Skip to content


R.N. Lotlikar and anr. Vs. Kashinath Ghanashyam Sinai Kakodkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 195 of 1984
Judge
Reported in1986(3)BomCR367
ActsGoa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 - Sections 32, 32(1), 32(3) and 32(4); Code of Civil Procedure (CPC) , 1908 - Orders 8 and 16, Rules 1and 7A
AppellantR.N. Lotlikar and anr.
RespondentKashinath Ghanashyam Sinai Kakodkar and ors.
Appellant AdvocateF. Rebello, Adv.
Respondent AdvocateS.G. Desai and ;R. Kamat, Advs.
Excerpt:
.....in section 32 (4) to be read as 'may'. - - thirdly, the petitioners contended that both the rent controller as well as the administrative tribunal failed to consider their case under section 32-(a), particularly that a sufficient cause has been shown by them in order that proceedings should not be stopped and they should not be order to give vacant possession of the rented premises to the first respondent. in this case, the learned counsel further contended that the rent controller as well as the administrative tribunal had not taken into consideration the relevant factors which clearly show that the petitioner did not wilfully fall to deposit the rents with in 30 days as required by law. now, on going through the impugned order as well as through the order of the administrative..........in this writ petition the judgments dated 30th april, 1981, and 3rd march, 1984, passed by the rent controller, margao, and the administrative tribunal, panaji, respectively, stopping the eviction proceedings instituted against them and directing them to put the landlord in possession of the rented premises within 30 days from the first order.2. broadly, the relevant facts are that the first petitioner is a partnership firm which is occupying a premises belonging to the first respondent. on 17th november, 1979, the said respondent filed an application for eviction before the rent controller, south goa, on the ground of non-payment of rents from june 1978 till the date of filing of the application i.e. till 17th november, 1979, at the rate of rs. 200/- per month. the petitioners were.....
Judgment:

D.G. Couto, J.

1. The petitioners challenge in this writ petition the judgments dated 30th April, 1981, and 3rd March, 1984, passed by the Rent Controller, Margao, and the Administrative Tribunal, Panaji, respectively, stopping the eviction proceedings instituted against them and directing them to put the landlord in possession of the rented premises within 30 days from the first order.

2. Broadly, the relevant facts are that the first petitioner is a partnership firm which is occupying a premises belonging to the first respondent. On 17th November, 1979, the said respondent filed an application for eviction before the Rent Controller, South Goa, on the ground of non-payment of rents from June 1978 till the date of filing of the application i.e. till 17th November, 1979, at the rate of Rs. 200/- per month. The petitioners were served with a copy of the application on 22nd March, 1980 in the Court itself and moved an application on 24th April, 1980, under section 32(3) of the Goa, Daman and Diu Building (Lease, Rent, and Eviction) Control Act, 1968 (hereinafter referred to as 'the Act') praying that the monthly rent was of Rs. 175/- and, therefore, the said rent should be fixed after an inquiry. Thereafter, respondent No. 1 moved an application for stopping the proceedings and for being put in possession of the rented premises. The petitioners filed their reply on 29th January, 1981, taking the stand that they had already sought an inquiry under section 32(3) and, therefore, no application under section 32(4) was maintainable. However, by the impugned order dated 30th April, 1981, the Rent Controller, South Goa, allowed the application of the first respondent and accordingly, stayed all further proceedings and directed the petitioners to put the first respondent in peaceful and vacant possession of the suit premises within 30 days from the date of receipt of the said order. The petitioners preferred an appeal to the Administrative Tribunal of Goa, Daman and Diu on 19-6-1981. This appeal was, however, dismissed by the impugned judgment dated 3rd March, 1984.

