Karnataka High Court
P.K. Upadhyaya vs A. Venkatesh on 8 October, 1990
Equivalent citations: ILR1990KAR4060, 1990(3)KARLJ134
ORDER Shivashankar Bhat, J.
1. These petitions are by the tenants. All the respondents are the landlords, who filed several eviction petitions against the tenants under Section 21(1)(h) and (j) of the Karnataka Rent Control Act, 1961 ('the Act'). For the sake of convenience the landlords are referred as the petitioners and the tenants as the respondents.
2. The petitioners are brothers. According to them they desire to demolish the existing structure and put up a new structure in the area, covered by the respective schedule premises and also another part of the same area, which is already in their possession. In the eviction petitions it is stated that the petitioners require the premises to put up a construct ion and to run a lodging section. According to the petitioners, they intend to put up a multistoreyed building after the demolition of the existing structure and the requisite permission for the plan was being sought from the Corporation and the Corporation has sanctioned the plan and granted the licence. The "petitioners also assert that they have sufficient financial resources to put up the construction and already they are having a cash of Rs. 1,60,0007-and the balance required for the construction can be raised by obtaining loan. It is also stated that in order to make the premises more profitable they are seeking, eviction and put up the construction. The petitioners also say that the existing structure has developed cracks in the wall and and the foundation. In a few of the eviction petitions, the petitioners have stated that in addition to the lodging section they want some space to run their sanitary and plumbing business.
3. The respondents are all carrying on non-residential activities such as the business of running a hotel, selling honey, hair-cutting saloon etc. The petitioners have examined on their behalf one of them as P.W.1 and a retired P.W.D. Supervisor as P.W.2. The trial Court accepted the case of the petitioners under Clause (h) of Section 21(1) of the Act. The trial Court has found that the landlords have established their requirement to demolish the existing structure and intend bona fide to use the newly constructed building to run a 'lodge' in the first floor and other business activities of the petitioners in the ground floor. In view of this requirement of the petitioners being for their own use and occupation, the question of considering the case under Section 21(1)(j) did not arise. The existing building is in an area covering 40% of the entire site and the entire site measures 80' x 100'. There is no dispute that 60% of this site is vacant. There is also no dispute that the site is a corner site. The main road called 'Hosur Road' is on the front and a road having 40' width is on one side goes by the side of the site. The financial capacity of the petitioners has been amply established in these cases. The cash deposits in the Banks also have been proved to assure the capacity of the petitioners. The petitioners also have other properties. Therefore there cannot be any doubt about the resources of the petitioners to put up the proposed building. According to the petitioners, who are 7 brothers, it is necessary to provide job to some of them who are not employed elsewhere and for this purpose they have decided to open a lodging section. Two of the brothers are contractors and therefore the ground floor shops are required for the purpose of godown in respect of the contract business of the two brothers. One of the brothers, who is doing sanitary works requires a godown for his business. One room is required for the office purposes of the petitioners. These are the requirements of the petitioners, according to the learned trial Judge.
4. It was contended by the learned Counsel for the respondents (tenants) that the petitioners are motivated in seeking the eviction of the respondents. Earlier there was some dispute between the petitioners and one of the respondents, but the petitioners failed to achieve their object of evicting him. In the said proceedings a few other respondents supported the tenant and therefore the petitioners have launched this scheme of evicting the tenants. It is also contended that only one of the petitioners was examined and that he was not competent to speak on behalf of others. The different portions of the area in question belong to different petitioners separately by virtue of the alleged partition deed. Therefore petitions should have been filed separately by the respective owners of the portions. In other words, it is contended that all the respondents are not the tenants of all the petitioners. The eviction petition against each of the tenants should have been filed by the concerned landlord only and on this ground alone the petitions should be dismissed.
