Karnataka High Court
M/S. Chandrika Enterprise vs G. Vittalla Rao on 17 January, 1996
Equivalent citations: AIR1996KANT214, ILR1996KAR1998, 1996(1)KARLJ461, AIR 1996 KARNATAKA 214, (1996) ILR (KANT) 1998, (1996) 1 KANT LJ 461, (1997) 1 RENCJ 331, (1996) 2 RENCR 161
Author: C.N. Aswathanarayana Rao
Bench: C.N. Aswathanarayana Rao
ORDER
1. These are landlord's revision petitions against a common order dated 30-9-1988 in H.R.C. Nos. 191/84 and 193/84 and three other cases which had been filed by the petitioner under Section 21(1)(h) and (j) of the Karnataka Rent Control Act, 1961 (hereinafterwards referred to as 'the Act') praying for eviction of the respondents from the petition schedule property namely portions of the premises bearing No. 5 (old No. 16/3) situated in II Cross, Ramkrishnapuram, Bangalore. By the said common order, the trial Judge dismissed all the eviction petitioners. Being aggrieved by the said order, the petitioners have filed these revision petitions. Since the landlords are common in these petitions and the property is different portions of the same premises in the two petitions, and common evidence has been recorded by the trial Court relating to all the five petitions in H.R.C. No. 191/84, and all the petitions have been disposed of by a common order by the trial Court, a common order is hereby passed in these two revision pelitions.
2. The facts which have led to these revision petitions may briefly be stated as follows: --
The petitioner which is a partnership firm represented by its Managing Directors which is common in all the five petitions, filed the said eviction petitions praying for eviction of the respondents-tenants in different portions of the same property bearing No. 5. The case of the petitioner has been summarised in para 2 of the impugned order. It reads as follows:--
"The petitioner-firm has become the owner of the premises shown in these petitions by virtue of the sale in its favour. With the sole purpose of running Hotels and lodges, the petitioner-firm, which is a partnership concern came into existence. With that purpose, the petitioner-firm has purchased this entire premises bearing No. 5. Now the petitioner wants to demolish the existing building in the property and construct a new building for the purpose of running its lodging business. From the date of said purpose, the respondents in these proceedings have become the tenant under the petitioner-firm. There was attornment of tenancy also. Right from the time of the said purchase, the petitioner-firm has been demanding the respondents herein to vacate their respective premises to facilitate the petitioner-firm to implement its project --Though the respondents agreed, they did not vacate as promised. The entire premises in No. 5 is an old building and it has developed cracks also. The petitioner-Firm has decided to demolish this entire premises and put up new construction thereon and occupy the same for the purpose of its lodging business. In this regard, the petitioner-Firm has already obtained the sanctioned plan under L.P. No. 1537/83-84 and also estimated the cost of demolition and reconstruction. The estimate was to the tune of Rs. 4,65,000/-. The petitioner firm has sufficient means to bring out its project and it has made all necessary arrangements in that regard. The aforesaid property in No. 5 is situated in a commercial area, surrounded by Hotels, Lodges and Cinema Houses. It is suitable for the proposed business. The partners of the petitioner-Firm has got knowledge and experience in running Hotels and Lodges. The petitioner-firm has also caused a legal notice to the respondents in these proceedings informing its intention and also requesting the respondents to vacate the respective demised premises. The petitioner-firm has also terminated the tenancy of these respondents through that notice. In the circumstances, if an order of eviction is not made, the petitioner-firm will be put to greater hardship. On the other hand, there will not be any hardship to the respondents in these proceedings in the event of their eviction from the demised premises. Hence, these petitions are filed."
3. The case of the respondent in H.R.C. 191/84 has been summarised in para 5 of the impugned order. It reads as follows:--
"It is true that the respondent herein is the tenant in respect of the petition schedule property. It is denied that the petitioner has purchased the petition schedule property for the purpose of starting the lodging business. It is false to contend that the petitioner had requested this respondent to vacate the premises. The alleged need of the petitioner is neither reasonable nor bona fide. It is not admitted that the petitioner has made all arrangements to start the proposed project. It is false to contend that the petition schedule building is in a dilapidated condition. This respondent has spent more than Rs. 15,000/-towards the renovation of this premises with the consent of the landlord. The petitioner has no intention to start any lodging business in this building. Its intention is only to evict this respondent since the respondent did not oblige to the demand of the petitioner to pay more rent. The respondent has no other source of living, except the business being run in the petition schedule premises. In the circumstances, if an order of eviction is made, he will be thrown to destitution. On the other hand, if this petition is dismissed, no hardship may be caused to the petitioner. For these reasons, this petition may be dismissed. This respondent has also filed an additional objections contending that the petition is bad for non-compliance of Section 69 of the Indian Partnership Act.
4. The case of the respondent in H.R.C. 193/94 has been summarised in para 6 of the impugned order. It reads as follows:--
"It is true that the respondent is the tenant in respect of the petition premises. But, this respondent is not sure that the petitioner is a partnership concern. It is false to contend that the petitioner has purchased the petition schedule building for its demolition and reconstruction in order to start lodging business. The said premises is not at all suitable for lodging. The petitioner has no intention to demolish the exiting building and put up the new construction. The only purpose behind this petition is to somehow or the other to evict the respondent. If an order of eviction in the circumstances is made, this respondent will be put to greater hardship. He is running a Travelling Agency in the petition premises. He has to maintain a large family. That is the only source for his livelihood. If he is evicted from this premises, hot only his business will ruin, but also his family, as also the workers in his establishment. On the other hand, there will not be any hardship for the petitioner, if this petition is dismissed. Hence, this petition may be dismissed."
5. On these pleadings of the parties, the learned trial Judge formulated the following points for decision:--
"(i) Whether there exists jural relationship of landlord and tenant between the petitioner and the respondents in these proceedings?
ii) Whether the claim of the petitioner that it requires the possession of the premises in these petitions for its personal use and occupation is reasonable and bona fide?
iii) Whether greater hardship would be caused by passing the decree than by refusing to pass it?
iv) To what reliefs the parties to these proceedings are entitled?"
6. In support of the petitioner's case, the petitioner-Firm examined its Managing Partner as P.W. 1 and relied upon the documents Exs. P1 to P26 produced by it. The respondent H. R. C. No. 191/84 and H. R. C. No. 193/84 in support of their contentions examined themselves as R.Ws. 2 and 3 respectively and they also examined two other witnesses as R.Ws. 4 and 5 and relied upon the documents Exs. R 1 to R. 15 produced by them.
7. After trial and heaving the arguments of the learned counsel for the parties, the learned trial Judge answered point No. (i) in the affirmative, point No. (ii) in the negative and held that point No. (iii) did not arise for consideration in view of the finding on Point No. (ii). Consequently he dismissed all the petitions by the common order.