3. The petitioners challenge the aforesaid judgments of the Rent Controllers and the Administrative Tribunal, mainly on four grounds. In the first place, it is their case that the order of the Administrative Tribunal is illegal, null and void inasmuch as the Tribunal is functioning without a Chairman and as such, there can be no properly constituted Tribunal without a Chairman as required by the provisions of the Administrative Tribunal Act read with the provisions of the Act. Secondly, it is the case of the petitioners that if proceedings are taken up on the basis of section 22(2)(a) of the Act, then the provisions of the section 32(4) will not apply. Thirdly, the petitioners contended that both the Rent controller as well as the Administrative Tribunal failed to consider their case under section 32-(A), particularly that a sufficient cause has been shown by them in order that proceedings should not be stopped and they should not be order to give vacant possession of the rented premises to the first respondent. Finally, the petitioners submitted that the date of filling the written statement and the date for showing cause under section, 32(3) are district for the purpose of depositing the rent under section 32(2) read with rule of the Goa, Daman and Building (Leased, Rent and Eviction) Control Rules, 1969 (hereinafter to as 'the Rules').

4. As regards the first point, in all fairness, Mr. Rebello, the learned Counsel appearing for the petitioners submitted that the matter is covered by the decision of a single Judge of this Court in Special Civil Application No. 165/B of 1975. In the said decision the single Judge has held that in proceedings instituted under section 22(2)(a), section 32 of the Act applies. The learned Counsel submitted that in view of this decision of the single Judge, he was not pressing the point. I therefore, will not deal with the first ground advanced by the petitioners in support of their case.

5. Coming now to the second point, the learned Counsel for the petitioner, invited my attention to the decision of a Division Bench of this Court in Letters Patent Appeal No. 42 of 1983. In that case the scope of section 33(4) fell for consideration of the Court and while dealing with the matter, the Division Bench has observed that though the word 'shall' is used in sub-section (4) in the context of the tenant's right to show cause to the contrary, it must be read as 'may and as vesting discretion in the Rent Controller, the appellate and revisional authority, as the case may be, to make an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building only after taking all the facts and circumstances into consideration. Therefore, the Division Bench, according to the learned Counsel, held the view that is for the Rent controller, the appellate or revisional authority, as the case may be, to see whether, on the particular facts and circumstances of the case, the tenant has shown sufficient cause in order that the proceedings should not be stopped and the landlord should not be put in possession of the rented premises. In this case, the learned Counsel further contended that the Rent Controller as well as the Administrative Tribunal had not taken into consideration the relevant factors which clearly show that the petitioner did not wilfully fall to deposit the rents with in 30 days as required by law. The learned Counsel placed reliance on the averments made in Para 5 of the first respondents application instituting the eviction proceedings (Exhibit 'A'), on the reply given by the petitioners on 22nd April, 1980 (Exhibit 'B') an on the petitioner application dated 29-1-1981 (Exhibit 'C''). He submitted that it is clear that right from the beginning the petitioners case had been that they were not in arrears in the payment of the rent and also that the rent was at the rate of Rs. 175/- per month and not at the rate of Rs. 200/- Further, the learned Counsel contended that it is clear from the impugned order dated 30th April, 1981, that the respondent was supplied with a copy of the application only on 22nd March, 1980. When he was present in the Court. Now, on going through the impugned order as well as through the order of the Administrative Tribunal, it is apparent that both the courts had considered only one aspect of the case, namely. That the application filed by the petitioners under section 32(3) was beyond the limitation period. The learned Counsel then submitted that the Administrative Tribunal has misread a Full Bench decision of the Madhya Pradesh High Court in Chhoglal v. Kamaldas Guru, : AIR1976MP5 , for contrary to what was held by the Administrative Tribunal the Full Bench has held that if the dispute is as to the amount of rent and the Court fixes a reasonable provisional rent and this rent is not deposited with in the time then only the proceedings can be stopped.

