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PETITIONER: MADHUKAR S/O. M. LAPALIKAR

       Vs.

RESPONDENT: D.V. HINGWE & ORS.

DATE OF JUDGMENT04/12/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SINGH, K.N. (J)

CITATION:  1987 AIR  570            1987 SCR  (1) 402  1987 SCC  (1) 164        JT 1986   972  1986 SCALE  (2)950

ACT:     Central  Provinces and Berar Letting of House  and  Rent Control  Order, 1949, clause 25, scope of--Applicability  of the summary procedure of eviction--Case of Appellant both an evictee and a Government servant -Burden of Proof..

HEADNOTE:     The appellant who was residing at House No. 546 situated at  Dhantoli area at Nagpur was evicted from the said  prem- ises on the ground of bona fide requirement of its landlord. Therefore  he became an "evicted person" within the  meaning of section 2(2) of the Central Province and Berar Letting of House  and  Rent  Control Order, 1949.  Being  a  Government employee  he applied to the House Allotment Officer that  he may be allotted House No. 406/1 under clause 24A of the said Control  Order  simultaneously  indicating that  he  was  an "evicted  person" also. The premises came to his  occupation on the orders passed by the House Allotment Officer in 1960. The appellant retired from service on 1.5.1978. On 10.9.1979 one Vijay Mude, one of the respondents, moved an application before  the House Allotment Officer for vacating the  appel- lant  from the premises on the ground that he  has  retired. The  said  application under clause 25 of the  Rent  Control Order  was  contested by the appellant that it was  not  ap- plicable as he was an "evicted person" under clause 2(2)  of the Control Order. Having lust before all courts, the appel- lant came by way of special leave. Allowing the appeal, the Court,     HELD: 1.1 On the scheme of the different clauses it  was only when a person was granted an allotment as a  government servant, then and then only can clause 25 be invoked for his eviction.  In other cases, the clause 13 will  be  relevant. The  summary procedure of clause 25 could only be  available in  case  of recovery of possession given to a person  as  a government servant on his retirement. Indeed the  provisions are  peculiar. Even if a government servant goes  on  earned leave or is transferred even then he becomes disentitled  to remain  in possession of the premises in question and  would be  liable to be evicted by virtue of clause 25 of the  said Rent Control Order. Being drastic in nature, therefore,  one who  seeks  allotee’s  eviction has to  establish  that  the

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allotment to the person whose eviction is sought was made in the capacity 403 contemplated under clause 25. Clauses 23, 24A and 25 of  the Rent Control Order deal with three independent categories of persons and the summary procedure on proper construction  of clause 25 was applicable only where allotment is given to  a tenant  as a tenant. Clause 25 would not operate, if a  Gov- ernment  servant happened to be an evictee and an  allotment is  made  in that capacity. In the instant case, on  a  con- struction of the various documents and the evidence  adduced in  this  appeal under these proceedings, it is  clear  that allotment  was  given  to the appellant as  an  evictee  who happened  to be at the relevant time a  government  servant. Therefore, on his retirement from the government service, he did  not cease to be an evictee and did not come within  the mischief  of clause 25 of the said Control Order.  [408G-409 A-409H-410B]     1.2 Even if allotment is made to a person who is both an evictee  as well as a government servant then if one of  the grounds of the order namely, that he was a government  serv- ant ceases to exist on retirement, the other reason operates i.e. he was an evictee and still continues to be an  evictee then  the allotment would continue. In this case even if  it be  held that it cannot be conclusively determined that  the order of allotment was made in favour of the appellant  only on  the ground that the appellant was an evictee but it  was made also on the ground that the appellant was a  government servant,  and after his retirement the other  ground  namely the allottee still being an evictee remained valid it can be sustained. [410 C, F]     State  of  Maharashtra & Anr. v.B.K. Takkamore  &  Ors., [1967] 2 SCR 583, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1769 of 1981     From  the  Judgment and Order dated  21.10.1980  of  the Bombay High Court in Special Civil Appln. No. 952 of 1980. V.A.  Bobde,  S.D.  Mudliar and A.G.  Ratnaparkhi,  for  the Appellant.     U.R.  Lalit, A.K. Sanghi, Prakash Khanzodi and  Ravinder Bana for the Respondents. The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI, J. The story behind  this  appeal, though  not  very relevant, reveals interesting  facts.  One N.H. Ray of Calcutta either abandoned or disappeared or died since about 1929 and his house being the premises in dispute in Nagpur lay abandoned and his heirs were not known, 404 letters written by authorities in Nagpur and by the  tenants in  Nagpur  to the address ’N.H.  Ray,  Calcutta’  naturally remained unanswered. It is alleged that a notice of sale  of the premises in question was given in the name of one  Tapan Roy  in the local newspaper. But one Bratindranath  Roy  de- scribing-himself  to be the holder of the power of  attorney on  behalf of the heirs of late N.H. Ray is alleged to  have sold  the  premises ’in question. The Southern  portion  was sold  to  the respondent D.V. Hingwe and  one  M.  Lapalikar became the allottee of the premises in question in 1960.  He wants to stay on in the premises. The alleged transferee  or alienee  of the property from the alleged heirs of N.H.  Ray fights  this  appeal in this Court after the  allotment  has been  cancelled by the House Allotment Officer in favour  of

