Full Judgment Text
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CASE NO.:
Appeal (civil) 5326 of 2007
PETITIONER:
Usha P. Kuvelkar & Others
RESPONDENT:
Ravindra Subrai Dalvi
DATE OF JUDGMENT: 20/11/2007
BENCH:
G.P. Mathur & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.21031 of 2006)
V.S. SIRPURKAR, J.
1. Leave granted.
2. In this appeal the legal heirs of the Original Landlord have come up
to challenge the judgment of the High Court of Bombay at Goa, whereby
the learned Single Judge of that Court set aside the orders of the two
authorities below and remanded the matters for fresh adjudication. The
tenant-respondent herein had filed a Civil Revision Application as also the
Writ Petition and it was by a common judgment that the said Civil Revision
and the Writ Petition came to be disposed of. The basic facts are as
follows.
3. That Late Prabhakar Govind Sinai Kuvelkar was, admittedly, the
owner of the premises in question being Flat No.C-S-40(5). This was a flat
in Cooperative Housing Society called Adarsha Cooperative Housing
Society Ltd., Caranzalem, Goa. The said flat was leased out to the tenant-
respondent herein for an initial period of 11 months vide Lease Deed dated
31.12.1977 and the said tenancy was continued by the landlord-appellant
even after the expiry of 11months as he was unable to occupy the said flat
at that point of time. An application came to be filed on 3.7.1986 being
Eviction Case No.8 of 1987 before the Additional Rent Controller, North
Goa, Panaji on the ground that the said premises was required for his own
personal occupation and also for the members of his family. It was also
alleged that the tenant-respondent was in arrears of rent and had also
defaulted in making payment of municipal tax. During the pendency of the
eviction petition, the landlord-appellant started suffering from heart
problems and required continuous treatment of Dr.S.V. Bhandare of Panaji
and, therefore, preferred an amendment application to bring on record the
subsequent facts as also to substantiate the claim of his own personal
requirement. It was also pointed out that the wife of the landlord-appellant
had developed Rheumatoid disease and was also under the constant care
of Dr.S.V. Bhandare of Panaji. The landlord-appellant pointed out that on
account of the above ailment, the need to shift to Panaji became even
more acute. The landlord also pleaded in the said amendment application
a new ground which became available in view of amendment of Section
23-A of the Goa Daman & Diu Building (Lease, Rent & Eviction) Control
Act, 1968 (hereinafter referred to as \023the Act\024) introduced during the
pendency of the eviction case. This amendment to the Section came into
force with effect from 22.2.1988 and by the said amendment a right was
provided to the landlord to recover immediate possession of the premises
if such landlord was an employee of the State Government and had duly
retired and required the premises for personal bonafide occupation for
himself or any member of his family. In fact the amendment provided for
summary procedure for eviction. It was pointed out that the landlord had
retired from service on 31.5.1983 and as such required the premises for
his own bonafide occupation.
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4. Voluminous evidence came to be introduced about the critical
medical condition of the landlord and that of his wife by filing medical
certificates issued by Dr.S.V. Bhandare and by examining him in support of
the need on the part of the landlord to stay at Panaji to avoid stress and
strain of frequent traveling. This was opposed by the tenant-respondent
herein on the ground that there were no such medical problems on the part
of the landlord and his wife and the house in question was also not
convenient as it was on second floor. The landlord also reiterated that he
was a retired State Government servant and had no house at Panaji
though he owned house in Ponda city, away from Panaji and that he
required the house for his bonafide occupation. On this basis the
Additional Rent Controller considered the entire evidence and allowed the
application. The appeal filed by the tenant-respondent before the
Appellate Authority was also dismissed. Thus on facts both the authorities
held the need of the landlord to be bonafide and also accepted the
contention based on Section 23A(3) of the Act. It was also held that the
landlord had retired as a Government servant and since he did not have
any other house in Goa and wanted to stay bonafide in his house at Goa,
he was justified in making the application for eviction. Thus, the
application was allowed by both the courts below under Section 23(1)(a)(i)
as also Section 23A(3) of the Act. The Appellate court also pointed that in
respect of the findings of the Additional Rent Controller on the contention
based on Section 23A(3), no appeal lied against the orders passed under
Section 23A(3) which was barred specifically under Section 23A(1)(3A)(h)
of the Act.
