1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 102/2002 1. Dr. Hugo Vicente do Perpetuo Socorro Andrade e Menezes, Medical Practitioner. 2. Mrs. Maria Teresa Rita Cassia Correia Mesquita e Menezes, Analyst. (deceased) through LR's. 2a. Marlene de Noronha Menezes. 2b. Silvia Elzira Menezes. 3. Carlos Manuel Francisco Mesquita Menezes. 4. Tito Jorge Mesquita Menezes all of full age, residing at Fontainhas, Panaji, Goa. … Petitioners V e r s u s 1. State, through the Chief Secretary with office at the Secretariat, Panaji, Goa. 2. Mr. Albino Fernandes, s/o Domingos Pedro Xavier Fernandes and his wife 3. Mrs. Violeta Moniz e Fernandes Both residing at C-1, House 2 No. 32, D. Joao de Castro Road, Panaji, Goa. 4. Mrs. Blandina Remedios Fernandes, c/o Albino Fernandes, r/o C-1, House No. 32, D. Joao de Castro Road, Panaji, Goa. 5. Dr. Caetano Fernandes (since deceased) through his legal representative Mr. Albino Fernandes, residing at C-1, H. No. 32, D. Joao de Castro Road, Panaji, Goa. 6. Mrs. Margarida Fernandes e Gomes and her husband 7. Mr. Alfredo Gomes c/o Albino Fernandes, r/o C-1, House No. 32, D. Joao de Castro Road, Panaji, Goa. 8. Mrs. Fidelia Fernandes e Quadros and her husband 9. Mr. Nelson Fernandes, c/o Albino Fernandes, r/o C-1, House No. 32, D. Joao de Castro Road, Panaji, Goa. …Respondents 3 Mr. M.B. Da Costa, Senior Advocate with Mr. J.A. Lobo, Advocate for the Petitioners. Mr. S.S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for Respondent No. 1. Mr. Sudin Usgaonkar, Advocate for Respondent Nos. 2,3,4,6,7,8 and 9. Coram: S.A. BOBDE & F.M. REIS, JJ. Date: 7 th July, 2011. ORAL JUDGMENT (per S.A. BOBDE, J): Heard learned Counsel for the parties. 2. By this writ petition, the petitioners-landlords have prayed for the following reliefs: “a) to declare that the Goa Buildings (Lease Rent and Eviction Control Amendment Act, 1997 is arbitrary discriminatory and violative of Article 14 of the Constitution of India and 4 consequently to strike down the said Goa Buildings (Lease Rent and Eviction) Control Amendment Act 1997 as unconstitutional. b) to declare that the restriction in Section 23(1)(b) of the Goa Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 on the right to obtain possession for the personal use and occupation of the landlord in respect of the non residential building which is used for the purpose of keeping a vehicle or adapted for such use as arbitrary, discriminatory and violative of Article 14 of the Constitution of India and strike down said provision.” 3. When the petition was filed on 27th March, 2002, the petitioners' Special Civil Suit No. 60/1979 for recovery of possession was pending before the Court of Civil Judge Senior Division, Panaji. Apparently, during 5 the pendency of the suit, the Goa Legislature enacted the Goa Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1997, by which Section 3 was amended as follows: “Amendment to Section 3 – In Section 3 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (Act 2 of 1969), in sub-section (1), for clause (cc), the following shall be substituted namely:- (cc) to any building let out or leased for the first time on or after 20-4-1994 whose monthly rent exceeds - (a) Rs. 2500/- if such building is used for residential purpose, (b) Rs. 5000/- if such building is used for commercial purpose.” 6 4. As a result of the amendment, the petitioners could not have recovered the possession since tenant- respondent no. 1, was admitted as tenant under a lease, which was in existence prior to 20-04-1994 and the monthly rent exceeded `5,000/-. Faced with this situation the petitioners filed the present writ petition questioning the validity of inter alia the aforesaid provisions. 5. It may be noted that the petitioners had also filed a Special Civil Suit No. 105/1996, for recovery of possession and mesne profits before the Civil Court. During the pendency of this writ petition, the petitioners have admittedly withdrawn Special Civil Suit No. 105/1996 on 29-10-2010. The petitioners have also carried out an amendment at page-41 of the petition pointing out that the application for fair rent filed by the respondents have been withdrawn by the respondents on 28-04-2009. 7 6. Thus, admittedly no action is pending in court for eviction of respondents/tenants. In these circumstances, the learned Advocate General submitted that this Court ought not to pronounce on the constitutional validity of the provisions, particularly since the suit for eviction has been withdrawn by the petitioners. 7. Mr. Da Costa, learned Counsel for the petitioners, however, submitted that the petitioners are entitled to maintain the cause of action without any pending action under such a legislation. It is not possible to agree with this contention. We are of the view that a party cannot simply challenge a statute, unless the party initiates some action and that has provided a cause of action either by rejection of such an action or some order against him. In this case, we find that the petitioners have withdrawn the suit filed by them against the respondents- tenants. Mr. Da Costa, learned Counsel for the petitioners 8 relied on the decision of the Supreme Court in the case of D.C. Bhatia and Others Vs. Union of India and Another reported in (1995) 1 SCC 104 for the proposition that a tenant would be entitled to challenge the validity of rent control legislation without having filed any suit. It does not appear that this point was raised or decided by the Supreme Court in Bhatia's case (supra). We might, at this juncture, state that this Court offered an opportunity to the petitioners to reinstitution the suit, which he has filed or file a fresh suit or application whatever may be permissible for eviction of respondents/tenants since, in any case, it would be necessary for him to file a suit or an application for eviction of respondent nos. 2 to 9. This was, however, declined by Mr. Da Costa, learned Counsel for the petitioners. 9 8. In the result, we see no reason to entertain this petition, which is hereby dismissed. No order as to costs. S. A. BOBDE, J. F. M. REIS, J. Ev