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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
R.G. Gangadharan.... Petitioner.
Versus
Francisco Barreto Lopes and another.... Respondents.
Writ Petition No. 75 of 1990, decided on 15-6-1994.
Advocates appeared :
S.G. Dessai with S.G. Bhobe, for petitioner.
See Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1961-Sections 32(4) and 46.
Articles 226 and 227.
See Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968-Sections 32 (4) and 45.
Sections 22 (4), 32 (4) and 45-Rent Controller-Tribunal cannot substitute his own discretion-For that of.
Conceding that the Administrative Tribunal had jurisdiction to hear the respondent No. 1s appeal. The High Court has to bear in mind that the order impugned before it was an order of the Rent Controller refusing to exercise his discretion to grant the respondent No. 1s prayer before him to stop the proceedings and put him in possession of the premises. Being so the Administrative Tribunal while exercising appellate jurisdiction was supposed to discuss and adjudicate these findings of the Rent Controller without going into the merits of the sufficient cause shown by the petitioner to the Rent Controller and accepted by him in exercise of its discretion. Admittedly the appellate court could not in appeal substitute the discretion of the Rent Controller by its own discretion.
Sections 32 (4) and 45-Constitution of India, Articles 226 and 227Scope.
Sub-section (4) of Section 32 enables the Rent Controller to stop all further proceedings and put the landlord of possession of the building in case be is not satisfied with the cause shown by the tenant not to pay or deposit the rents due. Therefore the consequence of the granting of the application is that the landlord is restored to the possession of the premises. In the instant case what was challenged is not the restoration of possession of the premises by the Rent Controller but instead of Rent Controllers refusal to stop the proceedings and to put the landlord of possession of the said premises. Obviously this type of order cannot be deemed as a final order because it is neither an eviction order nor any order which adjudicates on its merits the substantive right of the landlord. No doubt that this order is only an interlocutory order against which no appeal would lie.
Indeed Section 45 of the Act provides for an appeal from every order other than an interim order, passed by the Rent Tribunal to the appellant Court. Admittedly the appeal filed by the Respondent No. 1 to the administrative Tribunal is against the order of the Rent Controller passed by him under Section 32 (4) of the Act.
Sections 32 (1) and 46-Civil Procedure Code, 1908, Section 115-Scope.
The field of jurisdiction of the tribunal in the exercise of its revision power is restricted to a situation wherein exceptional circumstances occur and for the limited purpose of assessing the correctness, legality or propriety of an order of the Kent Controller. Thus the powers of the revisional Tribunal cannot be equated with the revisional jurisdiction of the High Courts under Section 115 of the C. P. C. which is an ample general power not restricted to exceptional circumstances only as it happens in case of Section 46 of the Act. This means that the Administrative Tribunal can exercise its powers of revision only in very few cases, i.e., in exceptional cases and not liberally, or in accordance with Section 115 of C. P. C. in order to avoid injustice.
2. By the aforesaid Order the Rent Controller had dismissed four applications of the respondent dated 18-4-1985, 11-9-1985, 6-12-1985 and 10-1-1994 seeking to obtain the stopping of the eviction proceedings instituted by him against the petitioner for non-payment of rents with a prayer that the respondent should be put in possession of the premises.
3. The petitioner is a statutory tenant of the respondent in respect of the part of the first floor of the house bearing No. E-162 behind Post Office Panaji on a monthly rent of Rs. 203 inclusive of electricity and water charges. The petitioner was earlier paying a monthly rent of Rs. 200/- and Rs. 15/- per month towards the water and electricity charges. Subsequently respondent No. 1 filed an application for fair rent in which the rent was fixed at Rs. 188/- per month inclusive of water and electricity charges. The respondent No. 1 who is the landlord within the meaning of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter called the Act) filed eviction proceedings in the year 1978 against the petitioner, being Rent Case No. 15/78, on the ground of non-payment of rents. The case is still pending and has not yet been decided on merits. In the meantime during the pendency of the proceedings the respondent No. 1 filed the aforesaid four applications invoking jurisdiction of the Rent Controller under section 32 by stating that the tenant had failed to deposit the rents during the eviction proceedings. A notice was issued to the petitioner in respect of all these four applications and upon hearing the parties the same were dismissed by the Rent Controller by Order dated 23-7-1986. However, the appeal filed by the respondent No. 1 to the Administrative Tribunal against this Order (Eviction Appeal No. 49/86) was allowed by the Administrative Tribunal by its Order dated 28-12-1989 which is under challenge.
4. The first grievance of Shri S.G. Dessai, learned counsel of behalf of the petitioner, is that the Order of the Rent Controller refusing to stop proceedings during the pendency of the eviction proceedings instituted by the respondent No. 1 against the petitioner is not a final Order being thus only an interlocutory one. Such Order is not appealable under section 45 of the Act and at the most is only revisable if permissible under section 46. Hence the impugned Order is without jurisdiction because obviously the respondent No. 2 has wrongly exercised its jurisdiction by entertaining respondent No. 1s appeal.
5. There seems to be a lot of substance in the submissions of the learned counsel in this regard. Indeed section 45 of the Act provides for an appeal from every order, other than an interim order, passed by the Rent Tribunal to the appellate Court. Admittedly the appeal filed by the respondent No. 1 to the administrative Tribunal is against the order of the Rent Controller passed by him under section 32(4) of the Act. Section 32 which refers to the payment or deposit of rents during the pendency of proceedings for eviction reads as under:
"32. Payment or deposit of rent during pendency of proceedings for eviction.---(1) No tenant against whom a proceeding for eviction has been instituted by a landlord under this Act shall be entitled to contest the proceeding before the Controller or any appellate or revisional authority or to prefer any appeal or revision under this Act, unless he has paid to the landlord or deposits with the Controller or the appellate or revisional authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent wh
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