NEW INDIA ASSURANCE COMPANY LTD. v. NUSLI NEVILLE WADIA AND ANR

Citation: [2007] 13 S.C.R. 598

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

NEW INDIA ASSURANCE COMPANY LTD. v. NUSLI NEVILLE WADIA AND ANR.pdf

Judgment text

NEW INDIA ASSURANCE COMPANY LTD. _; v. L NUSLI NEVILLE WADIA AND ANR. DECEMBER 13, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] . Public Premises (Eviction of Unauthorized Occupants) Act, " 1971-ss. 4, 5 and 7-Proceedings under the Act-Dispute as to who shouldbegin to lead evidence in such proceedings-Held: Procedural aspect as to who should leadevidencefirst, may have to be determined on basis ofissues arising in the matter-When an application for eviction is basedon such grounds, which requireproduction ofpositive evidence on part ofthe landlord, it would befor it to adduce evidence first; more so in a composite application where evidence is also required to be led on quantum ofdamages to be determined by the Estate f - Officer-Interpretation of Statutes-Purposive construction- Evidence Act, 1872-s. 101-Constitution ofIndia, 1950-Art. 12. Appellant-company, a Statewithin the meaning ofArticle 12 ofthe Constitution,owns a building in the town ofMumbai.

Respondents are the tenants occupying two apartments in the said building. Notices for eviction of the tenants were issued under the provisions of Public Premises (Eviction ofUnauthorized Occupants) Act, 1971. Dispute arose as to who should begin to lead evidence in proceedings initiated under the Act. On behalfofthe appellant it was inter alia contended that having regard to the scheme ofthe Act and the Rules framed thereunder, the respondent-tenant should be directed to lead evidence and that the Estate Officer having satisfied itselfthatthe respondent-tenantwas in unauthorized occupation ofthe public premises, itwas for the tenant to establish that his occupation is authorized. NEVILLE WADIA Dismissing the appeals, the Court HELD: 1. 1. The procedural aspect as to who should lead evidence first, may have to be determined on the basis of the issues arising in the matter. [Para 35] [614-D] 1. 2.

The occupants ofpublic premises may be trespassers, ormight have breached the conditions oftenancy, or have been occupying the premises as a condition ofservice, but were continuing to occupy the premises despite cessation ofcontract ofservice. However, there may be anotherclass oftenantswho are required to be evicted on the ground, which requires proofofthe fairness and reasonableness on the part of C the landlord which may include requirement for its own use and occupation. [Paras 26 and 27] [613-B, CJ 1. 3. Furthermore a proceeding may be initiated under Section 4 simplicitorofthePublic Premises(Eviction ofUnauthorized Occupants) Act, 1971. A composite proceedings may also be initiated both under Sections 4 and 7ofthe Act. In the latter category ofcases the landlord would be required to establish not only the bonafide need on its part but also quantum ofdamages to which it may hold to be entitled to, in the event that an order is passed in favour ofthe establishment.

[Para 28] [613-D, E] 1. 4. When an application for eviction is based on such grounds, which require production ofpositive evidence on part ofthe landlord, 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 ofdamages to be determined by the Estate Officer. [Para 30) [613-F, G) 1. 5. There may be a case where the tenant may take a defence which discloses no primafacie case in which event the Estate Officer may askhim to lead evidence. But there may be cases wherethe ground ofeviction, having regard to the defence taken by the occupants, may be required to be gone into. [Para31] [613-G-H, 614-A] 1. 6. 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 effectiveshow cause.

An effectiveshow cause can ' be filedwhen eviction issoughtfora specified ground and theoccupants must know the particulars in relation thereto. For the said purpose, Sections 4and 5ofthe Act must be read together. Even theRules which are validly framed must be read alongwith the statutory provisions. [Paras 38 and 39] [615-A, B] lr '- Narendra Kumar Maheshwari v. Union ofIndia and Ors. , [1990] Supp SCC 440; Maharao Sahib Shir Bhim Singhjiv. Union ofIndia and Ors. , (1981] 1SCC166; JR. Raghupathy and Ors. v. State ofA. P. and Ors. , (1988] 4SCC 464; Uttam Parkash BansalandOrs. v. L. l C. a/India, (2002) 100 DLT 487; Punjab National Bankv. M/s. The Lord Krishna Paper Industries and Ors. , (1992) 2CLR 457; Dwarkadas Marfatia and Sonsv. BoardofTrustees ofthe PortofBombay, (1989] 3SCC293;Ashoka Marketing Ltd v. Punjab National Bank, (1990] 4 SCC 406; Brigadier Commandant, Meerutv. Gangaprasad, AIR 1956 All. 507 (DB); Jaggu ~- Singh v. Shakuat 58 CWN 1056 : Satish Chander v.

