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Dr. Yash Paul Gupta Vs. Dr. S.S. Anand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 13 of 1976
Judge
Reported inAIR1980J& K16
ActsPublic Premises (Eviction of Unauthorised Occupants) Act, 1959 - Section 4(2) and 4(3)
AppellantDr. Yash Paul Gupta
RespondentDr. S.S. Anand and ors.
Appellant Advocate S.P. Gupta and; Joginder Singh, Advs.
Respondent Advocate V.K. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredS. Partap Singh v. State of Punjab
Excerpt:
- kotwal, j. 1. this appeal under the letters patent is directed against an order of a learned judge of this court, dismissing the appellant's writ petition, and upholding the order passed against him by the estates officer, evicting him from a public premises.2. put briefly, the facts leading to this appeal are as follows :the petitioner is an a-grade physician specialist in the department of health and family planning. while posted at smgs hospital, jammu, he was allotted government hospital, quarter no. 3, situate at ajayib ghar, jammu, on 10th may, 1973. a post of professor of medicine having fallen vacant in the govt. medical college, jammu, 7 candidates were interviewed by the selection committee constituted for the purpose, out of whom the appellant was also one. the appellant,.....
Judgment:

Kotwal, J.

1. This appeal under the Letters Patent is directed against an order of a learned Judge of this Court, dismissing the appellant's writ petition, and upholding the order passed against him by the Estates Officer, evicting him from a public premises.

2. Put briefly, the facts leading to this appeal are as follows :

The petitioner is an A-Grade Physician Specialist in the Department of Health and Family Planning. While posted at SMGS Hospital, Jammu, he was allotted Government Hospital, Quarter No. 3, situate at Ajayib Ghar, Jammu, on 10th May, 1973. A post of Professor of Medicine having fallen vacant in the Govt. Medical College, Jammu, 7 candidates were interviewed by the Selection Committee constituted for the purpose, out of whom the appellant was also one. The appellant, according to the respondents, not having been selected for the post was transferred to Govt. Hospital, Gandhi Nagar, Jammu, and was also called upon to vacate the premises allotted to him which he was not entitled to retain; the SMGS Hospital being attached to the Govt. Medical College, Jammu. The petitioner, having failed to vacate the premises, a notice under Section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1959 (hereinafter theEviction Act) was issued to him, calling upon him to show cause on or before 26th August, 1975, as to why he should not be evicted from the said premises. The appellant appeared before the Estates Officer on 26th August, 1975 and was given time for filing objections by or on 1st Sept. 1975. On 1st of September, 1975, however, he made an application that he was not unauthorised occupant and sought further time to file objections, at the same time making a prayer that in order to enable him to give an effective reply to the show cause notice, a file mentioned in the application may be got summoned. The Estates Officer, however, treated this application as written objections, and fixed 15th Sept. 1975 as the date for hearing, at the same time summoning some record from the SMGS Hospital, Jammu. On I5th Sept. 1975, the Estates Officer on perusal of the file summoned, held that the allotment of the appellant consequent upon his transfer from SMGS Hospital to Govt. Hospital, Gandhinagar, vide Govt. Order No. 28-MD dated 26-1-1974, having been cancelled by the Supdt. SMGS Hospital, Jammu, on 19-2-1974, he was an unauthorised occupant of the premises. He, therefore, passed an order of his eviction in terms of Section 5 of the Eviction Act. Aggrieved by this order, the appellant went in appeal to District Judge, Jammu, but there too he could not succeed and his appeal was dismissed. He, therefore, challenged both the orders, i.e. of the Estates Officer, respondent No. 4, and the District Judge, respondent No. 3, as well as Notice No. MB-Misc.-GM/74(i) dated 11-7-1974 issued to him by respondent No. 1 for intiating disciplinary proceedings against him, in a writ petition. Whereas he challenged the notice issued by respondent No. 1 on the ground that it was without jurisdiction and mala fide, he challenged the eviction order on two grounds. One, that it was against the provisions of Sections 4 and 5 of the Eviction Act, and two, that it was actuated by malice. The learned single Judge, who heard the petition dismissed the same by holding that no mala fides were established as the allegations of mala fides were vague and indefinite, and that no infraction of Sections 4 and 5 of the Eviction Act was proved. No finding one way or the other was, however, given by him in regard to the notice issued by respondent No. 1. This appeal is directed against the aforesaid order of the learned single Judge, which came to be passed on 20-2-1976.