8. It is admitted that originally there were six tenants in six portions of the petition schedule premises. Out of them, four tenants have vacated their respective portions and handed over possession to the petitioner either through compromise petitions filed in Court or voluntary surrender of the premises. Only the respondents in these two cases H.R.C. No. 191/84 and 193/84 are contesting the petitions.
9. In the grounds urged in N.C.R.P. 5649/ 88 the petitioner has contended that the trial Court errerd in holding that the fact that the partners of the petitioner-firm have purchased some other property and have constructed a hotel or lodging house in it goes to show that the requirement pleaded in this case is neither reasonable nor bona fide. It is contended the appreciation of the evidence on record by the trial Court on this aspect is not proper. It is contended the trial Court failed to see that the petitioner has made out the ground under Section 21(1)(j) of the Act also. The same grounds are urged in the petition in C.R.P. No. 5762/88 also.
10. During the pendency of these revision petitions, the respondents filed two applications praying this Court to take into consideration certain subsequent events. They contended that after the filing of the eviction petition, the petitioner has acquired two hotels, Hotel Sanman and Hotel Sanman Deluxe in Bangalore City and hotels in Bellary and Madras. They also contended that the petitioner, with the view of forcibly evicting the respondents from the petition schedule property, punched holes in the roof of the petition schedule portions.
11. Hon'ble Mr. Justice K. Shivashankar Bhat who heard this matter at the first instance, found it was necessary to find out for a proper appreciation of the questions involved in the case, as to whether the area in question could be developed only in the manner stated by the landlord or the respondents also could be accommodated. He also found it necessary to hold an enquiry with regard to the subsequent events alleged by the respondents. Therefore, by an order dated 6-3-1992 the learned Judge directed the trial Court to give a finding after recording appropriate evidence on these aspects observing that these C.R.Ps. are to be disposed of after receiving the finding called for. The learned Judge also observed in the order that these facts could have a bearing on the question as to whether Clause (j) could be invoked or whether clause (h) of Section 21(1) of the Act could be considered. Since it is a short order and would be useful to refer to the same, it is quoted hereunder:--
"For a proper appreciation of the question as to whether the area in question could be developed only in the manner stated by the landlords, that is to say, while putting up the new structure much area will be consumed for car parking and other purposes and width will be about 10ft. only, it is necessary to have material on record. The parties have not focussed their attention on this aspect, which will have a bearing on the question as to whether clause (j) could be invoked or whether clause (h) will have to be considered. In either case the further question regarding possibility of giving some accommodation to the evicted tenants in case of an order of eviction also may have to be considered in the background of the space available in the reconstructed premises.
2. Consequently, on these aspects the trial court is directed to give a finding after recording appropriate evidence. Both the parties arc directed to lead their evidence.
3. This order pertains to H.R.C. 191 and 193 of 1984 (C.R.Ps. 5649 and 5762 of 1988 respectively).
4. The learned Counsel for the tenants in these civil revision petitions submitted that they have filed some applications regarding the alleged subsequent events. The said appli-
cations shall be sent to the trial court so that the parties may adduce their evidence on the question raised by them. The trial court shall after recording finding on these points return the papers by 16-4-1992. Parties are directed to be present before the trial Court on 23-3-1992. Records of these C.R.Ps. be sent back to the trial Court.
5. C.R.Ps. are to be disposed of after receiving the finding called for as above."
Accordingly the learned trial Judge took up the matter and formulated two points for consideration as follows:--
"1. Whether any construction could be put up by providing some accommodation to the evicted tenants?
2. Whether the subsequent events have been demonstrated properly and cogently by the respondent?"
After recording the additional evidence adduced by the parties and hearing the arguments of counsel for both the parties, the learned trial Judge answered both the points in the negative and submitted his report dated 28-5-1992 to the Court.
12. After the receiving the report by the trial Court when the matters came up for hearing before the Hon'ble Mr. Justice G.P. Shivaprakash, on 2-1-1995 the respondents made a proposal for a compromise and the petitioner took time to consider the same. The proceedings have been recorded in the order sheet dated 2-1-1995 by the learned Judge as follows:--
"It is suggested by the learned Counsel appearing for the respondents in the respective petitions that the respondents would agree to vacate the premises, if after reconstruction, shop premises measuring 9' x 9' abutting the road are given to them for their occupation.
Sri. G.S. Visveswara, requests for time to consider the proposal and on that basis to submit that the plan to the Corporation of the City of Bangalore for sanction.
The original of the partnership deed and the sale deeds in respect of the properties in question are filed in these proceedings. The petitioner is permitted to produce the certified copies of the same to the Corporation of the City of Bangalore for securingthe licence and sanction for the plan.
Call after 6 weeks."
Accordingly the petitioner obtained a sanctioned plan and in this regard this Court has recorded in the order sheet dated 3-4-1995 as follows:--
"The petitioners advocate submits that a sanctioned plan has been obtained for the proposed construction including two shop portions. The respondent's advocate wants time to get the respondents and to submit.
The petitioners advocate shall furnish xerox copy of the said plan to the respondent's advocate in two days.
Bring up on 7-4-1995"
Subsequently when the matters came up again on 16-10-1995, Hon'ble Mr. Justice G.P. Shivaprakash has recorded the proceedings which took place on that day in the order sheet as follows:--
"By order dated 2-1-1995, as suggested by the learned Counsel appearing for the respondents-tenants in occupation of the respective shops, that they would agree to vacate the premises if after reconstruction shop premises measuring 9' x 9' abutting the road are given to them for their occupation, the petitioner has not got the plan sanctioned.
From the sanctioned plan, both shops abut the roads. However, the learned Counsel for the respondents-tenants now say that the proposed shops for their occupation are not acceptable to them.
Released from part-heard.
Post before the appropriate Bench."
Subsequently these matters were posted before this Court. I have heard the arguments of the learned Counsel Sri Kumar for the petitioner, the learned Counsel for the re-
spondent in H.R./R.P. 5649/88 Sri. Shekar Shetty, and the learned Counsel for the respondent in H.R.R.P. 5762/88 Sri. Lakshminarasimhan and have perused the records.
13. On the facts narrated above, the following points are formulated for decision in these revision petitions:--
i) Whether the trial Court is right in holding that the petitioner has not established the ground under Section 21(1)(h) of the Act.?
ii) Whether the trial Court is right in reacting the ground under Section 21(1)(j) of the Act?
iii) Whether the petitioner is entitled to any relief? If so, under what provision of law.?
iv) What Order?
14. My findings on these points are as follows:--
Point No. (i) -- Yes.
Point No. (ii) -- No. Point No. (iii) -- Yes, Under Section 21(1)(j) of the Act.
Point No. (iv) -- See last para below.
REASONS
15. Since it is contended by the learned Counsel for the petitioner that there is no proper appreciation of the evidence on record, a reappraisal of the evidence becomes necessary. Before considering the evidence on record, certain legal positions in the case have to be seen.
