Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.App.81.18
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.81 of 2018
Sureshchandra Ramdas Gupta
Hindu, Indian inhabitant,
of Mumbai, aged about 75
years, having his address at
shop no.1 & 2, A Wing,
Girgaon Mukhya Daak Ghar,
123, V.P. Road, Mumbai-4 ..Appellant
V/s.
1) The Post Master General
Mumbai Region, through
Estate Officer & APMG (MR)
Presenting Officer & ASP
office of SSPO's Mumbai
South Division, Mumbai-1
2) The Estate Officer and Asst.
Post Master General,
Mumbai Region, 3rd floor,
Dadar Head Post Office
Building, Mumbai-14 ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 31st January,2020
(C.R.No.19)
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2 Misc.App.81.18
Advocate Mr.Ketan Parekh h/f. Mr.K.R. Parekh & Co. for appellant.
Advocate Mr.Shriram Redij for respondents.
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 Officer 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 Officer 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
Sureshchandra Surajbhan was found in possession of shop no.1 and 2 in
the said building. Sureshchandra Surajbhan died. Now, the present
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 also requires the building for bona
fide use. On the two grounds the proceedings were initiated under the
Public Premises Act by issuing notices under Section 4 as well as 7 of the
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Act for eviction and damages.
3. The appellant defence is that Narayandas Gupta had two sons
Surajbhan and Ramdas. Surajbhan had no issue out of his wedlock and
therefore, he had treated and adopted son of Ramdas, namely
Sureshchandra-the appellant. All the records of Sureshchandra were in
the name of Sureshchandra Ramdas Gupta. The earlier notice issued in
the name of Sureshchandra Surajbhan Gupta in 1967 was the subject
matter of Misc.Appeal no.54 of 1987. The appellant was the tenant in
respect of the suit premises of the original landlords Rungtas. Thus, the
appellant states that by any stretch of imagination, he cannot be branded
an unauthorized occupant as he is the original tenant prior to 1950 in
respect of suit premises and duly protected under the provisions of Bombay
Rent Act and now Maharashtra Rent Control Act.
4. Alongwith reply to the notice, the appellant had filed all
relevant documents before the Estate Officer. The inquiry before the Estate
Officer was culminated in passing of impugned order of eviction and
damages of Rs.17,25,556/- to be paid by the appellant to respondent.
Feeling aggrieved with the said order, the present appeal came to be filed.
5. It is contended on behalf of learned advocate for appellant
that the appellant who is adopted son of Surajbhan was erstwhile tenant
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of Govindram Sivnarayan Rungta. Respondent no.1 purchased the
property from Govindram Sivnarayan Rungta in the year 1967 whereas the
appellant was in occupation of the suit shop prior to the premises became
public. Therefore,s there is no question of the unauthorized occupation.
The appellant 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. 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 order. To buttress his submission, he
seeks to place reliance on
Suhas H. Pophale V/s. Oriental Insurance
Company Limited and its Estate Officer, 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. Per contra, learned advocate for the respondent no.1,
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's 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
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5 Misc.App.81.18
Rent Control Act is not applicable to the suit shop much less to be
appellant. According to him, after the death of Sureshchandra Surajbhan,
the appellant Sureshchandra Ramdas Gupta is found in possession of the
premises without authority. He placed reliance on
Board of Trustees of
Port of Mumbai V/s. New India Assurance Co. Ltd., reported in 2018(5)
Mh.L.J.754, Rani Sevakram (since deceased) by heirs and L.Rs. Purva alias
Urvashi Suresh Jahangiani and others V/s. Oriental Insurance Co. Ltd.
And others, 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 others, reported in (2000)1 Supreme Court Cases 10.
7. In view of the submissions before me, following points arise
for my consideration and I have given my findings 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 Officer is just, legal
and proper?
3) What Order? ..As per final order
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R E A S O N S
Point nos.1, 2 and 3:
8. 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
Officer. 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 and 7(3) of the Act came to be
issued asking the appellant to show cause that why the damages of
Rs.17,25,556/- for unauthorized occupation of premises should not be
passed.
