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CASE NO.:

Appeal (civil) 5879 of 2007

PETITIONER:

New India Assurance Company Ltd.

RESPONDENT:

Nusli Neville Wadia and another

DATE OF JUDGMENT: 13/12/2007

BENCH:

S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT:

JUDGMENT

(Arising out of SLP (C) No. 8232 OF 2006)

WITH

CIVIL APPEAL NO. 5871 OF 2007

(Arising out of SLP (C) No. 10348 OF 2006)

New India Assurance Company Ltd. \005\005Appellant

Versus

KLM Engineering Co. Pvt. Ltd. and others \005\005Respondents

S.B. SINHA, J.

1. Leave granted.

Introduction

2. Who should begin to lead evidence in a proceeding under the

Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in

short \021the Act\022) is the question involved in these appeals.

Background Facts

3. Appellant is a company incorporated under the Companies Act,

1950. It is a State within the meaning of Article 12 of the

Constitution of India. It owns a building in the town of Mumbai

commonly known as Mayfair Gardens. Respondents herein are the

tenants occupying two apartments in the said building. We would

notice the fact of each matter in brief separately.

Facts in appeal \026 Nusli Neville Wadia and Anr.

4. In this appeal a notice terminating the tenancy of first

respondent was issued on 9th February, 2001. However, on the

premise that no ground of eviction had been mentioned therein,

another notice was issued on 18th February, 2002 enumerating the

grounds of eviction. Replies were given thereto by the respondent.

Appellant filed an application before the Estate Officer praying for

eviction of the respondent and for damages for unauthorized

occupation of the premises with effect from 1st April, 2002 @

Rs.4,91,700/- per month with interest @ 9 % per annum thereupon.

5. The Estate Officer purported to be satisfied that the occupation

of the first respondent is unauthorized and that an order of eviction

may have been passed against it issued a show cause notice to

respondent No.1 on 28th July, 2003 under Section 4 of the Act. The

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grounds for first respondent\022s eviction as set out in the application

were :-

\0231. The New India Assurance Co. Ltd. needs and

requires the premises for its own use and

occupation for accommodating its own senior

executives ;

2. The New India Assurance Co. Ltd. is being evicted

from tenanted premises and being called upon to

pay exhorbitant rents for tenanted premises ;

3. Increase in business, globalization of economy and

liberalization of policies have necessitated the New

India Assurance Co. Ltd. to use and occupy the

New India Assurance Co. Ltd.\022s own properties ;

4. The tenancy of Respondent No. 1 has been duly

terminated by the New India Assurance Co. Ltd.\022s

notice dated 18.02.2002;

5. Respondent No.1 is a rich and wealthy industrialist

who has several flats for his residence.\024

6. Notice was also issued on the same date i.e. 28th July, 2003

under the provisions of Section 7(3) of the Act calling upon the

tenant-respondent to show cause why he should not be required to pay

damages. Reply to the formal show cause notices were filed by the

first respondent on 23rd February, 2004. A detailed written statement

was filed by him on 3rd September, 2004.

7. Upon an application filed by the appellant, the Estate Officer

by an order dated 26th August, 2005 directed the first respondent to

lead evidence wherein his advocate was directed to file an affidavit of

evidence. The matter was adjourned for cross-examination of the first

respondent\022s witnesses by the appellant\022s advocate. First Respondent,

however, filed an application before the Estate Officer praying inter

alia that he should vary his order dated 26th August, 2005 and direct

the appellant to lead its evidence first and offer its witnesses for cross-

examination by the first respondent whereafter he would file his

affidavit of evidence. The said application was rejected by the Estate

Officer by an order dated 12th January, 2006. Aggrieved by and

dissatisfied therewith the first respondent filed a writ petition before

the Bombay High Court which, by reason of the impugned judgment,

has been allowed.

Facts in appeal - KLM Engineering Co. Pvt. Ltd. and Ors.

8. Respondent No.1 was inducted as a licensee in a furnished flat

in an apartment in the said building. The period of lease was for 5

years beginning from 1st October, 1994. Allegedly on the premise that

the respondent No.1 did not renew the \021licence\022 by giving two

months\022 prior notice as required, a notice to quit and handover

possession was issued on 13th December, 1999. In response to the

said notice the respondents contended that they had exercised their

option to renew the licence vide their letter dated 9th December, 1999.

