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CASE NO.: Appeal (civil)  5879 of 2007

PETITIONER: New India Assurance Company Ltd.

RESPONDENT: Nusli Neville Wadia and another

DATE OF JUDGMENT: 13/12/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 8232 OF 2006) WITH  CIVIL APPEAL NO. 5871 OF 2007 (Arising out of SLP (C) No. 10348 OF 2006)

New India Assurance Company Ltd.                            \005\005Appellant

       Versus

KLM Engineering Co. Pvt. Ltd. and others                  \005\005Respondents  

S.B. SINHA, J.

1.      Leave granted.

    Introduction        

2.      Who should begin to lead evidence in a proceeding under the  Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (in  short \021the Act\022) is the question involved in these appeals.  

       Background Facts

3.      Appellant is a company incorporated under the Companies Act,  1950.  It is a State within the meaning of Article 12 of the  Constitution of India.  It owns a building in the town of Mumbai   commonly known as Mayfair Gardens.  Respondents herein are the  tenants occupying two apartments in the said building.  We would  notice the fact of each matter in brief separately.

       Facts in appeal \026 Nusli Neville Wadia and Anr.   

4.      In this appeal a notice terminating the tenancy of first  respondent was issued on 9th February, 2001.  However, on the  premise that no ground of eviction had been mentioned therein,  another notice was issued on 18th February, 2002 enumerating the  grounds of eviction.  Replies were given thereto by the respondent.   Appellant filed an application before the Estate Officer praying for  eviction of the respondent and for damages for unauthorized  occupation of the premises with effect from 1st April, 2002 @  Rs.4,91,700/- per month with interest @ 9 % per annum thereupon.   

5.      The Estate Officer purported to be satisfied that the occupation  of the first respondent is unauthorized and that an order of eviction  may have been passed against it issued a show cause notice to  respondent No.1 on 28th July, 2003 under Section 4 of the Act.  The

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grounds for first respondent\022s  eviction as set out in the application  were :-   \0231.  The New India Assurance Co. Ltd. needs and  requires the premises for its own use and  occupation for accommodating its own senior  executives ;  

2.      The New India Assurance Co. Ltd. is being evicted  from tenanted premises and being called upon to  pay exhorbitant rents for tenanted premises ;

3.      Increase in business, globalization of economy and  liberalization of policies have necessitated the New  India Assurance Co. Ltd. to use and occupy the  New India Assurance Co. Ltd.\022s own properties ;

4.      The tenancy of Respondent No. 1 has been duly  terminated by the New India Assurance Co. Ltd.\022s  notice dated 18.02.2002;

5.      Respondent No.1 is a rich and wealthy industrialist  who has several flats for his residence.\024 6.      Notice was also issued on the same date i.e. 28th July, 2003  under the provisions of Section 7(3) of the Act calling upon the  tenant-respondent to show cause why he should not be required to pay  damages.  Reply to the formal show cause notices were filed by the  first respondent on 23rd February, 2004.  A detailed written statement  was filed by him on 3rd September, 2004.   

7.      Upon an application filed by the appellant,  the Estate Officer  by an order dated 26th August, 2005 directed the first respondent to  lead evidence wherein his advocate was directed to file an affidavit of  evidence.  The matter was adjourned for cross-examination of the first  respondent\022s witnesses by the appellant\022s advocate.  First Respondent,  however, filed an application before the Estate Officer praying inter  alia that he should vary his order dated 26th August, 2005 and direct  the appellant to lead its evidence first and offer its witnesses for cross- examination by the first respondent whereafter he would file his  affidavit of evidence.  The said application was rejected by the Estate  Officer by an order dated 12th January, 2006.  Aggrieved by and  dissatisfied therewith the first respondent filed a writ petition before  the Bombay High Court which, by reason of the impugned judgment,  has been allowed.   

       Facts in appeal   -  KLM Engineering Co. Pvt. Ltd. and Ors.  

