1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 570 OF 2008 1. Shri Gajanan S. Karekar, 2. Shri Ramakant S. Karekar, 3. Shri Satish S. Karekar, 4. Shri Shekhar S. Karekar, All major in age, residents of S.N. Karekar House, H.No. 560, Behind PWD, Fatorda, Margao, Salcete-Goa. .... Petitioners V/s 1. Smt. Rosalina Souza E Carvalho (since deceased) Through her legal heirs: (i) Antilia Carvalho Major in age, resident of Margao Goa. (ii) Ms. Flora Carvalho (since deceased) 2. Smt. Seema Karekar, Resident of C/o. Shri R.K. Kerurkar, “Smeet” 6th Cross Linrary, Sadashiv Nagar, Belgaum, Karnataka State. .... Respondents Mr. A.D. Bhobe, Advocate for the Petitioners. Mr. F.M. Reis, Advocate for Respondent No. 1(i). CORAM : N.A. BRITTO, J. DATE : 16th MARCH, 2009. ORDER : Challenge in this Writ Petition, filed under Article 227 of the 2 Constitution is to the order dated 27/07/2008 of the learned Administrative Tribunal, Panaji by which the learned Administrative Tribunal has upheld the order dated 8/01/2003 of the learned Rent Controller stopping proceedings under Section 32(4) of the Goa, Daman & Diu Buildings (Lease, Rent & Eviction) Control Act, 1968, and, consequently, has ordered the evictions of the petitioners by directing them to hand over the possession of the suit premises. 2. Heard learned Counsel on behalf of both parties. The suit premises were let out to Shamba Karekar who had 5 sons including the petitioners herein and the deceased husband of respondent no.2. Eviction proceedings were initially filed by the landlady (respondent no.1, herein) against respondent no.2 on various grounds including that the husband of respondent no.2 had not paid rent at the rate of Rs.600/- per month from October, 1993. It was also alleged that the suit shop was damaged and kept closed upon the death of the husband of respondent no.2 for several months. The present petitioners i.e. 4 brothers of deceased husband of respondent no.2, moved an application on 13/08/1996 and which was allowed by order dated 2/02/2000. Prior to that, the landlord (respondent no.1, herein) on or about 2/09/1998 had filed an application under Section 32(4) of the Act. The respondents 3 filed a written statement on 14/08/2000 and admitted that the rent payable was Rs.400/- and not Rs.600/- as claimed by the landlord. On the same day, the petitioners as well as respondent no.2 moved an application to deposit the rent from November, 1993 to August, 2000 in the sum of Rs.31,200/-. The said application came to be disposed of by order dated 19/02/2002 by the Rent Controller who directed respondent no.2 to deposit the arrears of rent within 30 days and in case she failed to deposit the same, gave liberty to the petitioners herein (opponents nos. 2 to 5) to move fresh application for deposit of rent. Admittedly, the respondent no.2 i.e. Smt. Seema Karekar failed to pay the rent and the petitioners moved an application on 9/08/2002 to deposit the rent. The petitioners/respondent nos. 2 to 5 by order dated 20/12/2002 were directed to deposit the admitted arrears of rent at the rate of Rs.400/- per month on or before 3/01/2003. In other words, the petitioners were required to pay the admitted rent of Rs.400/- from November, 1993 which he petitioners failed to pay, but, on 3/01/2003 sought time of 2 months to make payment of the admitted rent which application was rejected by the learned Rent Controller as stated by the learned Counsel on behalf of the respondents, observing that the Act did not provide to give time for payment of rent. In the above factual matrix, the learned Rent Controller observed that the admitted rent w.e.f. November, 1993 4 to December, 2002 at the rate of Rs.400/- per month worked out to Rs.42,400/-. The learned Rent Controller referred to the provisions of Section 32(4) of the Act and observed that every time the petitioners were coming up with the application for the purpose of delaying the proceedings and, inspite of enjoying the tenanted premises since 1993 without payment of any rent, no efforts were being made by them nor any sufficient cause shown as regards non-payment of rent. The learned Rent Controller also observed that the cause cited by the respondents was that there were differences amongst the petitioners which differences were referred to arbitrator but that could not be accepted as a genuine cause to deny the rights of the landlord to receive the rent for a long period of 9 years and this clearly showed that there was abuse of the process of law by the petitioners. The learned Rent Controller also observed that inspite of several hearings none of the respondents (petitioners, herein included) had made any sincere efforts to deposit the rent of even a single month during the pendency of the case in 7 years and, as such, he had no other option but to stop the proceedings and order the eviction of the petitioners. 3. An appeal having been filed by the petitioners, the same came to be rejected by order dated 21/07/2008. In rejecting the appeal filed by 5 the petitioners, the learned Administrative Tribunal noted that the petitioners had not availed of the protection given to them under Section 22 of the Act and further observed that they have only pulled the rope of protection to considerable extent but are trying to encircle themselves with the rope. Learned Administrative Tribunal took note of the observations of the Apex Court in E. Palanisamy V/s. Palanisamy (2003 (1) SCC 123), wherein the Apex Court had stated that normally the rent legislation was intended for the benefit of tenants, but, at the same time the benefits conferred on the tenants can be enjoyed by them only on the basis of strict compliance with the statutory provisions and there is no place for equitable consideration in such matters. The learned Tribunal further observed that from the time the petitioners were impleaded in the eviction proceedings they had sufficient time to make provisions for deposit of rent and they did not do so and only tried to seek relief of payment by instalments and that they had sufficient time to show their bonafides, if any, and therefore, felt that there was no reason to interfere with the impugned order. 