6. Section 32(4) of the Act provides that if any tenant fails to pay or deposit the rent in accordance with the provisions of sections 32(1), the Controller or the appellate or revisional authority, as the case may be, shall, under 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. A plain reading of the aforesaid provisions of law shows that the Court should pass an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building if he fails to pay or deposit the rent as provided to section 32 ,unless the tenant shows sufficient cause to the contrary. In other words, if the tenant fails to pay or deposit the rent within the specified period, it does not necessarily follow that an order will be passed stopping the proceedings and directing the tenant to put the landlord in possession of the building for the provision leaves open a defence to the tenant, namely to show sufficient cause why he was prevented from making such payment or deposit within the specified time. Therefore, in fact the word 'shall' occurring in the said provision of law has to be read as 'may'. In this respect as observed earlier, a Division Bench of this Court constituted by Madhave Ready, C.J. and Kamat, J. in Letters Patent Appeal No. 42 of 1983 Roque Antonia Judas Taduo Castano, Ribeiro v. Angelo, Cassino das Nevese Souza & others observed that the 'shall' is used in sub-section (4) of section 32 in the context of the tenant's right to show cause to the contrary, it must be read as 'may' and vesting discretion in the Rent Controller, the appellate and revisional authority as the case may be to make an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building only after taking all the facts and circumstances into consideration. The learned Chief Justice speaking for the Court, further observed as under :---

'It is not mandatory for the Rent Controller to put the landlord in possession under section 32(4) no sooner than a default is committed by a tenant, While upon every default that landlord may apply for being put in possession, the tenant is entitled to show cause to the contrary and it is for the Court to consider whether the cause shown by the tenant is sufficient or not and whether the order prayed for by the landlord should be made or not. In exercising the discretion it is necessary for the Authorities under the Act to bear in mind the scheme of the Act. Under section 22 the landlord is vested with the right to seek eviction if the tenant is in arrears of rent due by him for a total period of three months or more and has failed to pay or tender such arrears within thirty days of the receipt of a notice. But then it the tenant pay of deposits that amount with in thirty days of the service of the summons of proceedings on him, as laid down in sub-section (3) of section 22, the landlord has no right to evict, if the Controller is satisfied that the tenant's default to pay or tender the rent has not been, without reasonable cause. Sub-section (4) further empowers the Controller to give the tenant a reasonable time to pay or tender the rent due by him. In our view if eviction of a tenant can be sought under section 22 only after giving such opportunity to pay arrears of rent, it could not have been the intention of the legislature that for any and every default, however unintentional it may be, to vest the landlord with an absolute and indefeasible right to seek eviction of the tenant and deny to the Rent Controller and the other Authorities under the Act the jurisdiction to consider whether there was any reasonable cause or not for such default. Not only having regard to the language of section 32 and in particular sub-section (4) of section 32, but also having regard to the scheme of the Act, it must be held that the power vested in the Rent controller and other authorities to stop proceedings and direct the tenant to put the landlord in possession of the building is directory and not mandatory. Some of the factors which would be relevant for exercising this power would be whether the default is for a short period or for long period, whether the default is wilful or unintentional, whether the default is stray or persistent, whether payment was made at the earliest opportunity or after cantankerous contest; whether the default was bona fide or harass the landlord, in abort, what has to be found is whether in the facts and circumstances of the case, there was reasonable cause for non payment or deposit of rent within such time as is prescribed. In our view the provision contained in section 32(1) is intended to secure payment on of the tenant being precluded from contesting the proceedings and on being required to put the landlord in possession, it is not intended to serve as an order of eviction under section 22. Section 32(4) vests a discretion in the Authorities constituted under the Act to make an appropriate order, taking into account all the facts and circumstances of the case. It is significant to note that the act does not specifically vest any power in the Authorities dismiss or allow the main petition for eviction; it only empowers them to stop the proceedings. No doubt, this is a provision to enforce payment of rent regularly during the pendency of the proceedings and to deny opportunity to the defaulting tenant to resist the proceedings for eviction. But keeping in view the fact that this provision is part of a beneficial legislation and considering it in the light of the scheme of the Act, we are unable to hold that the legislature intended to make it mandatory for the Court to put the landlord in possession no sooner than the tenant committed default wholly ignoring the circumstances in which it occurred. This Act being a beneficial legislation, an interpretation that advances the object of the Act competes us to take the view that in case of default in the payment or deposit of rent pendente lite, the Authorities constituted under the Act are not denied the discretion to make appropriate orders having regard to the facts and circumstances of the case. Section 32(4) is not mandatory but is directory.'