8.      Respondent No.1 was inducted as a licensee in a furnished flat  in an apartment in the said building.  The period of lease was for 5  years beginning from 1st October, 1994.  Allegedly on the premise that  the respondent No.1 did not renew the \021licence\022 by giving two  months\022 prior notice as required, a notice to quit and handover  possession was issued on 13th December, 1999.  In response to the  said notice the respondents contended that they had exercised their  option to renew the licence vide their letter dated 9th December, 1999.   Thereafter by a notice dated 9th February, 2001 the tenancy of  respondent No.1 was terminated by the appellant.  As the said notice  did not contain any ground for termination of tenancy, another notice  was issued on 18th February, 2002.  Composite application was filed  by the appellant under Sections 4 and 7 of the Act before the Estate  Officer on 16th January, 2003 whereupon two show cause notices  were issued by the Estate Officer to the first respondents in terms of  Section 4 and 7(3) of the Act on 21st February, 2003.  

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9.      Before the Estate Officer, the appellant filed its affidavits of  evidence.  Dates after dates were fixed for cross-examination of the  witnesses of the appellant.  Appellant had been taking adjournments  in the matter.  On 22nd August, 2005 the first respondent moved an  application for direction before the Estate Officer.  On or about 20th  September, 2005 the appellant had filed an application inter alia  stating that as it had already placed all the evidence on record, it was  for the first respondent to file its evidence and produce witnesses first  for cross-examination by it and prayed inter alia for the following  relief :- \023the Opposite Party be directed to show cause to  the Statutory Notice issued by the erstwhile  Learned Estate Officer under sections 4 and 7 of  the PP Act and the case submitted by the  Applicants.\024    

       By order dated 30th January, 2006 the Estate Officer directed  the first respondent to lead evidence by the following order :-

\023Both applications disposed of.  Application dated  22nd August, 2005 of the Opposite Party is not  allowed.  As regards application dated 20th  September 2005 taken out by the Applicants, I  direct the Opposite Party to file their documents  and witness affidavits in lieu of evidence in chief  on or before 21.02.2006 complete inspection of  documents, if any, by 28.02.2006 and adjourn the  matter to 03.03.2006 at 3.30 p.m. for further  directions.\024  

10.     Aggrieved by and dissatisfied therewith, the Respondent Nos.   1 and 2 filed a writ petition before the High Court being W.P. No. 557  of 2006 which has been allowed by reason of the impugned order.

Contentions 11.     Mr. P.N . Lekhi, learned senior counsel appearing on behalf of  the appellant inter alia submitted:  

i)      Having regard to the scheme of the 1971 Act and the Rules  framed thereunder  the respondent-tenant should have been  directed to lead evidence.   ii)     The Estate Officer having satisfied itself that the respondent- tenant was in unauthorized occupation of the public  premises, it was for the tenant to establish that his  occupation is authorized. iii)    The premises in question being a public premises the  Noticee does not enjoy any protection as envisaged under  the provisions of the Maharashtra Rent Control Act, 1999  and in that view of the matter termination of tenancy itself is  sufficient for directing eviction of the tenant and thus, the  onus would lie upon the respondent to show that it is not in  unauthorized occupation.  iv)     The procedure prescribed under the Act for eviction of the  unauthorized occupants being governed by the provisions of  the Act and the Rules thereunder, the provisions of the Code  of Civil Procedure or the Evidence Act would not be  attracted.   v)      The High Court committed a serious error in passing the  impugned judgment relying on  or  on the basis of the  guidelines issued by the Central Government which have no  statutory force;  being advisory in character, and as such the  same could not have been relied upon ignoring the statutory  enactment.   vi)     The Division Bench of the High Court acted illegally in so

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far as it failed to take into consideration several binding  precedents operating in the field.

