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Rudrayya Vs. Gangawwa and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2533 of 1973
Judge
Reported inILR1976KAR1151; 1976(1)KarLJ409
ActsKarnataka Rent Control Act, 1961 - Sections 3 and 21; Constitution of India - Article 141
AppellantRudrayya
RespondentGangawwa and ors.
Appellant AdvocateK.A. Swamy, Adv.
Respondent AdvocateS.G. Sundaraswamy, Adv. for ;S.V. Pralayakalamath, Adv.
Excerpt:
.....as the property was on the date of the lease. the respondents had also filed an original suit for the recovery of arrears of rent, the trial court tried both the suit as well as the application under section 11 of the bombay rents act. 11 as well as against the decree in the suit filed by the respondents. 1759 of 1969 as well as the regular second appeal no......application for fixation of standard rent under section 11. she had to establish that the plot of land leased was 'premises' within the meaning of section 5(8) of the act and that it was let for residence, education, business, trade or storage. for the purpose of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage. the expression 'premises' is defined by section 5(a) and the material part of the definition is: 'in this art, unless there is anything repugnant to the subject or context - (8) 'premises' means - (a) any land not being used for agricultural purposes,(b) any building or part of a building let separately (other than a farm building) including - (i) the garden, grounds, garages and out-houses if any,.....
Judgment:

Sadanandaswamy, J.

1. This revision petition has been referred to a Division Bench since the learned Single Judge who heard it in the first instance was of the opinion that it involves questions of considerable public importance.

2. The petitioner took on lease the land R. S. No. 104, measuring 5 acres and 3 guntas, situate in Thimmasagara village which is now part of Hubli City, on 19-1-1949, under a registered lease deed on an annual rent of Rs. 1,505, the period of lease being 41 years, from the owners respondents 1 and 2. Respondent 3 is alleged to be the sub-lessee under the petitioner. The respondents filed an eviction petition under Section 21, clause (1), sub-clauses (b), (c) and (f) of the Mysore Rent Control Act, 1961, (hereinafter referred to as the Act). The present petitioner contended, among other things that the application is not maintainable for the reason that the suit property was an agricultural land and that the Court had no jurisdiction to entertain the application. The learned Additional Munsiff, Hubli, negatived his contention and held that the Court had jurisdiction to entertain the application. It is against this order that the Revision Petition has been filed.

3. In the lease deed Exhibit P-1 the suit property is described as garden land. It also recites that there is a house standing on the suit property. The purpose for which the lease is taken is stated to be for the storage of fuel and timber. The lease deed also recites that the tenant will apply for permission to use the property for a non-agricultural purpose and that since the property is at the time of the lease being used for agricultural purposes, the assessment of Rs. 5-7-6 should continue to be paid by the landlords and that if the assessment is increased, such excess as well as the Municipal Taxes would be paid by the tenants thereafter. It also provides that on the expiry of the term of the lease, the tenant would vacate the land as well as the house standing thereon and restore possessions of the same to the landlords in the same condition as the property was on the date of the lease. Another term of the lease is that the tenant cannot cut any of the trees standing on the land except the one mango tree in the centre.

4. In Mst. Subhadra v. Narsaji Chenaji Marwadi : [1962]3SCR98 the question was as to the material date for ascertaining whether the suit property in 'premises' for the purpose of fixation of standard rent under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947). It was held that the material date for ascertaining whether the plot is 'premises' for the purpose of Section 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. Since the plot was assessed for agricultural purposes on the date of the lease it was held that it could not be regarded as 'premises' for the purpose of application for Part II of the Act and it was observed as follows:

'It is common ground that till November 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code In the year 1947, the plot was undoubtedly lying tallow, but on that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under Section 65 of the Bombay Land Revenue Code. Section 11 of the Bombay Act LVII of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises But Section 11 is in Part II of the Act and by Section 6, C1. (1), it provided that in areas specified in Schedule I, Part II applies to premises let for residence, education, business, trade or storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under Section 11. she had to establish that the plot of land leased was 'premises' within the meaning of Section 5(8) of the Act and that it was let for residence, education, business, trade or storage. For the purpose of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage. The expression 'premises' is defined by Section 5(a) and the material part of the definition is:

'In this Art, unless there is anything repugnant to the subject or context -

(8) 'premises' means -

(a) any land not being used for agricultural purposes,

(b) any building or part of a building let separately (other than a farm building) including -

(i) the garden, grounds, garages and out-houses if any, appurtenant to such building or part of a building,

(ii) any furniture supplied by the landlord for use in such building or Dart of a building,

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereto ......'

Reading Section 5, sub-clause (8) with Section 6(1), it is manifest that Part II of the Act can apply in areas specified in Schedule II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is 'premises' for purpose of Section 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as 'premises' inviting the application of Part II of the Act. The application filed by the appellant under Section 11 for fixation of standard rent was, therefore, not maintainable.'

The above observations show that what was considered material was that the appellant in that case had to establish that the plot of land leased was 'premises' within the meaning of Section 5, clause (8) of the Bombay Act and that it was unnecessary to consider whether the plot was let for residence, education, business trade or storage.

