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Judgment
A.P. Lavande, J.—Heard the learned advocates for the parties and Mr. Lotlikar, learned Senior Advocate who has been appointed as Amicus Curiae. The common question which arises for consideration in all these petitions is whether the Authorities under the Goa Daman and Diu Buildings (Lease Rent and Eviction) Control Act, 1968 (''The Act'' for short) have jurisdiction to grant an application for amendment in the proceedings filed under The Act. I do not deem it necessary to refer to in detail the facts in each of the petitions in view of the limited controversy involved and the order which I propose to pass.
The learned Single Judge (U. D. Salvi, J.) of this Court in the case of M/s. Pandurang Timblo Industries Vs. M/s. Cosme Matias Menezes Ltd.; CDJ 2010 BHC 541 held that the Rent Controller has no jurisdiction to allow the amendment application filed by the respondent in the proceedings u/s 22(2)(f) of The Act. Consequently, the learned Single Judge allowed the petition and quashed the order passed by the Rent Controller allowing the amendment application and the order passed by the Administrative Tribunal dismissing the revision preferred against the order passed by the Rent Controller allowing amendment.
Mr. Lotlikar, learned Amicus Curiae, Mr. J. E. Coelho Pereira, Mr. K. Kerkar, Mrs. Agni, Mr. G. R. Usgaonkar, Mr. A. D. Bhobe and Mr. Pangam submitted that the judgment passed by the learned Single Judge in the case of M/s. Pandurang Timblo Industries (supra) does not lay down the correct law and the same requires reconsideration and, therefore, reference be made to the Larger Bench for reconsidering the said judgment.
Mr. V. Menezes and Mr. Rodrigues supported the view taken in the case of Pandurang Timblo Industries (supra).
In the case of Pandurang Timblo Industries (supra), the learned Single Judge of this Court allowed Writ Petition quashing the order passed by the Rent Controller allowing the amendment application which order was upheld by the Administrative Tribunal exercising revisional jurisdiction. Learned Judge in support of his conclusion that the Rent Controller had no jurisdiction to allow the amendment application placed reliance upon Sections 43, 44, 47 and 58 of The Act. Learned Single Judge also placed reliance upon Rule 9 Sub-clause 2 of the Rules framed thereunder and Section 7 of the Goa, Daman and Diu Mamlatdar''s Court Act, 1966 (''The Act of 1966''). Learned Judge further held that the provisions of CPC do not apply to the proceedings under The Act and consequently, allowed the Writ Petition.
I do not deem it necessary to refer to the submissions made by each of the learned Counsel, who urged that the judgment in the case of Pandurang Timblo Industries (supra) does not lay down the correct law and as such, the same requires to be reconsidered by the Larger Bench by making reference.
In support of their contention that the judgment in the case of Pandurang Timblo Industries (supra) does not lay down the correct law the learned Counsel made the following submissions :
(i) The Authorities under The Act are created to deal with the disputes between the landlord and tenant and such forum is created to adjudicate the disputes between the landlord and tenant and if the Authorities under The Act are not given power to amend the application or reply, the very purpose of enacting the law would be defeated.
(ii) Power to amend which is an incidental power is vested in the Authorities under The Act to avoid multiplicity of the proceedings.
(iii) The findings recorded by the Authorities under The Act in the proceedings between the landlord and the tenant are final and binding on the parties thereto and operate as res judicata.
(iv) Though no specific provision is made for allowing the amendment of the applications/ replies filed under The Act, there is no specific provision in The Act ousting the jurisdiction of the Authorities.
(v) Learned Judge has referred to Section 7 of The Act of 1966, but has not referred to Section 8 of The Act of 1966 which permits the examination of the plaintiff upon oath.
(vi) The Tribunal being a judicial body has all incidental and ancillary powers which are necessary to make fully effective express grant of statutory powers.
(vii) The Courts and the Tribunals are created to give justice to the parties within the confines of the statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish effectiveness and defeat the very purpose for which they are constituted.
(viii) There is long standing practice in the State of Goa of the Authorities under The Act permitting amendment of the applications/ replies filed under The Act and there is no reason to depart from the same.
