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Eknath Kira Akhadkar and ors. Etc. Vs. Administrative Tribunal and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. (Writ Petn.) Nos. 165/B of 1975, 2/B, 28/B, 64/B and 113/B of 1977, 136/B of 19
Judge
Reported inAIR1984Bom144
ActsGoa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1969 - Sections 2, 22, 22(2) and 22(3); Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1976 - Sections 22(3) and 32(4) ;General Clauses Act, 1987 - Sections 6-A
AppellantEknath Kira Akhadkar and ors. Etc.
RespondentAdministrative Tribunal and ors. Etc.
Appellant AdvocateS.K. Kakodkar,;F. Rebello and; G.V. Tamba, Advs.
Respondent AdvocateJ. Dias,;Coelho Pereira,;K. Sardesai,;G.D. Kamat, ;A.P. Furtado,;S.D. Lotlikar and;M.S. Usgaocar, Advs.
Excerpt:
a) in the instant csae under the original unamended section 22(2)(a) of the goa, daman and diu buildings (lease, rent and eviction) control act, 1969 a right had vested in the landlords to obtain an order of eviction on the failure of the tenant to pay the rent for a total period of three months and they actually had instituted eviction proceedings on the ground of arrears of rent for a total period of three months- the amendment modified this right, subjecting it to the serving of a demand notice on the tenant and the latter's failure to pay or tender the arrears within thirty days from the service of the notice or of its refusal- it was held that the amended clause (a) imposed a new duty on the landlord and, therefore, once the landlords had already exercised their right, the new duty.....order1. all these eight writ petitions arise out of the judgments passed by the administrative tribunal , dismissing appeals filed by the petitioners against orders of eviction made by the rent controller under ss. 22(2)(a) or s. 32 (4) of the goa, adman and diu buildings (lease , rent and eviction) control act, 19968 (hereinafter called the act for sake of brevity). though the facts that led to said orders of eviction and judgment are not the same and, therefore, some of the grounds of attack offer in according with the peculiarities of each case, the main challenge is nevertheless common. it becomes , thus, appropriate and convenient to jointly dispose of all these petitions and accordingly of they will be death with by this single judgment.2. in the petition no. 165|75, the petitioners.....
Judgment:
ORDER

1. All these eight writ petitions arise out of the judgments passed by the Administrative Tribunal , dismissing appeals filed by the petitioners against Orders of eviction made by the Rent controller under Ss. 22(2)(a) or s. 32 (4) of the Goa, Adman and diu Buildings (Lease , Rent and Eviction) Control Act, 19968 (hereinafter called the Act for sake of brevity). Though the facts that led to said orders of eviction and judgment are not the same and, therefore, some of the grounds of attack offer in according with the peculiarities of each case, the main challenge is nevertheless common. It becomes , thus, appropriate and convenient to jointly dispose of all these petitions and accordingly of they will be death with by this single judgment.

2. In the petition No. 165|75, the petitioners case is that, nor about 29th June, 1970, respondent 3,4 and 5 instituted in the court of the Rent controller, North Goa, proceedings for eviction of the petitioners from a house existing at Ribabdarabad and occupied by them. The said petition was resisted by the petitioner on the ground that the Rent Controller had no jurisdiction to entertain and try the application as nowhere it hasd been avered in the application that the petitioners were occupying the house tenants and also on different grounds. The application was dismissed by the Rent Controller after holding that the subdued matter would not fall within the purview of the Act, Respondent 3,4 and 5 filed an appeal against theorizer of the Rent Controller to the Administrative Tribunal and in the course of the hearing of the said appeal, it was suggested that respondents 3,4 and 5 should file a fresh application before the controller. Accordingly , on 22-9-71, the aforesaid respondent 3,4 and 5 presented in the court of the Rent Controller, North Goa Division a fresh application for eviction of te petitioners on the ground that they had not complied with the notice dated 21-8-1969. The Rent controller by his Order dated 14-1-74 held Tahiti the relationship between the respondents 3,4 and 5 the petitioners was of landlord and tenant and that respondent 3 had made efforts to have te lease contracts executed and directed the petitioners to put the said respondents 3,4 and 54 in possession of the suit premises within three months from the date of the order as they were in default of the payment of ret. Aggrieved by this Order of the Rent Controller, petitioners filed and appeal against the said order in the Administrative Tribunal which was dismissed by the judgment dated 31-12-1975.

3. In Writ Petition NO. 2|b|77 the petitioners case is that respondent 1 filed an applications before the Rent Control North Goa division for the eviction of the petitioner under S. 22 (2) (a) of the Act on the ground that the petitioners had failed to pay rent for ta period of three months. Notice of the said applications was served on the petitioners on 21st June, 1974. In his reply dated 25th July , 1974 the petitioners showed cause against the said application by filing a written statement and admitting therein that he was in arrears of rent for the months of March to May, 1974 amounting to Rs. 114|- . He further moved an application before the learned Rent controller praying that he be permitted to deposit the rent due and the Rent controller was pleased to permit the petitioners to deposit the rent, which accordingly was deposited on 9-7-74. However, by his judgment and ordoer dated 23rd December, 1975 the Rent Controller was pleased dto allow the application of respondent 1 and to order that the petitionersshould vacate the suit premises within three months from date of the issue of the order. The petitioners, being aggrieved by the said order preferred application to the Administrative Tribunal of Goa, Adman and Diu and the said appeal was dismissed by the Tribunal by its order dated 8-7-76 wherein it was held that the petitioners had failed to proved reasonable cause to justify his default in the payment of rent.

4. In the Writ Petition No. 28|B|77, petitioners case it is that respondent 1 filed an application before the Rent Controller, Goa, North Division on 7-1-75 under S. 22 (2) (a) of the Act and on 14-3-75, the petitioners paid to the said respondent a sum of Rs. 3000|- towards the arrears of rent due in respect of the said premises, as also advance rent up to the month of May, 1965. Upon receiving the said sum of Rs. 3000|- the first respondent issued a writing to the petitioners to the effect that he would withdraw the eviction case when had been fooled by his and that the petitioners was authorized to open a anew door to the said premises and carry out other repairs to the said premises suitable to the petitioner, at the lettersexpense and cost. On 10-6-75, the petitioner filed a written statement opposing the application. Later on, on 13-10-75 respondent 1 made an application to the Rent controller that the petitioners had paid rents from June, 74 to June 1975 and thereafter, he had again fallen in areasof rent form July, 1975 September, 1975 and, therefore all the proceedings ought to be stopped and order be passed under S. 32 of the Act directing the petitioners to put the first respondent in possession of the premises. The petitioners opposed that application but the Rent Controller by his Order dated 30th October, 1975 ordered the eviction of the petitioners. Aggrieved by this Order of the Rent Controller, the petitioners preferred appeal against it to the Administrative Tribunal and the said appeal was dismissed by Order date 11-10-76.

