Karnataka High Court
Manikchand Joshi vs Special Deputy Commissioner on 27 November, 1991
Equivalent citations: ILR1992KAR1946, 1991(3)KARLJ661
ORDER N.D.V. Bhat, J.
1. These three Writ Petitions are directed against the orders passed by the Divisional Commissioner, Bangalore Division, Bangalore in HRC. Appeal No. 7/89-90, HRC Appeal No. 6/89-90 and HRC Appeal No. 5/89-90 respectively. The said appeals were preferred by the respective petitioners, before the Divisional Commissioner against the order dated 20-10-1989 passed by the Special Deputy Commissioner (Revenue) Bangalore District, Bangalore on an application filed by respondents-3 to 6 in these three petitions under Section 37(b)(c)(d) & (e) of the Karnataka Rent Control Act (for short 'the Act'). The Divisional Commissioner in the said three appeals has confirmed the order passed by the Special Deputy Commissioner.
2. The facts necessary for the disposal of these three petitions, briefly stated, are as under:
The present respondents-3 to 6 were the petitioners before the Special Deputy Commissioner (Revenue) Bangalore District, Bangalore. They had filed an application before the Deputy Commissioner under Section 37 of the Act praying for an order against opponents-8 to 18 therein directing them to put the applicants in vacant possession of the portion of the property described in the schedule to the said application. It was alleged that the said opponents that is to say, opponents-8 to 18 before the Deputy Commissioner were in occupation of the scheduled premises as lodgers. The case made out by the applicants who are respondents-3 to 6 in the present Writ Petitions was as unfler:
Applicant-1, before the Deputy Commissioner, Smt. N. Bhagyalaxmi is the wife of late N.S. Nagaraj and applicants-2 to 4 before the Deputy Commissioner are the children of N.S. Nagaraj by Smt. Bhagyalaxmi, Nagaraj had leased out the property to opponents-1 to 7 (opponents before the Deputy Commissioner). The said applicants had filed eviction petition under Section 21(1) of the Act in HRC.No. 268/86 before the Small Cause Court on the ground that the properties in question were required for their use and occupation and also for immediate demolition and reconstruction. The said application culminated in an order dated 6-6-1987 for eviction, in the said case, the other opponents (opponents before the Deputy Commissioner) including the present petitioners in these three petitions, were not made parties as they were lodgers occupying the different portions of the property. However, the said order of eviction passed against opponents-1 to 7 was challenged by the rest of the opponents before this Court in C.RP.Nos.3427/1987 and 3614/1987, This Court in the said Revision directed that the execution of the order passed by the Small Cause Judge in H.R.C.No. 268/88 be stayed. Opponents-1 to 7, however, delivered vacant possession of the portions to the applicants of the properties which were in their possession. The properties which were in the possession of opponents-8 to 18 continued to be in their possession. However, according to the case made out by the applicants, opponents-1 to 7 delivered symbolic possession of the same. They also issued notice to the other opponents to at torn to the instant respondents-3 to 6, The applicants also alleged in their application before the Deputy Commissioner that the same is required for immediate purpose of demolition and re-construction.
3. Opponents-8 to 18 resisted the petition by their separate objections filed before the Deputy Commissioner. In substance, they took up a contention that the applicants (instant respondents-3 to 6) are neither the owners of the lodging house nor the managers thereof. They also took the other contentions which are reflected in detail in the order passed by the Special Deputy Commissioner. The Special Deputy Commissioner is shown to have examined the instant respondent-3 Smt. Bhagyalaxmi as also one of the present Writ petitioners that is to say, Champaklal. He also received in evidence certain documents on behalf of the present respondents-3 to 6. On a consideration of the evidence on record adduced before him and for the reasons reflected in his order dated 20-10-1989 the Special Deputy Commissioner took the view that the present respondents-3 to 6 are the owners of the lodging house and that they are entitled to recover the possession of the properties in question from opponents-8 to 18. It is also necessary to mention here that the Deputy Commissioner has passed an order on an earlier occasion holding that the suit property is a lodging house.
