Karnataka High Court
Smt. P. Vatsala Upadhya And Ors. vs Srikanth Keshav Raikar on 1 December, 2003
Equivalent citations: ILR2004KAR1637
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. These two Revision Petitions under Section 46(1) of the Karnataka Rent Act, 1999 ('New Act1 for short) is by the two tenants in H.R.C. No. 673/1999 and 789/1999 pending on the file of the 2nd Additional Small Causes Judge, Bangalore, aggrieved by the order dated 28th January 2003 passed on LA. Nos. 9 and 11 filed under Section 2(3) (g) read with Section 70(2) (C) of the New Act.
2. "Heard the Learned Counsel for all the parties.
3. The respondent is a common landlord in H.R.C. No. 673/1999 and 789/1999. Both the cases are pending on the file of the 2nd Additional Small Causes Judge, Bangalore. The Landlord had filed the above said two H.R.C. cases in the year 1999 when the Karnataka Rent Control Act, 1961 ('Old Act' for short) was in force.
4. During the pendency of the H.R.C. Petitions, the Old Act was repealed under Section 70 of the New Act. Notwithstanding such repeal of the Old Act, in terms of the Clause (b) of Sub-section 70 all cases and proceedings other than those referred to in Clause (a) pending at the commencement of the New Act before the Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which the New Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, Court, District Judge or the High Court or other authority in accordance with the provisions of the New Act and all other cases and proceedings pending in respect of premises to which the New Act does not apply shall as from the date of commencement of the New Act stand abated in terms of Clause (c) of Sub-section (2) of Section 70 of the New Act.
5. The tenants in both the H.R.C. Petitions have filed I.A. Nos. 9 and 11 invoking Clause (c) of Sub-section (2) of Section 70 of the New Act interalia contending that the premises in question fall within Clause (g) of Sub-section (3) of Section 2 of the New Act and therefore, the Act is not applicable and consequently in terms of Clause (c) of Sub-section (2) of Section 70 the H.R.C. proceedings stands abated.
6. The H.R.C. Court found against the claims made by the tenants and consequently rejected their applications I.A.s 9 and 11. Aggrieved by the said order, both the tenants have preferred these revision petitions.
7. When these petitions came up for orders, this Court, by order dated 04.07.2003 has passed the following Order:
"The main issue in these petitions is whether the measurement of the shop in question exceeds 14 square meters of plinth area or less than 14 sq. metres. No doubt an Advocate was appointed as Court Commissioner by the Trial Court and he has given his report. But this Court has thought it fit to appoint a technical person rather than depend on the report by the Advocate-Commissioner since, it involves certain technicalities under the Karnataka Rent Act, 1999. Therefore, both the Learned Counsel for the parties have agreed to appoint the Executive Engineer, Mr. B.T. Ramesh, Bangalore Mahanagara Palike as Commissioner to furnish the plinth area of the shops in question.
The Learned Counsel for the petitioners- tenants undertakes to keep the shops open on Sunday the 6th July 2003 in order to enable the Commissioner to visit the shops in the presence of both the Learned Counsel for the parties at about 11 a.m. and submit his report."
8. Thereafter, the Commissioner filed his report in Court on 09.07.2003. In terms of the Commissioner's Report, the premises bearing Shop No. 4 which is the subject matter in H.R.C. No. 673/ 1999 measures 15.9 Square meters. In so far as shop No. 3 which is the subject matter in H.R.C. No. 789/1999 the measurement given is 13.75 square meters. The respondent - landlord has not filed any objections to the Commissioner's Report. However, the tenants have filed objections interalia contending that the Commissioner has failed to take into consideration the front set back area of 2.6 1/4th ft. into consideration while holding that Shop No. 3 measures 13.75 sq. meters. The tenants have no grievance or dispute in so far as the measurement of Shop No. 4 is concerned.
9. Therefore, the only question that arises for my consideration in these revision petitions is "Whether the front set back area of 2.6 1/4th ft. has to be included to Shop No. 3 or not"?
10. If it is included then the premises falls outside the scope of the New Act. If not, the only shop No. 3 falls within the provisions of the New Act. Clause (g) of Sub-section (3) of Section 2 which is relevant for purposes of considering the question involved in these petitions states that the provisions of the New Act do not apply to any premises used for non-residential purpose haying a plinth area of not exceeding 14sq. meters used for commercial purpose. It is not in dispute that the tenants are making use of the shops in question for commercial purpose. In my view any vacant space left by the landlord in front of the shop should also be included having regard to the purpose or usage of the premises by the tenants. What is important is the purpose or the making use of the shops in question for purposes of determining whether it is residential or non-residential.
11. It is common knowledge that in terms of the bye-laws certain open space is required to be allowed as set back under the relevant bye-laws. The sole purpose behind providing such open space is to ensure the better enjoyment of the premises by the tenant and to serve the purpose for which a premises is put up. The term 'premises' is defined in Clause (i) of Section 3 of the Act as, 'a building as defined in Clause (a)'. Clause (a) defines a building as:
"Building' means any building or hut or part of a building or hut other than a farm house, let or to be let separately and includes,
(i) the garden, the grounds and out-houses, if any appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut or part of building or hut.
(ii)...... ....... ....... .......
(iii) ...................
Under Sub-clause (I) of Clause (a) building includes grounds appurtenant to such building and which is let along with such building or forms part of such building. The frontage of the shop certainly forms part of the shop premises and it is an appurtenant of the shop premises. Without the use of such appurtenant, the purpose and object for which the tenant has taken the shop on lease cannot be achieved or realized. Therefore, for considering the size of any premises for the purpose of determining the applicability of the provisions of the Act to the petition premises under Clause (g) of Sub-section (3) of Section (2) of the Act, essentially all appurtenants that form part of the premises which are let along with building are to be taken into consideration.
12. Therefore, in my view, having regard to the facts and circumstances of this case, the Commissioner was not right in excluding 2.6. 1/4th ft. while coming to the conclusion that shop No. 3 measures only 13.75 sq meters. If the said area of 2.6 1/4 th ft. is included, the total measurement of shop No. 3 will be more than 14 sq. meters, in which event the provisions of the New Act would not be applicable to the shop premises No. 3 consequently the Clause (c) of Sub-section (2) of Section 70 of the New Act would operate.
13. For the reasons stated above, the impugned orders in these two revision petitions are set aside and the applications filed by the tenants under Clause (g) of Sub-section (3) of Section (2) read with Clause (c) of Sub-section (2) of Section 70 of the New Act are allowed. Consequently, the H.R.C. proceedings initiated by the respondent-landlord stands abated. The abatement of the proceedings however, would not come in the way of the respondent - landlord to initiate proceedings against the tenants under common law.