3. Before this appeal could be taken up for final arguments, an application was made by the appellant that the respondents be directed to produce in the Court the Minutes of the Selection Committee which had interviewed the candidates in connection with the appointment of Professor of Medicine in Govt. Medical College, Jammu. This Bench on 16th December, 1978, directed the respondents to produce the aforesaid . Minutes, or if no such Minutes were at all maintained, then an affidavit of the Officer concerned to that effect. No Minutes were produced. On the other hand, affidavit of one Ghanshyam, Dy. Secretary to Government Medical Education Department, was produced, the contents whereof we shall discuss a little later.

4. Two questions which presently fall for determination are :

(i) Whether the order of eviction passed against the appellant is bad in law as there has been a violation of the provisions of Sections 4 and 5 of the Eviction Act and

(ii) Whether the aforesaid order has been passed mala fide For the sake of convenience Section 4 and Sub-section (1) of Section 5 of the Eviction Act may be reproduced as below:

'4. Issue of notice to show cause against order of eviction. -- (1) If the Estates Officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estates 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, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than 10 days from the date of issue thereof.

(3) The Estates 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 been duly given to all persons concerned.

(4) Where the Estates Officer knows or has reasons to believe that any persons are in occupation of the public premises then, without prejudice to the provisions of Sub-section (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed.'

X X X X 5. Eviction of Unauthorised Occupants. -- (1) When in pursuance of the notice under Section 4, no objection is filed, or if an objection not being an objection referred to a Civil Court under Section 6-A, is filed, then after giving the parties reasonable opportunity of producing evidence, if any, and of being heard, the Estates Officer shall, on being satisfied that the public premises or part thereof is in unauthorised occupation, make an order of eviction, for reasons to be recorded in writing, directing that the public premises or part thereof shall be vacated by the person in occupation thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of such premises.'

5. On its plain terms, Sub-section (3) of Section 4 enjoins upon the Estates Officer to serve a notice in writing upon the person, who in his opinion is in unauthorised occupation of any public premises, to show cause as to why an order of eviction should not be passed against him. This notice is to be served by having it affixed on the outer door or on some other conspicuous part of the public premises from which he is sought to be evicted, or service of the notice may be effected in any other manner prescribed by the Rules made under the Act.

6. Sub-section (4) makes it obligatory to serve a copy of the notice issued under Sub-section (3) of Section 4 on all such persons whom he knows or has reason to believe to be in possession of the public premises. This copy shall be served upon every such person either by post or by delivering or tendering it to that person, or in such other manner as may be prescribed under Rules. The expression 'without prejudice to the provisions of Sub-section (3)' makes it abundantly clear that mere failure to serve such a copy on any such person will not in any manner render the service of the notice issued under Sub-section (3) ineffective or invalid. The notice must, however, specify the ground or grounds on which the order of eviction is proposed to be made, and in no case shall the person against whom such a notice is issued be called upon to show cause against the eviction earlier than 10 days from the date the notice has been issued. A person has two options open to him after the notice is served upon him. He may either vacate the premises in case he is convinced that his occupation of the premises is unauthorised. This may very well save him from the tedium and expense of the litigation which he may have to face before the Estates Officer. Where, however, he considers either that the premises from which he is sought to be evicted is not a public premises as defined in Section 2 of the Eviction Act, or that his occupation of the public premises is not unauthorised, he may resist the eviction proceedings. Where he chooses to face the proposed eviction proceedings, equity, good conscience and fair play demand that he should have a reasonable notice of the grounds upon which his eviction is sought, as obviously he would not be in a position to put up his defence without actually knowing what precisely is the case against him. That is why Clause (a) of Sub-section (2) of Section 4 contains a mandate to the Estates Officer, that he shall specify the grounds on which the order of eviction is proposed to be made. In the instant case a copy of the notice given to the appellant has also been served upon him. There is, however, a significant variance between the copy supplied to the appellant and its original which is on the file of the Estates Officer, inasmuch as no ground whatsoever has been mentioned in the copy, whereas its original contains the ground which is :

