ARUN NARAYANDAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition seeks a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for quashing the order dated 31st July 1981 made in Case No. Rent 45/80 by the Rent Controller, Goa North Division, respondent No. 4 and order dated 12th September, 1988 made in Eviction Appeal No. 65/81 by the Administrative Tribunal, respondent No. 3.

(2.) FACTS giving rise to this petition are that the petitioners are the landlords of a building called Ganga Niwas situated at Panaji, Goa. By a lease agreement executed between the parties on 9th August 1968 the first floor premises consisting of 11 rooms was let out as office accommodation of the Directorate of Agriculture or any other Government Office. The lease stipulated that it shall be for a period of 360 days with effect from 1st May, 1968 to be automatically renewed for equal period in future on payment of the monthly rent of Rs. 1,925/- to the be paid by the 10th of the following month. At some stage the contractual rent stipulated between the parties was sought to be given a go- by and the department held out that the rent would be paid at the rate of Rs. 1,540/- with effect from 1st May, 1969. Though this action of the department was alleged to be unilateral and high handed, yet strangely the petitioners agreed to receive the rent of Rs. 1,540/- per month with effect from August 1969. However, by the next communication some time before April 1970 the department held out to the petitioners that with effect from 1st April 1970 the rent would be paid at the rate of Rs. 1,370/- per month but in view of the objections raised by the petitioners the department agreed to pay Rs. 1,573/- per month instead of what was previously held at the rate of Rs. 1,376/ -. Perhaps by the wisdom dawned on the department they instituted proceedings for fixation of fair rent by invoking section 12 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 for short the Rent Act. It may be pertinent to note that the Rent Act was extended to the Territory of Goa with effect from 1st October, 1969 and needless to mention that the parties were and are governed by that Act. Even otherwise when the lease contract was executed by the parties on 9th August, 1968 the parties were governed by Decree Law No. 43525 dated 7th March 1961 which was in the field governing leases in respect of buildings. That Decree read in conjunction with Diploma Legislative 1409 dated 14th November, 1952 left it open to the parties to apply for valuation of the demised premises and depending upon the decision to be bound by such award with the result that the contractual rent would accordingly stand modified. The fair rent proceedings bearing No. 263/73 finally culminated by the order confirmed in appeal made by the Board in Civil Appeal No. 253/77. The fair rent payable was held to be Rs. 1,300/- per month together with half the yearly Municipal tax levied on the premises. It was further directed that the fair rent shall be payable with effect from 19th November, 1973 though the order was made by the Tribunal on 28th September, 1977. From 1st December, 1973 the premises are occupied by the office of Directorate of Animal Husbandry and Veterinary Services of the Local Government for short the Department. As the rents were not paid regularly nor the amount of municipal tax for a long time by the statutory requirement of section 22 of the Rent Act, the petitioner served a notice dated 15th November, 1979 upon contesting respondents demanding of them the arrears of rent amounting to Rs. 12,471. 14 being the rents form the month of March 1979 to October 1979 and the dues of the municipal taxes for the years 1976-77, 1977-78 and 1978-79, that is, arrears of rent being Rs. 10,400/- and Rs 2,071. 14 as arrears of Municipal tax due at the rate of Rs. 690. 38 per year. The notice further called upon the respondents to pay the arrears within 30 days of the receipt of the notice and failing the same a threat was held out that eviction proceedings would be filed. It is common ground that this notice was never replied to nor the requisition contained regarding the demand of the arrears was complied with. However the fact remains that on 17th April, 1980 the arrears of rent for the month of March 1979 to July 1979 were paid which were received under protest and without prejudice. The petitioner thereafter instituted proceedings for eviction of the department of Directorate of Animal Husbandry and Veterinary Services who were in occupation of the premises on the grounds of non-payment of rent and Municipal tax on or about 6th June, 1980. The claim for areas made in that application vide Rent Application No. 45/80 was from the month of August 1979 to May 1980 and the Municipal taxes for the years 1976-77,1977-78 and 1978-79 totalling to Rs. 15,071. 