Suvarna Shrikrishna Shetye v. Shri Justin Acacio D'Souza alias J.A

through his legal representative Smt. Suvarna Shrikrishna Shetye .... Appellant Vs. Shri Justin Acacio D'Souza alias J.A. D'Souza (deceased) & 2 Ors. .... Respondents Sri J.P. Mulgaonkar for the Appellant. Sri A.D. Bhobe for the Attorney of the Respondent No.1. CORAM: SRI R.M.S. KHANDEPARKAR & SRI S.C. DHARMADHIKARI, JJ. DATED: 29TH JULY, 2008 P.C:

Heard. The appellant challenges the order dated 24-3-2006 2 passed in Writ Petition No.213 of 1999. By the impugned order, the petition filed by the appellant was dismissed.

The appellant is the tenant in respect of house bearing No.E-6- 105, situated at Ansabhat Mapusa, Bardez, Goa, belonging to the first respondent. The original landlord had filed an application for eviction of the appellant on the ground of bona fide personal requirement of the premises for his occupation in terms of Section 23(1)(a) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, hereinafter called as “the said Act”. The Rent Controller by his judgment and order dated 30-8-1993 allowed the application for eviction on the ground of personal requirement of the premises by the original respondent. The matter was carried in appeal before the Administrative Tribunal, without any success and the Tribunal by its order dated 13-4-1998 dismissed the appeal filed by the appellant. Thereupon the appellant challenged the orders passed by the Rent Controller and the Administrative Tribunal by way of Writ Petition No.213 of 1999, which came to be dismissed by the impugned order.

The challenge to the impugned order is mainly on the ground that there is no finding by the fact finding authority about the need of the premises for permanent occupation of the landlord and, therefore, according to the learned Advocate for the appellant, 3 the application could not have been allowed in terms of Section 23(1)(a) of the said Act.

The learned Advocate for the respondent, on the other hand, has sought to raise a preliminary objection about the non- maintainability of the LPA on the ground that the impugned order was passed in exercise of power under Article 227 of the Constitution of India.

Drawing our attention to the decisions of the Apex Court in the matters of Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, reported in (1999) 6 SCC 275 and Mangalbhai and others v. Dr. Radhyshyam, reported in AIR 1993 SC 806, the learned Advocate appearing for the appellant submitted that since the learned single Judge has decided the matter on merits, the appeal is maintainable against the impugned order. As regards the challenge to the impugned order on merits, it is sought to be contended on behalf of the appellant that in the absence of finding by the fact finding authority that the premises in question are required for permanent occupation of the landlord, the decree of eviction could not have been passed against the appellant.

At the outset, it is to be noted that the ground on which the impugned order is sought to be challenged on merits was not raised either before the Rent Controller or before the Administrative Tribunal. In the absence of any specific issue in 4 that regard being raised, there was no occasion for the fact finding authority to give any finding on such an issue. The finding is expected either when the statutory provision requires such finding or when on facts of a case, the parties raise the issue. On the face of it, the Section 23(1)(a) of the said Act nowhere speaks of permanent occupation being the requirement for eviction of the tenant from the tenanted premises, nor the facts pleaded by the appellant raised any issue on the point of requirement of permanent occupancy by the landlord to enable him to get the tenant evicted from the suit premises while invoking the provision under Section 23(1)(a) of the said Act and being so, no fault can be found with the orders passed by the Rent Controller and the Administrative Tribunal, without any finding on the issue of permanency, it is not permissible for the party to raise such an issue, for the first time, in LPA. Considering the same, without addressing to the issue regarding the non-maintainability of the appeal on the ground that the impugned order was passed in exercise of power under Article 227 of the Constitution of India, the appeal is liable to be rejected for the reasons stated above. The appeal is accordingly hereby dismissed in limine. Sd/- Sd/- (S.C.Dharmadhikari, J.) (R.M.S.Khandeparkar, J.) sjs/LPA7-08 5