Thereafter by a notice dated 9th February, 2001 the tenancy of

respondent No.1 was terminated by the appellant. As the said notice

did not contain any ground for termination of tenancy, another notice

was issued on 18th February, 2002. Composite application was filed

by the appellant under Sections 4 and 7 of the Act before the Estate

Officer on 16th January, 2003 whereupon two show cause notices

were issued by the Estate Officer to the first respondents in terms of

Section 4 and 7(3) of the Act on 21st February, 2003.

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9. Before the Estate Officer, the appellant filed its affidavits of

evidence. Dates after dates were fixed for cross-examination of the

witnesses of the appellant. Appellant had been taking adjournments

in the matter. On 22nd August, 2005 the first respondent moved an

application for direction before the Estate Officer. On or about 20th

September, 2005 the appellant had filed an application inter alia

stating that as it had already placed all the evidence on record, it was

for the first respondent to file its evidence and produce witnesses first

for cross-examination by it and prayed inter alia for the following

relief :-

\023the Opposite Party be directed to show cause to

the Statutory Notice issued by the erstwhile

Learned Estate Officer under sections 4 and 7 of

the PP Act and the case submitted by the

Applicants.\024

By order dated 30th January, 2006 the Estate Officer directed

the first respondent to lead evidence by the following order :-

\023Both applications disposed of. Application dated

22nd August, 2005 of the Opposite Party is not

allowed. As regards application dated 20th

September 2005 taken out by the Applicants, I

direct the Opposite Party to file their documents

and witness affidavits in lieu of evidence in chief

on or before 21.02.2006 complete inspection of

documents, if any, by 28.02.2006 and adjourn the

matter to 03.03.2006 at 3.30 p.m. for further

directions.\024

10. Aggrieved by and dissatisfied therewith, the Respondent Nos.

1 and 2 filed a writ petition before the High Court being W.P. No. 557

of 2006 which has been allowed by reason of the impugned order.

Contentions

11. Mr. P.N . Lekhi, learned senior counsel appearing on behalf of

the appellant inter alia submitted:

i) Having regard to the scheme of the 1971 Act and the Rules

framed thereunder the respondent-tenant should have been

directed to lead evidence.

ii) The Estate Officer having satisfied itself that the respondent-

tenant was in unauthorized occupation of the public

premises, it was for the tenant to establish that his

occupation is authorized.

iii) The premises in question being a public premises the

Noticee does not enjoy any protection as envisaged under

the provisions of the Maharashtra Rent Control Act, 1999

and in that view of the matter termination of tenancy itself is

sufficient for directing eviction of the tenant and thus, the

onus would lie upon the respondent to show that it is not in

unauthorized occupation.

iv) The procedure prescribed under the Act for eviction of the

unauthorized occupants being governed by the provisions of

the Act and the Rules thereunder, the provisions of the Code

of Civil Procedure or the Evidence Act would not be

attracted.

v) The High Court committed a serious error in passing the

impugned judgment relying on or on the basis of the

guidelines issued by the Central Government which have no

statutory force; being advisory in character, and as such the

same could not have been relied upon ignoring the statutory

enactment.

vi) The Division Bench of the High Court acted illegally in so

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far as it failed to take into consideration several binding

precedents operating in the field.

12. Mr. F.S. Nariman, learned senior counsel, appearing on behalf

of the first respondent in Civil Appeal arising out of SLP (C) No.8232

of 2006 would submit that:

(a) Section 4 of the Act deals with two types of cases; first \026

those who are in unauthorised occupation in the sense of

being in occupation without any authority therefor which

is governed by the first part of Section 4 of the Act; and

second, those who have continued in occupation of

public premises as Rent Control Acts permitted them to

continue to occupy but in respect whereof the tenancy

has been terminated \023for any reason whatsoever\024 as

envisaged in Section 2(g) of the Act.

(b) Whereas in the first group of cases the onus of proof

would be on the tenant to establish that no order of

eviction should be passed, however, in the second group

of cases it would be for the landlord to establish their

bona fide need, although the provisions of the Code of

Civil Procedure and the Evidence Act stricto sensu are

not applicable, having regard to the statutory scheme as

also the principles of natural justice which are required to

be complied with.

(c) As the Act and the Rules envisage a lis between the

parties and the decision of the Estate Officer is an

appealable one, not only evidence is required to be

recorded , an opportunity to cross-examine the witnesses

must also to be given.

