IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.209/1994 WITH MISC. CIVIL APPLICATION NO.327 OF 2002 WITH MISC. CIVIL APPLICATION NO.515/2003. Shri Camilo Piedade Colaco, (Since deceased, through his legal heirs:) 1a. Mrs. Angelina F. Colaco, 1b. Mr. Vincent Colaco, 1c. Mrs. Plasina Colaco, 1d. Mr. Alban Colaco, 1e. Mrs. Genevieve Colaco, 1f. Mrs. Susan Joanes, 1g. Mr. Bosco Joanes, 1h. Mrs. Rita S. Dias, 1i. Miss Lana J. Colaco, residing at Grande Pulavdo, Banaulim, Salcete, Goa. .... Petitioners. V/s. 1) Shri Chandrakant S. Keni, major, Editor, Daily Rashtramat, residing at House No.90, Aquem Alto, Margao, Goa. 2) The Court of the Additional Rent Controller-II, South Goa, Margao-Goa. 3) The Administrative Tribunal, Goa, Daman & Diu, by its Chairman, having Office at Panaji, Goa. .... Respondents. Mr. M.S. Sonak, with Mr. E.P. Lobo, Advocates for the petitioners. Mr. M.S. Usgaonkar, Sr. Advocate with Ms. Swati Kamat wagh, Advocate for respondent No.1. - 2 - CORAM : A.M. KHANWILKAR, J. DATE : DECEMBER 5, 2003. ORAL JUDGMENT : This writ petition under Article 227 of the Constitution of India, takes exception to the Judgment and Order dated January 31, 1994 passed by the Administrative Tribunal, in Eviction Appeal No.19/1991. The petitioners are successors-in-title of the original petitioner Shri Camilo Piedade Colaco. The original petitioner was landlord in respect of House No.90 (Northern Part) (suit premises) at Aquem Alto, Margao. Respondent No.1 was inducted in the said premises as tenant on monthly rent basis. The original petitioner, by legal notice, called upon the respondent to vacate and hand over the suit premises. Since the respondent did not vacate the suit premises, the original petitioner instituted eviction petition being case No.BLDG/102/ ARC-II/1986 before the Rent Controller/Dy. Collector, South Division, at Margao, initially on two grounds and later on added one more ground, namely (a) bona fide personal requirement of the landlord and his family; (b) tenant acquiring a vacant house at Porvorim, Bardez; and (c) sub-letting by the tenant. The said petition was allowed by the Rent Controller by Judgment and Order dated January 29, 1991 on the first two grounds, though. Against that decision, the respondent carried the matter - 3 - in appeal before the Administrative Tribunal of Goa, Daman and Diu at Panaji by way of Eviction Appeal No.19/1991. By the impugned Judgment and Order, the appeal preferred by the respondent was allowed and instead the order of eviction passed by the Rent Controller on the ground of bonafide requirement of the landlord and his family as well as the tenant having secured alternative accommodation, was set aside. As a result, the eviction petition came to be dismissed by the impugned Judgment and Order. Against this decision of the appellate Authority, the present writ petition has been filed. Accordingly, only abovesaid two grounds are pressed into service before this Court for eviction of the respondent. 2. While this writ petition was pending, the respondent has filed Misc. Civil Application No.327/2002 praying that copy of the consent terms in the matter between the landlord and another tenant V.G. Kamat dated 11.4.2001 be taken on record and the Court may pass appropriate orders as the Court deems fit, including remand of the case. In this application, it is asserted that while the proceedings against the respondent were pending, the landlord has entered into consent terms in respect of the neighbouring premises (Southern Part) of the said premises and, therefore, the ground of personal - 4 - requirement does not survive due to this subsequent development. This application also asserts that the main reason for instituting the eviction proceedings against the respondent was that the suit house was required for the requirement of the family of the landlord to come to Margao for the children to study, which requirement is no longer subsisting. It is also asserted that the original petitioner has died and having regard to the composition of the present family of his children, the property already received in possession from another tenant Shri Kamat would satisfy the present requirement of the landlord. It is on this basis, it is pleaded in this application that in view of the abovesaid subsequent developments, which have eclipsed the requirement of the landlord, the Court would reckon those aspects and answer the issue against the landlord and if required to remand the case to the lower Court to ascertain whether the requirement is bona fide. 3. The petitioners have filed reply opposing the said application for the reasons noted in the reply/affidavit. Besides, the petitioners have filed separate application being Misc. Civil Application No.515/2003 praying that in view of the subsequent development that the respondent has already retired as an Editor of the daily ‘Rashtramat’ his earlier defence that - 5 - the altrnative premises which has become available to him was inconvenient, does not survive any longer-as it is not imperative for the respondent to reside at Aquem, Margao and he can occupy the premises acquired at Porvorim. It is prayed that this development be taken into account in the event the Court was to seriously consider the subsequent events pressed into service on behalf of the respondent. 