9. Lastly, by impugned order dated 17th October, 2018, the Estate
Officer directed the appellant to damages of Rs.17,25,556/- with simple
interest @ 4% p.a. and to vacate the suit shop on the ground of
unauthorized occupation and bona fide need of landlord i.e. upgrading
existing facilities for the members of public staff and for expansion of
public services like setting up branch of India Post Payment Bank, Aadhar
card and other ancillary services.
10. Scrutiny of the record and minutes of proceeding of the
inquiry conducted by the Estate Officer reveals all the time, after taking
documents on record submitted by the parties, the parties were told that
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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 Officer,
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, bonafide requirement and quantum of damages.
11. 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 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 Officer shall record the summary of the evidence
tendered before him. The summary of such evidence and any
relevant documents filed before him shall form part of the
records of the proceedings.
12. No doubt, the objects of the Act is to provide a speedy remedy;
The Estate Officer is expected to arrive at a decision, expeditiously.
Although, the provisions of The Code of Civil Procedure and The Evidence
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Act are not strictly applicable to the proceeding before the Estate Officer,
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 Officer has to follow the principle of the natural justice.
13. 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 of proving of
the fact by oral evidence and giving opportunity to show cause, effectively
to noticee by his evidence or at least by way of cross examination of
opponent, are also applicable to the proceeding before the Estate Office.
14. In a case of
Bareilly Electricity Supply Co. Ltd. v.
Workmen the apex Court held as under:(1971) 2
SCC p.629, 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.”
15. In a case of
K.L. Tripathi v. SBI and Lakshman Exports
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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.”
16. In the case of
New India Assurance Company Ltd. V/s. Nusli
Neville Wadia and another reported in (2008)3 Supreme Court Cases 279,
the Apex Court has dealt the manner and procedure for inquiry by the
Estate Officer 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, states
that once a notice under Section 4 is issued by the Estate
Officer on formation of his opinion as envisaged therein it is
for the noticee not only to show cause in respect thereof but
also adduce evidence and make oral submissions in support of
his case. Literal meaning in a situation of this nature would
lead to a conclusion that the landlord is not required to
adduce any evidence at all nor is it required even to make any
oral submissions. Such a literal construction would lead to an
anomalous situation because the landlord may not be heard at
all. It may not even be permitted to adduce any evidence in
rebuttal to the one adduced by the noticee nor it would be
permitted to advance any argument. Is this contemplated in
law? The answer must be rendered in the negative. When a
landlord files an application, it in a given situation must be
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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.
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 effect thereto, the doctrine of
purposive construction may have to be taken recourse to.
55. 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 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 affirmative 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 difficulty which is involved in
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proving a negative than in proving an affirmative. [Halsbury's Laws
of England, 3rd Edn., Vol.15, Para 488]”
17. 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 filed 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.
18. More so, in spite of having no material on record before him,
the Estate Officer proceeded to pass eviction order also on the ground of
bona fide requirement of the land lord. Rather, in notice under Section 4 of
the Act this ground of bona fide 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 officer on his own came to the figure
of Rs.17,25,556/- towards damages.
19. To conclude, in first place, the respondent no.1 did not shift
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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 Officer 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.
20. In aforesaid circumstance, the matter needs to be re-heard by
the Estate Officer, therefore, requires to be remanded back to the Estate
Officer for hearing afresh. Hence, I proceed to pass the following order:
O R D E R
1) Misc.Appeal no.81/18 is allowed.
2) The order dated 24th January,2018 passed by the Estate
Officer for eviction and damages is quashed and set aside.
3) The matter is remanded back to Estate Officer for hearing
a fresh by giving chance to both the parties to lead oral
evidence. Estate Officer is directed to hear the matter
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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 : 17/02/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 18/02/2020 (12.15 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 31st January, 2020
Order signed by P.O. on 17th February, 2020
Order uploaded on 18th February, 2020
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