Karnataka High Court
A.M. Obedulla vs S.M. Shafi on 17 July, 1984
Equivalent citations: ILR1984KAR690, 1984(2)KARLJ263
ORDER 15th March 1984 Sabhahit, J.
1. This Revision Petition by the tenant is directed against the Order dated 14th July 1981, made by the VII Additional Judge, Small Causes Court, Civil Station, Bangalore in H.R.C. No. 6564/80 (Old H.R.C. No. 599/77), allowing the Petition of the landlord for eviction of the tenant under Clause (h) of proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961.
2. The landlord let out a vacant site to the tenant for carrying on timber business. The tenant had got up a temporary shed and was carrying on business. The landlord, by a notice dated 1-6-1977 demanded possession of the suit premises for his personal occupation bona fide and reasonably. He wanted to construct a building in the vacant land for which he had obtained the sanction of the local authority. The landlord averred that after putting up the building he wanted to carry on his business in timber in the ground floor of the building and use the first - floor for other purposes.
3. The tenant resisted the claim of the landlord. He averred that the landlord had other place of business and there was no necessity for him to put up a building or to occupy the suit premises. He also pleaded greater hardship in case he were evicted from the suit premises.
4. The Trial Court raised the following points as arising for its consideration from the pleadings :
1. Whether the Petition schedule premises is reasonably and bona fide required by the petitioner for his personal use and occupation, if so to which party greater hardship would be caused in the event of passing or refusing to pass an order of eviction ?
2. Whether the Petition Schedule premises is reasonably and bona fide required by the petitioner for the erection of new building sanctioned by the City Corporation, Bangalore if so whether respondent is liable for eviction on the ground of Section 21(l)(j) of the Act ?
3. To what order
5. During hearing, the landlord examined three witnesses including himself and the respondent examined himself and closed his case.
Exts. P-1 to P-6 were got marked by the landlord and the tenant got marked Exts. R-1 to R-4. The Trial Court, appreciating the evidence on record answered Point No. 1 in the affirmative and in favour of the landlord and in that view it held that Point No. 2 did not survive for consideration and thus allowed the Petition of the landlord for eviction of the tenant under Clause (h) of the proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961.
6. Aggrieved by the said order, the tenant has come up with the above Revision Petition before this Court.
7. The learned counsel appearing for the Revision Peti-tioner strenvously urged before me that the Trial Court was not justified in holding that the landlord required the suit premises bona ride and reasonably for his personal occupation. He submitted that the evidence on record showed that the landlord was having other three premises at his disposal wherein he was carrying on the same business and as such there was no need for him for the suit premises.
Hence he submitted that the Trial Court was not justified in awarding possession of the suit premises in favour of the landlord. As against that, the learned Counsel appearing for the tenant submitted that the Clause that was applicable to the facts of the case was Clause (1) and not Clause (h) and the requirement to be proved by the landlord under Clause(i) was more simple and as such the landlord was entitled to possession of the suit premises under Clause (1) of the proviso to Section 21 (1) of the K.R.C. Act.
8. The points, therefore that arise for my consideration are :
1. Whether the Trial court was justified in applying Clause (h) to the facts of the present case ?
2. Whether the proper clause applicable would be Clause (1) and not Clause
(h) and if so,
3. Whether the landlord is entitled to the possession under Clause (1) of the proviso to Section 21 (1) of the Act ?
9. The undisputed facts are that a vacant site bearing No. 36 old, New No. 36/1 situate in New Bamboo Bazaar Street, was let by the landlord to the tenant in 1962 on a monthly rental of Rs. 20/- which rent came to be gradually increased thereafter from Rs. 20/- to Rs. 50/- per month. What was let to the respondent-tenant was vacant land. The tenant no doubt had put up a temporary shed in the vacant land for carrying out his business. The landlord averred in the petition that he wanted to put up a storeyed building in the vacant land and that the construction was approved by the Corporation and for that purpose he required the suit premises bona fide and reasonably for his personal occupation. This is what he has averred in Paragraph 3 of the petition.
"The Petitioner desires to secure possession of the premises since be requires the same for putting up a construction and also for the purpose of a timber business. The Petitioner has also secured a sanctioned plan for putting up the said construction".
