:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.361 OF 2006 WRIT PETITION NO.361 OF 2006 WRIT PETITION NO.361 OF 2006 Nusli Neville Wadia of Mumbai Indian Inhabitant, having his office at Neville House, J.N.Heredia Marg, Ballard Pier, Mumbai - 400 023. .. Petitioner V/s 1. The New India Assurance Co.Ltd. being a Government Company, incorporated under the provisions of the Companies Act, 1956 and having its Head Office at the New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Mumbai - 400 001. 2. Mr.N.M.Goyal, being the Estate Officer purportedly appointed under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and also the Deputy Manager of Respondent No.1, having his office at the New India Assurance Building, 4th Floor, 87, Mahatma Gandhi Road, Fort, Mumbai - 400 001. .. Respondents Mr.R.A.Dada, Senior Advocate with Mr.Percy Ghandy and Mr.A.Gokhale i/by M/s.Crawford Bayley & Co. for the Petitioner. Mr.V.Y.Sanglikar for Respondent No.1. CORAM: DR.S.RADHAKRISHNAN & CORAM: DR.S.RADHAKRISHNAN & CORAM: DR.S.RADHAKRISHNAN & J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATE : 03.03.2006. DATE : 03.03.2006. DATE : 03.03.2006. JUDGMENT:- (Per Dr.S.Radhakrishnan, J.) 1. Heard the learned Counsel for the parties. Rule. Rule is made returnable forthwith by consent. The learned Counsel for the Respondent No.1 waives service. The presence of Respondent No.2 is not necessary for the purpose of disposal of this petition, as he is a formal party. :2: 2. The basic challenge in the Petition is with regard to two orders passed by Respondent No.2-Estate Officer dated 26.08.2005 being Exhibit ‘M’ and another order dated 12.01.2006 being Exhibit ‘Q’ to the petition. The Petitioner also seeks inspection and better particulars. The brief facts are that the Petitioner is a lawful monthly tenant of Flat No.B/27 on the 5th floor of the building known as Mayfair Gardens, Little Gibbs Road, Malabar Hill, Mumbai - 400 006, (hereinafter referred to as the ‘said premises’). It appears that the Petitioner was lawfully inducted in the said premises on 1st October, 1972 as a genuine lawful tenant. The Petitioner has been regularly paying all the rent and permitted increases to Respondent No.1 which is a nationalised Insurance Company. Suddenly, the Petitioner received a notice dated 09.02.2001 from Respondent No.1 terminating the monthly tenancy of the Petitioner. The Petitioner by his letter dated 28th March, 2001 replied to the same. However, no further steps were taken by Respondent No.1. After about a year, on 18th February, 2002, the Petitioner received another notice from Respondent No.1 again terminating the tenancy which was also replied to by the Petitioner by his reply dated 27th March, 2002. It may be noted that even after issuance of the second termination notice dated 18th February, 2002, the Respondent No.1 did not take any further steps and the Petitioner continued to pay the regular rent and other necessary :3: charges which were duly accepted by Respondent No.1. On 28th July, 2003, i.e. about one and half year after the second termination notice, the Respondent No.2 -Estate Officer issued two show causes notices, one for eviction under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as "the said Act" for brevity sake) and another under Section 7 of the said Act for payment of damages. The Petitioner had sent a detailed reply with regard to both the aforesaid show cause notices by his Advocate’s letter dated 23rd February, 2004 reserving the right to challenge the Constitutional validity of Section 3 of the Public Premises Act before the Hon’ble Supreme Court. It appears that the Petitioner did file a Writ Petition under Article 32 of the Constitution of India before the Hon’ble Supreme Court challenging the Constitutional validity of Section 3 of the Public Premises Act, wherein it appears that Rule was granted by the Hon’ble Supreme Court on 10th September, 2004. In the said petition, the Hon’ble Supreme Court had made it clear that the proceedings before the learned Estate Officer may go on but the final order in the matter be not passed. The Petitioner without prejudice to the aforesaide petition, had filed his reply on 3.9.2004 to the application of Respondent No.1 dated 25.1.2003 for eviction. The Petitioner contends that the Petitioner has been appearing before the Respondent No.2. The Petitioner by his letter dated 7th March, 2005 appears to have called upon the Respondent No.1 to furnish :4: inspection and better particulars of various documents relied upon by the Respondent