(ix) The Administrative Tribunal which is the Appellate/ Revisional authority under The Act has all the powers vested in Civil Court under The CPC and as such the Authorities under The Act do have jurisdiction to allow amendment of application/ reply.
In support of their submissions, the learned Counsel relied upon the following judgments :
(i) Union of India and another Vs. Paras Laminates (P) Ltd., .
(ii) Chief Executive Officer and Vice-Chairman, Gujarat Maritime Board Vs. Haji Daud Haji Harun Abu and Others, .
(iii) S.M. Banerji Vs. Sri Krishna Agarwal,
(iv) A-1 Co-operative Housing Society Ltd. and another Vs. R. Jaikishan and Co. and others; 2005 (1) Bom. C.R. 50.
(v) Padmaranjana w/o Arunkumar Vs. Dilip s/o Ramrao Tote and Another; (2003) 2 BCR 750.
Per contra, Mr. Menezes, learned Counsel appearing for the petitioner in W.P. No. 3/2011 supported the view taken by learned Single Judge in the case of Pandurang Timblo Industries (supra) and submitted that the view taken by the learned Single Judge is the correct one and as such, there is no justification for making a reference to Larger Bench. Mr. Menezes invited my attention to the findings given by the learned Single Judge in the case of Pandurang Timblo Industries (supra) and submitted that the findings given therein have been arrived at upon proper interpretation of the provisions of The Act. Mr. Menezes submitted that the learned Single Judge has rightly placed reliance upon the Division Bench judgment of this Court in the case of Comilo Cardozo Vs. Remedio D''Souza 1999 (1) GLT 37 and has come to the conclusion that no application for amendment can be filed under The Act. Mr. Rodrigues also adopted the submissions made by Mr. Menezes.
Mr. Tamba, learned Counsel who argued the matter with the leave of the Court submitted that the learned Single Judge addressed himself only to two questions namely whether the provisions of CPC are applicable to the proceedings before the Rent Controller except as provided by The Act and whether the Rent Controller has inherent power to allow the amendments to the pleadings. According to Mr. Tamba, the learned Judge did not consider whether the Rent Controller has incidental and ancillary powers to allow the amendment for the purpose of doing justice between the parties. Learned Counsel further submitted that the Rent Controller has incidental and ancillary powers of allowing amendment of the applications/ replies for the purpose of doing justice between the parties although there is no express provision in The Act or Rules framed thereunder. In support of his submissions, Mr. Tamba, relied upon the judgment of the Apex Court in case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others; 1980 (Supp) SCC 420.
The question, therefore, which arises for consideration is whether the Authorities under The Act have jurisdiction to allow the amendment of the applications/ replies filed in the proceedings under The Act.
As already stated above, the learned Single Judge formulated the following two questions for consideration :
(i) Whether the provisions of CPC are applicable to the proceedings before the Rent Controller except as provided by the said Act?
(ii) Whether the Rent Controller has inherent power to allow amendment to the pleadings ?
The learned Single Judge, after considering the provisions of The Act and The Mamlatdar''s Court Act, 1966 came to the conclusion that the provisions of CPC except those which are specifically made applicable u/s 43 of The Act, are not applicable and further held that the Rent Controller has no inherent power to allow the amendments to the pleadings. For the purpose of arriving at this finding, the learned Judge placed reliance upon Sections 7 and 25 of The Act of 1966 and held that the Administrative Tribunal had erred in holding that the Rent Controller had inherent jurisdiction to allow the amendment application. In my considered opinion, the finding of the learned Single Judge that all the provisions of CPC except as provided under The Act are not applicable cannot be faulted. Similarly, the finding of the learned Single Judge that the Rent Controller has no inherent power to allow amendment to pleadings also cannot be faulted. However, the question as to whether jurisdiction to allow the amendment is ancillary or incidental power vested in the Tribunal, has not been addressed to by the learned Single Judge. I have come across several judgments in which the Authorities under The Act, after placing reliance upon the judgment in the case of Pandurang Timblo Industries (supra), have held that the Authorities under The Act have no jurisdiction to allow the amendment application. This being the position, I deem it appropriate to consider whether the judgment in the case of Pandurang Timblo Industries (supra) requires to be reconsidered by referring the issue to a Larger Bench.
