Karnataka High Court
Patric John vs Somashekhar Shankar Kakti on 13 February, 2009
Equivalent citations: 2010 (2) AIR KANT HCR 367, 2010 A I H C 1959, AIR 2010 (NOC) (SUPP) 810 (KAR.), (2009) 5 KANT LJ 345, (2010) 2 RENCR 14, (2010) 2 RENTLR 14, (2011) 2 ICC 377, (2010) 1 KCCR 517, (2011) 1 RENTLR 62
Bench: S.R.Bannurmath, Subhash B.Adi
_}..
IN THE 911:3-1»; CQURT 09 KAFENATAKA AT game.-Ai_,,<:>RE
DAT-E9 TEES THE 1.3.TH DAY «:3? FE.BRUARY_4
PRESENT V }.
THE HC)N'BLE :v1R.JUsT1cEMAs.R.BAm:aéi§e92§;&;i'H
Aixm} .
THE H()N'BLE3 MR.J{ISTICE" s;t;--BHAs;?§ 3,239: 1'
H.R.R.?.Hb.é95_g 2063» J
BETWEEN:
1.
12%»
1B,
Szi Pairig: Jahu, V V .--
Age 743 }>'c=:ar$,< OCCI . .V '
RI 5;. F~§0.1_.9:*§%5, Ka{iz9fl::a;r..C}a}3i, .. _ f
Belg;-1un1V,:--.,V .
Since Eiécfiaséii 'by V. "
$mt;~s1;g:;;na"%&!;<cg" yams
Age 5:35 ye-9.273,' Gee: « Ifilbusfl-Hold,
mat." House ._r'~;Q. ;»9,5;:=___,? " __
Katiqlkax'
Srl. saws;0.% pam¢%%:¢hn,
.. gfifige' ~25 yeérg, QC-::j:. Business,
~ Na.'-?1.955, Kadoliéér
' v .. _ Béigaum.
._ ~vBe§§§1ai.D[0. Pamc John
"Age 217- years, Dec: i~iouse--§-laid,
N9,._'195ێ, Katicslkar Galli,
}--3.r:-lgfmm.
...M1s;s. Seema D10. Patric Jchn,
gage 22 years,
See: Hausa Held,
Nc:.1955, Kadoikar (3311:,
Bslgaum. .. PETITIGNERS
" {By Sri. H. Ramachancira, Adv.)
I of power conferred uncier Section 9 of the
i Court Act, learned Single Judge by his order
Sih..--E§ngust 2003 has referred the Revision Petition tn the
_ Uivisian Sench.
Lib}; the learned Single Judge, Cmmsel appearizig for the tenant
AND:
Sri. Soznashekhar,
Shankar Kakti,
Age major, Dec: Private Service,
Residing at No.1836,
Bapat Galli, _¢
Beigaum. .. '1%E$P{;wNi3E1*»:T " » _
[By Sri. Jagadish Patil and K. Anand,-,Aé§;?s...
Sri. Shashikiran Shetty, Sri. Uciaya HQ!ia,,_ V '~
Sri.Rame$i"1 Chandra, Sri. G. 'B81-aicrishna
and $.13. Shankar, Adva. appoititeci 191$ A1I1iCu3"{:LtI'iE§€§}
This H.R.R.P. is filed Vi1_1I1d(:If.ui3§:CtiOfl '11'$3,of CPC against the
judgment anti V decree, dated , 'C)4.(}3gC2003 wssed in
1i»mc.RP.No.63/ 2002.. <>n§'th.e'iE,jie.4of',i'$1_1e'Ii,;"&dc:i1. District Judge,
Belgaum, disnzissfgpg the refv?isiof1.,peti -13:1 and confinning the
order Dt.£35.§34.'2§:_i£}2.. .p3sser__1' in ::i'1=<{f; No.119/1995 on the file of
the III Add1.:Cix«fi1fJuc{'ge ,[_.'J"r','$«1:;';*},.i' Selgéuim, allowing the petition
filed U[s..:iI7{_2j{r) 'c:'-i'--'1:};h_e -.£<a1_'I1ata3{a,_FEent Act (U132 1(1)(h) of the
Karnataka Reniiveffienirel Act), for eviction.