No.1. In that behalf, a further reminder was sent on 18th June, 2005. It appears that at the hearing before the Respondent No.2 on 26th August, 2005 as the learned Counsel for the Petitioner could not remain present before the Respondent No.2 Estate Officer and a request was made that the matter be kept back for a little while as the learned Counsel of the Petitioner was busy before the High Court. It appears that the Respondent No.2 had refused to keep back the matter and proceeded to pass an exparte order directing the Petitoner to lead evidence in the matter and file an affidavit in evidence. On 26.9.2005 Petitioner took out an application pointing out that the Respondent No.1 had not given proper inspection and proper particulars and details as demanded by the letter dated 7th March, 2005. It was also pointed out that there is no question of Petitioner leading any evidence first and the Respondent No.1 has to first lead the evidence to discharge the burden of proof. The Petitioner had also pointed out that the Respondent No.1 had filed a case before Respondent No.2 under the provisions of the said Act alleging that the Respondent No.1 has a reasonable and bonafide requirement of the said premises and as such it is for the Respodnent No.1 to first discharge the burden of proof by leading evidence first. After the Respondent No.1 discharges the burden of proof, then only the onus will shift to the Petitioner to disprove the case made :5: out by the Respondent No.1. It was also pointed out that the Petitioner in law can never prove the negative viz. the Respondent No.1 does not reasonably and bonafide require the said premises even before the Respondent No.1 had led evidence in support of its case. Therefore, the Petitioner has submitted that the Respondent No.2 ought to direct the Respondent No.1 to give proper inspection of the documents, frame the issues and thereafter direct the Respondent No.1 to file affidavit of evidence in support of its case and offer itself for cross-examination. It was the contention of the Petitioner that only after Respodnent No.1 completing evidence of all the witnesses and after completion of cross-examination of the said witnesses by the Petitioner, the Petitioner could be asked to file affidavit of evidence and be subjected to cross-examination. The Respondent No.2 Estate Officer appears to have heard the Petitioner on 6.12.2005 on the above issue and finally passed an order on 12.1.2006 rejecting the Petitioner’s aforesaid application dated 26.9.2005. The said order dated 12th January, 2006, is impugned in this Petition. 3. Mr.Dada, the learned Senior Counsel appearing on behalf of the Petitioner has strongly contended that the main grievance of the Petitioner is that the Petitioner cannot be asked to lead evidence first and prove the negative. According to him, it is for the Respondent No.1 to lead the evidence first so as to establish that :6: Respondent No.1 requires the said premises for reasonably and bonafide personal use. Mr.Dada, brought to our notice the grounds on which the eviction was sought by Respondent No.1 by an application filed before the Estate Officer dated 25th June, 2003, wherein five grounds are mentioned, which read as under:- (i) The Applicants need and require the application premises for their own use and occupation for accommodating their own senior executives, (ii) The Applicants are being evicted from tenanted premises and are being called upon to pay exorbitant rent for tenanted premises. Hence it is not in public interest not to resume possession of the Application premises, (iii) Increase in business, globalisation of economy and liberalisation of policies have necessitated the Applicants to use and occupy the Applicants’ own properties, (iv) The tenancy and authority of the Opponent has been duly terminated by the Applicants’ notice dated 18.2.2002, (v) The Opponent is a rich and wealthy industrialist who has several flats for his residence. 4. Based on the aforesaid application of the Respondent No.1, Respondent No.2-Estate Officer had issued a show cause notice dated 28th July, 2003 calling upon the Petitioner to show cause as to why the petitioner should not be evicted, wherein four grounds are mentioned, which read as under:- (i) The Applicants need and require the premises for their own use and occupation for for accommodating the Applicants’ senior executives, (ii) The Applicants are being evicted from tenanted premises and are being called upon to pay exorbitant rent for tenanted premises and hence it is not in :7: public interest not to resume possession of these premises, (iii) Your tenancy and authority is terminated by the Applicants’ notice dated 18.02.2002, (iv) You are a rich and wealthy occupant having your own accommodation. 