12.     Mr. F.S. Nariman, learned senior counsel, appearing on behalf  of the first respondent in Civil Appeal arising out of SLP (C) No.8232  of 2006 would submit that: (a)     Section 4 of the Act deals with two types of cases;  first \026  those who are in unauthorised occupation in the sense of  being in occupation without any authority therefor which  is governed by the first part of Section 4 of the Act; and  second, those who have continued in occupation of  public premises as Rent Control Acts permitted them to  continue to occupy but in respect whereof the tenancy  has been terminated \023for any reason whatsoever\024 as  envisaged in Section 2(g) of the Act. (b)     Whereas in the first group of cases the onus of proof  would be on the tenant to establish that no order of  eviction should be passed, however, in the second group  of cases it would be for the landlord to establish their  bona fide need, although the provisions of the Code of  Civil Procedure and the Evidence Act stricto sensu are  not applicable, having regard to the statutory scheme as  also the principles of natural justice which are required to  be complied with.   (c)     As the Act and the Rules envisage a lis between the  parties and the decision of the Estate Officer is an  appealable one,  not only evidence is required to be  recorded , an opportunity to cross-examine the witnesses  must also to be given.   (d)     A party to the lis cannot ordinarily be directed to prove a  negative and in that view of the matter, it would be for  the insurance company to lead evidence at the first  instance.   13.     Mr. Anil B. Diwan, learned senior counsel appearing on behalf  of respondent Nos. 1 and 2 in Civil Appeal arising out of SLP (C) No.  10348 of 2006 submitted that: (1) As a composite application for eviction as also the     damages has been filed and a composite notice having  been issued, the onus of proof lay upon the appellant.   (2) Appellant having filed an affidavit of its witnesses  accepted that it was for it to lead evidence and having  taken a large number of adjournments on the dates fixed  for cross-examination of the said witnesses, could not  have gone back thereupon and contended that it was for  the respondents to lead evidence.   (3) As the principle of natural justice contemplate cross- examination of the witnesses as also inspection of  documents, the High Court cannot be said to have  committed an error in passing the impugned judgment.  

THE ACT 14.     Indisputably the respondents herein are not protected tenants  under the provisions of the Maharashtra Rent Control Act, 1999.            

15.     Section 15 of the Act bars the jurisdiction of a civil court or any  other court to entertain any proceedings in respect of eviction of any  person who is in unauthorized occupation of any public premises.   Public premises has been defined in Section 2(e) to mean any  premises belonging  to, or taken on lease by any corporation  established by or under a Central Act and owned or controlled by the  Central Government.  It is not in dispute that the premise in question  is a public premise.   

16.     Section 3 of the Act provides for appointment of an Estate

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Officers.  Sections 4 provides for issuance of a show cause notice in  the following terms :-

\023Section 4 - Issue of notice to show cause against order  of eviction - (1) If the estate officer is of the 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, 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.\024

17.     Section  5 deals with the procedure for eviction of unauthorized  occupants. It reads :- \023Section 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 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 refused or fails to comply with the order  of eviction on or before, the date specified in the said  order or within fifteen days of its publication under sub- section (1) whichever is later, the estate officer or any  other officer duly authorized by the estate officer in this  behalf may evict that person from, and take possession  of, the public premises and may, for that purpose, use  such force as may be necessary.\024

18.     Section 7 empowers the Estate Officer to require payment of  rent or damages in respect of public premises by the person who is in  unauthorized occupation thereof.  

