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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
Nutan D. Sardessai, J.
Vassudev Gurudas Pednekar - Appellant
Versus
Sharada Alias Radhabai Manguesh Kenkre - Respondent
Writ Petition No. 799 of 2016
Decided On : 08-03-2018
Constitution of India, 1950 – Article 226 and 227 – Rent Control Act – Section 23, 25, 53, 23(1)(a) – Mamlatdars Court Act – Section 7 - U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section 21(1)(a) - Madhya Pradesh Accommodation Control Act, 1961 - Himachal Pradesh Urban Rent Control Act, 1971 – Goa Rent Control Act Section 27 - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 13(1)(g) - Delhi Rent Control Act 1958 - Section 14(1)(e) – Civil Procedure Code, 1908 – Order 3 – Rules 1 and 2 - Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11(3) - East Punjab Urban Rent Restriction Act, 1949 - Section 13(3)(a)(ii)(a) – Civil Procedure Code, (Amendment) Act 1999 – Section 115 – Eviction of tenant - Respondent no 2 had not responded to notice nor complied with same and hence original applicant was constrained to initiate eviction proceedings on ground that he required suit house for his personal occupation - Respondents had resisted application on premise that he was a wealthy and rich goldsmith having a vehicle at his disposal and that the joint family house at was within a distance of kilometres from the City of having good connectivity and easy mode of transport and that application for eviction on ground of personal occupation was a fraud in order to evict them from suit house - Learned Senior Advocate contended that petition before Rent Controller on grounds of personal occupation was dismissed and so too Appeal by District Court – Held, Court assume as seems to have been the view of the High Court in this case that requirement of premises for use of a partnership firm by landlord in which he is a partner is covered by section of Act -- There were some outsider partners - Appellate Court while dealing with Judgment of Rent Controller was swayed by findings rendered by Rent Controller that house of original applicant at was a ground plus one storeyed structure and that house at was more convenient to original applicant to come to his shop in as compared to suit house - Learned District Judge gave undue weightage to evidence regarding non-production of documents qua house at availability of transport to house at and went overboard while ignoring that it was suit house in respect of which original applicant claimed necessity of bonafide requirement - There is also no force in contention of learned Senior Counsel for respondents that the Judgments relied upon by petitioners qua right being inherent in legal heirs to pursue proceedings as being distinguishable when legal heirs of original landlord were brought on record during pendency of Appeal proceedings which is in continuation of Eviction proceedings - Besides his contention that eviction orders were pre-death of landlord or immediate death of landlord in Judgments cited on behalf of petitioners unlike present case where eviction was denied cannot stand test of scrutiny in factual matrix - Petition is allowed
ORDER
Nutan D. Sardessai, J. - Heard Shri S. D. Lotlikar, learned Senior Advocate for the petitioners and Shri S. G. Desai, learned Senior Advocate for the respondents.
2. This Petition takes exception to the Judgment and Order dated 11.02.2003 passed by the Addl. Deputy Collector and Rent Controller Mapusa, the Judgment and Order dated 30.07.2015 passed by the District Judge-I, North Goa, Panaji, in the matter of the application for eviction filed by the predecessor in title of the petitioners for the eviction of the respondents, inter alia, on the ground of personal occupation under Articles 226 and 227 of the Constitution of India. The petitioners'' predecessor was admittedly the owner of the property situated at Dattawadi, surveyed under Chalta no.17 of P. T. Sheet No.112 of the City Survey Mapusa with a house bearing no.99 therein being the suit house for brevity''s sake and which came to be inherited by the petitioners on whose demise the suit house was let out to one late Shri Manguesh Kenkre, the husband of the respondent no.1 and the father of the respondent nos.2 and 4 for the purpose of their residence. The said Manguesh had expired in the year 1986 and the respondents continued to occupy the suit house as his successors in interest. They put up two illegal shops on the rear side of the suit house and started the business of Electrical Engineers and Contractors without the knowledge and consent of the original applicant and without the objections of the original owner. The original owner was running a Jewellery Shop in the Mapusa Municipal Market but was residing in a joint family house/premises at Bastora. The joint residential premises were away from the business premises compared to the suit house and he had to travel everyday from the house at Bastora to the suit premises and as there was no provision of public transport it was convenient for him to reside in the suit house which was situated in the City of Mapusa and as he was not keeping good health. He had therefore by notice dated 10.06.1992 called upon the respondent no.2 that he required the suit house for his personal occupation and to deliver its vacant possession thereof within 30 days from the receipt of the said notice failing which he would be constrained to initiate eviction proceedings.
3. The respondent no.2 had not responded to the notice nor complied with the same and hence the original applicant Gurudas was constrained to initiate eviction proceedings on the ground that he required the suit house for his personal occupation. The respondents had resisted the application on the premise that he was a wealthy and rich goldsmith having a vehicle at his disposal and that the joint family house at Bastora was within a distance of 2 kilometres from the City of Mapusa, having good connectivity and easy mode of transport and that the application for eviction on the ground of personal occupation was a fraud in order to evict them from the suit house. Besides the suit house was on a hilly area and equally far away from the business premises of the said Gurudas and that as per his version that he was not keeping good health, it was difficult for him to proceed to the business premises from the suit house.
4. Shri Lotlikar, learned Senior Advocate, contended that the petition before the Rent Controller on grounds of personal occupation was dismissed and so too the Appeal by the District Court. Both the Courts below held that the joint house was adequate and that the house in Bastora was better for the applicant then that at Mapusa. The petitioners had no other house in Mapusa and the original applicant Gurudas was keeping indifferent health. Judicial notice could be taken of the fact that medical facilities at Mapusa were better than at Bastora. He adverted to Section 23 of the Rent Control Act and otherwise submitted that it was not the case of the respondents that the petitioners had any other residential house in Mapusa. There was also no serious dispute
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