5. In Writ Petition NO. 113|B|77, the petitioners case is that he has been residing in a house situated at Alto dos Pilotos in ward, at Panaji, for the last over 50 years. The said house has been taken on loseby the petitioners form the late Dr. Armino Santanaa and on the death of the said Dr. Armino Santana, the property came to the share of his daughter who is residing in Pakistan since the time of the ;lease. Respondent 1 had been accepting the rents from te petitioners as the power of attorney holder of the aforesaid daughter of Dr. Armino. In his written statement, petitioner denied that respondent 1 was landlord of the premises. By an application of the petitioners was sought on the ground of the he was in default in the payment of the rent of for a total period of three months. Petitioner showed cause against the application and claimed that no rent wad due as substantial amount of money amounting to Rs, 2958|- had been spent any him as expenses for repairing the suit premises. However, by judgment and order dated 30-8-76, the Rent controller allowed the application. Aggrieved, the petitioner preferred an appeal against the said Order of the Rent Controller which was dismissed by judgment dated 2nd July, 1977.

6. In Writ Petition No. 64|B|77, the petitioners case is that he is at enantr of premises belonging to respondent 1 and situated at the Menezes Braganaza Road where the petitioners has installed his garage for repairs of motor cars. He has been tenant of the said premises since 1-1-73 and prior to that, petitioners and respondent 1 were jointly running in partnership the businesses of the garage. The ;remises had been let to the petitioners on the monthly rent of the petitions on the monthly rent of Rs. 150|- by way of an oralagreement of lease. Respondent 1 filed an application, on 1-6-74, for eviction of the petitioners on the ground that the he had failed to pay the rents for the months of January to April, 1974 amounting to Rs. 600|- and that respondent 1 required the said premises for his personal occupation. By his reply dated 3-8-74, petitioner contended that there was no cause of action as on 6-4-74 and he further denied that the he was in arrears in the payment of the rents. He also alleged that he had tendered the rents every month from January on wards and that respondent 1 had refused to accept the rents, twice, in February and march , 1974 and further that the he had sent a Money Order for Rs. 300|- to the respondent on 30-3-74, remitting the amounts of rent of the months of January and February, 1974. By judgment and order dated 30-3-76, the Rent Controller, however, ordered the eviction of there petitioners from the premises, though the rents had been paid within one month from the notice being served on the petitioners. Aggrieved by the said red Order of eviction, the petitioner preferred appeal to the Administrative Tribunal and the said appeal was dismissed by judgment dated 13-6-77.

7. In the Weir Petition No. 136|B|78, petitioners case is that respondent I sought his eviction from the premises situated at Panaji inder the provisions of situatedat Panaji under 6the provisions of s. 22 (2) (a) of the Act alleging that petitions was in arrears in payment of the rent for the months of July, 1972 till April, 1973. Petitioners opposed the application by contending that the reason for the rent falling in arrears was attributable to the unreasonable conduct of respondent 1 himself for, against the established practice, he had refused to collect the rent from the shop of tone Damodar Kashinath Naik at Panaji, during the ,months of August , September and October and that in Novemebr, 1972 petitioner had tendered the rent for the months of July, August , September and October amounting to Rs. 900|- by Money Order, but the said Money Order had been refused by the respondent. By Order dated 30-10-75, the Rent Controller held that the reason for the rent falling in arrears a was due to the fault of the petitioners himself and, therefore, directed that the petitioners should hand over the possession the of premises to respondent 1. Aggrieved, the petitioners preferred appeal to the Administrative Tribunal which was dismissed by Order dated 20-3-76.

8. In the petition No. 19|B|79, the petitioners case is that he is the tenant of a house known as 'Durga Niwas' situated at Ribabdarabad belonging to respondent 1. On or about 16-5-74, the said respondent filed an application before the Rent Controller for eviction of the petitioner under S. 22 (2) (a) of the Act and the said application has been resisted on several ground by the petitioner to vacate the suit premises of the same to respondent 1 within three months from the date of the said Order. Aggrieved, the petitioner preferred an appeal to the Administrative Tribunal which was dismissed by Order dated 28th July, 1978.

9. In Writ Petition NO. 178|B|82, the petitioners case is that respondent 1 moved an application before the Rent controller, North Goa Division on 13th June, 1972, on the ground that the petitioner had not deposited the monthly rents at the rate of 20|- from January , 1971 till June, 1972, i. e . the date of the filing of the application . the petitioners resisted the application stating that it was not true that the rent due was of Rs. 20|- per month , for actually the agreed rent was of Rs. 15|- per month; that he had paid the rents up to December, 1971 and that respondent 1 has refused to accept the rent of January , 1972 when it was tendered in February, 1972. Summons of the proceedings were served on the petitioners on 27th June, 1972 and by his Order dated 18th April , 1973 the Rent Controller dismissed the applications filed by respondent 1. Respondent 1, being aggrieved filed an appeal to the Administrative Tribunal and the said appeal was also dismissed by judgment date 2-2-1975. Thereafter , respondent 1 filed a writ petition in the Judicial Commissioners court and the Hobble Judicial commissioner set aside theorizer of te Rent antler and the judgment of the Administrative Tribunal and the decision of the Judicial commissioner, no rents were paid of deposited, since it was the case of respondent 1 that the rent was of Rs. 20|- per month and this was being challenged Bu three petitioners on the ground tha the rent due was of Rs. 15|- per month After the case was remanded, respondent 1 moved an application dated 1st February , 1980 under S. 32 (4) pf the Act sating that no rents were paid or deposited after the case as neem decoded by the Administrative Tribunal . On his reply, the petitioners prayed that the rent be fixed by the Administrative Tribunal and that an opportunity be given to the petitioners on fixation of the said rent oto pau the arrears, if any. However, by his order dated 26-6-1080 the Rent controller allowed the application user s. 32 (4) of the Act and defected the petitioners to hand over possessionof the premises to respondent 1. An appeal was preferred against the said ordoe to the Administrative Tribunal and the said appeal was dismissed by judgment dated 17-8-1982.