Delhi Improvement Trust Ali, (1957) 59 PLR621; Northern India Caterers Pvt. Ltd. v. State ofPunjab, (1967] 3 SCC 399; Magan/a/ Chagan/al v. Municipal Corporation, (1974] 2 SCC 402; Hari Singh v. Military Estate Officer, (1972) 2 SCC 259 and Accountant andSecretarial Services v. Union of India, (1988) 4SCC 324, referred to. Minoo Framroze Balsara v. Union ofIndia and Ors. , (1992) Bom 375 and StandardLiterature Co. Private Ltd andOrs. v. Union ofIndia, + - AIR (1968) Calcutta 1, referred to. 2. 1. Ifsome facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. Thewitness 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 ofthe principle ofnaturaljustice should be held to be indefeasible right. [Para 44) (618-C, DJ 2. 2.

It is axiomatic that when in support of its case the landlord intends to rely upon adocumentwhich is to be taken on record, itwould be obligatory on the part oftheEstate Officerto allow inspection thereof NEVILLE WADIA 1- • to the noticee. Denial ofsuch inspection ofdocuments shall beviolative ofthe principle ofnatural justice. Itwould run counterto thedoctrine of fairness in the matter ofdetermination ofa lis between the parties. [Para 46) [618-G; 619-A] KL. Tripathi v. State BankofIndia andOrs. , [1984) 1SCC43 and Lakshman Exports Limitedv. Collector ofCentral Excise, (2005) 10 634, . > .. relied on. Bareilly ElectricitySupply Co. Ltd. v. The Workmen, [1972) 1SCR 241 andSarbanandaSonowal (II) v. Union ofIndia, [2007) 1SCC174, referred to. 3. 1. Section 5ofthe Act, on a plain reading, would place the entire onus upon a noticee.

It, in no uncertain terms, states that once notice underSection 4is issued by the Estate Officeron formation ofhis opinion -~ as envisaged therein it is for the noticee not only to show cause in respect thereofbut also adduce evidence and make oralsubmissions in support ofhis case. Literal meaning in a situation ofthis nature would lead to 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. This is not contemplated in law.

" ~ When a landlord files an application, itin 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. [Para 48) (619-E, F, G; 620-A) 3. 2. The literal interpretation ofthe statute, ifresorted to, would also lead to the situation that itwould 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. [Para49) (620-A,B) 3. 3. Ifthe landlord, being a State within the meaning ofArticle 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 ofArticle 14 of the Constitution.

For proper interpretation notonly 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 oftheActin a properand effectivemanner, literalinterpretation, ifgiven, may give rise to an anomaly or absurditywhich must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itselfin the chairofareasonable legislator/author. So done, the rules ofpurposive construction have to be resorted to which would require the construction ofthe Act in such a manner so as to see thattheobjectoftheActfulfilled; which in turnwould lead thebeneficiary under the statutory scheme to fulfill its constitutionalobligations. [Para 50] [620-C, D, E, FJ 3. 4. The provisions ofthe Act and the Rules in this case, are, thus required to be construed in the light of the action of the State as envisaged underArticle 14 ofthe Constitution.

With aview to give effect thereto, the doctrine of purposive construction may have to be taken recourse to. [Para53] [621-E] 3. 5. Although the provisions ofthe EvidenceActare notapplicable, the underlying principles ofSection 101 thereofwould apply. [Para54] [621-F] Ashoka Marketing Ltdv. Punjab National Bank, [1990] 4SCC 406, -1 • relied on. BharatPetroleum Corpn. Ltd v. MaddulaRatnavalli andOrs. , [2007] 6 SCC 81; Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. , (2007) 7 Scale 753; Shambhu Nath Goyal v. Bank ofBaroda and Ors. , [1983) 4 SCC491; GardenSilkMillsLtd. andAnr. v. Unionof! ndiaandOrs. , [1999] 8 sec /44 and JK Synthetics Ltd. v. KP. Agrawal andAnr. , [2007) 2 sec 433, referred to. Aharon Barak, Purposive Interpretation in Law, (2007) pg. 87 and Sarkar on Law ofEvidence 16th Edition Volume 2, pg. 1584, referred to. 4. In the present case, even if it is assumed that in terms of the statutory provisions the respondents must lead evidencefirst the same can bewaived.