16. The learned Counsel for the petitioner argued that the grounds under Sections 21(1)(h) and (j) are to be considered separately as there cannot be an order both under Section 21(1)(h) and Section 21(1)(j) of the Act. He submitted if both the grounds are esrablished, an order is to be passed only under Section 21(1)(h) and if Section 21(1)(h) is not established, the an order under Section 21(1)(j) of the Act has to be passed if that ground is established. Per contra, the learned Counsel for the respondents argued that in this case the grounds under Section 21(1)(h) and (j) of the Act merge with one another and they cannot be considered independently. He submitted that when the ground under Section 21(1)(h) of the Act goes, (j) does not survive for consideration.
17. The learned Counsel for the petitioner in support of his argument, relied upon two decisions of this Court. In K. K. Sanjeevamurthy Shetty v. T. S. Geetha Alia Geetha Ramakrishna (1991 (2) Kar LJ 234), Hon'ble Mr. Justice K. Ramachandraiah has held as follows :--
"If there is a choice for the Court between clauses (h) and (j) for directing eviction of a tenant, the Court will have to lean in favour of clause (j) rather than ordering eviction under Section 21(1)(h) of the Act. If the entire reconstructed premises is required by the landlord for his own occupation. Section 21(1)(h) will be applicable. But, if the reconstructed premises could accommodate the tenants and also would reasonably satisfy the requirements of the landlord, then an eviction order under Section 21(1)(j) would advance the object of the Act."
In Pandurang Ganpat Aundkar v. Anant Hari Gaurav (U.P. 1992 Kar 1751). Hon'ble Mr. Justice Shivashankar Bhat has held as follows:--
"Under Clause (h), the leased premises is required by the landlord for his own occupation and the said requirement for his own occupation has to be proved to be reasonable and bona fide. The requirement thus, to be established is with reference to the requirement to occupy the premises by the landlord. Under clause (j) the requirement is of another kind; here, landlord requires the premises for the immediate purpose of demolition, with a view to erect a new building thereon. This requirement has nothing to do with the requirement of accommodation for the occupation of the landlord. The premises is required, under clause (j) for the purpose of immediate demolition etc. The user to which the constructed building is to be put up is not the concern of clause (j) by itseif, though the requirement to be established is the require-
ment of the landlord, without reference to the existing structure ..... while testing the reasonableness and bona fide nature of the landlord's requirement, several factors such as his capacity, likelihood of using the new building for a profitable use, the condition of the building, the several developments that had taken place in the locality etc., will be relevant. The provisions of the Act should not be read so as to stop developmental works altogether."
There decisions support the contention of the learned Counsel for the petitioner.
18. The learned Counsel for the respondents strenuously contended that these two decisions are not good law in view of the law laid down by the decision in and two other decisions of this Court reported in ILR 1980(1) Kar 340 and 1984(2) Kar LJ 263 which are Division Bench decisions. In Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth the Supreme Court was considering a case arising under The Bombay Rents, Hotel and Loding House Rates Control Act. It has been held therein as follows:--
"The provisions of cl. (hh) (corresponding to (j) under the Karnataka Act) cannot possibly apply to the case where a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building or them. The provisions of clause (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants."
In Smt. Rohinibai v. Vishnumurthy (ILR 1980 (1) Kar 340) Hon'ble Mr. Justice Srinivasa Iyengar and Hon'ble Mr. Justice Rama Jois held as follows:--
"The scope of clause (h) is entirely different from clause (j). Therefore, there cannot be any order of eviction on both the grounds specified in clauses (h) and (j). It is for this reason they are mutually exclusive, but this does not mean that a landlord seeking eviction on the ground mentioned in clause (h) cannot plead that he wants to occupy the premises after demolition and reconstruction, and, that by taking such a plea, the case goes outside the scope of clause (h) and falls under clause (j). It is only in a case, in which a landlord seeks eviction only for demolition and reconstruction and not for self occupation also, which falls under clause (j)."
In Obedulla A. M. v. Shafi S. M. (1984 (2) Kar LJ 263) Hon'ble Mr. Justice M. S. Nesargi and Hon'ble Mr. Justice Murlidher Rao have held as follows :--
"Clauses (h) and (j) are mutually exclusive and when a landlord makes out a case of his requirement for personal occupation after demolishing the existing structure and re-constructing'it, only clause (h) of the said proviso is applicable."
The learned Counsel for the respondents argued that in view of the principles laid down by the Supreme Court and the Bench decisions of this Court as above, the single Judge decisions relied upon by the learned Counsel . for the petitioner is not good law. He submitted that if the learned Judges who laid down the law in the decisions relied on by the Counsel for the petitioner wanted to differ from the earlier view of the Division Bench, they should have referred the matter to a Bench for decision and in the absence of it, the law laid down by them is no longer good law. In this regard, he drew my attention to the Rules of the High Court which require making a reference to a Bench under such circumstances. The learned Counsel for the petitioner submitted that this submission made by the learned Counsel for the respondents is wholly untenable because there is no conflict between the decisions of the single Judges relied on by the petitioner and the decision of the Supreme Court or the Bench decisions of this Court relied on by the learned Counsel for the respondents. He submitted that what the single Judges have done in the decisions relied on by the petitioner is a harmonious interpretation of the grounds under Section 21(1)(h) and (j) of the Act and they are not in conflict with the law laid down by the Supreme Court or the Bench decisions of this Court. On a careful perusal of these decisions, I find there is much force in the submission made by the learned Counsel for the petitioner. In 1994 (2) Kar LJ 263 referred to above, this Court has referred to the law laid down by the Supreme Court in AIR 1981 SC 1313 (M. M. Qureshi v. Manoharlal) and (Neta Ram v. Jiwanlal). The said decisions have been referred to by the learned single Judges in the decisions in and 1991 (2) Kar LJ 234 relied on by the petitioner. Therefore, as rightly submitted by the learned Counsel for the petitioner, it is not as though the learned Judges who rendered these decisions relied on by the petitioner were unaware of the views of the Supreme Court. There is much force in the contention of the learned Counsel for the petitioner that the learned single Judges in these decisions have made a harmonious interpretation of Section 21(1)(h) and (j) of the Act and have come to the conclusion that even if the ground under Section 21(1)(h) of the Act is not proved, if the ground under Section 21(1)(j) is proved, relief can be given under (j) of the Act. I therefore find that the contention of the learned Counsel for the respondents that if the petitioner fails to establish the ground under Section 21(1)(h) then automatically the ground under (j) of the Act also goes, cannot be accepted.
19. I shall now consider the points formulated as above in para 13.
20. Point No. (i):-- For the purpose of convenience, 1 will refer to the parties to these revision petitions by the positions they have occupied in the Trial Court. The learned Counsel for the petitioner has furnished a paper book. In the impugned order, Point No.(i) has been formulated regarding the existence of jural relationship between the parties because the respondents in some other cases denied the existence of such a relationship. So far as the respondents in these revision petitions are concerned, there is no such denial and hence there is no need to go inco that question. The ground under Section 21(1)(h) of the Act has been discussed by the learned Trial Judge in para 10 of the impugned order (at page 28 of the paper book). In the discussion in the said para, the learned Trial Judge has accepted the petitioner's case that the petitioner is a partnership firm and it was formulated for the purpose of purchasing, acquiring or constructing buildings for the purposes of running hotels, lodges and to do any agency or business under the name of the firm as mentioned in the partnership deed Ex. P3.
