JUDGMENT
Badar Durrez Ahmed, J.
1. Rule.
2. With the consent of parties, these matters are taken up for final disposal. At the outset, learned counsel for respondents 1 & 2 submits that no counter-affidavit would be necessary in this matter because purely legal questions arise for consideration of this Court. In this view of the matter, he has submitted written synopsis which is taken on record. These 9 writ petitions arise from a common order passed by the learned ADJ on 02.08.2003 in 9 separate appeals under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as “the said Act”). Common questions arise in these petitions. Therefore, the same are being disposed of together.
3. The brief facts are that the Estate Officer in all of these petitions issued Section 4 notices under the said Act requiring the petitioners to show cause as to why they should not be evicted on account of their being alleged unauthorised occupants. The petitioners replied to the said show cause notices and appeared before the Estate Officer. The Estate Officer by separate orders all dated 23.05.2003 on identical terms decided that the petitioners were unauthorised occupants and that they should be evicted. The question before this Court is of a very narrow scope. Learned counsel for the petitioners submitted that at the time of hearing before the Estate Officer, the question arose as to who should lead evidence first. It was the petitioners’ contention that the respondent/DDA should lead evidence first, whereas it was the contention of the counsel on behalf of the DDA that it is the petitioners who should lead evidence first. This aspect is made clear by the factual position recorded in paragraph 3 of the Estate Officer’s order which is more or less identical in all the matters and reads as under:-
“3. On 22-05-2003, Shri Sanjay Aggarwal and Shri Sharad Chandra Advocates appeared on behalf of the noticee. They filed rejoinder and stated that they are not prepared to lead their evidence until DDA leads its evidence first as the onus to prove the case lies on DDA. They further stated that the list of witnesses/evidence shall be led after the closure of DDA evidence. DDA counsel argued that there are clear cut admissions on part of noticee in his application dated 21-03-2000 and affidavit dated 10-03-2000 to the effect that he is in unauthorized occupation of DDA land and he gave an unconditional undertaking to vacate the land as and when required during the proceedings of the assessment on the damages. Therefore, the onus has been shifted upon the noticee to lead his evidence on the point as to whether the objector is unauthorized occupant on the DDA land and it is upon the noticee to discharge the same by leading his evidence first. Since none of the parties wanted to lead their evidence the counsel for the parties were directed to argue their respective case and the counsel for the parties argued the case at length.”
4. From the aforesaid narration, it appears that the question was–upon whom does the onus lie to prove the case? The petitioner contended that the onus lies on DDA, whereas the contention on behalf of the DDA was that the onus lay on the petitioner. Both sides contend that the other side should lead evidence first. It is clear that neither side has stated that they would not lead any evidence. The Estate Officer, however, recorded that none of the parties wanted to lead their evidence. It is on the basis of this that the parties were directed to argue their respective cases and thereafter the order was passed by the Estate Officer. The fact of the matter is that because of this, no evidence was led by either party, including the petitioneRs.
5. Learned counsel for the petitioners has submitted that the Estate Officer ought to have come to a conclusion and decided the question as to who should lead the evidence first. He did not do so. On the contrary, he committed a grave error by saying that “since none of the parties wanted to lead their evidence the counsel for the parties were directed to argue their respective case and the counsel for the parties argued the case at length” and thereafter he decided the case without evidence. Learned counsel for the petitioners relied upon section 8 of the said Act to indicate that in matters of recording evidence, the Code of Civil Procedure, 1908 would apply and thereafter he referred to Order 16 Rule 20 of the CPC which indicated the consequences of not leading evidence by any party. He submitted that in the said Rule 20, the words “when required by the Court” are of material importance. In the present case, learned counsel submits that the Court never required the petitioner to lead evidence. In fact, the question on whom the onus lies was not at all decided by the Estate Officer. Furthermore, the learned counsel for the petitioners submitted that as there was no ruling of the Court on this point. As such, provisions of the said Rule 5 of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 was not complied with. He submitted that the Estate Officer’s order ought to have been corrected by the learned ADJ in appeal and in failing to do so, the error committed by the Estate Officer was continued by the learned ADJ. Learned counsel for the petitioners submitted that the matter was heard and disposed of without there being any evidence on record and as such, a writ of certiorari would lie against such orders which are passed on no evidence. He placed reliance on a Constitution Bench decision by Supreme Court in the case of Syed Yakoob v. Radhakrishnan & Ors: and in particular paragraph 7 thereof which reads as under:-
“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a find of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, ; Nagendra Nath v. ComMr. of Hills Division, and Kaushalya Devi v. Bachittar Singh, .”