5. It is the case of the petitioners that by virtue of the partition deed the 7 brothers are having separate interest in the area in question. However, the property has not been divided by metes and bounds. Further, the requirement sought to be made out is a requirement of all the 7 brothers together and the proposed venture of demolition and reconstruction is by all the 7 brothers who have pooled their resources together for this purpose. It is also contended that the maintainability of the eviction petitions was not raised before the trial Court in the manner it has been raised now before this Court.
6. I think the petitioners are right in their contention on this question. Admittedly the concerned landlord is one of the petitioners in every eviction petition. The others have joined the concerned landlord obviously because the proposed scheme of demolition and reconstruction is a joint venture and respective portions of the areas are pooled together by the petitioners for this common venture and to that extent all the petitioners have a single interest in the litigation. The contention of the respondents in this regard is only technical and cannot be entertained at this stage.
7. P.W.1 is one of the brothers (petitioners). Originally the property belonged to the father of these petitioners. There was a partition, in the family under which the area in question was divided amongst the various petitioners. According to P.W.1 the existing structure involved in these eviction petitions was constructed about 50 years ago and it was constructed with mud and cracks have developed in the wall of the building. According to P.W.1 it is not possible to repair the building as such. The property is situated on the side of the National Highway - Hosur-Bangalore road and it is situated in a locality called 'Wilson Garden'. P.W.1 is a P.W.D. contractor. Similarly the 2nd petitioner also is a contractor while another brother Jayaram is a sanitary contractor, but the remaining 4 brothers are not doing any work. It is in these circumstances, the petitioners have decided to start a new venture to provide occupation for the unemployed petitioners. The rent that is being fetched by the different schedule premises varies from Rs. 35/- to 250/- p.m. The petitioners have also produced the sanctioned plan for the construction. However, P.W.1 states that he wants to construct three godowns and 3 shops in the ground floor. The lodging rooms will be put up in the first floor. The 3 godowns are required to store building materials. Out of 3 shops, one shop will be constructed as an office to the lodging section and the other 2 shops for the purposes of the petitioners, such as the office for the contract business etc. The godowns are required to keep cement and other building materials, though P.W.1 admits that normally these materials are stored in the watchman shed in the place of construction. P.W.1 also admits that the petitioners are having common residence and they are residing in their own house. P.W.2 has spoken to the age of the existing structure and the need to demolish it and put up a new construction. There are other documents also in support of the petitioners' case.
8. Whether the petitioners genuinely intend to put up a lodging section will have to be adjudged from their circumstances. The property is situated facing a highway in a locality which has fairly developed with both residential and non-residential activities. With the resources at their command and the number of petitioners involved, the nature of the proposed business, that is of running a lodging section, looks to me quite reasonable. The trial Court has accepted the case of the petitioners duly supported by the deposition of P.W.1. In these circumstances, I do not find any reason to take a different view. The unemployed brothers can be suitably employed by the proposed business. However, the question is whether an order of eviction will have to be made under Clause (h) of Section 21(1) of the Act.
9. If the entire premises to be put up by the petitioners is required for their own bona fide use and occupation and if the said requirement is reasonable, certainly the case would come within Clause (h) of Section 21(1). But as the case made out, it discloses that the entire premises will not be required by the petitioners and their alleged requirement read with the sanctioned plan for the construction of the new building shows that the claim is not reasonable. I do not think that the Court could direct eviction under Clause (h) at all. If the requirement of the petitioners will be met by a part of the newly put up construction, it can be said that at the most the petitioners have made out a case that they require the premises reasonably and bona fide for the immediate purpose of demolishing them for the purpose of erecting a new building and such a case falls within Clause (j) and not under Clause (h) at all.