'You have occupied Govt Quarter un-authorisedly.'

Clearly, therefore, ft cannot be said that the copy supplied to the appellant was indeed a copy of the notice served upon him under Sub-section (3) of Section 4. Why the ground of eviction wag withheld from the appellant in serving the aforesaid copy on him is not quite understandable to us, nor any explanation has been tendered by the Estates Officer for this glaring omission. Whether it was a bona fide accidental slip, or it was a calculated design to keep the appellant in the dark may be anybody's guess, Be that as it may, as we have already opined, that even non-service of such a copy would not render the service of notice under Sub-section (3) invalid, we shall confine ourselves to the validity of the original notice served upon the appellant in terms of Sub-section (3).

7. The only ground of eviction which the notice specifies is, that the appellant occupied the Govt. quarter mentioned in the notice unauthorisedly. This statement in our opinion cannot be characterised as a ground of eviction by any stretch of logic. This may be at the most an inference of unauthorised occupation based upon some ground other than the fact that the appellant was an unauthorised occupant of the public premises. How his occupation of the premises which at its inception was admittedly lawful became unauthorised, must have been the outcome of some supervening circumstances. What were those supervening circumstances, the appellant had every right to know, as it would be those circumstances alone which would constitute the ground for his eviction within the meaning of Clause (a) of Sub-section (2). How could it be said, that merely telling the appellant that ho was an unauthorised occupant because he occupied the Govt. quarter unautho-ricedly tantamounted to specifying the grounds on which his eviction was proposed Such a statement in the notice could hardly constitute a ground as already observed.

8. The learned single Judge, it appears, was also conscious of this infirmity in the notice. This defect was, however, considered by him as totally inconsequential as according to him, the appellant was otherwise having full knowledge of the grounds upon which [his eviction was proposed. In other words, the learned Judge was of the opinion, that where a person proceeded against under the Eviction Act was otherwise in the know of the grounds upon which his eviction was proposed, mere failure to mention those grounds in the notice served upon him under Sub-section (3) was immaterial, which did not render the notice invalid. We are un-table to fall in line with the learned single Judge in taking this view of Sub-section (2). The provisions of this sub-section are mandatory and not merely directory in character, for the simple reason, that failure to make an effective reply to the notice for eviction as a consequence of absence or even vagueness of the grounds of eviction to be specified in the notice, may result in loss of the occupation of the premises. Furthermore, by construing Clause (a) of Sub-section (2) in such a manner, we would be indeed reading the words 'unless otherwise known to him' in it which in fact are not there. Reliance of the learned single Judge on a Special Bench decision of the Calcutta High Court in Standard Literature Co. Pvt. Ltd. v. Union of India, AIR 1968 Cal 1, in coming to the conclusion that not mentioning the grounds in the notice was inconsequential, was in our opinion clearly misplaced. It appears that the learned single Judge merely noticed the ground urged by the petitioner in support of the writ petition without noticing the finding recorded by the Court in respect thereof. The ground specified in the notice in the case which came before the Special Bench of the Calcutta High Court (supra) was that since the notice for eviction under the Transfer of Property Act determining the tenancy of the petitioner had been served upon him, but the petitioner had failed to vacate the premises despite the expiry of the period mentioned in the notice, he was an unauthorised occupant of the public premises. Reliance was placed upon an earlier Bench decision of the same Court in Sankar Lal Saha v. Supdt, Gun & Shell Factory, Cossipore, (1965) 69 Cal WN 1035 to urge, that merely stating that notice determining the tenancy was served upon the occupant was not sufficient compliance with Clause (a) to Sub-section (2). The Special Bench held that a tenant of a property belonging to Government being in a somewhat worse position than a tenant occupying a private property, and that the Act being aimed at taking speedy action against unauthorised persons in occupation of Govt. properties, once the tenancy of the occupant of Govt. property was validly determined by a notice of eviction, no other defence was available to him against his eviction from such property. The Special Bench, therefore, held that merely stating the facts in what manner his tenancy was determined tantamounted to specifying the grounds on which his eviction was proposed within the meaning of Clause (a) of Sub-section (2). The Special Bench overruled the Division Bench decision in (1965) 69 Cal WN 1035 and Sinha, C. J. speaking for the Special Bench held as under:

