can sublet the space in question to the other occupants, will not give any oxygen to him. This apart, a public premises cannot be converted into a perpetual tenancy. With the passage of time and due to economic growth of our country the financial institutions like the nationalised banks are opening new branches which a Court of law cannot ignore in its totality.

Therefore, in my considered view there is no merit in this revisional application and it is dismissed but without any cost. Judgment passed by the learned First Appellate Court as well as the Estate Officer are hereby affirmed.

Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.