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Balawant Shamrao Deshpande Vs. Sadashiv Haripant Kulkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 560 of 1970
Judge
Reported inAIR1975Kant47; ILR1975KAR313; 1975(1)KarLJ386
ActsKarnataka Rent Control Act, 1961 - Sections 2, 2(1), 2(2), 2(3), 2(4), 2(5), 2(6) and 21; Mysore Municipalities Act, 1964 - Sections 2(15), 4, 4(2) and 4(3); Mysore General Clauses Act, 1899 - Sections 6; Bombay Municipal Boroughs Act, 1925; Bengal Tenancy Act; Bombay Rents Hotel and Lodging House Rates Control Act, 1947
AppellantBalawant Shamrao Deshpande
RespondentSadashiv Haripant Kulkarni and ors.
Appellant AdvocateW.S. Joshi, Adv.
Respondent AdvocateB.V. Krishnaswamy Rao, Adv.
Excerpt:
.....the act shall be applicable to the 'areas specified in schedule ii'.the emphasis is on the word 'areas'.what schedule ii therefore contains is the list of 'areas'.the 'areas' for the purpose of clarity and certainty must be clearly described. if the areas can be clearly ascertained with reference to their names, they can be described by their names. if the legislature intended that there should be an automatic extension of part v of the act to areas which are subsequently added under other laws to the areas described in schedule ii, the legislature would have made an express provision to that effect in sub-section (3) of section 2 by adding the words like 'and other areas which may hereafter be constituted or known as of the description therein specified'.the absence of such words in..........grounds specified in that section. part v of the act became applicable to the area described as 'belgaum municipal borough' in item 1 of schedule ii to the act with effect from 31-12-1961, the date when the act came into force. admittedly, madhavpur was not a part of the belgaum municipal borough area on 31-12-1961. it was submitted that part v of the act which was not applicable to madhavpur on the date of suit, was made applicable to madhavpur during the pendency of the appeal in the court below. it was contended that the learned civil judge committed an error of law in holding that section 21 of the act which became applicable during the pendency of the appeal cannot govern pending proceedings. on this question. justice venkataswami noticed that there is a conflict between the two.....
Judgment:

Malimath, J.

1. This second appeal has come a before us on a reference made by Justice Venkataswami by his order dated 22nd November, 1972, on the ground that there is some conflict between the decisions of this Court in the case reported in (1965) 1 Mys LJ 100 between Parvathi Bai v. Damodar Anant Hegde and the unreported decision in Ex. Second Appeal No. 100 of 1966 between Situ Hengsu v. B. Kamalabai decided on 14-4-1967 (Mys.) on the question of applicability of Section 21 of the Karnataka Rent Control Act, 1961 to pending proceedings.

2. Respondents 1 to 6 instituted Regular Civil Suit No. 377 of 1964 in the Court of the Munsiff at Belgaum on the 25th of August, 1964 for possession of the suit house situate in Madhavpur and for recovery of arrears of rent of Rs. 280, alleging that the appellant-defendant is a monthly tenant under them and that his tenancy has been duly terminated. The Ist Additional Munsiff, Belgaum made a decree for possession and arrears of rent of Rs. 217 with interest at 9 per cent, per annum from the date of suit till the date of payment and for future mesne profits at the rate of Rs. 7 per month from the date of suit till the date of delivery of possession. Civil Appeal No. 229 of 1966 preferred against the said decree was dismissed by the IInd Additional Civil Judge, Belgaum. It is the said decree made by the IInd Additional Civil Judge that ischallenged by the defendant in this second appeal.