4. The tenant-respondent preferred a Petition against the concurrent
orders of the Additional Rent Controller and Administrative Tribunal,
Goa,Daman & Diu at Panaji. The writ petition came to be filed against the
finding under Section 23(1)(a)(i), while subsequently a Revision Petition
was filed against the findings under Section 23A(3) of the Act as recorded
by the Rent Controller. The High Court allowed both the petitions and in
so far as the Revision Petition is concerned, the matter has been ordered
to be remanded back to Additional Rent Controller, whereas in so far as
the Writ Petition is concerned, the matter has been remanded to the
Administrative Tribunal. It is this common judgment which falls for our
consideration in the present appeal at the instance of the Legal Heirs of
the original landlord since it is reported that during the pendency the
landlord had expired.
5. Shri Dhruv Mehta, the learned Advocate appearing on behalf of the
landlord-appellant firstly contends that the High Court has gravely erred in
setting aside the findings of fact recorded by the Additional Rent Controller
and the Appellate Authority under Section 23(1)(a)(i) of the Act whereby
both the authorities had concurrently found that the bonafide personal
need of the landlord has been proved. He also invited our attention to the
fact that the amended Section 23A was applicable specifically to the
pending proceedings also and as such the Additional Rent Controller was
perfectly justified in granting the application on the additional ground raised
by way of an amendment under Section 23A of the Act. As against this the
learned counsel for the tenant-respondent supported the order of the High
Court and pointed out that the amended Section 23A was not available to
the landlord and the Additional Rent Controller could not have given the
relief under that Section and, therefore, the remand was justified. It was
also suggested that Section 23A(3) was not retrospective and did not apply
to the pending proceedings and that because of the further amendment to
that Section in the year 1994, the landlord had lost the right as the
categories of landlords named in that amended Section were amended
and the Government Servant was removed therefrom. Learned counsel
also feebly tried to argue that since during the pendency of the appeal the
original landlord had expired, there was no question of his bonafide need
remaining alive and that the High Court was justified in remanding the
matter.
6. We have carefully seen all the three orders, i.e., of Additional Rent
Controller, Administrative Tribunal and that of the High Court. We find
ourselves unable to agree with the findings of the High Court in para 3 of
its judgment that the order of the Additional Rent Controller is cursory and
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sketchy and that the Additional Rent Controller has not taken into account
various aspects pertaining to the dispute. On the other hand a glance at
the order of the Additional Rent Controller suggests that he has not only
meticulously referred to the pleadings of the parties in detail but has
discussed the whole evidence whereafter he has recorded finding to the
effect that the landlord was suffering from heart problem and his wife was
suffering from Rheumatoid disease that required the medical treatment
from Dr.S.V. Bhandare from Panaji and that for that purpose they were
required to live at Panaji instead of taking stress and strain of traveling
from Ponda to Panaji. It was also recorded by the Additional Rent
Controller that the applicant was a Government servant having retired from
service in 1983 and he was not having any residential accommodation in
or around Panaji City. The Additional Rent Controller thus, in so far as the
merits of the matter under Section 23(1)(a)(i) are concerned, has given a
proper finding of fact.
7. In so far as amended Section 23A(3) is concerned, the Additional
Rent Controller has considered the whole Section and has recorded a
specific finding in favour of the landlord. The Additional Rent Controller
has also considered the contention raised by the tenant that the amended
Section would not be applicable to the case of the landlord because he
had retired earlier on 31.5.1983 and has correctly given a finding that
Section 23A is operative and effective from 22.2.1988. The Additional
Rent Controller has correctly held that since the amendment was made
applicable even to the pending proceedings, the present case would be
covered by the amendment. It was not disputed very seriously that the
landlord was in fact the Government servant and had retired from service
on 31.5.1983. therefore, in our opinion on both the counts the landlord-
appellant had proved his case.