(d) A party to the lis cannot ordinarily be directed to prove a

negative and in that view of the matter, it would be for

the insurance company to lead evidence at the first

instance.

13. Mr. Anil B. Diwan, learned senior counsel appearing on behalf

of respondent Nos. 1 and 2 in Civil Appeal arising out of SLP (C) No.

10348 of 2006 submitted that:

(1) As a composite application for eviction as also the

damages has been filed and a composite notice having

been issued, the onus of proof lay upon the appellant.

(2) Appellant having filed an affidavit of its witnesses

accepted that it was for it to lead evidence and having

taken a large number of adjournments on the dates fixed

for cross-examination of the said witnesses, could not

have gone back thereupon and contended that it was for

the respondents to lead evidence.

(3) As the principle of natural justice contemplate cross-

examination of the witnesses as also inspection of

documents, the High Court cannot be said to have

committed an error in passing the impugned judgment.

THE ACT

14. Indisputably the respondents herein are not protected tenants

under the provisions of the Maharashtra Rent Control Act, 1999.

15. Section 15 of the Act bars the jurisdiction of a civil court or any

other court to entertain any proceedings in respect of eviction of any

person who is in unauthorized occupation of any public premises.

Public premises has been defined in Section 2(e) to mean any

premises belonging to, or taken on lease by any corporation

established by or under a Central Act and owned or controlled by the

Central Government. It is not in dispute that the premise in question

is a public premise.

16. Section 3 of the Act provides for appointment of an Estate

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Officers. Sections 4 provides for issuance of a show cause notice in

the following terms :-

\023Section 4 - Issue of notice to show cause against order

of eviction - (1) If the estate officer is of the 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.\024

17. Section 5 deals with the procedure for eviction of unauthorized

occupants. It reads :-

\023Section 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 refused or fails to comply with the order

of eviction on or before, the date specified in the said

order or within fifteen days of its publication under sub-

section (1) whichever is later, the estate officer or any

other officer duly authorized by the estate officer in this

behalf may evict that person from, and take possession

of, the public premises and may, for that purpose, use

such force as may be necessary.\024

18. Section 7 empowers the Estate Officer to require payment of

rent or damages in respect of public premises by the person who is in

unauthorized occupation thereof.

19. Section 9 provides for appeal from an order of the Estate

Officer.

THE RULES;

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20. Rules have been framed by the Central Government in exercise

of its powers under Section 18 of the Act known as the Public

Premises (Eviction of Unauthorised Occupants) Rules, 1971. Rule 5,

which is material for these appeals reads as under :-

\0235. Holding of inquiries. \026 (1) Where any person on

whom a notice or order under this Act has been served

desires to be heard through his representative he should

authorize such representative in writing

(2) The estate officer shall record the summary of such

evidence and any relevant documents filed before him

shall form part of the records of the proceedings. \023

GUIDELINES

21. A tenant of a public premise although ordinarily does not get

any protection from eviction from the tenanted premises under the

provisions of the Maharashtra Rent Control Act, 1999, it is accepted

that the action of the part of the landlord, which is a State within the

meaning of Article 12 of the Constitution of India must in this behalf

be fair and reasonable. In other words the action of the State in terms

of the provisions of the Act should not be arbitrary, unreasonable or

mala fide. With that end in view only, and for determining the legal

effect arriving thereunder, the Central Government had, from time to

time, issued several guidelines. The guidelines so issued are dated

14th January, 1992 ; 5th August, 1992 ; 7th July, 1993 ; 14th July, 1993 ;

23rd July, 1993; 9th June, 1998, 2nd September, 2002 and 23rd July,

2003. In terms of the said guidelines, however, a distinction is sought

to be made between a tenant who is rich or industrialist etc. vis-a-vis a

person who is poor and uses the tenanted premises only for his

residence as would appear from the guidelines dated 23rd July, 2003,

the relevant portion whereof reads as under :-

\0233. The Government Resolution dated

30.05.2002 embodies the guidelines dated

14.01.1992 for observance by the Public Sector

Undertakings. However, clarification was issued

vide OM No.21011/790 Pol.1 IV.H.11 dated

07.07.1993 that the guidelines are meant for

genuine non affluent tenants and these are not

applicable to the large business houses and

commercial entrepreneurs.\024

22. Issuance of such guidelines, however, is not being controlled by

statutory provisions. The effect thereof is advisory in character and

thereby no legal right is conferred upon the tenant. (See 1990 (Supp)