3. It was contended by Shri W. K. Joshi, learned counsel appearing for the appellant that the learned Civil Judge committed an error of law in holding that Section 21 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act) is not applicable to the pending proceedings. Section 21 which is in Part V of the Act provides that no order or decree for possession of any premises shall be made by any Court in favour of the landlord and against the tenant except on an application made to the court, only on one or more grounds specified in that section. Part V of the Act became applicable to the area described as 'Belgaum Municipal Borough' in Item 1 of Schedule II to the Act with effect from 31-12-1961, the date when the Act came into force. Admittedly, Madhavpur was not a part of the Belgaum Municipal Borough area on 31-12-1961. It was submitted that Part V of the Act which was not applicable to Madhavpur on the date of suit, was made applicable to Madhavpur during the pendency of the appeal in the Court below. It was contended that the learned Civil Judge committed an error of law in holding that Section 21 of the Act which became applicable during the pendency of the appeal cannot govern pending proceedings. On this question. Justice Venkataswami noticed that there is a conflict between the two decisions of this Court, viz., the one reported in (1965) 1 Mys LJ 100 and the decision in Ex. Second Appeal No. 100 of 1966 (Mys.). It is to resolve this conflict that the appeal has been referred to a Division Bench.

4. When the case was taken up for hearing, we asked Shri W. K. Joshi as to on what basis he contends that Part V of the Act became applicable to Madhavpur during the pendency of the appeal in the Court of the Civil Judge, as no notification making Part V of the Act applicable to Madhavpur has been produced. Shri Joshi submitted that that is the assumption on which the case has been argued before the learned Civil Judge and that if he is given time, he will ascertain and produce the relevant notification. We, therefore, gave time to produce the necessary notification making Part V of the Act applicable to Madhavpur. The learned counsel appearing for the parties submitted that there is no such notification issued under the Act, making the provisions of Part V of the Act applicable to Madhavpur area. It was, however, submitted by Shri Joshi that the area of the Belgaum Municipal Borough was extended, so as to include Madhavpur within it, during the pendency of the appeal in the Court of the CivilJudge and that therefore Part V of the Act became automatically applicable. No notification extending the limits of the Belgaum Municipal Borough, so as to include Madhavpur area in the same has been produced before us. Even assuming that the limits of the Belgaum Municipal Borough have been extended, the question that still survives for consideration is, as to whether the Act became automatically applicable to the extended area.

5. Sub-sections (1) to (6) of Section 2, which are material for the purpose of this case, may be extracted as follows:

'2. Application of the Act.-- (1) Parts I and VII of this Act shall be applicable to the whole of the State of Mysore.

(2) Parts II and III of this Act shall be applicable to the areas specified in Schedule I:

Provided that the said parts shall not apply to a building constructed after the first August, 1957 for a period of five years from the date of construction of such building. (3) Parts IV and V of this Act shall be applicable to the areas specified in Schedule II.

(4) Part VI of this Act shall be applicable to the areas specified in Schedule III.

(5) The State Government may, by notification, apply all or any of the provisions of Parts II, III, IV, V or VI to such other areas from such dates as may be specified in the notification.

(6) The State Government may at any time by notification direct that all or any of the provisions of Parts II, III, IV, V or VI shall cease to be applicable to any area whether specified in Schedule I, II or III or not, on such date as may be specified in the notification; and on that date the said provisions shall cease to be applicable to such area: Provided that Section 6 of the Mysore General Clauses Act, 1899, shall apply when any provision of this Act ceased to be applicable to any area, as if it had then been repealed by a Mysore Act: Provided further that the issue of a notification under this sub-section shall not preclude the issue of a notification under Sub-section (5) applying all or any of the provisions of the said Parts to such area...........'