fiaving been heard and reserved for
judgment 6:; i'?'.v9.2()(}6 conning on for Pmneouneement of
On:1erV':;_1_1is day, 8U33IfiAS»H ADI J ., the Court made the foiiowingz
ORDER
2. During the course of the hearing of the Revision Peétion eiteei a decision reporteci in ILR 200.? Km" 4746 in the matter cf 6' mi' , .'«:::'. Vt , [_ '_____g_,> J., 'a -3- SMTSUNDARI ACHARTYJI -vS- N RA BANGERA and contended that, the provisions of Karnataka R8I'}I..VV'VA,:'(%1L 1999 (hereinafter referreé to as 'the Act') are not the pending proceedings. On the other hand, f§f".,, the landlord cited a decision of KAR 4846 in the matter of .-
vs- RAIMMHRJMVISA and ~f:ee of the Act would also govemv 1. The learned Single Judge found that. taken by this Court in the aboxe referred the matter to the Divieiefi. an the question of inter-pretafibn me; ffyievieiens "Se¢ a'on 5 of the Act.
3. Biief case are:
fiiespeneieaig 44' had filed a petition under Sectien J;2e1;1)(%.{1 at? tiiefi KaI*11vei'tam ka Rent Control Act, 1961 {hereinafter %":eréy;§d' 4v%'t13ef~~i{.R.C.Act') interalict aliegng that, the petition prefimiges for his bonafide use and occnpafion. {)uri.11g penfieficy 01' the proceedings before the ieanled Civil Judge Belgaum, the orifinal tenant Patric Jehn dieé on ..., .'2.2.E§.199'7. A memo was filed by the Counsel representing the V ftefiant to this efiect. In View of the same, learned Counsel for the:
landlord filed an apphscation for briefing the iegal representatives ' gig' r::»'"-'
-v¥o_VsubV;:3iit if Lego} represerotatives had become tenant as 'iof'«co'm__ing into force of the Act, they would become of &oi:io11 3 clause (1:1) of the Act and V it for all they are the tenants. in View of the same, they lie as the successors of deceaseei tenant and their 'V be restricted in terms of the provisions of Section 5 Act. It is also contended that, though Section 70 sub hiéectiozzx (2) eiause (b) oonfinues the pending proceedings, but such -7-
10. it is also contended that, the intention of the legislation has to be gathered fioxe. the plain meaning of the woxtisgttsed in the provisions. It is the cardinal principle of every statute is prospective in nature, unless it__is..
or by impiieation, the legislation this regarei, he also relied on a ciecisioii'-zfefsorted A213 _ 1170 in the matter of MLLLS CQLTD. -vs-- STATEQF je OTHERS. Nextly it is contended thateii between specific provision and prevails over the general pzo§.ri.%,a_ioii;" would apply only in cases Where' is the special provision. In this the interpretation of Section 3 clause (r) of ttie.4§{.R.Ci.Ac't._;*eet1'with Section 3 clause (a) of the Act continuation of the proceedings would not take away the ¥.
:
_ 9 _ Mf SMAHENDRA SAREE EMPORIUM --«:;s~ (}'.ViSR1NIVA.SA M'URT1"~IY and submitted that, Section 70 s1:.b~--sec:1:ion (2) has thxee parts viz.,. clause (a), clause (b) and clause (c). Insofaf: ae{:'::£1*ause
(a) is concerned, the proceedings do not abate under the provisions of old Act. {iie ' covered under the said clauee Wotifixidiobe go3i.erified pmvisions of repealed Act. Wpendinigi proceedings to which Aet would be continued unéer the Clause (c) relates to cases}. u the Act is not appiicabie become abated. While sub-section (2) ciause (0).
