Kailash Gambhir, J.@mdashThis order shall dispose of a batch of six writ petitions bearing Nos. W.P.(C) 4152/2007, 4153/2007, 4160/2007,
4163/2007, 4164/2007 & 4166/2007.
2. In these petitions filed under Article 226 of the Constitution of India, the petitioners seek quashing of the common order dated 9.5.2007 passed
by the learned ADJ in PPA No. 87/2005 in exercise of appellate jurisdiction conferred u/s 9 of the Public Premises (Eviction of Unauthorized
Occupants) Act 1971. The petitioners also seek quashing of the common eviction order dated 25th April, 2005 passed by the learned Estate
Officer in respect of the premises under the occupation of the present petitioners.
3. Brief facts relevant for deciding the present petitions are that in 1947 the petitioners were allotted their respective shops on rent by the Nizam of
Hyderabad for running different trades like meat shop, barber shop, tailoring shop, fair price shop, grocery shop, etc. On 2.3.1994, a termination
notice was served on the petitioners on the ground that the said premises were being used for commercial purposes whereas they were allotted for
residential purpose. The petitioners had filed a suit for permanent injunction bearing no 240/1994 which was disposed of with the direction of
restraining the respondents from taking possession except in accordance with law. Thereafter a notice dated 23.9.2000 u/s 4 of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 was served on the petitioners and consequently an eviction order dated 25.4.2005 was
passed by the Estate Officer. The petitioners preferred an appeal against the order of the Estate Officer whereby vide judgment dated 9.5.2007,
the learned ADJ upheld the order of the Estate officer. Impugning the order dated 25.4.2005 and judgment dated 9.5.2007, the petitioners have
preferred the present petitions.
4. Ms. Takiyar, counsel for the petitioners, submits that both the courts below i.e. Estate Officer as well as the learned ADJ failed to consider the
fact that the notice of termination served by the respondent as well as show cause notice issued by the Estate Officer u/s 4 of the Public Premises
Act itself are illegal and void as the only ground disclosed in the legal notice for declaring the petitioners as unauthorized occupants in respect of
their premises is that they were using their premises contrary to the letting out purpose. The contention of the counsel for the petitioners is that the
premises were let out by the predecessor of the respondent i.e. Nizam of Hyderabad for running of various shops, small time trades, business etc.
in favour of the petitioners right from the inception of the letting. Counsel further submits that in the rent receipts the specific trades were duly
disclosed. Inviting attention of this Court to some of the receipts filed in W.P.(C) 4152/2007 the counsel point out that the letting purpose has been
clearly mentioned as running of a meat shop. Similarly in other cases also, counsel submits that the letting purpose has been disclosed indicating the
name of the trade for which the shops were let out in favour of the petitioners. Counsel further submits that the petitioners had placed on record
these receipts before the Estate Officer as well as before the Appellate Court and these receipts pertain to the period from 1955 onwards but both
the courts below have overlooked the said receipts and wrongly held the letting purpose as residential. Counsel further submits that once the
documentary evidence clearly indicating the letting purpose was placed on record, the same could not have been ignored by the courts below.
Counsel further submits that no documentary evidence was placed on record by the respondent to contradict or rebut the said documentary
evidence placed by the petitioners in the shape of rent receipts. In support of her arguments counsel for the petitioners has placed reliance on the
following judgments:
1. Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, .
2. Ex. Havaldar Kailash Singh and Sons Vs. Union of India (UOI) and Another, .
3. Pyare Lal v. Estate Officer and Anr.2006 2 AD (Delhi) 28.
4. Dr. Yash Paul gupta v. Dr. S. S. Anand and Ors. AIR 1980 J & K
5. Premlata Bhatia Vs. Union of India (UOI) and Others, .
5. Refuting the said submissions of the counsel for the petitioners, counsel for the respondent submits that this Court while exercising writ
jurisdiction under Article 226 of the Constitution of India will not re-appreciate the findings of facts arrived at by both the courts below. He further
submits that in the legal notice the letting purpose was clearly spelled out which was residential and therefore, now the petitioners cannot be heard
to say that the letting purpose was commercial. Counsel further submits that the petitioners were admittedly grantees in respect of the shops in
question and therefore, their licenses were terminated on account of the breach committed by them. During the course of his arguments counsel has
produced photo copy of one draft lease deed and states that the same was executed between Naseerudeen as lessee and the Nizam of
Hyderabad as lessor through one Mr. M. Edward. On being questioned as to why this draft lease deed was not placed on record before the
Estate Officer and before the Appellate Authority, counsel states that the same being very old, the officials of the respondent with great difficulty
could lay their hands on the same. Counsel further submits that the petitioners were in unauthorized occupation of the premises in question from
2nd March, 1994 when the grant in their favour was revoked by the respondent. Counsel further submits that the learned Estate Officer has
carefully gone into the question of letting purpose but did not find merit in the pleas raised by the petitioners. Counsel further submits that both the
courts below have gone in depth to deal with the contentions raised by the petitioners and no illegality or perversity can be found in the reasoning
given by them.