Appellantnot only had filed affidavits in one ofthe cases but time and again sought adjournments when the deponent of the affidavitwas to be cross-examined. Although the appellant bad pleaded requirements of the premises on an urgent basis, it kept on taking adjournments for more than 2 years. Why the witnesses were not B produced beforetheEstate Officerforcross-examinationfor such 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. [Para57] [622-E,F,G] CML APPELLATE JURISDICTION : Civil Appeal No. 5879 of 2007. From the final Judgment and Order dated 03. 03. 2006 ofthe High Court ofJudicature at Bombay in Writ Petition No. 361 of2006. WITH C. A. Nos 5871 of2007. P. N. Lekhi, Samar Bansal, Rajan Chaurasia, Lokesh Kumar and M. K. Garg for the Appellant. F. S. Nariman, Anil Divan and Shyam Divan, Parag Gandhi, R. N.

Karanjawala, Nandini Gore, Debmalya Banerjee, Simran Brar, Manik Karanjawala, Mashesh Agarwala, Rishi Agrawala and E. C. Agrawala for the Respondents. The Judgment ofthe Court was delivered by S. B. SINHA, J. l. Leave granted. Introduction 2. Who should begin to lead evidence in a proceeding under the Public Premises (Eviction ofUnauthorised 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 ofArticle 12 ofthe 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 ofeach matter in briefseparately. l' · ~ Facts in appeal-Nusli Neville Wadia and Anr. 4. In this appeal a notice terminating the tenancy offirst respondent was issued on 9th February, 2001.

However, on the premise that no ground ofeviction had been mentioned therein, another notice was issued on 18th February, 2002 enumerating the grounds ofeviction. 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 ofthe 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 ofthe first respondent is unauthorized and that an order ofeviction may have been passed against it issued a show cause notice to respondent No. 1 on 28th July, 2003 under Section 4 ofthe Act. The grounds for first respondent's eviction as set out in the application were :- "l. The New India Assurance Co. Ltd. needs and requires the 1 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 ; ~ . ). Increase in blisiness, globalization ofeconomy and liberalization ofpolicies have necessitated the New India Assurance Co. Ltd. to use and occupy the New India Assurance Co. Ltd. 's own properties ; 4. The tenancy of Respondent No. 1has been duly terminated by the New India Assurance Co. Ltd. 's notice dated ;. 18. 02. 2002; 5. Respondent No. I is a rich and wealthy industrialist who has several flats for his residence. " 6. Notice was also issued on the same date i. e. 28th July, 2003 under the provisions ofSection 7(3) ofthe 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 fiie an affidavit ofevidence. The matter was adjourned for cross-examination ofthe first respondent's ''-··'", witnesses by the appellant's 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 ofevidence. 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. I was inducted as a licensee in a furnished flat in an apartment in the said building. The period oflease was for 5 years beginning from 1st October,. 1994. Allegedly on the premise that the respondent No. I 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 ofrespondent No. I was terminated by the appellant. As the said notice did not contain any ground for tennination oftenancy, another notice was issued on 18th February, 2002.

Composite application was filed by the appellant under Sections 4 and 7 ofthe 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 tenns of Section 4 and 7(3) ofthe Act on 21st February, 2003. 9. Before the Estate Officer, the appellant filed its affidavits of evidence. Dates after dates were fixed for cross-examination of the witnesses ofthe 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:- "the Opposite Party be directed to show cause to the Statutory Notice issued by the erstwhile Learned Estate Officer under sections 4 and 7 ofthe PP Act and the case submitted by the Applicants. " By order dated 30th January, 2006 the Estate Officer directed the first respondent to lead evidence by the following order :- "Both applications disposed of. Application dated 22nd August, 2005 ofthe 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 ofdocuments, ifany, by 28. 02.

2006 and adjourn the matter to 03. 03. 2006 at 3. 30 p. m. for further directions. " I0. Aggrieved by and dissatisfied therewith, the Respondent Nos. 1and 2 filed a writ petition before the High Court being W. P. No. 557 of2006 which has been allowed by reason ofthe impugned order. Contentions 11. Mr. P. N. Lekhi, learned senior counsel appearing on behalfof the appellant inter alia submitted: (i) Having regard to the scheme ofthe 1971 Act and the Rules framed thereunder the respondent-tenant should have been directed to lead evidence. (ii) The Estate Officer having satisfied itselfthat the respondenttenant was in unauthorized occupation ofthe public premises, it was for the tenant to establish that his occupation is authorized.