4. Being aggrieved by the said order, opponent-11 Manikchand Joshi, opponent-8 Vikram Parekh and opponent-15 Champalai filed HRC. Appeal No. 7/89-90, HRC. Appeal No. 6/89-90 and HRC. Appeal No. 5/89-90 respectively before the Divisional Commissioner, Bangalore Division, Bangalore. The other affected opponents also are shown to have preferred appeals before the Divisional Commissioner, The Divisional Commissioner, for the reasons reflected in his common order in all these appeals, dismissed the said appeals. Being aggrieved by the same three of the appellants before the Divisional Commissioner, that is to say, Manikchand Joshi, Vikram Parekh and Champlal have preferred the aforesaid three Writ Petitions, viz., W.P.Nos.23104/90, 23105/90 and 23106/90 respectively.
5. I have heard Sri R.B. Sadashivappa, learned Counsel for the petitioners in all these three Petitions and Sri P.R. Nanjundaswamy Setty, learned Counsel for respondents-3 to 6 in all these Petitions.
6. The main thrust of submission made by Sri Sadashivappa, learned Counsel for the petitioners in these Petitions is that both the Special Deputy Commissioner and the Divisional Commissioner have missed the basic distinction between "the owner of a lodging house" and "the owner of the building", with the result, the orders passed by the said authorities are rendered erroneous. Dilating on this aspect, the learned Counsel contended that while the owner of a lodging house can certainly avail of the provisions of Section 37 of the Act, the owner of the building cannot avail the same. It was argued by the learned Counsel that late Nagaraj, the predecessor-in-title of the instant respondents-3 to 6 was only an owner of the building and it was only deceased Diwakar who was running the lodging house and that what was leased to Diwakar was not a lodging house, but only the building and that therefore, it was not within the competence of Nagaraj or for that matter his successor-in-title all fall in the provision of Section 37 of the Act of all. Sri Sadashivappa, learned Counsel for the petitioners invited the attention of this Court to the document produced on behalf of the instant respondents-3 to 6 and with reference to the recitals therein submitted that they would not support the contention of respondents-3 to 6 that either they or their predecessor-in-title are the owners of the lodging house. It was, therefore, argued by the learned Counsel that both the authorities below ought to have dismissed the application filed by the present respondents-3 to 6 as being not maintainable. The learned Counsel, Sri Sadashivappa also contended that they are the tenants and not the lodgers. It was argued that they are using the premises in question for occupation and that all of them are businessmen. It was contended that the lodge has ceased to exist and what has remained is only a building. In this connection, it is also pointed out that Nagaraj died on 31-5-1983 and the form and licence produced before the Special Deputy Commissioner would go to show that the amount was credited on 24-6-1989 and notwithstanding the death of Nagaraj back in the year 1983 the licence still stands in his name only. This, according to Sri Sadashivappa, would aid suspicious with reference to the genuineness of the said license. In otherwords, it appears to be the contention of Sri Sadashivappa that the said "form of licence" was stage managed. Learned Counsel also invited the attention of this Court to the evidence of Smt. Bhagyalaxmi (instant respondent-3) wherein she is shown to have stated that her husband (Nagaraj) had not run the lodging house at any time. Marshalling his submissions on these lines with reference to the details relating to the same, the learned Counsel contended that the order passed by the Special Deputy Commissioner and confirmed by the Divisional Commissioner is liable to be set at naught.
7. On the other hand, Sri Nanjundaswamy Setty, learned Counsel for respondents-3 to 6 submitted that late Nagaraj was the owner of the lodging house within the meaning of that expression as defined in Section 3(1) of the Act and that the building in question is a lodging house. The learned Counsel, Sri Nanjundaswamy Setty in particular invited the attention of this Court to the assertions made by the instant petitioners before this Court in their Revision Petitions which are also referred to and dealt with by the authorities below. Dilating on this aspect, the learned Counsel contended that the instant petitioners cannot blow hot and cold in the same breath. Having asserted earlier that they are the lodgers, they cannot now turn round and say that the application filed by the instant respondents-3 to 6 under Section 37 of the Act is not tenable, it was emphasised by the learned Counsel that late Nagaraj was not merely the owner of the building, but he was the owner of the lodging house itself. It was further argued that the recitals in the document entered into between Nagaraj and Diwakar and others would go to show that what was leased was a lodging house and not just a building. The learned Counsel also contended that the fact that the licence of the building stood in the name of Nagaraj lends support to his contention that what was leased was a lodging house and not just a building. On these lines, in substance, the learned Counsel for respondents-3 to 6 contended that the Writ Petitions are liable to be dismissed. Sri Umakanth, learned Government Pleader supported the order of the authorities below.