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the  appellant, Lapalikar. But in this appeal this Court  is concerned with a very short question--whether the  appellant was granted allotment as a government employee or evictee in terms  of the Central Provinces and Berar Letting  of  House and  Rent Control Order, 1949 (hereinafter called  the  said ’Rent Control Order’).     In  order  to appreciate the point, it is  necessary  to bear  in mind that the appellant previously was residing  in another house since 1941 at House No. 546 situated at  Dhan- toli area at Nagpur. The landlord of the appellant sued  for permission to evict the appellant from the said premises  on the grounds of bona fide need of the landlord. Such  permis- sion  was  granted against the appellant in respect  of  the said  house on 23rd May, 1955. The appeal in respect of  the same  was dismissed by an order dated 26th  November,  1955. Since then the appellant had been evicted from the  premises which was in his occupation and has no residential  accommo- dation   of   his   own.  He  was   a   Central   Government employee--being  an employee of the Post and  Telegraph  De- partment of the Government of India. He made an  application for  allotment of the premises in dispute, namely  406/1  in Nagpur under clause 24-A under the said Control Order.     It  is necessary in order to appreciate the  controversy in this appeal to refer to certain documents in this connec- tion.  On or about 25th January, 1960, Shri  Lapalikar,  the appellant  herein, wrote a letter to the Additional  Collec- tor,  Nagpur.  In the said letter  the  appellant  described himself after stating his name ’Clerk P.M.G. Office,  Nagpur and a registered evictee’. In the said letter, the appellant stated  that one Dr. Shirali occupied the premises in  ques- tion  which belonged to one Shri N.H. Ray. As  Shri  Shirali proposed  to  vacate  the premises in near  future,  he  had agreed to let it out to the appellant in case permission was granted  to him to that effect. He, therefore,  prayed  that the  said house might be allotted to him in his own name  in view  of  his  difficulties and  priorities.  This  document appears  in the Paper Book as ’a copy’. Thereafter  on  27th January, 405 1960, the Additional Deputy Collector, Nagpur,  communicated to the appellant at P.M.G. Office, Nagpur that the  premises in  question has been ’provisionally allotted to  you  under clause  24-A of the C.P. & Berar Letting of Houses and  Rent Control  Order 1948 subject to further orders by  the  Addi- tional Deputy Collector, Nagpur’. This is also a copy  which appears  in  the Paper Book and which was  produced  by  the appellant.  It is necessary to emphasise this aspect of  the production  by the appellant in order to consider a  conten- tion urged by Shri Lalit, the learned advocate on behalf  of the appellant.     On the same date, intimation was given to one ’Shri N.H. Ray,  Calcutta’ without any further address  and  intimation was  sent that information had been received that  the  said house  belonging  to Shri N.H. Ray would fall vacant  on  or about  15th January. He was further informed that the  house was provisionally allotted to the appellant, P.M.G.  Office, Nagpur.  He was informed that in case he had  objection,  he might  submit the same within a fortnight thereof.  This  is also  a copy produced by the appellant. Though not  relevant for the present purpose, it makes interesting reading as  to how  Government  functioned  in the past. It  is  not  known whether it has improved since then. It was addressed to  one "Shri  N.H. Ray, Calcutta’. How a letter addressed  in  such manner could ever be conceived by anybody to be received  by the  addressee  is beyond imagination. It  informs  on  27th

