Holding

Clause 25 is applicable only when the allotment is made in the capacity of a government servant; an allotment made as an evictee remains valid after retirement and cannot be evicted under clause 25.

Summary

Madhukar Lapalikar, an evicted tenant and a Central Government employee, was allotted a house in Nagpur in 1960 under clause 24A of the Central Provinces and Berar Letting of House and Rent Control Order, 1949, as an evictee. After retiring in May 1978, a respondent applied under clause 25 of the same Order to evict him, arguing that the allotment was based on his status as a government servant. The High Court upheld the eviction, but the Supreme Court held that clause 25 applies only when the allotment is made in the capacity of a government servant; since Lapalikar’s allotment was as an evictee, the clause did not apply. Moreover, his evictee status persisted after retirement, so the allotment remained valid. Consequently, the eviction order was set aside.

Issues considered

Whether clause 25 of the Central Provinces and Berar Letting of House and Rent Control Order, 1949 is applicable to evict a person who is both an evictee and a government servant upon retirement.
Whether the retirement of a government servant terminates his status as an evictee for purposes of the Rent Control Order.

Legislation cited

Central Provinces and Berar Letting of House and Rent Control Order, 1949s. clause 23, s. clause 24A, s. clause 25

Subjects

evictionrent controlclause 25evicteegovernment servantsummary procedureallotmentretirementlandlord-tenant law

Judgment

MADHUKAR S/O. M:LAPALIKAR
A v.
D.V. HINGWE & ORS.

DECEMBER 4, 1986

B [SABYASACHI MUKHAR.11 AND K.N. SINGH, JJ.]

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

c The appellant who was residing at House No. 546 situated at Dhantoli
area at Nagpur was evicted from the said premises 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
D House Allotment Officer that he may b"llotted House No. 406/l under clause
24A of the said Control Order simultaneously indicating that he was an "evicted
person" also. The premises came to his m:cupation on the orders passed hy the
House Allotment Officer in 1960. Th<: 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 appellant from
E the premises on the ground that he has retired. The said application under
clause 25 of the Rent Control Order was •mntested by th~ appellant that it was
not applicable as he was an "evicted person" under clause 2(2) of the Control
Order. Having lost before all courts, the appellant came by way ofspecialleave.

Allowing the appeal, the Court,
F
HELD: 1.1 On the scheme of the different clauses it was only when ~
preson was granted an allotment as a gov.=ment servant, then and then only
can clause 25 be invoked for his eviciton. In other cases, the clause 13 will be
relevant. The summary procedure of claus1' 25 could only be available in case of
recovery of possession given to a person as a government servant on his
G retirement. Indeed the provisions are pec11liar. Even if a government servant
goes on earned leave or is transferred enn 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',; eviction has to establish that the,
allotment to the person whose eviction i!i sought was made in the capacity
H

402
MADHUKAR v. D.V. HINGWE 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 A
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
Government servant happened to be an evictee and an allotment is made in that
capacity. In the instant case, on a construction of the various documents and
the evidence adduced in this appeal under these proceedings, it is clear that B
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-409A-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 c
was a government servant ceases to exist on retirement, the other reason
ov.erates i.e. he was an evictee and still continues to be an evictee then the
allotment would continue. In this case even if it he 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 D
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
E
583, applied. :

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1769of1981

From the Judgment and Order dated 21.10.1980 of the Bombay High
Court in Special Civil App In. No. 952 of 1980.
F
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.
G
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 ab_andoned and his heirs were not known, H
404 SUPREME COURT REPORTS [1987] 1 S.C.R.

A letters wriiten by authorities in Nagpur and by the tenants in Nagpur to the
address 'N.H. Ray, Calcutta' naturally remained unanswered. It is alleged thata
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 describing-himself to
be the holder of the power of attorney on behalf of the heirs of late N.H. Ray is
B 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 the appellant, Lapalikar. But in this appeal this
Court is concerned with a very short question-whether the appellant" was
C _ granted allotment as a· government employee or evictee in terms of the Central
PrO\inces 'and Berar _Letting- of House and R;mt 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
D appellant previously was residing in another house since 1941 at House No. 546
situated af Dhantoli 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 permission 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
E had been ·evicted from the premises which was in his occupation and has no
residi:ntW accommodation ·of his own. He was a Central Government
employee-being an employee of the Post and Telegraph Department 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 app_reciate the controversy in this appeal to refer
· to certain documents in this connection. On or about 25th Janu~ry. 1960, Shri
Lapalikar, the appellant herein, wrote a letter to the Additional Collector,
Nagpur. Jn the said letter the appellant described himself after stating his name
G 'Oerk P.M.G; Office, Nagpur and a registered evictee'. In the said letter, the
appellant stated that one Dr. Shirali occupled the premises in question 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
H document appears in the Paper Book as 'a (:ppy'. Thereafter on 27th January,
MADHUKAR v. D.V. HINGWE [MUKHARJI, J.] 405
A
. 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 CP. & Berar Letting of
Houses and Rent Control Order 1948 @bject to further orders by the
Additional 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 B
emphasise this aspect of the·production by th< appellant in order to consider a
contention 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 liad been
received that the said house belonging to Shri N.H. Ray would fall vacant on or c
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 D
one 'Shri N.H. Ray, Calcutta'. How a letter addressed in such manner could
ever be conceived by any body to be received by the addressee is beyond
imagination. It informs on 27th 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-(i(},.This is regarding the allotment of
;.., the premises in question. The Order sheet notes that this was an application E
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 applica.nt, 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 tlie case and for issue of a provisional order of allotment
and one copy to be addressed to the landlord on address given, another copy F
pasted on the house. The copy of the landlord was addressed to N.H. Ray,
Calcutta which was naturally returned tothe sender for full address. The order
sheet further recorded that on 16th February, 1960, pr. Shirali had informed
that she had handed over the possession to the appellant as per orders of
allotment. The order further recorded that no objection was receiv<;d from
landlord as invited. To the same effect there is a copy ofa letter from Dr. Shirali G
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:

H
406 SUPREME COURT REPORTS [1987] I S.C.R.

Application No. 3615/79-0fficc of the Collector, Nagpur
A Name of the Register-Rent Controller, Nagpur.

Certified copy of Record Room Rer:;ister Register No. 10
Form 'C'-Record from register for Kuliyat Papers (Rule 6).

Serial No. of major Name of Name of Nature of case with Date of Date of
B number and minor Ca'ie in Revenue date and purport of deposit elimina-
in head. Officer Officer final order and of case tion with
Record register. abstract of the order in record initials of
Room passed in appeal or room. eliminat-
Register in reVision, if any. ing officer.
1220 A-71(6-A) A.G. '\pplicant: 5.8.60 A. file
33/ 59-<iO Nagpur Shri M.M. Lapalikar destroyed
Subject Allotment
c of house.
Order: 16.2.60-
provisional allotment
c·onfirmed.
Sd/ illegible
4.2.67
D
(True translation)
Advocate.

On IOth 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
E government servant and had retired two years back and should vacate the
premises in dispute.

Written statement was filed on bel:alf of the appellant wherein he stated
after dealing with the facts that the appellant was previously staying at premises
No. 406/ I standing on plot number (Sheet No. 20-B) which was in occupation
F of one Dr. Shirali with whom the appellant had intimate relations and who was
knowing the evictee position of the appellant herein non-applicant therein
stated that the 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 submitted a 1 application and thereafter the order
had been made. The contention of the appellant was that he was given the
G premises in question as an evictee though his description included that he was a
government servant.