8. I have given my anxious consideration to the submissions made on either side. The precise question for consideration is as to whether the application filed by the instant respondents-3 to 6 under Section 37 of the Act is maintainable. This question will have to be answered in the context of the provisions of Section 3(a)(iii); Section 3(g); Section 3(1); Section 37 of the Act and in the light of the documents produced before the Special Deputy Commissioner, as also oral evidence adduced before him. Section 3(a) of the Act defines a 'building' as under:
"building" means any building or hut part of a building or hut other than a farm house, let or to be let separately for residential or non-residential purposes and includes -
(i) the garden, grounds and outhouses, 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) any furniture supplied by the landlord for the use in such building or hut or part of a building or hut;
(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or a lodging house."
Section 3(g) of the Act defines 'hotel' or 'lodging house' as under:
"hotel" or "lodging house" means a building or a part of a building where lodging with or without board or, other service is by way of business provided for a monetary consideration:"
Section 3(1) of the Act defines "owner of the lodging house" as below:
"owner of a lodging house" includes any person who receives or is entitled to receive, whether on his own account or on behalf of himself and others or as an agent or trustee, any monetary consideration from any person on account of board, lodging or other service:"
Section 37 of the Act reads as under;
"37. When manager of a hotel or owner of a lodging house may recover possession - notwithstanding anything contained in this Act, a manager of a hotel or owner of a lodging house shall be entitled to recover possession of the accommodation provided by him to a lodger on obtaining a certificate from the competent authority certifying that -
(a) the lodger has been guilty of conduct which is a nuisance or an annoyance to any adjoining or neighboring lodger; or
(b) the accommodation is reasonably and bonafide required by the owner of the hotel or lodging house, as the case may be, either for his own occupation or for any other cause which may be deemed satisfactory by the competent authority; or
(c) the lodger is habitually irregular in making payment of the charges for board, lodging or other service provided in the hotel or lodging house; or
(d) the lodger has failed to vacate the accommodation on the termination of the period of the agreement in respect thereof; or
(e) the lodger has done any act which is inconsistent with the purpose for which the accommodation is provided to him or which is likely to affect adversely and substantially the owner's interest therein."
9. The question as to whether the application under Section 37 of the Act is maintainable will mainly hinge upon the answer to the question as D whether respondents-3 to 6 could be construed as the managers of he hotel or the 'owners' of the lodging house, in this context, the definition of the term 'building', the definition of the term lodging house' and the definition of the term 'owner of a lodging house' will have to be understood in a correct perspective. The definition of these terms incorporated in the Act are already alluded to earlier. It can be seen that the essential element of a hotel or a lodging house as defined consists of providing lodging for a monetary consideration and this should be by way of business, it is also significant to note that the term 'building' excludes from its connotation a room or other accommodation in a hotel or a lodging house. This is clear from the definition of the term 'building', in Section 3(a)(iii) of the Act. At the same time, it is indeed significant to notice that a hotel or a lodging house is also a building or a part of the building, where lodging with or without other services by way of business is provided for monetary consideration. This is clear from Section 3(g) of the Act. Though it may appear that there is an element of contradiction with reference to the definition of 'building' and the definition of a 'hotel' or a 'lodging house', when juxtaposed with each other, a little reflection should resolve this contradiction. On a perspicacious examination of the aforesaid terms it appears to me that although a room or other accommodation in a hotel or lodging house is excluded from the definition of 'building', 'hotel' or a 'lodging house' taken as a whole, as distinct from its rooms or accommodation provided for the lodgers, will be a building or a premises as between the owner of the hotel and his landlord. In fact, such a view gains support from the Decision in JHAMANDAS RAMCHAND v. STATE OF BOMBAY, 57 Bombay Law Reports 938. hasten to add here that the Decision in the said case was given in the context of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short 'the Bombay Rent Act'), However, it is necessary to mention here that in the Bombay Rent Act, 'premises' includes any building or part of a building including any fittings affixed to such building or part of a building, but does not include a room or other accommodation in a hotel or lodging house. In our Act also the 'building' does not include a room or other accommodation in a hotel or lodging house. In this view of the matter, the ratio of the Decision in the aforesaid case would apply equally to the cases arising under the Karnataka Rent Control Act also with reference to this aspect. I am in respectful agreement with the view expressed by the Bombay High Court in the aforesaid case. Under these circumstances, I have no hesitation to hole that though a room or other accommodation in a hotel or a lodging house is excluded from the definition of a 'building', 'hotel' or 'lodging house taken as a whole, as distinct from room or accommodation provided for lodgers will be premises within the meaning of that expression in Section 3(n) of the Act [which expression also includes a building as defined in Section 3(a) of the Act], as between the owner of the hotel and his landlord.
