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2023 Supreme(Bom) 1822
IN THE HIGH COURT OF BOMBAY
M.S.Sonak, J.
Otto Jaime Hamilton Pde Souza - Appellant
Versus
Prabhakar Moraskar - Respondent
Writ Petition No. 146 of 2022
Decided On : 27-07-2023
J.E.Coelho Pereira, Advocate, Vinod Korgaonkar, Advocate, Sagar Rivankar, Advocate, J.J.Mulgaonkar, Advocate
IMPORTANT POINT
The court established that under Sec. 32(4) of the Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, a tenant must be afforded an opportunity to show sufficient cause for non-payment of rent before eviction proceedings can be automatically halted.
Headnote:
RENT CONTROL - EVICTION PROCEEDINGS - Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, Sec. 32(1), Sec. 32(4), Sec. 18 - The court discussed the provisions of Sec. 32 of the Act, emphasizing that while a tenant must deposit rent to contest eviction proceedings, the failure to do so does not automatically lead to eviction. The court highlighted the necessity for the tenant to be given an opportunity to show sufficient cause for the failure to deposit rent, as mandated by Sec. 32(4). The court found that the Appeal Court had erred in its interpretation, leading to an unjust eviction order. The decision underscored the importance of judicial discretion in applying the provisions of the Act, particularly in considering the circumstances surrounding a tenant's default.
Fact of the Case:
The tenant in WP No.246 of 2022 challenged the Appeal Court's order halting their appeal due to non-deposit of rent as required under Sec. 32(1) of the Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1968. Conversely, the landlords in WP No.146 of 2022 contested the Appeal Court's allowance of the tenant's application to deposit rent under Sec. 18 of the Act.
Finding of the Court:
The court found that the Appeal Court had incorrectly interpreted Sec. 32(4) by not allowing the tenant an opportunity to show sufficient cause for the failure to deposit rent. The court emphasized that the provisions do not mandate automatic eviction upon default but require consideration of the tenant's circumstances.
Issues: Whether the Appeal Court erred in stopping the proceedings and ordering eviction based solely on the tenant's failure to deposit rent within 30 days, without allowing the tenant to show sufficient cause.
Ratio Decidendi: The court held that Sec. 32(4) of the Act requires the tenant to be given an opportunity to explain their failure to deposit rent before eviction proceedings can be halted. The court clarified that the use of 'shall' in the statute should be interpreted as 'may', granting discretion to the authorities in considering the circumstances of the tenant's default.
Final Decision: Both impugned orders were set aside, and the matter was remanded to the Appeal Court for fresh consideration, allowing the tenant to respond to the potential eviction under Sec. 32(4) and addressing the application under Sec. 18.
JUDGMENT/ORDER
1. Heard the learned counsel for the parties.
2. Rule in both the petitions. The learned counsel for the parties agree that the rule can be disposed of immediately. Further, they agree that both these petitions can be disposed of by a common judgment and order.
3. The Petitioner in WP No.246 of 2022 (F) is the tenant and the Petitioners in WP No.146 of 2022 are the landlords.
4. The challenge in Writ Petition No.246 of 2022 (F) is to the Appeal Court's judgment and order dtd. 6/1/2022 by which the proceedings in the tenant's appeal were stopped for the failure of the tenant to deposit the rent under Sec. 32(1) of the Goa, Daman and Diu Buildings (Lease, Rent & Eviction) Control Act, 1968 ( the said Act) pending the appeal and an eviction order was made.
5. The challenge in WP No.146 of 2022 is to the Appeal Court's order dtd. 6/1/2022, by which the Appeal Court allowed the tenant's application for deposit of rent under Sec. 18 of the said Act.
6. If the Appeal Court's order dtd. 6/1/2022 in tenant's WP No.246 of 2022 (F) is perused, then it is apparent that the Appeal Court has stopped the proceedings because, in the Appeal Court's judgment, no sufficient cause was shown by the tenant for not depositing the rent within 30 days from the institution of the appeal. The Appeal Court concluded that in such circumstances, the provisions of Sec. 32(4) of the said Act were attracted, compelling the Appeal Court to close the proceedings and order the tenant's eviction.
7. Sec. 32 of the said Act reads as follows:
<WXY>"32. Payment or deposit of rent during pendency of proceedings for eviction.- (1) No tenant against whom a proceeding for eviction has been instituted by a landlord under this Act shall be entitled to contest the proceedings before the Controller or any appellate or revisional authority or to prefer any appeal or revision under this Act, unless he has paid to the landlord or deposits with the Controller or the appellate or revisional authority, as the case may be, all arrears of rent in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate or revisional authority.
(2) The deposit of rent under sub-sec. (1) shall be made within such time and in such manner as may be prescribed.
(3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-sec. (1), the Controller or the appellate or revisional authority, as the case may be, shall, on application made either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited.
(4) If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate or revisional authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.
(5) The amount deposited under sub-sec. (1) may, subjected to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf."</WXY>
8. The Appeal Court missed that Sec. 32(4) does not contemplate an automatic eviction order no sooner it is established that the tenant has failed to pay or deposit the rent within 30 days from the date of institution of the proceedings. Further, the proceedings can be stopped, and eviction can be ordered only when the tenant fails to show sufficient cause why further proceedings should not be stopped and an eviction ordered. This aspect of the matter and the settled law on the subject was not considered by the Appeal Court, which proceeded on the basis that once there is a default in the rent deposit within 30 days, the proceedings must stop, and the eviction must follow.
9. Sec. 32(4) may not refer to the ser
