Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.App.80.18
Received on : 12/02/2018
Registered on : 19/03/2018
Decided on : 31/01/2020
Duration : Y M D
01 10 12
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Misc.Appeal No.80 of 2018
Dilip Amritlal Doshi
Hindu, India inhabitant
of Mumbai, aged about 65
years, having his address at
shop no.3, A Wing, Girgaon
Mukhya Daak Ghar, 123,
V.P. Road, Mumbai-4 ..Appellant
V/s.
1) The Post Master General
Mumbai Region, through
Estate Ofcer & APMG (MR)
Presenting Ofcer & ASP
ofce of SSPO' Ss Mumbai
South Division, Mumbai-1
2) The Estate Ofcer and Asst.
Post Master General,
Mumbai Region, 3rd foor,
Dadar Head Post Ofce
Building, Mumbai-14 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 31st January,2020
(C.R.No.19)
Advocate Mr.Ketan Parekh h/f. Mr.K.R. Parekh & Co. for appellant.
Advocate Mr.Shriram Redij for respondents.
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2 Misc.App.80.18
O R A L J U D G M E N T
The order dated 24th January,2018 of eviction and
damages passed by the Estate Ofcer under Section 5 and 7 of the
Public Premises (Eviction of Unauthorised Occupants) Act,1971 (“the
Act” for short) has been assailed in the present appeal.
2 The brief facts, which can be gathered from the record and
proceedings of the Estate Ofcer are as under:
The respondent no.1 purchased the building situated on C.S.
no.1476 by registered Conveyance Deed dated 31st March,1967 from
Govindram Sivnarayan Rungta without any encumbrances. One
Baijnath Shreenath was found in possession of shop no.3 in the said
building. Now, the appellant is found to be in occupation of the
premises unauthorisedly and without any authority from respondent
no.1. Therefore, the appellant is unauthorised occupant. The
respondent requires the building for bona fde use. The proceeding
were initiated under the Public Premises Act by issuing notices under
Section 4 as well as 7 of the Act for eviction and damages.
3 The appellant replied the said notices. The case of the
appellant before the Estate Ofcer is that Baijnath Shreenath was
erstwhile tenant of suit shop from 1944 and was carrying on business
in the name and style of M/s. Young India Dying and Printing Works.
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Baijnath Srinath died in the year 1946 leaving behind his wife
Smt.Bannibai Baijnath and she was occupying the suit shop by Deed
of Partnership dated 18th December,1950, the partnership was formed
by the father of appellant with Bannibai Baijnath and partnership
business continued in the suit shop till Amritlal Amarchand Doshi, the
father of the appellant expired on 4th October,1976. Now Deed of
Partnership came to be executed between Bannibai and the appellant
on 4th October,1976 and since then the said business is continued.
Smt.Bannibai Baijnath died in the year 2007. She executed a Will
dated 29th December,2005 bequeathing all her properties to the
appellant including the right in suit shop. The original tenant Bannibai
was sole owner from 1944. Therefore, the suit shop is not a public
premises.
4 Alongwith reply to the notice, the appellant had fled all
relevant documents before the Estate Ofcer. The inquiry before the
Estate Ofcer was culminated in passing of impugned order of eviction
and damages of Rs.8,62,788/- to be paid by the appellant to
respondent. Feeling aggrieved with the said order, the present appeal
came to be fled.
5 It is contended on behalf of learned advocate for appellant
that the original tenant Baijnath Srinath was erstwhile tenant of
Govindram Sivnarayan Rungta since 1944. Respondent no.1
purchased the property from Govindram Sivnarayan Rungta in the
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4 Misc.App.80.18
year 1967 whereas the original tenant was in occupation of the suit
shop from the year 1944. He was governed by Bombay Rent Act prior
to premises in question became public premises and, therefore, the
Act will not be applicable to the case of appellant. To buttress his
submission, he seeks to place reliance on Suhas H. Pophale V/s.
Oriental Insurance Company Limited and its Estate Ofcere
reported in (2014) 4 Supreme Court Cases 657 and Preeti
Bhatt (Dr.) V/s. Central Bank of India reported in
2017(6)Bom.C.R. 404.
6 The learned advocate for appellant contends that after
demise of original tenant Baijnath Srinath, his widow Bannibai Baijnath
Agarwal became tenant. Even prior to purchase of the property by the
respondent and since Amritlal Amarchand Doshi the father of
appellant was partner of a frm which was being run in the said
premises since 1950 and after demise of Amritlal Doshi, the present
appellant by virtue of second Partnership Deed in the year 1976
became the partner of said frm and after the death of Bannibai in the
year 2007, the present appellant is in occupation of the said shop.
Therefore, the protection which was available to original tenant and
Bannibai will be extended to the present appellant being found in
occupation of the said shop as well as by virtue of Will executed by the
deceased Bannibai in favour of the appellant. According to learned
advocate for the appellant, no opportunity of hearing was given and
the principal of natural justice has not been followed, therefore the
matter needs to be remanded back by setting aside the impugned
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5 Misc.App.80.18
order.