4. Adverting to the first ground, namely, personal bonafide requirement of the landlord and his family, the case made out in the petition by the landlord/original petitioner was that the petitioner having returned from Africa for good to Goa in April, 1986 and that he has five children, out of which two were schooling at the relevant time at Margao, the entire suit house was required for his bonafide occupation. The petition also discloses that the petitioner has filed another eviction petition against tenant (V.G. Kamat) occupying the southern part of the said house, on the ground of personal bonafide requirement. In other words, it is clearly asserted that the requirement of the landlord for himself and his family was of the entire house, namely the northern as well as southern part. The petition also asserts that his family was presently staying in the ancestral house which was insufficient and - 6 - cannot accommodate his entire family, comprising of grown up children. The application also asserts that the original petitioner had no other house of his own in Margao city. The case as made out by the original petitioner/ landlord was resisted by the respondent. According to the respondent, the claim of the petitioners was not bonafide. The parties adduced evidence in support of their respective claims. The Rent Controller, upon analysing the materials on record, accepted the case made out by the original petitioner/landlord that his requirement of the suit premises was bonafide for himself and his family. The reasons which weighed with the Rent Controller to accept that the petitioner’s claim can be discerned from the following portion of his Judgment, which reads, thus : "In his evidence applicant has established that he bonafide requires for his own occupation and his family members suit premises which is a residential house at Aquem Alto in Margao city and that he is not occupying a residential house of his own in the city concerned. Admittedly the landlord/applicant is staying in a common ancestral house in Benaulim village beyond a distance of 4 kms. As to ownership of the suit premises of the applicant by virtue of inventory proceedings is not disputed by the tenant/respondent. Admittedly suit premises at Aquem Alto, Margao is within a distance of 2 Kms. from Margao Municipality. It is also not disputed that two children of the applicant are studying in Margao School and have to travel to Margao city from Benaulim village where they reside in the common ancestral house along with applicant, their - 7 - mother and the sister in law. Out of five children of the applicant three children are abroad. The brother of the applicant when comes to Goa with his family also stays in the same ancestral common house at Benaulim as per the evidence on record. As observed in the decision reported in RCJ 1988 Vol. II page 36 by the Calcutta High Court for the landlord to recover possession of his own premises sufficiency of accommodation is not enough but suitability of accommodation has to be seen. It is held by Delhi High Court as reported in RCJ 1988 Vol. I page 723 that landlord must have a legal right to live in a particular premises. The decision of Delhi High Court reported in AIR 1990 NOC 2 (Delhi) also held that as to requirement of landlord must be given due importance for suitable accommodation. The decision reported in RCJ 1977 Vol. I page 38 of Madras High Court holds that in a case for bonafide requirement of land, he can choose any premises owned by him for his personal occupation and it is not for the tenant to dictate the choice. The present residence of the applicant in Benaulim village no way bars the applicant/landlord to have a house in Margao city. The right accrues to the landlord to recover possession of a residential house in a city in case the landlord is not occupying a residential house in the city by virtue of provisions of Section 23(1)(a) and there is no need to establish whether the accommodation presently occupied by the landlord in a village is sufficient. The present residence of the applicant is admittedly not in the city of Margao but in the village Benaulim. The residence of the applicant is admittedly not in the city of Margao but in the village Benaulim. The provisions of the said Section 23 of the Act provides for landlord to have premises in city and the same is not provided in law for the tenant. The respondent/tenant has not made out any ulterior motive of the landlord or extraneous consideration in trying to recover possession from the tenant on a higher rent. The applicant on the other hand established his genuine and real need of the suit premises." - 8 - 5. Against this decision, the respondent carried the matter in appeal and, while considering the plea of bonafide retirement, the fulcrum of the reasoning of the appellate Authority, is as follows : "The only point which is required to be seen is whether the requirement of the suit premises by the landlord is bonafide or not. In the original application dated 3.9.1986 at para 7, the Respondent landlord submitted that he needs the suit premises because two of his five children are schooling in Margao. At para 10, he also stated that he did not have comfortable house of his own in Margao City. During the course of evidence recorded on 12.10.90 and 14.1.91 in another case No.BLDG/100/ARC III/86, which is on record, in the appellate file, the Appellant submitted that his two school children are no longer staying with him at Benaulim but in U.K. His brother is also staying in U.K. with his family. It is, therefore, clear that the Appellant requires the suit premises for his own stay alongwith his wife in the city of Margao rather than the village, Benaulim. This cannot be a sufficient ground for evicting the Appellant/tenant. In any case, the comparative hardship caused to the tenant is more than that caused to the landlord." 