5. In Section 3, clause (n) of the Act, 'premises' has been defined as follows-.

'(n) 'Premises' means -

(i) a building as defined in clause (a);

(ii) any land not used for agricultural purposes;'

Under Section 3, clause (a) 'building' has been defined as follows: -

'(a) 'building' means any -building or hut or part of a building or hut other than a farm house, let or to be let separately for residential or non-residential purposes and includes -

(i) the garden, grounds and outhouses, if any, appurtenant to such building, hut or part of such building or hut and let or lobe let along with such building or hut or part of building or hut;

(ii) any furniture supplied by the landlord for the use in such building or hut or part of a building or hut;

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof.

But does not include a room or other accommodation in a hotel or a lodgings house.'

6. It is thus clear that the definition of 'Premises' in the Act is similar to the definition in the Bombay Act. What is material is that under both the Acts any land used for agricultural purposes is excluded from the definition of the word 'premises'. It is also clear that a farm building is excluded from the definition of the word 'building' and therefore of 'Premises' in the Bombay Act end of a 'farm house' in the Act. Since the property in question was used only for agricultural purposes on the date of the lease, it follows that in the present case also the Act excludes it from its operation.

7. But it is urged on behalf of the respondents 1 and 2 by Mr. Sunder Swamy, that there is a judgment of the same learned Judge, Shah, J., in Vasudev Dhanji Bhai Modi v. Rajabhai Abdul Rehman : [1971]1SCR66 , taking a contrary view, namely, that the material date for the determination of the applicability of Section 6(1) of the Bombay Rent Act is the date of the application asking for relief under the Bombay Rent Act and not for the date of the lease. He has relied on the decision of this Court in M/s. The New Krishna Bhavan v. The Commercial Tax Officer, (1960) 38 Mys LJ 720 = (AIR 1961 Mys 3) and the Full Bench decision in A. J. Aramha v. The Mysore State Road Transport Corporation (ILR (1974) Kant 340) (FB) for the proposition that if there is conflict between two decisions of the Supreme Court, it is the later decision which is binding on this Court.

8. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman : [1971]1SCR66 an objection was raised in execution that the court which passed the decree for eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947) had no jurisdiction to entertain the suit since the suit premises was not governed by that Act. It was held that where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial, or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. The High Court had held that the land leased was at the date of the lease used for agricultural purposes and that it so appeared on an investigation of the terms of the lease and other relevant evidence and therefore came to the conclusion that the decree was without jurisdiction and on that account a nullity. The order passed by the High Court was set aside, While dealing with the applicability of the Bombay Act it was observed as follows:

''The expression 'premises' in Section 5(8) of the Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947) does not include premises used for agricultural purposes. By Section 6 of that Act the provisions of Part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business, trade or storage. It is plain that the Court exercising power under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes the crucial date is the date of which the right conferred by the Act is sought to be exercised. Mst. Subhadra v. Narsaji Chenaji Marwadi : [1962]3SCR98 .'

According to the above observations the crucial date to determine whether the land leased is used for agricultural purposes is the date on which the right conferred by the Act is sought to be exercised. But Mr. Swamy has relied on the following observations in a later portion of the same judgment which reads as follows: -

'In the present case the question whether the Court of Small Causes had jurisdiction to entertain the suit against Mushi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease.'

His contention is that it was the intention of the learned Judges who decided the case to affirm the principles laid down in the earlier decision, namely, : [1962]3SCR98 , that it was not their intention to take a different view and that it was by mistake that it has been observed in the earlier part of the judgment that the crucial date is the date on which the right conferred by the Act is sought to be exercised. There is much force in this contention. Mr. Sundar Swamy relied on the unreported decision of the Bombay High Court in Appeal No. 413 of 1969, Manjulabai v. Sitaram Gopal Gokhale in which it has been observed that Shah, J., who is the author of the earlier judgment itself has authoritatively declared in the later decision as to what he had intended earlier in his own judgment that the crucial date to be considered for the purposes of the Bombay Act was the date on which the right conferred by the Act is sought to be exercised. But the learned judges do not appear to have noticed the observations in the later of the part of the same judgment (in : [1971]1SCR66 ) referred to above. Hence, it is difficult to come to the conclusion that it was the intention of the learned Judges who decided : [1971]1SCR66 to overrule the decision in : [1962]3SCR98 .

9. Mr. Swamy further contended that even if it is so to be taken that the decision in Vesudev Dhanjibhai Modi v. Rajabhai Abdul Rehman : [1971]1SCR66 takes a contrary view as to the date which is material for determining the nature of the land for the application of the Act, even then it is the statement of the law in the earlier decision in Mst. Subhadra v. Narasaji Chenaji Marwadi : [1962]3SCR98 which is binding on this Court. According to him the earlier decision was decided by four learned Judges and the later decision : [1971]1SCR66 decided by three learned judges cannot be deemed to have overruled the earlier decision of the larger Bench. He has relied on the decision of the Supreme Court in Mattulal v. Radhe Lal, : [1975]1SCR127 . In the decision it has been observed as follows: -

'While considering the conflict between the two decisions of Supreme Court, we must prefer to follow the decision of the larger Bench.'

