1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 77 OF 2009 M/s. Panduronga Timblo Industries, a Partnership firm duly registered under the India Partnership Act, having office at Subhash Timblo Bhavan, Isidoro Baptista Road, Margao, Goa represented by its Partner, Shri Sarvesh Timblo, son of Shri Paramod Timblo, major in age, resident of Aquem, Margao, Goa. .. Petitioners Versus M/s. Cosme Matias Menezes Ltd., a Company registered under the Indian Companies Act, 1956 having its registered office at Rua de Ourem, Panaji, Goa. .. Respondent Mr. Nitin Sardessai, Advocate for the petitioners. Mr. S. M. Singbal, Advocate for the respondent. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE JUDGMENT : 8 th February, 2010 DATE OF PRONOUNCING THE JUDGMENT : 22 nd February, 2010. JUDGMENT : Heard. Rule, returnable forthwith. Taken up for final hearing with consent of the parties. 2 2. The petitioners / original respondents in the applications for eviction under provisions of Section 22(2)(f) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to as 'the Act') have filed this petition under Articles 226 and 227 of the Constitution for quashing the common order dated 18.11.1996 passed in Case No.BLDG/3/ARC-II/91 and Case No.BLDG/4/ARC-II/91 by the Rent Controller- IV, Margao and the common order dated 23/09/2008 passed in Eviction Revision Application Nos. 25 and 26 of 1997 by the Administrative Tribunal, Goa, Panaji, Goa. 3. The respondents therein- owners of flat Nos. 11 and 12 in multi storied building popularly known as 'Elvina' situate at Isidoro Baptista Road, Pajifond, Margao, Goa moved applications for eviction of the petitioners a partnership firm and its partners from the said flats on the ground that they had ceased to occupy the building for continuous period of four months without reasonable cause - a ground available for eviction of the tenant from the rented premises under Section 22(2)(f) of the Act- before the Rent Controller of Goa, South Division at Margao being Rent Application Nos.BLDG/3/ARC-II/1991 and BLDG/4/ARC- 3 II/1991. The pleadings in Rent Application Nos. BLDG/3/ARC-II/1991 and BLDG/4/ARC-II/1991 revealed that the subject matters of the said applications were flat numbers 11 and 12 respectively. The respondents therein joined the issues with their written statements. The written statements revealed that the suit premises referred to in the said applications were in fact flat Nos. 12 and 11 respectively and the rent payable in respect of the said flats were Rs.650/- and 450/- per month respectively. The evidence of the applicants' first witness Josephat Gomes was partly recorded on 30/11/1993. During the course of the cross-examination of the said witness applications for amendments of the said eviction applications were moved on 21.7.1994. It was contended therein that typographical mistakes leading to erroneous description of the flat numbers and rent necessitated the amendments to the applications. Additional details regarding electricity meters were also sought to be incorporated in the eviction applications by the amendments proposed in the said applications dated 21.7.1994. These applications for amendment were resisted with the respective replies dated 25.1.1995. The petitioners / original respondents contended that the proposed amendments were inconsistent with the pleadings and were designed to change 4 the cause of action. After hearing the parties, the learned Additional Rent Controller, Margao turned down the contentions of the petitioners (original respondents) and allowed the amendments to the applications as proposed. 4. This decision of the learned Additional Rent Controller -IV, Margao pronounced vide order dated 18.11.1996 was further assailed in revision petitions preferred before the Administrative Tribunal of Goa at Panaji mainly on the contention that the learned Rent Controller had no power to allow the amendment application as the provisions of Code of Civil Procedure were not applicable. The learned Administrative Tribunal after hearing the parties dismissed the said revision applications with the following observations : “All the discussions herein above show that he has exercised inherent powers in exceptional circumstances as the relevant Acts do not provide for procedure of amendment.” 5. These observations as well as the observations made by the Additional Rent Controller regarding the application of Code of Civil Procedure give rise to two 5 substantial questions of law; firstly whether the provisions of Code of Civil Procedure are applicable to the proceedings before the Rent Controller except as provided by the said Act, and secondly whether the Rent Controller has inherent powers to allow amendments to the pleadings. 6. Taking this Court through the scheme and the relevant provisions of the said Act, rules thereunder, provisions of Mamlatdar's Court and the rules thereunder, learned Advocate Nitin Sardessai for the petitioners argued that in absence of any specific provision regarding amendments to the pleadings and saving of inherent powers neither the Rent Controller nor the Administrative Tribunal could have allowed the amendments to the pleadings as proposed by the respondent/ original applicant in the said eviction applications. Referring to the judgment reported in 1999(1) Goa Law Times 37- Comilo Cardozo Versus Remedio D'Souza and Section 43 and 44 of the said Act, he argued that powers of the Rent Controller and the Administrative Tribunal were/ are well defined and as such the provisions of Code of Civil Procedure do not apply to the proceedings under the Rent Act pending before the Controller. 