10. The main contention of the of the petitioners in all the above cases is that the Act, ass it stood at the time of initiating the eviction proceedings before of the Rent controller under is s. 2 (2) (a) , was amended by the Goa, Adman and Diu Buildings (Lease, Rent and eViction) control (Amendment) Act, 1976, the Amendment having come into force the Amending Act and its publication in the Official Gazette dated 27th June, 1976, and therefore, during the either of the said proceedings either before of the controllers or the administrative Tribunal . The original S. 22 was amended in as much as cl. (a) in subs-s (2) was substituted, the proviso was omitted and sub-ss. (3) and (4) were added . the wording of the amended cl. (a) in sub-s. (2) makes it clear that the Rent controller shall make an order the directing the tenement to put the landlord in possession of the building in a proceeding for eviction on the ground of arrearsin payment of the rents due, only in the event the tenant is in arrears of the payment of rent due only in the event the tenet is in arrears of the payment of rents for a total period ;of three months and in addition, he has failed to poor tender such arrears affront with pay or tender such arrears of rent with in 30 days of the receipt of the refusal of a registered notice served on him by the landlord for such arrears. The requirement of giving such arrears. The requirement was giving such notice was not existing in the original cl. (a) and the Amendment of was introduced to eliminate the mischief that such omission was giving cause to. Act the present therefore, the landlord has cause of action for instituting eviction proceedings on the grounds os areas in the payment of rent only in case such arrears are for a total period of three months and in addition, he had given the afore said notice. The Act is a beneficial piece of legislation enacted for the protection of the tenant and hence, had to be applied retrospectively, for otherwise there will be discrimination. However, this was not done either by the 'Rent controller or by the Administrative Tribunal with the result that the eviction orders are ab intionull and aviod since the landlords in each case, having failed to give the statutory notice had no cause of action. Reliance was placed im support of the above contentions in the cases of Mst. Refiquennessa v. Lal Bahadur chetri : [1964]6SCR876 . Shah Bhojraj Kuverji Oil Mills v. Subhash Chadra Yograj Sinha : [1962]2SCR159 . Mohanlal Chunilal Kothari v. Tribhovan Haribhai 'tamboli : [1963]2SCR707 , Smt. Safali Roy chowdhary v. A. K. Dutta : AIR1976SC1810 , Ganesh FlourMills Company Ltd. v. Ramesh Chand (1979) 2 R CJ 418 and A. Krishnaswami v. S.Rasheeda.(1981) 1 R CJ 320.

11. This view was, however , strongly opposed by the respondents their case being that they admittedly had a cause of ation unsure S. 22 (2) (a) of the Act, as it stood at the time of te institution of the eviction proceedings, to obtain an order under the said section. The amended cl. (a) did not confer any particular right on the truants, nor did it take away right of a landlord to seek eviction of hose tenant on the ground of non-payment of rents. It has only imposed a condition regulating the exercise of the right of the landlord to apply for the eviction of hasteningon that ground. There fore, the amendment is not to be , and cannot be, applied retrospectively the rulings ins the cases of Mst. Rafiquennessa and S.B.K. Oil Mills (above) being presently against the petitioners case and the rulings in the cases of Mohanlal Kothari and Smt. Sagali R., Chowdhary (supra) being not helpful for the,. It was further argued that, as held by the supreme court in the case of Katikara chintamai Dora, v. Guatreddi Annamamiaud AIR 1974 SC 11069, it is well settled that ordinarily , when the substantive law is altered during the tendency of an action, the rights of the parties are decided according to law, as it existed when the action was begun unless the new stature shows a clear intention to vary such rights. I . e . in the absence of anything in the Act to say that it is to have retrospect operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at he me when the Act is passed. There fore, as the respondents hadalready a right during the prudenceof the proceedings , it is the old law that governs the said proceedings. Reliance was also placed in this connection in the cases of Mahendra Nath Gupta v. Moti Ram Rattan Chand, : AIR1975Delhi155 and A. f. Ferguson & Co. v. Lalit Mohan Ghosh and by the Andhra Pradesh High court in Kopparti Satyanarayana v. smt. Kopparti Seetharam mamma mamma : AIR1963AP270 it could have had retrospective effect only by express terms or necessary intendment, a condition that does not exist in the amendment. In any case, even where two interpretations are possible. One giving retrospective effect to a law and te other merrily prospective, the latter interrelationhas to prevail. In addition it was further contended by the respondents tat the proceedings were complete at the time the amending Act came into force and science, as observed in the case of Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 11636, a stature should not be construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force, the amended S. 22 cannot be construed as having retrospective effdcrs. Also as held by the Supreme Court in the case of Moti Ram v. Suraj Bhan : [1960]2SCR896 , it is well settled that where an amendment agentsvested rights , the amendment would operate prospectively unless its retrospective operation follows as a matter of necessary implication or it is expressly retrospective. Reliance was also placed in teaches of Mohad. Rashid Ahmad v. Prithiviraj chunilal Sand v. hari G. Parkhe : (1954)56BOMLR1076 in support of the same view.

12. It is admitted position that in all the petitions the landlord respondentsa had instituted proceedings against the petitioners for their eviction from the premises occupied by them on lease, inter allia, on the ground of non-payment of rents for three or more months. It is also common ground that, at the relevant time,. The original unmanneds. 22 (2) (a) of the Act was in force. It becomes, therefore necessary to analyze the said provision of law as it stood at the ,material time of the institutions of the eviction proceedings.

13. Section 22 (1) of the Act provides that a landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. Sub-section (2) lays down that it the controller, after giving the tenants a reasonable opportunityof showing cause against the application, is satisfied that any of the grounds specified is it cls. (a) to (g) exists, shall make an order directing the tenant to put the landlord in possession of the building or if not so satisfied, reject the application . the unnamedclause (a) runs as under :-

'that the tenant is in arrears in payment of rent due by him in respect of the building for a total period of three months'

It does not require much effort to arrive at a finding that bare arrears in payment of rent due by the tenant of a building for a total period or tree months constituted a ground for his eviction from the premise occupied by him on lease and that the ;landlord had a right to seek eviction of hs tenants on the aforesaid groundAlison. Thus, is in the event the th3ant fell in default of payment of rent of a total period of three months, a cause of action would, under the said s. 22 (2) (a) of the Act, accrue to the landlord to seek the eviction of such tenant and a right would be vested in him to evict petitioners that they had not actually paid the rents for a total period of three months, though they gave some reasons therofrr. Thus, it is clearly established that the respondents had a vested right to get an order of eviction of the petitioners and a cause of action had accrued to them to seek such an order of eviction.

14. Clause (a) of s. 22 (2) was admittedly amended , the amendment having cone into force on 27th May, 1976, the date on which the same was published in the Official Gazette, by virtue of s. 1(2) of the Amending Act which provided that the amendment shall come into force at once. The amended cl. (a) reads as follows :-

'(a) that the tenant is in arrears in payment of rent duo by him in respect of the building for a total period of three months and has failed to pay or tender such arteries of rent as are legally recoverable from him within 30 days form the receipt of or of the refusal of a registered notice served on him by the landlord for such arrears'.