SCC 440 at 508 : Narendra Kumar Maheshwari vs. Union of India

and others ; (1981) 1 SCC 166 at 232 : Maharao Sahib Shir Bhim

Singhji vs. Union of India and others ; (1988) 4 SCC 464 (paragraph

31) : J.R. Raghupathy and others vs. State of A.P. and others ; (2002)

100 DLT 487 : Uttam Parkash Bansal and others vs. L.I.C. of India

and 1992 (2) CLR 457 : Punjab National Bank vs. M/s. The Lord

Krishna Paper Industries and others.

23. We may, however, hasten to add that having regard to the fact

that the appellants themselves referred to guidelines issued by the

Central Government from time to time, its ultimate effect on the

application need not be finally determined by us.

APPLICATION OF THE ACT AND THE RULES

24. Where an application is filed for eviction of an unauthorized

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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 unauthorized 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.

25. 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.

26. 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.

27. 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.

28. Furthermore a proceeding may be initiated under Section 4

simplicitor. 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 hold to be

entitled to, in the event that an order is passed in favour of the

establishment.

29. Admittedly in these cases two notices for eviction were issued.

If the contention of Mr. Lekhi is correct, the first notice was not

required to be withdrawn and the second notice was not required to

be issued, specifying the grounds on which the eviction of the

respondents were sought for.

30. When an application for eviction is based on such grounds,

which require production of positive evidence on part of the landlord,

in our opinion, it would be for it to adduce evidence first; more so in a

composite application where the evidence is also required to be led on

the quantum of damages to be determined by the Estate Officer.

31. There may be a case where the tenant may take a defence which

discloses no prima facie case in which event the Estate Officer may

ask him to lead evidence. But there may be cases where the ground of

eviction, having regard to the defence taken by the occupants, may be

required to be gone into.

32. Appellant\022s stand in this case is clear and unambiguous. It

intends to evict the respondents on the grounds specified in the notices

issued by the Estate officer.

33. The Estate Officer with a view to determine the lis between the

parties must record summary of the evidence. Summary of the

evidence and the documents shall also form part of the record of the

proceedings.

34. Procedure laid down for recording evidence is stated in the

Rules. The Estate Officer being a creature of the statute must comply

the same. When a notice is issued, the occupant of the public

premises would not only be entitled to show cause but would also be

entitled to produce evidence in support of the cause shown.

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CONCEPT OF FAIRNESS

35. The procedural aspect as to who should lead evidence first, thus

may have to be determined on the basis of the issues arising in the

matter. When we say so, we do not mean that the procedure involved

being a summary one, the issues are required to be specifically framed

but that which is the principal issue(s) between the parties must be

known to the Estate officer.

36. Thus under the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 the occasion would arise for multi-level

inquiry: Primary inquiry will be to arrive at a conclusion on

\023unauthorized occupant\024; and intermediate inquiry would be as to the

eviction of \023unauthorized occupant\024.

37. The question has been succinctly dealt with by a Division

Bench of the Bombay High Court in: Minoo Framroze Balsara vs.

Union of India and others (1992 Bom 375) wherein Bharucha, J. (as

the learned Chief Justice then was) opined: \023the Government

company or corporation must so act not only when terminating the

authority of an occupant of public premises of its ownership to occupy

the same but also when, thereafter, it seeks his eviction therefrom\024.

38. The statute, although, does not require a lengthy hearing or a

lengthy cross-examination but the noticee should be given an

opportunity to file an effective show cause. An effective show cause

can be filed when eviction is sought for a specified ground and the

occupants must know the particulars in relation thereto.

39. For the said purpose, Sections 4 and 5 of the Act must be read

together. Even the Rules which are validly framed must be read

alongwith the statutory provisions. Ordinarily although a tenant

occupying the property belonging to a government may be somewhat

in a worse position than a tenant having protection under the Rent

Control Act as has been held by a Full Bench of the Calcutta High

Court in AIR 1968 Calcutta 1 : Standard Literature Co. Private Ltd.

and Ors. vs. Union of India, but with a view to interpret the

provisions of the Act, we must take into consideration the decisions of

this Court laying down the concept of \021bona fide act\022 and the \021fair

action\022 on the part of the owner as laid down in (1989) 3 SCC 293

Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of

Bombay and (1990) 4 SCC 406 : Ashoka Marketing Ltd vs. Punjab

National Bank.

