Case Note & Summary
The petitioner, a tenant occupying a shop premises as a library, fell into arrears of rent. The landlord filed eviction proceedings under Section 22(2)(a) of the Goa Buildings (LR&E) Control Act, 1968, which were initially closed. The tenant again defaulted, and the landlord served a notice dated 1-2-1984 claiming arrears from March 1983, then filed another eviction application on 16-3-1984. The Rent Controller dismissed the application on 11-12-2002. The landlord appealed to the Administrative Tribunal on 6-1-2003. The tenant claimed he did not receive notice of the appeal. The landlord filed an application under Section 32(4) of the Act on 7-7-2007, seeking eviction. The tenant replied on 23-7-2007 expressing willingness to deposit rent. The Tribunal allowed the landlord's application and ordered eviction within 45 days. The tenant challenged this order. The High Court found that the notice of appeal was served by affixation at the tenant's business premises (library) after registered post failed, but Rule 10 of the Goa Buildings (LR&E) Control Rules, 1969 requires affixation at the last known place of residence. Since the tenant was not validly served, the Tribunal could not invoke Section 32(4). The court set aside the Tribunal's order and remanded the appeal for fresh hearing after proper service.
Headnote
A) Rent Control - Service of Notice - Rule 10 of Goa Buildings (LR&E) Control Rules, 1969 - Proper Mode of Service - The court held that service of notice by affixation at the tenant's business premises (library) was not valid under Rule 10, which requires affixation at the last known place of residence if service by registered post cannot be made. The Tribunal's finding of valid service was erroneous. (Paras 11-12)
B) Rent Control - Eviction - Section 32(4) of Goa Buildings (LR&E) Control Act, 1968 - Condition Precedent - The court held that the Tribunal could not invoke Section 32(4) to order eviction without ensuring valid service of the appeal notice on the tenant. The tenant's willingness to deposit rent did not cure the defect in service. (Paras 8, 13)
Issue of Consideration
Whether the tenant was validly served with notice of the appeal filed by the landlord, and whether the Administrative Tribunal could invoke Section 32(4) of the Goa Buildings (LR&E) Control Act, 1968 to order eviction without proper service.
Final Decision
The High Court allowed the writ petition, set aside the impugned order of the Administrative Tribunal dated 2-2-2009, and remanded the appeal for fresh hearing after proper service of notice on the tenant in accordance with Rule 10 of the Goa Buildings (LR&E) Control Rules, 1969.
Law Points
- Service of notice by affixation at business premises is not valid under Rule 10 of the Goa Buildings (LR&E) Control Rules
- 1969
- proper service requires affixation at last known place of residence
- Section 32(4) of the Goa Buildings (LR&E) Control Act
- 1968 cannot be invoked without valid service of appeal notice.
Case Details
2010 LawText (BOM) (08) 125
WRIT PETITION NO. 858 OF 2009
Shri Valmiki Menezes for Petitioner, Shri J. P. Mulgaonkar for Respondent
Shri Shabeer Mohamad Aenapure
Shri Bhairao Shripad Natekar
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Nature of Litigation
Tenant's writ petition challenging eviction order passed by Administrative Tribunal under Section 32(4) of the Goa Buildings (LR&E) Control Act, 1968.
Remedy Sought
Petitioner/tenant sought setting aside of the Tribunal's order dated 2-2-2009 directing eviction.
Filing Reason
Tenant claimed he was not served with notice of the landlord's appeal and that the Tribunal erred in invoking Section 32(4) without valid service.
Previous Decisions
Rent Controller dismissed landlord's eviction application on 11-12-2002; Administrative Tribunal allowed landlord's appeal and ordered eviction on 2-2-2009.
Issues
Whether the tenant was validly served with notice of the appeal as per Rule 10 of the Goa Buildings (LR&E) Control Rules, 1969.
Whether the Administrative Tribunal could invoke Section 32(4) of the Act to order eviction without proper service of the appeal notice.
Submissions/Arguments
Petitioner/tenant argued that he was not served with notice of the appeal; service by affixation at business premises was invalid under Rule 10 which requires affixation at last known place of residence.
Respondent/landlord argued that service was validly effected by affixation after registered post failed.
Ratio Decidendi
Service of notice by affixation at the tenant's business premises is not valid under Rule 10 of the Goa Buildings (LR&E) Control Rules, 1969, which requires affixation at the last known place of residence if service by registered post cannot be made. Without valid service, the Tribunal cannot invoke Section 32(4) of the Act to order eviction.
Judgment Excerpts
Rule 10 of the said Rules prescribes the manner of giving or serving notices or orders. Sub-Rule(1) thereof provides that save as otherwise provided in these Rules, every notice under the Act may be served either by tendering or delivering a copy thereof or sending such copy by post by registered post A.D. to the person on whom it is to be served or his authorized agent or if service in the manner aforesaid cannot be made, by affixing a copy thereof at his last known place of residence.
The provisions of sub-rule(1) of Rule 10 show that in case the notice could not be served by registered post A.D., it was required to be affixed at the last known place of residence of the tenant and not at the suit premises.
Procedural History
Landlord filed eviction proceedings under Section 22(2)(a) in 1980, closed under Section 22(3). Landlord filed another eviction application on 16-3-1984. Rent Controller dismissed it on 11-12-2002. Landlord appealed to Administrative Tribunal on 6-1-2003. Landlord filed application under Section 32(4) on 7-7-2007. Tribunal allowed application and ordered eviction on 2-2-2009. Tenant filed writ petition on 20-1-2010, and arrears were paid pursuant to court order.
Acts & Sections
- Goa Buildings (Lease, Rent and Eviction) Control Act, 1968: Section 22(2)(a), Section 22(3), Section 32(4)
- Goa Buildings (Lease, Rent and Eviction) Control Rules, 1969: Rule 10