It is clear from Sub-section (3) of Section 2 that the Parts IV and V of the Act became applicable to the area specified in Schedule II with effect from 31-12-1961, the date on which the Act came into force. Item 1 of the Schedule II with which we are concerned, reads: 'Belgaum Municipal Borough'. On the date on which the Act came into force, there wasthe Belgaum Municipal Borough constituted under the Bombay Municipal Boroughs Act, 1925 in respect of a specified area. It is that area which is described in item No. 1 of Schedule II as Sub-section (3) of Section 2 of the Act provides that the Act shall be applicable to the areas specified in Schedule II. Sub-section (5) empowers the State Government to apply by a notification all or any of the provisions of Part V to other areas Sub-section (6) empowers the State Government to direct that the provisions of Part V shall cease to apply to any area whether specified in Schedule II or in a notification issued under Section 2 (5). It is, therefore, clear that Part V of the Act will not be applicable to areas which are not specified in Schedule II and which are not included in any notification issued in that behalf under Sub-section (5) of Section 2 of that Act. Sub-section (3) of Section 2 of the Act provides that Part V of the Act shall be applicable to the 'areas specified in Schedule II'. The emphasis is on the word 'areas'. 'What Schedule II therefore contains is the list of 'areas'. The 'areas' for the purpose of clarity and certainty must be clearly described. This can be done by giving the precise boundaries of the areas. If the areas can be clearly ascertained with reference to their names, they can be described by their names. Under the Act, the areas in Schedule II have not been described by giving their boundaries. Some areas are described by giving the names of the concerned local authorities or the names of the revenue villages This is a convenient mode of description of the areas adopted by the Legislature The first item in Schedule II 'Belgaum Municipal Borough' only means the area known by that description on the date of the Act. Therefore, if any area is subsequently included in the Belgaum Municipal Borough area under some other Statute the newly added area cannot automatically become part of the area specified in Schedule II.

6. When certain areas are included in Schedule II for the purpose of application of Part V of the Act, it has to be presumed that the Legislature, in its wisdom, thought that having regard to the relevant facts and circumstances there is a need to apply the provisions of Part V to those areas. Sub-section (5) of Section 2 confers power on the State Government to apply the provisions of Part V of the Act to areas other than those included in Schedule II. That power can be exercised if the State Government forms an opinion that facts and circumstances justify the applicability of Part V to a particular area. It is not reasonable to infer from the scheme of Section 2 of the Act that the Legislature intended that Part V of the Act should apply to an area, withoutthe Legislature or the State Government applying its mind to the relevant factors justifying the applicability of Part V of the Act to the particular area.

7. When for the purpose of the Bombay Municipal Boroughs Act, 1925 or the Mysore Municipalities Act, 1964 the area of the Municipal Borough or the Municipality is extended under the relevant statute, the only reasonable inference possible is that such an extension was made only for the purpose of the Bombay Municipal Boroughs Act or the Mysore Municipalities Act, as the case may be and not for the purpose of the Act. The objects of the Act and the other Acts pertaining to the local authorities are different. That is why different procedures are prescribed for extending those enactments to particular areas. Part V of the Act can be applied to an area either by the Legislature by including the same in Schedule II or by the Government by issuing a notification under Section 2 (5) of the Act, No other mode of applying Part V is envisaged. If the Legislature intended that there should be an automatic extension of Part V of the Act to areas which are subsequently added under other Laws to the areas described in Schedule II, the Legislature would have made an express provision to that effect in Sub-section (3) of Section 2 by adding the words like 'and other areas which may hereafter be constituted or known as of the description therein specified'. The absence of such words in Subsection (3) of Section 2 makes it clear that the Legislature did not contemplate the automatic applicability of Part V of the Act when the boundaries of the areas specified in Schedule II are altered under some other statutes.

8. The view which we have taken accords with the view taken by the Calcutta High Court in Biraj Mohini Dassi v. Gopeswar Mullick reported in ILR 27 Cal 202, The Bengal Tenancy Act was not applicable to the 'town of Calcutta'. The area of the town of Calcutta was subsequently extended for the purposes of the Municipal Act It was contended that the Bengal Tenancy Act was not applicable to the area so extended. The High Court of Calcutta repelled that contention holding that the extension was only for the purposes of the Municipal Act and not for the purposes of the Bengal Tenancy Act.

