1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 746 OF 2008 Smt. Uma Thumma, Propprietress, Rex Restaurant, Indira Niwas, Vasco-da-Gama, Goa. .. Petitioner Versus 1. Smt. Indirabai Prabhakar Mahatme 2. Shri Pradeep Prabhakar Mahatme, Indira Niwas, Vasco-da-Gama, Goa. .. Respondents Mr. V. B. Nadkarni, Senior Advocate with Mr. Y. V. Nadkarni, Advocate for the petitioner. Shri. Surendra Dessai, Senior Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE JUDGMENT : 2 nd March, 2010. DATE OF PRONOUNCING THE JUDGMENT : 26 th March, 2010. JUDGMENT : Heard. Rule. Taken up for final hearing pursuant to the order dated 23.7.2009 noted in the farad sheet. 2. The petitioner proprietress of a Restaurant by this petition has thrown challenge to the judgment and order 2 of the Administrative Tribunal, Panaji, Goa dated 25.11.2008 dismissing the Eviction Appeal No.5/2002 preferred against the order dated 31.12.2001 of eviction passed by the Rent Controller in case No.BLDG/ARCV/43/89 directing the petitioner to vacate the suit premises belonging to the respondents. 3. A short question that arises in the present petition is whether enclosing of the open space with the pakka structure having a roof of tin sheets and kitchen platforms therein on the rear side of the leased premises i.e. the suit premises amounts to an act of damage as is likely to impair materially the value or utility of the building as envisaged under the provisions of Goa, Daman and Diu Building (Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to as the Act). 4. Genesis of this question lies in the application under Section 22(2)(c) of the Act moved by the respondents landlords of the building popularly known as Indira Niwas, wherein the said restaurant is situate before Additional Rent Controller, North Goa. The respondents besides alleging internal changes of permanent nature to the suit premises at 3 the hands of the petitioner further alleged that the petitioner / tenant herein holding the suit premises had enclosed the open space at the back of the suit premises covering the well and septic tank situate therein and has further erected kitchen platforms at four different places in the said enclosed space without their consent. These acts, the respondents alleged in their application before the Rent Controller, particularly the acts of enclosing the open space and using the same for business purposes have materially impaired the value and utility of the building, and thus, they remained entitled to seek the eviction of the petitioner from the leased suit premises. 5. The petitioners denied the aforesaid allegations and countered the allegations with the statements that the said premises are in the same condition as they existed since the time of inception of their tenancy in the year 1970 and refusal of the demand for enhanced rent in exchange of permission to carry out regular maintenance work in the suit premises for keeping the suit premises in good habitable condition, had incensed the respondents – landlords and prompted them to move the said application for eviction under the said provisions of the Act. 4 6. Constituted Attorney of the applicants/ respondents herein AW1 - Mr. Yeshwant Bandekar and Manager of Indira Lodge situate in the said building, AW2 – Madhukar Calangutkar gave evidence to substantiate the respondents' case. Constituted attorney and the husband of the petitioner examined himself to counter the respondents' case. Existence of the shed i.e. the enclosed space on the rear side of the suit premises was not disputed by RW1 – Ahmed Rehman – husband of constituted attorney of the petitioner. He explained in his testimony that the said shed has been in existence over since the time of one Yusuf Husain – the person conducting the said restaurant prior to the petitioner being inducted in the suit premises as a tenant. 7. In his cross-examination, RW1 Ahmed Rehman in response to the suggestion that the suit premises were directly taken on lease with NOC from Prabhakar Mahatme – the erstwhile landlord, averred that the erstwhile landlord Mahatme had directly given the lease of the suit premises to him. He added that the said shed was erected by Prabhakar Mahatme. 5 8. The Ld. Rent Controller scrutinised the explanation offered by the petitioner through the evidence of RW1 – Ahmed Rehman regarding the existence of the said enclosed space and dismissed the said explanation with the observation that the petitioner had failed to discharge her burden to prove the existence of the shed ever since the time of Yusuf Husain on account of failure to examine Yusuf Husain or to produce any documentary evidence in support of such explanation. The Ld. Administrative Tribunal, after hearing the parties, concurred with the said observations made by the learned Rent Controller, particularly with reference to the case of Ishwarbai C. Patel Vs Harihar Behare and another reported in AIR 1999 SC 1341. 9. From the evidence adduced on behalf of the respondents – landlords, the blame of enclosing the open space can be said to have been passed on to the petitioner – tenant and it was for the petitioner – tenant to have adduced evidence in rebuttal of the respondents' case. There appears to be no much quarrel over the conclusion drawn by the respective authorities below regarding the construction of the enclosed space on the rear of the suit premises. However, learned Advocate Nadkarni for the petitioner 6 invited the attention of this Court to the fact that the said open space was not the part of the let out premises, and as such, he argued, the act of enclosing the said open space cannot be termed as an offending act materially impairing the value or utility of the building as envisaged under the provisions of the said Act, particularly the provisions of Section 22(2)(c) r/w. Section 2(e) of the Act. 10. Obviously, the open space is not the leased premises. Section 22(2)(c) of the Act deals with the act/s of the tenant, which is likely to impair materially the value or utility of the building. Section 2(e) of the Act defines the word 'building' as under : “Building” means any building, or part of a building, which is, or is intended to be, let separately for use as residence or for commercial use or for any other purpose, and includes - (i) the garden, ground and outhouses, if any, appertaining to such building or part of the building;....... ” 11. Going by the evidence of AW2 Calangutkar as well as of RW1 Ahmed Rehman, enclosed space touching the suit premises on its rear side can be very well regarded as 7 space from the ground appertaining to the let out premises. Definition of the word 'building', going by the plain words, brings within its fold the said enclosed space. What remains, therefore, to be seen is whether the act of covering the said space was/ is likely to impair the value or utility of the said space. 12. Learned Advocate Nadkarni for the petitioner relying on the Kishor Khaitan Vs. Pravin Singh's case reported in AIR 2006 SC 1474 submitted that the entire approach of the Courts / authorities below to the question posed in the case was improper, and as such the findings of fact following such erroneous approach cannot be said to be one rendered with jurisdiction; and as such would be amenable to correction at the hands of the High Court under Article 227 of the Constitution. He further submitted that the offending construction should be of such a nature as to substantially diminish the value of the building either from commercial view or from the utilisation aspect of the building and this decrease in quality, strength, and value ought to be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the change is made. He further submitted that in the 8 absence of evidence of material impairment of value or utility, it cannot be inferred that the value or utility had been diminished, and in such condition no decree for eviction can be passed. He added that the burden of proving the material impairment is on the landlord and in the present case, the respondents had failed to discharge this burden of proof. To fortify the submissions, he placed reliance on the following judgments : (i) Ompal Vs. Anand Swarup ; 1998 (4) SCC 545 (ii) British Motor Car Company Vs. Madanlal; 2005(1)SCC8 (iii) Gurubachan Singh Vs. Shivlak Industries; AIR 1996 SC 3057 (iv) Waryam Singh Vs. Baldev Singh; 2003(1)SCC 59 (v) Hari Rao Vs. N. Govindachari ; 2005(7)SCC 643 (vi) Rafat Ali Vs. Sugni Bai; 1999(1)SCC 133. 13. Answering these submissions, learned Advocate Dessai for the respondents/ landlords submitted that in exercise of its jurisdiction under Article 227 of the Constitution, the High Court cannot convert itself into a Court of Appeal, and can neither review nor re-appreciate nor reweigh the evidence upon which the determination of the subordinate Court or the Tribunal purports to be based or to correct errors of facts or even of law, and to substitute its 9 own decision for that of the inferior Court or Tribunal. In support of his submissions, he relied on the judgments of the Hon'ble Apex Court reported in 1975(1) SCC 858 – Bathutmal Raichand Oswal Vs. Laxmibai R. Tarata, 2003 (6)SCC 641-- State Vs. Navjyot Sandhu, 2008(9) SCC 1- Samshad Ahmad Vs. Tilak Raj Bajaj. 14. Submissions made by the rival camps warrant examination of the issue involved in the present writ petition with a view to only find out whether the findings of the authorities below are arbitrary or perverse. In this context, learned Advocate Nadkarni for the appellant submitted that failure of the respondents to personally examine themselves or either of them rendered the evidence in support of the findings infirm and the respondents could not have examined its constituted attorney in support of their case. In the given situation, learned Advocate Nadkarni for the appellant argued that there is no evidence to support the findings, and as such the findings of the authorities below are arbitrary and are required to be set aside in exercise of the jurisdiction under Article 227 of the Constitution. Learned Advocate Dessai for the respondents submitted that the procedure before the Rent Controller as prescribed by Section 44 r/w. 10 Rule 9 under the said Act is the one governed by the Goa, Daman and Diu Mamlatdar's Court Act, 1966 and it is not mandatory under the Mamlatdar's Court Act to examine the plaintiff unless it is felt necessary by the Mamlatdar or for that matter ( Rent Controller ) to examine the plaintiff upon oath where the plaint does not contain particulars specified in Section 7 of the Mamlatdar's Court Act and for that matter under Rule 9 under the said Act. He further placed reliance on the judgment of the Single Bench of this Court in Humberto Luis & Anr. Vs. Shri Floriano Armando Luis & Anr. reported 2000(2)BCR 754. Reacting to these submissions, learned Advocate Nadkarni for the appellant cited judgment of the Hon'ble Apex Court in Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and Ors. Reported in 2005(1) Mh.L.J. 1170 and pointed out that the view taken in the case of Floriano Armando Luis case (supra) is no longer a good law. 15. The Hon'ble Apex Court did overrule the judgment in Floriano Armando Luis's case (supra) and endorse the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shashtri Vs. State of Rajasthan reported in 1986(2) WLN 713. The Hon'ble Rajasthan High 11 Court in the case of Shambhu Dutt Shastri held that general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party (in the capacity of the plaintiff). In substance, it means, the evidence of the constituted attorney (General Power of Attorney holder) cannot take the place of the evidence of his principal (the plaintiff) as all that is worthy in the evidence of an individual is what is within his or her personal knowledge. What remains, therefore, to be seen is whether the procedure under the said Act required the plaintiff to step in to the box. Reading of Section 44 and Rule 9 of the said Act points out that the proceedings before the Rent Controller are governed by the rules under the said Act and by Mamlatdar's Court Act, 1966. The plaint or the application under the said Act is expected to contain the particulars as stated in Rule 9 sub clause (1) of the said Act only when such plaint does not contain particulars specified or is otherwise defective. The Rent Controller, as Mamlatdar under Mamlatdar's Court Act remains under obligation to examine the applicant upon oath only in order to ascertain from him or her such of the particulars required by law to be incorporated in the application otherwise it is not incumbent for the applicant to examine himself/ herself personally in 12 support of the application under the provisions of the said Act/ rules or the Mamlatdar's Court Act. What is required to be assessed in the case of non-examination of the applicant is whether the evidence adduced on behalf of the applicant before the Rent Controller is worthy of supporting the case of the applicant or not. It is from this view point that one has to assess the worth of the evidence adduced on behalf of the respondents/ applicants before reaching a conclusion regarding the basis of findings reached by the authorities below. 16. Learned Rent Controller, after considering the written arguments of the rival parties taken on record and taking into account the evidence of the rival parties, reached a finding that admittedly the shed behind the leased premises in the open space existed and this encroachment amounted to an act of damage which impaired materially the value and utility of the building. Learned Administrative Tribunal, Goa, upon entering into the discussion on the rival submissions, held as under : “Discussions held hereinabove amply revealed that construction of the shed is not temporary and is pakka construction. It is covering the open 13 space moreso well and the septic tank. This definitely impairs materially the value and utility of the building in the light of the facts and findings....” 17. Learned Advocate Nadkarni for the appellants emphasizing the need for the reasons in the judgments submitted that the impugned judgments lack the requisite reasons and as such there was denial of justice. There can be no dispute with the proposition that right to reason is an indispensable part of sound judicial system and failure to give reasons amounts to denial of justice, as reiterated by the Hon'ble Apex Court in the judgment reported in 2007 AIR SCW 1692 – UOI Vs. Jaiprakash Singh. In the words of the Hon'ble Apex Court, the reasons can be understood as a live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. A thought of the decision taker which drives the decision to surface in the judgment must, therefore, be sufficiently revealed in the judgment so as to indicate an application of mind to the matter before the judicial forum. It is correct that elaborate reasoning is not expected as per Section 19 of the Mamlatdar's Courts Act but it expects brief reasons. Sec. 44(2) of the said Act mandates stating of 14 reasons for every decision. 18. Evidence of AW1 Bandekar, AW2 – Calangutkar and RW1 Ahmed Rehman reveals existence of a pakka shed with kitchen platforms and asbestos sheet's roof and iron grills standing on the open space on the rear side of the leased premises. There is also evidence of the fact that it covered a well and septic tank. These very facts as can be seen from the judgments of the authorities below were seen as an act of damage on the part of the petitioner – tenant which has impaired materially the value and utility of the building. Expression of this vital thought, which had prompted the decisions before the authorities below in favour of the respondents is very much apparent in the impugned judgments. It is, therefore, difficult to say that the impugned judgments lack reasons. 19. In Waryam Singh's case (supra), the Hon'ble Apex Court held that an order for eviction can be passed only if the landlord proves (a) the tenant had carried out the construction (b) that the same was without the consent of the landlord and (c) that the value and utility had been materially impaired. On facts, the Rent Controller negatived the 15 defence of the petitioner / tenant that the shed on the open space behind the leased premises has been existing from the time suit premises were leased to her and proceeded to hold her guilty of the encroachment on the open space behind the leased premises. The Appellate Administrative Tribunal, therefore, did not interfere with the said findings of the fact on the point Nos.1(a) and 1(b) hereinabove. As regards the finding on the point 1(c), it can very well be seen from the evidence that the respondents had led no evidence on the point of material impairment of the value of the said open premises as a result of construction of pakka structure thereon. The matter of valuation certainly cannot be left to any inference but as regards the material impairment of utility, one can look into the evidence to find out whether the act of enclosing the open space has materially impaired its utility, particularly in facts and circumstances of this case. 20. In the Waryam Singh's case, as can be seen from para 6 therein, the verandah which was part of the let out shop was enclosed and a question arose as to whether enclosing the verandah would amount to impairing materially the value or utility of the shop. In absence of evidence on the point of reduction in value and utility of the shop as a result 16 of the said enclosure of verandah, submissions that no evidence was required to be led on the said aspect as it is to be inferred, did not find favour with the Hon'ble Apex Court. In the present case, the structure- offending construction has been erected on the premises appurtenant to the let out premises which were expected to be left open and wherein well and septic tank used commonly were situate. 21. The aforesaid discussion completely demonstrates how facts shape the course of justice. This is also evident from the Waryam Singh's case wherein the Hon'ble Apex Court distinguished the case of Vipinkumar (Vipinkumar Vs. Roshanlal Anand and Ors.; (1993) 2 SCC 614) from the one at hand on the factual matrix. Only thing of material importance as pointed out by learned Advocate Dessai for the respondents from Vipinkumar's case is the premise that the impairment of value and utility of the building is from the point of landlord and not of the tenant and whether the value or utility of the building has materially been impaired is an inferential fact to be deducted from the proved facts. This necessity of proved facts is found quoted in different words in the judgment delivered by the Hon'ble Apex Court in the case of Hari Rao Vs. N. Govindachari and 17 Ors.; (2005) 7 SCC 643 while dealing with the facts in the said case. In Hari Rao's case, the tenant switched over from his business of leather goods to ready made garments and for the purposes of his trade fixed new racks by making holes in the floor and walls and in the beam. It is in this context, no other proved facts demonstrating the material impairment either in the value or utility of the building was adduced by the landlord. The Hon'ble Apex Court, thereupon, commented that in the absence of any other material, it cannot be said to be the commission of acts of waste as are likely to impair materially the value and utility of the building. 22. Perusal of the judgments delivered by the Hon'ble Apex Court in Om Pal Vs. Anand Swarup; 1998(4) SCC 545, British Motor Car Co. Ltd. Vs. Madanlal ;(2005)1 SCC 8, Gurubachan Singh Vs. Shivlak Industries; AIR 1996 SC 3057, Rafat Ali Vs. Sugni Bai and Ors; (1999)1 SCC 133 further highlights the importance of proved facts showing material impairment either of the value or utility of the building. In Rafat Ali's case, the Hon'ble Apex Court did observe that all acts of waste do not amount to a ground for eviction and only those acts of waste which would very probably impair 18 the value of the building or its utility would justify the eviction. This observation brings forth the understanding of the word 'likely' in the relevant provision as a condition which is reasonably probable that such acts would cause impairment of the value or utility of the building. 23. Equally important are the observations made by the Hon'ble Apex Court while interpreting Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act which is akin to Section 22(2)(c) of the said Act in a case of Gurubachan Singh Vs. Shivlak Rubber Industries and others in the following terms : “A plain reading will go to show that it contemplates that the tenant is liable to his eviction, who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression 'to impair materially' in common parlance would mean to diminish in quality, strength or value substantially. In other words to make the thing or substance worse or deteriorate. The word 'impair' cannot be said to have a fix meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term 'impair materially' has been used to mean considerable 19 decrease in quality, which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after alleged change is made or fact suggesting impairment. Further the use of the word 'value' means 'intrinsic worth of a thing'. 24. Keeping these precious words of the Hon'ble Apex Court in view, one has to look for arbitrariness or perversity in the impugned judgments. Evidently, the proved facts are (i) construction of a shed on open place appurtenant to the leased premises without the consent of the landlord (ii) construction of the shed covering area where well and a septic tanks existed. The proved facts in this case are so gross and bold that there can be no other inference than that of substantial reduction of utility of the open space appurtenant to the said building, particularly the space appurtenant to the let out premises, even without landlords' averment. Virtually covering up of the open space amounts to complete denial of its use as a open space. No arbitrariness or perversity is, therefore, noticeable in the impugned judgments. 25. The writ petition is dismissed. Rule is, therefore, discharged with costs. Execution of the impugned orders be 20 stayed for 10 weeks subject to regular deposit /payment of rent of the suit premises. U. D. SALVI, J. SMA