though Aet to some of the cases eonaing under the pfovieione oi; (C) of sub-«seiztiozl (2) of Section 70 _~ of the 'i1_cItv,'ii't1:1Ve interpreting the said provision and i"eo;1;si<:ieri13.gV"the:Viip<3Wer under Article 136 of the Constimfion of Iniiodiaiiihhasiiiihieigjl the proceedings to which the Act is not V app1:ie.i-éible before the Supreme Court, will not abate. M ii Reifenieg the said éecision, ieamed Counsel submitted that, ._tj.}1e'V.pi£1*oi}isio11 being pmspecfive as far as cases ooming under T (a), the Supreme Court having exercised power under Article 136 to hold that, the proceedings coming under Section 70(2)(c) of the Act will not abaie, hence, the provisions of Section oom; pr séc*u.m«7o sub-sec'tio11 (2) ciause (b) of the Act under this provision, the cases and the the Act is applicable, such proceedings shall H 'heave .. eomzinued and disposed of by the court or the accordance with the provisions of the Act, This I» makes it clear that, if the Act is applicable, the cases " to be disposed of in accoitiance with the pmvisions of the Act. 011 eoflaing into force of the Act, provisions of Section '}'O of -19- 70 sub-section {2} clause (b) of the Act Cannot be held as retrospeciive, merely on the ground that the provisions Seefion 70 sub-section (2) ciause (b) make the Act "tlge Pflnding cases. I =
12. It is also submitted that, 1 right vested in the legal representaiiveeoii ithe ioaaieei greater harcisilip and that is not Act intended to protect the iithat is the object of the Act, in furthereirlee viitix1e_'_pxovisions have to be interpreted clear that, the.
provisions of in case the tenant dies prior to /§§:t"eiieu though the proceedings are conti1:'1;e(i4§.1:1d"er~£h§: provisions of the Act Ti1eii€3oV1"1:1.sVe'3, the landlord mainiy mlieei on (,;;,;M' r'?% _ en reco1f;:i_§éé"11.*ring thenenderncy of the proceedings and in terms of Section .f;lieii«--;ights get restxicteel. ii --VSectio"n in) of the Act, the definifion of 'tenant'. Section 3 K eioes not include spouse, children, Whether éependant This makes it clear that, legslature had not intended to i extend the tenancy rights to the successors of tenant and such 3 tenancy nights get extinguished the moment tenant dies. If the -11- the Act are selfiexpianatory, and explains the efiect of the repealed Act and application of the repealing Act, if the legislation has provided the remedy under the repealing Act {ices not arise to look into the provisions of Section 6 of the General Clauses Aet.w'0e..ld s. repealing Act is silent. In this i provide for all consequences expressly' asltn the application of the 'of. *2-ictcg in certain circumstance. In V"i€W of to go into the provisions of the purpose of interp:etati{,]:;;_. the proceedings have to be dispo.seEi'.nf then they have to be dealt in View of the provisions of Section 7(1l('2)_(b} of legal representatives have come on H ihey also relied on the provisions of tenant dies dining the pendency of the proceedings, his legal We
-;§-
representatives Wouid come on zecord only to cierive the benefit under Sec-fion 5 of the Act and not for any other reason,
15. In this regarci, it is also contended that, of proceedings in execution of a decree or ord.e:*..p_ét3._$ed:'z1.n{ief' '-.<he7.. wouid continue as if the old Act. SectionV'i.7'iG ciause (b) in express Words the oispiicabie to the pending cases and aisQ.£¢é;fire.'§. 155;: of such cases only undue t'he jvviti'1CI'€ cannot be any other intention to i' the Act.
