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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. BHADANG, J.
JIJABAI NAMDEV SATARDEKAR - Appellant
Versus
LUIS SALES DE ANDRADE E SOUZA - Respondent
Writ Petition No. 151 of 2018
Decided on : 01-02-2019
Goa Buildings Control Act, 1968 - Section 41 - Amendment Act 14 – Claim of compensation – Jurisdiction – Trial court - Specifically described in to now deceased on a monthly rent for commercial purpose - Lease was subject to a specific condition that would not sublet the Suit premises, without the written consent of the landlord - Original tenant expired petitioners are his heirs and successors - Respondent, Luis Souza filed an application before the Rent Controller, for eviction of the petitioners on the ground that the petitioners have sublet the suit premises to one son of Raymond on a monthly rent who was carrying on business under the name and style as and dealing in retail sales and service of household electronic goods – The petitioners, by their reply, denied that suit premises have been sublet as alleged and also denied the allegations about non-payment of rent from - It was contended that the petitioners were regularly sending rent by money order, which were not accepted by the respondent - Held, On the basis of the second proviso to Section 47 of Rent Act, it is contended on behalf of petitioners that finality having been attached to the orders passed in an appeal or revision, the power of review stands excluded by necessary implication. In my considered view, the contention cannot be accepted. What the second proviso to Section 47 of Rent Act provides is that an order passed in an appeal or revision shall be final, which would mean that it would not be open to challenge before any higher authority such a provision attaching finality would only mean that it is not amenable to be challenged in a hierarchical manner under the Act. It is necessary to note that order passed in a review application would also be as much, an order as, passed in an appeal or revision and therefore, the proviso, in my considered view, cannot exclude a power of review. In such circumstances, I hold that the Appellate Board constituted under Section 41 of the Rent Act has the power of review - This takes me to the merits of the impugned order. As noticed earlier, the original order dismissing the application under Section 32(4) of the Rent Act was passed by the Appellate Board (presided over by - Normally, an application for review has to be placed before the same Judge. It transpired during the course of the arguments at bar that when the application came for hearing, the concerned Presiding Officer was not posted at the same place and therefore, it was placed before the Appellate Board (presided over by - Be that as it may, as of present, the Appellate Board is presided over by the same Judge namely - In such circumstances court find it appropriate to direct the placing of the review application before the Appellate Board presided over by - Before parting with the final order, it is necessary to note that the original application for eviction has been filed way back in the year 1993. The revision before the Appellate Board, arising out of the rejection of the preliminary objection to maintainability of the application is of the year 2013. The present petition arises out of an order passed under Section 32(4) of the Rent Act - Petition allowed
C.V. BHADANG, J.
1. Whether the Appellate Board constituted under Section 41(1) of the Goa Buildings (Lease, Rent and Eviction) Control Act, 1968 (Rent Act, for short) has power to review its own judgment and order and if yes, whether the Appellate Board, by the impugned order, was justified in reviewing its earlier order dated 19.07.2014, thereby granting an application under Section 32(4) of the Rent Act, filed by the respondent, is a question, which falls for determination in this petition.
2. The brief facts necessary for the disposal of the petition, may be stated thus:
By an Agreement dated 10.11.1956, Joao da Andrade Souza, the paternal uncle of the respondent, Luis Souza (original applicant), let out the suit premises (more specifically described in para 1 of the application), to now deceased Namdeo Parsuram Satardekar, on a monthly rent of Rs.15/- for commercial purpose. The lease was subject to a specific condition that Namdeo Satardekar, would not sublet the suit premises, without the written consent of the landlord. The original tenant Namdeo expired on 23.03.1972 and the petitioners are his heirs and successors. The respondent, Luis Souza filed an application before the Rent Controller, for eviction of the petitioners on the ground that the petitioners have sublet the suit premises to one Eustaqcio Sequeira, son of Raymond Sequeira, on a monthly rent of Rs.1,000/- and who was carrying on business under the name and style as "Hysons" and dealing in retail sales and service of household electronic goods.
3. The petitioners, by their reply, denied that the suit premises have been sublet as alleged and also denied the allegations about non-payment of rent from the year 1987. It was contended that the petitioners were regularly sending rent by money order, which were not accepted by the respondent.
4. On 03.08.2009, the petitioners raised an objection before the Rent Controller stating that the Eviction Application was liable to be dismissed for failure of the respondent to issue a statutory notice claiming arrears of rent, before filing of the petition as required under the provisions of the Rent Act and in view of the decision of the competent Civil Court dated 29.07.2005, in Regular Civil Suit No. 79/1997/B, holding that there is no subletting, which is confirmed in Regular Civil Appeal No. 99/2005 decided on 11.07.2007.
5. The learned Rent Controller rejected the objection on 05.04.2010. Feeling aggrieved, the petitioners challenged the same, in Eviction Revision Application No.7/2010 before the Administrative Tribunal (which was then authorised to hear Revision Applications against the order of the Rent Controller). Subsequently, by virtue of the Amendment Act 14 of 2013, the jurisdiction to hear appeals/revision applications against the order of the learned Rent Controller was conferred on the Appellate Board, constituted under Section 41(1) of the Rent Act. On account of this, the Revision Application came to be transferred to the learned District Judge at Panaji, who is acting as an Appellate Board and it was registered as Rent Revision No.24/2013.
6. On 02.04.2014, the respondent filed an application before the Appellate Board (presided over by Shri Irshad Agha), purportedly under Section 32(4) of the Rent Act, praying that the proceedings be stopped and the petitioners be directed to hand over the vacant possession of the suit premises to the respondent. The petitioners filed their reply and claimed that the rent has been paid upto date and there was no default on the part of the petitioners. The petitioners also produced the challans, evidencing the deposit of rent for the period as alleged in para 3 of the application filed by the respondent.
7. The Appellate Board (presided over by Shri Irshad Agha), by an order dated 19.07.2014, dismissed the application holding that the rent has been deposited from time to time and the petitioners cannot be said to be cantankerous tenants. Thus, the learned Appellate B
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