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2016 Supreme(Bom) 2157
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. Bhadang, J.
Shri Venkatesh P. Kamat - Petitioner
Versus
Shri Agostinho Joaquim Santan Medeira (deceased) through his LR's - Respondent
Writ Petition No. 286 of 2016
Decided On : 21-11-2016
Advocate Appeared:
For the Petitioner: Shri Sudin Usgaonkar, Ms. Vinita Palyekar
For the Respondent: Shri V.A. Lawande, Ms. Gauri Pai, Ms. P. Kaur
The main legal point established in the judgment is that the requirement of 'bonafide' personal occupation is essential under Section 23(1)(a)(i) of the Act, and the need must be genuine and real, not a mere desire or wish.
Headnote:
Eviction - Personal Occupation - Sections 22, 23 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968
Fact of the Case:
The case involved a dispute over the eviction of the appellants from a residential house in Margao. The respondents sought eviction on the grounds of personal occupation, change of user, and nuisance under Sections 22 and 23 of the Act.
Finding of the Court:
The court found that the ground of personal occupation of the original applicant did not survive after his death, but upheld the ground of personal occupation of his son. The court also found that there was a change of user but did not find sufficient evidence to support the claim of nuisance.
Issues: The court addressed the issues of bonafide personal occupation, change of user, and nuisance, and considered the permissibility of amending the original application for eviction to plead the bonafide requirement of the son of the original landlord.
Ratio Decidendi: The court held that the requirement of 'bonafide' personal occupation is necessary under Section 23(1)(a)(i) of the Act, and that the need must be genuine and real, not a mere desire or wish. The court also emphasized the importance of pleadings and evidence in establishing the grounds for eviction.
Final Decision: The court dismissed the petition, upholding the findings of the lower courts and granting the petitioners time to surrender possession of the house to the respondents by a specified date.
C.V. Bhadang, J.
The challenge in this petition under Article 227 of the Constitution of India, is to the judgment and order dated 04.12.2015 passed by the Appellate Board at Margao in Rent Appeal No. 8/2013 dismissing the appeal, thereby confirming the order dated 21.01.2003 passed by the learned Rent Controller directing eviction of the appellants, from the suit house.
2. The brief facts necessary for the disposal of the petition may be stated thus:
A residential house bearing no. 410 situated at Margao (suit house) is the subject matter of dispute. The suit house was tenanted to now deceased Venkatesh Kamat, the predecessor of the petitioners, by the mother of late Agostinho Medeira (predecessor of the respondents) on a monthly rent of Rs. 250/- under a lease deed dated 05.04.1972. Now deceased, Agostinho Medeira was an employee of Air India and was posted at Mumbai. After his retirement in the year 1980, being a native of Goa, he had decided to settle down in Goa. He also claimed that the wife of the petitioner-Venkatesh Kamat (respondent before the Rent Controller) was engaged in the business of transport and was carrying on repairs of the vehicles in the suit house, which was also causing nuisance on account of banging and splashing of oil all over the premises. Thus, Agostinho Medeira sought eviction of the petitioner on the ground of personal occupation, change of user and nuisance under Sections 22 and 23 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (the Act, for short).
3. The respondents resisted the claim on various grounds. It was contented that the suit house was allotted to Agostinho Medeira by virtue of a partition deed dated 04.01.1982. Thus, the applicant cannot seek eviction under Section 23 of the Act, as he became landlord of the suit house after the commencement of the tenancy and five years had not elapsed. It was next contented that the applicant was a permanent resident of Mumbai and he has no bonafide intention of settling in Goa. The petitioner however, did not dispute that his wife is in transport business, however claimed that the said business is operated from her office premises at Isidorio Baptista Road. He also denied that there are any repairs of the vehicles carried out in the suit house. He thus denied that there is any change of user or nuisance or damage caused. He claimed that the suit premises are being used for residential purposes only.
4. The learned Rent Controller framed following points for determination:-
1. Whether the applicant proves that the suit premises are required by him for his bonafide personal occupation.
2. Whether the applicant proves that the respondent has changed the premises from residential to business premises.
3. Whether the applicant proves that he is carrying out certain acts which are nuisance to the neighbours and also causes damage to the suit premises.
4. Whether the respondent proves that the applicant is not entitled to file the eviction proceedings since five years have not lapsed from the date of which the instrument "Intervivos" has been registered.
5. What orders ? What reliefs ?
5. The issue no. 4 was taken up as a preliminary issue, which was decided on 09.07.1984 holding that five years not having elapsed after the applicant became a landlord by virtue of the instrument of deed of partition intervivos, the applicant cannot seek eviction under Section 23 of the Act. However, the claim under Section 22 of the Act, could continue. This was challenged by the applicant in a revision petition before the Administrative Tribunal. The Administrative Tribunal vide judgment and order dated 29.01.1987 allowed the revision and directed the Rent Controller to hear and decide the application, both under Sections 22 and 23 of the Act.
6. The parties led oral and documentary evidence. The applicant, Agostinho Medeira (AW-1) examined himself alongwith Peter Medeira (AW-2) and Smt. Belly Braganza (AW-3). The petitioner examined him