6. In support of his arguments, counsel for the respondent placed reliance on the following judgments:
1. The Indian Bank v. Blaze and Central (P) Ltd.and Ors. AIR 1986 Kar 258.
2. New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, .
3. Hardwari Lal Verma Vs. The Estate Officer and Others, .
4. Ruby Advertisers v. Delhi Development Authority 105(2003) DLT 92.
5. Rajvaidya Gune''s Shahu Aryoushadi Karnataka Ltd. and Anr. v. The Collector of Kolhapur JT 1996(9) SC 437.
7. I have heard learned Counsel for the parties at considerable length and given my thoughtful consideration to the pleas raised by them.
8. Vide legal notice dated 2nd March, 1994 the Government of Andhra Pradesh, successor-in-interest of the Nizam of Hyderabad called upon
these petitioners to hand over the vacant possession of the premises under their occupation within a month''s time, whereafter they will be deemed
to be considered as trespassers/unauthorized occupants in the premises under their occupation. The main ground for termination of the said lease
was that these petitioners have been using the premises under their occupation for running their respective trades although as per the grant/lease,
these premises were let out to them for residential purpose only. It would be appropriate to reproduce below the following paragraphs taken from
one of the legal notice here:
1. By virtue of a lease deed, a quarter behind Dhobi Ghat in the premises of Hyderabad House has been leased out for your own residence on
monthly rental and on such terms and conditions as contained in the said Deed of Lease.
2. xx xx
3. xx xx
4. xx xx
5. xx xx
6. In spite of the fact that the said grant/lease was for your residential purposes only, you had been using the said quarter for running the Meat
Shop, in clear violation of the terms of the grant. In spite of the notice earlier issued to you, you have not desisted from using the quarter for running
the Meat shop.
7. In terms of the said grant/lease, the Lessor, the Government of Andhra Pradesh shall not wish to allow you to continue in the said quarter.
9. Pursuant to the said legal notice, the Estate Officer issued a show cause notice under Sub-section (1) and Clause (b)(ii) of Sub-section (2) of
Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The ground given in one of such notices is reproduced as
under:
1. The grant/lease/licence/permission granted to Shri Naseeruddin to occupy and use the premises mentioned in the Schedule below has been
revoked/terminated by the State of Andhra Pradesh; and your present occupation of the said premises is an unauthorized occupation within the
meaning of the said Act.
2. Proceeding against you for evicting you from the said premises ""by due process of law"" is permissible and warranted in law.
10. All these petitioners contested the proceedings before the Estate Officer and vide order dated 25.4.2005, the Estate Officer found all these
petitioners to be in unauthorized and illegal occupation of the premises. Accordingly they were directed to hand over peaceful vacant possession of
the premises to the respondent within a period of 15 days. Aggrieved with the said order, the petitioners preferred an appeal before the learned
Additional District Judge u/s 9 of the Public Premises Act and vide order dated 9.5.2007 the learned ADJ did not find any merit in the said
appeals and consequently dismissed the same.
11. The principal contention raised by the counsel for the petitioners is that both the Courts below failed to appreciate that the ground for declaring
the petitioners as unauthorized occupants itself was non-existent as the respective premises in favour of the petitioners were let out to them for
commercial purposes and, therefore, there was no question of any kind of breach on the part of the petitioners so far the letting purpose of the
same was concerned. Counsel for both the parties did not raise any other controversy, but confined their arguments to the said limited issue as to
whether the show cause notice served by the Estate Officer was itself illegal and void as the petitioners could not have been declared unauthorized
occupants in respect of the premises under their occupation within the meaning of Section 2(g) of the Public Premises Act.
12. Before proceeding in the matter further it would be apt to reproduce Section 4 of the Public Premises Act as under:
4. Issue of notice to show cause against order of eviction. - (1) If the estate officer is of 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 before such date as is specified in the notice, being a date not earlier than seven days form
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 duly given to all persons concerned.
The aforesaid provision clearly envisages that in a case where the Estate Officer was of the opinion that any persons are in unauthorized occupation
of any public premises and they deserve to be evicted then the Estate Officer shall issue notice in writing calling upon such persons to show cause
as to why an order of eviction shall not be made against them. The clear mandate of the above provision is that such a notice should specify the
grounds based on which the order of eviction is proposed to be made. In the case in hand, the ground given in the notice as reproduced above is
that the grant/lease/permission granted in favour of these petitioners have been revoked/terminated by the State of Andhra Pradesh and, therefore,
their occupation of the premises in question became unauthorized within the meaning of the above provision. Clearly no specific ground on which
the order of eviction was proposed by the Estate Officer has been mentioned in the said notice. It appears that the formation of such an opinion on
the part of the Estate Officer is based upon the legal notice dated 2nd March, 1994 sent by the respondent to the petitioners. Although the notice
of show cause issued by the Estate Officer should have clearly spelt out the ground of eviction, but since this issue has not been addressed by the
counsel, therefore, this Court is proceeding in the matter taking the said formation of opinion by the Estate Officer based on the legal notice dated
2nd March, 1994 wherein the reason for declaring the petitioners as unauthorized occupants was that they were using the premises contrary to the
terms of the grant/lease. As per the legal notice, the premises in favour of the petitioners were let out for their own residence but they started using
the premises for commercial purposes in breach of the terms of the lease. It is not in dispute that the respondent did not place on record any lease
deed or any other document to show the purpose of letting being residential. In the legal notice also, it was vaguely mentioned that by virtue of the
lease deed, the premises were let out for residential purposes. No date or particulars of such lease deed have been given by the respondent in the
legal notice. No such lease deed was also placed on record by the respondent before Estate Officer or the Appellate Court and not even before
this Court. It is only during the course of arguments that counsel for the respondent sought to produce a photocopy of the draft lease agreement
which too does not inspire any confidence in the absence of any proper details of the premises etc. given in the draft lease deed. The petitioners on
the other hand have placed on record the rent receipts wherein the predecessor of the respondent i.e. Nizam of Hyderabad has clearly indicated
the purpose for which the premises were let out to the petitioners. For example, in the case of Naseeruddin, petitioner in W.P. (C) No.
4152/2007, in the rent receipts issued in his favour the purpose spelt out has been for running a meat shop. Likewise, in the case of petitioner
Rajinder Singh in W.P. (C) No. 4166/2007 the purpose of letting has been disclosed as running of a tailoring shop. These receipts are old receipts
pertaining to the period from 1955 onwards and, therefore, in the absence of any other documentary evidence to the contrary there is no reason to
disbelieve these receipts. Even the respondent has not denied the said receipts or to raise any plea contrary to the letting purpose disclosed in the
said receipts. It is a settled legal position that in the teeth of documentary evidence, oral evidence contradicting such documentary evidence cannot
be looked into unless the party setting up oral evidence successfully proves any novation of the contract between the parties. Once the said
documentary evidence was placed on record by the petitioners right from the stage of the proceedings before the Estate Officer, the oral stand of
the respondents pleading execution of some lease deed wherein the purpose of letting was disclosed as ''residential'' deserves outright rejection.
13. As already discussed above, the only ground for declaring these petitioners unauthorized occupants is that these petitioners were using the
premises for commercial purposes in breach of the terms of their lease, but since no such lease was placed on record or any other documentary
evidence to substantiate the said plea was produced on record by the respondent, therefore, the legal notice dated 2nd March, 1994 and the show
cause notice served by the Estate Officer u/s 4 of the PP Act becomes illegal, void and without jurisdiction. It is quite surprising that neither the
Estate Officer nor the Appellate Court have taken any pain to look at these receipts and at least to discuss the import and effect of these receipts
on the controversy involved. It would be pertinent to refer to the judgment in the case of New India Assurance Company Ltd. Vs. Nusli Neville
Wadia and Another, where the Apex Court has held that:
Where an application is filed for eviction of an unauthorised 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 unauthorised 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.
...
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. Procedure laid down for recording evidence is stated in the Rules. The Estate
Officer being a creature of the statute must comply with 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.
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.
Thus under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 the occasion would arise for multi-level inquiry: primary inquiry
will be to arrive at a conclusion on ""unauthorised occupant"", and intermediate inquiry would be as to the eviction of ""unauthorised occupant"".
The question has been succinctly dealt with by a Division Bench of the Bombay High Court in Minoo Framroze Balsara v. Union of India wherein
Bharucha, J. (as the learned Chief Justice then was) opined: AIR 389 36
36... the 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.
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. 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 along with the statutory provisions.
14. Another contention of the counsel for the respondent was that the High Court in exercise of its writ jurisdiction would not interfere with the
findings of facts arrived at by Courts below. It is a settled legal position that in a proceeding under Articles 226 and 227 of the Constitution of
India the High Court cannot sit in appeal over the findings recorded by the competent authority or courts below. Undoubtedly the jurisdiction of
the High Court, therefore, is supervisory and not appellate. But it is also a settled law that if on a mere perusal of the order of an inferior court if the
High Court comes to a conclusion that such a court has committed manifest error by misconstruing certain documents, or the High Court comes to
the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the court or the court has ignored
to take into consideration certain relevant materials, then the High Court will be fully justified in interfering with the findings of the inferior court.
15. Hence, in view of the aforesaid discussion, I find merit in the contention raised by the counsel for the petitioners. The judgments cited by the
learned Counsel for the respondent are not applicable to the facts of the present case. This Court accordingly allows all these petitions and sets
aside the orders passed by the learned Estate Officer dated 25th April, 2005 and order dated 9th May, 2007 passed by the learned ADJ.