5. The above notice has been issued under Section 4 of the Public Premises (Eviction of Unauthorised Ocupants) Act, 1971 which contemplates that the notice should specify the grounds on which the order of eviction is proposed to be made. 6. Mr.Dada, brought to our notice a letter dated 14th January, 1992 written by the Ministry of Urban Development, Government of India regarding the issuance of the Guidelines under the Public Premises Eviction Act with regard to public statutory undertakings. The said letter was issued pursuant to the Hon’ble Supreme Court’s judgment in the case of Ashoka Marketing Limited Ashoka Marketing Limited Ashoka Marketing Limited V/s.Punjab National Bank- AIR 1991 SC 855, V/s.Punjab National Bank- AIR 1991 SC 855, V/s.Punjab National Bank- AIR 1991 SC 855, wherein the Hon’ble Supreme Court has directed that the proper Guidelines should be provided to prevent an arbitrary use of the provisions of the Public Premises Eviction Act to evict the genuine tenants from the public premises under the control of Public Sector Undertakings and Financial Institutions. The said letter also reiterates the observations of the Hon’ble Supreme Court that every activity of the Public Authority should be guided by public interest and that they were expected to deal with their tenants distinctly from that of private :8: landlords. The said letter also mentions that several representations against the eviction proceedings have been received by the Ministry for issuance of Guidelines so that the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are not indiscriminately used by public statutory organisations to oust the genuine tenants. The said letter also mentions that it has been decided to prescribe for the benefit of all these organisations a set of guidelines in order to prevent use of the provisions of the said Act to evict genuine tenants and to limit the use of summary powers primarily to unauthorised occupants and retired employees. The said letter also proceeds to lay down the broad guidelines indicating that the said Act should primarily be used to evict totally unauthorised occupants or illegal sublettees or the employees who have ceased to be in their services and thus ineligible for occupation of the premises. The said letter also indicates that the persons who are in lawful occupation of the premises should not be treated or declared as unauthorised occupants merely on service of notice of termination of tenancy. When a genuine tenant is to be evicted, the genuine grounds available under the Rent Control Act of the State ought to be utilised for resuming possession. 7. Mr.Dada, the learned Senior Counsel for the Petitioner has pointed out that the Government of India through the Ministry of Urban Development and Poverty :9: Alleviation (Directorate of Estates) has passed a resolution dated 30th May, 2002. The same has been duly gazetted on 8th June, 2002. It is known as Guidelines Guidelines Guidelines to prevent arbitrary use of powers to evict genuine to prevent arbitrary use of powers to evict genuine to prevent arbitrary use of powers to evict genuine tenants from the public premises under the control of tenants from the public premises under the control of tenants from the public premises under the control of Public Sector Undertakings/Financial Institutions, Public Sector Undertakings/Financial Institutions, Public Sector Undertakings/Financial Institutions, wherein relevant guidelines are found in clause 2, which reads as under:- "To prevent arbitrary use of powers to evict genuine tenants from public premises and to limit the use of powers by the Estate Officers appointed under Section 3 of the PP (E) Act, 1971, it has been decided by Government to lay down the following guidelines:- (i) The provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (P.P.(E) Act, 1971) should be used primarily to evict totally unauthorised occupants of the premises of public authorities or subletees or employees who have ceased to be in their service and thus ineligible for occupation of the premises. (ii) The provisions of the P.P.