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2018 Supreme(Bom) 2567
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Gokuladas J. Shet Talaulikar (dec) - Appellant
Versus
Narayan @ Santosh S. Sinai Usgaonkar - Respondent
Writ Petition No. 537 of 2017
Decided On : 02-05-2018
Shri Nigel Da Costa Frias, Advocate, for the Petitioners; Shri Ajit R. Kantak with Ms. Rajas A. Kantak, Advocates, for the Respondent Nos. 1 and 2
Headnote:
Goa Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules 1969 – Rule 9 (1), Order 26 – Sections 3(c), 12, 16(1), 16(3), 16, 22(2)(b)(i), 22(2)(c), 22(2)(d), 53, 22(2)(a), 3(1)(c) Section 12(3)(a) of the Bombay Rent Act - Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Section 10(2)(i) – Contract Act – Section 62 - Bombay Rent Act - Section 12(3)(a) - Section 12(3)(b) – Rent Act – Section 53 – Constitution of India, 1950 – Articles 226, 227 – Eviction of tenant - Arrears of rent -Subletting tenant -Damage as are likely to impair materially value or utility of building and nuisance - Suit premises comprise of a block situated on first floor of the building known as Building situated at comprising of two rooms one and WC - Suit premises were leased out to now deceased under an Agreement of Lease dated - According to respondent nos 1 and 2 suit premises were a residential block - It was contended that tenant without obtaining any consent from landlord has carried out modification to suit premises which comprised of removal of door window frame fixation of aluminum frames and doors and fixation of wash basin - Tenant carried out major changes in the suit premises - As a result of same there was percolation of water through walls and flooring on ground floor shop premises – Held, After carefully going through evidence on record Court find that Courts below are justified in holding that there was a set up of a Beauty Parlour in suit premises - Question is one of inference - In that case Honble Supreme Court has held that mere fixation of sign board etc of shop and by taking support of parapet wall cannot be considered as an act of waste which has materially impaired value or utility of building - On facts it was found that there was no sufficient evidence in support of assertion that parapet wall was likely to collapse - More significantly there was a letter by landlord giving permission to tenant to fix boards which Honble Supreme Court found cannot be ignored - Learned District Judge has considered that already there was a report of inspection by Rent Controller available on record to which there was no objection and there was other evidence both oral as well documentary led by respondent and if at all the petitioner found it necessary he could have independently led evidence and nothing barred petitioner from adducing evidence on these aspects namely construction of toilet and seepage - Court do not find that this can be said to be a case where learned District Judge has refused to exercise jurisdiction vested in him under Section of Rent Act or Order Rule of CPC - Petition is dismissed
JUDGMENT
C.V. Bhadang, J. - Rule made returnable forthwith. Shri Kantak, the learned Counsel for the contesting respondent nos. 1 and 2 waives service. Heard finally by consent of parties.
2. The challenge in this petition is to the concurrent orders of the Courts below, directing eviction of the petitioners from the suit premises.
3. The facts, necessary for the disposal of the petition, may be stated thus :
That the respondent nos.1 and 2 filed an application for eviction against now deceased Gokuldas Talaulikar, before the Additional Rent Controller at Panaji, seeking his eviction from the suit premises on various grounds. However, in the present petition, the learned Counsel for the petitioners has restricted the claim for eviction on the ground of arrears of rent, subletting, the tenant having committed such acts of damage as are likely to impair materially the value or utility of the building and nuisance. The suit premises comprise of a block situated on the first floor of the building known as "Usgaonkar Building", situated at Ponda, Goa, comprising of two rooms, one Verandah and WC. The suit premises were leased out to now deceased Gokuldas Talaulikar under an Agreement of Lease dated 01/08/1969. According to respondent nos.1 and 2, the suit premises were a residential block.
4. It was contended that the tenant, without any authorisation/ permission, started using the suit premises for nonresidential purpose. It was contended that the tenant, without obtaining any consent from the landlord, has carried out modification to the suit premises, which comprised of removal of the door, window frame, fixation of aluminum frames and doors and fixation of wash basin. It was contended that the tenant carried out major changes in the suit premises. As a result of the same, there was percolation of water through the walls and the flooring on the ground floor shop premises. It was contended that the alterations had the effect of impairing materially the value or the utility of the building and the same was causing nuisance to the occupiers of the other portions of the building. It was also contended that the tenant has transferred his leasehold rights and/ or sublet the whole or portion of the building for running a Beauty Parlor. The respondent no.1 also claimed that the suit premises are required for their bonafide personal occupation.
5. The original tenant filed a reply and opposed the application. It was denied that he was in arrears of rent or had carried out any changes in the suit premises. The allegations about any such changes having the effect of materially affecting the utility of the building or causing nuisance, have also been denied. It was also denied that the tenant has sublet the premises for running a Beauty Parlor or otherwise. The claim of the landlord that the suit premises were required for their personal occupation, was also traversed.
6. Before the Rent Controller, the parties led oral and documentary evidence.
7. The learned Rent Controller, by a judgment and order dated 20/11/2015, allowed the application, directing the original tenant to hand over vacant possession of the suit premises. Original tenant Gokuldas Talaulikar challenged the same in appeal, being Rent Appeal No.18/2015, before the learned Ad hoc District Judge at Panaji, Goa. The original tenant Gokuldas died during the pendecy of appeal. The petitioners are his successors. The learned District Judge, by an order dated 21/04/2017, has dismissed the appeal, which brings the petitioners to this Court.
8. I have heard Shri Costa Frias, the learned Counsel for the petitioners and Shri Kantak, the learned Counsel for the respondent nos.1 and 2, who are the contesting respondents. With the assistance of the learned Counsel for the parties, I have gone through the record.
9. It is submitted by Shri Costa Frias, the learned Counsel for the petitioner that the payment of Municipal Tax is not a condition of the Lease Agreement and there was no agreemen
