2010 Supreme(Bom) 210

High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE ROSHAN DALVI
Areva T & D India Ltd.
Versus
Mr. R. Govindrajan & Others
Decided on : 10-02-2010
Writ Petition No.7136 of 2009

Headnote:Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 5 and 7(3) - Eviction of tenant - Application for, by respondent-2 - Claimed damages and issued notice under Section 7(3) of Act - Respondent-1 called upon petitioner to lead his evidence first - Challenged - Held - Name of lessee different from name of occupant - Petitioner, in occupation of premises in dispute must prove how only name of lessee changed from time to time by leading evidence first - Impugned order calling upon petitioner to lead evidence first not suffers from any infirmity or illegality - Passed in terms of Section 5 of Act - Public Authority/landlord may tender evidence in rebuttal if necessary. - The parties have drawn Court’s attention and relied upon the judgment of the Court and the judgment that came to be passed by the Supreme Court in Appeal from that case considering Sections 4, 5, and 7 of the PP Act. In the case of Nusli Neville Wadia v. New India Assurance Co. Ltd. and others, 2006 (4) Bom CR 345 (O.S.) and later in Appeal in New India Assurance Company Ltd. v. Nuslli Wadia and another, 2008 (1) Bom CR 550 (SC) : 2007 DGLS (soft) 1297 : (2008) 3 SCC 279, these aspects have been considered. That was the case of an occupant who was issued a notice of termination of tenancy on the ground of bona fide requirement by the owner which was the Public Authority. The Estate Officer called upon the occupant/tenant to show cause by leading evidence first. The tenant filed a writ petition challenging the order. The Court directed the landlord who held the public premises to lead evidence first which would be subject to cross-examination by the tenant/occupant and thereafter the tenant/occupant was allowed to lead evidence which would be subjected to cross-examination and in rebuttal the landlord was to be entitled to lead further evidence in the Appeal filed by the Authority holding the public premises. Justice SB Sinha, as he then was set out the notice which was issued terminating the tenancy and claiming damages. The notice enumerated the grounds of eviction. The show-cause notice also set out grounds of eviction. The grounds were that the Authority needed and required the premises for its own use, the reasoning for the requirement to occupy its own premises, the due termination of the tenancy under the notice and the fact that the occupant was a rich and wealthy industrialist who has several flats for his residence. The notices were therefore issued under Section 4 and 7 of the PP Act. It was observed that the landlords would be required to establish not only the bona fide need on its part but the quantum of damages which it may be entitled to. Hence it was held in paragraph 31 of the judgment that when the application for eviction was based on such grounds which required production of positive evidence on the part of the landlord, it would be for the landlord to adduce evidence first. It was further held in paragraph 32 of the judgment that when the tenant took a defence which disclosed no prima facie case, the Estate Officer could ask the tenant to lead evidence. Consequently, the judgment observed in paragraph 36 that the procedural aspect as to who should lead evidence first would have to be determined on the basis of the issue that arise in the matter, though since the procedure is a summary one (as set out in Section 5 of the PP Act) it was held that no issues were specifically required to be framed but which were known to the Estate Officer Consequently in paragraph 39 of the judgment it was observed that the proceedings would not require a lengthy hearing or lengthy cross-examination and only the notice should be given an opportunity to file an effective cause. An effective show cause, it was observed could be filed when the eviction was sought for a specified ground and the occupant must know the particulars in relation thereto. The law that is laid down as a general law under the PP Act, is in Section 49 of the judgment. It is held that under Section 5 of the PP Act, on a plain reading the entire onus would be upon the notice. It is for the notice to show cause and adduce evidence and make oral submissions in support of his case. Hence it is held that landlord would not be required to adduce any evidence at all nor is it required to make any oral submissions on a literal interpretation of the section. Thereafter if the landlord so desires he may tender evidence in rebuttal. This is upon considering Section 101 of the Evidence Act under which the party who substantially asserts the affirmative of the issue is required to prove it and not the party who denies it. In this case, the lease deed and the names of the actual lessee and the occupant having been admitted, the affirmative case of change of name put up by the petitioner, must be proved by the petitioner. The petitioner must therefore, prove it by leading evidence first. This would be in keeping with speedy remedy provided under the PP Act as observed in paragraph 56 of the judgment in the case of Nuslli Neville Wadia.

       The aspects of burden of proof and onus of proof were considered by the Supreme Court in the case of A Raghavamma and another v. A Chenchamma and another, AIR 1964 SC 136 at 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 upon partition.

       Consequently, the order of the Estate Officer calling upon the petitioner to lead 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 its evidence to show cause to the notice issued upon it. The landlord/public authority may tender evidence in rebuttal, only if necessary.