Judgment:
Naresh H. Patil, J.
1. Heard learned Counsel for the petitioners and the respondents.
2. As common question of law is raised in these two writ petitions they are being decided by this common judgment.
3. Rule returnable forthwith. The counsel appearing for the respondents waive service of rule. By consent, the matters are taken up for final hearing.
4. The petitioners challenge the orders dated 18-12-2007 passed by the competent authority - the Resident Deputy Collector Ahmednagar in Eviction Case No. 1/2007 and Eviction Case No. 2/2007 and the judgments and orders dated 11-4-2008 passed by the Ad-hoc District Judge-1, Ahmednagar in Regular Civil Appeal Nos.1 of 2008 and Regular Civil Appeal No. 2 of 2008.
5. The petitioners claim to be lessee of the premises owned by the Municipal Council Rahuri. The petitioners were given premises / shops on rent. The Municipal Council Rahuri issued notice to the petitioners calling upon them to vacate the subject premises. In the earlier round of litigation in an order dated 10th August 2007 passed in Writ Petition No. 4343 of 2007 this Court (Coram: R.M. Savant, J. recorded a statement made on behalf of the Municipal Council that they would withdraw notices issued to the petitioners and consequent to the withdrawal of the said notice the suits filed by the petitioners would be withdrawn by the present petitioners. On behalf of the Municipal Council a further statement was made before this Court that they would follow the procedure prescribed for eviction under the Bombay Government Premises Eviction. Act, 1955 by issuing notices to the present petitioners as provided under the said Act and thereafter the provisions of the said Act would be followed in the matter of hearing the petitioners and passing final orders under the said Act.
6. Accordingly, notices dated 17-9-2007 and 18-9-2007 under the provisions of the Bombay Government Premises (Eviction. Act 1955 (for short, 'the Act, 1955'. were issued. Consequent to the notice the petitioners filed reply addressed to the Resident Deputy Collector Ahmednagar on 2-10-2007. Along with the reply the petitioners had filed certain documents.
7. By an order dated 18-12-2007 the competent authority, Resident Deputy Collector Ahmednagar passed orders of eviction in exercise of powers under Section 4 of the Act, 1955. The said order was passed in accordance with the proforma provided in Form - A (Rule 3).
8. Being aggrieved by the said orders the petitioners preferred Regular Civil Appeal Nos.1 of 2008 and 2 of 2008 to the District Court at Ahmednagar. The Ad-hoc District Judge-1 Ahmednagar by judgment and order dated 11-4-2008 dismissed both the appeals with costs confirming the orders passed by the competent authority in Eviction Case Nos.1/2007 and 2/2007 dated 18-12-2007.
9. The learned Counsel appearing for the petitioners Shri. S.D. Kulkarni submitted that the orders passed by the competent authority are unreasoned one. The issues and grounds raised by the petitioners were not considered by the authority and the impugned orders were passed in accordance with the proforma prescribed under Form-A appended to the Bombay Government Premises (Eviction. Rules, 1960 (hereinafter - 'the Rules, 1960'). The petitioners contend that principles of natural justice were violated and appropriate opportunity of hearing was not accorded.
10. The learned Counsel Mrs. S.S. Jadhav appearing for the Municipal Council submitted that the competent authority had considered the facts of the case, the pleas raised by the Municipal Council and the reply filed by the petitioners and thereafter passed order of eviction. The enquiry conducted by the competent authority was summary in nature and, therefore, detailed reasons are not necessary. The counsel submits that the District Court had considered the issues raised by the parties and by detailed judgment and order giving reasons dismissed the appeals which would be sufficient compliance of principles of natural justice. The Municipal Council is in need of the premises for enhancing their source of income and as the matter was delayed due to earlier litigation the counsel prays that present petitions which are filed need not be entertained.
11. The learned Assistant Government Pleader Shri. V.H. Dighe produced the original record before me and and on the basis of the endorsement made in the Roznama by the competent authority contended that the petitioners had stated before the competent authority that they did not want to lead any evidence.
12. The provisions of Section 100A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 read:
100A.With effect from such date and in such municipal areas as the State Government may, by notification in the Official Gazette, specify, the Bombay Government Premises (Eviction. Act, 1955, and the rules made thereunder, from time to time, shall apply mutatis mutandis, to municipal premises in those areas as it applies to Government premiss, subject to the modifications mentioned in Schedule I A.
13. The Government of Maharashtra issued a Notification on 28th February 2007, copy of which is placed on record of this Court. The last two paragraphs of the Notification read as under:
And whereas, the Government of Maharashtra considers it expedient to provide that the Eviction Act and rules made thereunder shall, mutatis mutandis, apply to the other municipal premises, for which it has not been so applied.
Now, therefore, in exercise of the powers conferred by Section 100A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (Mah. XL of 1965. (hereinafter referred to as 'the said Act'. the Government of Maharashtra specifies that the Bombay Government Premises (Eviction. Act, 1955 (Bom II of 1956. and the rules made thereunder, from time to time, shall, with effect from 12th March 2007, mutatis mutandis, apply to the Municipal premises situated in the State of Maharashtra (excluding the areas to which it has been so applied), as it applies in Government premises, subject to the modifications mentioned in Schedule I-A appended to the said Act.