7. In view of the above observation made by the Division Bench in the said case. It is not necessary to deal further with the question as to what is the scope and meaning of the aforesaid sub-section (4) of section 32 of the Act. Therefore, what falls; for my determination is whether the petitioners had actually shown sufficient cause in order to avoid the stopping of the further proceedings and their eviction from the building. The Rent Controller in his impugned order dated 30th April, 1981, as rightly, pointed out by Mr. Rebello has based his decision only on a ground, namely that the application for inquiry filled by the petitioners under section 32(3) of the Act was not within the time prescribed in law. The same was the ground for the Administrative Tribunal to dismiss the appeal filed by the petitioners, through it is true that the Administrative Tribunal also added that the petitioners had not at least deposited the rent at the rate of Rs. 175/- per month. It is thus necessary to see if, on the facts and circumstances of the case, the grounds which caused. The Rent controller and the Administrative Tribunal to order the eviction of the petitioners are sound.

8. In the application for eviction proceedings filed by the petitioners on 17th November, 1979 (Exhibit 'A'). it is alleged that the first respondent sent a registered notice on 25th August, 1979, through his Advocate, to the petitioners calling upon them to make him the payment due within the period mentioned in the notice. It is further alleged that the petitioners received the notice but did not make the payment and, on the contrary, sent a reply dated 28th September, 1979, through their Advocate. Then, when the petitioners were supplied with a copy of the petition, by an application dated 22nd April, 1980, under section 22(3) of the Act, they stated that the monthly rent was of Rs. 175/- and not of Rs. 200/- and that, in addition they were not in arrears in the payment of rent. The petitioners, later on, in their reply to the application under section 32(4) of the Act, once again raised the question that the application filed by the first respondent was not maintainable since they have already filed an application under section 32(3) of the Act for the purpose of summary determination of the rent which was payable or to be deposited. In spite of these facts the Rent controller as well as the Administrative Tribunal, while admitting these facts held that though the application under section 32(3) of the Act is dated 22nd April, 1980, nonetheless the same has been field only on 23rd April, 1980 and therefore, beyond the period of 30 days. The same ground was taken by the Administrative Tribunal and, therefore, both Courts below held that no sufficient cause has been shown by the petitioners. Both the Court did not disclose at all whether the circumstances of the case were sufficient to show that there was no wilful intention of the petitioners not to deposit the rent within a period of 30 days as well as whether they had been prevented from doing so by a sufficient so by a sufficient cause.

