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Papinakanahalli Venkanna and ors. Vs. Janadri Venkanna Setty - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 331 of 1975
Judge
Reported inAIR1981Kant20; ILR1980KAR147; 1981(1)KarLJ56
ActsKarnataka Rent Control Act, 1961 - Sections 21 and 21(1); ;Transfer of Property Act, 1882 - Sections 106
AppellantPapinakanahalli Venkanna and ors.
RespondentJanadri Venkanna Setty
Excerpt:
- administrative law. administrative orders: [h.n. nagamohan das, j] administrative authorities excursing quasi judicial powers, passing adverse order without evidence or basis is not sustainable and is liable to be set aside. judicial review:held, judicial review is an integral part of the constitutional system. an authority is bound to pass reasonable order. if not, interference by high court and supreme court is permissible. .....act, 1961, is it necessary for the landlord to determine the contractual tenancy by issuing to the tenant a notice under section 106 of the transfer of property act?'2. the order of reference was made on 11th july, 1979. sri suresh s. joshi learned counsel for the petitioner submitted that the above question has to be answered in the negative in view of the recent decision of the supreme court in v. dhanapal chettiar v. yesodai ammal decided oil 23rd august. 1979, ilr (1979) kant 165 paras 1 and 6: : [1980]1scr334 . the said decision sets at rest, the controversial question relating to the necessity or otherwise of quit notice, terminating the tenancy contractual or otherwise in respect of a building, eviction from which is regulated by (the rent act), the court has held that as the.....
Judgment:

Rama Jois, J.

1. A Division Bench of this Court, to whom the above civil revision petition was referred by a single Judge under Section 9 of the High Court Act, has referred the following question of law for opinion of the Full Bench.

'Before maintaining a petition for eviction under Section 21 (1) of the Karnataka Rent Control Act, 1961, is it necessary for the landlord to determine the contractual tenancy by issuing to the tenant a notice under Section 106 of the Transfer of Property Act?'

2. The order of reference was made on 11th July, 1979. Sri Suresh S. Joshi learned counsel for the petitioner submitted that the above question has to be answered in the negative in view of the recent decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal decided oil 23rd August. 1979, ILR (1979) Kant 165 Paras 1 and 6: : [1980]1SCR334 . The said decision sets at rest, the controversial question relating to the necessity or otherwise of quit notice, terminating the tenancy contractual or otherwise in respect of a building, eviction from which is regulated by (the Rent Act), The Court has held that as the eviction from buildings is regulated and controlled by law, there is no question of termination of tenancy by the issue of quit notice under Section 106 of the Transfer of Property Act. Hence the question has to be answered in the negative following the aforesaid decision.

3. Sri B. P. Holla, learned counsel for the respondent, nevertheless maintained that the aforesaid judgment cannot be taken as a binding authority for the following reasons :

(i) As the relevant provisions of the Karnataka Rent Control Act, have not been specifically considered and interpreted, the general observations made in the aforesaid decision cannot be considered as a binding precedent under Article 141 of the Constitution.

(ii) The specific language used in the Karnataka Rent Control Act taken as a whole does require the termination of tenancy in the manner prescribed under Section 106 of the Transfer of Property Act. In support of the first submission he relied on the decision of the Supreme Court in Raval and Co. v. K. G. Ramachandran, : [1974]2SCR629 in which it is observed that general observations made in any decision of the Supreme Court do not constitute precedent on the interpretation of a provision of a statute unless the particular provision is specifically considered and interpreted. In support of the second submission be relied on Section 2 (r) of the Karnataka Rent Control Act which defines the word 'tenant' as including a person continuing in possession after termination of tenancy. 20 (3) of the said Act which provides that the receipt of rent deposited under Section 19 by the landlord shall not operate as a waiver of a quit notice given by the landlord and Section 21 (e) which provides that the Act of giving notice to quit by a tenant to the landlord as a ground for eviction, in cases where the landlord has taken steps to sell or let the premises and has taken such steps, which in the opinion of the Court would seriously prejudice him if be could not obtain possession of the premises.

4. We do not find that there is even the slightest justification for the learned counsel for respondent for making the above submissions and there is nothing to justify the in the three provisions to justify the submission. In the first paragraph of the judgment, the Supreme Court has set out the only question referred to a seven Judges Bench to resolve the cleavage of n as between decisions of High Court as also several decisions of Supreme Court, which is as follows :

Whether in order to get a decree or order for eviction against a tenant under any State Rent Control Act, it is necessary to give a notice under Section 106 of the Transfer of Property Act?

(Underlining by us (Underlining not given in copy-Ed.))

That was the only question, which was considered and answered in the judgment and therefore, the view expressed on the question cannot be termed as general observation having no binding effect. In this behalf we may also set out the relevant portions of the judgment. They are : -

'7. In our considered judgment on the question of a requirement of a notice under Section 106 of the Transfer of Property Act there is no scope for taking different views on the basis of the various Rent Acts. In this regard the difference in the language does not bring about any distinction. In all the States the law should be uniform viz. that either a notice is necessary or it is not.

xx xx xx xx xx 18 ... We have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act'.

(Underlining by us (Underlining not given in copy-Ed.))

The specific question which is required to be answered in this reference was also the specific question which arose for consideration before the Supreme Court and it has been held that mere difference oil phraseology in different State Rent Control enactments, does not take any difference, as in substance, according to all enactments including the Karnataka Act, a tenant of a building falling within the purview of the Act does not cease to be a tenant by mere service of quit notice under Section 106 of the Transfer of Property Act, but only ceases to be a tenant when order for his eviction is made by the competent Court under the Act.

5. Further the decision of this Court in Govindaswamy v. Pannalal, (1978 ) 1 Kant LJ 506 in which a Division Bench of this Court has held that no quit notice is necessary to initiate proceedings under Section 21 of the Act has been specifically referred to in the aforesaid decision.

6. We therefore answer the question in the negative.

7. Reference answered in negative.


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