40. In Dwarkadas Marfatia (supra) this Court clearly held that \023the

public authorities which enjoy this benefit without being hidebound

by the requirements of the Rent Act must act for public benefit.

Hence, to that extent, that is liable to be gone into and can be the

subject matter of adjudication\024. Dwarkadas Marfatia was applied in

Ashoka Marketing (supra) stating :-

\02369. It has been urged by the learned counsel for

the petitioners that many of the corporations

referred to in Section 2( e )(2)( ii ) of the Public

Premises Act, like the nationalised banks and the

Life Insurance Corporation, are trading

corporations and under the provisions of the

enactments whereby they are constituted these

corporations are required to carry on their business

with a view to earn profit, and that there is nothing

to preclude these corporations to buy property in

possession of tenants at a low price and after

buying such property evict the tenants after

terminating the tenancy and thereafter sell the said

property at a much higher value because the value

of property in possession of tenants is much less as

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compared to vacant property. We are unable to cut

down the scope of the provisions of the Public

Premises Act on the basis of such an apprehension

because as pointed out by this Court in Dwarkadas

Marfatia and Sons v. Board of Trustees of the Port

of Bombay (SCC p. 306, para 27)

\023...every activity of a public authority especially in

the background of the assumption on which such

authority enjoys immunity from the rigours of the

Rent Act, must be informed by reason and guided

by the public interest. All exercise of discretion or

power by public authorities as the respondent, in

respect of dealing with tenants in respect of which

they have been treated separately and distinctly

from other landlords on the assumption that they

would not act as private landlords, must be judged

by that standard.\024

These observations were made in the context of the

provisions of the Bombay Rents, Hotel and

Lodging Houses Rates (Control) Act, 1947

whereby exemption from the provisions of the Act

has been granted to premises belonging to the

Bombay Port Trust. The consequence of giving

overriding effect to the provisions of the Public

Premises Act is that premises belonging to

companies and statutory bodies referred to in

clauses (2) and (3) of Section 2( e ) of the Public

Premises Act would be exempted from the

provisions of the Rent Control Act. The actions of

the companies and statutory bodies mentioned in

clauses (2) and (3) of Section 2( e ) of the Public

Premises Act while dealing with their properties

under the Public Premises Act will, therefore, have

to be judged by the same standard.\024

Constitutional Backdrop

41. Constitutional validity of the Act as also its predecessors\022 Act

being Public Premises (Eviction of Unauthorised Occupants) Act,

1958 and the Government Public Premises Eviction Act, 1950 was

challenged in several proceedings. The Public Premises Act, 1950

was struck down in AIR 1956 All. 507 (DB) Brigadier Commandant,

Meerut vs. Gangaprasad ; 58 CWN 1056 : Jaggu Singh vs. Shakuat

Ali and 1957 (59) PLR 621 : Satish Chander vs. Delhi Improvement

Trust. 1950 Act was repealed by the Public Premises (Eviction of

Unauthorised Occupants) Act, 1958 wherein, however the

jurisdiction of the civil court was not barred. A Constitution Bench of

this Court in 1967 (3) SCC 399 : Northern India Caterers Pvt. Ltd. vs.

State of Punjab held Section 5 thereof to be void as an additional

remedy over and above the usual remedy by way of a suit was

conferred thereby providing for two alternative remedies or leaving it

to the unguided discretion of the Statutory Authorities to resort to one

or the other procedure. Northern India Caterers Pvt. Ltd. (supra),

however, was overruled by a Bench of 7 Judges of this Court in

(1974) 2 SCC 402 : Maganlal Chaganlal vs. Municipal Corporation.

We must also notice that 1958 Act was struck down by Delhi High

Court in P.L. Mehra vs. D.R. Khanna (Civil Writ No. 431 of 197).

42. On the aforementioned premises the 1971 Act was enacted after

removing the vice which led to it having been declared as void with

effect from 16th September, 1958. It suffered another challenge in

(1972) 2 SCC 259 : Hari Singh vs. Military Estate Officer.