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January,  1960  that the house would fall  vacant  ’on  15th instant’.  What happened to that letter no one knows.  There is a copy of Misc. Document No. 33/a/71 (6-A) of 59-60. This is regarding the allotment of the premises in question.  The Order  sheet  notes that this was an  application  from  Dr. Shirali who proposed to let out the house belonging to  Shri N.H. Ray of Calcutta. She had proposed to let it out to  the applicant,  employee  of the P.M.G. Office. Further  it  was stated that he is an evictee. This sentence was  underlined. The said document indicated that the officer  concerned  had directed registration of the case and for issue of a  provi- sional  order of allotment and one copy to be  addressed  to the  landlord on address given, another copy pasted  on  the house.  The copy of the landlord was addressed to N.H.  Ray, Calcutta which was naturally returned to the sender for full address.  The  order  sheet further recorded  that  on  16th February, 1960, Dr. Shirali had informed that she had handed over the possession to the appellant as per orders of allot- ment.  The  order  further recorded that  no  objection  was received from landlord as invited. To the same effect  there is  a  copy of a letter from Dr. Shirali to  the  Additional Collector,  Nagpur. A copy of the certified copy  of  Record Room  Register was also produced by the appellant. The  same reads as follows: 406 Application  No.  3615/79--Office of the  Collector,  Nagpur Name of the Register---Rent Controller, Nagpur. Certified copy of Record Room Register Register No. 10 Form ’C’ --Record from register for Kuliyat Papers (Rule 6). Serial  No. of major Name of  Name of case  Date of  Date of number  and minor    case in  with date     deposit  elimi- in      head.        Officer  and purport   of case  nation Record               regis-   of final or-  in re-   with Room                 ter.     der and abs-  cord     initia- Register                      tract of the  room.    ls of                               order passed           elimi-                               in appeal or           nating                               in revision,           officer 1220    A-71(6-A)    A.G.     Applicant:    5.8.60   A. file         33/59-60     Nagpur   Shri M.M.              destro-                               Lapalikar              yed                               Subject:                               Allotment                               of house.                               Order:                               16.2.60--                               provisio-                               nal allot-                               ment con-                               firmed.          Sd/illegible                                                   4.2.67                                          (True translation)                                               Advocate.     On 10th September, 1979, there was an application by one Shri  Mude  who  is one of the respondents  in  this  appeal stating that the appellant was a government servant and  had retired  two  years back and should vacate the  premises  in dispute.     Written  statement was filed on behalf of the  appellant wherein  he  stated after dealing with the  facts  that  the appellant  was  previously  staying at  premises  No.  406/1 standing on plot number (Sheet No. 20-B) which was in  occu- pation of one Dr. Shirali with whom the appellant had  inti- mate  relations and who was knowing the evictee position  of the  appellant herein non-applicant therein stated that  the

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appellant  came to know from them that they wanted to  shift to  some  other place for their family reasons. So  both  of them had approached the Rent Controller, Nagpur and  submit- ted  an application and thereafter the order had been  made. The  contention of the appellant was that he was  given  the premises  in question as an evictee though  his  description included that he was a government servant.     The short question that fails for consideration in  this case,  is,  whether the summary  procedure  contemplated  by clause 25 of the said Rent Control Order was applicable  for obtaining  possession  from  the  appellant.  The  appellant retired  indisputably on 1st May, 1978 and the House  Allot- ment Officer was 407 moved  by  an application filed by one Vijay Mude,  the  re- spondent  herein  for taking action under clause 25  of  the said Rent Control Order. The Additional District  Magistrate and  House Allotment Officer, Nagpur passed an  order  dated 13th  March,  1980 and ordered the appellant to  vacate  the premises  in question within one month from the date of  the order.  The said order had been challenged by the  appellant by a petition filed before.the High Court under Article  226 of  the  Constitution. The High Court by  its  judgment  and order upheld the eviction order.     The  appellant  challenged the same in  this  Court  and special leave was sought for. In the meantime the  appellant was  dispossessed by virtue of the order of  eviction  which was confirmed by the High Court. In the Special Leave  Peti- tion on 16th December, 1980, this Court had directed  resto- ration  of  possession and had further  directed  the  House Allotment  Officer  to make a report.  The  House  Allotment Officer  has  made a report. Special Leave was  granted  and this  appeal  was expedited. The documents  annexed  to  the report  of  the House Allotment Officer are the  same  which have been noticed herein.     Clause  2(2)  of  the said Rent  Control  Order  defines ’displaced  person’  and ’evicted person’ is  defined  under sub-clause (2-a) of clause 2 of the said Order. There is  no dispute  that  the appellant is and was an  evicted  person. Clause 22 of the Order deals with the collection of informa- tion  and letting of accommodation. Clause 23  is  important and the relevant part of the same is as follows:               "23.  (1)  On  receipt of  the  intimation  in               accordance with clause 22, the Collector  may,               within  fifteen days from the date of  receipt               of the said intimation, order the landlord  to               let the vacant house to any person holding  an               office  of  profit under the  Union  or  State               Government  or  to any person holding  a  post               under the Madhya Pradesh Electricity Board, or               to a displaced person or to an evicted  person               and  thereupon notwithstanding  any  agreement               to,  the contrary, the landlord shall let  the               house to such person and place him in  posses-               sion  thereof immediately, if it is vacant  or               as soon as it becomes vacant".     Clauses  24, 24-A and 24-B deal with the power to  allot the  house in the manner indicated in those clauses  of  the Order. Clause 25 is relevant and is as follows.               "25.  The  tenancy of any  person  holding  an               office  of  profit under the  Union  or  State               Government  or  to any person holding  a  post               under the Madhya Pradesh Electricity Board and               placed in               408