21. There is not much dispute over the fact that the petitioner and his sons have been doing hotel businesses and they have experience in that field. There is a!so not much dispute over the fact that the petitioner has the necessary financial capacity to undertake a new project either for a restaurant or a lodging house. The Trial Court has rightly accepted the evidence of the petitioner on these aspects. The Managing Partner of the petitioner-firm who has ben examined as P.W. 1 has stated in his evidence (at page 58 of the paper book) that the petitioner-firm does not own or possess any other hotel or lodging in its name except the petition schedule property. In his cross-examination (page 62 of the paper book) P.W. 1 has stated that the petitioner-firm consists of the partners P.W. 1 and his sons. He has three sons. They are Raveendra, Ramesha and Raghavendra. They are all residing with him and are working in his Hotel Sanman in which the three sons of P.W. 1 are partners. From this evidence it is obvious that apart from the petition schedule property, P.W. 1 owns another hotel called as 'Hotel Sanman' in which also himself and his three sons are partners. Again in the cross-examination (at page 63 of the paper book) P.W. 1 has admitted that himself and his sons have formed another partnership firm called as Sanman Delux Firm. He has stated (at page 64 of the paper book) that in order to engage his sons in the business for their livelihood and income and for his own livelihood and income, he wants to construct a lodging in the petition schedule premises. He has further stated (page 65 of the paper book) that all the partners of the petitioner-firm are also the partners in Sanman Delux Firm. He has admitted that Sanman Delux Hotel consists of 36 rooms and the Sanman Delux Firm has invested an amount of Rs. 15,00,000/- in it. He has admitted (page 67 of the paper book) that he is an Income-tax assessee and all his sons are Income-tax assessees. He has admitted that the daily turnover of Sanman Hotel is Rs.3,000/- to Rs.4,000/-. He has admitted the estimated cost of construction of Sanman Delux Hotel is Rs. 28 lakhs. P.W. 1 has further admitted (Page 73 of the paper book) that his wife is a partner in Dwarka Hotel at Seshadripuram. P.W. 1 has further stated (at page 79 of the paper book) even now he is having Hotel Sanman on Tank Bund Road and the business in it is being looked after by his son Ramesh. He has stated Hotel Race View (part of Hotel Sanman Delux) belongs to him i.e. P.W. 1 as a partnership firm and he is looking after the management of that hotel. He has stated that his sons Raghavendra and Raveendra are not having any avocation. He has stated in the proposed hotel, constructed in the new building, his son Raveendra will look after the management. He has stated for his other son Raghavendra he has to still make some arrangements. The evidence of P.W. 1 that his sons are without avocation cannot be believed because it is his own evidence that his sons are living with him jointly and all of them are partners in the petitioner-firm, in Sanman Hotel and also in Hotel Sanman Delux. It is in his evidence that his sons are working along with him in the hotels, and all the partners of these firms are income-tax assessees. Therefore, there is absolutely no truth in the statement of P.W. 1 in his evidence that his sons have no avocation. Considering this evidence on record, the learned Trial Judge has come to the conclusion that the alleged need of the petitioner for the petition schedule for the use and occupation after demolition and reconstruction for himself and his sons is neither bona fide nor reasonable. The learned Counsel for the petitioner argued that there is no prohibition under law for the petitioner to constitute any number of partnership firms and to carry on business and on that ground the petitioner's case cannot be disbelieved. In this regard, the learned Counsel for the petitioner drew my attention to certain observations made by the Trial Court in the impugned order. The learned Trial Judge has observed therein that the subsequent conduct of the partners of the petitioner-firm in acquiring another property Sanman Delux by constituting another partnership firm raises doubts upon the case of the petitioner. As rightly submitted by the learned Counsel for the petitioner this reasoning is not correct, inasmuch as there is no prohibition under the law for a person to formulate partnerships for the purpose of his business. The learned Counsel for the petitioner argued that so far as the petitioner-firm Chandrika Enterprises is concerned, except the petition schedule property, there is no other property. But, as rightly pointed out by the learned Counsel for the respondents, while the petitioner has put forward the case in the petition that the need for the petition schedule property is for the petitioner-firm, the evidence of the petitioner P.W. 1 is that it is needed for finding avocations and livelihood for his sons. The learned Counsel for the respondents argued that there is inconsistency between the pleading and evidence and therefore the petitioner's case cannot be believed. There is much force in this contention when we take into consideration the fact that it is the petitioner and his three sons who are the partners in all these three firms. The entire evidence of P.W. 1 is that he needs the petition schedule property to enable him to establish one of his sons in Hotel business. That is not the case put forward in the petition. No doubt the desire of P.W. 1 to establish all his sons in independent businesses cannot be said to be unreasonable, or it lacks in bona fides. It is the natural desire of every parent to settle his sons in life in the best manner that is possible. But the question is whether such a desire canbe considered as 'need'. In this regard reference may be made to a decision (Sheena Naik v. Lawrence D'Souza). It has been held therein as follows:--
"It is not every wish or desire of the landlord that can be described as a reasonable and bona fide requirement. The term 'require' implies something more than a mere wish or impulse or desire on the part of the landlord. Although the element of need is present in both the cases, the real distinction between 'desire' and 'require' lies in the insistance of that need. There is an element of 'must have' in the case of 'require'which is not present in the case of mere 'desire'."
In another decision (Mst. Bega Begum v. Abdul Ahad Khan (dead) by L.R.'s) while considering Section 11(1)(h) of the Jammu & Kashmir Houses and Shops Rent Control Act, the Supreme Court held as follows:--
"Section 11(1)(h) of the Act uses the words "reasonable requirement" which undoubtedly postulate that there must be an element of need as opposed to a mere desire of wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire. The connotation of the term "need" or "requirement" should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds."
The principles enunciated in these two decisions have to be borne in mind while considering whether in a particular case the alleged requirement of the petitioner is a 'need' or a mere 'desire'. Considering the facts of the case on hand in this legal background, it is difficult to accept the argument of the learned Counsel for the petitioner that just because the petitioner has thought it fit to formulate different partnerships consisting of the very same partners, he can contend that because the petitioner-firm does not own any other property in its name the need of the petitioner-firm is bona fide and reasonable. As submitted by the learned Counsel for the respondents, it is very important to bear in mind that in all these firms referred to by P.W. 1 in his evidence, the partners are P.W. 1 and his sons alone who are all members of the same family. If the garb of partnership is removed, then the need of the petitioner and his sons is common with regard to all their properties. Considered from that point of view, the learned Trial Judge has rightly come to the conclusion that what has been established by P.W. 1 is only his 'desire' to settle his sons in independent businesses and it is not a genuine 'need' within the parameters laid down by law. The learned Counsel for the petitioner in support of his argument relied upon a decision in L. Eswar v. E. Raghupathi Naidu . It has been held therein as follows :--
"Where the landlord was running a lodging house in the premises adjacent to the suit premises his requirement of the premises to have space for parking vehicles and to have restaurant and reception counter would be a reasonable requirement. The concept of the reasonableness of the "requirement'' will have to be understood with reference to the person who moots the idea concerned and in the background of the person who proposes to start a particular business. For a lawyer or a medical practitioner business of running a restaurant may not appear necessary and proposal to start such business may be characterised as a mere desire. But with reference to the person who is already running a lodging house starting a restaurant cannot be in the realm of fancy but will be a reasonable idea and may be legally termed as a proper requirement. Moreover, when a person who runs the lodging house claims additional space to provide amenities such as space for parking the vehicles, the question whether it is a reasonable requirement has to be decided by taking into consideration the normal amenities provided in a lodging house. Similar is the situation regarding the space for reception counter."
On a careful perusal of the said decision, I find it has no application to the facts of the case on hand. In the case in the said decision, the landlord who was running a lodging house required the petition schedule premises which was adjacent to it for parking vehicles which was by way of additional accommodation for the lodging. Under those circumstances it was held that the need was reasonable and bona fide. In that case there was no contention or evidence to show that the landlord owned other properties. But in the case on hand, the facts are different. The petitioner is not claiming any premises by way of additional accommodation. The alleged need of the petitioner is for constructing a lodging house and then to make use of it personally for establishing his sons in business. The evidence on record goes to show in this case that P. W. 1 and his sons who are the pertners of the. petitioner-firm are also partners in other firms and are engaged in hotel business. Therefore the facts of the case are altogether different and the decision relied on has no application to the case on hand. I therefore find that the learned Trial Judge has come to the right conclusion that what the petitioner has established is only the 'desire' of P.W. 1 and not the 'need' of the petitioner-firm. There is no infirmity in the appreciation of evidence of the conclusion arrived at by the Trial Court in this regard. Hence Point No. (i) is answered in the affirmative.
22. Point No. (ii) :-- The petitioner has filed these petitions under Section 21(1)(h) and (j) of the Act. Paras 4 and 5 of the eviction petitions make it clear that in addition to the plea under Section 21(1)(n), there is a plea under Section 21(1)(j) of the Act also. Para 10 of the objections statement filed in H.R.C. No. 191/84 goes to show that the respondents have also understood the case of the petitioner as one under Section 21(1)(j) of the Act. In the said para the respondent has contended that he is entitled to the benefit under Sections 26 and 27 of the Act. Such a contention can be taken only if the petition is under Section 21(1)(j) of the Act also. In para 8 of the impugned order (at page 24 of the paper book), the learned Trial Judge has observed as follows:--
"It is submitted in the course of arguments that in these proceedings, the ground under cl. (j) of Section 21(1) of the KRC Act, 1961 merges with the ground under cl.(h) of the aforesaid provision of law. Since the petitioner-firm after demolishing the present building and reconstruction of the new building wants to occupy the same for its personal use and occupation. Under the circumstances, I need not discuss these 2 aspects separately and a common discussion would be sufficient."
This observation goes to show that the Trial Court has not made a proper approach to the evidence on record. We have seen from the discussion of the legal positions in paras 17 and 18 above, that the grounds under Section 21(1)(h) and (j) are independent and are to be considered independently. Therefore, the approach of the Trial Court is erroneous and it has resulted in an erroneous decision of the case. When the petitioner has specifically pleaded the ground under Section 21(1)(j) of the Act in the petition, the respondents have met that contention specifically in the objections statement and the parties have gone to trial understanding that there is a plea under Section 21(1)(j) of the Act also and have adduced their evidence on both the grounds under Sections 21(1)(h) and (j), in view of the legal positions obtaining, the Trial Court ought to have considered the ground under Section 21(1)(j) of the Act separately.
23. Before considering the evidence on this point, it would be necessary to note what are the requirements of law for establishing the ground under Section 21(1)(j) of the Act. In this regard, the learned Counsel for the petitioner drew my attention to a decision reported in Narayana Goyind Anikhindi v. Venugopal Sitaram Sarada (1986(1) Kar LJ 314).
It has been held therein as follows:--
"It is not correct to say that an Order under Section 21(1)(j) of the Act cannot be sought for unless the premises in the occupation of the tenant was so dilapidated as to require demolition. Demolition of an existing building may be made or become reasonably necessary for reasons other than its impaired condition. Its replacement by a bigger or more modern structure, which makes it more suitable for occupation or enhance the landlord's income, is as good a ground for its demolition as its deteriorated condition would be and there could be other equally good justification for the removal of the existing structure and the erection of another. Even when the requirement is reasonable and bona fide, an order for demolition under Section 21(1)(j) is possible only if there is prospect for immediate demolition of the existing building. In other words, what should be pleaded is that there is a plan ready, a project ready and that the landlord has prepared himself to carry into effect such a plan or project by which he wants to demolish and re-construct in place of the demolished . building with a new structure. That goes to establish his bona fide. Mere deteriorated condition as held by this Court is not an adequate ground. But, what is essential ingredient impelling the Court to grant a decree is the demonstration of the landlord of his intention, the project or the plan which demonstrates the urgency of the requirement of the premises for the purpose of demolition. Whether the word 'immediate' is pleaded or not may be immaterial. But, what should be necessarily pleaded is to bring out the immediacy or imminence of the requirement of urgency for such demolition."
The guidelines set out in this decision, have to be borne in mind while considering the evidence on this point.
24. Coming to the evidence on this aspect, P. W. 1 has stated in his deposition (Page 57 of the paper book) that he has made all the necessary preparation for carrying on the work of immediate demolition and reconstruction in the place of the schedule premises. He has stated he has got the plan duly sanctioned. He has produced it at Ex. P2. He has stated he has also got the estimate prepared and has produced it at Ex. P7. He has stated there is a bank deposit of Rs. 4 1/2 lakhs in the names of the firm and also in the names of the partners of the firm. He has produced the Bank pass book. P.W. 1 has stated that the petitioner has invested a huge amount for the purpose of purchasing the petition schedule building and he will be put to great hardship if he is not able to make use of it. This statement of P.W. 1 is corroborated by the documents Exs. P22 and P23 which are the two sale deeds under which the petitioner-firm has purchased the petition schedule building for a total consideration of Rupees 3,30,000/ -. In the cross-examination (page 63 of the paper book) it is elicited from P.W. 1 that the period mentioned in the sanctioned plan Ex. P6 has expired and he has not applied for sanction of a fresh plan, to the Corporation. This has been subsequently explained by P.W. 1 (page 79 of the paper book). He has stated that after the lapse of the validity of the sanctioned plan he had obtained, he has not applied for renewal or for fresh plan in view of the pending litigation. As rightly submitted by the learned Counsel for the petitioner, in view of the uncertainty of the time factor in litigation, it cannot be expected that the petitioner would every once in three years apply for a sanctioned plan. It would be natural to expect that after the closure of the litigation, if he succeeds, he would apply for a sanctioned plan afresh for the purpose of construction.