It has no doubt been also observed that they prefer to follow the decision of the larger Bench in that case because they were in agreement with it on principles also. But the observation that they must prefer to follow the decision of the larger Bench is nonetheless binding on this Court. This question did not arise for decision in the two decisions of this Court referred to above. Mr. Swamy has produced the certified copy of the judgment of the Supreme Court in : [1962]3SCR98 which shows that the decision in that case was rendered by four learned Judges, namely, K. N. Wanchoo J., K. C. Das Gupta J., J. C. Shah J. and Raghubir Dayal J. Hence, we are of the opinion that the statement of the law by the larger Bench in Subhadra's case : [1962]3SCR98 is binding on us and we have to follow the some in preference to the decision of the smaller Bench in Vasudev's case : [1971]1SCR66 . The un-ported decision of the Supreme Court in Krishnapasuba Rao Kundapur v. Dattatraya Krishnaji Karani (Civil Appeal No. 700 of 1964 decided on 6-10-1965) by a Bench of three learned Judges, which is relied on by Mr. Swamy, also supports the view taken in Subhadra's case. That was a suit by a landlord for eviction under Section 13, clause (1), sub-clause (i) of the Bombay Rents, Hotel and Lodging Act, 1947 (Bombay Act No. 57 of 1947). Under the terms of the lease, it was held. the subject-matter of letting was an open land and the rent was payable in respect of the open land only and not in respect of structures raised by the tenants. The building on the land was constructed by the tenant at his own cost. The building belonged to the tenant and was not the subject-matter of the letting. The land only was the subject-matter of the letting. The contention of the tenant that the suit premises are building and ground appurtenant to the building and are not 'land' within the purview of Section 13, clause (1), sub-clause (i) and consequently the landlord cannot claim eviction under Section 13, clause (1), sub-clause (i) was rejected. It was held that the premises are 'land' within the meaning of Section 13, Cl (1), sub-clause (i) and that the landlord was entitled to recovery of the suit land. In the present case also the terms of the lease deed show that the subject-matter of the lease was the land which was being used on the date of the lease for agricultural purposes only. According to the terms of the lease deed the land has to be restored to the landlords after the expiry of the lease period in the same condition as it was on the date of the lease. Hence the fact that the tenant had put the land to a non- agricultural use subsequent to the commencement of the lease will not bring the suit land within the definition of the term 'premises' as defined in the Act.

10. It is further urged by Mr. Swamy that the decision of this Court in R. C. Hiremath v. Gangawwa (Civil Revn. Petn. No. 1759 of 1969 decided on 6-8-1970) (Mys) operates as a bar to the present proceedings under Section 45 of the Mysore Rent Control Act. The present petitioner had filed an application for fixation of standard rent under Section 11 of the Bombay Rents Act alleging that the agreed rent of Rs. 1,505 per annum was excessive and that Rs. 750 per annum is the reasonable rent. That prayer was rejected by the trial Court which fixed Rs. 1,505, the agreed rent, as the standard rent. The respondents had also filed an original suit for the recovery of arrears of rent, The trial Court tried both the suit as well as the application under Section 11 of the Bombay Rents Act. The suit was decreed on the basis of the annual rent of Rs. 1,505 fixed on the application of the present petitioner. The present petitioner filed appeals both against the order on his application under S. 11 as well as against the decree in the suit filed by the respondents. The lower appellate Court dismissed both the appeals. Thereupon, the present petitioner filed Civil Revision Petition No. 1759 of 1969 as well as the Regular Second Appeal No. 1112 of 1969.

11. In this Court the present petitioner urged in C. R. P, No. 1759 of 1969 (Mys) that the Court had no jurisdiction to fix the standard rent since the suit property was not 'premises' under the definition of the term under the Bombay Rents Act. Reliance was placed by him on : [1962]3SCR98 (Mst. Subhadra v. Narsaji Chenaji Marwadi). This Court accepted his contention and held that the Bombay Rents Act is not applicable to the suit property, allowed the Civil Revision Petition and set aside the orders of both the lower Courts on the application under Sec, 11 and dismissed the said application. Since the only contention urged by the present petitioner in R. S. A. No. 1112/1969 was that deduction had not been given by the respondents to the amounts paid by the present petitioner, this Court directed that deduction must be given to the amounts paid by the present petitioner. It, otherwise, confirmed the decree of the lower Court in the regular second appeal.

12. The contention on behalf of the present petitioner is that the finding in, C. R. P. 1759 of 1969 that the suit property is not 'premises' under the Bombay Act, operates as a bar under Section 45 of the Mysore Rent Control Act to the present proceedings. Since the petitioner has succeeded on the first point it is not necessary to consider this question. Admittedly, the suit property was being used for agricultural purposes only on the date of the lease. It is only about a year after the date of the lease that it was converted to user for non-agricultural purposes. Hence, the contention of the petitioner that the eviction petition filed by the present respondents is not maintainable has to be upheld.

13. This revision petition is therefore allowed. The order of the lower Court is set aside and the eviction petition is dismissed. Parties shall bear their own costs in this revision petition.

14. Petition allowed.


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