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1998 Supreme(Bom) 153
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.K. Batta, J.
Shri Chandramohan S. Madkaikar.... Petitioner.
Versus
Shri Manohar Roghuvir Borkar (since deceased)
through his legal heirs another.... Respondents.
Writ Petition No. 195 of 1992, decided on 3-7-1998.
Advocates appeared:
S.D. Lotlikar, for the petitioner.
G.S. Sardessai, for respondents No. 1(a) to 1(c).
Headnote:Sections 22, 23 and 23-A Proof for bona fide requirement-After appreciation of evidence it is found that enough premises was available to original respondent, in such situation his claim for bona fide requirement does not stand proved.
Sections 22(2)(a), (b), (f), 23 and 23-A-Status of employees-Where all assets, liability and even the employees have been taken over by the Central Government, they will be considered Central Government employees, even if, the employer has not given any such certificate.- The objections raised by Advocate in this behalf are that the Notification upon which reliance has been placed declares employees of Bharat Petroleum as Government servants only for the purpose of pay and for no other purpose and that the 1994 Amendment to clause (3) of Section 23A would not apply to this case. Insofar as these submissions are concerned, Court does not find any merit since by Section 3 of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, on the appointed day, the right, title and interest of Burmah Shell, in relation to the undertakings in India, shall stand transferred to, and shall vest in the Central Government. By Section 4 all existing liabilities including payment of pension and other pensionary benefits to the persons employed in relation to its undertakings in India and obligations of whatever kind then subsisting of Burmah Shell were taken over by the Central Government.
The original respondent/landlord had retired from Bombay and he had residence in Bombay, as a result of which the Department must have been reluctant to issue a certificate that he did not possess any other suitable residence in the local area where he or the members of his family can resident. The Administrative Tribunal in fact rightly held that if, such certificate was not produced, it would not debar an employee from adducing evidence in the Court on this aspect.
Section 23-A-Eviction of tenant-Landlord employee of Burmah Shell Co.-Taken over the company-Becomes Central Govt. employee-Held-Landlord is competent to seek eviction of tenant for his bona fide need.-In this connection, it was submitted by learned advocate that the original respondent/landlord had not produced any certificate from the Head of Department which is required under Section 23- A(3)(ii) of the said Act that the he does not possess any suitable residence in the local area where he or members of his family can reside. Admittedly, the certificate was not issued by the Head of Department where the petitioner was working and by letter, dated 30th October, 1987 which was placed before Court in the course of arguments, that the Bharat Petroleum Corporation Ltd. had regretted to issue a certificate to that effect. The original respondent/landlord had retired from Bombay and he had residence in Bombay, as a result of which the department must have been reluctant to issue a certificate that he did not possess any other suitable residence in the local area where he or the members of his family can reside. The Administrative Tribunal in fact rightly held that if, such certificate was not produced, it would not debar on employee from adducing evidence in the Court on this aspect. Therefore, nothing would turn on the question of non-production of the said certificate. It was also urged by learned Advocate that the Administrative Tribunal did not follow the procedure prescribed under Section 3(a) of Section 23-A which speaks of leave to defend. Since no summary eviction/ immediate possession had been ordered, the question of leave to defend would not arise in the facts and circumstances of the case and in fact, on the this Court no prejudice has been caused to the present petitioner since a full-fledged hearing was given and the petitioner could have sought leave to produce additional evidence in case he so desired in this respect. The petitioner merely was interested in remand of the matter which was rightly rejected by the Administrative Tribunal.
2. The original respondent/landlord is owner of the building denominated 'Durga Prasad' commonly known as 'Borkar's House' at Tisk, Ponda, Goa and this building consists of six tenements. Two of the tenements are in the basement and four tenements are on the ground floor. Each tenement has two rooms, one independent balcony with independent entrance, one W.C. and one bathroom. One of the said tenements was leased to the present petitioner sometime in September, 1974. The case of the original respondent is that the present petitioner fell in arrears of rent from June, 1985 to September, 1985; that the present petitioner ceased to occupy the said tenement which is now occupied by the father of the petitioner who is conducting his personal business in the suit premises. In view of the same, the original respondent terminated the tenancy of the present petitioners. The respondent's case further is that he was employed in Bombay with M/s. Bharat Petroleum Corporation and has since retired from 1-9-1982; that the said building was constructed by him with the intention to settle down in Goa and the said tenements in the said building are so constructed that the same could be connected inter se to make one unit for the purpose of residence of the petitioner and his family. The respondent thus sought eviction also on the ground of personal occupation. It was also averred that the original respondent did not own or possess any other building in the city of Ponda or anywhere in Goa.
3. The present petitioner contested the eviction proceedings and the Additional Rent Controller, Ponda, vide judgment dated 28th June, 1989 dismissed the eviction application filed by the original respondent. The Addl. Rent Controller had framed issues on the grounds urged in the eviction application, namely, that the present petitioner was in arrears of rent; that the present petitioner ceased to occupy the said tenement; that the present petitioner had transferred his right under the lease or sub-let the said tenement to his father and the same was being used for the purpose other than for which it was leased and that the petitioner ceased to occupy the said tenement. An issue had also been framed in respect of personal and bona fide occupation of the respondent. The Addl. Rent Controller after assessment of the evidence led before him, rejected the eviction sought for on all grounds. It may also be mentioned here, after hearing of the final arguments on 3-5-89, the original respondent had filed an application on 10-5-89 seeking amendment of the eviction application by adding the ground for eviction under section 23-A which had been incorporated in the said Act by way of amendment dated 24-12-87. This application for amendment was rejected by the Addl. Rent Controller. The Addl. Rent Controller found that the original respondent was already in occupation of one tenement consisting of two rooms, W.C., bathroom, separate balcony and separate entrance and two other such tenements were available for his occupation at any time, as revealed by him in the course of his evidence. The said two tenements were leased to one Shri Narvekar and one Shri Talaulikar who, according to the deposition of the original respondent, were ready to vacate the same at any time. On this basis, it was held by the Addl. Rent Controller that the said three tenements were sufficient for the occupation of the original respondent and his family. The Addl. Rent Controller also came to the conclusion that in the circumstances greater hardship shall result to the present