6. Besides, the appellate Court went on to observe, while distinguishing the decision in Mohanlal Jain v/s. Mohanlal and another, reported in 1973 RCJ 249, that in the present case, the application was not based on insufficiency of the landlord’s present accommodation, but its unsuitability. The appellate Court has also noted that the bonafide requirement of the - 9 - landlord was not put in issue by the respondent on the ground that he was not liable to be evicted because the landlord had another tenanted premises. The appellate Court further noted that in any case, it has come on record that the landlord has instituted two separate proceedings in respect of his two tenanted buildings at Margao. The appellate Court then went on to observe that the comparative hardships caused to the landlord and the tenant, will have to ascertained and the hardship caused to the tenant will have to be kept in mind. The appellate Court then went on to observe that under the provision of Goa Rent Control Act, there is no requirement of law regarding question of suitability or otherwise and such a requirement cannot be read into Section 22 and 23(1)(a)(i) of the Goa Act. The appellate Court whilst adverting to the Premabai v/s. Rukminibai Joshi, reported in AIR 1982 Goa 17, has observed that it is not in issue in the present case that the landlord was incompetent to file two separate suits against two tenants to recover possession on the ground of bonafide requirement because the respondent did not object to the filing of the eviction proceedings on this ground; whereas the landlord not only disclosed in the original petition as well as in the evidence that two separate suits have been filed for eviction, but also asserted that the entire suit house was required bonafide for his - 10 - as well as his family’s use. The appellate Court also noted that the present case was not the one of additional accommodation required by the landlord under Section 23(3) of the Goa Act, but for recovery of tenanted premises for bonafide occupation, while rejecting the argument of the respondent of applying considerations available under sub-Section (3) of Section 23 of the Goa Act to the fact situation of the present case. At the end, the appellate Court has noted as follows : " ... Taking all these decisions and arguments into consideration and after assessing the comparative hardships of both the parties, we hold that the requirement of the suit premises by the landlord is not bonafide and hence set aside the finding of the lower court on this issue." 7. According to the Counsel for the petitioners, the appellate Court has clearly misdirected itself in taking into account considerations which were not germane to examine the claim of possession under Section 23(1)(a)(i) of the Goa Act for the requirement of the landlord. According to the petitioners, the appellate Court has committed manifest error, for which reason, this Court in exercise of writ jurisdiction is duty-bound to remedy the same. It is contended that the requirement of Section 23(1)(a)(i) and even reading the same along with Section 25 of the Goa Act, what is required to be seen is whether the landlord is not - 11 - occupying a residential building of his own in City where the tenanted rooms are situated and that he bonafide requires the same for his own and the occupation of his family. It is then contended that in the present case, the landlord has not only pleaded, but also established that position, as can be seen from the evidence on record. However, the appellate Court has applied the test of whether the requirement of the landlord was bonafide, but also "reasonable", which is not the requirement under the Goa Act. Besides, the appellate Court has invoked the principle of ‘comparable hardship’ while considering the claim of the landlord under Section 23(1)(a)(i) of the Goa Act, which is unsustainable in law. Inasmuch as, the issue of comparative hardship, has no relevance to the scheme of the Goa Act and, at any rate, that is of no consequence while considering the claim of bonafide requirement of the landlord. It is also contended that there is no express provision of examining issue of comparative hardship. Besides, it is contended that, the approach of the appellate Court cannot be sustained as the Rent Controller had examined all the aspects of the matter in deciding the issue in question and the appellate Court has not reversed the matrial opinion expressed by the Rent Controller in that behalf, but answered the issue in favour of the respondent mainly on the basis that the landlord required - 12 - the suit premises for his own stay along with his wife in the city of Margao rather than the Village Benaulim and that cannot be a sufficient ground for evicting the tenant. For this purpose, the appellate Court has taken into account the fact that the two school going children were no longer staying with the landlord at Benaulim, but in U.K. and the landlord’s brother was also staying in U.K. with his family. The learned Counsel contends that even other reasons recorded by the appellate Court are not germane for deciding the issue in question; whereas the appellate Court ought to have maintained the order of possession as passed by the Court below. 8. On the other hand, learned Counsel for the respondent contends that the requirements of Section 23(1)(a)(i) have not been fulfilled in the present case, and in that sense the finding recorded by the appellate Court does not merit interference. It is contended that it is on record that the landlord was having more than one house (i.e. at Benaulim and Margao); whereas, the landlord having failed to indicate as to why one house has been preferred against the other, no relief of possession can be granted to such a landlord. It is further contended that the present accommodation occupied by the landlord was hardly 4 kms. from the suit house though in a separate locality, inasmuch as ancestral - 13 - house of the landlord was at Benaulim; whereas the suit premises is in Margao City. It is contended that for all practical purposes, both the houses were in the same locality and merely because two houses are in two different places under separate Municipal limits, the landlord cannot be permitted to take advantage of the provisions of Section 23(1)(a)(i) on such technical argument. On the other hand, since both the houses are virtually located in the same area, the ground for eviction