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2024 Supreme(Online)(BOM) 6783
IN THE HIGH COURT OF BOMBAY AT GOA BENCH
Bharat P. Deshpande, J
Gracy D'Souza – Appellant
Versus
Ana Rosalina D'Souza – Respondent
Writ Petition No. 16 of 2013
For the Appellants/Petitioners: A.F. Diniz, Ryan Menezes, Gina Almeida, Nigel Fernandes
For the Respondents: Shivdatt P. Munj, S.S. Kantak, Preetam Talaulikar, Sanjay Sardessai, Kher Simoes, Neha Kholkar, Saicha Desai
The bonafide requirement of a landlord is assessed as of the date of application; death during proceedings does not negate the claim, which may be continued by legal heirs. The burden of proving comparative hardship lies squarely on the tenant, who must affirmatively plead and prove the same.
Headnote:(A) Rent Control Legislation - Bonafide requirement - Additional accommodation - Provisions regarding eviction of tenant by landlord occupying only a part of the building - The crucial date for assessing bonafide requirement is the date of institution of proceedings - Death of the initial landlord during the pendency of proceedings does not automatically render the need non-existent; legal heirs are entitled to continue the claim for the use of the family members - Section 25 - Comparative hardship - Principle of balancing interest between landlord and tenant - The burden lies on the tenant to plead and prove that the hardship caused by eviction would outweigh the advantage to the landlord - Mere occupancy of premises does not constitute sufficient evidence of hardship. (Paras 13, 14, 37, 41, 46, 52-54, 62)
(B) Supervisory Jurisdiction - Exercise of jurisdiction under Article 227 of the Constitution - Limitation on re-appreciating evidence - Concurrent findings of fact reached by lower authorities are not to be disturbed unless found perverse, illegal, or contrary to evidence on record. (Paras 50, 66)
Facts of the case:
A property owner initiated eviction proceedings to secure additional accommodation in a building where they held only partial possession, citing the necessity of space for their family. Throughout the prolonged duration of the litigation, the original owner passed away. The tenant resisted the eviction, arguing that the need for the premises extinguished upon the owner's death, that the requirements for other family members were not independently proven, and that the tenant would face greater comparative hardship than the landlord upon relocation.
Findings of Court:
The courts determined that the requirement for additional space was established as bonafide at the time the legal action was initiated. The death of the owner during the pendency of the matter did not terminate the right to seek possession, as the legal heirs were substituted and permitted to pursue the claim based on the family's needs. The tenant failed to provide any formal pleading or evidence indicating specific comparative hardship to support the claims against eviction.
Issues: Whether the bonafide requirement of an owner for additional accommodation survives after their death during the pendency of legal proceedings and what the respective burdens of proof are regarding comparative hardship in eviction cases.
Ratio Decidendi: The validity of a bonafide requirement is determined as of the date of the application. The death of the claimant does not extinguish the cause of action, as legal representatives may maintain the suit for the continued occupation of the family members. Additionally, the onus to prove comparative hardship rests with the tenant, who must demonstrate through concrete evidence that their inconvenience outweighs the owner's need; this cannot be presumed or raised absent specific pleadings.
Result: Writ petition dismissed and rule discharged.
| Table of Content |
|---|
| 1. procedural history and factual foundation of the eviction application. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. interpretation of section 23(3) regarding landlords' bonafide requirement for additional accommodation. (Para 13 , 14 , 15 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 3. crucial date for assessing bonafide need is the date of the application filing, not subsequent events. (Para 36 , 37 , 38 , 39 , 40 , 41 , 46 , 47 , 48) |
| 4. assessment of comparative hardship requires specific pleadings and evidence from the tenant. (Para 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65) |
| 5. final dismissal of petition based on concurrent findings of fact. (Para 66 , 67 , 68) |
JUDGMENT:
1. Vide order dated 22.04.2013, Rule was issued in this matter. The co-ordinate Bench of this Court [M.S. Karnik, J.] vide order and judgment dated 05.04.2023 disposed of the Writ Petition by setting aside the order of the Administrative Tribunal and remanded the matter for deciding afresh within a period of three months. The remand was directed only on the ground that there was an inordinate delay from the date of hearing of the matter and passing of the judgment by the learned Administrative Tribunal.
2. The legal representatives of the landlady [Respondent No. 3] challenged the decision of this Court by filing a Special Leave Petition (C) No. 12952 of 2023. By order dated 22.08.2023, the Apex Court quashed and set aside the oral judgment passed by this Court and directed that the matter be heard on merits and be disposed of preferably by the end of December 2023. Accordingly, the matter was taken up for final disposal. The matter was finally heard in the first week of January 2024.
3. The Petitioner is the tenant whereas the legal representatives of Respondent No. 3 are the landlords. The parties are referred to as the tenant and landlords for the sake of convenience.
FACTUAL MATRIX:
4. The original landlady-Ms. Ana Rosalina D’Souza [Respondent No. 3] filed an Application for eviction of the tenant in the year 1983 under Section 23 (b) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 [hereinafter referred to as the ‘Rent Control Act’, for short]. Such Application was filed for eviction of the tenant on the ground that only two rooms towards the western side along with the W.C. and bathroom are in possession of the landlords whereas the remaining house bearing No. E/99/9 at Mapusa, Goa was leased out to the Respondent/Tenant on a direct contract of 11 months from 01.07.1979.
5. Respondent No. 3 [the original landlady] was residing at Sikandarabad and used to visit Goa in the month of May, October and December and reside in two rooms. The husband of the landlady was doing business at Sikandarabad and due to his advanced age decided to retire from his business and settle down in Goa. The landlady had four sons, all married. Her one son Lieutenant Colonel, Melvile D’Souza was in service in the operational area and his wife and children were staying with the landlady. The original landlady decided to settle down in Goa along with her husband and her family members. Two rooms which were in her possession were therefore not sufficient for her requirement and for the requirement of her family members. Hence, the requirement of the landlady along with her family members was a bonafide requirement for additional accommodation.
6. The tenant resisted such an Application by filing a written statement and denied the additional requirement of the landlady. It is the contention of the tenant that the landlady never came down to stay in the suit house and two rooms which were in her possession were also not occupied by the landlady during her visit to Goa. The husband of the landlady has brought property and house at Thivim, Bardez, Goa and the same could be occupied by the said landlady along with her husband and other family members. It is claimed that the eviction Application is filed on flimsy grounds.
