LAWS(BOM)-1985-10-54

EVARISTO ESTENASLAOC RODRIGUES Vs. VAMAN ANANT PARAB MAHAMBREY

Decided On October 18, 1985
EVARISTO ESTENASLAOC RODRIGUES Appellant
V/S
VAMAN ANANT PARAB MAHAMBREY Respondents

JUDGEMENT

(1.) This writ petition gives rise to an interesting question of law, namely whether a landlord can get vacant possession of the premises let out by him for commercial purposes on the ground of its bona fide requirement for his residence.

(2.) The petitioners are the owners of a house property situated at Patte Ribandar. The said property belonged to the parents of the first, second, fourth, fifth and seventh petitioners and one Custodia, Rodrigues who is another brother of the petitioners. The said Rodrigues filed a civil suit for division of the said property in the Court of the Civil Judge, (Senior Division) Panaji and the said house property was divided in the said suit. A portion of the said house laying to the South was allotted to the said Rodrigues and the remaining portion was allotted to the petitioners. By a lease agreement dated 4th January, 1957, a part of the said building was let out by the petitioners and Custodia Rodrigues to the first respondent for the purpose of carrying on commercial activity, particularly, to run a grocery shop. The said lease agreement was renewed on or about 11th February, 1966 and it was mentioned, at the time, that the period of lease was for six years beginning from 5th January, 1966. Thereafter, there was no renewal, but respondent No. 1 continued to occupy the rented premises as a statutory tenant. Then in the month of July, 1977, the petitioners and Custodio Rodrigues gave an Advocates notice to the first respondent asking him the evict the rented premises on the ground that not only he was in arrears of rent for a period of 2 years but also that the said premises were required by the petitioners and Custodia Rodrigues for their bona fide personal occupation and for bona fide use as additional accommodation. Then, respondent No. 1 moved an application under section 18 of the Goa, Daman and Diu Building (Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to as "the Act") before the Rent Controller, Goa North Division, Panaji, Respondent No. 1 was permitted to deposit the arrears of the rent by the Rent Controller and he has continued to deposit the monthly rent in the proceedings. The petitioners are residing in a part of the said house continues to the rented premises, and the part occupied by them consists of one room serving as a hall, two other rooms which are utilised as bedrooms and a kitchen-cum-dining room. One aunt of the petitioners is residing with them, the total of number of persons occupying the said portion being ten persons. The said portion of the house is not as such sufficient for the residential needs of the petitioners and therefore, on account of paucity of accommodation, petitioner No. 2 is residing with his in-laws in a different place at Ribandar. He desires to come back to the house belonging to him and his brothers. The rented premises are sufficiently large and if added to the portion occupied by petitioners, will give enough accommodation to satisfy the matters needs. The petitioners, therefore, filed a civil suit in the Court of the Civil Judge, (Senior Division), Panaji, for eviction of the first respondent from the rented premises on the ground of personal occupation. Resisting this suit, the first respondent raised the question that the Civil Court has no jurisdiction since it was the Court of the Rent Controller which could exercise under the Act the power of eviction. A preliminary issue was framed and by his judgement and order dated 13-1-1983, the learned Civil Judge, Panaji, dismissed the suit. After this judgment of dismissal of the suit, the petitioners filed a rent eviction application before the Rent Controller, Goa North Division, Panaji, in accordance with the provisions of the Act, seeking eviction of the first respondent from the rented premises on the ground of bona fide requirement thereof for personal occupation under section 23 of the Act. The first respondent resisted this application, mainly, on the ground that the Rent Controller had no jurisdiction to deal with the matter and that the application filed by the petitioners was not maintainable either under section 23(3) of the Act or under any other provision. By his judgement and order dated 19th November, 1983, the Additional Rent Controller, who was dealing with the matter held that the eviction application filed by the petitioners was maintainable and that the petitioners case was covered by section 23 of the Act. The first respondent, however, being aggrieved preferred an appeal to the Administrative Tribunal which was later on treated as a revision. This revision application was ultimately decided by the Administrative Tribunal by its judgment and order dated 15th January, 1985. The Tribunal allowed the appeal and, accordings, quashed and set aside the judgement and order passed by the Additional Rent Controller on 19th November, 1983. It is against this judgment and order that the present writ petition is directed.

(3.) The petitioners assail the said judgment mainly on the ground that the Tribunal has wrongly construed the provision of section 23 of the Act in as much as it imported in sub-section (3) thereof the definition of building given in section 2(e). In fact Mr. Surendra Desai, the learned Counsel appearing for the petitioners invited my attention to the observations made by the Tribunal in para 5 of the impugned judgment and submitted that the reasoning of the Tribunal is patently wrong, for as can be seen from section 2 of the Act, the definitions given therein are to be considered only when the context in which the expression or the word defined in section 2 occurs does not require otherwise. Now, according to the learned Counsel, Clause (e) of section 2 defines "building" as meaning any building or part of a building, which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose and includes the garden, ground and out-houses, if any, appertaining to such building use in such building or part of the building as well as any furniture supplied by the landlord for use in such building or part of the building. Manifestly, this definition cannot be read in section 23 of the Act which deals with the right of the landlord to obtain possession. In the context of section 23, the learned Counsel further contended, the word "building" has to be necessarily construed in a manner different from the definition given in section 2(3). He specifically brought to my attention that sub-section (3) provides that a landlord who is occupying only a part of a residential building, may, notwithstanding anything in sub-section (1), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his own use or for the use of any member of his family. In the present case, the building is a house which is structurally a residential building. A part of that building was let out to first respondent for commercial purposes but, nonetheless, the building as such continues to be a residential building. In such case, what is material is the real structure of the building for deciding whether or not the provision of sub-section (3) of section 23 of the Act applied. To read in the said provision of law, the argument proceeded, the definition of building given in Clause (e) of section 2 of the Act would be improper, for that will do violence to its language and substance. In this connection, reliance was placed on the decisions of the Punjab and Haryana, Madhya Pradesh and Madras High Courts in (Sampran Kaur v. Sant Singh) A.I.R. 1982 Punjab and Haryana 245; (Sujan Singh v. Shobha Nath) A.I.R. 1982 Punjab and Haryana 417, (Jagitkumar v. Jagdeeshchandra) A.I.R. 1982 Madhya Pradesh 144; (Dakshinamoorthy v. Thulja Bai) A.I.R. 1952 Madras 413 and of the Supreme Court in (Busching Schmitz v. Menghani) A.I.R. 1977 S.C. 1569.