1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 549 OF 2008 Shri Ashok Narayan Vernekar ... Petitioner V/s Smt. Umabai Gopinath Kesarkar (dec.) by her heirs (a) Mr. Anant Kesarkar & Anr. .... Respondents Mr. A.D. Bhobe, Advocate for the Petitioner. Mr. Aires Rodrigues, Advocate for Respondents. CORAM : N.A. BRITTO, J. DATE : 13th MARCH, 2009 ORDER : This is a tenant's Writ Petition and is directed against the judgment dated 19/08/2008 of the learned Administrative Tribunal, Panaji, Goa by which the learned Administrative Tribunal upheld the order dated 6/09/2002 of the Rent Controller passed under Section 32(4) of the Goa, Daman & Diu (Lease, Rent and Eviction) Control Act, 1968 (Act, for short), stopping further proceedings and directing eviction of the petitioner. 2. The facts are hardly in dispute. The petitioner is a tenant of the respondent-landlord on payment of a rent of Rs. 150/- per month, regarding which there was never ever any dispute. The petitioner defaulted in payment of the said rent for the first time from October, 1988 as a result of which the respondent was compelled to file a case against the petitioner and, on filing the case, the petitioner deposited the rent and the case was disposed of in 2 terms of Section 22(3) of the Act. The respondent then filed the present eviction application on several grounds including non-payment of rent from July, 1992. As per the respondent, the petitioner had not paid the rent inspite of oral and written demands. The petitioner contested the eviction proceedings stating that the rent claimed was time barred, but, took no steps to pay the said rent either to the respondent or for that matter deposit the same before the Rent Controller. The respondent then filed on or about 1/02/2000 an application under Section 32(4) of the said Act for stoppage of proceedings and for direction to the petitioner to hand over vacant possession of the suit premises. The petitioner filed an application on or about 7/03/2000 stating that the respondent had refused to accept the rent inspite of the same having been sent by the Demand Draft and further reiterating that the respondent was not entitled to recover rent from more than 3 years, as it was time barred. However, the petitioner stated that as a precautionary measure he wished to deposit a sum of Rs.9,450/- up to March, 2000 at the rate of Rs.150/- per month. However, the fact remains that the petitioner did not pursue the said application dated 7/03/2000. In reply dated 4/04/2001, the respondent stated that the petitioner had not sought to deposit the rent. After hearing the parties, the order dated 6/09/2002 came to be made by the learned Rent Controller. The learned Administrative Tribunal took note of the entry in the roznama dated 22/01/2002, by which last opportunity was given to the petitioner to deposit arrears of rent and the petitioner was 3 required to produce challan for payment of rent as on 1/03/2002. The learned Tribunal also took note of subsequent 2 roznamas dated 1/03/2002 as well as 3/04/2002, and noted that the advocate for the respondent was ready to accept the amount, if at all was paid by the petitioner's advocate, who did not make any payment and as enough opportunities were given to the petitioner to do the payment and as the amount was not forthcoming, the learned Rent Controller proceeded to fix the matter on 21/06/2002. Both the parties appeared before the Rent Controller on 21/06/2002 and again on 26/06/2002 and after further dates, the impugned order came to be passed on 6/09/2002. The learned Administrative Tribunal observed that in case the petitioner wished to contest the proceedings, the petitioner was bound to deposit the rent under Section 32(4) read with Rule 7 of the Rules and referring to the case of Smt. Maria Madeira e Fernandes V/s. Vishnu Mahadeo Kanekar (AIR 1987 Bom. 240) came to the conclusion that the petitioner had failed to deposit the rent as required in law, but had come up with the submission that the application filed by the respondent under Section 32(4) did not mention the amount of rent in arrears. The learned Administrative Tribunal then took note of the application filed by the petitioner dated 7/03/2000 and observed that the petitioner himself had sought deposit of Rs.9,450/- as arrears and that nothing had prevented him from making deposit of the sum and inspite of opportunities given to him to deposit the sum, the petitioner failed to deposit the same. Referring to the case of Shri Joao Xavier Pinto V/s Shri Oswald 4 J.C. Velho & 2 Ors. (1990 (1) GLT 116), the learned Tribunal observed that a tenant was 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. The learned Tribunal also referred to the case of E. Palanisamy V/s. Palanisamy (2003 (1) SCC 123), wherein the Apex Court had observed that the rent legislation was normally intended for the benefit of the tenants but the benefits conferred on the tenants can be enjoyed by them only on the basis of strict compliance with statutory provisions and, as such, equitable consideration has no place in such matters and, as the petitioner had not complied with the statutory provisions despite the fact that several opportunities were given to the petitioner, the learned Administrative Tribunal proceeded to uphold the order. 3. Shri Bhobe, learned Counsel on behalf of the petitioner submits that the petitioner was required to be given an opportunity to show cause as to why the proceedings should not be stopped against the petitioner and in support of his submission, Shri Bhobe has placed reliance on Shri Datta Anant Ghadi V/s. Smt. Guilhermina Silveira & Ors. (2000 (1) GLT 39) wherein the Division Bench of this Court has observed that; “Section 22 of the Act is by itself a self contained Code and affords added facility of protection against eviction sought on the ground of non-payment of rent and that too dehors of Section 32.” The learned Division Bench also referred to Section 32(4) of the Act 5 and other judgments of this Court on the subject and held that the word “shall” used in sub-section (4) of Section 32 in the context of the tenant's right to show cause to the contrary, must be read as “may” and as vesting discretion in the Rent Controller, the appellate and the revisional authority, as the case may be, to make an order stopping all further proceedings and directing the tenant to put the landlord in possession of the building only after taking all the facts and circumstances into consideration. The learned Division Bench further observed that having regard to the language of sub- section (4) of Section 32 and to the scheme of the Act, held that the power vested in the Rent Controller and other authorities to stop proceedings and direct the tenant to put the landlord in possession of the building is directory and not mandatory and some of the factors which would be relevant for exercising this power, would be whether the default is for a short period or long period, whether the default is willful or unintentional, whether the default is stray or persistent, whether payment was made at the earliest opportunity or after cantankerous contest, whether the default was bonafide or to harass the landlord; in short, what has to be found is whether in the facts and circumstances of the case, there was reasonable cause for non-payment or deposit of rent within such time as is prescribed. The learned Division Bench also noted that Section 32(1) 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; it was not intended to serve as an 6 order of eviction under Section 22. The learned Division Bench also noted that the Legislature intended to make it mandatory for the Court to put the landlord in possession no sooner the tenant committed default wholly ignoring the circumstances in which it occurred. 4. In my view, the conclusion arrived at by the learned Administrative Tribunal cannot be faulted. Here is the case of a petitioner who appears to be a recalcitrant tenant. The respondent had filed eviction proceedings against him and they came to an end upon payment of rent having made by the petitioner. When for the second time, such proceedings for eviction were filed, also on the ground for non-payment of rent, it was certainly expected of the tenant to deposit the rent or pay it to the landlord immediately. On the contrary, the petitioner first contended that the rent payable had become time barred and, thereafter, he filed an application to deposit the rent but failed to pursue the same. On an application having been filed by the respondent under Section 32(4) of the Act, it was expected again of the petitioner to pay the rent or deposit the same or show some cause why it could not have been paid earlier. In my view, no separate notice was required to be given to the petitioner as contended on behalf of the petitioner, by the learned Counsel. It is in reply to the application under Section 32(4) that the petitioner had to show sufficient cause and either pay the rent or give some explanation regarding its non-payment. That does not appear to have been done, even 7 inspite of several opportunities given to the petitioner, thereafter, which are taken note of by the learned Administrative Tribunal and reproduced herein above and since inspite of several opportunities having been given to the petitioner, the petitioner did not deposit the rent nor paid the same to the respondent nor showed any cause for its non-payment much less a sufficient cause, there was no other option for the authorities to exercise the discretion against the petitioner and to make the order in the manner it has been done. 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) held that there was absolutely no ground on which any discretion could be exercised in favour of the tenant. True, the Act is a piece of beneficial legislation favouring tenants but it can't be an instrument of harassment or oppression to the landlords. The benefits conferred can be enjoyed only on the basis of strict compliance with the statutory provisions. As stated by the Apex Court in Atma Ram V/s. Shakuntala Rani (2005 (7) SCC 211) the Act prescribes the procedure as to what must be done by the tenant if the landlord does not accept the rent. He is required to follow the prescribed procedure and in case the tenant does not, he must be held to be in default. 5. In my view, the orders of the authorities below, considering the facts and circumstances of the case, could not be faulted. This Writ Petition, 8 therefore, deserves to be dismissed and, is hereby dismissed with costs of Rs.5,000/- to be paid by the petitioner to the respondent/landlord. 6. Shri Bhobe on behalf of the petitioner prays that sometime be granted to the petitioner to vacate the premises. Learned Counsel on behalf of the respondents objects. Upon filing an undertaking by the petitioner that the petitioner will vacate the suit premises within a period of two months, the petitioner is granted the said time to vacate the premises. N.A. BRITTO, J. NH/-