19.     Section 9 provides for appeal from an order of the Estate  Officer.   

THE RULES;

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          20.     Rules have been framed by the Central Government in exercise  of its powers under Section 18 of the Act known as the Public  Premises (Eviction of Unauthorised Occupants) Rules, 1971.  Rule 5,  which is material for these appeals reads as under :-            \0235.  Holding of inquiries. \026 (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 such  evidence and any relevant documents filed before him  shall form part of the records of the proceedings. \023  

GUIDELINES

21.     A tenant of a public premise although ordinarily does not get  any protection from eviction from the tenanted premises under the  provisions of the Maharashtra Rent Control Act, 1999, it is accepted  that the action of the part of the landlord, which is a State within the  meaning of Article 12 of the Constitution of India must in this behalf  be fair and reasonable.  In other words the action of the State in terms  of the provisions of the Act should not be arbitrary, unreasonable or  mala fide.  With that end in view only, and for determining the legal  effect arriving thereunder, the Central Government had, from time to  time, issued several guidelines.  The guidelines so issued are dated  14th January, 1992 ; 5th August, 1992 ; 7th July, 1993 ; 14th July, 1993 ;  23rd July, 1993;  9th June, 1998, 2nd September, 2002 and 23rd July,  2003.  In terms of the said guidelines, however, a distinction is sought  to be made between a tenant who is rich or industrialist etc. vis-a-vis a  person who is poor and uses the tenanted premises only for his  residence as would appear from the guidelines dated 23rd July, 2003,  the relevant portion whereof reads as under :-

\0233.  The Government Resolution dated  30.05.2002 embodies the guidelines dated  14.01.1992 for observance by the Public Sector  Undertakings.  However, clarification was issued  vide OM No.21011/790 Pol.1 IV.H.11 dated  07.07.1993 that the guidelines are meant for  genuine non affluent tenants and these are not  applicable to the large business houses and  commercial entrepreneurs.\024   

22.     Issuance of such guidelines, however, is not being controlled by  statutory provisions.  The effect thereof is advisory in character and  thereby no legal right is conferred upon the tenant.   (See 1990 (Supp)  SCC 440 at 508 : Narendra Kumar Maheshwari  vs.   Union of India  and others ;  (1981) 1 SCC 166 at 232 : Maharao Sahib Shir Bhim  Singhji  vs.  Union of India and others ;  (1988) 4 SCC 464 (paragraph  31) : J.R. Raghupathy and others  vs.  State of A.P. and others ; (2002)  100 DLT 487 : Uttam Parkash Bansal and others  vs. L.I.C. of India  and 1992 (2) CLR 457 : Punjab National Bank  vs.  M/s. The Lord  Krishna Paper Industries and others.      

23.     We may, however, hasten to add that having regard to the fact  that the appellants themselves referred to guidelines issued by the  Central Government from time to time,  its ultimate effect on the  application need not be finally determined by us.   

APPLICATION OF THE ACT AND THE RULES

24.     Where an application is filed for eviction of an unauthorized

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occupant it obligates the Estate Officer to apply his mind so as to  enable him to form an opinion that the respondent is a person who has  been in unauthorized occupation of the public premises and that he  should be evicted.  When a notice is issued in terms of Section 4 of  the Act, the noticee may show cause.  Section 5 of the Act postulates  that an order of eviction must be passed only upon consideration of  the show cause and any evidence produced by him in support of its  case also upon giving him a personal hearing, if any, as provided  under clause (ii) of sub-section 2 of Section 4 of the Act.   

25.     Although Section 5 ex-facie does not make any classification in  regard to the two classes of tenancies but the same is evident from the  decisions rendered by this Court as also by the different High Courts.        26.     The occupants of public premises may be trespassers, or  might  have breached the conditions of tenancy, or have been occupying the  premises as a condition of service, but were continuing to occupy the  premises despite cessation of contract of service.    

27.     However, there may be another class of tenants who are  required to be evicted not on any of the grounds mentioned  hereinbefore but inter alia on the ground, which requires proof of the  fairness and reasonableness on the part of the landlord which may  include requirement for its own use and occupation.         28.     Furthermore a proceeding may be initiated under Section 4  simplicitor.  A composite proceedings may also be initiated both  under Sections 4 and 7 of the Act.  In the latter category of cases the  landlord would be required to establish not only the bona fide need on  its part but also quantum of damages to which it may hold to be  entitled to, in the event that an order is passed in favour of the  establishment.        29.     Admittedly in these cases two notices for eviction were issued.   If the contention of Mr. Lekhi is correct, the first notice was not  required to be withdrawn and the second notice was not  required to  be issued, specifying the grounds on which the eviction of the  respondents were sought for.   

