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IN THE HIGH COURT OF BOMBAY AT GOA
R.M. SAVANT, J.
Smt. Kanchan Ramdas Morascar
Versus
Dr. Armando Joao Benedito Mascarenhas (Since Deceased) Through His L.R.S & Others
Writ Petition No. 723 of 2012
Decided On : 10-10-2013
Eviction - Non-deposit of rent by tenant petitioner - Application under Section 32(1) filed by petitioner for deposit of rent - Respondent filed application under Section 32(4) for stoppage of proceedings - Tribunal by its judgment and order dated 22.8.2012 allowed application of respondent and stopped proceedings under Section 22(2)(f) and directed petitioner to hand over vacant possession of suit premises to respondents - Challenged - Contention that Tribunal erred in not considering application of petitioner for deposit of rent allowed by Rent Controller - Tenable - Tribunal failed to appreciate facts stated in application which were not controverted by respondents - Approach of Tribunal was erroneous - Impugned order dated 22.8.2012 of Tribunal quashed and set aside - Matter relegated back to Tribunal for de novo consideration of appeal in accordance with law - Petition disposed of.
GOA, DAMAN AND DIU BUILDING CONTROL ACT, 1968 - Section 32 - Proceedings for eviction. - Failure of Tribunal to consider as to whether conduct of tenant, in arrears of rent, was contumacious or cantankerous, causing harassment to landlord, required matter for de-novo consideration. - The Tribunal in terms of the law laid down by this Court was, therefore, required to adjudicate upon the application filed by the petitioner under Section 32(1) and the application filed by the respondents under Section 32(4) of the Rent Act. The essence of the tests is whether the conduct of the petitioner is contumacious, whether payment is made after cantankerous contest and whether the conduct is such as to cause harassment to the respondents/landlords. The Tribunal, as can be seen from the its impugned judgment and order, seems to have laid much emphasis on the fact that the son of the petitioner has not filed an affidavit to corroborate the case of the petitioner. The Tribunal failed to appreciate the facts stated in the application which were not controverted by the respondents except making bald denials. The efficacy of the said statements, therefore, ought to have been taken into consideration by the Tribunal in the said context. However, the Tribunal seems to have adversely drawn conclusion against the petitioner by commenting that the dispute between the petitioner and her son is not relevant for consideration as to whether the petitioner had shown sufficient cause. The Tribunal, as can be seen, has considered the aspect of the payment of rent by the petitioner in instalments i.e. payment for 3 to 4 months together at one time in the past. This, the Tribunal, has termed as irregular payment of rent. The Tribunal ought to have applied the yardsticks which have been laid down by this Court in numerous judgments and thereafter, come to a conclusion as to whether the conduct of the petitioner was contumacious or cantankerous and was such as to cause harassment to the respondent landlord.
The Tribunal also ought to have taken into consideration that a Division Bench of this Court has held the said provision to be directory and not mandatory. The Tribunal seems to have approached the matter on the basis of that there was a default of eight years and, therefore, the proceedings were required to be stopped. This was an erroneous approach of the Tribunal in the teeth of the settled principles/guidelines, which have been laid down in numerous judgments of this Court. The Tribunal has taken into consideration the facts, which did not have relevance insofar as the application under Section 32(4) of the Rent Act is concerned but may have relevance insofar as the main appeal is concerned.
1. Rule. With the consent of the learned Counsel for the parties, made returnable forthwith and heard.
2. The writ jurisdiction of this Court is invoked against the judgment and order dated 22/08/2012 passed by the Administrative Tribunal, Goa by which order, the application dated 05/01/2012 filed by the petitioner herein under Section 32(1) and the application filed by the respondents under Section 32(4) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 ('the Rent Act' for short) came to be disposed of inasmuch as the application filed by the respondents came to be allowed and the proceedings filed under Section 22(2)(f) of the Rent Act came to be stopped and the petitioner herein was directed to vacate the suit premises within two months from the date of the order and put the respondents in possession of the said premises.
3. The facts necessary to be cited for adjudication of the above petition can in brief be stated thus:
The petitioner is the tenant in respect of the premises in question which is one compartment on the ground floor of the building described under no.2380 of Book B 28 (old) and inscribed in the Taluka Revenue Office under No.709. The lease granted was for the sale of shoes. The original lessee Xencora Narain Moraskar gave up his rights under the lease in favour of his son Ramdas Shankar Moraskar some time in the year 1970. The said Ramdas, thereafter, was carrying on the business of making and selling of shoes in the suit premises. The said Ramdas expired in the year 1980 and, thereafter, the petitioner herein continued the said business in the suit premises which business is at present being conducted by the petitioner.
4. The respondents herein filed an application on 19/07/1988 for the eviction of the petitioner under Section 22(2) (f) of the Rent Act. Since the petitioner did not deposit the rent, the respondents filed an application under Section 32(4) of the Rent Act alleging non-deposit of the rent. On the filing of the said application under Section 32(4) of the Rent Act by the respondents, the petitioner filed an application dated 17/03/1992 for deposit of the rent for the period from February 1982 to February, 1992 at the rate of Rs.35/- per month and totally amounting to Rs.4,325/-. The said application filed by the petitioner came to be rejected by the Rent Controller by his order dated 28/04/1993. It appears that thereafter, on 26/02/1997, the respondents filed an application for stoppage of the proceedings under Section 32(4) of the Rent Act. The petitioner filed an application for deposit of the rent and relied upon the judgment of a learned Single Judge of this Court reported in 1995(1) G.L.T. 117 in the matter of Shamsundar Kaka Talkar Vs Rent Controller. The application filed by the petitioner for deposit of the rent came to be allowed by the Rent Controller by his order dated 09/09/1997 by holding that the petitioner is allowed to deposit the rent and the Rent Controller relied upon the judgment in the case of Shamsundar Kaka Talkar (supra) and directed the petitioner to deposit arrears of rent from February, 1982 to August 1997 within 15 days from the date of the order.
5. Aggrieved by the said order dated 09/09/1997, the respondents filed an appeal before the Administrative Tribunal being Eviction Appeal No.137/1997. It appears that the petitioner deposited the rent in question till February, 2003. The matter before the Administrative Tribunal, thereafter, proceeded from time to time. When the matter was listed before the Administrative Tribunal on 26/12/2011, the Advocate for the respondents drew the attention to the fact that the petitioner has not deposited the rent in the Tribunal since February, 2003 and that he would be filing an application under Section 32(4) of the Rent Act for stoppage of the proceedings in view of the default committed by the petitioner. It appears that on the next date of hearing i.e. on 05/01/2012, the petitioner
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