under this provision was not available. It is next contended that the ancestral house where the landlord was co-owner along with his brother, cannot be excluded from the consideration and if that was to be taken into account, the requirement of the landlord cannot be said to be bonafide. Learned Counsel also made serious grievance that the Rent Controller framed issue No.3 i.e. whether the opponent proves that the southern part of H.No.90 which the applicant has sought, is sufficient for the occupation of his family ? However, has not adjudicated the said issue at all. According to the respondent, the southern and northern parts of the house are symmetrical and identical, each having 143 sq. metres area respectively. It is contended that the suit premises consists of six rooms, comprising of a living room, dining room, two bedrooms, kitchen and in addition there are two corridors - one in the front side and the - 14 - other at the rear including a bathroom and W.C. There was no justification from the landlord to claim possession of the entire suit house admeasuirng 286 sq. metres, because each unit on the northern and southern part was independent. It is then contended that having regard to the subsequent developments which are already referred to above, the ground of bonafide requirement would not survive for consideration. It is also contended that although there is no express provision to consider comparative hardship between the landlord and the tenant, but, that is the principle underlying sub-Section (3), the appellate Court was justified in applying the said principle to the present case, although under Section 23(1)(a)(i). It is also contended that the subsequent fact of respondent having ceased to be the Editor, cannot be the basis for answering the ground in question in favour of the landlord. 9. Having gone through the relevant records with the assistance of the Counsel for the parties and on considering the rival submissions, I have no hesitation in taking a view that the appellate Court has committed manifest error in answering the issue of bonafide requirement against the landlord which has resulted in serious miscarriage of justice. The appellate Court has, to my mind, misdirected itself in reversing the well - 15 - considered conclusion reached by the Rent Controller, which was cogent and upon analysing of all the relevant materials on record. I find force in the submission of the petitioner that the appellate Court has decided the issue on matter which was not germane. Indeed, the application for eviction, in question, was filed as back as in 1986 and due to passage of time because of the pendency of the proceedings at different levels, the cause which was originally set up in the said application has not remained the same. The fact remains that the landlord clearly pleaded as well as established the fact that he has five children, out of which, two were schooling at the relevant time at Margao where the suit premises is situated. It has also been pleaded and established that the present ancestral accommodation was small and cannot accommodate comfortably the entire family of the landlord, comprising of grown up children. It is in that backdrop, the landlord has filed the present proceedings, not only in respect of the portion in possession of the respondent, but also against the other tenant, i.e. southern part. It is also pleaded and established that the landlord had no other residential building of his own in the city of Margao, for his occupation as well as for the members of his family. These findings of fact have been recorded by the Rent Controller, which have not been and could not be - 16 - disturbed. The requirement under Section 23(1)(a)(i) is that the landlord is not occupying residential building of his own in the city, town or Village; He must require it for his own occupation or for the occupation of any member of his family. No more and no less. However, in view of Section 25 of the Goa Act, the additional requirement as to whether the claim of the landlord is bonafide, is also required to be considered. In other words, for invoking ground under Section 23(1)(a)(i), it is sufficient for the landlord to assert that he requires the premises and that requirement is bonafide. Bonafide requirement does not mean that it should be dire and compelling requirement, as is well settled by cetena of decisions. It is enough for the landlord to satisfy that he requires the suit premises bonafide and must show that the same is needed for his occupation. Bonafide requirement also does not mean absolute need or absolute requirement. It is also well settled that the landlord is the best judge of his residential requirements and he has complete freedom in that behalf. It is no concern of the Courts to dictate to the landlord as to how, in what manner, he should live or to prescribe for him a residential standard of their own. There is no law which deprives the landlord of the beneficial enjoyment of his property. Ordinarily speaking, the landlord, if he says he wished to use - 17 - premises of which he is the owner, he is entitled to do so. What the Rent Act endeavours to provide for, is the case of a landlord who evicts the existing tenants in order that he may let them to another tenant at a rent, or extract a higher rent from the tenant on a threat of eviction. The abovesaid legal position is no more res integra. (see Rena Drego vs. Lalchand Soni, (1998) 2 SCC 341; Dattatraya L. Kamble vs. Abdul Rasul Moulali Kotkunde and anr., 1994(4) SCC 1; Raghunath G. Panhale (Dead) by LRs. v/s. Ghagnalal Sundarji and Co., (1999) 8 SCC 1; Atma S.Berar vs. Mukhtiar Singh, (2003) 2 SCC 3, paras 7 and 12 and Mst. Bega Begum and ors. vs. Abdul Ahad Khan (dead) by L.Rs. and ors. (1979) 1 SCC 273, paras 12 and 13). Applying the above test, to my mind, no fault can be found with the conclusion reached by the