10. From what is stated hereinabove, it follows that the distinction between the owner of a premises and owner of a lodging house though thin, is clear. At this juncture, it is necessary to notice that Section 37 of the Act enables the manager of a hotel or an owner of a lodging house, to recover the possession of the accommodation provided by him to a lodger, in the way and manner as indicated therein. Section 37 is already culled out earlier. It is significant to note here that Section 37 is a special provision contained in a separate "part" of the Act viz., Part-VI. While Section 21 of the Act failing under Part-V of the Act, provides for a remedy to a landlord to evict his tenant from the 'premises', Section 37 of the Act provides that the manager of a hotel or the owner of the lodging house is entitled to recover possession of an accommodation provided by him to a lodger on obtaining a certificate from the competent authority on the grounds enumerated thereunder. It is therefore clear that while the owner of a 'building' who has let out the same to a person who is providing lodging by way of business, should proceed under Section 21(1) of the Act to evict him, the latter should avail himself of the provisions of Section 37 if he wants to be entitled to recover possession of the accommodation provided to a lodger. The said provision is not meant to the owner of the 'building' or 'premises'. It is meant for the benefit of the person who runs a lodging house and who has provided accommodation to the lodger. The expression 'accommodation provided by him to a lodger' in Section 37 lends support to such a conclusion. I hasten to add here that if the owner of the building himself runs a lodge therein, it is obvious that he should have recourse to Section 37 to be entitled to recover possession of the accommodation provided to a lodger. If Section 37 of the Act is read in conjunction with the definition of the term 'lodging house' in Section 3(g); the definition of the terms 'owner of a lodging house' in Section 3(1), called out earlier hereinabove, it appears to me that the expression 'owner of the lodging house' in Section 37 is referable only to the person who provides lodging as a business.
11. The question as to whether respondents-3 to 6 can have recourse in law to the provisions of Section 37 of the Act, will have to be answered in the context of the above discussion. As pointed our earlier respondents-3 to 6 are successors-in-title of late Nagaraj. There is no dispute that on 6-5-1965 there was a lease agreement between Nagaraj on the one hand and M. Ragunath Rao and M.S. Diwakar on the other. Sri Nanjundaswamy Setty has produced a typed copy of the said lease deed which was produced before the Special Deputy Commissioner. Since the recitals in the said lease deed throw light on the questions in controversy it would be in fitness of things to cull out the same. It is a document executed by the aforesaid two persons in favour of late Nagaraj. The portion relevant for consideration in the said lease deed reads as under:
A perusal of the recitals culled out hereinabove would go to show that even when the hotel was run by the lessor the same was purchased by M.S. Diwakar. It is therefore clear that the running concern or business in the building was already sold by Nagaraj and what, remained with him thereafter was only the ownership of the building and the same was leased by him on 6-5-1965. It is not as if the 'business' in the building was run thereafter for and on behalf of late Nagaraj, The recitals in the lease agreement completely excluded the same. It is also clear from the said document that the lease of the premises was taken for the purpose of using the same for running the lodge. There is no dispute between the parties that the instant petitioners were inducted by Diwakar. The petitioners have unequivocally stated in the Revision Petitions filed before this Court that they are lodgers paying lodging charges though an attempt is made by Sri Sadashivappa, learned Counsel for the petitioners, to contend that they are tenants under Diwakar. At this juncture, it would be Indeed necessary to note the distinction between the term 'tenant' and the term lodger. A lodger has no estate or interest in the property, A lodger in a hotel although he has exclusive use of certain rooms, in the sense that nobody else is to be there is not in exclusive possession in the sense in which a tenant is; although a lodger may have exclusive use of the rooms, there is a concurrent right reserved by the owner of the lodging house to use the lodging house for whatever purpose he may think for managing the establishment and for all purposes connected with it. In this connection, the Decision in RICHARD GORY AND ORS. v. WILLIAM BRISTOW, Law Reports - Appeal Cases 2 1876.7 Page 262 @ 276 will throw a good deal of light. In the said case, among other things, it is pointed out as under:
"An illustration has been given in the course of the argument, which is commonly given in cases of this character, that of a landlord of an hotel, or the landlord of a lodging house, in which case although a person sleeping at the hotel may have the exclusive use of his bedroom for the night, or the exclusive use of a sitting room during the day, or a lodger the exclusive use of the chambers he occupies, still there is a concurrent right reserved by the landlord of the hotel or the person who lets the lodgings, of using the hotel or lodging-house for whatever purposes he may think fit for managing the establishment and all purposes connected with it. That is not such an occupation on the part of the lodger or the guest at the hotel as would make him liable to be rated."