9. Admittedly, the relevant facts were recorded in the impugned judgement dated 30th April, 1981, namely that the respondent/second petitioner herein was supplied with a copy of the plaint/application for eviction in the Courts itself on 22nd March, 1980. It appears that the he filed the said application on 23rd April, 1980 and, therefore, the delay in filling the application was of only one or two days since the month of March has 31 days. First of all, it may be pointed out that the mistake in thinking that the 30 days period of time was ending on 22nd April, 1980, is justifiable since, ordinarily, a person will not consider, at the first sight, that a month has 31 days or 30 days and will count a month from a particular date to the same date in the next month. Secondly the petitioners stated that they have actually filed the application on 22nd April, 1980, but for reasons not known to them, the said application was registered only on the next day. Though the petitioners were unable to provide that they filed the application on 22nd April, 1980, the fact remains that sub-section (4) of section 32 comes into operation only when the deposit or payment of rent is not done within the statutory period of 30 days. Therefore, the cause that is to be shown is to justify the delay in the payment. Thus, it was incumbent upon both the courts below to consider whether the various circumstances in the case were, sufficient to justify the two day's delay in making the application. To my mind since, all the while, the case of the petitioners had been that they were not in arrears in payment of the rents and that the monthly rent was only of Rs. 175/- and since no decision has been given in the application filled under section 32(3) of the Act, the petitioners had actually shown a good cause for the delay in the payment or deposit of the rents due. It is true that the Tribunal relying on the decision of the Full Bench of the Madhya Pradesh High Court in Chhoglal v. Kamaladas Guru (supra) has taken the view that the petitioners ought to have deposited the amount of the rent at the rate of Rs. 175/- per month within the period of 30 days. I am afraid that the learned Tribunal has misread the aforesaid decision of the Madhya Pradesh High Court. In fact, the question that fell for consideration of the Madhya Pradesh High Court was in respect of the construction of section 13 of the Madhya Pradesh Accommodation control Act, 1961. The Court observed that section 13(2) of the said Act is allot regarding the manner in which the dispute should be raised. But having regard to its language, if the tenant has raised the dispute as to the amount of rent payable by him in the written statement, that would be sufficient for purpose of the sub-section. It further observed that a dispute so raised will make it obligatory on the Court to fix the reasonable provisional rent and no further action on the part of the tenant, such as making of an application or inviting the attention of the Court to the specific dispute or specially asking the Court to fix the provisional rent, is needed to cast an obligation on the Court to fix the reasonable provisional rent, for the simple reasons that the sub-section does not say that the tenant should file a separate application or specifically pray for fixation of provisional rent. Then, the Court observed that when a dispute is raised as to the amount of rent payable by the tenant or as to the person to whom it is payable sub-section (1) gets controlled by sub-section (2) and (3), and if the dispute is as to the amount of rent, the Court under sub-section (2) fixes a reasonable provisional rent and it is this rent which is to be deposited or paid under sub-section (1). Thus, as the obligation on the tenant in case of dispute is to deposit or pay the reasonable provisional rent fixed by the Court it is implicit that the obligation to deposit or to pay the rent arises only when the Court fixes the reasonable provisional rent and till then the obligation to deposit rent in accordance with sub-section (1) remains suspended. It is clear from the above observation of the Madhya Pradesh High Court that it is only after the fixation of the reasonable provisional rent that obligation to deposit or pay the rent arises. In the Act, sub-section (3) of section 32 provides that where there is any dispute as to the amount of rent to be paid or deposited under sub-section (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. The mandate of sub-section (3) is that when a dispute is raised as to the quantum of the rent, the Controller or the appellate or revisional authority, as the case may be, to determine summarily the rent to be so paid or deposited. In other words, unless and until the rent is summarily determined, the tenant will not be in a position to pay or deposit the rent, In the present case, admittedly, the very application under section 32(3) of the Act was not considered and therefore, it is clear that occasion had not arisen at all for the petitioners to deposit the rents due. I may point out that both the Courts below were of the opinion that if the application under section 32(3) had been filed within one month from the receipt of notice in terms of Rule 7 of the Rules, then the question of summarily directing the petitioners to give possession of the building to the first respondent would not arise. In the circumstances, therefore in my view both the Courts below had committed a material irregularity in passing the order of eviction without considering that the petitioners leave by sufficient cause filed their application with delay of one or two days.

10. The last contention of Mr. Rebello has been that dates for filling the written statements and for the showing cause under section 32(3) are distinct from the period to deposit the rent under section 32(2) read with Rule 7. The learned Counsel submitted that section 22(3) of the Act speaks of a period of 30 days of the service of the summons of proceedings on the tenant and Rule 7 of the Rules talks about a notice. The learned Counsel further submitted that for a harmonious construction of both the provisions of law, the notice spoken of in Rule 7 has to be construed as summons. Now, the learned Counsel contended that summons are to be served in the manner prescribed in the Civil Procedure Code, a manner which was not admittedly followed by the Rent Controller while supplying the copy of the application for eviction to the petitioners. Hence, according to the learned Counsel, there is no proper service of the summons and consequently, there is no summons at all. Therefore, the period of 30 days prescribed for filling the written statement has not commenced and, in any case, such a period of time is different from the one prescribed in section 32(2) read with Rule 7 of the Rules. The learned Counsel placed reliance in this respect on the decision of the Calcutta High Court in S.C. Sarkar v. Gosaidas Pal, : AIR1976Cal87 . Undoubtedly the notice spoken of in rule 7 has to be construed as summons as provided in section 22(3) of the Act. Therefore, strictly speaking , the petitioners ought to have been served with summons in order the period for filling the written statement to commence. Admittedly the petitioners were merely supplied with a copy of the plaint when they were present in the Court. No summons were served on the petitioners in the manner provided by the C. P. C. Thus, it would appear that, In fact, the petitioners had not been regularly served with summons, I am, however, unable to accept, on the facts and circumstances of the case, this submission. In fact, the petitioner was present in the Court and he was supplied, with the copy of the application for eviction. His acceptance of the said copy of application without any protest amounts, In my opinion, to a waiver of the service by summons. Therefore, I find no merits in the last contention of the learned Counsel.