A careful reading of the aforesaid cl. (a) as it stands at te preset, shows that the Amendment consisted in adding to the requirement of arrears in the payment of rent for a total period of three months, the failure of the tenants to pay or tender the arrears within thirty days from the receipt of or of refusal of a registered notice served on him for such arrears. In other words, the original ground of arrears in the payment of the rents for a total period of three months for seeking a notice on the tenant demanding the payment and the failure of the latter ion paying or tendering such arrears of rent to the landlord. Therefore, though the ground for the eviction continues basically the same (the non-payment of rent of a total period of three months) the fact remains that they by virtue of the amendment , there exists a and a cause of action accuser to the landlord and a right to get an order of eviction chests in him only after the tenant fails to pay or tender the arrears within thrity days from the service of or refusalof the notice demanding such arrears. It was contended by the petitioners that the Act Sid a beneficial apiece of legislation, enacted to protect their interestof the tenant and, therefore, it is in the light of its scope, that te interests os the tenant and, therefor it is in the light of its scope, that the amendment is toe looked into Fr the purpose of arriving at a finding ad to whether or not oit has got retrospective effect. Thus, the statement of objects and reasons for the amendment becomes relevant. Such statement of objects and reasons makes stickler that the amendment was intended to laminate the mischief arising out of the original s. 22 since no notice was required to be given to the tenant, though such notice was required by the Transfer of Property Act. Hence, it was submitted the amendment is necessarily to be applied retrospectively. I am , however, unable to persuade myself to accept this view. In fact, the statement object and reasons for moving a bill for the amendment of the Act serves only the purpose of showing what is the mischiefintended to bee eliminatedthrough the amendment. It is solely meant to justify the bend for the amendment and has nothing to do with the prospectiveor prospectiveeffect of the amendment, such effect big to be gathered form the amending Act itself. Besides, it is a fundamental rule of law that a statue shall not be construed as having retrospective effect, unless such retrospective effect is expressly provided in the Act or is to be necessarily implied from its language., There is nothing in the Goa, Adman and Diu Buildings (Lease Rent and Eviction) Control (Amendment) Act, 12976, either express of necessary of the petitioners warrant the contentions of the petitioners that the amendment is to be applied with retrospective effect. Therefore, in the absence or any such thug, it would be erroneousto hold that the amendment has retrospective effect.

15. Irprospective of this aspect of the case, it is pertinent to note that the Act is not a declamatory legislation, but remedial and, therefore, unless so declared expressly. Or that much is necessary to be implied it has, to he prospective . In deed, as observed in the case of the Central Bank of India v. Their Workmen : [1960]1SCR200 (supra) , a remedial Act, unlike a declamatory one is not necessary retrospective, for it may be enlarging or restraining anti takes effect prospectively, unless it has retrospective effect by express terms or necessary intendm,ent. Similar was also the view taken by the Andhra Pradesh High court in Kopparti Satyanarayana v. Smt. Kopparti Seetharam mamma (above) : AIR1963AP270 ). In addition it, becomes also necessary to consider tat under the original S. 22 (2) (a) a right had vested in the respondents to obtain an order of eviction on the failure the tenant utopia the rent for a total period of the three months and they actually had instituted evictions proceedings on the ground of arrears of rent for a to period or three months. Now, as already observed, the amendment modified this right, subjecting it to the serving of a demand notice on the tenant and the latters failure to payer tender the arrears within thirty days form the services of the notice or of Otis refusal. It is an admitted position that proceedings were already pending against the petitioners art the time the amendment came into force. Th9s being so, the rights of the parties had to be decided in accordance with the law as it existed dat the initiation of the eviction proceedinfss. I am fortified in this view by the rulings of the Delhi ad Patna High courts in the cases of mehendraNath v. Moti Ram Rattan Chand : AIR1975Delhi155 and A. f. Ferguson & co. v. V, Lalit Mohan (above) AIR 1954 P 596, as well as of there supreme court in the case of K. C. Dora, v. G. Annamanaidu : [1974]2SCR655 , wherein, after quoting form Maxwell on Interpretation of Statues , it was observed that in the absence of anything in Th. Act to sau tat it is to have retrospective operation, the same cannot be construed as to have that it is to have be construed as to have the effect of altering the law applicable to a claim in litigation at the time the Act is passed. It is also ver pertinent to, recall that when the Amendment came into opertion, respondents had already exercised their right under the unattended s. 22 (2) (a) and, in that sense, they had completed, their action. In N. G. Mitra v. State of Bihar : 1970CriLJ1396 (supra) it was observed that a statueshould not be construed as to create new disabilities or obligationsor impose new duties in respect of transactions which were complete at the time if the amending Act came into force Obviously, the amended cl. (a) imposes a new duty on the landlord and, therefore, once the respondents had already exercised their right, the new duty of serving of notice as a precondition to initiate eviction proceedingscannot operate retrpsectove;y. In any case, OT oswe;; settled that where an amendment of facts vested rights, the amendment would operate prospectively unless its retrospective operation falls as a matter of necessary implication or it is expressly made retrospective. I am fortified in this view by the rulings in the case of Prithiviraj Chunilal v. Hari Ganesh : (1954)56BOMLR1076 (supra) and of the supremecourt in Moti Ram v. Suraj Bhan : [1960]2SCR896 and of Mohd. Rashid Ahmed v. State of U.P. : (1979)ILLJ146SC .

16. Petitioners placedreliance in the cases of Rafiquennessa v. Lal Bhadur Chetri : [1964]6SCR876 , S. B. Oil Mills v. Subhash Chandra (AIR 1961 SC 358, Safali Roy v. A. K. Dutta : AIR1976SC1810 , Ganesh Flour Mills company Ltd. v. Ramesh chand 1979 2 R CJ 418 and A. Krishnaswami v. Rasheeda 1981 1 R CJ 320 (mad) in supportof their contentions that since the Act is beneficial legislation, it operates retrospectively. Though , at the outset, I may say that none of these authorities help the case of the petitioners , it will be expeditionto analyze them.

17. In the case of Rafiquennesa v. Lal Bhadur chetri : [1964]6SCR876 , it was held that where vested rights are affected by any statutory provisions, the said provisions should normally be construe to be prospective in operation and not retrospective, unload the provision in question relates merely to a procedural matter. The legislature is competent to take away vested rights by means of retrospective legislation's. Similarly, the legislature is undoubtedly competent to make laws which override nand, materiallyaffect the terms of contract between the parties; but unless a clear and unambiguous intuitions is indicated by the legislature by adopting is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statue should be given retrospective operation if Bu such operation vested rights are likely to be affected. It was further observed that retrospective operation of a statutory can be inferred even in cases where such retrospective operations appears to be clearly implicit in the provision construed in the context where it occurs. As already observed, respondents had accrued a right to whet an order of eviction. They had, there fore, a vested right which would be affected by the retrospective operation of the amendment which otherwise does not express in clear manner the intention to make the operation of the amendment retrospective Hence, this ruling of the supreme court actually runs counter against the petitioners cases.

18. In S. B. K. Oil Mills v. SubhashChandra Sinha, : [1962]2SCR159 , it was held that a section may be perspective in some parts and retrospective in other parts. It further holedhat while it is the ordinary rule that substantive rights should not be held OT be taken away except by express provision or clear implication, by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation , if the intention of the Legislature is apparent. These observation of were made while constraining the provisions of s. 12, Bombay Rents, Hotel, and Lodging House Rates Control Act, 1947, namely its sub-sec. (1) But while holding that the said sub-sec (1) was retrospective in its operation, the supreme court approved in it earlier decision and that of this court to the effect that sub-secs. (2) and (3) of s. 12 of the aforesaid Act had only prospective effect. Curiously enough , the said sub-secs. (2) (3) are akin to the amended cl. (a) of the Act. This begin so, this authority also, in fact, helps the respondents and not the petitioners.

19. In Mohanlal Chunilal Kothari v. Tribhovan haribhai Tamboli : [1963]2SCR707 , it was held that the Court is bou,d OT apply the law as it finds on the date of its judgment . In the said case, the appellants were landlords and the respondentstenants in the possession of certain lands situated in the erstwhile State of Baroda before it became part of Bombay. The Bombay Tenancy and Agricultural Landa Act was extended to baroada 1-8-1949. The suits had been instituted on the basis that the respondent had notice in March 1950 with effect from the beginning of the new agricultural season in May , 1951. Respondents did not comply with the terms of the notice and continued in Poseidon of the lands, to which they had been inducted and therefore the landlords instituted the suits of for possession. There suits were decreed and second appeal was dismissed. During the appendenceof the suit at three appellate sage, a second notificationhad been issued under S. 88(1), Bombay Tendencyand AgriculturalLandsAct, 1948 canceling the first Notification. It was in such background that there Supreme court gave the above ruling. Te right the that appellants had in await case to get apposition of the lands by virtue of the first Notification had been taken away by the second Notification and, therefore, such Notification had necessarily retrospective effect, particularly when it was meant to protect the rights tat some people ahd Bedford the first Notification which riteshad been taken way But that same Notification. The factual position before me is completely different , being pertinentto not that is not the caseof either party that the of the landlord to seek eviction of the tenant for non-payment of rents had ben taken way. In fact , the case of the petitioners is only that such rights were qualified by the amendment. In the circumstances, the above ruling of the supreme court is not, in my opinion, attracted to the facts of the before me.

20. In Smt. shali Roy chowdhary v. A. K. Dutta : AIR1976SC1810 it was held that hen the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of is pendent. However, this ruling is not attracted at all to the facts of the cases before me, because in the case dealt by the Supermen Court, the new Act has conferred a new status to the said tenant and, therefore, the said ruling has been given on entirely different footing.

21. In the Ganesh Flour Mills Company Ltd. v. Ramesh Chand 1979 (2) Ren CJ 418, the Delhi High Court , relying upon the ruling of the Supreme Court in the case of Mohanlal Chunilal Kothari (above ), : [1963]2SCR707 , held that the court is bound to apply the law as it finds on the date of judgment . I need not repeat the observations made by me to hold that the aforesaid ruling of the Supreme Court is not applicable to the cases before me. sufficesto say that for the same reasons, the above rulingof the Delhi High Court is of no help to the case of the petitioners.

22. In A. Krishnaswami v. S. Rasheeda 1981 1 Ren CJ 320 (Mad), it was held in the facts of that case that the doctrine of election could not be a defence and that the plea of estoppel by conduct or promise is not maintainable against a statute. This ruling does not appear to have any relevance for the cases of the petitioners.

23. The contention of the petitioners that the eviction orders made against them are ab into null and void of substance. In fact, in the absence of express provision giving retrospectiveoperation to the amendment, nor the language of the amendment clearly and unambiguously implyingsuch retrospective intendment by the legislature, I am bound to hold that the said amendment of S. 22 of the Act is merely prospective in its operation , specially when a right had ben vested in the landlords and they had actuallyexercised such right.

24. The next contention of the petitioners had been that in any case, even if the notice was not required, no order could have been made by virtue of subsec. (3) to S. 22 introduced by the Amendment. Sub-sec (3) provides that no order of eviction of a tenant shall be made on the ground specifiedin cl. (a) of sub-sec. (2) if the tenant within thirty days of the service of the summons of the proceedings on him, pays or tenders to the landlord or deposits with the Controller the arrears of the rent due by him up to the date of such payment, tender or deposit together with the cost of the application. A plain reading of the aforesaid provision is sufficient to show that the same is necessarily to be construed as prospective, for its retrospective operation is patently impracticable. It indeed requires the tenant to pay or tender to the landlord or deposit with he controller the arrears of rent up to the date of the payment together with the costs of the application within thirty days of the service of the summons of the proceedings. Naturally, if such thirty days period of time had already lapsed. As otherwise happens in the cases of all the petitioners, it goes not stand to reason that the operation of the said sub-section operates retrospectively. Therefore. Here also the contention of the petitioners is unsustainable.