6. Accordingly, the learned counsel for the petitioners submitted that the impugned orders of the learned ADJ as well as that of the Estate Officer are liable to be set aside. On the other hand, learned counsel for the respondents submitted that the question of onus in the context of the said Act and in particular in proceedings pursuant to a show cause notice under Section 4 of the said Act are no longer res integra and has been settled by a Division Bench of this Court in the case of Union of India v. Shri S.M. Aggarwal & 31 Ors: 1995 (II) AD (Delhi) 293. In paragraph 6 of the said decision, the said Division Bench held as under:-
“6. We feel these observations of the learned Additional District Judge are quite uncharitable to the Estate Officer and against the provisions of law as contained in the Act. As noted above, in spite of various opportunities granted to the shopkeepers by the Estate Officer they failed to file written statement and in fact the entire proceedings show that their whole attempt was to delay the proceedings. There was no question of any departmental official being examined beforehand. What section 4 of the Act required was that if the Estate Officer was of the opinion that any person was in unauthorised occupation of any public premises he is to give him a notice to show cause as to why an order of eviction should not be made. It is, therefore, for the occupant to show that he is not in unauthorised occupation of public premises. In spite of various opportunities no record of any nature was produced by the shopkeepers and they did not even file any answer to the show cause notice.”
7. Accordingly, the learned counsel for the respondents submitted that, as the onus clearly lay upon the petitioners to show cause against the notice issued to them under section 4 of the said Act, the petitioners ought to have been ready with their evidence and ought to have led the evidence. The learned counsel pointed out the provisions of Section 4(2)(b)(ii) of the said Act which clearly indicated that the noticee was to appear before the Estate Officer “Along with evidence”. Furthermore, the notice itself which was issued on 25.03.2003 indicated that the noticee was to appear before the Estate Officer “Along with evidence which you intend to produce in support of the show cause”. Learned counsel for the respondents further submitted that by virtue of Section 4 itself, the onus was cast upon the petitioners or the alleged unauthorised occupants and it was for them to discharge the same. In this view of the matter, he submitted that since the petitioner did not lead evidence in the first instance, the Estate Officer’s order as well as that of the learned ADJ cannot be faulted.
8. While the learned counsel for the respondents is correct in submitting that the onus lay on the petitioners to prove that they were not unauthorised occupants in view of the provisions of the said Act and the clear decision of the Division Bench of this Court, it is also correct as submitted by the learned counsel for the petitioners that the Estate Officer as well as the learned ADJ ought to have said so in the order itself and directed the petitioners to lead evidence. There is no such finding in the Estate Officer’s order nor is there one recorded in the learned ADJ’s order. As a result of which, the petitioners have been denied the opportunity of leading evidence in the matter. The eviction orders have, therefore, been passed without there being any evidence on the part of the petitioneRs. In this view of the matter, it is clear that the petitioners ought to be given an opportunity to place the evidence before the Estate Officer which will be considered by him in accordance with law. It is clear that the onus is on the petitioners to lead the evidence and they cannot insist upon the DDA leading evidence first.
9. Accordingly, these matters are remanded to the Estate Officer for permitting the petitioners to lead evidence in the first instance. It is stated by the learned counsel for the petitioners that not more than three dates would be taken for placing the entire evidence of all the petitioners in all these writ petitions before the Estate Officer. Accordingly, the impugned order of the learned ADJ is set aside as well as the individual orders of the Estate Officer which have merged with the impugned order of the ADJ.
10. The Estate Officer is directed to hear the matter as expeditiously as possible keeping in mind the categorical statement of the learned counsel for the petitioners that not more than three dates would be taken for presenting the entire evidence of all the petitioners in all the matters taken together. The matter would be disposed of as expeditiously as possible preferably within a month. The parties to appear before the Estate Officer on 23.09.2003 at 2.00 p.m.
10. With the aforesaid directions, the writ petitions are disposed of.