1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.5200 of 2009 Smt.H.R. Irani .. .. Petitioner (Orig.Respondent) V/s. Life Insurance Corporation of India & anr. .. .. .. Respondents (Respondent No.1- Orig.Applicant) Mr.Uday P. Warunjikar for Petitioner. Dr.Poornima Advani with Ms.Rupali Pawar with Mr.Omprakash Jha i/by M/s.The Law Point for Res.Nos.1 & 2. ------ CORAM : SMT.ROSHAN DALVI, J. Date of reserving the order : 15th January, 2010 Date of pronouncing the order : 10th February, 2010 ORDER : 1.Rule. Rule is made returnable forthwith. 2.The Petitioner is the successor-in-title of the person who was the tenant of Respondent No.1 in the premises being shop No.1 at Devkaran Nanji Building, 56, Ridge Road, Walkeshwar, Mumbai-400 046. After the demise of her husband on 21st October 1985, the Petitioner 2 continued in possession and carried on the business of running a restaurant in the demised premises. 3.The Petitioner is stated to have carried out unauthorised renovation and alterations without the permission of Respondent No.1. Certain letters and notices were issued by the Mumbai Municipal Corporation (MMC) upon the Petitioner under Sections 354A and 351 of the Municipal Corporation Act, 1888. Those proceedings have been separately taken and challenged. The premises were demolished and has been reconstructed. The Petitioner has claimed that the premises was old and dilapidated since 1980. It was inspected by Respondent No.1 in 1980 itself and shown to be propped up and having an external wall in a bad condition needing re-plastering. Respondent No.1 had called upon the Petitioner to produce the details of the repair and renovation work required to be carried out through the Architects of the Petitioner. Respondent No.1 had issued a letter to the Petitioner on 30.9.1997 putting on record that the MMC had demolished the structure tenanted to the Petitioner, the Petitioner had carried out unauthorised reconstruction and repair and claimed damages. Part of those damages had been paid by the Petitioner; the original structure was lost. 3 4.The Petitioner carried out some repair work. The MMC had issued a notice under Section 354A. It had demolished the construction of the Petitioner. The Petitioner had challenged that construction in a Civil Suit filed in the Bombay City Civil Court. The Petitioner was allowed to re-construct the premises and bring it into the same condition as it was before the demolition. The Petitioner re-constructed / repaired the premises. The fact of reconstruction / repair is admitted. The Petitioner contends that that is brought in the same condition as it was before the demolition. Respondent No.1 contends that the Petitioner has put up new and excess construction. That construction is without the permission of Respondent No.1, which was required in law for the MMC to grant a repair permission and for the Petitioner to construct in terms of the repair permission. This was despite the specific notice of Respondent No.1 dated 29.10.1999 requiring the Petitioner to restore the premises at the cost of the Petitioner with the permission of the MMC and not to put up any additional construction. The Petitioner claims to have restored it upon the permission granted by the Municipal Commissioner and considering a part of the land which would come in set back. The Petitioner further claims to have obtained an IOD from the MMC on 19.7.2006, under which she put up construction. 4 5.Upon the notice of Respondent No.1 that she has put up a completely illegal, unauthorised construction far in excess of her premises without the permission of the MMC and without the permission of Respondent No.1, the Petitioner has sought to contend that the construction, which is put up, is legal, authorised and as per the permission granted by MMC upon the consent given by Respondent No.1 as the landlord. 6.The Petitioner has been issued a notice of eviction under Section 4 of the Public Premises (Eviction of Unauthorised Occupant) Act, 1971 (PP Act) to show cause why the Petitioner should not be evicted from the premises upon having put up such unauthorised construction. Section 4 of the PP Act runs thus:- 4. Issue of notice to show cause against order of eviction. (1) If the estate officer is of 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, 5 all persons who are, or may be, in occupation of, or claim interest in, the public premises,- (i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof; and (ii)to appear before the estate officer on the date specified in the notice along with the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired. (3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned. The Petitioner is required to show cause before the Estate Officer by appearing before the Estate Officer with the evidence which she intends to produce in support of the cause shown by her. She admits that she has put up construction /repaired the premises. She contends that her construction is legal and authorised. She has, therefore, to produce evidence that her construction is legal and authorised. She must, therefore, produce the repair permission, showing that it was done under lawful authority. She must also produce the consent given by the landlord which was shown to the MMC to obtain the repair 6 permission. She must further show the plan of the premises under which she repaired the premises. 