7 Per contra, learned advocate for respondent, vehemently
submits that the suit shop is public premises within the meaning of Act
as it is owned by the Government of India through respondent no.1
and according to him, Public Premises Act is applicable to the
Government premises. He further submits that the ratio laid down in
Suhas Pophale' Ss case is not applicable to the present case. According
to him, the Bombay High Court in two separate judgments has
distinguished the judgment in case of Suhas Pophale. According to
him, the Maharashtra Rent Control Act is not applicable to the suit
shop much less to be appellant. According to him, after the death of
Bannibai, his occupation become unauthorise and the tenancy cannot
be transferred in the name of appellant. According to him the Estate
Ofcer has passed well reason order. He placed reliance on Board of
Trustees of Port of Mumbai V/s. New India Assurance Co.
Ltd.e reported in 2018(5) Mh.L.J.754e Rani Sevakram (since
deceased) by heirs and L.Rs. Purva alias Urvashi Suresh
Jahangiani and others V/s. Oriental Insurance Co. Ltd. And
otherse reported in 2017(4)Mh.L.J. 307 and Anandram
Chandanmal Munot and another V/s. Bansilal Chunilal Kabra
(since deceased) through L.Rs. and otherse reported in
(2000)1 Supreme Court Cases 10.
8. In view of the submissions before me, following points
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6 Misc.App.80.18
arise for my consideration and I have given my fndings against each
of them for the reasons to follow:
POINTS FINDINGS
1) Whether the impugned order is
passed after following the principles ..In the negative
of natural justice?
2) Whether the impugned order
dated 24/01/2018 passed by the ..In the negative
Estate Ofcer is just, legal
and proper?
3) What Order? ..As per fnal order
R E A S O N S
Point nos.1e 2 and 3:
9. Perusal of record and proceedings show that initially a
notice dated 24th June, 2016 was issued under Section 4 of the Act by
the Estate Ofcer. Pursuant to said notice, the appellant submitted his
reply along with the documents. Then notice under Section 12 of the
Act seeking information in the form of documents from the appellant,
came to be issued. Thereafter, notice under Section 7 of the Act
asking the appellant to show cause that why the damages for
unauthorized occupation should not be granted and by issuing notice
under Section 7 sub-Section 3 of the Act, the appellant was asked why
the order of damages of Rs.8,62,778/- should not be passed towards
unauthorized use and occupation of the said premises.
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7 Misc.App.80.18
10. Lastly, by impugned order dated 17th October, 2018, the
Estate Ofcer directed appellant to damages of Rs.8,62,778/- with
simple interest @ 4% p.a, and to vacate the suit shop on the ground of
unauthorized occupation and bona fde need of landlord i.e.
upgrading existing facilities for the members of public staf and for
expansion of public services like setting up branch of India Post
Payment Bank, Aadhar card and other ancillary services.
11. Scrutiny of the record and minutes of proceeding of the
inquiry conducted by the Estate Ofcer reveals all the time, after
taking documents on record submitted by the parties, the parties were
told that the proceeding of the day came to an end and the decision
will be communicated soon. Record further reveals that no evidence,
either of the appellant or any of the respondent has been led. The
Estate Ofcer, without there been oral evidence, only on the basis of
the documents i.e. agreement, property card, and extract of survey
register determined the unathorised occupation, bonafde requirement
and quantum of damages.
12. Under the Public Premises (Eviction of Unauthorised
Occupants) Act,1971 multi-level inquiry is required to be conducted, to
arrive at a conclusion on “unauthorised occupants”, to determine the
damages and to the eviction of “unauthorised occupant”. Procedure
of holding inquiry is mentioned in Rule 5 of the Public Premises
(Eviction of Unauthorised Occupants )Rules 1971 which reads as
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8 Misc.App.80.18
under:
Rule 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 Ofcer shall record the summary of the
evidence tendered before him. The summary of such
evidence and any relevant documents fled before him shall
form part of the records of the proceedings.
13. No doubt, the objects of the Act is to provide a speedy
remedy; The Estate Ofcer is expected to arrive at a decision,
expeditiously. Although the provisions of The Code of Civil Procedure
and The Evidence Act are not strictly applicable to the proceeding
before the Estate Ofcer, what is necessary to be complied with
during the inquiry, the principles of natural justice. Needless to
mention that in the catena of the judgments Bombay High Court and
the Apex Court have held that in inquiry before him, the Estate Ofcer
has to follow the principle of the natural justice.
14. The statute does not require a lengthy hearing or a
lengthy cross-examination, but the principle of nature justice has to be
followed. Though summarily, but like any other inquiry the principles
like proving of the fact by oral evidence and opportunity to show
cause, efectively to noticee by his evidence or at least by way of
cross examination of opponent, are also applicable to the proceeding
before the Estate Ofce.