In his evidence also he has made it clear that he wants to carry out timber business in the ground floor of the building and use the first floor for his purposes. Thus, the landlord requires his vacant land which was let to the tenant bona fide and reasonably for the erection of a new building which the local authority has approved or permitted him to build thereon. This without more falls within the purview of Clause (1) of the proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961. For Clause (1) reads that:
"That where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon;"
10. In the Petition however, instead of mentioning Clause (1) the Petitioner mentioned Clause (h) and (j) which obviously misled the Trial Court. But it is needless for me to point out that it is the function of the Court to apply the proper law to the established facts in the case and as such the Court ought to have applied Clause (1) instead of Clause (h) of the Act.
11. The learned Counsel appearing for the Revision Petitioners, however, submitted that when the landlord wants to put up a building in the open land and use it personally for himself, the proper Clause that is applicable is Clause (h) and not Clause (1). For that proposition he relied on a decision of this Court in B.V. Rathniah Setty-vs-B. Venkata Rao 1. It is no doubt true that in that decision His Lordship Justice Chandrashekhar, J as he then was has ruled :
"that where the landlord requires a demised land for his own occupation for erecting a new building thereon to such a case it is Clause (h) and not Clause (i) which is applicable".
1.1975(1)Kar L.J. 75.
His Lordship has reasoned that just as when the land-lord wants to demolish and reconstruct a building and use it for himself it is Clause (h) and not Clause (j) that is applicable, similarly when the landlord wants to put up a building and use it for himself it is Clause (h) and not Clause (1) that is applicable. Speaking on this aspect His Lordship has observed :
"The reasoning in the aforesaid decisions namely, the mere fact that the landlord intends to demolish the demised premises and to erect a new building in place thereof does not affect the question of his requiring the house reasonably and bona fide for his occupation applies, in my opinion, with equal force to a case where the landlord requires the demised land for his own occupation for erecting a new building thereon. To such a case it is Clause (h) and not Clause (1) of Section 21(1) of the Act that applies, The landlord after obtaining under Clause (h) of Section 21(1) of the Act. eviction of the tenant from the demised land, has a natural and proprietary right to deal with that land as he chooses in order to make it suitable for his occupation. The provisions of Clause (1) of Section 21(1) apply, in my opinion, to a case where the landlord requires the demised land for erect-ing a new building which he does not intend to occupy for himself but intends to let out to others".
12. The learned Counsel appearing for the landlord-respondent in the Revision Petition seriously commented on this reasoning. He pointed out that in Clause (1) there was nothing to indicate that the new building to be constructed with the permission of the local authority was meant for letting out. Such an intention of the legislature was clear in Clause (j). For under Clause (j) when possession was taken for immediate demolition of the existing building and for reconstruction of the same, the landlord is under an obligation under Sections 26, 27 and 28 to let out suitable portions to the erstwhile tenants. There is no such obligation created under Section 21(1)(1) of the Act. Therefore he pointed out that the reasoning of the learned Judge was obviously fallacious.
13. The legislature in its wisdom has introduced different Clauses in the proviso to Section 21(1) under which the land-lord is at liberty to seek for eviction of the tenant. The wordings in each Clause has to be understood in the proper perspective. The legislature does not use any words superfluously nor can the Court read any words in the Clause which are not to be found in the Clause.
14. It is no doubt true that the intention of the Rent Control Act is to prevent rack renting and indiscriminate eviction of the tenants. The Rent Control Act was found necessary because of scarcity of accommodation in relation to the demand existing. Therefore it was necessary for the legislature to regulate the distribution of existing houses to prevent rack renting and indiscriminate eviction of tenants. It was also found necessary by the legislature that encouragement should be given to the citizens to put up new structures. With that in view several provisions have been introduced in the Rent Control Act. One of them is that the provisions regarding rent and letting would not apply to a newly constructed house for a period of five years and Section 21 (1) (1) and (m) are also in the same direction. Section 21(1)(1) encourages the citizens to put up new build-ing in open land with the approval of the local authority. There is no further restriction placed on the right of the citizen to put up new building when he requires the vacant land leased by him bona fide and reasonably for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon; the Court is under an obligation to order eviction of the tenant from the open land for the purpose of putting up the new building. There is no further restriction placed as in Clause (h) The question of comparative hardship would not arise. Section 21(1)(1) is more liberal in favour of the land-lord than Section 21(l)(h). In fact, the Supreme Court India in Krishnapasuba Rao Kundapur v. Dattatraya Krishnaji Karani.