(ill) The premises in question being apublic premises the Noticee does not enjoy any protection as envisaged under the C provisions ofthe Maharashtra Rent Control Act, 1999 and in that view ofthe matter termination oftenancy itselfis 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 ofthe Code ofCivil 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 ofthe 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 ofthe 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 G ofthe first respondent in Civil Appeal arising out ofSLP (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 ofbeing in occupation without any authority therefor which is governed • by the first part of Section 4 ofthe Act; and second, those who have continued in occupation ofpublic premises as Rent Control Acts permitted them to continue to occupy but in respect whereof the tenancy has been terminated "for any reason whatsoever" as envisaged in Section 2(g) ofthe Act.

(b) Whereas in the first group ofcases the onus ofproofwould 1 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 bonafide need, although the provisions ofthe Code ofCivil Procedure and the Evidence Act stricto sensu are not applicable, having regard to the statutory scheme as also the principles ofnatural justice which are required to be complied with. (c) As the Act and the Rules envisage a ! is between the parties t > 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 ! is cannot ordinarily be directed to prove a negative and in that view ofthe 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 ofrespondent Nos.

l and 2 in Civil Appeal arising out of SLP (C) No. l0348 of2006 submitted that: (l) As a composite application for eviction as also the damages has been filed and a composite notice having been issued, the onus ofprooflay upon the appellant. (2) Appellant having filed an affidavit ofits 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 ofthe said witnesses, could not have gone back thereupon and contended that it was for the respondents to lead evidence. (3) As the principle ofnatural justice contemplate cross-examination ofthe witnesses as also inspection ofdocuments, the High Court cannot be said to have committed an error in passing the impu. :,oned judgment THE ACT 14. Indisputably the respondents herein are not protected tenants • t under the provisions ofthe Maharashtra Rent Control Act, 1999. 15.

Section 15 ofthe Act bars the jurisdiction of a civil court or any other court to entertain any proceedings in respect ofeviction ofany person who is in unauthorized occupation ofany 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 :- "Section 4 - Issue ofnotice to show cause against order ofeviction - (I) Ifthe estate officer is ofthe 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 ofeviction should not be made.

(2) The notice shall-- (a) specify the grounds on which the order ofeviction 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 ofthe cause shown, and also for personal hearing, ifsuch hearing is desired. (3) The estate officer shall cause the notice to be served by having 1 .. it affixed on the outer door or some other conspicuous part ofthe 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. " 17.

Section 5 deals with the procedure for eviction ofunauthorized " occupants. It reads :- "Section 5 - Eviction of unauthorised occupants. - (I) If, after +.... considering the cause, ifany, shown by any person in pursuance ofa notice under section 4 and any evidence produced by him in support ofthe same and after personal hearing, ifany, 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 ofthe order to be affixed on the outer door or some other conspicuous part ofthe public premises.

(2) If any person refused O'r fails to comply with the order of eviction on or before, the date specified in the said order or within fifteen days ofits publication under sub-section (I) whichever is later, the estate officer or any other officer duly authorized by the estate officer in this behalfmay evict that person from, and take v possession of, the public premises and may, for that purpose, use )such force as may be necessary. " 18. Section 7 empowers the Estate Officer to require payment of A rent or damages in respect ofpublic premises by the person who is in unauthorized occupation thereof. 19. Section 9 provides for appeal from an order ofthe Estate Officer. THE RULES; 20. Rules have been framed by the Central Government in exercise ofits powers under Section 18 ofthe Act known as the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971. Rule 5, which is material for these appeals reads as under :- "5. Holding ofinquiries.

-(1) Where any person on whom 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 ofsuch evidence and any relevant documents filed before him shall fonn part ofthe records ofthe 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 ofthe Maharashtra Rent Control Act, 1999, it is accepted that the action ofthe part ofthe landlord, which is a State within the meaning ofArticle 12 ofthe Constitution oflndia must in this behalfbe fair and reasonable. In other words the action ofthe State in terms ofthe provisions ofthe 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 ofthe 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 ,A~ 23rd July, 2003, the relevant portion whereofreads as under :- "3. 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 vi. de OM No. 2101i/790 Pol. 1 IV. H. 11 dated 07. 07. 1993 that the guidelines are meant for genuine non affluent tenants and these are not i applicable to the large business houses and commercial entrepreneurs. " 22. Issuance of such guidelines, however, is not being controlled by stahltory provisions.