'I shall first of all deal with the point which does not relate to the constitutionality of the Act, namely the challenge to the notice under Section 4. The wording of the relevant notice under Section 4, dated 18th of August 1964 has been set out above. In the notice to quit given on the 22nd April, 1964 (Annexure 'C' to the petition) the reason for eviction of the company has been expressly mentioned namely that the portion of the premises held by the company was urgently required by the Government of India for its own use for allotment to the Central Govt. Offices after remodelling the building. In the notice under Sub-section (1) of Section 4 however, the only ground that has been mentioned was that a notice to quit had been given and the tenancy had been terminated. If the Division Bench judgment (1965) 69 Cal WN 1035, is correct, then this notice is invalid. In our opinion that decision is not correct and should be overruled upon this point. In so far as S. K. Dutta, J. held that a person cannot be in unauthorised occupation by virtue of the said Act but because of the existence of the factors mentioned in Clause (e) of Section 2, no exception can be taken. But in so far as the learned Judges have held that in a notice under Section 4 (1) the grounds specified must be something other than the service of a notice to quit and the expiry of its terms, it has been wrongly decided. A tenant of properties belonging to Government is in a somewhat worse position than a person holding private lands. The proviso to Section 1 of the West Bengal Premises Tenancy Act, 1956 states that the 1956 Act does not apply to any premises belonging to Government. Therefore, where the tenancy of a person has been properly determined under the Transfer of Property Act, then in the case of lands belonging to Government, there is no defence to eviction. All that Sub-section (2) of Section 4 requires is that the notice under Sub-section (1) should specify the grounds on which the order of eviction was proposed to be made. If a notice to quit has been validly served and the period specified therein has expired then the person served is in 'unauthorised occupation' as defined under Clause (e) of Section 2 (1) of the said Act. I do not see why this should not be a sufficient ground for an order of eviction under the said Act. In such a case the person concerned has no defence, and all that was happening is that the machinery of eviction was being expedited. This ground, therefore, is not of substance.'

Ratio of the aforesaid Calcutta case would have equally applied to the present case as well, had it been stated in the notice that the appellant's tenancy had been determined by the Supdt. SMGS Hospital by virtue of his letter dated 19-2-1974 as has been held by respondent No, 4 in the impugned order.