"When the tenant takes up open site on lease and puts up a shed of a corrugated iron sheets in a portion of the land, the lease would be still of the vacant land".
That being so, it is quite clear that what is applicable to the facts of the case is Clause (1) and not Clause(h) of the proviso to Section 21 (1) of the Act.
15. The ruling of this Court in B. V. Rathniah Setty v. B.Venkata Rao, 1975(1) K.J 75 therefore, requires a second look by a Division Bench. Hence I find it necessary to refer this case to a Division Bench for decision.
ORDER OF THE DIVISION BENCH Nesargi, J.
1. This matter has come up for disposal before this Division Bench on an Order of reference dated 15-3-1984 passed by the learned Single Judge G.N. Sabhahit, J. expressing his view that the decision in B.V. Rathniah Setty -vs- B. Venkata Rao, 1975(1) K.J 75, rendered by Chandrashekhar, J. (as he then was), appears to require reconsideration.
2. The undisputed facts are that the respondent is the owner of an open land not used for agricultural purpose. That is the schedule premises. He had leased that land to the petitioner-tenant for running a timber business. The petitioner-tenant, according to him, constructed a super-structure on that land, at a cost of Rs. 5,000/- and commenced running timber business. The landlord is also a timber merchant. He has been running his business in rented premises. According to the landlord, he is running timber
2. A. I. R. 1966 S.C. Page 1024
3. 1975 (1) Kar. L.J. 75 business in one premises bearing No. 36 in Bamboo Bazar and owned by P. W. No. 3. According to the petitioner-tenant, the landlord has been running his business in four premises including the premises bearing No. 36. The land-lord filed a petition for eviction, making out a case, that he reasonably and bona fide required the schedule premises for erecting one storeyed building for running timber business by personally occupying it. The petitioner-tenant contended, that the requirement, put forth by the landlord, is neither reasonable nor bona fide, as he has four premises in which he has been running his timber business. He also contended that the landlord was actuated by oblique motive of enhancing the rent which was originally Rs. 20/- per month and subsequently enhanced to Rs. 50/- per month. He has also in this connection contended that the landlord intends to increase the monthly rent to Rs. 200/-
3. The petition filed by the landlord purported to be under Section 21
(l) (h) and (j) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the ' Act '). An enquiry was held and an order of eviction was passed by the VII Additional Small Causes Judge, Civil Station, Bangalore in H.R.C. No. 6564 of 1980 (Old No. H R.C. 599 of 1977). The Civil Judge, ultimately concluded in favour of the landlord, not only on facts but also on question of law holding that the case of the landlord fell within the ambit and scope of Clause (h) of the proviso to Section 21 (1) of the act.
4. It appears from the order rendered that it was argued before the learned Single Judge that Clause (1) of the proviso to Section 21 (1) of the Act appears to have been misunderstood by the Trial Court and that the view expressed by Chandrashekhar, J. in B.V. Rathniah Setty' case - 1975(1) K.L.J. 75, requires reconsideration.
5. The Trial Court has held, on the question of law, that Clauses (j) and (1) of the proviso to Section 21 (1) are not attracted, while Clause (h) of the said proviso is attracted.
6. Clause (h) of the proviso to Section 21(1) of the Act reads as follows :
(h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purposes of the trust;
(Underlining by us) Clause (1) of the said proviso reads as follows :
(1) that where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon ;
It is plain that the words underlined in Clause (h) are not appearing in Clause (1).