However, the challenge to its validity was negatived holding that the

1971 Act did not provide for two procedures but only one procedure.

Yet again in (1988) 4 SCC 324 : Accountant and Secretarial Services

vs. Union of India challenge to the validity of the Act on the premise

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that one of the officers of the Statutory Authority may be appointed as

an Estate Officer and thus violative of Article 14. However, the Court

negatived the challenge and observed:

\02432. Dr Chitale, while initially formulating his

contentions, outlined an argument that the

provision 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 things, only an officer or appointee of the

government, statutory authority or corporation can

be thought 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. In fact, Dr

Chitale did not pursue this objection seriously.\024

43. It was on the aforementioned premise that the dicta laid down

in Ashoka Marketing Ltd. (supra) must be considered wherein this

Court held that the Act overrides Delhi Rent Control Act, 1958,

although both were Acts of Parliament.

Natural Justice Issue:

44. If some facts are to be proved by the landlord, indisputably the

occupant should get an opportunity to cross-examine. The witness

who intends to prove the said fact has the right to cross-examine the

witness. This may not be provided by under the statute, but it being a

part of the principle of natural justice should be held to be indefeasible

right. [See 1984 (1) SCC 43 : K.L. Tripathi vs. State Bank of India

and others and 2005 (10) 634 : Lakshman Exports Limited

Vs.: Collector of Central Excise]

45. We may also take note of the fact that this Court in 1972 (1)

SCR 241 : Bareilly Electricity Supply Co. Ltd. vs. The Workmen

this Court held as under :-

\023The application of the principle of natural justice does

not imply that what is not evidence can be acted upon.

On the other hand what it means is that no material can

be relied upon to establish a contested fact which are not

spoken to by persons who are competent to speak about

them and are subjected to cross-examination by the party

against whom they are sought to be used.\024

46. It is axiomatic that when in support of its case the landlord

intends to rely upon a document which is to be taken on record, it

would be obligatory on the part of the Estate Officer to allow

inspection thereof to the noticee. Denial of such inspection of

documents shall be violative of the principle of natural justice. It

would run counter to the doctrine of fairness in the matter of

determination of a lis between the parties.

47. We may also notice that in (2007) 1 SCC 174 : Sarbananda

Sonowal (II) vs. Union of India this Court having regard to the fact

that burden of proof was on the notice held :

\02356. Status of a person, however, is determined

according to statute. The Evidence Act of our

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country has made provisions as regards \023burden of

proof\024. Different statutes also lay down as to how

and in what manner burden is to be discharged.

Even some penal statutes contain provisions that

burden of proof shall be on the accused. Only

because burden of proof under certain situations is

placed on the accused, the same would not mean

that he is deprived of the procedural safeguard.\024

It was observed :

\02360. Having regard to the fact that the Tribunal in

the notice to be sent to the proceedee is required to

set out the main grounds; evidently the primary

onus in relation thereto would be on the State.

However, once the Tribunal satisfied itself about

the existence of grounds, the burden of proof

would be upon the proceedee.\024

Interpretative Approval

48. 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 it is 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.

49. The literal interpretation of the statute, if resorted to, would also

lead to the situation that it would not be necessary for the landlords in

any situation to plead in regard to its need for the public premises. It

could just terminate the tenancy without specifying any cause for

eviction.

50. Except in the first category of cases, as has been noticed by us

hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to

be construed differently in view of the decisions rendered by this

Court. If the landlord being a State within the meaning of Article 12

of the Constitution of India is required to prove fairness and

reasonableness on its part in initiating a proceeding, it is for it to show

how its prayer meets the constitutional requirements of Article 14 of

the Constitution of India. For proper interpretation not only the basic

principles of natural justice have to be borne in mind, but also

principles of constitutionalism involved therein. With a view to read

the provisions of the Act in a proper and effective manner, we are of

the opinion that literal interpretation, if given, may give rise to an

anomaly or absurdity which must be avoided. So as to enable a

superior court to interpret a statute in a reasonable manner, the court

must place itself in the chair of a reasonable legislator/ author. So

done, the rules of purposive construction have to be resorted to which

would require the construction of the Act in such a manner so as to

see that the object of the Act fulfilled; which in turn would lead the

beneficiary under the statutory scheme to fulfill its constitutional

obligations as held by the court inter alia in Ashoka Marketing Ltd

(supra).