8. We have carefully seen the judgment of the Administrative Tribunal
also which judgment shows that the Tribunal has confirmed the findings of
fact firstly on the question of Section 23(1)(a)(i) and held that the landlord
had proved his bonafide need for personal occupation. The Tribunal has
also referred to the medical certificate (Exhibit 4) in respect of the landlord
himself and medical certificate (Exhibit 5) in respect of his wife. It has also
referred to the evidence of AW1 Shyam Bhandary who has issued those
certificates. In paras 7, 8 and 9 of the judgment the Appellate Tribunal has
correctly considered the need independently of the Rent Controller\022s order.
He has also correctly held that the need of the landlord was genuine,
honest and in good faith.
9. We are fully satisfied with both the orders. On this backdrop we find
the order of the High Court to be sketchy and laconic. Beyond saying that
the Additional Rent Controller has not applied his mind, the High Court has
not considered anything. As regards Section 23A(3), the High Court has
actually avoided to give a finding whether it is retrospective or prospective
by merely saying that the Tribunal had not given that finding. In our
opinion it was not necessary for the Tribunal to give that finding at all for
the simple reason that the appeal against the order passed under Section
23A(3) was not maintainable at all. The High Court completely ignored the
fact that there was a Civil Revision against that finding. Even assuming
that such a Civil Revision was maintainable, the High Court was bound to
consider the question of its prospective or retrospective operation. Very
strangely, the High Court has remanded the proceedings in the Civil
Revision to the Additional Rent Controller. At the same time, the High
Court has remanded the proceedings in the writ petition to the
Administrative Tribunal for adjudication. Further, at the same time, a fresh
opportunity has been given to the parties to lead evidence. We do not
know as to how the Administrative Tribunal, which is an Appellate Authority
would be taking the evidence. In our opinion, the judgment of the High
Court is completely erroneous.
10. We are convinced that the findings of the learned Additional Rent
Controller as also the Administrative Tribunal on the bonafide need of the
landlord are correct and the High Court has gravely erred in setting aside
the concurrent findings of fact that too without giving any reasons worth the
name. Therefore, on that question itself the landlord-appellant (his legal
heirs) should succeed.
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11. It was tried to be argued by the learned counsel for the respondent
that since the landlord had died, the need had expired with him and that
the question will have to be examined again regarding the bonafide
personal need of the landlord. The question is no more res integra and is
covered by the decision of this Court in Shakuntala Bai & Others vs.
Narayan Das & Ors. [(2004) 5 SCC 772]. This Court has observed:
\023\005.The bonafide need of the landlord has to be examined as
on the date of institution of the proceedings and if a decree for
eviction is passed, the death of the landlord during the
pendency of the appeal preferred by the tenant will make no
difference as his heirs are fully entitled to defend the estate.\024
In the same decision a contrary note expressed by this Court in P.V.
Papanna vs. Padmanabhaiah [(1994) 2 SCC 316] was held to be in the
nature of an obiter. This Court in Shakuntala Bai & Ors. (supra) referred
to the decision in Shantilal Thakordas vs. Chimanlal Maganlal Telwala
[(1976) 4 SCC 417] and specifically observed that the view expressed in
Shantilal Thakordas\022s case did not, in any manner, affect the view
expressed in Phool Rani vs. Naubat Rai Ahluwalia [(1973)1 SCC 688] to
the effect that where the death of landlord occurs after the decree for
possession has been passed in his favour, his legal heirs are entitled to
defend the further proceedings like an appeal and the benefit accrued to
them under the decree. Here in this case also it is obvious that the original
landlord Prabhakar Govind Sinai Kuvelkar had expired only after the
eviction order passed by the Additional Rent Controller. This is apart from
the fact that the landlord had sought the possession not only for himself but
also for his family members. There is a clear reference in Section
23(1)(a)(i) of the Act regarding occupation of the family members of the
landlord. In that view the contention raised by the learned counsel for the
respondent must be rejected.