15. of the K.R.C.Act did cover spouse,'the_'ziefinit:ion of 'tenant', but such a benefit 15939': the provisions of the Act. as the definitioz1_of resuicted to the iife time of the tenant. in i V. "case" contxacti Mtenazicy, as long as the tenant is alive, he ie;:iant anti on expiry of the term of the contract, if t'hc ActVis-- Zéipijslicable, he continues as statutory tenant anti on &ea*}3:.ii:'the tenancy is inherited only for limiied period, even V' some rigiit had accrued under the old Act, that gets ._,~exi:it1guished by virtue of the provisions of the Act. Even if the uijprovisions of the Act cause hardship, that is not a ground to hold that the iemelation is prospective. In this regaré, ieamed Counsel _ mpeaicd Act and pending at the of comxrienceroierit' W1ie:n~e«....repeal is foiloweci by a fresh legisiation on Courts undoubtedly have to look into the [the neuw..hi14itends any diiferent intention and obliterates the ._,fa1xi*eady vested so ae to get rid Of Obsoiete matters. V to these decisions, it is submitted that. intention of T 'ifivleigislation to bring about the new Act: was te get rié of rifid i V msuicfiofi imposed On the landiord in the matter of eviction. The -13- relied on the decision reported in AIR 2000 SC 811 in the matter of KOLHAPUR CANESUGAR WORKS LTD. & ANOTHER «gee. UNION OF INDLQ AND OTHERS and submitted that, when intended to make the provisions reirospective pending cases, it cannot be have a prespective efiect. They gjsoiiiifilrifizfl on reported in AIR 2003 Sc: 2343 xziatter COMBINES, COflWBATGi:?1'3,_ wz;;«~;§ CENTRAL EXCISE. COIMBATORE anciii because the provisions of the.vAetVLeauée be interpreted in a manner so as" i'e';1Aev..'-'51iCt itself. 1'25" 'may: decision repefled in AIR 2997 SC °4_1:i>; in 'the: SIIVGH eta, ~vs~» THE STATE TRANsRORT'iOAPRR1gLA7:§;i' '~:ERIBwvAL AND OTHERS etc. and previhsiainsv Of iiew Act for the purpose of Cietezaznining Whether -14- legislation thought it fit to liberalize the lights of the iandlonfl and tenant and to restrict the appfieation of the provisixms of' the Act only to certain premises and to restzict the teuancy to the life time of tenant. These provisions make it legislation had difienent intention fl3aj:1"t;I:1c.one' iefieeieét' j and it is in this context, the tlie understood. it is also submitte--!3:tJ;;at, A't1;«":__ Act any interpretation or external the words themselves would make ' the Pflfpose and intention of the 4]egie1at:iefi""e:e;£! to the pames.
Learned submitted that, Section 5 of the tenancy for a specific of the tenant do not have any right moretthen to them under Section 5 of the Act.
., ., A _ light of the various submissions made at the Bar, the arise for eonsieieration:
A Vii) ' Qfliether the provisions ofSec:1fon 5 are appiicable .. to the proceedings initiated under the repealed ' \' "Act?
"[511 Whether the legal representatives brought on record during the pendency of the prooeedinge under the old Act woufd become tenant wiihin the meaning of Section 3 clause {ft} of the Act and provisions of Section 5 in such cases are not appI:'ca19le? C R;
_ r:
T R we '~__ E"~'»'mm flieoebove eiefinition, it is clear that, it does not include any other than the tenant. Definition of tenant reaei K the provisions of Section 3 fuxther makes it dear that rights fof the survivor to inherit the tenancy are also reairricted and
-}'}"-
of the economic reforms. In this regaxd, refereace was made to Economic Admmistaafion Reforms Commission and ikafional Commission on Urbanisation, which leave recommended reform of the Rent Legisiation the interests of both landlord and >Iz::"'f(}::x.:<34'1i:g}::§"tV'Vo;fviihe said object, ifthe provisions ofjthe Acea;e'§'ook€§i; it clear that, the Landlords' fights» gotexagia 5r'£gs§?1ctive, as they were in the repea1e%1'._1je refer the provisions of Secfion 3 of 'tenant' for the purpose of Act. mfiels u I (R) "re::h;;}_;:-*. -- by whom or on "1§;hogs;e"---a';g;ou;1_t'*Vor-- jihe rent of any pre:m£.${es, or, but fora special contract would' £<23..VVpa,.ya;«bIé;ino1udes,~ Q _ a:'stz£3'~t:er1,c'mt_;"V
(ii) " _cm3; jpeisofi oontfnuing in possession afateer the termination of his tenancy, . but A not ineiude any person to _ 7--._whom a licence as defined in Section of the Indian Easements Act,I882 A V.'[C'éntr*aI Act 5 of 1882) has been
-granted."
particularly, if they are not dependant. The maximum period to which the inheritance is pemzlissible is five years from the date of r-"£_w,'g, _ ..
iv Secfion 5 also éoes not confer inheritance of tenancy for five
-;g.
