Shri Vasant Anant Naik and his wife and Smt. Simi alias Malcumbi Tari vs Shri Dinar Damodar Alve and his wife and Others

A.P. Lavande, J.—Heard Mr. Naik, learned Counsel for the petitioners and Mr. Lotlikar, learned Senior Counsel for the respondents. By this petition under Article 227 of the Constitution of India, the petitioners take exception to the judgment and order dated 22nd June, 2009 passed by the Administrative Tribunal in Eviction Appeal No.23/2008 allowing the appeal filed against the judgment and order dated 25th February, 2003 passed by the Rent Controller, Margao in BLDG/ARC-I/13/92.

The petitioners filed an application u/s 35 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (''The Act'' for short) on the ground that the respondents had threatened to demolish the bagel like structure which was being used to store firewood, for taking bath, washing utensils and for doing other daily works. The Rent Controller initially granted ad interim relief which was confirmed by the judgment and order dated 25th February, 2003. The Administrative Tribunal has set aside the judgment and order passed by the Rent Controller.

Mr. Naik, learned Counsel for the petitioners submitted that the Tribunal has erred in not appreciating that the respondents themselves have admitted that the structure was being used for essential services and as such, the Tribunal could not have allowed the appeal. The learned Counsel further submitted that the bagel was used for taking bath, washing utensils etc. and as such, the respondents are not entitled to withhold the essential supply of service of the building let out to the petitioners. Learned Counsel further submitted that the finding given by the Administrative Tribunal that the bagel was constructed by the petitioners without taking permission from the respondents and that too after creation of the tenancy, is perverse and as such, liable to be set aside.

Per contra, Mr. Lotlikar, learned Senior Counsel for the respondents has supported the impugned judgment and order and submitted that the Tribunal has recorded the findings of fact based on the evidence led by the parties and as such, no interference is warranted in exercise of jurisdiction under Article 227 of the Constitution of India. Learned Counsel submitted that the application filed by the petitioners purporting to be u/s 35 of The Act itself discloses that the tenancy was created much prior to the construction of the bagel by the petitioners and as such, by no stretch of imagination the bagel can be considered to be the essential service of the building let out to the petitioners.

Having heard the learned Counsel for the petitioners and learned Senior Counsel for the respondents and having perused the record, I am of the considered opinion that no case has been made out for interference with the impugned judgment and order. From the pleadings of the petitioners in the application u/s 35 of The Act, it is evident that tenancy was created much prior to the construction of the bagel, which was constructed somewhere in the year 1980 that too without taking permission from the landlord. Therefore, the finding recorded by the Tribunal that the construction of bagel cannot be considered to be essential service in terms of Section 35 of The Act cannot be said to be perverse warranting interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Mere fact that the petitioners were allowed to use the bagel for some time by the landlord by itself would not make it an essential service for the purpose of Section 35 of The Act. It is also not in dispute that the bagel was constructed by the petitioners in the property of the respondents. Considering the evidence led by the parties, the finding given by the Tribunal that the bagel did not constitute an essential service and as such, the application u/s 35 of The Act was not maintainable, cannot be said to be perverse. Therefore, in my considered opinion, the judgment passed by the Tribunal cannot be faulted. In the result, therefore, I do not find any ground made out for interference by this Court in exercise of supervisory jurisdiction which has to be invoked only in exceptional circumstances. Hence, the petition is dismissed.