12. In other words, the occupation of a lodger is subordinate to the occupation of the person running the lodge. I n that view of the matter, the nature of the possession of a lodger is that of a licencee, though the 'owner' of a 'lodging house' shall have recourse to the eviction of lodger by the procedure provided under Section 37 of the Act. As pointed out earlier, the circumstances of the case, would indeed indicate that these petitioners were inducted as lodgers. In fact, it is their assertion in the Revision Petitions which they have filed before this Court against the order of eviction obtained by the instant respondents-3 to 6 in H.R.C. No. 268 of 1986. Further, the two authorities below i.e., the Special Deputy Commissioner and the Divisional Commissioner have given concurrent finding on this aspect and I do not find any justifiable ground to take a view different from the one taken by them. Under these circumstances, I have no hesitation to hold that these petitioners were lodgers.
13. Sri Nanjundaswamy Setty, learned Counsel for respondents-3 to 6, however, contended that the licence regarding the lodging house was issued in the year 1970-71 and that the same was renewed from time to time in the name of Nagaraj. In this connection, the learned Counsel invited the attention of this Court to the Licence No. 338/89-90, placed at page-90 of the file of the Special Deputy Commissioner. The same would go to show that the licence was valid upto 31 -3-1990. At this juncture, it is necessary to mention here that Nagraj died on 31 -5-1983 and that the same is not disputed. Sri Nanjundaswarny Setty, however, submitted that the death of the licencee does not terminate the implied licence in favour of the other members of the family and in this connection, he invited the attention of this Court to the commentary under Section 54 in the book "Easements and Licence" by Katiar. He has also drawn the attention of this Court to the documents referred to in the deposition of Smt. Bhagyalaxmi (R-3) the wife of deceased Nagaraj. Marshalling his submission with reference to the same, Sri Najundaswamy Setty contended that deceased Nagaraj was the owner of the lodging house as also the owner of the building. In fact, the submission made as above, did weigh with the learned Special Deputy Commissioner as can be seen from his order dated 18-8-1989 by which the Special Deputy Commissioner has held that the application filed by the instant respondents-3 to 6 under Section 37 of the Act is maintainable. The Special Deputy Commissioner has, in the course of his order, among other things, observed as under;
"The learned Counsel for the petitioners in his arguments has contended that though the lodge was being run by Sri M.S. Diwakar the licence to run the lodge issued in the year 1970-71 is in the name of late N.S. Nagaraj and that it has been renewed from time to time. To substantiate his stand the learned Counsel has produced the licence book wherein the licence No. 338/89-90 has been issued till 31st March 1990 in the name of N.S. Nagaraj. Replying the contentions of the teamed Counsel for the 18th respondent, the petitioners' Advocate has contended that though N.S. Nagaraj is no more, the licence was renewed in his name, and that there is no bar to renew the licence in a dead man's name and that as long as the licence is in existence, the premises should be taken as a lodge.