In the case of Paras Laminates (P) Ltd. (supra), Excise and Gold Appeal Tribunal (CEGAT) held that the Tribunal functions as a Court within the limits of its jurisdiction. It has all the powers conferred expressly by the Statute. Further more, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective express grant of statutory powers. Certain powers are recognised as incidental and ancillary not because they are inherent in the Tribunal nor because its jurisdiction is plenary, but it is the legislative intent that the power expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The Supreme Court relied upon the following passage from Maxwell on Interpretation of Statues (11th edition) :
Where the Act confers a jurisdiction, it impliedly also grants power of doing all such acts or employing such means as are essentially necessary to do its execution.
In the case of Haji Daud Haji Harun Abu (supra), the Apex Court while dealing with the powers of the National Commission under the Consumer Protection Act held that whenever the substantive power is conferred upon the Court or Tribunal, all incidental and ancillary powers necessary for an effective exercise of substantive power have to be inferred. The Apex Court placed reliance upon the judgment of the Apex Court in the case of Khyerbari Tea Co. Ltd. and Another Vs. The State of Assam, . The Apex Court also referred to the following Rule quoted in Craies :
One of the first principles of law with regard to the effect of an enabling Act is that if a legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purpose in view.
In the case of S. M. Banerji (supra), The Apex Court was dealing with the powers of the Tribunal under The Representation of People Act, 1951 to allow amendment to the election petition. The Tribunal had allowed the amendment which was set aside by the High Court. In Paragraph 12, the Apex Court held that the Courts and Tribunals are constituted to do justice to the parties within the confines of statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the purpose for which they are constituted. The same well settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal.
In the case of R. Jaikishan (supra), the learned Single Judge of this Court was considering whether the Co-operative Court exercising jurisdiction u/s 91 of the Maharashtra Co-operative Societies Act, 1960 has power to allow amendment of the pleadings. The learned Single Judge has held that although The Act restricts applicability of the provisions of CPC only in relation to the enforcement of the attendance of the witnesses and recording of evidence, oral or documentary, it cannot be said that the provisions of CPC would not apply even in a case where the Act or the Rules are totally silent. Learned Single Judge further held that the Tribunal or Quasi Judicial Authority does not have an inherent power which is available to the Civil Court u/s 151 of C.P.C. The learned Single Judge further held that in the absence of specific provision in the Maharashtra Co-operative Societies Act and the Rules framed thereunder regarding amendment of the pleadings, the provisions of CPC in that regard will have to be applied and the Co-operative Courts have jurisdiction to allow the amendment of the dispute u/s 91 of the Co-operative Societies Act or the written statement if it is necessary for the purpose of determining the real question and controversy between the parties. Learned Single Judge further held that avoidance of multiplicity of proceedings is also one of the relevant considerations.
In the case of Padmaranjana Arunkumar (supra) the learned Single Judge of this Court while dealing with the challenge to an order passed by the Appellate Authority under The C. P. and Berar and Letting of Premises and Rent Control Order, 1949 by which the Appellate Authority had allowed respondent no.1 to amend his written statement, held that the Rent Control Order did not make elaborate procedural provisions in order to make the provisions of C.P.C. applicable to the proceedings before the authorities under The Rent Control Order and upheld the order passed of amendment on the ground that there has been a long standing practice of Rent Controller to entertain the application for amendment of pleadings, which are of necessity either were allowed or rejected by the Rent Controller by an order.
In the case of Grindlays Bank Ltd.(supra) relied upon by Mr. Tamba, the Apex Court held that the Industrial Tribunal constituted under the Industrial Disputes Act has power to set aside the ex-parte award on being satisfied that there was sufficient case within the meaning of Order IX Rule 13 of C.P.C. The Apex Court held that the Tribunal or Body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties. The Apex Court further held that although there was no express provision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to set aside its ex-parte award, the Tribunal should be considered as having been conferred with the incidental or ancillary powers unless there is any indication of the Statute to the contrary.