25. P.W. I has further stated that he has not yet obtained the licence to run hotel business in the petition schedule premises as the licence will be issued at the time when the hotel is to be run.
26. The petitioner has stated (page 64 of the paper book) that whether the condition of the petition building is good or bad, he intends to demolish the same and to construct a new building in its place. It is elicited from him that he has no documents to show that the petition schedule premises is an old one. This is not correct inasmuch as, there is clear documentary evidence on record to show that the petition schedule building is a very old one. The petitioner has produced the two sale deeds under-which he has purchased the petition schedule premises at Exs. P22 and P23. In the schedules of these documents it is clearly mentioned that the petition schedule building had been constructed about 160 years earlier to the date of those documents and the construction is out of mud bricks, jungle wood and the flooring being partly mud and partly cement. The respondents have not questioned the genuineness of these two documents. In view of this documentary evidence, as on today the building in the petition schedule property would be 73 years old. There are also certain other documents. The respondents themselves have produced two photographs Exs. R22 and R24 which clearly go to show that the petition schedule building has developed cracks in the walls. Though the respondents R.Ws. 2 and 3 have stated in their evidence that the petition schedule building is in a good condition, it cannot be believed in view of the clear documentary evidence which is available on record. Even assuming for argument's sake that the petition schedule building is not in a dilapidated condition, it is not a material factor while considering the ground under Section 21(1)(j) of the Act. In this regard, the learned Counsel for the petitioner relied upon a decision in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy . It has been held therein as follows:--
"In considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It is not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition."
The same view is held in the decision already referred to above in 1986 (1) Kar LJ 314. The decisions fully support the argument of the learned Counsel for the petitioner. The learned Counsel for the petitioner further submitted that in this particular case there is sufficient evidence to show that the petition schedule building is in a dilapidated condition ami therefore it further confirms the petitioner's case under Section 21(1)(j) of the Act. In support of his submission he relied upon a decision in Metal & Co. Etc. v. Bansilal Sarma Etc. . Eventhough that case was decided under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, the principle laid down therein applies to the facts of the case on hand also since the relevant provisions under the Karnataka Act and the Tamil Nadu Act are the same. Section 14(1)(b) of the Tamil Nadu Act is at pari materia with Section 21(1)(j) of the Karnataka Act. The Supreme Court held in that decision as follows :--
"Existing condition of building far from being totally irrelevant is a vital factor while considering the bona fide requirement -- Age and existing condition of building whether it is a recent construction or old and whether it is in a good and sound condition or has become decrepit or dilapidated are relevant factors forming part of all'the circumstances that have to be considered while determining bona fide requirement."
In view of this legal position, the condition of the petition schedule building in this case, very much supports the petitioner's case under Section 21(1)(j) of the Act.
27. It is suggested in the cross-examination of P.W. 1 (page 68 of the paper book) that the estimated cost of construction of Sanman Delux building is Rs. 28 lakhs. Apart from this evidence, the evidence also discloses that P.W. 1 owns another Hotel called as Hotel Sanman. In view of this evidence, the financial capacity of the petitioner for undertaking the project of demolition and reconstruction of the building in the petition schedule premises for the purpose of running a lodging house, cannot be doubted.
28. P.W. 1 has stated (page 79 of the paper book) that he has got a plan prepared as per the existing bye-laws. He has produced it at Ex. P29 and has stated that it was preprared by T. M. Muralidhar Rao, an architect. He has stated the earlier sanctioned plan Ex. P6 had also been prepared by the said Muraiidhar Rao.
29. P.W. 2 Muraiidhar Rao is an architect. He has stated in his evidence he prepared Ex. P29 as per the existing bye-laws. He had prepared Ex. P6 as per the bye-laws which were then in force.
30. There is no provision made in Ex. P29 for providing any accommodation to the respondents after reconstruction. In this regard it is elicited in the cross-examination of P.W. 1 (page 69 of the paper book) that he cannot provide room to respondents after the reconstruction is over in the petition schedule premises (at page 83 of the paper book) He has stated that he is not having any idea of providing space in the newly constructed building to Vittal Rao, that is one of the respondents. He has denied the suggestion that with that idea only he has shown car parking space in the ground floor in Ex. P29. He has further stated that he has not made any provision to provide accommodation to Sridhar (another respondent) in the newly constructed building. In the cross-examination of P.W. 2 in answer to a question whether he could have provided some space for shops in the ground floor, the witness has answered.
"He (i.e. the petitioner) did not want to have it."
Relying upon these answers in the evidence of P.W. 1 and P.W. 2, the learned Counsel for the respondents argued that the claim of the petitioner under Section 21(1)(j) is not at all bona fide or reasonable. It is not possible to accept this argument because as rightly submitted by the learned Counsel for the petitioner, the right of re-entry given to the tenant under Section 27 of the Act accrues to the tenant only after the decree for eviction has been passed, and the work of demolition and erection of a new building has been commenced by the landlord. Further, the right of the tenant under Section 27 of the Act does not depend upon the wish or charity of the landlord. It is an independent right given to the tenant which he can exercise, whether the landlord likes it or not. Therefore, merely because the landlord has shown his disinclination to provide accommodation to the respondent after reconstruction, it cannot be inferred that the ground urged under Section 21(1)(j) of the Act is neither bona fide nor reasonable. As rightly submitted by the learned Counsel for the petitioner, the respondents would be entitled to a reasonably comparable accommodation in the new building after it is reconstructed. In this regard, he relied upon a decision in K. Sriniyasa Rao v. K. M. Narasimhaiah (ILR 1989 Kar 1186). It has been held therein as follows:--
"Under the provisions of Section 28 of the Act, the appellant (tenant) became entitled to occupy a tenement in the new building. The on!y question is as to what is the nature of the tenement to which he is entitled. There is nothing specific in this connection in the language of sub-section (i) of Section 28. However, a fair common sense reading of the provisions of sub-section (1) of Section 28 would show that a tenant against whom eviction decree has been passed under Sec-tion 21(1)(j) and who has given notice as contemplated under S. 27 of that Act would be entitled to a tenement in the new building which could be said to be reasonably comparable to or to reasonably correspond to the tenement in respect of which the decree was passed."
Therefore, the law does not require the landlord to say that he is prepared to give accommodation to the respondent after reconstruction or show the accommodation which he proposes to give to the respondent in the plan prepared for the reconstruction of the building. There is no such requirement under the law. Hence the answers elicited in the cross-examination of PWs 1 and 2 are of no avail and do not support the respondents' contention that the ground urged under S. 21(1)(j) of the Act by the petitioner is not bona fide in any manner. It is thus seen that the evidence on record establishes all the ingredients mentioned in the decision referred to above in 1986 (1) Kant LJ 314.
31. The learned counsel for the respondents argued that the evidence on record goes to show that PW 1 and his sons own two other properties Hotel Sanman and Hotel Sanman Delux and therefore the alleged need of the petitioner for the petition schedule property is neither bona fide nor reasonable. This argument is not available to the ground under S. 21(1)(j) of the Act. As submitted on behalf of the petitioner, even though the petitioner has failed to prove the ground under Section 21(1)(h) of the Act, still he could urge the ground under S. 21(1)(j) of the Act because he wants to make the best use of the property he has purchased, demolish the old and dilapidated building which exists on it and construct a lodging house for the better use of the property and for augmenting his income. The learned counsel submitted that the petitioner can lease out the lodging house so constructed and derive income from it. In support of this contention, the learned counsel for the petitioner referred to the two decisions which have already been referred to above. In 1986 (1) Kant LJ 314, it has been held that the intention of the landlord to replace the existing structure in the property in question by a bigger or more modern structure, which makes it more suitable for occupation or enhance the landlord's income, is a good ground under S. 21(1)(j) of the Act. Similar view has been expressed by the Supreme Court in the decision . It has been held therein that the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is a factor that may be taken into account in favour of the landlord while considering the ground under S.21(1)(j) of the Act. These decisions fully support the argument of the learned counsel for the petitioner. Therefore merely because PW 1 and his sons own certain other property, it cannot be inferred that the need of the petitioner for the petition schedule property under S.21(1)(j) is not bona fide or is unreasonable. I therefore find that the petitioner has established the ground under S. 21(1)(j) of the Act. Hence point No. (ii) is answered in the negative.
32. Point No. (iii):-- We have seen from the discussion of the legal position as above that the grounds under S. 21(1)(h) and (j) of the Act are independent grounds and even if the petitioner fails to establish the ground under S. 21(1)(h) of the Act, he can succeed under S.21(1)(j) of the Act if the necessary ingredients under the said provision are established. We have also seen from the discussion of the evidence on record that the petitioner has successfully established the ground under S. 21(1)(j) even though he has failed to establish the ground under Section 21(1)(h) of the Act. I therefore find that the petitioner is entitled to the relief under S.21(1)(j) of the Act. Point No. (iii) is answered accordingly.
33. Point No. (iv):-- We now come to the last question as to, to what reliefs the parties are entitled to. The learned counsel for the petitioner advanced two contentions in this regard. Firstly he contended that the question of providing accommodation to the respondents at this stage does not arise at all, and what the petitioner has offered by way of the proposed compromise is only by way of concession. He submitted that the right of re-entry accrues to the respondent if an order under S.21(1)(j) of the Act is passed, only after the decree and therefore there is no need for the Court to go into that question at this stage. In the alternative he contended that the petitioner is even now prepared to act upon the proposed compromise. In this regard he drew my attention to the sanctioned plan dated 14-3-1995, a copy of which has been produced into the Court. In the said sanctioned plan towards the west of the petition schedule premises, adjacent to two roads in the corner, two shops are found, each measuring 7.9' x 9.3'. The learned counsel for the petitioner submitted that this is in accordance with the proposal for compromise made by the respondents themselves on 2-1-1995 and the petitioner is prepared to abide by the same even now. He further submitted even though in the sanctioned plan dated 14-3-1995 the two shops meant for the respondents' occupation are shown as measuring 7.9' x 9.3', it is only for- the purpose of obtaining the sanctioned plan as otherwise the plan would not be sanctioned. He submitted since under the building bye-laws an internal alteration to the extent of .5% is permitted, the petitioner would be able to provide accommodation to the respondents in two shops measuring 9' x 9' in the same place where the two shops are now shown on the western side in the sanctioned plan. In this regard the petitioner-firm has filed the affidavit of its Managing Director K. G. Jagannatha Rao dated 12-12-1995. In para 3 of the said affidavit he has stated as follows:--
"I submit I undertake to construct two shops measuring 9' x 9' abutting the road and deliver possession of the same to the respondents after construction, as suggested by the respondents themselves."
Per contra, the learned counsel lor the respondents argued that the proposed compromise is totally unacceptable to them as the sanctioned plan the petitioner has obtained is not at all in accordance with the proposed compromise. They submitted on 2-1-1995 what the respondents had proposed by way of compromise was that the petitioner should construct two shop premises measuring 9' x 9' abutting the main road. They pointed out in the sanctioned plan which the petitioner has obtained (dated 14-3-1995), only one shop situated towards the South is abutting the main road and the other shop is not abutting the main road and it is proposed to be constructed behind the first shop. They submitted that even though it was possible for the petitioner to have provided for the two shops on either sides and to have constructed the lodging in between, intentionally he has not done so and has chosen to throw the respondents into the interior of the premises and therefore the respondents did not agree for the compromise now proposed by the petitioner in the sanctioned plan dated 14-3-1995. The learned counsel for the respondent in H.R.R.R 5762/1988 (HRC 193/84) added that the contention of the petitioner that the right of re-entry should be left to be decided after the decree cannot be accepted as it is not bona fide. He submitted that after all this contest between the parties, there is no guarantee that the petitioner would provide accommodation to the respondents after reconstruction and therefore now alone he must be asked to speak how he proposes to provide for the two shops abutting the main road, in the construction he proposes to put up.
34. On a careful perusal of the facts of the case and the evidence on record, I find that. there is no merit in any of the contentions of the respondents. The learned counsel for the petitioner in support of his argument that the landlord is not expected to provide accommodation for all the tenants to be evicted under S.21(1)(j) even before the decree is passed, relied upon a decision in Y. Seetharama Holla v. Gopala Rao : --
"When the order is passed under S. 21(1)(j), Karnataka Act 22 of 1961, Ss. 26, 27 and 28 of the Act necessarily come into play. Perusal of the aforesaid sections namely, Ss. 21(1)(j), 26, 27 and 28 and also the provisions in Part V of the Act, makes it abundantly clear, that there is no provision under which courts can direct the landlord to reconstruct the building in any particular manner and there is no right given to any tenant to insist in a proceeding under S.21(1)(j) of the Act, that the building proposed to he constructed, after demolition of the old building shouid be of such and such a type as to provide not only accommodation to them but to suit their convenience. All that is available to such tenants is the right to exercise option by expressing their intention to occupy a portion of the newly constructed premises on payment of fair rent. They are entitled to a notice by the landlord, as to when the construction is about to be completed and are also entitled to issue a notice to the landlord that they are willing to occupy on payment of fair rent which will be fixed according to law, namely, under S. 14 of the Act. Hence, it is further clear, that until a landlord issues notice to the evicted tenant or tenants and the tenants reply or issue a notice to the landlord expressing their willingness to exercise their option to take any portion on lease on payment of fair rent, the landlord would not at all be in a position to know whether any evicted tenant would ultimately occupy any portion of the newly constructed premises. Therefore, it does not stand to reason to hold that a landlord should construct a premises, so as to provide accommodation, for all the tenants evicted from the old premises."