death. It is alscrusefui to refer to the provisicns of Section 5. which reads as under;
5. Inheritability of tenancy.» (1) In the .e2vei*¢t' _._ é of death of a tenant, the right of tenancy shzgff deeoiee : ' for a period of five years from the date of _I_rq's"t.dec;tia to has successors in the following order_nameIy.'4 " =
(a) spouse; ~ ._ * _ . _
(b) son or daughter or where there are bet}? sen and daughter be£k"--Qf them; V T (0) parents; ._ _ (dj daughter-in-law, being widawvvof pre- deoeased'§$'-9.h: 7' "
Provided that the-I.sueoessor..ha$v.ordinariIy been living or cunying on,%;a:s;iitessA in the pfemzses with the deceased _i£53"-.*gLi£.1f a hisfarnily up to the date of depeVm:3efzi"'on the deceased tenant: ' V' V " ' """ "Proi}§de(:Ijf;'¢:w1her'that'ti'right to tenancy shall not deitrolve _up».iu_=1 ea zsuooesser in case such successor or his spouse or afiy"~9f' son or daughter is owni'ng"or in the local area in relatiofiie me prem_z'Sezs"Iet.
~ (2) if-avpersorg being a suooessor mentioned in . A ":$t}zii+sea?'r'Qn (I), ortlinariiy living in or carrying on » V ' -. Iausinessj in the premises with the deceased tenant but V V , wvsnoi dependent on him on the date of his death, or _ " he er"_'§3;ls'*;;spouse or any of his dependent son or ' .__daug.hter_. is owning or occupying a premises in the uioeaéarea in relation to the premises let to which this Aetvvapplies, such, successor shall acquire a right to 'A ; pentinue in possession as a tenant; and, on the expiry , tgfthat period, or on his death, whichever is earlier, the right ofsuch suooesser to continue in possession of the premises shall become extingutlshect years if the successors are not dependants or are having the
-gg-
23. In order to know Whether the Act is retrospective or whether the Act is not appiicable to the pending proceedings or if appiicaiole, whother the successors of the deceased teném, who have acquired right prior to coming into force of "
protected, it is useful to refer to Section 70 of thettx'-%,<::'£ reads as under:
'Section 70. Repeat (12) n Kamatalca Rent Contra? Act, .___1' 961 {Kantatc1kt:&._'Ac_:t 2:2? of 1961) is hereby repeated. ' V H (2) Nofim'thstqnding"se:<;i2 repeal subject to the provisions of Seotisn 69,5 . V "
(a) all procgeidirws ._ir-1., e}Léé<:uiiojn'of any decree _:or..orde_§r repealed Act, 2' at"the'-comtnerzoement of this iii be (xmtinued and _ -j i,Eisp"oseci"oojf,T such Cow': as if the said ____ .. ht é'$?≫;ot7r:§.%i2.t {ween repealed;
: {Z2} V' ::?t..prooeedings other than those = 'zofhhmwi,fio,fiQ chruae gag pmnuifiyg cu the oominenoégrzent of this Act before the VV C?o?ztrt:IIér';' Deputy Commissioner;
" ~~Div:siovnaI Commissioner, Court, District Judge' or the High Court or other authority, as the case may be in respect of the "premises to which the Act appifes shall be v.:V"*oontinued and disposed of by such Controller, Deputy Commissioner, Divisional Commissioner; Court, District Judge or the High Court or other outiwrity in accordance with the provisions of this Act;
{C} all other cases and proceedings pending in respect of premises to which this Act does not apply shall as fiom the date of oommemxament of the Act stand abated.
r.
-34- Karriataka Rent Control Acf, I 951, where Section ?'0(.?} is not appiioczble.
16.1. if Section 70 had contained sub-sedion (I) repealing the Old Act 5 nothing more, the provisions of Section 5:}; ~ H Karnalaica General Clauses Act, 139195; 4 entirety would have applied; agapiiocz-Eiihfty' of Section. 6 of the G.C,Ac;-f is subject 'lie cizjfferent intention appeanhg iii" the iepegiing - Act. The legislature eémressed d:_'}'j'ereni intention if; "'~~.:fegarir;'E 1'0 Kj;.'.?€?"::',.i>if":g"
proceedings under the Oi'dVAc¢, by eziactirzg seb- seoiion (2) of Section 70, for the sub-section (2), all pending : ivoaiid have also been governed by.7 Section g of C.-'C Act and would have been oomimxved' '--¢iiva-jposed of in accordance with .?§'u:7~ Act,» _ ae gfiiie 'repeating Ac! hc_td>._ri;oi ibeen x No pending prooeet"3i?1g;S"i'1a1der1ihe C3113? Act'"'éouId escape fi-om; éihve-.p'r'6i:_ision.*e ''section' 70(2) and an pending»p;§ooeer1ingsvi_wz'Ilhave to be decided as pe1'ovSeVc§ion" no'i" per the provisions {of Seciioéaw t§_of Ih;e_C¥efI9raJ Cfauses Am. "
If there is and nothing more is shown.