51. Barak in his exhaustive work on \021Purposive Construction\022

explains various meanings attributed to the term \023purpose\024. It would

be in the fitness of discussion to refer to Purposive Construction in

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Barak\022s words:

\023Hart and Sachs also appear to treat \023purpose\024 as a

subjective concept. I say \023appear\024 because, although

Hart and Sachs claim that the interpreter should imagine

himself or herself in the legislator\022s shoes, they introduce

two elements of objectivity: First, the interpreter should

assume that the legislature is composed of reasonable

people seeking to achieve reasonable goals in a

reasonable manner; and second, the interpreter should

accept the non-rebuttable presumption that members of

the legislative body sought to fulfill their constitutional

duties in good faith. This formulation allows the

interpreter to inquire not into the subjective intent of the

author, but rather the intent the author would have had,

had he or she acted reasonably.\024

(Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87)

52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and

Ors., (2007) 6 SCC 81, this Court held:

\023The Parliament moreover is presumed to have enacted a

reasonable statute (see Breyer, Stephen (2005): Active

Liberty: Interpreting Our Democratic Constitution,

Knopf (Chapter on Statutory Interpretation - pg. 99 for

"Reasonable Legislator Presumption" ).\024

53. The provisions of the Act and the Rules in this case, are, thus

required to be construed in the light of the action of the State as

envisaged under Article 14 of the Constitution of India. With a view

to give effect thereto, the doctrine of purposive construction may have

to be taken recourse to. [See 2007 (7) Scale 753 : Oriental Insurance

Co. Ltd. vs. Brij Mohan and others.]

Conclusion:

54. Although the provisions of the Evidence Act are not applicable,

the underlying principles of Section 101 thereof would apply. In

Sarkar on Law of Evidence 16th Edition Volume 2 at pg. 1584 it is

stated as under:-

\023Principle and Scope .- This section is based on the

rule, ie incumbit probation qui dicit, non qui negat

\026 the burden of proving a fact rests on the party

who substantially asserts the affirmative of the

issue and not upon the party who denies it; for a

negative is usually incapable or proof. \023It is an

ancient rule founded on consideration of good

sense and should not be departed from without

strong reasons.\024 [per LORD MAUGHAM in

Constantine Line vs. I S Corpn. (1941) 2 All ER

165, 179]. This rule is derived from the Roman

law, and is supportable not only upon the ground

of fairness, but also upon that of the greater

practical difficulty which is involved improving a

negative than in proving an affirmative [Hals 3rd

Ed Vol 15 para 488].

(Emphasis supplied)

55. The said principle has been approved by this Court in (1983) 4

SCC 491: Shambhu Nath Goyal vs. Bank of Baroda and others ;

(1999) 8 SCC 744 :Garden Silk Mills Ltd. and another vs. Union of

India and others and (2007) 2 SCC 433 (para 18) : J.K. Synthetics Ltd.

vs. K.P. Agrawal and another.

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56. 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 Evidence Act

being not applicable, what is necessary to be complied with is the

principles of natural justice.

57. Even if we assume that in terms of the statutory provisions the

respondents must lead evidence first the same can be waived,

Appellant not only had filed affidavits in one of the cases but time and

again sought adjournments when the deponent of the affidavit was to

be cross-examined. Although the appellant had pleaded requirements

of the premises on an urgent basis, it kept on taking adjournments for

more than 2 years. Why the witnesses were not produced before the

Estate Officer for cross-examination for such a long time is not

known. Only after a long period, an application was filed asking the

respondents to show cause. Cause had already been shown by the

respondents. They pleaded that no case has been made out for their

eviction. We, therefore, fail to understand on what basis the Estate

Officer passed the order impugned before the High Court.

58. We, therefore, direct that both the parties must file their

documents within a week from today and the Estate Officer must give

both the parties inspection of the said documents within a week

thereafter. In the appeal arising out of SLP (C) No. 10348 of 2006 the

appellant must file the affidavits of its witnesses within two weeks

and thus shall be produced for cross-examination within one week

thereafter. In appeal arising out of SLP (C) No. 8232 of 2006 the

witnesses must be produced for cross-examination as expeditiously as

possible, but not beyond a period two weeks.

59. The proceedings before the Estate Officer, being summary in

nature, the cases must go on a day to day basis. The Estate Officer is

directed to pass a final order, as expeditiously as possible but not

beyond a period of 10 weeks from the date of receipt of a copy of this

order.

60. These appeals are dismissed with the aforesaid direction with

costs. Counsel fee in each case is assessed at Rs.25,000/- (Rupees

twenty five thousand only).