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             possession of a house by an order under clause               23 or 24-A shall terminate on the date of  the               transfer  of,  or  gram of  leave  other  than               casual  leave, to such person or on  the  date               from  which  such  person ceases  to  hold  an               office  of  profit under the  Union  or  State               Government or ceases to hold a post under  the               Madhya Pradesh Electricity Board, as the  case               may  be, and the said person shall vacate  the               said house within seven days of such date  and               the landlord and tenant shall give the intima-               tion prescribed in clause 22 to the  Collector               in respect of such house;               Provided that on sufficient cause being  shown               to  the Collector he may, in  his  discretion,               extend  the tenancy by a period not  exceeding               four months. The  position  is that the appellant is both an  evictee  as well  as a Government servant of the  category  contemplated under  clause 23. The fact that the appellant is an  evictee is indisputable. The fact that the appellant is a government servant  of the category contemplated by clause 23  is  also indisputable.  The fact that the appellant has retired  from government  service is also indisputable. The question,  is, whether  he  could be evicted under  the  summary  procedure contemplated under clause 25. This will depend upon in  what category or in what capacity the appellant was allotted  the premises  in question. There is no evidence of the  applica- tion  made  by the appellant for the allotment. No  copy  is available  in  the records and no copy was produced  by  the appellant. The appellant has produced other documents  rele- vant  to this issue as we have indicated hereinbefore.  Shri Bobde  appearing for the appellant contends in  this  appeal that the appellant was allotted the premises in question  as an evictee. He draws our attention to the documents produced as  we have indicated before. He submits that the  appellant was allotted the premises in question as an evictee. He  was not entitled to be evicted on his retirement.     On  the other hand, Shri Lalit, advocate for the  trans- feree of the landlord as supported by Shri Bandra,  advocate for  the claimant-respondent submits that from the order  it was  apparant that the premises in question was given  as  a government servant. The priority in which the appellant  was classed  was because of his being a government  servant.  He drew our attention to the relevant clauses of the Order.  On the  scheme of the different clauses, we are of the  opinion that it was only when a person was granted an allotment as a government  servant,  then and then only can  clause  25  be invoked for his eviction. In other cases, clause 13 will  be relevant.  The summary procedure of clause 25 could only  be available  in  case  of recovery of possession  given  to  a person as a government servant on his retirement. Indeed the provisions  are peculiar. Even if a government servant  goes on  earned  leave  or is transferred even  then  he  becomes disentitled to remain in possession of the premises in 409 question  and  would be liable to be evicted  by  virtue  of clause  25 of the said Rent Control Order. Being drastic  in nature, therefore, one who seeks allottee’s eviction has  to establish  that the allotment to thee person whose  eviction is sought was made in the capacity contemplated under clause 25.  Shri Lalit contends strenuously that the appellant  had the chance to produce all the documents before the Allotment Officer,  but he failed to do so. He had another  chance  to produce the relevant documents after the Order of this Court