7. These are the facts within the special knowledge of the Petitioner. The burden of proving those facts is upon her under Section 106 of the Indian Evidence Act, 1872 (Evidence Act). Section 106 runs thus:- 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 8.It is contended on behalf of the Petitioner that Respondent No.1 claims a legal right to evict the Petitioner. Hence burden of proof would be upon Respondent No.1 to prove the facts which is asserted by it under Section 101 of the Evidence Act. Section 101 runs thus:- 101. Burden of proof. - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of 7 any fact, it is said that the burden of proof lies on that person. 9.This is the general law of evidence which applies to Civil and Criminal proceedings. It is when one party asserts a fact and another party denies it under the general law that party who asserts the fact has the burden to prove it. However, under the special law being the PP Act, the party doing the unlawful act of putting up illegal construction such as the Petitioner or the party in lawful occupation of such premises such as the Petitioner, is issued a notice to show cause against the order of eviction. The Petitioner is required under the notice itself to produce the evidence in support of the cause shown. Hence it is for the Petitioner to produce the evidence. 10.Further, under Section 5 of the PP Act, the procedure for eviction is also laid down. Section 5 runs thus:- 5. Eviction of unauthorised occupants.-(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of Section 4, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for 8 reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in this behalf may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of the public premises and may, for that purpose, use such force as may be necessary. 11. The Estate Officer is, therefore, required to consider the cause which would be shown by the Petitioner as well as the evidence produced by the Petitioner. He has also to afford a personal hearing to the Petitioner and then pass an order of eviction. This special procedure under the special enactment requires the noticee to discharge the onus and it requires the Estate Officer to call upon the noticee to do so. Correspondingly, the noticee is enjoined to do so, if he or she does not desire an order of eviction to be passed against him or her. 9 12. Consequently, strict provision of Section 101 cannot apply to the case. It cannot be said that the case is between two parties, one who asserts the fact and another who denies it. This case is essentially upon the notice of the Estate Officer. It is the noticee who has to show the cause. It is the noticee who has to produce evidence. That evidence may be oral or documentary. It is only if the noticee produces such evidence that the Estate Officer would be satisfied that she / he has shown cause that he would not pass an order of eviction. The landlord may, of course, tender evidence in rebuttal, only if required. 13. The specific provision is clear and has to be complied. Since the Petitioner alleges that her construction is not unauthorised, it is for the Petitioner to show that it is not unauthorised by positive evidence. That must be done first as specifically required under the PP Act. 14. My attention is drawn to the case of Nusli Neville Wadia vs. New India Assurance Co. Ltd. & ors., 2006 (4) Bom. C.R. 345 which was filed initially in this Court and was later considered in Appeal in the Supreme Court and which has been cited in New India Assurance Company Ltd. vs. Nusli Wadia & anr., (2008) 3 SCC 279. Since that was a case of the landlord claiming bona fide 10 requirement, it was held by the Hon ble Supreme Court that when the eviction is based on such grounds which would require production of positive evidence on the part of the landlord, the landlord must adduce evidence first. It has also been held in that case that a tenant will make a defence which discloses no prima facie case in which event the Estate Officer may ask him to lead evidence. It is held in paragraph 49 of the judgment that the entire onus is upon the noticee under Section 5 of the PP Act, which requires the noticee not only to show cause but to adduce evidence and make oral submissions in support of its case. It, therefore, holds that the landlord s evidence would be required only in rebuttal. 15. This case is one such. The entire onus is upon the Petitioner. The Petitioner must, therefore, show cause, adduce evidence and make oral submissions as she desires. Respondent No.1 may tender evidence in rebuttal only if required. Bearing in mind that the procedure under the PP Act is a special enactment for a summary procedure laid down in Section 5 thereof, it is the speedy remedy, which requires to be disposed of expeditiously. Hence the Petitioner, as the Respondent in that case, must lead evidence first. 