14. From the provisions of the Act, 1955 and the the Rules, 1960, it is noticed that the procedure to be adopted by the competent authority before passing orders consequent to the notice of eviction is summary in nature. The question raised in these petitions is as to whether the competent authority is entitled, in the facts of the case, to pass orders in the prescribed proforma provided under Form-A without even addressing the basic issues and without recording at least brief reasons for its satisfaction before passing orders of eviction under the provisions of the Act, 1955.
15. Perusal of the impugned orders passed by the competent authority, in the facts of the case, shows that it lacks in reasoning. The competent authority in very brief words, as prescribe in the Form-A, passed the orders. There is no dispute on the point that all the provisions of the Code of Civil Procedure, 1908 and the Indian Evidence Act are not strictly applicable to the proceedings undertaken before the competent authority.
16. The competent authority was supposed to pass final orders on the notices of eviction issued to the petitioners. The petitioners filed reply to the said notice and raised certain grounds. I have perused the said reply filed by the petitioners. For example, the petitioners raised issues like lease period, bona fide requirements of the premises of the Municipal Council for construction of shopping complex, application of the provisions of the Act, 1955, the Transfer of Property Act, the Rent Control Act and the sanctioned plan of the subject construction.
17. The roznama dated 16-10-2007 recorded by the competent authority reads that apart from reply filed by the petitioners they had nothing to say before the competent authority. In the facts of the case, considering the provisions of the Act, 1955 I am of the opinion that the competent authority ought to have addressed the basic issues raised by the petitioners and after hearing the parties on the said issues appropriate orders were passed by recording reasons. It is not necessary for the competent authority to hold a full dressed trial as if it is a Civil Court, by framing issues, but being the authority exercising powers akin to powers which are exercised by quasi judicial authorities it was incumbent on the competent authority to observe the principles of natural justice and provide appropriate opportunity to the parties and then deal with the issues in accordance with law. Appropriate reasoning on the issues raised by the parties would facilitate to appreciate the grounds on which the competent authority was satisfied for passing the eviction order. This exercise is required to be done by the competent authority keeping in mind that the nature of enquiry conducted by the competent authority is summary.
18. I may refer to the judgment delivered by Division Bench of this Court (Coram: Swatanter Kumar C.J. and J.P. Devadhar, J. in the case of Nandini J Shah v. Life Insurance Corporation of India : 2008(5)BomCR234 . The Division Bench referred to the observations of the Apex Court made in Special Leave Petition (C. Nos.8232 of 2006 and 10348 of 2006 wherein the Supreme Court held as under:.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's 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.
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....
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)ILLJ2SC : K.L. Tripathi v. State Bank of India and Ors. and : 2002(143)ELT21(SC) : Lakshaman Exports Limited v. Collector of Central Excise....
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....
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 objet of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the Court inter alia in Ashoka Marketing Ltd. (supra).
19. I am not in agreement with the submission raised by learned Counsel Smt. Jadhav for the Municipal Council that as the Appellate Court heard the contesting parties in detail and delivered an elaborate judgment the issue of absence of reasons in the order passed by the competent authority gets diluted. The Appellate Court was hearing appeals against the order of eviction passed by the competent authority. Unless the competent authority had dealt with the issue, the (14. evidence placed before it and after appreciating the contesting claims passes a reasoned order it was not possible for a higher forum to go behind the order and search or imagine the reasoning which weighed with the competent authority in passing the eviction order.
20. The competent authority therefore was required to hold summary proceeding but in the manner which is in consonance with the Act, 1955 and the Rules, 1960. In para 12 of the judgment the District Court observed:
12...The competent authority ought to have scrutinised those documents while passing eviction order in the said case, but the said order does not indicate that really the competent authority has considered all material documents while passing eviction order in that case.... .In the instant case, the competent authority has given opportunity to the appellant and thereafter it has also considered the objections of appellant while passing eviction order, by which it can be said that the competent authority has followed procedure laid down under Section 4 of the Act while passing eviction order in the said Eviction Case....
In para 13 the Lower Appellate Court further observed:
13...The competent authority has not given detail reasoning while passing eviction order, but only on that count it is not desirable to interfere in the said impugned order of the competent authority....
21. Considering the reasoning adopted by me, as aforesaid, and in view of the reported judgment in the case of Nandini (cited supra. I am of the view that, the impugned judgments and orders deserve to be quashed and set aside. The matters need to be remanded back to the competent authority.
22. The orders dated 18-12-2007 passed by the Resident Deputy Collector Ahmednagar in Eviction Cases Nos.1/2007 and 2/2007 and the judgments and orders dated 11-4-2008 passed by the Ad-hoc District Judge-1 Ahmednagar in Regular Civil Appeals Nos.1/2008 and 2/2008 are quashed and set aside. The matter is remanded back to the competent authority - the Resident Deputy Collector, Ahmednagar.
23. The competent authority shall hear the parties and pass appropriate order keeping in view the observations made in this order and strictly in accordance with the provisions of the Act, 1955. The competent authority is directed to pass final orders on the notice issued to the petitioners within six weeks from the date of receipt of the order of this Court. Both the parties undertake before this Court to effectively cooperate with the competent authority in final disposal of the matter. The parties shall appear before the competent authority at Ahmednagar on 23rd July 2008 at 11.00 a.m.
24. Rule is made absolute in the above terms with no order as to costs.