9. Shri Joshi submitted that a contrary view has been taken by the High Court of Bombay construing similar provisions of the Bombay Rents. Hotel and Lodging House. Rates Control Act, 1947. He relied upon the decision in Mahalinga Bandappa v. Venkatesh Waman, reported in : AIR1957Bom201 . The provisions ofPart II of that Act were made applicable to Shahapur Municipal District with effect from 4-10-1949 in respect of premises let for residence or education or let to Government or local authority for the purpose of setting up offices or public hospital or dispensary. Therefore, the provisions of Part II of that Act were not applicable to premises let for business, trade or storage. The Shahapur Municipal District merged with Belgaum Municipal Borough and became a part of the Belgaum Municipal Borough by virtue of a notification dated 25th June, 1952. Part II of that Act had been applied to the Belgaum Municipal Borough area with effect from 13-2-1948 in respect of premises let for all purposes including business, trade or storage. The question debated before the High Court of Bombay was, as to whether Part II of that Act, became applicable in respect of premises let for business, trade or storage with effect from 13-2-1948 or with effect from 25-6-1952 in respect of Shahapur Municipal District which became part of the Belgaum Municipal Borough as from 25-6-1952. The High Court of Bombay held that Part II of that Act cannot be regarded as having been in force with effect from 13-2-1948 in respect of premises let for business or trade or storage. They held that the provisions of Part. II in respect of premises let for business, trade or storage would be applicable only with effect from 25-6-1952. When the limits of the Belgaum Municipal Borough were extended by including the area of the Shahapur Municipal District within its limits under the provisions of the Bombay Municipal Boroughs Act, 1925, the question as to whether the said extension automatically extends the applicability of the provisions of Part II of that Act which were in force in the Belgaum Municipal Borough before that date was not debated before their Lordships of the Bombay High Court. It was assumed that when the territorial limits of Belgaum Municipal Borough were extended, the provisions of Part II of that Act automatically stood extended without there being any notification issued under the Bombay Rent Control Act extending the provisions of that Act to the newly added area. Hence, Mahalinga's case cannot be regarded as an authority laying down a contrary proposition.

10. It was lastly contended by Shri Joshi that in view of Section 4 (3) of the Mysore Municipalities Act, 1964, the provisions of Part V of the Act automatically applied when the limits of the Belgaum Municipal Borough were altered by including within its limits Madhavpur. Section 4 provides for the inclusion and exclusion of areas in or from the Municipalities constituted under the Municipalities Act and in regard to the effectthereon. Sub-section (3) of Section 4 reads as follows:--

'4 (3). When a local area is included in any municipality, this Act and all notifications, rules, bye-laws, orders, resolutions, directions and powers (including any tax levied) issued, made or conferred under this Act or any other law applicable to such municipality shall apply to the said area from the date of publication of the notification under Sub-section (1).' Sub-section (1) provides for inclusion or exclusion from the municipality any local area. It is clear from this sub-section that any other law applicable to such municipality shall apply to the area added under Sub-section (1). Sub-section (3) will apply only if any other law is applicable to the municipality whose area is extended. The expression 'Belgaum Municipal Borough' used in item No. 1 of Schedule II to the Act, we have held is only a description of the area to which Part V of the Act has been made applicable. Those words cannot be understood as meaning 'Municipality' as defined in Section 2 (15) of the Mysore Municipalities Act, 1964. Hence, no reliance can be placed on Subsection (3) of Section 4 of the Mysore Municipalities Act in support of the contention that when the limits of any municipality are altered by extending the area under Section 4 the provisions of Part V of the Act, which were applicable to the municipality before its limits were extended, get automatically applied to the extended area of such municipality

11. As no notification has been issued under Sub-section (5) of the Act applying Part V of the Act to Madhavpur area after the coming into force of the Act, the inclusion of Madhavpur area within the limits of Belgaum Municipal Borough or the Municipality of Belgaum under the provisions of any other statute does not have the effect of making provisions of Part V of the Act applicable to Madhavpur area We, therefore, hold that Part V of the Act dirt not become applicable to Madhavpur area. As Part V of the Act itself is not applicable to Madhavpur area, the question as to whether Section 21 of the Act included in Part V applies to pending proceedings or not does not arise. This conclusion of ours precludes us from going into the question as to whether there is any conflict in the decisions of this Court in regard to the applicability of Section 21 of the Act to pending proceedings.

12. As Part V of the Act was not applicable to Madhavpur area, the landlords were entitled to terminate the tenancy and to sue for ejectment. The Courts below were, therefore, right in making a decree for possession against the appellant.

13. For the reasons stated above, this appeal fails and is dismissed. No costs. Three months' time is given for vacating the suit premises, from today.

14. Appeal dismissed.


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