30.     When an application for eviction is based on such grounds,  which require production of positive evidence on part of the landlord,  in our opinion, it would be for it to adduce evidence first; more so in a  composite application where the evidence is also required to be led on  the quantum of damages to be determined by the Estate Officer.    31.     There may be a case where the tenant may take a defence which  discloses no prima facie case in which event the Estate Officer may  ask him to lead evidence.  But there may be cases where the ground of  eviction, having regard to the defence taken by the occupants, may be  required to be gone into.         32.     Appellant\022s stand in this case is clear and unambiguous.  It  intends to evict the respondents on the grounds specified in the notices  issued by the Estate officer.       33.     The Estate Officer with a view to determine the lis between the  parties must record summary of the evidence.  Summary of the  evidence and the documents shall also form part of the record of the  proceedings.   

34.     Procedure laid down for recording evidence is stated in the  Rules.  The Estate Officer being a creature of the statute must comply  the same.  When a notice is issued, the occupant of the public  premises would not only be entitled to show cause but would also be  entitled to produce evidence in support of the cause shown.

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CONCEPT OF FAIRNESS 35.     The procedural aspect as to who should lead evidence first, thus  may have to be determined on the basis of the issues arising in the  matter.  When we say so,  we do not mean that the procedure involved  being a summary one, the issues are required to be specifically framed  but that which is the principal  issue(s) between the parties must be  known to the Estate officer.       36.     Thus under the Public Premises (Eviction of Unauthorized  Occupants) Act, 1971 the occasion would arise for multi-level  inquiry: Primary inquiry will be to arrive at a conclusion on  \023unauthorized occupant\024; and intermediate inquiry would be as to the  eviction of \023unauthorized occupant\024.       37.     The question has been succinctly dealt with by a Division  Bench of the Bombay High Court in: Minoo Framroze Balsara  vs.   Union of India and others (1992 Bom 375) wherein Bharucha, J. (as  the learned Chief Justice then was) opined: \023the Government  company or corporation must so act not only when terminating the  authority of an occupant of public premises of its ownership to occupy  the same but also when, thereafter, it seeks his eviction therefrom\024.        38.    The statute, although, does not require a lengthy hearing or a  lengthy cross-examination but the noticee should be given an  opportunity to file an effective show cause.  An effective show cause  can be filed when eviction is sought for a specified ground and the  occupants must know the particulars in relation thereto.    39.     For the said purpose, Sections 4 and 5 of the Act must be read  together.  Even the Rules which are validly framed must be read  alongwith the statutory provisions.  Ordinarily although a tenant  occupying the property belonging to a government may be somewhat  in a worse position than a tenant having protection under the Rent  Control Act as has been held by a Full Bench of the Calcutta High  Court in AIR 1968 Calcutta 1 : Standard Literature Co. Private Ltd.  and Ors.  vs. Union of India, but with a view to interpret the  provisions of the Act, we must take into consideration the decisions of  this Court laying down the concept of \021bona fide act\022 and the \021fair  action\022 on the part of the owner as laid down in (1989) 3 SCC 293  Dwarkadas Marfatia and Sons  vs.  Board of Trustees of the Port of  Bombay  and (1990) 4 SCC 406 : Ashoka Marketing Ltd vs.  Punjab  National Bank.          40.     In Dwarkadas Marfatia (supra) this Court clearly held that \023the  public authorities which enjoy this benefit without being hidebound  by the requirements of the Rent Act must act for public benefit.   Hence, to that extent, that is liable to be gone into and can be the  subject matter of adjudication\024.  Dwarkadas Marfatia was applied in  Ashoka Marketing (supra) stating :- \02369. It has been urged by the learned counsel for  the petitioners that many of the corporations  referred to in Section 2( e )(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

