1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 392/2007 1. MR. SWAMI RAMAVATARA BHARATI, 2. MRS. SEEMA BHARATI, Both major of age, residents of H.No.5/103-A, “VIENNA HOUSE” Umtawado, Calangute, Bardez, Goa. Both represented through their power of attorney holder Mr. Shyam Ramavatara Bharati, major of age, student, r/o. Vienna H.No.5/103-A, Umtavaddo, Calangute, Bardez, Goa. ........... Petitioners. Versus 1. MRS. CARMINA MONICA D'SOUZA 2. MR. IVAN DIOGO D'SOUZA, 3. MS. LYNN DIOGO D'SOUZA (Now represented through their attorney Tito Goes Proenca, r/o. Naikawado, Calangute, Goa). 4. ADMINISTRATIVE TRIBUNAL, Dr. Dada Vaidya Hospital, Panaji, Goa. 5. ADDITIONAL DEPUTY COLLECTOR AND RENT CONTROLLER, Mapusa, Goa. ........... Respondents. Mr. Sudin M. S. Usgaonkar, Advocate for the petitioners. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondents No.1 to 3. 2 CORAM : S.A. BOBDE, J. DATE : 17th April, 2008 ORAL ORDER : The petitioners have challenged the orders of the Courts below, directing their eviction under Section 32 of the Goa Buildings (Lease, Rent and Eviction) Control Act. Section 32 read as follows : “32. Payment or deposit of rent during pendency of proceedings for eviction.- (1) No tenant against whom a proceeding for eviction has been instituted by a landlord under this Act shall be entitled to contest the proceedings before the Controller or any appellate or revisional authority or to prefer any appeal or revision under this Act, unless he has paid to the landlord or deposits with the Controller or the appellate or revisional authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate or revisional authority. (2) The deposit of rent under sub-section (1) shall be made within such time and in such manner as may be prescribed. (3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (1), the 3 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. (4) If any tenant fails to pay or to deposit the rent as aforesaid, the Controller or the appellate or revisional authority, as the case may be, shall, 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. (5) The amount deposited under sub-section (1) may, subjected to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf.” 2. The Courts below have found that the petitioners did not make the deposit as ordered by the Court. Initially, the Rent Controller passed an order under Section 32(3) of the Rent Act dated 24.1.2002 directing the petitioners-tenants to pay the arrears at the rate of Rs.2000/- per month to the respondents-landlords or to deposit with the Controller the said amount in order to entitle them to contest the proceedings before the Court. The Rent Controller further directed the petitioners to deposit any amount that becomes due, in the Court. 4 3. The petitioners preferred a revision against this order to the Administrative Tribunal, Goa. Before the Administrative Tribunal, the petitioners contended that they may not have paid the amount to the landlords personally, however, they had tendered the amounts by money order. The Administrative Tribunal in Order dated 11.7.03 observed vide para (9) that there is no evidence on record to show that at any point of time the rent was paid by money order. Eventually, the Administrative Tribunal observed that the petitioners are liable to deposit the rents and failure on the part of the petitioners to deposit the rents within the stipulated time, would entitle the respondents-landlords to take recourse to the provision of Section 32(4) of the Act. The Administrative Tribunal dismissed the revision. 4. Thereafter, in the main eviction proceedings, the Rent Controller directed eviction by order dated 12.8.04 under Section 32(4) and stopped the proceedings for eviction. The petitioner preferred an appeal to the Administrative Tribunal which has also been dismissed. 5. Mr. Usgaonkar, learned Counsel appearing for the petitioners submitted that Section 32 of the Rent Control Act contemplates that a tenant has right to either pay to the landlord or deposit with the Controller, all arrears of rents due. Therefore, the petitioners cannot be taken to have acted 5 in violation of this section, because they tendered the amounts by money order. According to the learned Counsel, the Courts could not have ordered petitioners' eviction on this ground. 6. On a closer examination, this submission is without any merit. The Administrative Tribunal has, in its order dated 11.7.03, clearly observed that there is no evidence on record to show that at any point of time the rents were paid by money order. This finding of fact by the Administrative Tribunal in revision has, admittedly, gained finality and there is no challenge to this order. 7. Moreover, though it is true that the section provides that a tenant shall not be entitled to contest the proceedings unless he has paid to the landlord or deposited with the Controller all arrears of rents and assuming that the petitioners could not have been faulted for having sent the payments by money order, which he has not, there is still no compliance with the provision. Section 32 would show that a tenant may make payment or deposit the arrears of rents with the Controller “as the case may be”. The words “as the case may be” contemplate two modes of payment, depending on the circumstances of the case. Clearly the section contemplates a direct payment to the landlord where there is no direction by the Court to deposit 6 the rent. Surely, the section does contemplate that a tenant may ignore an order of a Court to deposit rent and make an attempt, real or fictitious, to pay the landlord directly. Clearly, in the present case, the petitioners-tenants were directed by the Administrative Tribunal, in its Order dated 11.7.03, to deposit the rents within the stipulated time. Sub-section (2) requires a tenant to deposit the rent within such time and in such manner as may be prescribed. Clearly, therefore, what was prescribed in this case was the deposit of arrears before the Court which the petitioners have not done. There is, therefore, no merit in the petitioners' contention that the Tribunal has wrongly ordered the petitioners' eviction, even though the petitioners have tendered the amounts by way of money order. 8. Mr. Usgaonkar, the learned Counsel for the petitioners relied on a Judgment of the Supreme Court in Smt. Priya Bala Ghosh and others v. Bajranglal Singhania and another, reported in AIR 1992 SC 639. In that case, while construing the provision of Section 13(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, which reads as under: “When a landlord refuses to accept any rent lawfully payable to him by tenant in respect of any building, the tenant may remit such rent and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord”, 7 the Supreme Court has held that the rent may be, validly, paid directly by money order without tendering it in person under the aforesaid provision. Their Lordships took the view that the tenant is not expected to tender the rent personally to the landlord before sending the rent by money order. The purpose and object of the provision which fell for consideration of the Supreme Court is different from the provision that falls for consideration in this case. Section 32 is reproduced above. It provides for eviction if rent is not paid or deposited by the tenant as the case may be. In this view of the matter, there is no merit in this writ petition, which is hereby dismissed. 9. Mr. Usgaonkar, learned Counsel for the petitioners seeks stay of eviction for a period of one month from today. Having regard to the fact that the petitioners have been in possession of the premises for a period of about 25 years, I consider it appropriate in the interest of justice to stay the eviction for period of one month from today. Petition disposed of. S.A. BOBDE, J. ssm.