- (1.) THE original respondent/landlord (since deceased) now represented by his widow, son and daughter had filed eviction proceedings before the Additional Rent Controller, Ponda against the present petitioner on the grounds contained in Section 22 (2) (a) (b) and (f) as well as Section 23 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter called the said Act ).
(2.) THE original respondent/landlord is owner of the building denominated 'durga Prasad' commonly known as 'borkar's House' at Tisk, Ponda, Goa and this building consists of six tenements. Two of the tenements are in the basement and four tenements are on the ground floor, Each tenement has two rooms, one independent balcony with independent entrance, one W. C. and one bathroom. One of the said tenements was leased to the present petitioner sometime in September, 1974. THE case of the original respondent is that the present petitioner fell in arrears of rent from June, 1985 to September, 1985; that the present petitioner ceased to occupy the said tenement which is now occupied by the father of the petitioner who is conducting his personal business in the suit premises. In view of the same, the original respondent terminated the tenancy of the present petitioner. THE respondent's case further is that he was employed in Bombay with M/s. Bharat Petroleum Corporation and has since retired from 1-9-1982; that the said building was constructed by him with the intention to settle down in Goa and the said tenements in the said building are so constructed that the same could be connected inter se to make one unit for the purpose of residence of the petitioner and his family. THE respondent thus sought eviction also on the ground of personal occupation. It was also averred that the original respondent did not own or possess any other building in the city of Ponda or anywhere in Goa. The present petitioner contested the eviction proceedings and the Additional rent Controller, Ponda, vide Judgment dated 28th June, 1989 dismissed the eviction application filed by the original respondent. The Addl. Rent Controller had framed issues on the grounds urged in the eviction application, namely, that the present petitioner was in arrears of rent; that the present petitioner ceased to occupy the said tenement; that the present petitioner had transferred his right under the lease or sub-let the said tenement to his father and the same was being used for the purpose other than for which it was leased and that the petitioner ceased to occupy the said tenement. An issue had also been framed in respect of personal and bonafide occupation of the respondent. The Addl. Rent Controller after assessment of the evidence led before him, rejected the eviction sought for on all grounds. It may also be mentioned here, after hearing of the final arguments on 3-5-89, the original respondent had filed an application on 10-5-89 seeking amendment of the eviction application by adding the ground for eviction under Section 23a which had been incorporated in the said Act by way of amendment dated 24-12-87. This application for amendment was rejected by the Addl. Rent Controller. The Addl. Rent Controller found that the original respondent was already in occupation of one tenement consisting of two rooms, W. C. bathroom, separate balcony and separate entrance and two other such tenements were available for his occupation at any time, as revealed by him in the course of his evidence. The said two tenements were leased to one Shri Narvekar and one Shri Talaulikar who, according to the deposition of the original respondent, were ready to vacate the same at any time. On this basis, it was held by the Addl. Rent Controller that the said three tenements were sufficient for the occupation of the original respondent and his family. The Addl. Rent Controller also came to the conclusion that in the circumstances greater hardship shall result to the present petitioner if eviction was ordered as he had no alternate accommodation of his own. The findings of the Addl. Rent Controller were challenged before the Administrative Tribunal, who examined the case of the original respondent on the ground of personal occupation under Section 23 and 23a of the said Act. The Administrative Tribunal first examined the case of the original respondent under Section 23a and on the basis of clause (3) (c) of Section 23a, came to the conclusion that provisions contained in Section 23a are applicable to all applications pending before the Controller/tribunal and, as such, the Addl. Rent Controller should have granted the amendment application to incorporate additional ground under section 23a of the said Act. The Tribunal thus granted the amendment application and simultaneously rejected the request for remand made by the Advocate for the present petitioner. The Tribunal, on the basis of the evidence adduced by the original respondent that he wanted to settle down in Goa which had not been challenged in cross-examination and that one tenement of 20 to 30 sq. m. could not be said to be sufficient accommodation for the status of a person like the original respondent, held that the petitioner was liable to be evicted under Section 23a (3) of the said Act. The Tribunal also found that the case of the original respondent fell within the ambit of clause (1) (a) (i) of Section 23 of the said Act since the original respondent was not actually occupying any part of the said building and, as such, Section 23 (3) of the said Act was not attracted in the facts and circumstances of the case. The Administrative Tribunal thus reversed the order of the Addl. Rent Controller and ordered the eviction of the present petitioner under Section 23 (1) (a) (i) and Section 23a of the said Act. This order is challenged by the petitioner/tenant in this Writ Petition.
(3.) THE learned Advocate Shri S. D. Lotlikar, appearing on behalf of the petitioner/tenant urged before me that the Notification upon which reliance has been placed by the original respondent, for claiming to be Central Government servant, declares the employees of Bharat Petroleum as Government servants only for the purpose of pay and for no other purpose; that the 1994 Amendment to clause (3) of Section 23a would not apply in the circumstances of this case and that even otherwise no certificate to the effect that the original respondent does not possess any other suitable residence in the local area where he or the members of his family can reside has been produced from the Head of the Public Sector undertaking. It was next urged by learned Advocate Shri Lotlikar, that the Administrative Tribunal did not follow the procedure prescribed under Section 3 (A) of Section 23a and more particularly relating to leave to defend. Thirdly, it was urged that the petitioner failed to make out any case for personal occupation or that of his family and that the original respondent was otherwise in possession of three tenements consisting of six rooms, three W. Cs. and three bathrooms, besides three balconies and separate entrance thereto which was sufficient for the occupation of the original respondent and his family. He also pointed out that the case of the original respondent would, in fact, be a case of additional accommodation under Section 23 (3) and if the interpretation put by the Administrative Tribunal on the expression "occupying" is accepted then the landlord will go on seeking eviction against his tenants and even inspite of eviction order, would not occupy such premises so as to frustrate the provisions contained in Section 23 (3) of the said Act. He also pointed out that the Administrative Tribunal erred in stating that the original respondent had in his possession only one tenement, whereas the evidence of the original respondent was to the effect that two other tenements would also be available to him. It was also pointed out by Advocate Shri Lotlikar that the son of the original respondent is married and he has a permanent job at Bombay and he is staying at Bombay; that the daughter of the respondent is married and her husband is abroad and that three tenements which are available to the original respondent are sufficient for his occupation and that of his wife. He, therefore, urged before me that the order of the Administrative Tribunal should be set aside and the order of the Addl. Rent Controller be restored.;