7. Clause (j) of the said proviso reads as follows :
(j) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished ;
Here again, it is plain that the ingredients of Clause (j) make it manifest that the existing structure belonging to the landlord is required to be demolished for the purpose of erecting a new building. Therefore, Clause (j) will have no application to a premises falling within the definition of Section 3 (n) (ii) of the Act. Section 3 (n) of the Act reads as follows :
(n) "premises" means -
(i) a building as defined in Clause (a) ;
(ii) any land not used for agricultural purposes ;
Re-reading of Clause (1) of the proviso also makes it crystal clear that in case of premises being a land and the requirement by the landlord is for the erection of a new build-ing by the landlord on such premises, the provision in Clause (1) will be attracted. This necessarily means that the premises contemplated by Clause (1) of the said proviso is the premises as defined in Section 3 (n) (ii) of the Act. Here it is worthwhile noticing that the premises as defined in Section 3 (n) as a whole appears in Clause (h) of the said proviso. But what is important are the underlined words, viz., for occupation by himself, occurring in Clause (h) and the fact of those words being absent in Clause (1). Reading of all the Clauses in the said proviso shows that the words ' for occupation by himself occurring in Clause (h) are not found in any other Clauses of the said proviso. Therefore, it has to be concluded that whenever a landlord comes out with a case for eviction of a tenant making out that the premises in question are reasonably and bona fide required by him for occupation by himself, only Clause (h) of the said proviso would come into play, to the exclusion of other Clauses. This Court while dealing with Clauses (h) and (j) of the said proviso has, in the decision in Smt. Rohini Bai v. Vishnu Murthy4 held that Clauses (h) and (j) are mutually exclusive and a when a landlord makes out a case of his requirement for personal occupation after demolishing the existing structure and reconstructing it, only Clause (h) of the said proviso would be applicable. The very reasoning would be aptly applicable when a landlord comes to a Court with a case that the premises, viz., open land not used for agricultural purpose, is reasonably and bona fide required by him for occupation by himself after erecting a new building on the open land.
4. I.L.R. 1980(l)Kar. 340
8. In the decision in B.V. Rathniah Setty's Case 1975 (1) K.L.J. 75, it has been clearly held as follows :
'The provisions of Clause (1) of Section 21 (1) apply, in my opinion, to a case where the landlord requires the demised land for erecting a new building which he does not intend to occupy for himself but intends to let out to others".
What we have already reasoned earlier, amply supports this opinion because whenever a landlord makes court a case of his requirement for occupation of the premises by himself, only Clause (h) will be attracted. The requirement of the landlord under Clause (1) may be anything else other than occupation of the premises by himself. This discussion shows that Clause (1) of the said proviso and Clause (h) of the said proviso operate in entirely different fields. It is our considered view, that there is absolutely no scope for doubt or confusion, in regard to the understanding of the scope and ambit of these two clauses.
9. It is already made clear, that the landlord has prayed for an order of eviction making out his requirement for the purpose of erecting a new building for occupation by him-self to run his timber business. Therefore, though Clause (j) of the proviso to Section 21 (1) is mentioned in the Petition presented by the landlord in the Trial Court, that does not at all operate against him. The law does not permit a tenant to claim any benefit on the basis of a wrong provision of law having been quoted.
10. In view of the foregoing position in law, the merits of the case on hand has, to be gone into.
11. The landlord has produced a plan sanctioned by the Corporation authorities, evidently to satisfy the provision in Clause (1) of the said proviso. He has examined himself and two witnesses. P. W. 2 is his own brother and P. W. 3 is the landlord of the premises bearing No. 36 wherein the respondent-landlord is running his timber business.
Respondent landlord has claimed that P. W. 3 has asked him to vacate the said premises, and therefore, he was required to erect a new building on the schedule premises, to do his timber business therein. P. W. 3 has stated that he has been since two years asking the respondent-landlord to vacate the premises, the landlord had promised to vacate it and is going to vacate and therefore he has not taken legal action against the respondent-landlord who has been examined as P. W. 1.
12. Sri. Udaya Holla appearing on behalf of the Petitioner tenant submitted that it is clear from the cross-examination of P. W. 1 the respondent-landlord that he has in his possession three more rented premises in which he has been running business, thereby making total number of the premises in his possession to four. He in this connection vehemently urged that the evidence of P.W.1 the respon-dent-landlord to the effect that he has been running timber business in only one premises belonging to P.W. 3, is totally false and therefore, the Trial Court ought to have held that there was no bona fides in the claim of the respondent-landlord. In this very connection, he further argued that P. W. 3 is not under threat of eviction of the premises wherein he has been carrying on his business and he has in fact admitted to that effect by saying that so long as he continues to pay rents regularly there is no likelihood of his being asked to vacate. This Court is not holding an enquiry into the requirements of P. W. 3 being reasonable or bona fide, i.e. in his asking P. W. 1 the respondent-landlord to hand over vacant possession of the premises bearing No. 36 in Bamboo Bazar. P. W. 1 the respondent-landlord has sworn that he has been asked to vacate and P.W. 3 the landlord of the premises in which he (P.W. 1) is conducting his business as a lessee has also sworn to that effect. Merely because no legal steps have been taken by P.W. 3 to evict, P.W.1, his evidence cannot be disbelieved. Even if such step had been taken by P.W. 3, it would have been possible to argue that it was mere eye-wash. We are not impressed with this reasoning.
13. Sri Udaya Holla attempted to argue that if P. W. 1 has in his possession four rented premises in which he has been running his business, then there is additional burden on P.W. 1 to satisfy the Court as to why he has chosen the premises in question for his occupation. He placed reliance on what has been laid down by the Supreme Court in M.M. Qureshi -vs- Manoharlal5. The principle laid down by the Supreme Court therein has no application to the facts on hand. It is not the case of the petitioner-tenant that the respondent-landlord is the owner of another or any other open land particularly suitable for erecting construction to run a business. This is not a case where the respondent-land-lord can be said to have exercised a choice of the premises.
14. It is no doubt true that the burden is on the landlord to establish that he reasonably and bona fide requires the schedule premises for occupation by himself. What is reasonable and bona fide has to be established to the satisfaction of a Court. Such satisfaction depends on facts and circum-stances of each case. The best that can be said in favour of the petitioner-tenant, in this case, is that contrary to the averment of P. W.1 landlord it has been shown that he is running his business in 4 premises, all of them being rented. But, we are unable to see how that factor militates against the case of P.W.1 landlord that his requirement is reasonable and bona fide. In our view, that factor was in his favour at least to indicate that he must be having sufficient means to erect a new building as per the sanctioned plan produced by him, on the schedule premises, In fact, there is no suggestion
5. putforth by the petitioner that the landlord is not having sufficient means to erect a new building. Sri Udaya Holla sought support from what has been laid down by the Supreme Court in the decision in Neta Ram -vs- Jiwan Lal6. That was a case where the provision similar to the one found in Clause (j) of the said proviso of Section 21 (1) of the Act came up for consideration before the Supreme Court. The Supreme Court laid down as to what were the matters to be considered, to satisfy the authority regarding bona fide requirement by a landlord for reconstruction. This is not a case which falls within the ambit of Clause (j) of the proviso to Section 21 (1). Therefore, that principle would not be strictly applicable to the facts and circumstances of the case. Moreover, we have already shown how there is inherent material in the evidence of P. W. 1 and the circumstance relied upon by the petitioner-tenant himself and also how the tenant himself has not at all disputed the financial capacity of P.W. 1 the landlord to erect a new building in conformity with the sanctioned plan.
p>15. In view of the foregoing, we are clearly of the view that the Trial Court has not at all approached the evidence and material relied upon by the parties in any unjust manner and/or contrary to the recognised principles in law. There-fore, we agree with the conclusion reached by the Trial Court. We further hold that the respondent-landlord is entitled to invoke Clause (h) of the proviso to Section 21 (1) of the Act as recorded by the Trial Court.
16. This takes us to the request as to the time to be granted to the petitioner-tenant for handing over vacant possession of the schedule premises. Sri Udaya Holla prayed for grant of 2 years. This was opposed by the learned Advocate for the landlord.
6. .
17. We find from the order of the Trial Court that on 14-7-1984, the date on which the order was passed, the Trial Court found it just and proper to grant time of 6 months from that date. So much time has already elapsed. Hence, we consider it just and reasonable, to grant time till the end of March 1985, to the petitioner-tenant to vacate the schedule premises and hand over vacant possession of the schedule premises, subject to the condition that the petitioner-tenant continues to pay monthly rental as and when it falls due without committing any default.
18. Civil Revision Petition is dismissed. No. order as to costs.