Karnataka High Court
H. Hanumanthappa vs M. Krishnamurthy on 20 September, 1994
Equivalent citations: ILR1994KAR2895, 1995(1)KARLJ439
ORDER
Vasantha Kumar, J
1. These Revision Petitions arise out of proceeding initiated by landlord under Clauses (h) & (p) of Proviso to Sub-section (1), of Section 21 read with Section 21A of the Karnataka Rent Control Act numbered as HRC 1758/83 wherein the trial Court negatived the reliefs under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Act read with Section 21A of the Act sought by the landlord and allowed the relief sought for under Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act. Aggrieved by the order, both the Tenant and as well as the landlord have preferred these Revision Petitions.
2. C.R.P. 3571/88 is filed by the tenant aggrieved by the order passed under Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act. C.R.P. 4860/88 is filed against the order passed under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Act. One of the questions raised by the tenants relates to interpretation of Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act (of Part V).
3. Section 21. Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the Tenant. Provided that the Court may on an application made to it make an order for the recovery of possession of a premises on one or more of the following grounds only namely, Clause (p) reads:
"that the Tenant whether before or after the coming into operation of this part has built or acquired vacant possession of or been allotted, a suitable building."
Therefore it is the decision of the Court as regards the happening of one of the events contemplated under Clause (1) which is determinative of the matter and not the intention of the tenant in bringing about the happening of the event. Clause (p) lays down an independent condition under which a landlord, becomes entitled to possession inspite of the fact that he may not require the premises for his own use and occupation. This clause gives landlord an absolute right to obtain possession when the tenant has acquired vacant possession of or has been allotted a suitable building. But when the landlord requires the premises for his own occupation and the reasonable accomodation is available for occupation, we have to consider all the circumstances including the question whether other reasonable accomodation is available for the landlord or the tenant while coming to the conclusion of comparative hardship.
4. The question of intention of the tenant in acquiring such vacant possession is not relevant. To import intention of the tenant as a necessary ingredient would virtually leave the landlord (and as necessary consequence others who need rented premises) to the vagaries of a tenant who having acquired vacant possession of suitable building would say that he had no intention to go to reside there nor did he entertain that intention at the date of institution of proceeding.
5. The intention of Legislature in enacting Clause (p) is to see that premises are made available to those who are in greater need of them than those who build, acquire vacant possession of or allotment of suitable building. The tenant who builds, acquires vacant possession or gets allotted a suitable building has to handover possession of rented premises to the landlord so that others who need the rented premises from which he is sought to be evicted may get them. Therefore it is act of building, acquiring vacant possession or getting a suitable building which interalia is determinative of the operation of Clause (p); and which forfeits the protection given to the tenant under Section 21 of the Act and entitles the landlord to obtain possession of rented premises from such a tenant.
6. In growing Cities and Towns most of which are covered by the Rent Acts, more and more persons would be in need of premises, the Legislature by lifting the embargo on the landlord's right to recover possession under Clause (p) has tried to provide for these helpless persons who came to growing Cities and Towns.
Tenancy is the right vested in the tenant. The main purpose of the Act is the protection of tenants for eviction. When Clause (p) makes tenant liable to eviction, its effect is to divest the tenant of his right of tenancy. The intention of the Legislature is divesting the tenant of his right seems to be based on the fact that the tenant has legally built, or acquired vacant possession or allotted a suitable building as of right That is why the words used in the Clause (p) are built, acquired vacant possession or been allotted a suitable building.
7. If the tenant were to build a building for himself he will be legal owner thereof and the building would be vacant for him to use it thereon. The same would be the effect if the tenant were to acquire vacant possession of any other building in which no other person like tenant is living as of right and which therefore immediately available for occupation. The allotment of building means giving of such building to the tenant by owner or the authority in the control of such building.
8. The common element which runs through, is building built, acquiring vacant possession and allotment of suitable building and as such the tenant would be entitled to occupy the building so built, acquired or allotted legally as of right. It is only on tenant acquiring of such a right that he is deprived of existing right of tenancy by Legislature. Mere occupation of a building without a legal right, without any enforceable right to stay would not be covered. If the tenant has no legal right to stay, if by mere unity of the family require the tenant to stay in the building of the other members of the family, the occupation of the tenant of such building is only accidental circumstance which is irrelevant in the construction of Clause (p). Tenant himself should acquire vacant possession of another building before he is liable to eviction. The force of the language cannot be whittled down by arguing that Clause (p) would apply even if it is not the tenant himself but his wife, son, daughter or other relatives were to acquire, build or get allotted such other building. As a general proposition of law the acquisition of other building must be by the tenant himself before applying Clause (p).
9. It is open for the tenant to resist and contend that his right as a tenant to the premises in his occupation, is not affected by acquisition of building by other members of the family, Scheme of various provisions under the Rent Act set out different causes of action which arise in favour of the landlord for filing an eviction petition against the tenant whether the state of affairs constituting a cause of action must continue till the filing of the petition or till the order of eviction is passed or whether its existence at the time of arising of the cause of action is sufficient to enable the landlord to file the eviction petition and obtain an order of eviction depends entirely on the individual nature of each cause of action. No rigid rule can be laid down either that use of present perfect tense means that the state of affairs must continue till the date of filing of the petition or the passing of the order of eviction or whether it need not continue till the date of filing of the Petition or the passing of the order of eviction or whether it need not continue beyond the date of the cause of action. Some of the Proviso to Sub-section (1) of Section 21 of the Act describe certain acts done by the Tenant constituting cause of action.
10. The landlord gets the right to apply for eviction of a tenant due to the certain acts of the tenant. It cannot therefore lie within the power of the tenant to deprive the landlord of the right which was arisen in his favour by pleading that he has since then ceased to continue doing those acts and therefore the cause of action in favour of the landlord should also be deemed to have come to an end.
11. The Reason is that Proviso becomes applicable on the commission of such acts by the tenant and do not indicate the necessity of continuance of those acts or changes the situation to make it as it was before the commission of such acts the result is that at a subsequent date that such acts cease to continue. But such a subsequent change cannot wipe out the fact that these acts were committed by the tenant and for some time they continued as such. It cannot be open to the wrong doer himself to put the aggrieved party out of Court by subsequently changing the situation unilaterally.
12. Under Clause (p) the cause of action in favour of the landlord arises in three ways
1. If the tenant has built a building
2. has acquired vacant possession of it
3. been allotted a suitable building If the tenant has built a building cause of action arises in favour of the landlord and the same cannot be destroyed at all in as much as it is conceivable that building so built can itself be destroyed by the tenant. Even if it is destroyed the tenant cannot take advantage of his own wrong to defeat the Petition filed by the landlord. According to Oxford English Dictionary the word acquires means to gain or get as one's own (by one's own exertion or quality). According to Ramanatha Iyers Law Lexicon the word acquire means to become the owner of the property to make properly one's own, acquire means to have gain or to get interest in the property ordinarily the word in the statute must receive an ordinary meaning. But a word may have wider or limited meaning by reason of the context or its purpose. The Court has while construing a statutory provision to consider the language used, relevant provisions circumstances under which the Statute was enacted and its purpose.
13. The same reasoning would apply to the acquisition of vacant possession of building by tenant. The mere fact that the tenant has disposed of the building or that he has letout to others does not efface the fact that he had once acquired it and thus gave a cause of action to the landlord for filing a Petition for eviction, Similarly if the building is allotted to the tenant it could not be visualised as to how subsequent disposal of the same by tenant would bring about a situation in which tenant would be deemed not to have been allotted.
14. Essence of Clause (p) is the acquisition by the tenant of a building other than the premises in dispute and that acquisition was capable of being used or was actually being used by the tenant and it must be such by its acquisition the protection afforded to the tenant against eviction by the Act is forfeited; and that other building is capable of reasonably meeting the requirements of the tenant on his vacating the disputed premises. Acquisition of building may be by inheritance, devise, purchase, partition, prescription, gift or in any manner whatsoever and must receive wider connotation having in view of the objects of the Act. The word acquisition and the verb acquire have definite meaning recognised by Judicial pronouncements and whenever it is used relating to property it necessarily postulates change of relationship vice versa a thing or property which is said to be acquired and which was not existing before. The notion of ownership of the property implies various component rights namely that of possession, enjoyment, destruction, alienation, exclusion and other factors incidental to ownership. In Re Heyden's case 1584 310 RCP 79 (Relied in AIR 1967 SC 986, according to Lord Coke the passage reads to arrive at real meaning it is always necessary to get an exact conception of aim, scope and object of the whole Act, factors such as:
1) What was the law before the Act was passed
2) What was the mischief or defect for which law had not provided.
3. What remedy Parliament has appointed.
4. The reasons of the remedy.
15. The landlord has examined himself as PW1 and got marked 16 documents as exhibits P1 to P16 and the tenant has examined himself as RW1 and got 5 documents marked as exhibit D1 to D5.
16. Landlord has pleaded that the Petition schedule premises as being required for his bonafide and reasonable requirement on the ground that even though he is resident at Hassan, he intends to come over to Bangalore to stay nearer to his relatives who are permanently stationed at Bangalore on account of his and his wife's failing health and also to provide higher educational facility to his son who has completed Pre-University education. This Petition was filed on 22-6-83.
17. During the pendency of eviction proceedings the landlord got incorporated Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act in the Petition, in the year 1987 as one of the grounds warranting eviction. The nature of the averments pleaded by way of amendment reads as follows:
Para 7 reads: The petitioner has since learnt that the respondent is having premises of his own in Koramangala Layout Bangalore. The respondent is a Government servant and he was allotted petition schedule premises. As he owns his own premises in Koramangala layout Bangalore City he is liable to vacate the petition schedule premises and to occupy his own premises."
The tenant disputed the factum of his acquiring building of his own.
18. The admitted facts being that tenant as a Government servant got allotted the Petition schedule premises through House Rent Controller on 14-12-77.
Landlord adduced evidence regarding acquisition of building by the tenant by producing the possession of certificate marked as Exhibit P16.
P16 is of date 20-9-78. The relevant Memo reads:
Mysore Housing Board Bangalore Date: 20-9-1978 MEMO The possession of the building bearing No. 18 constructed on Site No. 18 in Block No. Koramangala Layout Bangalore Extension measuring East to West 74 1/2 + 73ft North to South 45 and bounded by the following has been handed over to Shri Dr. R. Hanumanthappa on 20-9-78.
BOUNDARIES North site No. 17. East Site No. 31 South site No. 19. West by Road Boundaries verified and found correct.
Assistant Engineer Mysore Housing Board.
Taken possession of the building constructed on site No. 18 in Block No Koramangala layout Bangalore Extension this day 20th of September 1978 in good and satisfactory condition.
Sd/-
Allottee Tenant Dr Hanumanthappa has disposed in his evidence as follows:
"It is true during 1977, I applied to Karnataka Housing Board in Middle Income Housing Scheme. It is true I have been allotted house No 18 at Koramangala and possession has been delivered on 20th September 1978. It measures 74 1/2 x 73. I have not occupied that house. It is not correct to say that I let ii out to others. I leased the said to my friend. He let out that house. My friend is one Sri Rama Reddy Chintamani. I know the house of Shri Rama Reddy I leased out to Sri Rama Reddy for one lakh during 1980".
19. Subsequently tenant pleads that the house at Koramangala as being the subject matter of mortgage and possession having been handed over to mortgagee. Smt Kumuda Rao contends that as on the date of initiation of eviction proceedings, namely 22-6-83 the premises No 18 situate in Koramangala Layout which was allotted to the tenant was not vacant and the same had been in possession of mortgagee and as such, there was no cause of action for the landlord to initiate eviction proceedings. What is to be noted is that on 22-6-83 the landlord had sought reliefs only under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Act but subsequently the landlord got reliefs amended and pleaded causes under Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act read with 21-A of the Act warranting eviction. Smt Kumuda Rao relies strongly on the ratio of Decision in GANGADHARA SETTY v. THIRUKAPPA SETTY Relevant passage is found at para 14:
Para 14 reads: "In other words, the Karnataka Act does not restrict to either any special kind of tenancy or to residence only as in the Delhi Act and the Bombay Act. The result is that acquisition of any kind of building by the tenant either by allotment, purchase, gift, mortgage with possession, by construction or by allotment by the Controller will give cause of action to the landlord to sue for eviction whether the landlord requires the house in question for his own use and occupation or on any of the other grounds under the Act. In other words, by arrangement and intent the Legislature appears to have put this provision rather as on dependent ground available to the landlord. In this view of the matter, it will not be possible for the Court to treat the ground available at Clause (p) of the Act as a complimentary ground to anyone of the other grounds enumerated in Clause (a) of Sub-section (1) as Section 21 of the Act. Therefore, the only way to construe the provision is on the basis of the defence built in the provision for the tenant. What is also not clear in the Section is whether a building built by the tenant should be vacant at the time the landlord seeks eviction. I would be inclined to consider that it should be vacant having regard to the other two modes by which vacant possession of a building is to be obtained by the tenant to give rise to the cause of action to the landlord. There cannot be a distinction between one of the modes setout as against the other modes. I am of the view that if the building built by the tenant is not vacant at the time the petition is presented, then the landlord cannot seek eviction of the tenant from the tenanted premises. This is in regard to the construction possible of the provision itself. This case need not be decided on such interpretation, it has been discussed so that Legislature will have a second look at the provision."