This decision supports the contention of the petitioner and negatives the argument of the learned counsel for the respondents. As pointed out by the learned counsel for the petitioner, in the compromise proposed by the respondents on 2-1-1995, as could be seen from what has been recorded in the order sheet by the Court, it is not mentioned that the respondents wanted the shops to abut the main road. What is recorded is that they wanted the shops to abut the road. The respondents did not seek any clarification in this regard subsequently, if really they had wanted to say that the shops should abut the main road. From what has been recorded on 16-10-1995 in the order sheet, it could be seen that it is only then when the petitioner had obtained the sanctioned plan and had produced it before the Court, the respondents stated that the proposed shops for their occupation are not acceptable to them. Further, there is also no merit in the contention of the respondents that the proposed ' shops in the sanctioned plan dated 14-3-1995 do not abut the road. The sanctioned plan goes to show that both on the western side and on the soutern side of the proposed shops there are roads. The learned counsel for the petitioner also brought to my notice the evidence on this aspect. R W 2, the respondent in H.R.C. 191/84, has stated in his evidence in the cross-examination recorded on 14-8-1992 (page 106 of the paper book) as follows:--
"It is true that on either side of the building main roads are situated."
RW 3, the respondent in H.R.C. 193/84 has stated in his evidence in the examination-in-chief itself recorded on 17-8-1992 (page 123 of the paper book) as follows:--
"On three sides of the petitions property there are roads. On one side there is a conservancy road and on the other two sides, cross-roads are there. Both those roads are having one way traffic."
Looking to this evidence and considering the location of the proposed two shops for the respondents in the sanctioned plan dated 14-3-1995, it becomes obvious that there is no merit in the contention of the respondents that the two shops are not abutting the road. There is much force in the contention of the learned counsel for the petitioner that the respondents are just trying to wriggle out of the proposal for the compromise made by themselves and on which the petitioner has acted and has obtained the necessary sanctioned plan.
35. The learned counsel for the petitioner next argued that if the Court finds that the proposed compromise is just and reasonable and the sanctioned plan produced by the petitioner dated 14-3-1995 can be accepted, the Court need not wait for the consent of the respondents and the proposed compromise can be enforced. In support of this submission, he relied upon a decision (Om Prakash v. Bhagwan Das). Even though the said decision was under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act and the requirement of law therein was different, the facts are similar and the principles underlying therein applies to the facts of the case on hand also. It has been held therein as follows:--
"Where the Prescribed Authority and the Additional District Judge both, after considering the comparative hardship likely to be caused to the tenant and the landlord, recorded a finding that on the refusal of the application for eviction of tenant, the landlord would be put to greater hardship and it could not be said that the landlord had not fulfilled the requirement of the 4th proviso to S. 21(1)(a) of the Act, as he had made an offer to the tenant that the rented premises in his occupation may be given to the tenant in exchange, the landlord is entitled to recovery of possession of the premises."
Again, "We wish to record that Shri R. B. Mehrotra, learned counsel for the appellant made an offer that the rented premises in occupation of the appellant may be given to the respondent who is his tenant in exchange. We think that this was a very reasonable offer and should be accepted. Shri Sunil Ambwani, learned counsel appearing for the respondent stated that the respondent was not agreeable to his proposal. We, therefore, heard the parties on merits,"
Again, "In the view that we take, the appeal must succeed and is allowed. We set aside the judgment and order of the High Court and restore that of the Prescribed Authority, Varanasi and that of the IInd Additional District Judge, Varanasi directing the release of the accommodation under S. 21(1)(a) of the Act. We direct that the Prescribed Authority, Varanasi shall on an application being made by the parties, allot the rented premises occupied by the appellant in favour of the respondent with the consent of the landlord. If no such consent is forthcoming, the Prescribed Authority shall allot a reasonably suitable alternative accommodation to the respondent for his occupation on such terms as he may deem fit."
It is important to note in the said decision on ar. offer made by the counsel for the appellant, finding that the proposal was just and reasonable, even though the respondent was not agreeable to it, the Supreme Court found it just and proper to enforce the proposal and give the necessary directions to the concerned authority.
36. From the facts of the case and the evidence on record, I find that the proposed compromise is reasonable and the petitioner has acted in good faith in obtaining the sanctioned plan dated 14-3-1995 wherein the accommodation to be provided to the respondents is found. We have also seen that there is no merit in the contention of the respondents that the proposed compromise cannot be accepted because the shops proposed for the respondents are not abutting the main road. Enforcing the compromise as proposed in the sanctioned plan dated 14-3-1995 and the affidavit dated 12-12-1995 filed by the Managing Partner of the petitioner-firm, apart from enabling the petitioner to go or, with the work of demolition and reconstruction, assures accommodation to the respondents in the reconstructed building and removes the apprehension expressed by the learned counsel for the respondent in HRC 193/84. I therefore find that it would be in the best interests of both the parties to enforce the proposed compromise on the principle of live and let live. In this regard the learned counsel for the petitioner brought to my notice a decision (Jivram Ranchhoddas Thakkar v. Tulshiram Ratan chand Mantri). It has been held therein that :--
"Making a humanist approach we felt that it was right to adopt a course of 'live and let live' by the landlord and tenant in this case."
Even though the facts of that case were different, what is important to see is that the principle has been accepted and adapted by the Supreme Court and it could be taken as a guideline for deciding the cases of this type. Point No. (iv) is answered accordingly.
37. For the reasons aforesaid, the revision petitions are allowed and the impugned order so far as these two cases are concerned, dismissing the eviction petitions is set aside. The eviction petitions are allowed under Section 21(1)(j) of the Act. The respondents are directed to vacate and hand over vacant possession of the petition schedule premises to the petitioner within three months from the date of this order. The petitioner shall commence the work of demolition and reconstruction of the building within three months from the date of taking possession from the respondents in accordance with the sanctioned plan dated 14-3-1995 and the affidavit of the Managing Partner of the petitioner-firm K.G. Jagannatha Rao dated 12-12-1995, complete the construction as expeditiously as possible and after the construction is completed, deliver possession of the two shops each measuring 9' x 9' as mentioned in the sanctioned plan and the affidavit to the respondents, on the respondents undertaking to pay fair rent for the premises as provided under Section 27(A) of the Act. The question as to which of the respondents should occupy which shop proposed in the sanctioned plan is left open to be decided in between the respondents by mutual discussion. In case of dispute between them in that regard, the same shall be decided by the Executing Court in accordance with law. Considering the facts and circumstances of the case, the parties are directed to bear their own costs in these two petitions. This order shall be kept in CRP 5649/88 and a copy thereof shall be kept in CRP 5762/88 for reference.
38. Petitions allowed.