11. I have already stated that another ground advanced by the petitioners to challenge the impugned order passed by the Administrative Tribunal is that the Tribunal is functioning without a Chairman and since there can be no properly constituted Tribunal without a Chairman the order passed by the third respondent is illegal null, and void, Section 3 of the Goa, Daman and Diu Administrative Tribunal Act, 1965, provides that there shall be a Tribunal to be called the Administrative Tribunal for the Union Territory of Goa, Daman and Diu to exercise the jurisdiction, perform the functions and discharge the duties entrusted to it by or under the Act or any other law for the time being in force, sub-section (2) provides that the Tribunal shall consist of a chairman and such number of other Members as may be determined by the State Government. Sub-section (3) provides for the qualifications that a person should have to be appointed as Chairman or a Member. Section 4 provides that no act done by the Tribunal and no proceedings before it shall be questioned merely on the ground of the existence of any vacancy in, or any defect in the constitution of the Tribunal sub-section (2) lays down that it during the course of any proceedings any Member of the Tribunal is for any reason unable to discharge his functions or relinquishes his membership of the Tribunal, another Member shall be appointed in his place and upon his joining the Tribunal, the proceedings shall be continued as if he had been the Tribunal from the commencement. Mr. Rebello, relying on the above quoted provisions of law, submitted that the benches of a Tribunal are constituted by the Chairman and if no Chairman exists, than the very constitution of the benches is illegal and this fact vitiates the order passed. There is some merit in the submissions of the learned Counsel Inasmuch as, ordinarily, the constitution of benches is within the province and jurisdiction of the head of the particular Tribunal or Court. Thus, if no Chairman is appointed, it would appear that, in fact, it is not possible to constitute benches. However, section 4 of the Goa, Daman and Diu-Administrative Tribunal Act lays down that no act done by the Tribunal and no proceedings before if shall be questioned merely on the ground of the existence of any vacancy in, or any defect in the constitution of the Tribunal. It is an admitted fact that the post of Chairman of the Administrative Tribunal is lying vacant from somewhere in the month of April, 1982. It is also not disputed that the two Members who passed the impugned judgement had been regularly appointed. Therefore, except for the fact that the constitution of the benches is within the province of the Chairman and that the Bench that passed the impugned judgement was not properly constituted as no Chairman has been appointed, the fact remains that those who constituted the Bench are Members of the Tribunal regularly appointed. Hence they were competent to constitute a regular Bench and consequently, by virtue of the aforesaid section 4 the circumstance that the Bench was not constituted by a direction of the Chairman does not vitiate the said judgement. On this count, therefore, in my view, the impugned judgment passed by the Administrative Tribunal is not void, I, however, may record that it is rather strange that despite the provisions of the Administrative Tribunal Act, the post of chairman had not been yet filled in with nefarious consequence. The urgent filling in of the said post is indeed necessitated for the proper and quick administration of justice and, therefore, the concerned Authorities will be well advised to take the necessary action in that direction.

12. In the result, this writ petition succeeds. The rule is made absolute in terms of prayer (a). The Rent Controller is consequently directed to dispose of the application filled by the petitioners under section 32(3) of the Act and thereafter, of the eviction proceedings, according to law. There will be no order as to costs, in the circumstances of the case.

Rule made absolute.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //