Karnataka High Court
G. Shoukath And Ors. vs V. Chandraprakash on 24 June, 2004
Equivalent citations: ILR2004KAR3288, 2004(5)KARLJ44, 2004 AIR - KANT. H. C. R. 2589, 2004 AIHC 3987, (2004) 2 RENTLR 459, (2004) 2 RENCR 373, (2004) 3 KCCR 2026
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, Huluvadi G. Ramesh
ORDER Tirath S. Thakur, J.
1. A Single Bench of this Court has expressed doubts about the correctness of the view taken by another Single Bench regarding the true and correct interpretation of Section 27(r) of the Karnataka Rent Act 1999. The present reference to the Division Bench is aimed at providing an authoritative answer to the question that falls for determination in the following circumstances.
2. The Karnataka Rent Control Act, 1961 inter alia regulated eviction of tenants from the premises let out to them till the said Act was repealed by Karnataka Rent Act, 1999. Section 70(2)(b) of the repealing enactment provides for disposal of all cases and proceedings pending on the date of commencement of the said Act before any Court or Authority including the High Court, in accordance with the provisions of the new enactment. In M.R. RAMACHANDRA v. SHANTAKUMARI AND ANR., landlord was aggrieved of the dismissal of his case for eviction of the tenant on the ground of personal necessity pleaded by him. During the pendency of the landlord's revision petition, the Karnataka Rent Control Act, 1961 was repealed and the field covered by the new enactment which too provided for eviction of the tenants on grounds stipulated in Section 27 thereof. The revision petition coming up for hearing before A.V. Srinivasareddy, J., as his Lordship then was, the Court noticed that the new enactment had brought about sweeping changes in the provisions governing eviction of tenants. The Court held that in the light of Explanation-I to Section 27(r) of the new Act, the landlord was not required to prove the reasonableness or the bonafides of his personal requirement, as he had to do, under the repealed enactment. The provisions of Section 27(r) read with the explanation to the same according to the Court gave rise to what was described as an irrefutable presumption in favour of the landlord that he did require the premises for his own occupation. The Court observed:
'Reading Clause (r) of Sub-section (2) of Section 27 harmoniously with the Explanation-I and Explanation-II the intention of the legislature to do away with the requirement by the landlord of proving the need of the premises for his bonafide use and occupation becomes all too apparent. The Sub-clause (i) to Explanation-I in terms states that the Court shall presume that the premises are so required. The Sub-clause (ii) states that the premises let for a particular use may be required by the landlord for a different use if such use is permissible under law. Explanation II clarifies that an occupation by the landlord of any part of the building of which any premises let out by him forms a part shall not disentitle him to recover the possession of such premises.
If the case of the petitioner is examined keeping in view the import of these provisions, it becomes obvious that the requirement of the premises for his own use and occupation can never be questioned. A presumption that arises under law is irrefutable. The only question that therefore, remains for consideration under the new Act is to see if the petitioner has any other suitable accommodation which would meet his present requirement. It is not the case of the tenant that the petitioner has any other accommodation."
3. To the same effect is the view taken by the learned Judge in a series of other cases involving the interpretation of the provisions of Section 27(r) of the Act and the explanation to the same. Among them are the decisions rendered in ANANDA KUMAR B. PIRGAL v. A.K. GANGADHARAN, ILR 2003 KAR 630, SMT. K.N. SARASWATHAMMA v. SMT. SARALA ILR ,2003 KAR 1717, SMT. YASHODA BAI v. SMT. LAKSHMAMMA , ILR 2003 AKR 3871 and SMT. PARVATAMMA v. SRI S AMPATH KUMAR, 2003(1) KCCR 244.
4. The present revision petitions coining up for hearing before A.M. Farooq, J., reliance was placed upon the decision rendered in Ramachandra's case (supra) in support of the proposition that under Section 27(r) of the new Act, the landlord is not required to prove his bonafides or the reasonableness of his requirements. The presumption available to the landlord under the explanation to Section 27(r) being unrebuttable, the only question that the Court was required to examine is whether the landlord had any other reasonably suitable accommodation available to him. In case the reply to that question was in the negative, the prayer of the landlord for eviction of the tenant had to be granted. A.M. Farooq, J., was not impressed by that line of reasoning. Relying upon the decision of the Supreme Court in 'RAM DASS v. ISHWAR CHANDER AND ORS., his Lordship observed that the legislature did not intend to do away with the requirement of the landlord proving his need for the premises under the provisions of Section 27(r) of the new Act. In the light of the decision in Ramachandra's case which took a contrary view, the matter was referred to a Division Bench for an authoritative pronouncement.
5. We have heard learned Counsel for the parties at length.
6. The revision petitions arise out of proceedings instituted under the Karnataka Rent Control Act, 1961. That such proceedings could be continued and disposed of even after the enforcement of the Karnataka Rent Act; 1999 was not disputed before us. Indeed the provisions of Section 70(2)(b) of the said Act make it amply clear that the proceedings pending in different Courts and authority including those pending before the High Court shall be disposed of in accordance with the provisions of the new Act. Section 27(r) which envisages an order of eviction of the tenant on the ground of personal requirement of the landlord or for the requirement of any member of his family or for any person for whose benefit the premises are held, the provisions may at this stage be usefully extracted.
"Section - 27(2): The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
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(r) That the premises let are required, whether in the same form or after reconstruction or rebuilding, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation:
Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition:
Explanation-I: For the purpose of this clause and Sections 28 to 31:
(i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required;
(ii) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law.
Explanation-II: For the purposes of this clause and Sections 28 to 31 an occupation by the landlord of any part of building of which any premises let out by him forms a part shall not disentitle him to recover the possession of such premises.
Explanation-III: For the purposes of this Clause and Sections 28 to 31 'owner of the premises' includes a person who has been allotted such premises by the Bangalore Development Authority or any other local authority by way of an agreement of hire-purchase, lease or sub-lease, even before the full ownership rights accrue to such hire-purchaser, lessee or sub-lessee, as the case may be;'
7. A plain reading of the above would show that the legislature has not used expressions like "bonafide requirement, or reasonable requirement" or "bonafide and reasonable requirement" of the landlord. What is necessary is that the premises let to the tenant is 'required' by the landlord or a member of his family or by the person for whose benefit the premises is held. The absence of the expressions referred to above does not however make any material difference, for even in their absence, a 'requirement', in order to satisfy the essentials of Section 27(2)(r) must be bonafide and reasonable. What is not bonafide or what is unreasonable on a fair and objective assessment of the facts of a given case cannot be termed to be 'requirement' at all. In other words, reasonableness is an attribute implicit in the expression 'requirement' which need not be additionally prescribed by the statute.
8. In 'RAM DASS v. ISHWAR CHANDER AND ORS. the Supreme Court was interpreting a similar provision in East Punjab Rent Restriction Act, (1949). The statute like the Karnataka Rent Act, 1999 did not qualify the requirement by using expressions like 'reasonably' or 'bonafide' required. Their Lordships however held that the idea basic to such cases is that the need of the landlord is genuine and honest and conceived in good faith so that the Court may gratify the same. The Court observed:
"Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bonafide requirement of the landlord, variously described in the statutes as "bonafide requirement", "reasonable requirement' or, as in the case of the present statute, merely referred to as "landlord requires for his own use'. But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith: and that, further the Court must also consider it reasonable to gratify that need. Landlord's desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a 'requirement' in law must have the objective element of a "need". It must also be such that the Court considers it reasonable and, therefore, eligible to be gratified. In doing so, the Court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down." (emphasis supplied)
9. It may not therefore be correct to say that simply because the repealed enactment of 1961 provided for proof of reasonableness or the genuineness of the requirement of the landlord, the absence of any such specific expressions in the new enactment has made the same irrelevant. The true position appears to us to be that even without the use of expressions like 'reasonable requirement' or 'bonafide requirement', the landlord's requirement must be bonafide and reasonable for otherwise it cannot be termed as a requirement within the meaning of Section 27(2) (r) of the Act.