(E) Act, 1971 should not be resorted to either with a commercial motive or to secure vacant possession of the premises in order to accommodate their own employees, where the premises were in occupation of the original tenants to whom the premises were let either by the public authorities or the persons from whom the premises were acquired. (iii) A person in occupation of any premises should not be treated or declared to be an unauthorised occupant merely on service of notice of termination of tenancy, but the fact of unauthorised occupation shall be decided by following the due procedure of law. Further, the contractual agreement shall not be wound up by taking advantage of the provisions of the P.P.(E) Act, 1971. At the same time, it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming possession. In other words, the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants. :10: (iv) It is necessary to give no room for allegations that evictions were selectively resorted to for the purpose of securing an unwarranted increase in rent, or that a change in tenancy was permitted in order to benefit particular individuals or institutions. In order to avoid such imputations or abuse of discretionary powers, the release of premises or change of tenancy should be decided at the level of Board of Directors of Public Sector Undertakings. (v) All the Public Undertakings should immediately review all pending cases before the Estate officer or Courts with reference to these guidelines, and withdraw eviction proceedings against genuine tenants on grounds otherwise than as provided under these guidelines. The provisions under the PP (E) Act, 1971 should be used henceforth only in accordance with these guidelines." 8. Mr.Dada, the learned Senior Counsel for the Petitioner has contended that in the light of the above guidelines, if the Respondent No.1 wants to evict the Petitioner, the Respondent No.1 should move under the genuine grounds of the State Rent Control Act for resuming possession. In the instant case, primarily two grounds are sought to be made out; (i) that there is reasonably and bonafide requirement of the said premises by Respondent No.1 and (ii) that the Petitioner has already acquired an alternate accommodation, and as such, the Petitioner is not entitled to continue in the said premises. Mr.Dada, the learned Senior Counsel for the Petitioner has submitted that with regard to both the above grounds available under the State Rent Control Act for the purpose of eviction, it is the Respondent No.1 who should first establish the above grounds, in the sense, firstly the Respondent No.1 should establish that the Respondent No.1 requires the said premises reasonably and bonafide for personal use and secondly :11: the Respondent No.1 should also establish that the Petitioner has already acquired another accommodation and as such he is liable to be evicted from the said premises. Therefore, it is the contention of Mr.Dada, the learned Senior Counsel, that the order of Respondent No.2-Estate Officer dated 12th January, 2006 directing the Petitioner to lead the evidence first, before Respondent No.1 leading evidence, is totally perverse and would result in travesty of justice. He made it explicitly clear that the Petitioner is desirious of proceeding before the learned Estate Officer viz.Respondent No.2, provided the Respondent No.1 leads its evidence first, and thereafter, after cross-examination of the witnesses of the Respondent No.1, the petitioner will lead his evidence to rebut the same and can be subjected to cross-examination. Mr.Dada therefore contended that in the facts and circumstances of the present case, it would be just and proper to direct the Respondent No.1 to lead the evidence first and allow the Petitioner to cross-examine the Respondent No.1’s witnesses and thereafter allow the Petitioner to lead his evidence in rebuttal and can be subjected to cross-examination. In support of this contention, Mr.Dada referred to and relied upon the decision of the Hon’ble Supreme Court in the case of Ganpat Ram Sharma & Ganpat Ram Sharma & Ganpat Ram Sharma & Ors. V/s Smt.Gayatri Devi - AIR 1987 SC 2016, Ors. V/s Smt.Gayatri Devi - AIR 1987 SC 2016, Ors. V/s Smt.Gayatri Devi - AIR 1987 SC 2016, wherein in Paragraph No.21 the Hon’ble Supreme Court has observed as under:- :12: "Before we discuss the other aspect the result of the several decisions to which reference has been made above indicate that the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts....." 9. Mr.Dada, the learned Senior Counsel appearing for the Petitioner thereafter referred to and relied upon the Division Bench judgment of the Allahabad High Court in the case of Girija Debi and Another V/s.Rent Control Girija Debi and Another V/s.Rent Control Girija Debi and Another