The effect thereofis advisory in character and thereby no legal right is conferred upon the tenant. (See [1990) (Supp) SCC 440 at 508 : Narendra Kumar Maheshwari v. Union ofIndia and Ors; [1981) 1 SCC 166 at 232: Maharao Sahib Shir Bhim Singhji v. Union ofIndia and Ors; [1988) 4 SCC 464 (paragraph 31): JR. Raghupathy +. and Ors. v. State ofA. P. and Ors; (2002) 100 DLT 487 : Uttam Parkash Bansal and Ors. v. L. LC. o. fIndia, and (1992) 2 CLR 457: Punjab National Bank v. Mis. The Lord Krishna Paper Industries and Ors. 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 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 ofthe Act, the ~, noticee may show cause. Section 5 ofthe Act postulates that an order of eviction must be passed only upon consideration ofthe show cause and any evidence produced by him in support ofits case also upon giving him personal hearing, ifany, as provided under clause (ii) ofsub-section 2 of Section 4 ofthe Act. 25. Although Section 5ex-facie does not make any classification in regard to the two classes oftenancies but the same is evident from the decisions rendered by this Court as also by the different High Courts. 26.

The occupants ofpublic 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 ofcontract ofservice. 27. However, there may be another class oftenants who are required to be evicted not on any ofthe grounds mentioned hereinbefore but inter alia on the ground, which requires proofofthe fairness and reasonableness on the part ofthe landlord which may include requirement for its own use and occupation. 28. Furthermore a proceeding may be initiated under Section 4 D simplicitor. A composite proceedings may also be initiated both under Sections 4 and 7 ofthe Act. In the latter category of cases the landlord would be required to establish not only the bonafide need on its pm1 but also quantum of damages to which it may hold to be entitled to, in the event that an order is passed in favour ofthe establishment. 29.

Admittedly in these cases two notices for eviction were issued. Ifthe contention ofMr. Lekhi is correct, the first notice was notrequired to be withdrawn and the second notice was not required to be issued, specifying the grounds on which the eviction ofthe respondents were sought for. 30. When an application for eviction is based on such grounds, which require production ofpositive evidence on part ofthe 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 ofdamages to be determined by the Estate Officer. 31. There may be acase where the tenant may take a defence which discloses no primafacie case in which event the Estate Officer may ask him to lead evidence. But there may be cases where the ground ofeviction, having regard to the defence taken by the occupants, may be required to , be gone into. 32. Appellant's 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 ofthe evidence. Summary ofthe evidence and the documents shall also form part ofthe record ofthe proceedings. 34. Procedure laid down for recording evidence is stated in the Rules. The Estate Officer being a creature ofthe statute must comply the same. When notice is issued, the occupant ofthe public premises would not only be entitled to show cause but would also be entitled to produce evidence in support ofthe cause shown. CONCEPT OF FAIRNESS 35. The procedural aspect as to who should lead evidence first, thus may have to be determined on the basis ofthe issues arising in the matter.

When we say so, we do not mean that the procedure involved being a surnmary 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 "unauthorized occupant"; and intermediate inquiry would be as to the eviction of "unauthorized occupant". 37. The question has been succinctly dealt with by a Division Bench of the Bombay High Court in: Minoa Framroze Balsara v. Union of India and others, (1992 Born 375) wherein Bharucha, J. (as the learned )>-' ChiefJustice 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 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 ofthe Act must be read B' 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 ofthe Calcutta High Court in AIR 1968 Calcutta 1 : Standard Literature Co. Private Ltd. and Ors. v.

Union ofIndia, but with a view to interpret the provisions ofthe Act, we must take into consideration the decisions ofthis Court laying down the concept of'bona fide act' and the 'fair action' on the part ofthe owner as laid down in [1989] 3 SCC 293 Dwarkadas Marfatia and Sons v. Board a/Trustees ofthe Port ofBombay and [1990] 4 SCC 406 : Ashoka Marketing Ltd v. Punjab National Bank 40. In Dwarkadas Marfatia (supra) this Court clearly held that "the public authorities which enjoy this benefit without being hidebound by the requirements ofthe Rent Act rrust act for public benefit. Hence, to that extent, that is liable to be gone into and can be the subject matter of adjudication". Dwarkadas Marfatia was applied inAshoka Marketing (supra) stating :- "69.