What is to be noted is that this Court did not lay down any law except to be stated, that this case need not be decided on such interpretation. !t has been discussed so that Legislature will have a second look at the provision.
20) Attention was invited to the ratio decided in BHEEMSINGH v. HEMAVATHI . Relevant passage is found at Para 4.
Para 4 reads: "It appears to me that the ground made out under Section 21(1)(p) of the Act, by the Trial Court cannot be sustained in view of the fact that the petitioner had acquired the premises even before he became the tenant of the schedule premises. It is only when the tenant has built, or acquired vacant possession of, or been allotted a suitable building the provisions of Section 21(1)(p) of the Act are attracted and not otherwise. Any one of the aforesaid events must take place only after the person becoming the tenant of the premises from which he is sought to be evicted. If anyone of or all of the events had taken place even before the person became the tenant of the premises from which he is sought to be evicted the provisions of Section 21(1)(p) of the Act are not attracted because the expression used in Section 21(1)(p) of the Act is that "the tenant.... has built, or acquired vacant possession of, or been allotted a suitable building." In the instant case, the petitioner had not become the tenant of the premises in question when he acquired the other accommodation. On the date he became the tenant of the premises in question he was already in possession of the other premises. Therefore, the Court below is not right in applying Section 21(1)(p) of the Act and passing an order of eviction on that ground, However, this conclusion does not help the petitioner in view of the fact that the eviction order is sustainable on the ground falling under Section 21(1)(h) of the Act."
21. As already discussed supra, Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act would become operative immediately when the tenant acquired vacant possession of the building in question. Since the intention of Legislature in enacting Clause (p) is to see that tenanted buildings are made available to those who are in greater need of them than the tenant who acquired vacant possession of suitable building as it is obligatory for the tenant who acquired vacant possession of suitable building to handover possession of the rented premises from which tenant is sought to be evicted may get them. It is the act of acquiring vacant possession of suitable building which inter alia is determinative of operation of Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act. The other acts which are determinative of this question are the acts of building a suitable building or the act of third party or agency of allotting a suitable building to the tenant.
22. It is obvious that under the provisions relating to restriction of rent, the landlord even after obtaining possession of the building cannot charge higher rent from other tenants. The very fact that Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act provides for recovery of possession of rented premises from the tenant by the landlord on ground other than set out under the other clauses is suggestive of the intention of the Legislature to make rented building available from time to time to other needy persons as and when the events specified in Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act occur.
Suffice to say that reasonings recorded and findings arrived at by the Trial Court while granting relief under Clause (p) of Proviso to Sub-section (1) of Section 21 of the Act stand to reason and they remain undisturbed. CRP 3571/88 filed by the tenant is dismissed. Section 21 -A is not applicable to facts of this case.
23. As far as relief sought for by the landlord warranting eviction of the tenant under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Act it is to be stated that landlord has miserably failed to establish the bonafide and reasonable requirement.
24. Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events. It is admitted that landlord has been staying at Hassan since 1977, nurtured and nourished his family at Hassan and even after retirement he has been rendering service at Hassan by associating himself with Malnad Engineering College. His version that landlord is paying rent to his daughter in respect of the house in his occupation has not been relied upon by the trial Court. No evidence worthy of credence has been adduced by landlord to seek eviction of the tenant under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Act. As such findings arrived at by the Trial Court in negativing relief under Clause (h) of proviso to Sub-section (1) of Section 21, of the Act stand to reason and the same remains undisturbed. Hence CRP 4860/88 filed by the landlord is dismissed.
25. Accordingly the findings of the trial granting relief under Clause (p) of the Proviso to Sub-section (1) of Section 21 of the Act is hereby confirmed. Six months time is granted to the tenant to vacate and handover vacant possession to the landlord.
26. Both Civil Revision Petitions are dismissed accordingly.