25. Petitioners submitted also that not withstanding the merits of their eithercontentions in respect of the retrospective operation of the amendment of Section 22 of the Act and its consequences, the eviction orders are vitiated, even in the light of the aforesaid provision of law as it stood before the Amendment. In factk, it was argued that where proceeding were instituted under S. 22(2) (a) the provisions of S. 32 (4) of the Act were not applicable by virtue of the proviso to the unattended S. 22 (2) of the Act. The said proviso laiddown that not withstanding anything contained in s. 32 . the Rent Controller, it satisfied that the tenant's default to pay or tender rent was not without reasonable cause, may give the tenant a reasonable time, not exceeding 30 days to pay or tenderthe rent due . Therefore, it was argued, if the controller may give the tenant reasonable time to pay or tender rent due, notwithstanding anything contained in S. 32 it becomes clear that the proviso was excluding the operation of S. 32 incases filed under S. 22 (2) of the Act. It was, however, contended by the respondents that both the provisions have to be construed harmoniously and, therefore, considering their wording, it is clear that the proviso to S. 22 (2) operates only in the event the tenant's default is established, either by his admission or otherswise, whereas S. 32 comes into picture only in cases where the tenant intends to contest and does not admit the default. Secondly, the proviso applied only to the default prior to the institution of the eviction proceedings, whereas S. 32 (4) comes into operation only in the event the default occurs pending the proceedings. I find myself to some extent in agreement with the respondents in this point. Indeed, the proviso to S. 22 (2) laid down that if the Controller was satisfied that the tenant's default to pay or tender rent was not without reasonable caise, he might notwithstanding anything containedin S. 32. Give the tenant reasonable time to exceeding 30 days to pay or tender the rent due. Analysing the aforesaid provision of law, it becomes clear that there are two requisite conditions for the Controller to act under the said proviso. Namely (1) that the tenant is in default and (2) that such default is not without reasonable cause. Now, considering that s. 22(2) (a), as it stood before the amendment, was providing that the Controller should make the order of eviction of the tenant if, after giving the latter a reasonable opportunity of showing cause is satisfied that the same tenant is in arrears in payment of rent due for a total period of three months, it becomes apparent that the satisfactionof the Controller that the tenant is in default, spoken about in the proviso, could have been arrived at only by admission of the default by the tenant himself. The second requisite, viz. That the default is not without reasonable cause has, therefore, to be looked into only in case the first condition is satisfied. Hence, it follows that only when the default of payment of rent for a total period of there months was admitted and it was further summarily established that such default was not without reasonable cause, the Controller could give opportunity OT the tenant to pay or tender the rent due and this notwithstanding anything contained in S. 32 . It is, as such , necessary to analyze the said S. 32 which provides for payment or deposit of rent during tendency of the proceedings for eviction. Section 32 lays down that no tenant against whom proceedings for eviction has been instituted by a landlord under the Act shall be entitled to contest te proceedings unless he has paid to the landlord or deposited all the arrears of rent due in respect of the building up to the date of the payment and continues to pay and OT deposit any rent that may subsequently becomedue till the termination of the proceedings. In other words. S. 32 bars the tenant from contesting a proceedings for his eviction unless he pays or deposits the rents due and continues to pay or deposit any further rent that become due in the course of the proceedings. Thus, it is manifest that the provision of S. 32 comes into operation only in the event the tenant wishes to contest the proceedintgs, because eitherthe ground of non-payment of rent, to be defaulter, or he was unable to summarily satisfy the Controller that the default was not without reasonable cause. Indeed. There may be cases where a defaulting tenant can easily and summarily show that the default was not with the reasonable cause. As there may be other cases where this can be shown and established only after elaborate evidence. Thus, the proviso was attracted only in cases where the tenant has admitted the default and has further satisfied summarily the Controller that such default was not without reasonable cause, whereas S.32 applies only to cases where the tenant wishes to contest the proceedings, either on the footing that he is not in default or because, thoughhe admits to be indefault, he has been unable to summarily satisfy the controller that the default was not without reasonablecause and needs to adduce evidence therefor. Hence , the expression notwithstanding anything contained in S. 32 appearing in the proviso is to be construed as meaning that the tenant, who admitted his default but was unable to summarily satisfy the Controller, is entitled to prove in the proceedings that his default was not without reasonable cause provided that before contesting the proceedingshe pays or deposits the rent due and continues to pay or deposit the rent due and continues to pay or deposit such rents which became due during the proceedings t. It follows, therefore, that the contention of the petitioners is devoid of substanceand the operation of the proviso to S. 22. (2) in no manner constitutes a bar to act under S. 32 (4) of the Act.

26.Having discussed and dealt with the submissions which are common to all the petitioners, it becomes now necessary to deal with the contentions peculiar to each case. In Petition No. 2/B/77 the petitioner's case is that the Rent Controllerdid not give reasons for passing the eviction order, na,mely whether the petitioner's default was without reason able cause. It is further the case of the petitioner that the Administrative Tribunal has attempted to fil in the gap and in any event, no eviction order could have been made, for the petitioner, having been served with summonsin, the proceedings of 21st June, 1974. Deposited the rents due on 9-7-1974. These submissions of the petitioners, however, hold no water, Indeed, on going through the eviction order, it is clear that the Rent controller did consider that, in the circumstances lof the case, the defence set out by the petitioner was not to be livedand in any event if the respondent was refusing to recieve the rents, it was the duty of the petitioner to remitterby Money Order , as otherwise it appears that he has done twice in the past. He found also that the petitioner has not made ny attempt to pay the arrears of rent ill the institution of the proceedings and in addition, had been irregularin the payment of the rents in the past. Therefore, he held that the petitioner has failed OT make a case to give him the benefit of the proviso to S.22 of the Act. In these circumstances, it is wrong to say that the learne Rent Controller did not give reasons and that the Administrative Tribunal filledin a gap that was not actually existing, Both the Controller did not give reason and that the Administrative Tribunal filled in the gap that was not actually exis ing. Both the Controller and the Administrative Tribunal arrived at a concurrent finding that the petitioner had not been regular in the paymentof the rents and was actualy in default of payment of rents for a total period of three months at Th. initiation of the proceedings . It was furtherheld that the story of the petitioner that the respondent had refused to receive the rent was not proved . Resonabl;e cause, as correctly observed by the Administrative Tribunal, is a cause that a prudent man acceptsas reasonable . The test to assess the reasonablenessof the cause for default is , therefore, to find whether in the judgment of a common prudent man the cause is such that any normal man would, in the same or similar circumstances. Be also a defaulter. The application of this test does not help the petitioner and as such. Both the Rent Controller and the AdministrativeTribunal correctly held that the petitionerhad no reasonable cause for being in default in the payment of the rents and to benefit of the proviso to S.22 of the Act. This being the case, the fact that the petitioner deposited the rent within 30 days from the serving of the summons of the institution of the proceedings, does not help him, for the benefit embodied in the aforesaid proviso is to be given only when the default in the payment of rent was not without reasonable cause.

27.In petitions.165/B/75, it was contended that the Rent Controller did not apply his mind to S. 21 of the Act and, there fore, has failed to appreciate that the petition before him could not have ben construed as an application under S.22 (2) (a) of the Act. In fact, the petitioner's case has been that he was occupying the premises as a prospective purchaserand the monthly amount he was paying was to be adjustedin the consideration agreed for the sale of the building. In addition in the application filed before the Rent constroller, respondent/applicant did practically give up the ground of non-payment of rent OT advance the ground of un authorized alterations made in the premises. Such ground, however, is not availableunder S. 22 of the Act. The learned counsel for the respondent however contended that the question of whether or not a relationshipof landlord and tenant existed was to be decided by the Controller under the proviso to S.21 and, in the present case, the Controller, being satisfied that such relationship was existing, had correctly acted under S.22 of the Act, the ground of alteration having been averred only for the purpose of showing that,m besidethe ground of arrears of rent, the aforesaid additional ground wouldalone warrant the eviction of the Petitioner. Both the Rent Controller and the Administrative Tribunal dealt with the issue and after elaborate discussion arrived at the concurrent finding that the relationship of landlord and tenant existed. This concurrent finding is to be accepted by this Court, if not for other reasons because , in the exercise of its writ jurisdiction, the court is not sitting in appeal or revision. Hence, the contention of the petitioner that the rent controllerfailed to appreciate that the application was falling under s.21 and was outside the purview of S. 22 is entirely erroneous and unacceptable. In so faras the ground of unauthorised alterations a plain reading of the application before the Controller suffices to show its fallacy. In fact, what is averredis that, irprospective of non-payment of the arrears of rent, the unauthorised alteration of the premises would alone be a ground for eviction. This does not take the application for the eviction had been sought also on the ground of default in payment of rents. Naturally, the ground of unauthorised alterations was not, as actually was not to be considered.

