RAJENDER KUMAR JAIN Vs. H C ARORA

JUDGEMENT

(1.) In this petition, order of Competent Authority passed under section 19 (4) of Slum Areas (Improvement and Clearance) Act, 1956, granting permission to respondent-landlord to file a petition for the eviction of the petitioner tenant has been challenged. In the petition filed before the Competent Authority, the landlord sought permission to file a petition for eviction against the tenant and averred that the tenant possessed means to secure alternative accommodation if he were to be evicted. The tenant denied allegations of the landlord and averred that his income was only Rs. 300.00 to Rs. 350.00 per month and he could not find alternative accommodation. The tenant had a licence to manufacture drugs and cosmetics. The tenant said that he was manufacturing Jexone Lacto-Calamine but a Bombay firm filed a suit against him and in that litigation his manufacture almost came to a stop. The landlord produced a card board box container bearing the words "Jexona Lacto-Calamine" and the licence number of the tenant. He also produced a calendar advertising these products manufactured by the tenant. The manufacture of drugs and cosmetics is liable to the levy of an excise duty (vide Central Excises and Salt Act, 1944 and the Medicinal and Toilet Preparations (Excise Duties) Act, 1955) and the essence of an excise duty is that it is levied on the manufacture. Therefore, nothing could be sold by the tenant unless duty on the manufacture thereof had been paid. Since the tenant has admitted manufacture of some quantity of this product and some sale of it, he must have paid excise duty on the manufacture of the same. There was, therefore, official record available to show the income of the petitioner. The petitioner has not produced the evidence of such record. An adverse inference against him, therefore, arises.

(2.) Learned counsel for the petitioner contended that it was the duty of the landlord to adduce prima facie evidence to show that the tenant had the means to find alternative accommodation and that it was only thereafter that the burden shifted to the tenant to show that he did not have the means to find alternative accommodation. He has invited my attention to Mohinder Singh V. Competent Authority 1973 R.C.R. 306, decided by me, and (2) Mohinder Das Jain V. P. R. Varshneya (C. M. Main 168 of 1971 decided on 7.1.1972 by Tatachari. J;). Having gone through these decisions, I find that there is no conflict between them. The legal position which emerges from them may be stated as follows.

(3.) The initial burden of proof on the landlord is to aver and to prove that the relationship of landlord and tenant exists between the parties and that the tenant is in occupation of the premises of the landlord. The landlord may also aver that the tenant is in possession of the means to find alternative accommodation. He may make such averment according to such knowledge and belief as he may have entertained in this respect. But there may be honest cases in which landlords would not really know anything about the means of the tenant. In my view, in such cases, the landlords may truthfully say that they do not know if the tenant is in possession of the means to find alternative accommodation. In such a case, the landlord may simply say that he would like to have the permission for filing an eviction petition against the tenant unless the Competent Authority is satisfied that the tenant is not in possession of means to find alternative accommodation. The question of burden of proof is dealt with in Chapter VII of the Evidence Act beginning with section 101. The relevant section in this respect is section 106 which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The income of the tenant is a fact which is especially within his knowledge. The burden of proving the same is, therefore, on him. If therefore, neither the landlord nor the tenant adduces any evidence as to the income of the tenant, it is the tenant whose defence will fail and the landlord would obtain a permission for filing an eviction petition against him in view of S. 102 of Evidence Act.