The learned Counsel further pointed out that in Civil Revision Petition 3614/87 and 3427/87, the respondents before the Hon'ble High Court have admitted the fact that they are the lodgers and not tenants. In this regard he has drawn the attention of this Court to exhibit P11 and P12 which are the certified copies of the CRP filed before the Hon'ble High Court. The learned Counsel further contended that there is no bar to the licencee to ask some one else to run the lodge and that the respondents 8 to 18 being only lodgers and not lessees will be the lodgers under the licence holders. He further contended that the lodgers cannot questioned the validity of the licence issued by the Corporation as it is a matter between the licence holder and Corporation. In this regard he has produced a photostat copy of the judgment copy of the High Court in Civil Revision Petition No. 895/82.
Replying arguments of the learned Counsel for the petitioner the learned Counsel for the 18th respondent has contended that a licence should be in the name of a surviving person and a licence standing in the name of a dead person cannot be a valid licence and also that at no time the petitioners had taken the stand that late Nagaraj was running the lodge but it was Sri Diwakar who was running the lodge according to the petitioners.
As rightly contended by the learned Counsel for the 18th respondent, the licence No. 338/89-90 is valid upto 31-3-1990 has been issued recently and it does not bear a date. It was therefore felt necessary to verify the gentility of the licence and accordingly the Commissioner of Bangalore City Corporation and the Medical Officer, Chickpet area were addressed to clarify the matter. In his reply the Medical Officer of Health, Chickpet Range in his letter dated 11-7-1989 and 9-8-89 has clarified that the licence was actually issued in the year 1970-71 and that it has been renewed from time to time. He has also furnished a true copy of the register maintained in his office. As could be seen in the true copy of the true copy of the register the licence was renewed in the year 1984-85, 85-86, 86-87 and 88-89. According to the Medical Officer the earlier entries are not available with him. But at any rate it becomes clear that a Boarding and lodging licence was in existence in the name of N.S. Nagaraj atleast from the year 1984-85. No doubt the building was leased to the respondents-1 to 7 by the petitioners and according to them it was the respondents 1 to 7 who were running the lodge. But there should be no bar for the respondents 1 to 7 to run the lodge even when the licence was in the same of late N.S. Nagaraj as no law or rule has been placed before this Court to show that such an bar or prohibition exists. The understanding or agreement between late N.S. Nagaraj and the respondents-1 to 7 cannot be questioned in this forum. As regards the continuation of the lodging licence in the name of a deceased person, 1 am of the opinion that it is a matter to be attended to by the Bangalore City Corporation and this Court need not go into that aspect. therefore held that as far as this proceeding is concerned the building was being used as a lodge with the valid licence. As pointed out by the learned Counsel for the petitioners the respondents in CMI Revision Petitions 3614/87 and 3427/87 have admitted the fact that "New Krishna Bhavan Lodge" is a lodging house and also that they are the lodgers in the said lodging house. Having taken this stand before the Hon'ble High Court they are estopped from pleading that they are not the lodgers and also that "New Krishna Bhavan Lodge" is not a lodging house. Without going into other grounds taken up during the arguments, I conclude that the building involved in this petition i.e., "New Krishna Bhavan Lodge" is a lodging house and respondents-8 to 18 are lodgers in that building."
(underlining supplied) A perusal of the portion of the order of the Special Deputy. Commissioner culled out hereinabove would go to show that the Special Deputy Commissioner has missed the essence of the matter. After having observed in the way and manner as is disclosed in the portion underlined, the Special Deputy Commissioner has failed to consider the impact of the same with reference to the legal status of Nagaraj on the one hand and Raghunath Rao and Diwakar referred to there on the other. Once when it is undisputed that the building was leased and the lodge was run by the lessees, the logical corollary flowing from the same will take effect and the other circumstances referred to by the Special Deputy Commissioner are not at all germane to the crucial issue relevant for consideration. The order passed by the Special Deputy Commissioner and the order passed by the Divisional Commissioner, therefore, suffer from a serious infirmity touching the root of the matter. For the same reasons, the submission made by Sri Nanjundaswamy Setty, learned Counsel for respondents-3 to 6 suffers from the same infirmity, At this juncture, it is also necessary to mention here that the instant respandent-3 Smt Bhagyalaxmi has in the course of her cross-examination unequivocally admitted as under:
Further, it is not anybody's case that the lease agreement was a "make believe transaction". in fact, Smt. Bhagyalaxmi has stated in the course of her evidence that Diwakar had taken the property on lease, What is more; on the basis of the same, an order of eviction has been obtained against the lessees under Section 21 (1) of the Karnataka Rent Control Act. The scheme of the Karnataka Rent Control Act does not envisage an application under Section 37 of the Act by the owner of the building or premises to recover possession from the lodgers inducted by his tenant who is providing lodging by way of business. I have already pointed out earlier, the scope of Section 21 of the Act and the scope of Section 37 of the Act and the remedies available to the owner of the building, the remedy available to the owner of the lodging house as against the lodgers and the nature of possession of such lodgers with reference to the accommodation provided to them. It is also necessary to mention here that the Legislators in their wisdom while enacting the Karnataka Rent Control Act have incorporated Section 30 in the Act with a view to see that the landlord is not put to the agony of launching multiplicity of proceeding. Section 30 of the Act is intended to avoid the multiplicity of proceeding and the said Section does not apply only to a person who has an 'independent title' to the premises. It is not necessary for this Court to dilate further in this behalf in these proceedings.