4. Shri Bhobe, the learned Counsel appearing on behalf of the petitioners has submitted that the application dated 3/01/2003 filed by the petitioners ought to have been granted. Learned Counsel further 6 points out to a stray sentence in the judgment of the learned Administrative Tribunal and submits that the Tribunal was of the opinion that there was no sufficient cause for stopping proceedings under Section 32(4) of the Act. In my view, the said sentence is being picked up out of context and a judgment cannot be read like a statute. In the same sentence, learned Administrative Tribunal has concluded that the Rent Controller was right when he considered all the facts and passed an order of eviction and, therefore, he found no reason to interfere with the impugned order. In my view, the application dated 3/01/2003 was filed only by way of pretext to secure further time. Nothing had prevented the petitioners till then to deposit at least some arrears of rent payable by the petitioners. The petitioners were impleaded by order dated 2/02/2000 and prior to that an application under Section 32(4) was already filed on 2/09/1998. The petitioners admitted that rent was Rs.400/- per month but thereafter made no efforts whatsoever to pay the same. It appears that the payment was not made because of intersay differences between the brothers, the petitioners herein, as to who should pay the landlord and it is their disunity which has now brought about the order of eviction against them. Nevertheless, the fact remains that from 14/08/2000 to 8/01/2003 not even a single month’s rent was paid by any of the petitioners or for 7 that matter respondent no.2, the widow of the petitioners’ deceased brother nor did the petitioners show any cause for non-payment of the said arrears of rent. The differences intersay between the petitioners, if any, could not be certainly sufficient cause to deprive the landlord of the rent payable to him which had remained unpaid for almost 9 years. True, the Division Bench of this Court in Shri Datta Anant Ghadi V/s. Smt. Guilhermina Silveira & Ors. (2000 (1) GLT 39) interpreted the expression “shall” in sub-section 4 of Section 32 of the Act as may thereby vesting a discretion in the Rent Controller to make an order stopping all further proceedings and directing the tenant to put a landlord in possession of the building only after taking all the facts and circumstances of the case into consideration. The learned Division Bench also noted that Section 32(1) of the Act was intended to secure payment on pain of the tenant being precluded from contesting the proceedings and on being required to put the landlord in possession. Again, it is true that in the case of Shri Joao Xavier Pinto V/s. Shri Oswald J.C. Velho & 2 Ors. (1990 (1) G.L.T. 116), it is observed that a tenant is required to show a sufficient cause not for the purpose of failure to pay but for the purpose of stopping further proceedings and making an order directing the tenant to put the landlord in possession. Needless to observe the stopping of further proceedings is intrinsically 8 dependent on the failure to pay the arrears of rent and in case the arrears are not paid nor a sufficient cause is shown for its payment, there is no other option for the authorities but to order stoppage of proceedings and order eviction of the petitioners. True, the Act is a piece of beneficial legislation favouring tenants, but, it cannot be an instrument of harassment or oppression to the landlady. The benefits conferred can be enjoyed only with strict compliance with statutory provisions as stated by the Apex Court in Atma Ram V/s. Shakuntala Rani (2005 (7) SCC 211). The Act prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. In the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default. 9 5. The Apex Court in Aero Traders (P) Ltd. V/s. Ravinder Kumar Suri (2004 (8) SCC 307) considering that not even a month’s rent was paid, Rs.30/- per month in that case, held that there was absolutely no ground on which any discretion could be exercised in favour of the tenant. 6. In my view, both the authorities below have rightly exercised the discretion vested in them. The fact that the petitioners had deposited the rent before the Tribunal at the time of filing of appeal can be no consolation or explanation for their failure to deposit the same for nine long years before the Rent Controller. 7. In the light of the above, I find there is no merit in this petition. Consequently, the same is hereby dismissed with costs of Rs.5,000/- to be paid by the petitioners to the respondent-landlady. 8. At this stage, learned Counsel for the petitioners submits that the petitioners be given sometime to vacate the suit premises. Upon an undertaking being filed that the petitioners will vacate the premises within a period of eight weeks from today, time is granted of two months to vacate the premises. The undertaking be filed within a 10 period of two weeks. N.A. BRITTO, J. NH/-