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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 Dwarkadas  Marfatia and Sons v. Board of Trustees of the Port  of Bombay  (SCC p. 306, para 27)  \023...every activity of a public authority especially in  the background of the assumption on which such  authority enjoys immunity from the rigours of the  Rent Act, must be informed by reason and guided  by the public interest. All exercise of discretion or  power by public authorities as the respondent, in  respect of dealing with tenants in respect of which  they have been treated separately and distinctly  from other landlords on the assumption that they  would not act as private landlords, must be judged  by that standard.\024  These observations were made in the context of the  provisions of the Bombay Rents, Hotel and  Lodging Houses Rates (Control) Act, 1947  whereby exemption from the provisions of the Act  has been granted to premises belonging to the  Bombay Port Trust. The consequence of giving  overriding effect to the provisions of the Public  Premises Act is that premises belonging to  companies and statutory bodies referred to in  clauses (2) and (3) of Section 2( e ) of the Public  Premises Act would be exempted from the  provisions of the Rent Control Act. The actions of  the companies and statutory bodies mentioned in  clauses (2) and (3) of Section 2( e ) of the Public  Premises Act while dealing with their properties  under the Public Premises Act will, therefore, have  to be judged by the same standard.\024  

Constitutional Backdrop    41.     Constitutional validity of the Act as also its predecessors\022 Act  being Public Premises (Eviction of Unauthorised Occupants) Act,  1958 and the Government Public Premises Eviction Act, 1950 was  challenged in several proceedings.  The Public Premises Act, 1950  was struck down in AIR 1956 All. 507 (DB) Brigadier Commandant,  Meerut  vs. Gangaprasad ; 58 CWN 1056 : Jaggu Singh  vs.  Shakuat  Ali and 1957 (59) PLR 621 :  Satish Chander  vs.  Delhi Improvement  Trust.  1950 Act was repealed by the Public Premises (Eviction of  Unauthorised Occupants) Act, 1958  wherein, however the  jurisdiction of the civil court was not barred.  A Constitution Bench of  this Court in 1967 (3) SCC 399 : Northern India Caterers Pvt. Ltd. vs.   State of Punjab held Section 5 thereof to be void as an additional  remedy over and above the usual remedy by way of a suit was  conferred thereby providing for  two alternative remedies or leaving it  to the unguided discretion of the Statutory Authorities to resort to one  or the other procedure.   Northern India Caterers Pvt. Ltd. (supra),  however, was overruled by a Bench of 7 Judges of this Court in   (1974) 2 SCC 402 : Maganlal Chaganlal  vs.  Municipal Corporation.   We must also notice that 1958 Act was struck down by Delhi High  Court in  P.L. Mehra  vs.  D.R. Khanna (Civil Writ No. 431 of 197).   

42.     On the aforementioned premises the 1971 Act was enacted after  removing the vice which led to it having been declared as void with  effect from 16th September, 1958.  It suffered another challenge in  (1972) 2 SCC 259 :  Hari Singh  vs.  Military Estate Officer.   However, the challenge to its validity was negatived holding that the  1971 Act did not provide for two procedures but only one procedure.   Yet again in (1988) 4 SCC 324 : Accountant and Secretarial Services   vs.  Union of India challenge to the validity of the Act on the premise