The short question that falls for comideration in this case, is, whether the
summary procedure contemplated by clau:;e 25 of the said Rent Control Order
was applicable for obtaining possession from the appellant. The appellant
H retired indisputably on ]st May, 1978 and the House Allotment Officer was
MADHllKAR '· D.V. HINGWE [MllKHARJI, J.] 407

1 moved by an application filed by one Vijay M ude, the respondent herein for
taking action under clause 25 of the said Rent Control Order. The Additional A
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. T]Je 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 B
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
Petition on 16th December, 1980, this Court had directed restoration of C
p~ssession and had further directed the House l\llotment 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 D,
'evicted person' is defined under sub-dause (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 information and letting of
accommodation. Clause 23 is important and the relevant part of the same is as
follows:
E
"23. (I) On receipt of the intimation in acco"rdance 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 underthe Union
or State Government or to any person holding apost under the
Madhya Pradesh Electricity Board, or to a displaced person or F
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 possession 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 G
manner indicated in those clauses of the Order. Clause 25 is relevant and is as
follows. ·

"25. The tenancy ofany 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 H
408 SUPREME COURT. REPORTS [ 1987] 1 S.C. R.
Jr
possession of a house by an order under clause 23 or 24-A shall
A
terminate on the date of the transfer of, or grant 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
B person shall vacate the said house within seven days of such date
and the landlord and tenant shall give the intimation prescribed
in clause 22 to the Collector in <espect 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.
c
The position is that the appelant is both ail 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
D 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 arplication made by the appellant for the
allotment. No copy is available in the reoords and no copy was produced by the
£ appellant. The appellant has produced other documents relevant 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. \

F On the other hand, Shri Lalit, advocate for the transferee 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 S•,rvant. He drew our attention to the
relevant clauses of the Order. On the scheme of the different clauses, we are of
G 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 he 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 hi; retirement. Indeed the provisions are
peculiar. Even if a government servant goes on earned leave or is transferred
H even then he becomes disentitled to remain in possession of the premises in
MADHUKAR v. D.V. HINGWE [MUKHARJI, J.] 409

question and would be liable to be evicted by virtue of clause 25 of the said Rent A
Control Order. Being_ drastic in nature, therefore, one who seeks allottee's
eviction has to· establish thai the allotment to tile 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, hut he failed io do so. fie had another .
chance to produce the relevant documents after the ·order of this Court when B
the matter wa~ 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 otqer documents in his custody. It is undisputed
that th~ 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 appeliant was still in possession of the appellant. That is not in evidence. c
It was submitted that he was given an oppprtunity 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 D
appellant to step into the witness box ~nd subject himself to cross-examination.
It cannot be presumed simply because some documents or some copies of some
documents 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 non-
production of such documents cannot expose hil)l open to adverse
presumption. Such atgument cannot be sustained. E

- 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 .F
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 ihat the person against whom the clause would be operative must be an
allottee of the p~mises ailotteect to him in his capacity as a government servant G
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 cas~ 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
allotment is given to a teriant as a government servant. The High Court was of H.
the view that even if a government servant happened to be the evictee on his
410 SUPREME COURT REPORTS [1987] I S.C.R

A retirement, clause 25 would operate. We are unable to sustain this reasoning. If
allotment was made to an allottee in his capt.city 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 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
B
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.

c
We are further of the opinion that even if allotment is made to a person
who is both an evictee as well as a governme .1t servant then if one of the grounds
of the order namely, that he was a gove cnment servant ceases to exist on
-1 -
retirement, the other reason operates i.e. he ·was an evictee and still continues to
be an evictee then the allotment would crntinue. See in this connection the
observations of this Court in The Slate of Maharashlra & Anr. v. B.K.
Tdkkamore & Ors., [ 1967] 2 SCR 583. Where this Court reiterated that an
administrative or quasi-judicial order based -on several grounds, all taken
D together, could not be sustained if it was found that some of the groundi were
non-existent or irrelevant and there was r.othing to show that the authority
would have passed the Order on the basis of the other relevant and existing
grounds. But, an Order based on several grounds some of which were found to
be non-existent or irrelevant could be susteined if the Court was satisfied that
the authority would have passed the Order on the basis of other relevant and A
E
existing grounds and the exclusion of the irrelevant or non-existent grounds
would not have affected 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
-
F 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, hcwever, make it quite clear that this
order will not prejudice the rights, if any, of the respondents or whoever may be
G entitled to get possession to proceed under clause l3 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 bear their own costs.
H
S.R. Appeal allowed.