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1986 Supreme(Bom) 179
IN THE HIGH COURT OF BOMBAY
[PANAJI BENCH]
Dr. G.F. Couto, J.
Joao Xavier Pinto.... Petitioner.
Versus
Oswald J.C. Velho others.... Respondents.
Writ Petition No. 281 of 1985, decided on 2-7-1986.
Advocates appeared :
M.S. Usgaoncar, for petitioner.
J. Coelho Pereira, for respondent No. 1.
Headnote:GOA DAMAN AND DIU BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1968
Section 16-Scope of-Section 16 does not prohibit alteration in rent Section prohibits unlawful demand of premium.
The heading of the Section 16 itself deals with prohibition of receipt of premium and what is provided is that the landlords shall not, after the commencement of the Act claim, receive or stipulate for the payment of an extra amount or other like sum in addition to the agreed rent. Sub section
(3) laws down that such stipulation if made, shall be void.
No doubt the constructions of Clause I of the lease Agreement, does not mean that there is any prohibition under Section 16 of the Act for the landlord and tenant to enter into a new lease agreement. What the section forbids is the stipulation of any extra amount or other like sum in addition to the rent which is agreed.
Section 32 (3)-Goa, Daman & Diu Buildings (Lease,) Rent and Eviction Control Rules, 1969, Rule 7-An application filed by landlord under Section 32 (4) and tenant filed an application under Section 32 (3) for enquiry for fixation of fair rent beyond the period of 30 days-No enquiry could be made -Held, a decree of eviction passed against the tenant could not be said to be invalid.
Held, the petitioner has not filed and application under Section 32 (3) of the Act within the period of 30 days and therefore, the Rent Controller was a correct in holding that no inquiry could be held in that connection. Then, after discussing the relevant provisions of law and the facts and circumstances of the case, the Tribunal held the view that this was a case where the tenant-petitioner herein was persistently defaulting in the payment of the rent and this was being done with gross negligence and mala fide. Indeed, it is an admitted fact that the application for inquiry was not made within 30 days from the serving of the notice on the petitioner of the institution of the eviction proceedings. It is true that in sub-section (3) of Section 32 of the Act, no time is fixed for making the application, but one has also to bear in mind the provision of sub-section (1) which lays down that no tenant shall be entitled to contest the proceedings unless he has paid or deposited the arrears of rent and continues to payor deposit the rents that subsequently become due. In sub-section (1), also, no time is fixed for deposit or payment of rent, but in the Rules framed under the Act, particularly in Rule 7, it is laid down that Inch payment or deposit is to be made within one month from the serving of the notice of the institution of the eviction proceedings. Now, if under subsection (I) of section 32 a tenant is not entitled to contest the eviction proceedings unless be pays or deposits the rent within the aforesaid period of 30 days, it is obvious that the application under sub-section (3) bas also to be made within the same period of 30 days.
2. A few facts may be stated. The respondent No. 1, through his father, entered into an agreement of lease with the petitioner herein on 2nd June, 1969. The rent agreed was of Rs. 200/- per month and the premises were for the commercial purpose of running a barber's shop. The said rent was subject to valuation made by the Revenue Authorities and, accordingly, such valuation was made on 13th August, 1969 and the rent was fixed at Rs. 50/- per month. Inspite of this fixation of the Rent by the Revenue Authorities, the petitioner continued to pay the rent at the rate of Rs. 200/- per month. A new agreement was entered into between the petitioner and the first respondent on 1st March, 1973 and it was agreed, once again, that the rent was of Rs. 200/-. Later on, in the course of the same year 1973, a dispute was raised by the petitioner, for he contended that the rent payable was only at the rate of Rs. 50/- per month and, as such, he had paid rent in excess to the first respondent to the tune of Rs. 7,500/-. He requested therefore, that the said excess, in rent paid by him be adjusted with the rents that became due. Then the respondent No. 1 filed eviction proceedings for non-payment of rent against the petitioner. The petitioner filed his written statement and a few months later, particularly on 15th October, 1974, the first respondent moved an application to the Rent Controller under section 32(4) of the Act praying that the proceedings be stopped and the petitioner be directed to put the first respondent in possession of the premises. It appears that a notice was given to the petitioner and in reply to the said notice, the petitioner showed cause by his application on reply dated 30th January, 1975. His case was that the rent payable was at the rate of Rs. 50/- per month ant that he had paid rents in excess. Therefore, according to the petitioner, there was no reason for granting the first respondent's application under-section 32(4) of the Act. He also prayed that an inquiry be held to fix the quantum of the rent. By his order dated 25th October, 1976, the Rent Controller, Goa, North Division, held that no sufficient cause had been shown and therefore, allowed the application of the first respondent and directed the petitioner to hand over vacant possession of the demise premises to the landlord within three months from the date of the order. The petitioner being aggrieved, moved an appeal to the Administrative Tribunal and this appeal was allowed by judgment dated 25th June, 1977 and the case was remanded to the Rent Controller with a direction to decide the application afresh in accordance with law. The first respondent being aggrieved by the said judgment of the Administrative Tribunal, filed a writ petition in the Court of the Judicial Commissioner. The learned Additional Judicial Commissioner by his judgment dated 22nd July, 1980, was pleased to allow said writ petition and therefore, reversing the judgment of the Administrative Tribunal, remanded it for fresh decision in compliance with this order of remand. The Administrative Tribunal decided the case afresh by the challenged judgment dated 24th July, 1965.
3. Mr. M.S. Usgaoncar, the learned Counsel appearing for the petitioner contended that the respondent No. 3 failed too appreciate that there was a rent fixed by the Revenue Authorities and therefore, it was not open and permissible to revise the said rent by a fresh agreement. He contended that under section 16 of the Act, that was not permissible and any stipulation to raise the rent fixed by the Revenue Authorities would be hit by sub-section (3) of the said section 16