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that one of the officers of the Statutory Authority may be appointed as  an Estate Officer and thus violative of Article 14.  However, the Court  negatived the challenge and observed:  \02432. Dr Chitale, while initially formulating his  contentions, outlined an argument that the  provision in the 1971 Act appointing one of the  officers of the respondent Bank as the Estate  Officer is violative of Article 14. We do not see  any substance in this contention. In the very nature  of things, only an officer or appointee of the  government, statutory authority or corporation can  be thought of for implementing the provisions of  the Act. That apart, personal bias cannot  necessarily be attributed to such officer either in  favour of the bank or against any occupant who is  being proceeded against, merely because he  happens to be such officer. Moreover, as pointed  out earlier, the Act provides for an appeal to an  independent judicial officer against orders passed  by the Estate Officer. These provisions do not,  therefore, suffer from any infirmity. In fact, Dr  Chitale did not pursue this objection seriously.\024       43.     It was on the aforementioned premise that the dicta laid down  in  Ashoka Marketing Ltd. (supra)  must be considered wherein this  Court held that the Act overrides Delhi Rent Control Act, 1958,  although both were Acts of Parliament.  

Natural Justice Issue:

44.     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.  [See 1984 (1) SCC 43 :  K.L. Tripathi  vs. State Bank of India  and others  and 2005 (10) 634 : Lakshman Exports Limited  Vs.: Collector of Central Excise]       45.     We may also take note of the fact that this Court in 1972 (1)  SCR 241 : Bareilly Electricity Supply Co. Ltd.  vs.  The Workmen  this Court held as under :-  \023The application of the 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 material 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.\024

46.     It is axiomatic that when in support of its case the landlord  intends to rely upon a document which is to be taken on record, it  would be obligatory on the part of the Estate Officer to allow  inspection thereof to the noticee.  Denial of such inspection of  documents shall be violative of the principle of natural justice.  It  would run counter to the doctrine of fairness in the matter of  determination of a lis between the parties.

47.     We may also notice that in (2007) 1 SCC 174 :    Sarbananda  Sonowal (II) vs. Union of India   this Court having regard to the fact  that burden of proof was on the notice held : \02356. Status of a person, however, is determined  according to statute. The Evidence Act of our

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country has made provisions as regards \023burden of  proof\024. Different statutes also lay down as to how  and in what manner burden is to be discharged.  Even some penal statutes contain provisions that  burden of proof shall be on the accused. Only  because burden of proof under certain situations is  placed on the accused, the same would not mean  that he is deprived of the procedural safeguard.\024             It was observed : \02360. Having regard to the fact that the Tribunal in  the notice to be sent to the proceedee is required to  set out the main grounds; evidently the primary  onus in relation thereto would be on the State.  However, once the Tribunal satisfied itself about  the existence of grounds, the burden of proof  would be upon the proceedee.\024   Interpretative Approval  48.    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 it is 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 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.   49.     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.   50.     Except in the first category of cases, as has been noticed by us  hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to  be construed differently in view of the decisions rendered by this  Court.  If the landlord being a State within the meaning of Article 12  of the Constitution of India is required to prove fairness and  reasonableness on its part in initiating a proceeding, it is for it to show  how its prayer meets the constitutional requirements of Article 14 of  the Constitution of India.  For proper interpretation not only the basic  principles of natural justice have to be borne in mind, but also  principles of constitutionalism involved therein.  With a view to read  the provisions of the Act in a proper and effective manner, we are of  the opinion that literal interpretation, if given, may give rise to an  anomaly or absurdity which must be avoided.  So as to enable a  superior court to interpret a statute in a reasonable manner, the court  must place itself in the chair of a reasonable legislator/ author.  So  done, the rules of purposive construction have to be resorted to which  would require the construction of the Act in such a manner so as to  see that the object of the Act fulfilled; which in turn would lead the  beneficiary under the statutory scheme to fulfill its constitutional  obligations as held by the court inter alia in Ashoka Marketing Ltd  (supra).   51.     Barak in his exhaustive work on \021Purposive Construction\022  explains various meanings attributed to the term \023purpose\024. It would  be in the fitness of discussion to refer to Purposive Construction in

