http://www.radiogoa.net/schedule.htm
CLAUSE CONFUSION
Landlord gets HC relief after 32-year wait
TIMES NEWS NETWORK
Panaji: For more than 3 decades, he has been seeking eviction of his tenants.
The validity of his application was decided by a division bench of Bombay high
court in his favour recently. The case is now reverted back to the apporpriate
court for deciding it on merits.
The dispute revolved around whether the landlord’s case could be dismissed
because he had not made an application under a particular the Goa Daman Diu
Buildings (Lease, Rent and Eviction) Control Act, 1968.
The case for eviction proceeded from one authority to other and reached the
high court in 2004. The single judge bench found fault in the eviction
application. However, as his ruling was in disagreement with earlier judgment
of another single bench judge, the matter was referred to a larger bench to
detemine the legality involved.
But, stressing upon social realities, a division bench comprising justice S
C Dharmadhikari and justice R C Chavan has observed thus: “The relief cannot be
denied merely because the application does not specifically mention or set out
the sub-clause. It is well settled that the label attached to the application
may be relevant, but it is not decisive. It is the substance of the matter
which is more important than the form.”
The case dates back to 1976, when an application was filed by Thomas Gomes
against Zeitumbi Mohamed before the additional rent controller at Margao. The
application was filed under section 23(1) (a) (i) of the Act. It gives right to
the landlord to apply to the controller for eviction of a tenant, if the
landlord ‘is not occupying a residential building of his own in the city’.
The controller dismissed Gomes’ application in 1989. However, on appeal,
the administrative tribunal, in 1997, directed the tenant to vacate the
premises. Aggrieved by this move, the tenant filed a petition before the single
judge of the high court.
The tenant pointed out that the landlord is the owner of the house in which
he (tenant) resides, but the landlord also has a share in a separate ancestral
house occupied by him. Therefore, the tenant argued, the application cannot be
filed under sub clause (i) of clause (a) section 23 (1) of the Act, but it
should have been filed under sub clause (ii) of that section.
Sub clause (ii) gives the right to the landlord, who has more than one
building in the city, to file an application for eviction of a tenant.
According to the tenant, the landlord should have resorted to sub clause (ii)
of that section. Therefore, he said the application made by landlord under
sub-clause (i) of that section was not maintainable.
A single judge of high court, D G Karnik, observed that if a person is a
co-owner of a house in his occupation, and in that capacity desires to file a
suit for possession of another house not exclusively owned by him and occupied
by a tenant, then sub-clause (ii) of section 23(1) would be attracted. This
order was in disagreement with the judgement of another single judge decided by
the same court in a tenant-landlord case.
The matter, therefore, was referred to a division bench for an appropriate
decision.
Deciding this issue, the division bench of the high court observed that
merely because the landlord is a co-owner of another building in his
occupation, it does not mean that he cannot avail of sub-clause (i) to seek
eviction of a tenant of a building which exclusively belongs to him.
After answering the reference by the single judge, the division bench has
directed that the petition be placed before the appropriate court for hearing
and final disposal on other issues.
================================================================================================================
