1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 380 OF 2007. Shri Kestur Siddalingappa Rajsekhar 14, Defence Colony, Alto Porvorim, Goa presently residing at 887(17)2, Plot No.10, Kamat Nagar, ..... Petitioner. Porvorim, Bardez, Goa 403 501 (Org. Opponent/appellant.) Versus 1) The Administrative Tribunal by its Chairman, Panaji, Goa 2) The Rent Controller, Collectorate, Panaji, Goa. 3) Smt. Savitri Timappa Naik, w/d of Timappa Naik, presently residing at Bombay herein represented by her Attorney, her son Naguesh Timappa Naik, as constituted by power of Attorney dated 23.1.1991, residing at Savitri Niwas, Dr. DadaVaidya Road, Panaji- Goa. (Org. applicant/respondent) 4) Shri Kishore E. Valvaikar, Shop No.2, Savitri Niwas, Dada Vaidya Road, Panaji, Goa...(Org. Respondent.) ..... Respondents. Mr. A. F. Diniz,Advocate for the Petitioner. Ms Sapana Mordekar, Advocate for the respondent No3. Coram :- S. A. BOBDE, J. Date : - 10th April, 2008. 2 ORAL ORDER : 1. The petitioner tenant challenges the order of the Administrative Tribunal dated 12.02.2007 in Eviction Appeal No.125/2004 upholding the judgment and order dated 28.06.2004 of the Rent Controller ordering his eviction. The main only contention of Mr. Diniz, the learned Counsel for the petitioner is that the order of the Administrative Tribunal is vitiated by an error of law apparent on the face of record because the Administrative Tribunal failed to set aside the order of the Rent Controller even though it is undisputed that the Rent Controller did not hear the petitioner but only relied upon written submission. 2. The respondent - landlord applied for eviction of the petitioner under the Goa, Daman And Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. The petitioner defended said proceedings. After hearing oral arguments of the parties,it appears that the Rent Controller asked for written arguments. Soon thereafter, the Presiding Officer was transferred. The incumbent admittedly did not hear the parties but proceeded to decide the matter finally apparently on the basis of the written submissions submitted by the parties before the earlier Rent Controller. The petitioner preferred an appeal before the Administrative Tribunal Goa which heard the appeal and dismissed the petitioner's appeal. The Administrative Tribunal specifically negatived 3 the contention of the petitioner that the order of the Rent Controller is vitiated because the Rent Controller who decided the matter had not heard the parties. Mr. Diniz, the learned Counsel for the petitioner submitted that the impugned order of eviction is vitiated for failure to hear the parties. 3. Now, though contested by the other side it seems clear that the Rent Controller is the Court or the Court of limited jurisdiction constituted under the Goa, Daman And Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. The Rent Controller has power to adjudicate any dispute between the landlord and tenant and is bound by law to follow the procedure prescribed for the Mamlatdar's Court as prescribed by the Mamlatdar's Court Act, 1966. Similarly, the appellate authority i.e. the Administrative Tribunal is bound by law to follow the procedure in that behalf under the Goa, Daman and Diu Administrative Tribunal Act, 1965 as the appeal was filed under the said Act. There is no doubt that the Rent Controller is a Court and its decision would be that of the Court of limited jurisdiction as envisaged in Section 11 of the Code of Civil Procedure, 1908. It was, however, contended by the learned Counsel for the respondent that the Rent Controller was not a Court which was bound to hear the parties. According to her, the only right which the petitioner had, was right to have his case represented and that right has been satisfied by the fact that the Rent Controller 4 considered the written submission. In the alternative, it was contended on behalf of the respondent that the Rent Controller contended that the order of eviction does not suffer from any error of law since no prejudice is demonstrated by the petitioner because he was not heard. 4. Having considered the submission, I am of the view that the petitioner's submission deserves to be accepted. There is no doubt that rules of natural justice are not embodied rules and the decree of latitude has been permitted having regard to the purpose and function of the authority empowered to decide the matter. However, no authority has been cited before me for the proposition that duly constituted Court of law may not hear the parties but can decide the matter purely on the basis of written submissions filed before it. At one stage, it was also contended by the learned Counsel for the respondent that no prejudice could be said to have been caused to the petitioner because there is nothing he could have said apart from the written submissions. This aspect has been considered by the Supreme Court in the case of S.L.Kapoor Versus Jagmohan reported in AIR 1981 S C 136, wherein in para. 18 to 20 the Supreme Court reproduced the following observations which read thus : “18. In Ridge V. Baldwin, (1964) AC 40, one of the arguments was that even if the appellant had been heard by the watch committee nothing that he could have said could have made any difference. The House of Lords observed (at 5 p. 68): “It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But as between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course.” 19. Megarry J. discussed the question in John V.Rees, (1970) 1 Ch 345. He said (at P.402) : “It may be that there are some who would decry the importance which the Courts attach to the observance of the rules of natural justice. 'When something is obvious', they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start'. Those who take this view do not think, do themselves justice. As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely 6 answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.” 20. In annamunthodo V. Oilfields Workers' Trade Union, (1961) 2 All ER 621 (HL), Lord Denning, in his speech said (at P.625): “Counsel for the respondent union did suggest that a man could not complain of a failure of natural justice unless he could show that he had been prejudiced by it. Their Lordships cannot accept this suggestion. If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. It is a prejudice to any man to be denied justice.” Thereafter, in para. 24, the Supreme Court concluded as follows : “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference it natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, 7 the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.” These observations made in the context of a decision by the Government to supersede the Municipality. I am of the view that they apply with greater force to the decision of a Court of law. In the case of Institute of Charterd Accountant of India Versus L.K.Ratna reported in AIR 1987 SC 71, the Supreme Court considered the question whether breach of fundamental procedure in the original proceeding could be said to be cured by hearing by the Appellate Court. In that regard, while considering the question, the Supreme Court quoted with approval the Administrative law by Sir William Wades as under : “If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing : instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.” And he makes reference to the observations of Megarry J. in Leary V. National Union of Vehicle Builders (1971) 1 Ch. 34. Treating with another aspect of the point, that learned Judge said : “If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give 8 the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I can not think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body can not be cured by a sufficiency of natural justice in an appellate body. ” The view taken by Megarry J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall (1974) 42 DLR (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang V. Medical Practitioners Disciplinary Committee, (1974) 1 NZLR 29 and so was the Court of Appeal of New Zealand in Reid V Rowley (1977) 2 NZLR 472.” In view of the above, I am of the view that it cannot be said that denial of natural justice to the petitioner before the Rent Controller could be said to have been cured by hearing afforded to him before the Administrative Tribunal. 9 5. In this view of the matter, the petition succeeds. The impugned order is hereby set aside. In the circumstances the matter is remanded back to the Rent Controller for a decision in accordance with law after hearing the parties. The Rent Controller is directed to decide the proceedings within a period of 2 months from the date the parties appear before him. The parties are directed to appear before the Rent Controller on 21st April, 2008. 6. The writ petition disposed of. S. A. BOBDE, J. SMA