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Barak\022s words: \023Hart and Sachs also appear to treat \023purpose\024 as a  subjective concept.  I say \023appear\024  because, although  Hart and Sachs claim that the interpreter should imagine  himself or herself in the legislator\022s shoes, they introduce  two elements of objectivity: First, the interpreter should  assume that the legislature is composed of reasonable  people seeking to achieve reasonable goals in a  reasonable manner; and second, the interpreter should  accept the non-rebuttable presumption that members of  the legislative body sought to fulfill  their constitutional  duties in good faith. This formulation allows the  interpreter to inquire not into the subjective intent of the  author, but rather the intent the author would have had,  had he or she acted reasonably.\024

     (Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87)   

52.     In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and  Ors., (2007) 6 SCC 81, this Court held: \023The Parliament moreover is presumed to have enacted a  reasonable statute (see Breyer, Stephen (2005): Active  Liberty: Interpreting Our Democratic Constitution,  Knopf (Chapter on Statutory Interpretation - pg. 99 for  "Reasonable Legislator Presumption" ).\024   53.     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.  [See 2007 (7) Scale 753 : Oriental Insurance  Co. Ltd.  vs. Brij Mohan and others.]   

Conclusion: 54.     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 Edition Volume 2 at pg. 1584  it is  stated as under:-  

\023Principle and Scope .- This section is based on the  rule, ie incumbit probation qui dicit, non qui negat  \026 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 or proof.  \023It is an  ancient rule founded on consideration of good  sense and should not be departed from without  strong reasons.\024  [per LORD MAUGHAM in  Constantine Line  vs.  I S Corpn. (1941) 2 All ER  165, 179].  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 improving a  negative than in proving an affirmative [Hals 3rd  Ed Vol 15 para 488].                                           (Emphasis supplied)       55.     The said principle has been approved by this Court in (1983) 4  SCC 491: Shambhu Nath Goyal  vs.  Bank of Baroda and others ;  (1999) 8 SCC 744  :Garden Silk Mills Ltd. and another vs. Union of  India and others and (2007) 2 SCC 433 (para 18) : J.K. Synthetics Ltd.  vs.  K.P. Agrawal and another.

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           56.     We, however, must not shut our eyes to the objects for which  the Act was enacted.  It provided for a speedy remedy.  The Estate  Officer is expected to arrive at a decision as expeditiously as possible.   The provisions of the Code of Civil Procedure and Evidence Act  being not applicable, what is necessary to be complied with is the  principles of natural justice.   

57.     Even if we assume that in terms of the statutory provisions the  respondents must lead evidence first the same can be waived,    Appellant not only had filed affidavits in one of the cases but time and  again sought adjournments when the deponent of the affidavit was to  be cross-examined.  Although the appellant had pleaded requirements  of the premises on an urgent basis, it kept on taking adjournments for  more than 2 years.  Why the witnesses were not produced before the  Estate Officer for cross-examination for such a long time is not  known.  Only after a long period,   an application was filed asking the  respondents to show cause.  Cause had already been shown by the  respondents.  They pleaded that no case has been made out for their  eviction.  We, therefore, fail to understand on what basis the Estate  Officer passed the order impugned before the High Court.               58.     We, therefore, direct that both the parties must file their  documents within a week from today and the Estate Officer must give  both the parties inspection of the said documents within a week  thereafter.  In the appeal arising out of SLP (C) No. 10348 of 2006 the  appellant must file the affidavits of its witnesses within two weeks  and thus shall be produced for cross-examination within one week  thereafter.  In appeal arising out of SLP (C) No. 8232 of 2006 the  witnesses must be produced for cross-examination as expeditiously as  possible, but not beyond a period two weeks.   

59.     The proceedings before the Estate Officer, being summary in  nature, the cases must go on a day to day basis.  The Estate Officer is  directed to pass a final order, as expeditiously as possible but not  beyond a period of 10 weeks from the date of receipt of a copy of this  order.   60.     These appeals are dismissed with the aforesaid direction with  costs.  Counsel fee in each case is assessed at Rs.25,000/- (Rupees  twenty five thousand only).