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when  the  matter was remanded back for  fresh  enquiry.  He failed  to do so. Shri Lalit contends that on  this  ground, adverse presumption should be drawn against the appellant as he has produced other documents in his custody. It is undis- puted  that the original records are not available, and  are destroyed.  There  is nothing on evidence to show  that  the copy  of the original application of allotment made  by  the appellant was still in possession of the appellant. That  is not  in  evidence.  It was submitted that he  was  given  an opportunity to give evidence and as such subject himself  to cross-examination  when there was an enquiry ordered by  the Enquiry  Officer directed by this Court, but  the  appellant failed  to  avail  of that  opportunity.  Therefore  adverse presumption,was to be drawn against him. It is not, however, possible  to draw such adverse presumption in the facts  and circumstances  of  this case. No ground has  been  made  for compelling  the appellant to step into the witness  box  and subject himself to cross-examination. It cannot be  presumed simply  because some documents or some copies of some  docu- ments were in the custody of the party, all other  documents or all copies relevant for the issue would be in the custody of  that person and nonproduction of such  documents  cannot expose him open to adverse presumption. Such argument cannot be sustained.     It  was submitted before the High Court that  clause  25 applies only to the premises which were let out to a  person under clauses 23 and 24-A of the Control Order and where the allottee  was an evictee, clause 25 had no application.  The High  Court was of the view that it is clear from clause  25 that two conditions were required to be fulfilled before the said  clause could be applied namely, (i) the allottee  must be holding an office of profit under the Union or the  State Government,  or  holding  a post under  the  Madhya  Pradesh Electricity Board, and (ii) that he was placed in possession of  the premises under clause 23 or clause 24-A. But  it  is clear that clause 25 read as a whole indicates clearly  that the  person against whom the clause would be operative  must be an allottee of the premises allotted to him in his capac- ity as a government servant and was placed in possession  of the  premises  as  a government servant. We  are  unable  to accept the High Court’s view, that the clause does not  make any  exception in case of a government servant who  happened to be an evictee. These clauses deal with three  independent categories  of persons and the summary procedure  on  proper construction  of clause 25 was applicable only where  allot- ment is given to a tenant as a government servant. The  High Court  was  of the view that even if  a  government  servant happened to be the evictee on his 410 retirement,  clause 25 would operate. We are unable to  sus- tain this reasoning. If allotment was made to an allottee in his  capacity as an evictee then clause 25, in our  opinion, on  a proper construction of the said clause, would have  no application. Further on a construction of the various  docu- ments  and the evidence adduced in this appeal  under  these proceedings,  it  is clear that allotment was given  to  the appellant  as an evictee who happened to be at the  relevant time a government servant. Therefore, on his retirement from the  government service, he did not cease to be  an  evictee and  did  not come within the mischief of clause 25  of  the said Control Order.     We are further of the opinion that even if allotment  is made to a person who is both an evictee as well as a govern- ment servant then if one of the grounds of the order namely, that he was a government servant ceases to exist on  retire-

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ment,  the other reason operates i.e. he was an evictee  and still  continues to be an evictee then the  allotment  would continue.  See in this connection the observations  of  this Court in The State of Maharashtra & Anr. v. B.K. Takkamore & Ors., [1967] 2 SCR 583. Where this Court reiterated that  an administrative  or  quasi-judicial order  based  on  several grounds,  all taken together, could not be sustained  if  it was  found  that some of the grounds  were  non-existent  or irrelevant and there was nothing to show that the  authority would have passed the Order on the basis of the other  rele- vant  and existing grounds. But, an Order based  on  several grounds  some  of  which were found to  be  non-existent  or irrelevant  could  be sustained if the Court  was  satisfied that the authority would have passed the Order on the  basis of other relevant and existing grounds and the exclusion  of the  irrelevant or non-existent grounds would not  have  af- fected the ultimate opinion or decision.      In  this  case  even if it be held that  it  cannot  be conclusively determined that the order of allotment was made in  favour  of  the appellant only on the  ground  that  the appellant was an evictee but it was made also on the  ground that  the appellant was a government servant, and after  his retirement the other ground namely the allottee still  being an evictee remained valid it can be sustained.      In  the  premises we are of the opinion that  the  High Court  was  in  error and the appeal must  be  allowed.  We, however, make it quite clear that this order will not preju- dice  the rights, if any, of the respondents or whoever  may be entitled to get possession to proceed under clause 13  of the said Control Order to evict the appellant.      In  the premises this appeal is allowed. The order  and judgment  of the High Court are set aside. In the facts  and circumstances  of the case, we direct that the parties  will pay and hear their own costs. S.R.                                                  Appeal allowed. ?411