TMI Blog2007 (12) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2007 and CIVIL APPEAL NO. 5871 OF 2007 - - - Dated:- 13-12-2007 - S.B. SINHA AND HARJIT SINGH BEDI, JJ. JUDGMENT 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 the Act) 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 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 prayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 licence by giving two months 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 those who are in unauthorised occupation in the sense of being in occupation wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rised Occupants) Rules, 1971. Rule 5, which is material for these appeals reads as under :- 5. Holding of inquiries. (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. 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 Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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: the 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. 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. Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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. Constitutional Backdrop 41. Constitutional validity of the Act as also its predecessors 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions do not, therefore, suffer from any infirmity. In fact, Dr Chitale did not pursue this objection seriously. 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 K.L. Tripathi vs. State Bank of India and others 1984 (1) SCC 43 and Lakshman Exports Limited Vs.: Collector of Central Excise 2005 (10) 634] 45. We may also take note of the fact that this Court in Bareilly Electricity Supply Co. Ltd. vs. The Workmen 1972 (1) SCR 241 this Court held as under :- The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Oriental Insurance Co. Ltd. vs. Brij Mohan and others 2007 (7) Scale 753.] 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:- Principle and Scope .- This section is based on the rule, ie incumbit probation qui dicit, non qui negat 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. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reasons. [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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