Full Judgment Text
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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