9. Even otherwise also we are clearly of the opinion that the learned single Judge was not right in holding that the appellant had knowledge of the fact that his allotment of the Government quarter had been cancelled by the Supdt. SMGS Hospital, Jammu, as early as on 19-2-1974. The appellant had categorically denied on oath that he had ever received the said letter. The respondents did not produce this letter in the Court even after the appellant had denied in his rejoinder affidavit that no such letter was ever received by him. The reply affidavit of the respondents too does not go any further beyond stating that 'the petitioner was asked by the Supdt. SMGS Hospital, Jammu, vide his Order No. E-1/10199 dated 19-2-1974 to vacate the quarter in question.' Nothing has been shown or even alleged as to how and in what manner this letter was served upon the petitioner. We have, therefore, nothing before us beyond the ipse dixit of the respondents that this letter was served upon the appellant. Even the notice issued by respondent No. 1 on 11-7-1974 does not indicate that the allotment of the appellant was cancelled by the Supdt. SMGS Hospital on 19-2-1974. We are further of the opinion, that the other circumsance relied upon by the learned single Judge, that the file of the Supdt. SMGS Hospital, Jammu, contained letters written by the appellant to the authorities for reconsidering their decision to cancel his allotment of the Govt. Quarter also indicated that the appellant had knowledge of the earlier letter dated 19-2-1974, could not have been taken notice of for more than one reason. To begin with, all those letters which were relied upon by the learned single Judge were never put to the appellant for admitting or denying their execution. Secondly, not even a single letter out of those letters was either relied upon by the respondents or even alluded to by them in their reply affidavit. It was for the respondents to make out a case for themselves by making specific pleadings in their reply affidavit, or by enclosing all those letters along with their reply affidavit in order to give even a remote indication to the appellant as to what they would like to establish at the trial, and not for the Court to come to their rescue by looking into those letters and taking them as proved against all canons of the law of evidence. We are pained to express so much disagreement with the learned single Judge but we find ourselves helpless in avoiding the same. It is well settled that a party cannot be allowed to prove what it has not actually pleaded. Unlike ordinary suits where the evidence, oral and documentary, is adduced by the parties in support of their respective cases, writ petitions are decided merely and mainly on the basis of affidavits which makes it a fortiori necessary that pleadings in writ petitions must be far more explicit and exhaustive than they are required to be in ordinary suits. The conclusion is, therefore, inescapable that there was no compliance with the mandatory provisions of Clause (a) of Sub-section (2) which vitiated the entire subsequent proceedings. As the other ground as to whether or not there was also sufficient compliance with Clause (b) of Sub-section (2) in so far as the time gap between the receipt of the notice and the date of the proposed eviction is concerned, has not been pressed before us, we do not deem it necessary to express our opinion in regard to the finding recorded by the learned single Judge in that behalf.

10. This brings us to the consideration of the question as to whether or not there has been sufficient compliance with Section 5 of the Eviction Act. This section casts an obligation on the Estates Officer to give the occupant of the public premises a reasonable opportunity of producing evidence as well as of being heard before any order is passed against him. This opportunity has to be reasonable and not merely illusory. As we go through the record of the Estates Officer, we find that the entire proceedings before him did not take more than three dates to culminate into the impugned eviction order. The first date i.e. 26th Aug. 1975 was fixed for appearance of the appellant and showing cause by him against his proposed eviction. No cause in the form of written objections was shown on that date and the Estates Officer gave him another date i.e. 1st Sept. 1975 for the said purpose. On that date again objections were not filed and another opportunity was sought to file the same after going through one file for summoning of which a request was made through a written application of the even date. From the perusal of the interim order recorded by the Estates Officer on 1-9-1975 it is not very much clear whether he treated this application as written objections and thereby closed the right of the appellant to file any further objections. He, however, summoned the file 'to meet the ends of justice' as he put it. At this stage the Estates Officer appears to have gone astray and overlooked the mandatory provisions of Section 5. The file had been summoned by the appellant not with the object of comprising the whole evidence which he wanted to lead, but merely to provide him some assistance in submitting his written objections. He was understandably misled by the procedure adopted by the Estates Officer who neither told him in express terms that his right to file any further objections had been closed, nor enquired from him whether he wanted to lead any other evidence besides the file which he had asked to be summoned. We would not be harsh to the Estates Officer if we observe that his conduct on 1-9-1975 was somewhat dubious. He appears to be under the impression as if he was going to show some favour to the appellant by acceding to his request in summoning the file, little realising that he was legally bound to provide a reasonable opportunity to him to produce all such evidence as he liked to produce. Again, the final order passed on 15-9-1975 too does not indicate that the appellant or his counsel were at all heard on that date. The presence of the appellant's counsel is no doubt recorded on that date, but not a single word occurs in the order that he was also heard before the same came to be passed. His presence like a statue was not enough to meet the requirements of law. The averments made by the Estates Officer in his reply affidavit that the counsel for the appellant was heard, cannot in view of the contents of the impugned order inspire any confidence. The functions of the Estates Officer under the Eviction Act are quasi-judicial. He must conduct the proceedings as a Court, uninfluenced by the exigencies or compulsions of the executive. His outlook and approach should be purely judicial, where administrative exuberance has no role to play. It is true that the Eviction Act is aimed at speedy action, but speed should not be so rash that even justice is trampled down in maintaining the same. We are, therefore, clearly of the opinion that the impugned order of eviction is violative of Section 5 as well. We now proceed to deal with the ground of mala fides.