It has been urged by the learned counsel for the petitioners that many ofthe corporations referred to in Section 2( e )(2)( ii) ofthe Public Premises Act, like the nationalised banks and the Life Insurance Corporation, are trading corporations and under the provisions ofthe enactments whereby they are constituted these corporations are required to carry on their business with view to earn profit, and that there is nothing to preclude these corporations to buy property in possession oftenants 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 ofproperty in possession oftenants is much less as compared to vacant property. We are unable to cut down the scope ofthe provisions ofthe Public Premises Act on the basis ofsuch an apprehension because as pointed out by this Court in Dwarkadas Marfatia and Sons v. Board ofTrustees ofthe Port ofBombay, (SCC p.

306, para 27) "... every activity ofa public authority especially in the background ofthe assumption on which such authority enjoys immunity from the rigours ofthe Rent Act, must be informed by reason and guided by the public interest. All exercise ofdiscretion or power by public authorities as the respondent, in respect ofdealing with tenants in respect ofwhich they have been treated separately and distinctly from other landlords on the assumption tlmt they would not act as private landlords, must be judged by that standard. " These observations were made in the context ofthe provisions of . , •. the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947whereby exemption from the provisions ofthe Act has been granted to premises belonging to the Bombay Port Trust.

The consequence of giving overriding effect to the provisions ofthe Public Premises Act is that premises belonging to companies and statutory bodies referred to in clauses (2) and (3) ofSection 2(e) ofthe Public Premises Act would be exempted from the provisions ofthe Rent Control Act. The actions ofthe companies and statutory bodies mentioned in clauses (2) and (3) of Section 2( e) ofthe 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 ofthe Act as also its predecessors' Act being Public Premises (Eviction ofUnauthorised 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 v. Gangaprasad; 58 CWN 1056 : Jaggu Singh v. Shakuat Ali and (1957) (59) PLR 621 : Satish Chander v.

Delhi Improvement Trust. 1950 Act was repealed by the Public Premises (Eviction ofUnauthorised Occupants) Act, 1958 wherein, however the jurisdiction ofthe civil court was not barred. A Constitution Bench of this Court in [1967] 3 SCC 399: Northern India Caterers Pvt. Ltd v. State ofPunjab held Section 5 thereofto 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 ofthe Statutory Authorities to resort to one or the other procedure. Northern India Caterers Pvt. Ltd (supra), however, was overruled by a Bench of 7 C Judges of this Court in [1974] 2 SCC 402: Maganlal Chaganlal v. Municipal Corporation. We must also notice that 1958 Act was struck down by Delhi High Court in P. L. Mehra v. D. R. Khanna (Civil Writ No. 431 of 197). , 'r 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 v. 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 v. Union ofIndia challenge to the validity ofthe Act on the premise that one ofthe officers ofthe Statutory Authority may be appointed as an Estate Officer and thus violative ofArticle 14. However, the Court negatived the challenge and observed: "32. Dr Chitale, while initially formulating his contentions, outlined an argument that the provision in the 1971 Act appointing one of the officers ofthe respondent Bank as the Estate Officer is violative ofArticle 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 ofthe 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 H 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. " 43. It was on the aforementioned premise that the dicta laid down inAshoka Marketing Ltd. (supra) must be considered wherein this Court held that the Act overrides Delhi Rent Control Act, 1958, although both were Acts ofParliament. Natural Justice Issue: 44.

Ifsome 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 ofthe principle ofnatural justice should be held to be indefeasible right. [See i ' [1984] I SCC 43 : KL. Tripathi v. State Bank ofIndia and Ors. , and 2005 (10) 634: Lakshman Exports Limited v. : Collector ofCentral Excise] 45. We may also take note of the fact that this Court in [1972] 1 SCR 241 : Bareilly Electricity Supply Co. Ltd. v. The Workmen this Court held as under:- "The application ofthe principle ofnatural 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 crossexamination by the party against whom they are sought to be used. " 46. It is axiomatic that when in support ofits case the landlord intends l to rely upon a document which is to be taken on record, it would be obligatory on the part ofthe Estate Officer to allow inspection thereofto the noticee. Denial ofsuch inspection ofdocuments shall be violative of the principle of natural justice. It would run counter to the doctrine of fairness in the matter ofdetermination ofa ! is between the parties. 47. We may also notice that in [2007] 1 SCC 174: Sarbananda Sonowal (II) v. Union ofIndia this Court having regard to the fact that burden of proof was on the notice held : "56. Status of a person, however, is determined according to statute.

The Evidence Act ofour country has made provisions as + regards "burden of proof'. 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 ofproof shall be on the accused. Only because burden ofproofunder certain situations is placed on the accused, the same would not mean that he is deprived ofthe procedural safeguard. " It was observed : , r "60. 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 tl1e prin1ary onus in relation thereto would be on the State. However, once the Tribunal satisfied itselfabout the existence of grounds, the burden of proof would be upon the proceedee. " blte1pretative Approval 48. Section 5 ofthe Act, on a plain reading, would place the entire onus upon a noticee. It, in no uncertain terms, states that once a notice .

r under Section 4 is issued by the Estate Officer on formation ofhis opinion as envisaged therein it is for the noticee not only to show cause in respect thereofbut also adduce evidence and make oral submissions in support ofhis case. Literal meaning in a situation ofthis nature would lead to 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 constmction 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 ofthe statute, ifresorted 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 ofcases, 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 ofthe decisions rendered by this Court. Ifthe landlord being a State within the meaning of Article 12 of the Constitution oflndia 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 ofArticle 14 ofthe Constitution ofIndia. For proper interpretation not only the basic principles ofnatural justice i • have to be borne in mind, but also principles ofconstitutionalism involved therein.

With a view to read the provisions ofthe Act in a proper and effective manner, we are ofthe opinion that literal interpretation, ifgiven, 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 itselfin the chair ofa reasonable legislator/ author. So done, the rules ofpurposive construction have to be resorted to which would require the construction ofthe Act in such a manner so as to see that the object ofthe 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 'Purposive Construction' explains various meanings attributed to the term "purpose". It would be in the fitness ofdiscussion to refer to Purposive Construction in Barak's words: "Hart and Sachs also appear to treat "purpose" as a subjective concept.

I say "appear" because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the iegislator's shoes, they introduce two elements ofobjectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members ofthe legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent ofthe author, but ratherthe intent the author would have had, had he or she acted reasonably. " (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: "The Parliament moreover is presumed to have enacted a D ; t reasonable statute (see Breyer, Stephen (2005): Active Liberty: Interpreting Our Democratic Constitution, Knopf (Chapter on Statutory Interpretation - pg. 99 for "Reasonable Legislator Presumption"). " 53. The provisions of the Act and the Rules in this case, are, thus required to be construed in the light ofthe action ofthe State as envisaged under Article 14 ofthe Constitution ofIndia. 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. v. ~~~~fu] Conclusion: 54. Although the provisions ofthe Evidence Act are not applicable, the underlying principles of Section 101 thereofwould 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 affinnative ofthe 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 v. IS Corpn. [1941] 2 All ER 165, 179]. This rule is derivedfrom the Roman law, and is supportable not only upon the ground offairness, but also upon that of the greater practical difficulty which is involved improving a negative than in proving an affirmative [Hals 3rd Ed Vol I5 para 488}. · (Emphasis supplied) 55. The said principle has been approved by this Court in [1983] 4 SCC 491: Shambhu Nath Goyal v. Bank ofBaroda and Ors. , [1999] 8 SCC 744 : Garden Silk Mills Ltd and Anr. v. Union ofIndia and Ors. , [2007] 2 SCC 433 (para 18) and JK. Synthetics Ltd v.

KP. Agrawal and Anr. i . 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 ofthe Code of Civil Procedure and Evidence Act being not applicable, what is necessary to be complied with is the principles of naturaljustice. 57. Even ifwe assume that in terms ofthe statutory provisions the . respondents must lead evidence first the same can be waived, Appellant " not only had filed affidavits in one ofthe cases but time and again sought adjournments when the deponent of the affidavit was to be crossexamined. 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. r 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 ofthe said document~ within a week thereafter. In the appeal arising out of SLP (C) No. 10348 of 2006 the appellant B must file the affidavits ofits witnesses within two weeks and thus shall be produced for cross-examination within one week thereafter. In appeal arising out ofSLP (C) No. 8232 of2006 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. t t 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). B. B. B. Appeals dismissed.