1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 217 OF 2009 1. Mr. John Manuel Vaz, Major, and his wife, 2. Mrs. Elvira B. Vaz, Major, both residents of 2nd Floor, Altino Apartments, Altinho, Mapusa Goa, and as Power of Attorney of Petitioner No.1. ... Petitioners. V e r s u s 1. Mrs. Iria Maria dos Milagres E Ditosa da Costa alias Iria da Costa, Retired Headmistress, r/o Mapusa Goa. 2. The Administrative Tribunal of Goa, Panaji Goa. 3. The Additional Rent Controller II Mapusa Sub Division Goa. ... Respondents. Mrs. A. Agni, Advocate for the Petitioners. Mr. S. Usgaonkar, Advocate for the Respondents. 2 Coram :- N. A. BRITTO, J. Date :- 2 nd JULY, 2009. ORAL JUDGMENT : Rule. By consent heard, forthwith. 2. This is Tenants' Writ Petition and is directed against the judgment dated 18.2.2009 and the learned Administrative Tribunal,Panaji, upholding the order of eviction passed by Rent Controller, dated 31.7.1997. 3. Briefly stated, the respondent – landlady filed an application for eviction of the petitioners/tenants dated 19.10.1987 for the eviction of the tenants from a flat belonging to her and situated on the second floor of the building known as 'Altino Apartments' at Mapusa Goa. There is no dispute that the suit flat was let out to the tenants by Lease Agreement dated 1.5.1986. 4. The eviction application was filed stating that the landlady did not have any other accommodation in the city of 3 Mapusa and the house which landlady was occupying belong to her sister Zelia Remedios who intended to come down and stay there and as such the suit flat was required for her personal occupation. 5. After both the parties led evidence, it was brought on record that Zelia was residing in England since the year 1970 or thereabout and she had two unmarried children and all three of them were having their own houses. It was also brought on record that the respondent – landlady had another house in her possession belonging to her father in the city of Mapusa bearing No. 75/5. It was also brought on record that the suit flat was registered under No. 183/A/9/5 and the landlady also had another flat on the first floor of the same building bearing No. 183/A/14/5. The respondent is a retired Government servant and was aged about 70 years when the Rent Controller delivered judgment. The learned Rent Controller observed that the suit flat admittedly belongs to the landlady and there was another flat in the same building which was rented to one Shankar Narayan and was then locked which belong to the landlady, and in records it was still in her name. 4 Nevertheless, the Rent Controller proceeded to observe that stand taken by the landlady was convincing when she stated that suit flat was gifted by her to her adopted daughter Leonora and all the official papers were made in that regard. 6. The learned Administrative Tribunal has also noted that there was another flat in the same building which was rented to one Shankar Narayan and which was then locked and that according to the landlady the same was gifted by her to her adopted daughter Leonora. Learned Administrative Tribunal also noted that the landlady had gifted the said flat to her Leonora who had a child and she had another adopted daughter who was unmarried and who was staying with landlady in the said house of her sister and thus it was established that the landlady was not in occupation of the residential building of her own in the city, town or village and she required the suit flat for her occupation. 7. There are two requirements to be met under Section 23 of the G.D.D. Buildings ( Lease, Rent and Eviction ) Control Act, 1968 and they are the landlord should not be occupying a 5 residential building of his own in the city, town or village and he requires it for his own occupation or for the occupation of any member of his family. In other words, the landlord in order to obtain possession of a building should require it for his own occupation and not merely desire the same to be occupied by him. 8. Be that as it may, Mrs. Agni, learned Couunsel appearing on behalf of the Petitioners/Tenants submits that both the authorities below did not at all considered that the said Zelia, the sister of the landlady, would come to occupy the house in which presently she was residing. Learned Counsel further submits that the landlady had another flat on the first floor of the same building which was vacant from 8.9.1991 and therefore the landlady being old ought to have preferred to reside in the said flat on the first floor rather than on second floor which according to her was meant for her adopted daughter Leonora. 9. Shri Usgonkar, learned Counsel on behalf of landlady has submitted that the landlady was occupying a house belonging 6 to her sister bearing No. 183/A/9/5 and that the requirements of Section 23 was that the landlady should not be occupying a house of her own, and, the fact that she was occupying a sister's house or whether her sister was likely to come or not are aspects which totally irrelevant for the purpose of deciding the application. Learned Counsel further submits that the landlady herself believed that the flat on the first floor was given by her to her adopted daughter Leonora and in fact it was not in her possession at the time when the landlady filed the application, as it was occupied by the tenants at the relevant time. 10. The Apex Court in Phiroz Bamanji Dessai V/s Chandrakant Patil and others ( AIR 1974 SC 1059 ) has stated that :- For the purpose of determining whether the requirements of the landlord for the premises in question is reasonable and bonafide, what is necessary to be considered is not whether the landlord is juridically in possession of other premises, but whether they were available to him for occupation so that he cannot be said to need the 7 premise in question. If a person is in occupation of the other premises on leave and license, they are obviously not available to the landlord for occupation and cannot be taken into account for negating the need of the landlord for the premises in question”. 11. The Petitioners/Tenants had stated that flat on the first floor was vacated by Shankar Narayan on 8.9.191 and since then it had continued to be locked position, a fact which was not controverted on behalf of the landlady. The landlady in her evidence had stated that she knew the said Shankar Narayan and she had admitted that it is she who had given the said flat to be occupied by the said Shankar Narayan. She had also conceded that legally she was still owner of the said flat but had stated that she had given the said flat to her adopted daughter at the time of her marriage in the year 1983. Again, she had stated that it is she who had executed a Lease Deed with the said Shankar Narayan in the year 1985. The said admissions by the landlady clearly go to show that she had continued to be the owner of the flat on the first floor and it is she who had rented it out to the Shankar Narayan 8 and she had the same in her possession from 8.9.1991. Her case that she had given it as a gift to her adopted daughter at the time of marriage, is a fact which could not be easily accepted since the landlady had continued to be the owner of the same and not only that dealt with it as her own. The landlady also did not produce any document of transfer. She admitted that no Gift Deed was executed in favour of the said daughter. Although the flat on the first floor might have been under the occupation of Shankar Narayan when the application was filed, it was vacant from 8.9.1991 and this was certainly a subsequent development which has taken place and the Courts below had to take note of and if the landlady had a flat of her own on the first floor of the same building, the application could not be granted in terms of Section 23 of the said Act. Thus the tenants herein had proved that the landlady had premises of her own and that too on the first floor of the same building, and therefore the landlady could not have been extended the benefit of Section 23 of the Act by ordering the recovery of possession of the suit flat in her favour. The conclusion arrived at by the authorities below is not only 9 erroneous but also perverse and calls for interference from this Court. 12. As a result, the petition succeeds. The impugned orders of the Rent Controller as well as that of the Administrative Tribunal are hereby set aside and the application of the landlady for eviction of the tenant/s stands dismissed. N. A. BRITTO, J. at.