11. Malice is alleged to have originated from the ill-will which respondent No. 1, Dr. S. S. Anand, bore towards the appellant, A long chain of events has been referred to in the petition for the purposes of proof and manifestation of malice imputed to respondent No. 1. The first link in the chain is wrongly showing the appellant as not having been selected for the post of professor of Medicine, followed by the act of withholding of his representation made to the Chief Minister. Then comes the notice issued by respondent No. 1 to the appellant on 11-7-1974 for initiating disciplinary proceedings against the latter on his failure to vacate the Government quarter. The next link is the undue influence brought to bear upon respondent No. 3 by respondent No. 1 to induce respondent No. 4 to start eviction proceedings against the appellant. The other circumstance is the deliberate act on the part of respondent No. 4 to black out the ground of eviction from the copy of the notice served upon the appellant in terms of Sub-section (4), and the finale to all this is the impugned order which was passed without giving the appellant an opportunity of filing the objections and proving his case.

12. Some of these facts and circumstances undoubtedly deserve serious consideration by the court. Take for instance the allegation of false declaration by respondent No. 1 that the appellant was not selected for the post of professor of Medicine by the Selection Committee. The appellant had alleged that the minutes of the Selection Committee would unmistakably reveal that he was indeed selected for the post and he had also made an application requiring the respondents to produce the minutes in the court. This prayer was resisted by the respondents on the plea that minutes of the Selection Committee were wholly irrelevant for the decision of this writ petition, but notwithstanding that it was granted by the court twice, i.e. once on 23-7-1976 and again on 11-8-1976, though the record was still not produced in the court. The petition was, thus, dismissed in the absence of the minutes of the Selection Committee. A direction, as already stated, was also issued by this Bench to the respondents on 16-12-1978 to either produce the aforesaid record in the court or to file an affidavit of the concerned officer that no such record was ever maintained. This time again no such record has been produced. On the other hand, the affidavit of one Shri Ganshyam. Deputy Secretary to Government, Medical Education Deptt. has been produced wherein it has been stated that the record of minutes of Selection Committee was not available with the Government. This affidavit fails to comply with the direction of the court inasmuch as it had to be stated on affidavit that no such record was available. Why was not the same available, no reason whatsoever has been assigned. These attempts on the part of the respondents to withhold the record from the court, at one time on the pretext that it was irrelevant for the purpose of the decision of the case, and at another time on the excuse that it was not available, speak volumes for the inference, that the respondents are deliberately avoiding to produce the record in the court, which in turn justifies us in raising a presumption that had the record been produced, it would have surely belied the respondents' assertion that the appellant was not selected for the post. (See Antyam Veeraju v. Pechptti Venkanna, AIR 1966 SC 626: and Mohd Shafi v. State of J. & K., AIR 1970 SC 688).