16. This is unlike the case of Nandini J. Shah & ors. 11 vs. Life Insurance Corporation of India & ors., 2008(5) Bom.C.R. 234. That was also a case of bona fide requirement, subletting the premises and change of user. Since those allegations were required to be affirmatively proved by the landlord, it was held that in that case the landlord would have to lead evidence first. This case is different. The show cause notice only requires the Petitioner to show cause how she is not an unauthorised occupant. It shows no claim of the landlord / public authority. It is only that the Petitioner has to show cause against the notice and adduce evidence in that behalf. The burden of proving the construction of the structure is on the Petitioner. Only if and when the Petitioner discharges that burden and show the authorised construction of her (entire) structure, the onus would shift on the landlord / public authority to show how it is unauthorised. The initial burden has to be initially discharged by the Petitioner alone. 17. The aspects of burden of proof and onus of proof were considered by the Supreme Court in the case of A. Raghavamma & anr. vs.A. Chenchamma & anr., AIR 1964 SC 136 @ 143. The Court had to consider a case of a party claiming to have been adopted and his right under a partition of the joint family in which he claimed right to partition. Extensive evidence was led by both the 12 parties. It was observed in paragraph 12 thus: There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidents of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. It was further observed in paragraph 22 thus: .... but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. What must, therefore, be appreciated is the distinction between the burden and the onus of proof. The burden of proving authorised occupation is upon the noticee under the express mandate of the PP Act. Therefore, he has to 13 discharge that burden. That cannot shift. For discharging that burden he must necessarily lead evidence first. If he shows the authorisation of his occupation, the onus would then shift to the landlord / public authority to show how the authorised occupation ceased to be authorised and how and when he became unauthorised. That is how the judgments in the cases of Nusli Neville Wadia (supra) and Nandini J. Shah (supra)laid down who would lead evidence followed by whom. The evidence in rebuttal would be required if the onus (not the burden) were to shift to prove something further. 18.The extent of importance that has to be put on the onus of proof that is on a party consequent upon the burden that lies on such party to prove its claim came to be considered by the Supreme Court in the case of State of Madhya Pradesh vs. Bhopal Sugar Industries Ltd., AIR 1964 SC 1179. That was a case in which a tax only upon persons carrying on agricultural operation in Bhopal region. It came to be challenged as discriminatory. The Petitioner alleged differential treatment as a similar tax was not levied upon similar agricultural operations outside Bhopal region. It was observed that the legislation can be challenged as arbitrary only if the unequal laws cannot be justified on geographical grounds imputing unequal treatment upon the applicant making out not only that he had been 14 treated differently from others, but that he had been so treated from person similarly circumstanced without any reasonable basis and unjustifiably. The Court also observed that the Petitioner was singularly deficient in furnishing particulars justifying the infringement. Similarly the State argued only a demurrer and did not place before the Court the evidence which would, in the very nature of things, be in its possession(upon the law in Section 106 of the Evidence Act). It was under these circumstances, observed that the Court would not be justified in dismissing the Petition on a technical view of the burden of proof. Parties were given an opportunity to lead requisite evidence which has a bearing on the issue. What can be culled out as the law as a whole is that the issue in this Petition has more to do with who takes the first step. Of course, both parties would bring out the evidence in its respective possession to ultimately not only prove; but disprove the case of the other party. The question which requires to be settled is that when a show cause notice is statutorily required to be issued and answered, the noticee would be required to be evicted if she / he does not show cause. It is, therefore, a summary procedure. It is not only in his interest to show cause, but his obligation to do so. Cause can be shown in respect of immovable property only by documentary evidence. Hence such documentary evidence, 15 which can be produced only by the noticee, would have to be produced by her / him first. It is only then, if required, that the landlord / public authority would produce the evidence she / he / it has. 19.The insistence of the Petitioner that the landlord / public authority has to lead evidence first to prove the Petitioner s unauthorised occupation as alleged in the notice is entirely misconceived. The entire exercise only to bind time, a purpose sought to be expressly negated by the legislation. 20.Consequently, the order of the Estate Officer calling upon the Petitioner to tender evidence first, is correct and does not suffer from any infirmity. It is in terms of Section 5 of the PP Act. The landlord cannot be called upon to lead evidence first. The Petitioner must lead her evidence to show cause to the notice issued upon her. The landlord / public authority may tender evidence in rebuttal, only if necessary. 21.The Writ Petition is without any merit and is dismissed. Rule is discharged. 22.There shall be no order as to costs. [SMT.ROSHAN DALVI, J.] 16