10. That brings us to the question whether a statutory presumption arises in favour of the existence of the landlord's requirement and if so what is the nature and effect of that presumption. The answer to the first part of that question is provided by a bare reading of Explanation-I to Section 27(2)(r), which raises a presumption as to the existence of the requirement of the landlord or any member of his family dependent upon him, if the application seeking eviction of the tenant is accompanied by an affidavit asserting such a requirement. It is evident from the language employed in the explanation that for the presumption to arise, the landlord has to do no more than support his application by an affidavit. To that extent, Section 27(2)(r) brings great relief for the landlords seeking eviction on the ground of personal necessity. The law as it stood before the introduction of the new enactment required the landlord to prove satisfactorily by leading evidence that he or any member of his family required the premises in question for his own occupation. The initial burden of proving that the landlord required the premises and that the same was reasonable lay entirely upon the landlord. The new enactment however marks a significant change in that scenario; to the advantage of the landlord. The law now presumes that the requirement of the landlord which implies his reasonable and bonafide requirement does in fact and law exist. The presumption is both in law and on facts as the existence of a requirement is a mixed question of fact and law. Given the statutory presumption in his favour all that the landlord has to prove to put the tenant to proof of the contrary is that he does not have any other reasonably suitable accommodation. That is because there is no presumption that the landlord does not have any other reasonably suitable accommodation available to him. That the presumption of requirement and availability of reasonably suitable accommodation are two distinct aspects under Section 27(2)(r) is also evident from the use of 'and' between the first part of Clause (r) which deals with the existence of the requirement and the second part which deals with the existence of availability of accommodation.
11. The next question then is whether the presumption regarding the existence of the requirement of the Landlord is irrebuttable as held by Reddy, J., in Ramachandra's case supra. The issue is directly covered by a recent decision of the Supreme Court in P. SURYANARAYANA (D) BY; LRS v. K.S. MUDDUGOWRAMMA., ILR 2004 KAR 2398 Before we refer to the said decision, we may point out that the Supreme Court has in M/ s. SODHI TRANSPORT Co. v. STATE OF U.P., authoritatively pronounced that a presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When the presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. The evidence then determines the true nature of the fact to be established. Reference may also be made at this stage to the following passage from the decision of the Supreme Court in IZHAR AHMAD KHAN v. UNION OF INDIA., "It is conceded and we think, rightly, that a rule prescribing a rebuttable presumption is a rule of evidence. It is necessary to analyse what the rule about the rebuttable presumption really means. A fact A which has relevance in the proof of fact B and inherently has some degree of probative or persuasive value in that behalf may be weighed by a judicial mind after it is proved and before a conclusion is reached as to whether fact B is proved or not. When the law of evidence makes a rule providing for a rebuttable presumption that on proof of fact A, fact B shall be deemed to be proved unless the contrary is established, what the rule purports to do is to regulate the judicial process of appreciating evidence and to provide that the said appreciation will draw the inference from the proof of fact A that fact B has also been proved unless the contrary is established. In other words, the rule takes away judicial discretion either to attach the due probative value to fact A or not and requires prima facie the due probative value to be attached in the matter of the inference as to the existence of fact B, subject, of course, to the said presumption being rebutted by proof to the contrary....."
12. Any further elucidation of the nature of the presumption available under explanation to Section 27(r) becomes unnecessary in the light of the decision of the Supreme Court in K.S. Muddugowramma's case (supra). That was also a case arising out of an order passed by a single bench of this Court in which this Court had disposed of a revision petition after coming into force of Karnataka Rent Act of 1999. Before the Supreme Court one of the question that fell for consideration was whether while applying the Provisions of the new Act, a presumption could arise as regards the existence of the requirement of the landlord, if so what was the nature of such a presumption. Answering the question in the affirmative, the Court held that a presumption did arise under explanation to 27(r) regarding the existence of the requirement of the landlord. But that presumption was a rebuttable presumption and could therefore be rebutted by the tenant by adducing evidence to the contrary. Following passage from the decision is in this regard apposite.
"The presumption enacted by Explanation-I(i) appended to Clause (r) of Sub-section (2) of Section 27 of the Act is mandatory and has to be drawn in view of the phraseology employed by the Legislature in enacting the provision which speaks -" the Court shall presume that the premises are so required." The presumption has to be drawn; of course the tenant may rebut the presumption. The mandatory presumption enacted by the 1999 Act shall have the effect of shifting the burden of proof; while the landlord may rest on the presumption, it will be for the tenant to rebut the same."
13. In the light of the above, the view taken by Reddy, J., holding the presumption to be irrebuttable does not appear to be correct. The true position in law is that while the landlord has the benefit of a presumption in his favour in cases where he pleads personal requirement for the premises under Section 27(r) and the explanation thereto, the tenant occupant can adduce evidence to rebut the said presumption. If any such evidence is adduced in rebuttal, it is for the Court to decide whether or not the presumption available to the landlord has been rebutted. The question referred to us is accordingly answered. The revision petitions shall now come up before the appropriate single bench for hearing and disposal in the light of the above.