Karnataka High Court
B.A. Umashankar, Major S/O Late ... vs Smt. Razia Begum, Zameer, Zaheer Pasha ... on 16 June, 2006
Equivalent citations: 2006(5)KARLJ305
ORDER H.V.G. Ramesh, J.
1. Being aggrieved by the order dated 15.6.05 passed in HRC No. 68/02 by the II Addl. Small Causes Judge, Bangalore in allowing the respondents to re-enter the petition premises after reconstruction as per the provisions of Section 27(2)(h) of the Karnataka Rent Act, 1999, the landlord is before this Court in revision.
2. Heard the Counsel for the petitioner and the Counsel appearing for the respondents.
3. It is the submission of the learned Counsel for the petitioner that although the trial Court has ordered for possession of the petition premises for the purpose of demolition and reconstruction, it has failed to notice the approved building plan wherein the plan is to put up a new building in the entire area of the petition premises and not in 75% of the area. Under such circumstances, the question of reentry does not arise as he is protected under Section 27(2)(a)(e)(f) and (g) of the Karnataka Rent Act, 1999. Accordingly, sought for to modify the order passed by the trial court.
4. Per-contra, the learned Counsel appearing for the respondent has submitted that there is no error or illegality as such committed by the trial Court in passing the impugned order as it is not the stand of the petitioner and no material is produced to that effect.
5. In view of the submissions made, let me consider whether the impugned order passed by the trial Court requires modification?
6. The mandate of Section 27(2)(h) of the Karnataka Rent Act makes it clear that if an order of eviction is passed against the tenant, on such rebuilding to an extent less than 75%, the tenant so dispossessed shall have a right of re-entry as per the new terms of tenancy equivalent in area to the original premises. In the instant case as noted, the approved building plan is for entire area of the petition premises after leaving the set back and also it is the submission that reconstruction be made for the entire area after leaving the set back. Under the circumstances, it cannot be said that the petitioner has planned to put up the construction in the area less than 75% and rather it does not require any evidence or clarification as the approved plan itself is very much clear to that effect. Of course, the trial Court after appreciating the evidence on record has formed an opinion that petition premises is required by the landlord for demolition and reconstruction. Only on the ground that petitioner has admitted in his cross-examination that he is going to create a new lease in favour of the respondents after reconstruction of the building, it has ordered for reentry. However, it is the submission of the learned Counsel for the petitioner that it was a stray admission and the landlord only intended that after reconstruction as per the plan either he will occupy the premises or he would let out for a higher lent. On such stray admission the trial Court ought not to have passed an order of re-entry.
7. The plan itself is very much clear that the construction is for the entire area available to the landlord after leaving the set back. In view of the same, while confirming the order of the trial Court as regards handing over the possession of the petition premises for demolition and reconstruction to the landlord, it is made clear that right of re-entry to the tenant in to the petition premises alter re-construction would not be available to him if the re-construction is made as per the approved plan to more than 75% of the area.
8. Accordingly, petition is allowed. The impugned order of re-entry has been made conditional. However, the tenant shall vacate and hand over the vacant possession of the petition premises to the petitioner within three months from today. Parties to bear their own costs.