13. Take again the case of the notice issued by respondent No. 1 to the appellant on 11-7-1974, threatening to initiate disciplinary proceeding against him in case he failed to vacate the quarter. Eviction proceedings against the appellant had to be drawn and conducted to their logical end under the Eviction Act. The appellant would not be pressurised to vacate his occupation of the quarter under the threat of disciplinary action. Law gave him a right under the Eviction Act to defend his occupation of the quarter which could not be taken away except by taking recourse to the provisions of the Eviction Act itself. Right to possess the quarter was indeed a fundamental right to hold property within the meaning of Article 19 of the Constitution of India which could not be destroyed by circumventing the provisions of the Eviction Act under the cloak of disciplinary action. Putting forth a stout defence by a Govt. servant against any invasion of his legal or constitutional right cannot tantamount to either misconduct or indiscipline or to a conduct unbecoming of a Govt. servant. Respondent No. 1 ought to have watted till the final outcome of the eviction proceedings, at least to obviate the possible predicament in which he might have eventually landed himself in case the result of the eviction proceedings went in favour of the appellant. The desperate hurry with which respondent No. 1 proceeded in issuing the aforesaid notice was thus not only unwarranted but also uncalled for.

14. We have already held that the impugned order of eviction passed by respondent No. 4 being violative of Sections 4 and 5 of the Eviction Act is bad in law, and cannot be allowed to survive, and along with it the order passed in appeal by the District Judge must automatically perish. Be that as it may, the question still remains; does the ground of mala fides stand proved? Mr. Gupta appearing for the appellant has placed reliance upon some Supreme Court decisions and argued that the respondents, more particularly respondent No. 1, not having controverted the factual allegations of mala fides imputed to them by filing their reply affidavits, the same must be held to have been proved. He has also argued that the court should not consider each such fact independently, but must consider all these facts in their totality for coming to the conclusion as to whether or not the plea of mala fides stood established. We entirely agree with the learned counsel in so far as the abstract principles of law enunciated by him are concerned. We still cannot hold that the plea of mala fides stands proved. The foundation laid by the appellant in our opinion is too weak for an edifice of mala fides to be raised on it. The only plea of mala fides taken in the petition is that respondent No. 1 bore some malice towards the appellant without further stating what were the reasons for the same, or how all that had originated. Such a plea is much too vague and cryptic to sustain the charge of mala fides. Law on the point has been succinctly laid down by the Supreme Court in S. Partap Singh v. State of Punjab, AIR 1964 SC 72 wherein the court said :

'The appellant did not give full details of his allegations with respect to the reasons for the Chief Minister's being displeased with him. He made certain statements in indefinite terms in the petition. He did not make them more specific. His explanation for this is that he did so as there had been no specific denial of the general allegations by the persons concerned. This is no good explanation for his not making definite assertions of fact which could be helpful to the court in determining whether those facts would have constituted good reasons for the Chief Minister's displeasure and for his acting mala fide in getting the various orders issued by the Governor. It was really for the appellant in the first instance, to make definite allegations in his petition. If he makes indefinite allegations, there is nothing for the other party or the persons concerned to deny. They can take advantage of the vagueness of the appellant's own allegations. Their reticence in that regard cannot give an advantage to the appellant when he himself is in default in not making definite allegations'.

The reasons for malice in this case too, as already observed, have been kept as a guarded secret by the appellant. We, therefore, agree with the learned single Judge and hold that the ground of mala fides fails for want of specific pleadings. 15. In the result, we allow the appeal, set aside the judgment of the learned Single Judge and by a writ of certiorari quash the following :

(a) notice No. ME-MISC-GN/74(i) dated 11-7-1974 issued by respondent No. 1;

(b) order of eviction dated 15-9-1975 passed by respondent No. 4 against the appellant; and

(c) order dated 1-11-1975 passed by respondent No. 3 dismissing the appellant's appeal against the order of respondent No. 4 dated 15-9-1975. We further direct that the respondents shall pay a sum of Rs. 300/- to the appellant as costs of this appeal.

Mian Jalal-ud-Din, C.J.

I agree with the reasoning adopted and the conclusions arrived at by my learned brother Kotwal, J. and concur with him that the appeal be allowed.


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