28. In Petition No. 19/B/79. It was submitted that the landlord was residing in Bombay and was coming to Goa from time to me. As a result, there was no uniform manner to pay the rents and the default in payment of the sa,e rents was not without reasonable cause. It was further argued that a liberal construction is to be given to to the expression 'reasonable cause' so as to protect a bona fide tenant. Administrative Tribunal held that 'reasonable cause' should be construed as a 'not willful' cause and the petitioner, definitely , has not committed such a default. It was, however, contended by the respondent that the petitioner had been in default in the payment of the rents for long periods, being a fact that the payment of 5rent was to be made in the terms of the contract of leas. In any case, the petitioner had been given notice before the filing of the applicationfor eviction on 30-3-74. In spite of such notice, petitioner has not paid the rent and that, at the time of the filing of the of the application, he was in default for a period of more that three months. Petitioner's case is that since the respondent was residing in Bombay there was no uniform manner to pay the rent. This is denied ny the respondent and boththe Rent controller and the Administrative Tribunaldid not accept the version of the petitioner as being true. As already observed, it is not proper for this Court in the exercise of its of its writ jurisdiction to go into the merits of findings of fact. Therefore, even taking the most liberal construction of the expression 'reasonable cause' found on the proviso to S. 22 (2) . construction will never help the petitioner,. For he has not shown any such cause, specially when a notice was given to him on 30-3-74 and he has failed OT pay the arrears of rent, at least, till the filing of the application on 16-5-74 i.e, about 1 1/2 months after the service of the notice.

29. In Petition No. 28/B/77, the petitioner's case is that after the institution of the eviction proceedings they had paid not only the rents due but also rents in advance and had been assured by the landlord that proceedings would be withdrawn . In these premises and since the rents had been in the past paid in lump sums and in respect of several months at a time, petitioners in good faith and not wilfully did not pay the rents for three months during the tendency of the proceedings. Therefore, there was reasonable cause for default and the Rent Controller was wrong in makingthe eviction order under S. 32 (4) as also wrong was the AdministrativeTribunal in confirming it. Section 32 (4) provides for a notice to the tenant who defaults in the payment of the rent during the tendency of eviction proceedings. If the tenant shows sufficient. Cause for the default, then no order under the said sub-s. (4) stopping the proceedings can be made. The Rent Controller and the Administrative Tribunal held with cogent reasons that, in the facts of the case, no such sufficient cause has been shown ny the petitioners. I fully concur in such finding, for it is hard to understand why the petitioners failed to pay or deposit the rents in the tendency of the proceedings although the same proceedings had been instituted on the very same ground and although the respondent had not withdrawn it , as allegedlyhe had promised . The facts imply that the whole story of the petitioners is false. Hence I find that this is not a fit case for the inferenceof this Court in the exercise of its writ jurisdiction specially when the petitioner entirely failed to show a satisfactory and sufficient cause for his failure to pay the rents due in the tendency of the eviction proceedings.

30. In Petition No.136/B/78, petitioner submits that though under the lease contract the rents were to be paid at the residence of the landlord at veer, the fact remains that the same landlord used to receive them at the shop of one Damodar Naik at Panaji. Therefore , in conformity to the practice that was going on, petitioner deposited the rent pending the eviction proceedings. Irprospective of the alleged practice, it does not paper to me that the cause shown by the petitioner was sufficient to void an eviction order. In fact, admittedly, in spite of the said alleged practice, respondent has initiatedthe eviction proceedings under S.22 of the Act and, therefore if at all respondent has refused to receive the rents, it was incumbent upon the petitionerto remit the rents by Money Order as provided by S.17 (3) of the Act. Having failed to do so there cause shown is not satisfactory and, therefore, rightly was not considered as sufficient cause by the Rent Controller and the Administrative Tribunal.

31. In petition No. 113/B/77, it was contended that, first of all, petitioner has deposited the rent due within 30 days of the notice of the proceedings having been served on him. Therefore , he was benefitting of the proviso to S. 22 (2) (a) of the Act and no eviction order cou;ld have been made against him,. Secondly, admittedly, the lease has been created by the late Dr. Armino R. Santana, father of respondent 1. On the death of Dr.Armino. the said building was devolved on one of his daughters, who is not, therefore, a landlord, the extended definationgiven by the Act being of no help. In any event, by virtue of sub-s. (3) to S, 22 , no order of eviction could have ben made since the petitioner has deposited the rents due within 30 days of the date of the summons of the proceeding served on him. None of these submissions is , however sustainabl;e. In fact, and in so far as the payment of deposit of rents due within 30 days of the serving of the summons, it is pertinent to note that Sun-s () was introduced by the 1976 Amendment and it is prospective in operation as its very wording made exceeding clear. It indeed provides that no order for eviction of a tenant shall be made on the ground specified in cl. (a) of Sub-s. (2) if the tenant pays or depositthe rent along with the cost of the application within 30 days of the serving of the summons. The requirem,ent of the payment or depositwithin 30 days of serving of the summons unmistakenly makes the provision prospective in nature, for if the said period of 30 days had lapsed at the time of the coming into force of the said sub-s (3) obviouslythe provisions could not not be applied to the past with retrospective effect. Therefore, the payment made by the petitioner has to be appreciated in the light of the proviso to S.22 (2) of the Act and it is necessary to see whether reasonable cause was shown for the default., Both the Rent Controller and the Administrative Tribunal held that the alleged repairs done by the petitioner were not proved and, therefore, the reason given for the default was not reasonable. On this concurrent finding of fact. I find no fault in the conclusion that no reasonable cause was shown ny the petitioner.