V/s.Rent Control and Eviction Officer and Others - AIR 1965 Allahabad and Eviction Officer and Others - AIR 1965 Allahabad and Eviction Officer and Others - AIR 1965 Allahabad 366, 366, 366, wherein it is observed as under:- "Actually the onus is upon the landlord to satisfy the District Magistrate about his bonafide need; It is not upon a claimant for tenancy to prove that the landlord has no bonafide need. With great respect to the learned Judges, we cannot agree that if the claimant fails to prove that the landlord does not require the accommodation for his own personal occupation, it must be held that he has bonafide need for own personal occupation. What the landlord has to prove cannot be held to be proved because the other party fails to prove the contrary." 10. Mr.Dada thereafter referred to and relied upon the judgment of the Delhi High Court in the case of Chander Chander Chander Kishore Sharma and Another V/s Smt.Kampa Wati - AIR 1984 Kishore Sharma and Another V/s Smt.Kampa Wati - AIR 1984 Kishore Sharma and Another V/s Smt.Kampa Wati - AIR 1984 Delhi 14 Delhi 14 Delhi 14, wherein the relevant observation is as under:- "One must remember that the initial burden to prove the ground of eviction is on the landlord and not on the tenant. Tenant cannot be asked to prove the negative." :13: 11. Mr.Dada, the learned Senior Counsel appearing for the Petitioner has also referred to and relied upon the judgment of the Madhya Pradesh High Court in the case of Jernail Singh V/s. Kanhaiyalal - AIR 1986 MP 53, Jernail Singh V/s. Kanhaiyalal - AIR 1986 MP 53, Jernail Singh V/s. Kanhaiyalal - AIR 1986 MP 53, wherein the relevant observation in Paragraph No.9 of the judgment reads as under:- ".... I observe that according to the settled proposition of law, it is for the Plaintiff and Plaintiff only to prove the fact of non availability of non-residential alternative premises in the town and not the Defendant". 12. Mr.Dada, the learned Senior Counsel for the Petitioner has strongly contended that in the instant case, as the above guidelines make it abundantly clear that if in case of a genuine and lawful tenant eviction is sought, it can only be sought on the grounds permissible under the State Rent Control Act and it is for Respondent No.1 to prove that it needs the premises reasonably and bonafide for personal use and that it is also for the Respondent No.1 to prove that the Petitioner has acquired another alternate accommodation and hence he is liable to be evicted. Mr.Dada has further submitted that the Petitioner cannot be made to lead evidence to prove the negative viz. the Respondent No.1 does not really, reasonably and bonafide need the premises for personal use or that the Petitioner himself has acquired any alternate premises so as to enable the Respondent No.1 to evict the Petitioner. This would virtually amount to putting the cart before the horse. :14: Mr.Dada has submitted that it would be an impossibility on the part of the Petitioner to establish that the Respondent No.1 does not require the said premises reasonably and bonafide for personal use, inasmuch as all the evidence and facts with regard to the same are within the personal knowledge of the Respondent No.1. 13. Mr.Dada, the learned Senior Counsel for the Petitioner while referring to the Supreme Court’s judgment in the case of Ashoka Marketing Limited Ashoka Marketing Limited Ashoka Marketing Limited V/s.Punjab National Bank V/s.Punjab National Bank V/s.Punjab National Bank relied upon the observations of the Hon’ble Supreme Court in paragraph No.69, which read as under:- "It has been urged by the learned Counsel for the Petitioners that many of the corporations referred to in Section 2(c) 2(ii) of the Public Premises Act, like the nationalised Banks and the Life Insurance Corporation, are trading corporations and under the provisions of the enactments whereby they are constituted these corporations are required to carry on their business with a view to earn profit, and that there is nothing to preclude these corporations to buy property in possession of tenants 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 of property in possession of tenants is much less as compared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s.Dwarkadas Marfatia and Sons v.Board of Trustees M/s.Dwarkadas Marfatia and Sons v.Board of Trustees M/s.Dwarkadas Marfatia and Sons v.Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 SC 1642 at p.1649) SC 1642 at p.1649) SC 1642 at p.1649) :- "Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity