Gujarat High Court

Arifhusain Shabbirbhai Masani vs Estate Officer on 19 August, 2023

Bench: Vaibhavi D. Nanavati

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 8924 of 2016

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                       ARIFHUSAIN SHABBIRBHAI MASANI
                                   Versus
                         ESTATE OFFICER & 1 other(s)
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Appearance:
MR C B UPADHYAYA(3508) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 19/08/2023

                                ORAL ORDER

1. Rule returnable forthwith. Mr. H.S. Munshaw, learned

advocate waives service of notice of rule for and on behalf of

the respondents.

2. By way of present petition, the petitioner herein has

challenged the impugned orders dated 13.04.2016 passed in

Regular Civil Appeal No.23 of 2012 and the order dated

22.03.2012 passed by the competent authority in Eviction

Case No.3 of 2011 and further prayed to hold that the

petitioner herein is authorized to occupy the land being factory

plot No.14/A, situated at Bhavanagar by virtue of leasehold

rights.








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3. Heard Mr. C.B. Upadhyaya, learned advocate appearing

for the petitioner and Mr. H.S. Munshaw, learned advocate

appearing for the respondents.

4. By way of present petition, the petitioner herein invoking

the Article 226 of the Constitution of India has prayed for the

following reliefs:

      "a.      To admit and allow the present petition;

      b.     to be pleased to quashed and set aside the impugned orders

dated 13.04.2016 passed in regular civil appeal number 23/2012 and may further be pleased to quashed and set aside the order dated 22.03.2012 passed by the competent authority in eviction case number 3/2011 and may further be pleased to hold that the petitioner herein is authorized to occupy the land being factory plot number 14/A, situated at Bhavanagar by virtue of his leasehold rights.

c. Pending hearing and final disposal of the present petition, may kindly be pleased to stay the institution/implementation/operation of the impugned orders dated 13.04.2016 passed in regular civil appeal number 23/2012 by the appellate authority under the provisions of section 9 of the act as well as order dated 22.03.2012 passed by the competent authority in eviction case number 3/2012.

d. To grant any other appropriate and just relief/s."

5. The undisputed facts germane for adjudication of the

present petition are that the petitioner herein is engaged in the

business of iron re-rolling as well as iron ore. The land situated

at factory plot No.14/A, Bhavanagar, has been allotted in

favour of the petitioner since 1960 on leasehold basis. The said

land was originally owned by the Bhavnagar Municipal

Corporation and the petitioner has been in occupation of the

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said land since 1960.

6. Mr. Upadhyaya, learned advocate, submitted that the

petitioner herein is holding the plot No.14/A situated at

Gadhechi River, Kumbharvada area, Bhavnagar, which was

given to the petitioner on 17.08.1990 for industrial purpose for

further period of 30 years by passing the Resolution No.33

dated 30.05.2007 subject to certain terms and conditions.

6.1. Mr. C.B. Upadhyaya, learned advocate appearing for the

petitioner, submitted that on 04.08.2011, when the plot-in-

question was visited by the Officer of the Corporation, it was

found that the factory was not in use and no industrial

activities were going on, also permanent structure was seen

and Rojkam was carried out to the said effect. Mr. Upadhyaya,

learned advocate, submitted that the petitioner herein did not

adhere to the terms and conditions and did not use the said

plot for industrial purpose and the construction was not

regularized as per the order of extension of lease dated

31.05.2007 and therefore, it was held that the petitioner

herein was in breach.



6.2    Mr. Upadhyaya, learned advocate appearing for the






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petitioner, submitted that the respondent - Corporation

preferred an application before the competent authority on

24.08.2011 and thereafter, the competent authority issued

show cause notice under Section 4 of the Act to the petitioner

herein. By the impugned order dated 22.03.2012, the

application filed by the respondent - Corporation came to be

allowed by the competent authority. Being aggrieved by the

said order, the petitioner herein preferred an appeal under

Section 9 of the Act whereby, the appellate authority

confirmed the order dated 22.03.2012 passed by the

competent authority under Section 4 of the Act. It is the case

of the petitioner herein that while preparing the panchnama

there was no evidence on record to show that the said plot was

not used for industrial purpose and that there was a breach

committed by the petitioner herein. Further, it was also

contended that said order is a non-speaking order.

6.3 Mr. C.B. Upadhyaya, learned advocate appearing for the

petitioner, submitted that the facts of the present case are

identical to the facts of Special Civil Application No.7899 of

2019 wherein, by order dated 25.06.2019 considering the ratio

as laid down by the Hon'ble Supreme Court in case of New

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India Assurance Company Ltd. Vs. Nusli Neville Wadia and Anr. ,

reported in (2008) 3 SCC 279, the Coordinate Bench of this

Court quashed and set aside the impugned order.

7. Mr. H. S. Munshaw, learned advocate appearing for the

respondents, was not in a position to controvert to the

aforesaid submissions advanced by Mr. C.B. Upadhyaya,

learned advocate appearing for the petitioner.

8. Considering the facts of the present case, it is apposite to

refer to the order dated 25.06.2019 passed in Special Civil

Application No.7899 of 2016. Paragraphs 8, 9, 10, 11, 12 and

13 of the said order read thus:

"8. Having heard the rival submissions and having perused the documents on record, it appears that the dispute pertains to two factory Plot Nos. F/25/A and 25/B at Motitalav Road Area, Bhavnagar, where the petitioner was initially given on lease for the purpose of carrying out manufacturing activity. Upon expiry of the initial period of lease, by Resolution dated 30-05-2008 No.33, the lease period was renewed for the period of 30 years with effect from 18-03-2003. Pursuant to the Resolution, the lease agreement came to be entered into which stipulated several conditions. The Conditions, if perused, would indicate that the petitioner was to carry out construction and complete such construction within period of two years or else the lease deed was to be treated as canceled. Condition No.18 of the lease deed stipulates the condition that in case of breach of the conditions mentioned in the lease deed, the lease deed can be canceled. Perusal to the lease deed, does not indicate any condition with regard to starting of manufacturing activity within period of one year from the lease agreement. It cannot be so logically also as the lease agreement in question was for the renewal of the lease deed already executed in favour of the petitioner. Therefore, finding recorded by the Competent Authority that there is a breach of condition as manufacturing activity could not commence within period of one year appears to be erroneous.







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9. It appears from the record that the industrial activity of manufacturing was being conducted. Thereafter, the panchnama came to be drawn on 04-08-2011. On perusal of the 'Rojkam' dated 04-08-

2011, it does not indicate any detail about the status of manufacturing activity. On one particular day, if the manufacturing activity is closed, cannot be termed to be conclusive proof that there is no manufacturing activity at all. Moreover, 'Rojkam' also indicates that there is no signature on the part of the representative of the petitioner or the petitioner. 'Rojkam' produced does not appear to be decided by way of examining the panch witnesses even before the Competent Authority.

10. Therefore, in the opinion of this Court, the panchnama dated 04- 08-2011 cannot be treated as conclusive evidence of no manufacturing activity in the lease premises.

11. Over and above, the petitioner has produced the electric consumption bills as well as bills pertaining to purchase of raw materials and sale of finished products. This documentary evidence produced, has been discarded by the Competent Authority by creating artificial difference like electric bills appear of different place and not that of petitioner. Such difference, if not conclusively examined, more particularly, when the electricity bill admittedly runs in the name of the petitioner and therefore, cannot be discarded. Foundation question is whether the petitioner is unauthorized occupant. Section - 2(g) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, defines 'unauthorized occupation' and for the purpose of facts of the present case, the petitioner could not be declared as unauthorized occupant or whether the petitioner had continued in occupation of the public premises after the authority under which the petitioner was ready to occupy the premises had expired or had been determined. In the present case, nothing is on record to suggest that lease period has expired or the lease agreement has been determined.

12. In view of the aforesaid, it cannot be conclusively held that the petitioner is unauthorized occupant so as to invoke the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The reliance on the judgment of the Apex Court in the case of New India Assurance Company Ltd. (supra) to hold that onus is upon the noticee-unauthorized occupant to establish that his occupation is not unauthorized is clearly misreading of the judgment of the Apex Court. The Apex Court in the aforesaid judgment, has held as under:

"49. 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

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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. 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.

51. 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).

55. 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:-

"Principle and Scope .- This section is based on the rule, ie incumbit probation qui dicit, non qui negat 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. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reasons. [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

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in proving an affirmative [Hals 3rd Ed Vol 15 para 488]." (Emphasis supplied)"

13. In view of the aforesaid, the Petition deserves to succeed and hence, stands allowed. The judgment and order dated 13th April, 2016 passed by the Principal District Judge, Bhavnagar, and order dated 1.5.12 of Competent Officer, Bhavnagar Municipal Corporation is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent.