1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 187 OF 2009 Guruprasad Raghunath Swar aged 69 years, businessman, r/o H.No.83, Rafael Pereira Road, Alto Comba, Margao Goa, at present c/o Updesh Swar, Flat No.4, Sapana Valley Housing Co-operative Society Ltd., near Adarsh Hospital, Pajifond, Margao Goa. ... Petitioner V e r s u s 1. Mr. Aleixo Fernandes ( since deceased ) (A) Query Fernandes, major in age, (B) Jenet Fernandes, major in age, ( C)Jeoffry Fernandes, major in age, 2. Mrs. Estera Fernandes, housewife, All residing at H.No.82, Alto Comba Rafael Pereira Road, Margao, Salcete Goa. ... Respondents Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Petitioner. Mr. C. A. Coutinho, Advocate for the Respondents. Coram :- A. H. JOSHI, J. Date :- 29 th JULY, 2009. 2 JUDGMENT : 1. Rule. Rule is made returnable forthwith and is heard by consent. 2. This is a petition by the tenant who has suffered the order of eviction of house tenancy under Section 23 of Goa, Daman and Diu Buildings ( Lease, Rent and Eviction ) Control Act, 1968. 3. Heard both learned Advocates. Perused the record, produced with the petition and precedents cited at bar. 4. The landlord claimed eviction on the ground of bonafide personal requirement. 5. The bonafide personal requirement is narrated in the plaint/petition for eviction in para 10 thereof which reads as follows :- “As the premises presently occupied by the applicants and their family are grossly inadequate for the accommodation of the applicants' family, they require the suit premises for their additional accommodation. These premises are required bonafide for their accommodation”. 6. The averment contained in para 10 of eviction petition has been answered by petitioner herein saying that the premises in possession and 3 occupation of landlord are adequate and sufficient to meet the requirement for landlord's family. 7. Certain developments have occurred during the pendency of petition namely, in year 2001 eastern portion of the part of the house occupied by the tenant had collapsed due to heavy monsoons and age of building which was then 82 years. 8. At the tenant's request the building was inspected by municipal authorities. This fact is seen from the petitioner's communication dated 7.7.2003 which is at page 147 and 149 of the petition paper book. 9. It is a common ground and admitted fact that by judicial orders, the tenant was permitted to carry out necessary repairs which he has carried out, and continued to occupy and enjoy the house. 10. The landlord has led own evidence and other witnesses who have been cross examined by the tenant. 11. The Rent Controller has decided the case by judgment and order dated 19.11.2001, who has allowed the application and directed the tenant to vacate the premises. Present petitioner/tenant carried appeal before Administrative 4 Tribunal, which has been registered as Eviction Appeal No. 1/2002. 12. During the pendency of appeal further development occurred namely the house has suffered total collapse except door frames which were embedded in small part of wall which did not collapse, as is seen from photographs which are placed on record by the petitioner – tenant. 13. The landlord filed application before the Administrative Tribunal averring that in view of the collapse of the house and tenanted premises the tenant's appeal had become infructuous, and prayed that the tenant's appeal should be dismissed. 14. The tenant in reply contended that the fact of collapse of the house was an outcome of misconduct of the landlord and, the landlord should not be allowed to take benefit of own wrong and prayed that his appeal should be allowed as due to collapse of house landlord would not be able to occupy the house, and hence the bonafide personal requirement was frustrated. 15. Tenant's appeal has been dismissed by the appellate authority on merits. Tenant has therefore preferred present petition under Articles 226 and 227 of Constitution of India. 5 16. The same points as argued before the appellate authority are reiterated and pressed before this Court urging that the landlord's need – bonafide personal requirement has ceased to exist. He further urges that the existence and continuation of requirement should be taken into account till last moment. He further urges that now landlord should reconstruct the house and give it to the tenant. 17. It is not in dispute that the tenant has vacated the suit premises i.e. has ceased to occupy and has shifted elsewhere. 18. Learned Advocate for the appellant did not cite any judgment and argued based on facts and submissions noted herein before. 19. In reply learned Advocate for the respondent Mr. C. A. Coutinho has placed reliance following judgments :- (i) (2008) 8 SCC 497 in Deep Chandra Juneja V/s Lajwanti Kathuria ( Smt) (Dead ) through Lrs., (ii) 2002(3) ALL MR 824 in Parasmal Chunnilal Chordia V/s The Additional Collector, Amravati & Ors., (iii)(1996) 5 Supreme Court Cases 353 Prativa Devi ( Smt. ) V/s T. V. Krishnan, 6 (iv)2001(4) ALL MR 536 in S. R. Babu V/s T. K. Vasudevan & Ors., (v) 2005(2) ALL MR 320 in M/s Musaji Mohamadali Master & Anr. V/s Mr. Gulamali Dadabhai Amreliwala ( deceased through LRs.) & Ors., (vi)2005(1) ALL MR 193 in Sushilabai W/o Narayan Raut & Ors. V/s Navnit S/o Bhojraj Lakhotiya 20. The judgments and propositions noted herein before do reveal legal position which can be summarized as follows :- (a) Whenever landlord seeks bonafide need of house premises, the landlord has to prove the same. (b) Whenever evidence has brought by landlord, it has to be falsified by the tenant. (c) The landlord is best judge of his need. (d) The need of landlord is landlord's personal perception and perspective, and it is to be objectively seen, and cannot be subjectively scrutinized by the Court. (e) The manner in which additional premises should be used by landlord cannot be dictated by the tenant. (f) Bonafide personal requirement on the date of application will have to be seen. 7 21. On facts of the case, it is seen that the landlord did not pray for eviction urging that the house needs demolition/re-construction it being dilapidated. Collapse of house is an intermittent development, which cannot be used as a weapon of destroying landlord's claim for eviction on bonafide personal requirement. 22. The Rent Controller had held that the landlord was very much in need of premises as the children who were too young and family was growing. 23. The law as applicable does not provide for any consideration such as comparative hardship. The result is obvious, namely once landlord's need proved to be bonafide, the result to follow is the decree for eviction of the tenant. 24. It is further seen that though the tenant has attempted to suggest that the house in occupation of land owner could have been sufficient for him, and that the owner could have managed with available accommodation or who was not in need of additional accommodation. Extent of need is not a matter which can be scrutinized. Tenant has failed to show that bonafide personal requirement did not exist. 8 25. In these premises, it is clear that the petitioner has failed to make out a case for assailing impugned order. 26. In the result, this Court is satisfied that the petition has no merit and it deserves to be dismissed. 27. Rule is discharged with costs. A. H. JOSHI, J. at*