10. The Rent Control Act is a beneficial legislation which aims at balancing the interest of both the landlord and the tenant. The requirement of protecting the interest of the tenants seems to be the dominant idea, but the Act also envisages to protect the bona fide interest of the landlords also and that is why in MST. BEGA BEGUM AND ORS. v. ABDUL AHAD KHAN (dead) BY L.Rs. AND ORS., the Supreme Court referred to the Rent Control legislation as a legislation providing facility to the landlord to evict his tenant. When the law is referred as a beneficial legislation it cannot be said that its object is to benefit only a section of the society. The entire scheme and object of the Act will have to be understood so as to advance the interest of the public in general.
11. Clause (j) of Section 21(1) is a provision which guarantees re-entry of the tenants to the newly built premises, by virtue of the provisions which are supplemental to Clause (j) of Section 21(1), such as Sections 26 to 28 of the Act. To that extent it guarantees the tenant of the new premises so that he may either reside in the newly built premises or carry on his business there, as he was doing hitherto, prior to the reconstruction. At the same time, Section 21(1)(j) also provides a facility to the landlord to put up a reconstruction in the place of the existing structures whenever such a requirement is reasonably and bona fide made out by the landlord. Having regard to the scarcity of accommodation - whether residential or non-residential in the urban areas it is necessary to encourage new constructions so that those who are in search of accommodations can be provided with some space to live or to carry on business activities for living. An order under Section 21(1)(j) thus not only safeguards the interest of the tenant to some extent, but also provides scope for encouraging building activities. A landlord who is capable of demolishing and putting up new constructions, though motivated by profit motive, contributes to the reduction of the shortage of premises, to that extent. In these circumstances, if there is a choice for the Court between Clauses (h) and (j) for directing eviction of a tenant, the Court will have to to lean in favour of Clause (j) rather than ordering eviction under Section 21(1)(h) of the Act. If the entire reconstructed premises is required by the landlord for his own occupation, Section 21(1)(h) will be applicable. But, if the reconstructed premises could accommodate the tenants and also would reasonably satisfy the requirements of the landlord, then an eviction order under Section 21(1)(j) would advance the object of the Act. Facts of each case has to be examined carefully in this regard. There may be a case wherein a substantial portion of the reconstructed premises will be required by the landlord and the balance area is so small that it cannot satisfy the tenant's re-entry and in such a situation, again, only Clause (h) will have to be applied for eviction. But a landlord cannot obtain an order of eviction under Section 21(1)(h) only, by satisfying the Court that he requires a part of the reconstructed premises for his own use and occupation.
12. The sketch produced before me of the proposed construction amply shows that the petitioners will be having surplus area available after satisfying their requirements. In the pleading nowhere they have stated that they require three godowns for their purposes in the newly constructed building; even otherwise, the godowns need not be In the front portion of the building. The godown can be put up on the rear side or underground. The learned Counsel for the petitioners contended before me that out of the shops on the front side 3 shops will be used as godowns. This, on the face of it, looks to me unreasonable, apart from the case being the one not at all pleaded. Similarly for the office purposes of the petitioners regarding their existing business they can have them, without depriving the respondents of an opportunity to re-enter the newly constructed shops. Admittedly, petitioners are putting up a big complex, covering the petition schedule premises and other area which is vacant and is in possession of the petitioners. Therefore, if the respondents can be reasonably accommodated in any part of the new complex, their interest will be safeguarded. It is not the case of the petitioners that they require the entire reconstructed building for their own use and occupation. The plan of the proposed construction shown to me indicates that shops are proposed to be put up in the ground floor both on the front side facing the Hosur road as also on the rear side and the totality of the shops would reasonably accommodate the requirements of the petitioners as well as that of the respondents.
13. In these circumstances, I am of the view that the eviction petitions of the petitioners are entitled to succeed only under Section 21(1)(j) of the Act.
14. In the result these revision petitions are partly allowed; orders of eviction are modified as stated above. The respondents are granted four months time to vacate the premises and thereafter within three months, the petitioners shall commence the demolition work and proceed to put up the proposed new building. Parties are to be governed by the provisions of Section 21(1)(j) read with Sections 26 to 28 of the Act. No order as to costs.