JUDGMENT :

GAURI GODSE, J.

1. This petition is filed to challenge the order passed by the City Civil Court, allowing the appeal filed by respondent no.1 against the order of eviction and compensation passed by the Estate Officer of the petitioner. The petitioner had applied for the eviction of the respondents and compensation towards arrears of rent. The Estate Officer had allowed the application for eviction against both the respondents under Section 5(1) of the Public Premises(Eviction of Unauthorised Occupants) Act (‘said Act’).

2. The Estate Officer had passed an order directing payment of compensation under sub-section (2) and (2-A) of Section 7 of the said Act. The respondents were held liable to pay arrears of compensation, along with interest, from 1st October 1982 to 31st December 1991. The eviction order was passed on the ground that respondent no.1 had unauthorisedly inducted respondent no.2 and had carried out unauthorised construction. The order passed by the Estate Officer was challenged by respondent no.1 by filing an appeal under Section 9 of the said Act. The proceedings were not attended by respondents, though served, and therefore the order was passed ex-parte. Respondent no.2 accepted the order and never challenged the order of eviction or the order for payment of compensation.

3. Learned counsel for the petitioner submitted that the terms and conditions for handing over the subject premises to respondent no.1 were recorded in a letter dated 6th March 1997. The terms and conditions were accepted by respondent no.1 by a letter dated 10th April 1997. Accordingly, the petitioner signed a charge certificate and the tenancy in respect of the subject plot commenced with effect from 1st April 1994. A lease document was not executed or registered between the parties, and respondent no.1 continued as a monthly tenant of the petitioner in respect of the subject premises. Respondent no.1 had failed to pay the rent and service charges from 1st August 2000. Hence, a notice of demand was issued on 26th July 2003, and the tenancy of respondent no.1 was terminated. Respondent No.1 unlawfully sublet the subject premises to Respondent No. 2, who was occupying the premises when the proceedings under the said Act were initiated. Thus, according to the petitioner, respondents were in unauthorised occupation of the subject premises, and therefore, the petitioner was entitled to an order of eviction and recovery of arrears by way of an order of compensation.

4. The respondents were served, appeared before the Estate Officer, and requested time to file a written statement. Though time was given, no steps were taken to file the written statement and the application before the Estate Officer proceeded ex-parte. The application was finally argued before the Estate Officer on 8th March 2006. The Estate Officer issued a show-cause notice under Section 5(a) and 5(b); however, there was no response to the show-cause notice. Accordingly, after hearing the petitioner and considering the facts produced on record, the Estate Officer held that respondent no.1 was in arrears of payment of monthly charges and unauthorisedly let out the premises to respondent no.2. Hence, the order of eviction was passed. Since the show-cause notice was not responded to and nothing was produced on record to show that the due amounts were paid, the Estate Officer passed a separate order for payment of compensation under sub-section 2 and 2(a) of Section 7 of the said Act. The payment towards arrears was granted in terms of the statement annexed to the order.

5. Learned counsel for the petitioner relied upon the decision of the Hon’ble Apex Court in the case of Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558. Hesubmits that in the facts before the Hon’ble Apex Court, respondent no.1 had claimed that respondent no.2 was in possession with the consent of the owner. Hence, it was held that the burden was upon respondent no.1 to prove that there was any consent or approval