14. Looked at from any point of view, therefore, I am of the view that the application filed by the instant respondents-3 to 6 before the Special Deputy Commissioner under Section 37 is not maintainable. The impugned order passed by the Special Deputy Commissioner and the Divisional Commissioner in appeals are, therefore, liable to be quashed, I may point out here that the order passed by the Divisional Commissioner does not contain anything which is not touched by the Special Deputy Commissioner.
15. In view of my finding that the application under Section 37 of the Act is not maintainable in this case, it is not necessary for me to deal with the scope and ambit of Section 37 relating to other aspects, like the grounds under which the certificate under Section 37 can be obtained, the question relating to the proof of such grounds in the instant case and other allied matters, It is also not necessary for me to probe into the meaning of the expression "shall be entitled to recover possession" in Section 34 of the Act, In fact, no arguments have been addressed at the Bar on the last mentioned aspect.
18. Before I conclude, I should make a mention here that on 18-7-1991, Sri Nanjundaswarny Setty filed a Memo submitting that the petitioner - (Manikchand Joshi) in Writ Petition No,23104/1990 has surrendered vacant possession of the premises to respondents- 3 to 6 on 30-1-1991. He has also produced a stamped receipt said to have been executed by the Writ Petitioner - Manikchand Joshi, and styled as 'delivery receipt'. Sri Sadashivappa, learned Counsel for the petitioner (Manikchand Joshi) submitted that he has no say in the matter and the Court may deal with the Memo of respondents-3 to 6 as deemed fit. His submission in this behalf has been recorded in the order sheet relating to the date 18-7-1991, with an observation that suitable order will be passed at the appropriate stage, in my opinion, no separate order is necessary with reference to the same and it will suffice if it is observed that the possession of the accommodation covered by the said Writ Petition No. 23104/90 is handed over to respondents-3 to 6 by the petitioner. It is also necessary to mention here that petitioner in W.P.No. 23106/90 and the petitioner in W.P.No. 23108/90 have along with the others preferred Civil Revision Petition No. 3614/87 and the petitioner In W.P.No.23105/90 has along with some others preferred Civil Revision Petition No. 3427/87 against the order of eviction passed against the sons of Raghunath Rao and Diwakar (since deceased) by the VIII Additional Judge, Court of Small Causes, It is also seen that some others also have filed Civil Revision Petition (FR) No. 238/89. At one stage it was felt that these C.R.Ps. could be heard along with these Petitions. However, it was submitted that since these Civil Revision Petitions are not yet ripe for hearing, these Petitions can be disposed of. The submission is recorded accordingly in the order sheet dated 13-8-1991, It is also necessary to mention here that apart from the present petitioners, some others have also filed Civil Revision Petitions.
17. For the reasons stated hereinabove, the order dated 20-10-1989 passed by the Special Deputy Commissioner (Revenue) Bangalore District, Bangalore in No. 5/87-88 and confirmed by the Divisional Commissioner, Bangalore Division, Bangalore in the respective HRC. Appeals Nos. 5, 6 and 7/89-90 are hereby quashed.
18. The above three Writ Petitions are disposed of in the above terms subject to the observation made hereinabove earlier with regard to the handing over of possession by the petitioner in W.P.No. 23104/1990.
19. I direct both the parties to bear their own costs.