6 7. For drawing succor to his submissions that freedom of inherent powers supplied to the Code of Civil Procedure, 1908 with Section 151 therein is not available to the authorities other than ordinary civil courts, he cited judgment of the Apex Court reported in (2003)8 SCC 431 - Prakash H.Jain Versus Marie Fernandes. 8. Learned Advocate Singbal for the respondent- Landlord invited the attention of this Court to what had prompted the authorities below, particularly the Administrative Tribunal Goa, to resort to storehouse of the powers inherent in them to do justice between the parties before them, which remained their duty to discharge. This, he submitted, figured in the judgment of the learned Administrative Tribunal, Goa as the prime motivation for endorsing the decision of the Rent Controller in favour of the amendment solicited by the applicant landlord to the eviction applications. Strength to this virtue of doing justice between the parties in the matter concerning the procedural law, he argued, is supplied by the precious words of their Lordship Mr. Justice Krishna Iyer expressed in the judgment reported in 1975 SC 1409 - Pasupuleti Venkateswarlu Versus Motor and General Traders. Besides this, he submitted that there 7 are several judicial pronouncements in relation to cognate legislations namely C. P. and Berar letting of houses and Rent Control Order, 1949, West Bengal Premises Tenancy Act, 1956, U P Urban Buildings (Regulation of letting rent and eviction Act) (13/1972), Haryana Urban Development Authority Act, 1977 and Andhra Pradesh (Lease, Rent and Eviction) Control Act, 1960, Haryana Urban (Control of Rent and Eviction) Act, 1973 supporting this view and proceeded to cite the judgments reported in 1988(1) BOM CR 149 - Mrs. S. V. Kedari and Company and another Versus Mohammad Ibrahim and others, AIR 1986 Punjab and Haryana 313 - Ambica Prashad Versus Devi Mandir, All India Rent Control Journal (IX) - 1984(2) Calcutta 338 S.N.Daga Versus Smt. Anjali Gangopadhyay, AIR 1985 SC 817 Vinitkumar Versus Mangal Sain Wdhera, (2002)2 SCC 256 – Om Parakash Gupta Versus Ranbir B.Goyal. 9. At the outset, it is necessary to explore the genesis of the Rent Controller and, thereafter, the Administrative Tribunal, Goa whose orders are questioned in this petition. Admittedly, the Eviction Applications were moved under the provisions of Section 22 of the Act, a Statute enacted by the Legislative Assembly of Goa, Daman 8 and Diu to provide for the control of rents and evictions in its territory. Thus, it is not difficult to see that the Rent Controller at Margao and Administrative Tribunal at Panaji are creations of a Statute, which are expected to function as per the legislative intent giving birth to the said Statute. Obviously, the said forums are not the Civil Courts, the procedure of which is spelt out in the Code of Civil Procedure, 1908. In this context, the case of Om Prakash Gupta (supra) which dealt with the issue of amendment of pleadings before the Civil Court is of little avail in answering the issue regarding the amendment of pleadings before the Rent Controller, which is not the Civil Court. Status of the authorities under the said Act begs further questions as to the procedure to be adopted by such authorities in discharging their duties under the said Act. 10. Section 43 of the said Act confers the same powers as are vested in a Civil Court under the Code of C.P.,1908, when trying the suit or appeal, upon the Rent Controller in respect of the following matters : “Section 43(a) summoning and enforcing the attendance of any person and examining him on oath; 9 b) requiring the discovery and production of documents; c) issuing commissions for the examination of witnesses; d) any other matter which may be prescribed; and any proceeding before the Controller, the Rent Tribunal and the Appellate Board shall be deemed to be a judicial proceeding within the meaning of sections 193, 219 and 228 of the Indian Penal Code, and the Controller, the Rent Tribunal and the Appellate Board shall be deemed to be civil courts within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.” 11. Thus, to give edge to its judicial authority Section 43 also clothes the Controller with the powers to deal with the false evidence and offences against public justice. Section 44 of the said Act delineates and circumscribes the procedure to be followed by the Controller, the Rent Tribunal, the Appellate Board or the Administrative Tribunal in all enquiries, appeals and proceedings under the said Act in the following words : Section 44 – Procedure – (1) Subject to the provisions of this Act, the procedure to be followed by the Controller, the Rent Tribunal, the 10 Appellate Board, or the Administrative Tribunal in all inquiries, appeals and proceedings under this Act shall be such as may be prescribed. (2) Every decision made or order passed under this Act shall be recorded in the form of an order which shall state the reasons therefor. 