12. In so far as the contention regarding Section 23A(3) is concerned,
the learned counsel for the respondent took us through the Section and
tried to suggest that the said Section was not applicable as firstly it was not
applicable to the retired State Government servants like the appellant-
landlord and secondly the amendment was not applicable as it was a
prospective amendment. The legislative history shows that Section 23A(3)
was brought in by way of an amendment. Section 23A was further
amended and this amendment was passed on 23.7.1987 and was
published vide Notification No.7/27/87-LA dated 2.12.1987 and the same
came into force as per Notification No.10/8/87/RD dated 27.2.1988. It was
published in the Official Gazette (Extraordinary No.2) Series I No.47 dated
22.2.1988. After this amendment the Section stood as under:
\02323A(3) Notwithstanding anything contained in this Act:
(3) a landlord, who is member of the armed forces of the
Union or who is an employee of the Central or the State
Government or Railways or who was such member or
employee as the case may be and is duly retired (which term
shall include premature retirement) shall be entitled to
recover possession of any premises are bonafide required by
him for occupation by himself or any member of his family
(which term shall include a parent or other relation ordinarily
residing with him and dependent on him) and the Controller
shall pass an order for eviction on such ground of the landlord
at the hearing of the suit, produced a certificate signed by the
Head of the Services of his Commanding Officer or by the
Head of his Department as the case may be to the effect that:
(i) He is presently a member of the armed forces of the
Union or employee of the Central or the State
Government or Railways or he was such member or
employees as the case may be and is now retired ex-
serviceman or employee as the case may be.
(ii) He does not possess any other suitable residence in
the local area where he or the members of his family
can reside;
(b) Not relevant\024.
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It was not seriously disputed before the Additional Rent Controller that the
applicant was in service of the Government of Goa, Daman & Diu and had
retired on 31.5.1983. In fact there appears to be no contrary evidence led
to the assertion that the landlord was a government servant and he had
retired on 31.5.1983. The further amendment made to Section 23A(3)
added sub-clause (c) after clause 3(i)(b). The said clause was:
\023The provisions of this sub-section shall be applicable to all
applications including those pending proceedings before any
Controller, Tribunal, Court and all such proceedings shall be
disposed of in accordance with the provisions of this Section.\024
The further amendment also provided a summary procedure. For our
purposes the relevant clause is Clause (h) which is as under:
\023No appeal or second appeal shall lie against an order for the
recovery of possession of any residential building made by
the Controller in accordance with the procedure specified in
this sub-section.
Provided that the High Court may, for the purpose of
satisfying itself that an order made by the Controller under
this sub-section is according to law, call for the records of the
case and pass such order in respect thereto as it thinks fit.\024
The language of sub-section 23A(3)(c) which we have quoted above leave
no manner of doubt that the Section was clearly applicable to the pending
proceedings like the present one. It is obvious that the amendment
application was filed by the landlord on 8.2.1989 wherein a specific
reference is made to the above mentioned legal position. Beyond baldly
denying the tenant has done northing worth the name. We have seen the
judgment of the Additional Rent Controller who has considered Section
23A(3) extensively. There can be no doubt that the provision was
applicable to the proceedings and as such the Additional Rent Controller
was right in accepting the case of the landlord to the effect that firstly he
was a government servant having retired on 31.5.1983, secondly he had
no house in Panaji where the concerned residential premises existed and
thirdly that he wanted the house for his own bonafide occupation. We,
therefore, reject the contention of the respondent that Section 23A(3) was
not applicable to the present proceedings. The judgment of the High Court
is woefully wanting on this aspect. No argument was raised by the counsel
for the respondent regarding the 1994 amendment.
13. In the result the appeal is allowed. The Judgment of the High Court
is set aside and that of the Additional Rent Controller and the
Administrative Tribunal are restored with costs.