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15. In a case of Bareilly Electricity Supply Co. Ltd.
v. Workmen the apex Court held as under:(1971) 2 SCC
p.629e para 14)
“14.......the application of 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
materials 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.”
16. In a case of K.L. Tripathi v. SBI and Lakshman
Exports Ltd. v. CCE reported in (2005) 10 SCC page 634
the Apex court has held,
“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.”
17. In the case of New India Assurance Company Ltd.
V/s. Nusli Neville Wadia and another reported in (2008)3
Supreme Court Cases 279e the Apex Court has dealt the manner
and procedure for inquiry by the Estate Ofcer and while interpreting
Section 4 and 5 of the Act, the Apex Court in paras 49 and 50 has
held as under:
“49. Section 5 of the Act, on a plain reading, would place
the entire onus upon a noticee. It, in no uncertain terms,
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10 Misc.App.80.18
states that once a notice under Section 4 is issued by the
Estate Ofcer on formation of his opinion as envisaged
therein it is for the noticee not only to show cause in
respect thereof but also adduce evidence and make oral
submissions in support of his case. Literal meaning in a
situation of this nature would lead to a conclusion that the
landlord is not required to adduce any evidence at all nor
is it required even to make any oral submissions. Such a
literal construction would lead to an anomalous situation
because the landlord may not be heard at all. It may not
even be permitted to adduce any evidence in rebuttal to
the one adduced by the noticee nor it would be permitted
to advance any argument. Is this contemplated in law?
The answer must be rendered in the negative. When a
landlord fles an application, it in a given situation must be
able to lead evidence either at the frst 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.
50. 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.”
The Apex Court in paras 54 and 55 further held as under:
“54. 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 efect thereto,
the doctrine of purposive construction may have to be
taken recourse to.
55. Although the provisions of the Evidence Act are not
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11 Misc.App.80.18
applicable, the underlying principles of Section 101
thereof would apply. In Sarkar on Law of Evidence, 16th
Edn., Vol.2, at p.1584 it is stated as under:
“Principle and Scope.-This section is based on the rule, i.e.
incumbit probatio qui dicit, non qui negat- the burden of proving
a fact rests on the party who substantially asserts the
afrmative of the issue and not upon the party who denies it;
for a negative is usually incapable of 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
Joseph Constantine Steamship Line Ltd. v. Imperial Smelting
Corpn. Ltd.] 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 difculty which is involved in
proving a negative than in proving an afrmative. [Halsbury' Ss
Laws of England, 3rd Edn., Vol.15, Para 488]”
18. Indisputably, the initial burden is on the respondent no.1
to establish that the appellant as unauthorised occupant. Only
documents i.e. agreement, extracts of city survey register were
submitted, without giving oral evidence of any of the person from the
side of respondent no.1. The contested facts are not spoken by a
person who is competent to speak about and subjected to cross-
examination by the appellant. If some facts are to be proved by the
land lord, he must give oral evidence in support of the documents fled
by it. The occupant should get an opportunity to cross examine the
respondents, as part of principle of natural justice. This is not done in
the present case.
19. More so, in spite of having no material on record before
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12 Misc.App.80.18
him, the Estate Ofcer proceeded to pass eviction order also on the
ground of bona fde requirement of the land lord. Rather, in notice
under Section 4 of the Act this ground of bona fde need of premises
was not mentioned at all. Further, the respondent no.1 even did not
produce any material for determination of damages. The Estate ofcer
on his own came to the fgure of Rs. 8,62788/- towards damages.
20. To conclude, in frst place, the respondent no.1 did not
shift the onus of proof, secondly, the principle of natural justice were
not followed, as the appellant could not get the opportunity, much
less to cross-examine witness-landlord. Thus, the Estate Ofcer has
not followed the proper procedure while conducting the inquiry, much
less, compliance of Rule 5 of the Public Premises (Eviction of
Unauthorised Occupants )Rules 1971, therefore, the impugned order
does not sustain in law on this ground alone. Therefore, no need to go
on other merit of the case and citations produced on the merit of the
case.
21. In aforesaid circumstance, the matter needs to be re-heard
by the Estate Ofcer, therefore, requires to be remanded back to the
Estate Ofcer for hearing afresh. Hence, I proceed to pass the
following order:
O R D E R
1) Misc.Appeal no.80/18 is allowed.
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2) The order dated 24th January,2018 passed by the Estate
Ofcer for eviction and damages is quashed and set aside.
3) The matter is remanded back to Estate Ofcer for hearing
a fresh by giving chance to both the parties to lead oral
evidence. Estate Ofcer is directed to hear the matter
expeditiously.
4) R & P be sent back.
31/01/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 31/01/2020
Transcribed on : 01/02/2020
Signed by H.H.J. on : 13/02/2020
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