12. Section 47 of the Act requires the Appellate and Revisional Authorities to pass orders as are legal and are in accordance with the provisions of the said Act. In short, the Rent Controller and the Administrative Tribunal have to follow the procedure prescribed under the said Act and no deviation from it is expected by the law makers. Taking away of the jurisdiction of the Civil Courts in the matter of questions which are required to be settled, determined or dealt with under the said Act as per the provisions in Section 56 of the said Act is also a pointer to the legislative intent in creation of the said authorities under the Act. 13. Section 58 of the said Act reveals rule making powers of the Administrator to carry out the purposes of the said Act. Sub clause (a) of clause 2 of Section 58 shows that the rules made by the Administrator may provide for the procedure to be followed and the powers that may be exercised by the Controller, Rent Tribunal, Appellate Board 11 and Administrative Tribunal in the performance of their functions under the said Act. Perusal of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules, 1969 made by the Administrator under the said Act reveals that these rules deal with : the manner of giving notice under Section 4(2) of the Act and the particulars to be shown therein, form of the order to be issued under Section 6(1), manner of depositing rent under Section 18(1) and sending copy of the application under Section 18(3), manner of payment or deposit of rent, time within which and the manner of making of deposit of rent under Section 32, conditions for withdrawal of the amount deposited under Section 32(5), procedure to be followed by the Controller, Rent Tribunal and the Appellate Board in all enquiries and proceedings under the Act and powers to be exercised by them, manner of serving notices or orders, procedure for setting aside ex-parte orders, procedure for bringing of L.Rs. of deceased persons, procedure for taking possession of building and procedure for disposal of articles, court fees, copy of the lease deed to be sent to the Controller. Rule 9 therein is the only rule which deals with procedure to be followed in all enquiries and proceedings by the authorities under the Act and the powers to be exercised by them. Sub 12 clause 2 of the said rule is relevant for the purpose of this petition. It reads as under : Rule 9 sub clause (2) – In all enquiries and proceedings commenced on the presentation of an application under sub-rule (1) or under any other provisions of the Act or the rules, the Controller or the Rent Tribunal shall exercise the same powers as the Mamlatdar under the Goa, Daman and Diu Mamltdar's Court Act, 1966, and shall follow the provisions of the said Act as if the Controller or the Rent Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint under section 7 of the said Act. 14. Section 7 of the Goa Daman and Diu Mamlatdar's Court Act, 1966 deals with the issue of treating the informal petitions as plaints. Complete survey of the said Act regulating the powers and procedure in Mamlatdar's Court brings forth no express provision regarding amendments to the pleadings. Section 25 of the Mamlatdar's Court Act indicates that Government has a power to invest the Mamlatdar with such powers of a Civil Court as may be specified for the purposes of the said Act. Nothing has been pointed out to this Court that the Government of Goa had issued any notification in official gazette for investing the Mamlatdar with the powers of dealing with issue of 13 amendments to the pleadings. Thus, it can very well be seen that the law has not conferred any powers either on the Rent Controller or on the Administrative Tribunal to deal with the issue of amendment to the pleadings. 15. Law is thus, silent regarding the procedure to amend the eviction application before the Rent Controller. It can also be seen from the aforesaid analysis of relevant legal provisions that there can be no two opinions regarding the conclusion drawn by this Court previously in Camilo Cardozo's case (supra) that the provisions of C.P.C. do not apply to the proceedings under the Rent Act pending before the Controller. Learned Advocate Singbal for the respondent could not point out that in the cognate legislations relating to the regulation of lease of buildings and control of rents, the provisions as per Section 44 of the Goa, Daman and Diu Building (Lease, Rent and Eviction ) Control Act, 1968 mandating the procedure to be followed by the Controller as prescribed exists/existed. Consequently, the judgments in relation to the cases under cognate legislations have little application in the present case. Learned Administrative Tribunal, Goa, therefore, clearly erred in holding that the Controller has and could exercise the inherent powers 14 available in the civil courts in allowing the amendment applications. Learned Rent Controller, it can be seen also, erred in holding that Code of Civil Procedure can be applied to the Rent Control Proceedings in absence of prescribed procedure in the Act, particularly when Section 44 of the Rent Control Act mandated the Controller to follow the procedure as prescribed under the said Act i.e. the procedure laid down in Goa, Daman and Diu Mamlatdar's Court Act, 1966. 15. In this view of the matter, the present petition must succeed. Orders allowing the amendments to the eviction applications are set aside. Rule is made absolute in terms of prayer clause (a) with no order as to costs. U. D. SALVI, J. SMA