14. The notice of the institution of these proceedings was served on Union of India on 8th September 1980 and on the Administrator of the Government of Goa, Daman and Diu, as it then was and the Chief Secretary on 10th September 1980. On finding that no arrears of rent are deposited before the Rent Controller nor any attempt made to pay the rent to the petitioners directly within 30 days from the service of the writ of the proceedings an application under section 32 (4) of the Rent Act was instituted on 17th October, 1980 with a prayer that all further proceedings in Rent Case No. 45/80 be stopped and order made directing the respondents to hand over the premises to the petitioners. However on 24th October, 1980 the department paid the arrears of rent from August 1979 to September 1980 along with Municipal taxes covering the period 1980-81. Finding that no further payment was being made nor any rent deposited for the month of October 1980 onwards the petitioners were perforced to institute another application dated 16th January, 1981 by invoking section 32 (4) of the Rent Act to stop all further proceedings and for a direction to the respondents to hand over the premises. On behalf of the department defences were filed on or about 18th April, 1981. By the defences filed the eviction proceedings were contested and while holding out that the department had been regular in the payment of rent as also the Municipal taxes the delay in payment of rent was attributed to the petitioners for their failure to give pre-receipted bills. On this view of the matter it was also contended in the written statement that the proceedings launched by the petitioners were frivolous as the department has been making prompt payments of rent up to date. On the basis of these pleadings and whatever documents produced in support by the parties concerned the Controller by the order dated 31st July, 1981 dismissed the proceedings for eviction instituted by the petitioners with costs with no inquiry whatsoever. Being aggrieved by this order of dismissal of their eviction proceeding the petitioners preferred Eviction Appeal No. 65/81 which appeal was equally dismissed by the Administrative Tribunal by the order dated 12th September, 1986. To make the narration complete it may be necessary to advert to a few more facts that occurred during the pendency of this Eviction Appeal No. 65/81 before the Tribunal. That this appeal was instituted on or about 23rd December, 1981 and notices of institution of the appeal were issued to the respondents and for that matter respondent No. 1 received it on 19th February, 1982 and respondents 2 and 3 on 16th February, 1982 and 10th February 1982 respectively. Despite being in arrears of rent and despite not paying the rent directly to the petitioners, no action was taken on behalf of the respondents to deposit the rent during the pendency of the proceedings as mandatorily required under section 32 of the Rent Act. The result was that the petitioners were again forced to institute from time to time 4/5 different applications under section 32 (4) of the rent Act, the first being on 12-11-1982 vide Miscellaneous Civil Application No. 44/82 stop proceedings; the second on 22-6-1984 vide Miscellaneous Application No. 30/84 stop proceedings; the third on 17-7-1985 vide Miscellaneous Application 27/85 stop proceedings and the fourth being on 27-2-1986 vide Miscellaneous Application No. 4/86 stop proceedings. According to the petitioners they also filed another application for stop proceedings 22-8-1984 but, however that was not numbered as such separately by the Tribunal. It is equally true that at some late stage on or about 2-3-1985 the respondents instituted an application for deposit of the arrears of rent during the pendency of the appeal proceedings and it is common ground that for June 1984 the rent was deposited. I will, however, come to details of this deposit a little later in the judgement.

(3.) THE Rent Controller while disposing of the eviction proceedings held that the petitioners received rents on 17-4-1980 and also on 24-10-1980 and, therefore, there was no question of the respondents depositing the rents in his Court during the pendency of that proceedings. What further impressed him is that receipt of the arrears directly by the petitioners amount to waiver of the right of eviction by the petitioners and in that view of the matter the Controller held that there was no further right to get eviction of the respondents. He equally held that there was sufficient cause on accepting a submission made on behalf of the respondents that the petitioners had not issued in advance pre-receipted bills. Insofar as the Administrative Tribunal is concerned in dismissing the appeal of the petitioners, it is held that there was also a waiver on the part of the petitioners and in the absence of per-receipted bills the petitioners could not be paid in time but, however, the delay is attributable to the petitioners themselves and respondents exonerated. The Tribunal further recorded that there was no default either intentional or deliberate, calculated or conscious and sufficient cause could be read from the fact that the petitioners themselves waived all their right in the matter of alleged default by acceptance of rents.