32. Petitioners , placingreliance on the case of Nalal Girdharlal v. gulamnabhai Motorwala AIR 1973Guj 131 contendedthat respondent I was not a landlord with in the meaning thereof in S. 22 of the Act, for admittedly, her is merely attorney for his sister who is the ownerof the house. And the extended definationof landlord is of no avail for proceedings under the aforesaid provisions of the Act. The learned counsel for respondent 1, howevr, strongly opposed this view and argued that it is not disputed that petitioner had been paying rents to respondent 1 and that information about the collapsing ofa wall of the leased buildinghad been given to the same respondent. Hence, it was submitted, respondent 1 is for the purpose of the Act landlord, as definedin S.2 (j) This definition is to be read into S. 22 , for it is general for the purpose of the Act and unlike what happens in respect of S. 23 , such ,meaning was not excluded in the aforesaid S. 22 I am one with the learned counsel for respondent 1 on this point. In facct, S.2(j) of the defineslandlord as a person who, for the time being isreceiving, or is entitled to receive, the rent of any building, whether on his own account or on account of , or on behalf of, or for the benefit of, any other person who, for the time behalf of , or for the benefit of, any other person or as a trustee. Guardian or receiver for any other person or who so receives the rent or be entitled to receive the rent, if the premises were let to a tenant. It is not disputed that respondent1 is power -of-attorney holder for the owner of the building and that the rents were received by him in that capacity from the petitioner . therefore, respondent 1 comes squarely within the definationof landlord given in S. 2 (j) the decision of the Gujarat High Court in the case of Nanalal Girdharlal v. Gulamnabo Motorwas (supra) to the effect that the extended definition of the word 'landlord' given in S. 5(3) Bombay Rents, Hotel and Lodging House Rates Control Act cannot be projected in Ss. 12 and 13(1) therefore having no bearing on the cases beforeme. However, most relevant is the observation made therein, at page 141 of the AIR Report , that the artificialmeaning given in the definition clause would apply if there is nothing repugnant in the subject of context, for not only there is nothing repugnant OT the extended definition of landlord in S. 22 of the Act, but on the contrary, the same definition is under the scheme of the Act and in the context of the said provision, entirelyconsistent with it. Partnerto note is that the Act specifically excludes such extended meaning whenever a different one is to be given, as it happens in S.23 where an explanation was added, giving a special meaning to the word landlord' in the aforesaid section. The contention of the petitioner that respondent 1 is not landlord for the purposes of S. 22 of the Act, is as such not correct and is unsustainable.

33. Petitioner further contended that the owner of the building is admittedlyresiding for many years in Pakistan and that under the provisionof the Foreign Exchange Regulation Act, 1963 no foreigner can hold property without the permission of the Reserve Bank of India. The power - of -attorny in favour of respondent is therefore, contrary to the provisions of the Foreign Exchange Regulation Act, 1968 and, as such, the same power-of -attorney is null and void by virtue of S.23of the Act and as a result, the same respondentwould have no jurisdiction to manage and administer the properties. Hence, the eviction order made by the Rent Controller is vitiated and liable to be set aside/ This submission, however, does not stand and is unacceptable since there is no evidence at all to establish that the aforesaid sister of respondent 1, owner of the building, though residingin Pakistan, is a foreigner and not an Indian citizen. This being so, manifestly the provisions otheraforesaid Act are not atrracted.

34 . Coming now to the Writ Petition No. 178/B/82, it was submitted that the original application fi8led by the respondent under S. 22 of the Act was dismissed by the Rent Controller on 16-4-1973 and the appeal preferred against the said Order was also dismissed by the Administrative Tribunal. These orders were, however, set aside by the Judicial Commissioner in a writ petition filed by respondent 1 herein and the matter was remanded to the Rent Controller with a direction to decide I after considering two issues mentioned by the Judicial Commissioner in his judgment. There fore, it wasargued. the jurisdiction the Rent Controller was restricted to deal with the points on which the case has been remanded and as such, it was not open to the said Rent Controller to deal with the application filed under S.32 (4) of the Act as he did. The argument does not however hold scrutiny, since the Orders of the Rent Controller and the Administrative Tribunal were actually set aside by the Judicial commissioner though on the ground that two relevant issuehad nt been considered and the matter was remanded to be decided afresh by the Rent Controller, bearing in mind the issues mentioned in the judgment. This being so, it is wrong to say that the jurisdiction of the Rent controller was restricted to decide only those tow issues mentioned in the judgment of the Hon'ble Judicial Commissioner. And since thereafter the proceedings were pending, there was no bar for the Rent Controller acting under S. 32 (4) of the Act, which provides that if a tenant fails to pay or deposit the rent as required in the section, the controller or the appellate or revisional authority shall stop further proceedings and make an order directing the tenant to put the landlord in possession of the building, unless the tenant shows sufficient cause existed for the petitioner to be in default in the payment of the rent, because an applicationhad been filed by him asking the controller to fix what was the monthly rent. The controller did not make any such fixation of rent and, on the contrary , straightwaymade the evictionorder. Here again, petitioner's contention hasno substance , for as correctlyobserved by the Rent Controller, the point of the fixation of the quantum of the monthly rent had been already settled before and therefore, there was no reason for fixing it again. Thus, since the cause shown to explain the default in payment or to deposit the rent during the tendency of the proceedings was no sufficient the Rent Controller was quitejustified, in the circumstances, to make the eviction order.

35. In the Writ Petition No. 64 /B/77, petitioner contended that the rent was paid within 30days of the serving of the summons of the proceeding on him and a reasonable cause was shown for the delay . However, the Rent Controller and the Administrative Tribunal arrived at a different finding which is entirely aginst the evidence on record. The aforesaid eviction is based on some findings of fact of both the Rent controller and the Administrative Tribunal. Therefore , there are concurrent findings on facts and such findings cannot be challenged in a writ petition. However, the question that arises is whethere, on those facts, the petitioner had showna reasonable cause as to benefit of the proviso to S.22 (2) (a) of the Act,. Admittedly , the petitionerwas in default of payment of the rents for the months on January and February, 1974 and that after being served with the notice on 30-3-74 he deposited the same rents. The cas of the petitioner the same rents. The case of the petitioner is that there was a rents were to be paid , for according to the respondent such rents were to be paid up to the 10th of the subsequent month, whereas according to the petitioner no date has been fixed. The Rent Controller after discussing the evidence beforehim, arrived at the finding that according to the contract, as admitted by the petitioner himself, the rent was to be paid up to the 10th of the subsequent month. It is an admitted fact that the petitioner has not paid the rents of the aforesaid two months within the timer stipulated in the lease agreement, but he remitted them afterwards. The respondent refused to accept the said Money Order, on the ground that the rents had been sent to him beyond the said 10th day of the month. Besides in any case, and within 30 days of the serving of the notice of the proceeding, admittedlythe petitioner deposited the rents due. By Money Order and where he deposited the rent within 30 days. petitionerhas shown a reasonable cause for his default and s such, it appears to me that it was only fair and proper to give him the benefit of the proviso to S. 22 (2) (a) of the Act. The learned Rent Controller, therefore, was not justified to make the eviction order and the Administrative Tribunal had been consequently wrong in confirming the aforesaid eviction order which is as a result, liable to be set aside.

36. In this view of the matter and for the reasons givenabove. The petitions, except writ petition No. 64/B/77, fail and are consequently dismissed with costs., the rule issued of those petitionsis discharged. However, the Rule issued in Petition No. 64/B/77 is made absolute in terms of prayer (a). costs in this petition by respondent.1.

37. The learned advocates appearing for the petitioners in writ Petitions Nos.165/B/75, 28/B/77, 136/B/78 , 19/B/79, 19/B/77, 19/B/82 and 2/B/77 submit that the petitionerintend to prefer letters patent appeal and as such ,pray that the execution of the eviction Orders be stayed for four weeks. The execution of the above Order is accordingly stayed, but for a period of fifteendays from today only.

38. Order accordingly.


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