What emerges from the various authorities referred to above is that the Tribunal which is invested with limited jurisdiction has incidental and ancillary powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties. No doubt, Section 43 of The Act only confers certain powers vested in a Civil Court under C.P.C. on the Authorities under The Act and Section 44 prescribes the procedure which is as per the Mamlatdar''s Court Act, 1966. Neither The Act nor The Act of 1966 specifically excludes the jurisdiction of the Authorities under The Act to allow the amendment of the applications/replies filed under The Act. Therefore, in my considered opinion, the Authorities under The Act, have power to allow the amendment which power is to be considered as incidental and ancillary power vested with the Authorities under The Act for the purpose of doing complete justice between the parties.
There is one more aspect which has not been considered by the learned Single Judge in the judgment in the case of Pandurang Timblo Industries (supra) is the Goa Administrative Tribunal Act, 1965. The Administrative Tribunal which has been constituted under the Goa Administrative Tribunal Act, 1965 is conferred with the appellate and revisional jurisdiction under Sections 45 and 46 of The Act. By notification dated 31st December, 1976. The State Government has framed rules i.e Goa, Daman and Diu Administrative Tribunal (Powers of Civil Court) Rules 1976. Rule 2 of the said Rules reads thus :
Tribunal to have powers of Civil Court - The Tribunal shall in exercising its original, appellate or revisional jurisdiction in any application, petition, appeal or other proceedings filed before it, have all the powers which are vested in a Civil Court under the Code of Civil Procedure, 1908.
Thus, in view of the Rule 2 of the Rules of 1976, the Tribunal has been invested with all the powers which are vested in Civil Court under C.P.C. Obviously, therefore, the Tribunal functioning as the appellate or revisional authority under The Act has power to allow amendment in terms of Order VI, Rule XVII of C.P.C. It is, therefore, incongruous that the Administrative Tribunal which is the appellate and revisional authority under The Act has jurisdiction to allow the amendment application, but the Rent Controller would have no jurisdiction to allow such an amendment application. Therefore, it would be appropriate to conclude that under The Act even the Rent Controller would have jurisdiction to allow the application for amendment of the application or the reply.
In so far as reliance placed by Mr. Menezes, upon the judgment in the case of Comilo Cardozo (supra) is concerned, in my considered view, the said judgment does not advance the case of the petitioner in W.P. No. 3/2011. In the said case, the Division Bench of this Court held that the proceedings before the Rent Controller are governed by the Act of 1966 and the provisions of C.P.C. do not apply to the proceedings under The Act. The issue as to whether the Rent Controller has incidental or ancillary powers to grant amendment was not the issue before the Division Bench. Therefore, in my considered view, the judgment in the case of Comilo Cardozo (supra) cannot be construed as laying down that the Authorities under Act have no jurisdiction to allow the amendment application or reply filed in the proceedings under The Act.
The Apex Court in the decisions referred to above has constantly held that the Tribunal constituted under The Act has all the powers which are incidental or ancillary. Such powers are implied and the implied grant is limited to the express grant and the Tribunal can employ all such means as are reasonably necessary to make the grant effective. Moreover, the Administrative Tribunal which is the Appellate/ Revisional Authority under The Act has been specifically conferred with all the powers which are vested in a Civil Court under The Civil Procedure Code. In addition, it has been the long standing practice of all the Authorities under The Act to allow amendment of the applications and the replies filed under the Act. Therefore, in my view, the judgment in the case of M/s. Pandurang Timblo Industries (supra) does not lay down the correct law and as such requires to be reconsidered by the Larger Bench.
For the reasons stated hereinabove, I am in respectful disagreement with the view taken by the learned Single Judge in the case of M/s. Pandurang Timblo Industries (supra) that the Rent Controller has no jurisdiction to allow the amendment application. I, therefore, deem it appropriate to refer the following issue for consideration by a Larger Bench :
Whether the Authorities under the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 have jurisdiction to allow the amendment of the applications/ replies filed in the proceedings under The Act ?
The Registrar (Judicial) to place the matters before the learned Chief Justice for passing appropriate orders in terms of Rule 7 of Chapter I of Bombay High Court Appellate Side Rules, 1960.