vprovisiojis of Seciioii the Kaniataka General Ciauses Act, Would; have applied. Section 6 of the Clauses Act is subject to any difiérent .i1::.tenti'@,z1 A' g in the repealm' g Act. Lem'slatur::: in its " wisdom expressed a clear different intention in regard to gieriiiinércases, ail pending cases and pr-zxtecdings are governed by the ixrovisions of Section 70 of the Act. In View of the provisions of Section Y0 sub»-seciion (2) Clauses {.21). (13) and ((3). none of the pending proceedings couid escape fiom the said provision. -35-
29. Normaliy substantive fight created in the repealed Act and sought to be taken away, such le@'siatio11 would be as pxospective, unless it is made expressly or implication construed as retrospective in .. Section 70 of the Act are ciear, " ;1Q7,___ inconsistency or absurdity, Repealing Act contains an exhatietjlfie provieiofl vtlme efiect of the repeal. 1:" the mstaegn insofar as the proceedings to legislation intended to trending pmceedings.
This is Act is to obliterate the eicisting except to the extent of has to be understood as it is worded.
_ " l'tl.3()E".7i'3;1lllaxgothefvlltlecisiou reported in ILR 2003 KAR 4732 in V3Sli3AHWAR BASHEIJR AND omms ~93» VEENA MOfI4flN :£Kl"HERS, the learned Single Judge of this Court has held 3 Section 5 of the Act is a comprehensive provision with specific purpose of iimitiog the inheritability of V' to a certain fixed period. the legal heixs of the original '4 tenant are liable to be evicted upon cotnpletion of the period stipulated under Section 5 of the Act. All that the landlord is I°f2qi1iI'6d to safisfactoziiy Show that, the iegai reptesentatives have
-23.
stayed for the period provided under Section 5. Even in SM7iTH£LOTHAflflVL¢i§s ease also, the learned Single Judge has held that the relief that is bestowed on the IBSp0II(':BVii:Ti:"'t(it"'Q13jJI1 possession premises after expiry of five years is a.etivateci.c:'b*y:"Si1eer operation of law witltout ixnposiug;
requirement of the premises for bonei;!idef_i1se
31. In our opinion, iérteaniiiig . {:5vt;'f1eV"iorovieions"of' Section 70 of the Act "i1itev:i'tio11 of the legisiation, to bring aboiit it clear that. the provisions of i to all the pending cases to vveeweuch, the provisions of Section :;;:':ap1ii1it;.';i:¥:i1e tenant dies during the pesldency 'iii this case, merely because the tenant had"":iiee¥Vv3:$efo.ie' came into force, that does not by a status on the legal representatives other uadez" the provisions of the Act. it cannot field one purpose, old Act is not applicable and for the V it _ new Act is applicable. Intention of the legislation to five sefiect to the provisions of the Act to the cases and to which the Act is appiicable. In our considered gpigjon, the reading of Section 70 of the Act does not give any other opinion other them What we have held. "~28- In the light of the above discussion, we pass the following order:
1')
ii)
iii) Revision Petition is dismissed.
The tenant, who dies during of ifze» proceedings to which the :jéroo_fsiofi3_ of T. Rent Act are made to ooming into form of 'then L' brought on record wifI'o'V.f;'oz:e fight. ' only in temzs of Se(:tion_5 ofo'the"MA,g;-.g;;en the zegaz representatives" _to commencement oftheA<:¢.-- 'V .
brought on record oléi continued under the [Act oi}: éhestams of tenam, but they remain' __I€gvdh'.oA_f*éapfesen!aiives for the pumose of 'Seotion ."}'- ' J " vkemjgzkeéz in SM'I1TH1LOTHAM2lJA's case is the law and the view taken in SMT. SUNIJARI T. ease is not a correct law.
Agtcogtiinglyj We answer the issue rcfemcd to us. KNMI~ Sd/-» Judge Sd/-.
Judge