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Saira Khatoon Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 1085 of 1981
Reported inAIR1983Kant205; 1982(2)KarLJ311
ActsKarnataka Rent Control Act, 1961 - Sections 31-C(1)
AppellantSaira Khatoon
RespondentState of Karnataka and ors.
Appellant AdvocateS. Nanjundaswamy, Adv.
Respondent AdvocateV.G. Dharamakumar, Govt. Pleader and ;Visweswara, Adv.
- section 100: [a.s. bopanna, j] second appeal - suit for declaration and permanent injunction - plaintiff claimed to be the donee under the gift deed - finding of the lower appellate court that the gift deed ex.p1 cannot be accepted as the attesting witness not being examined - held, that the document marked as ex.p-1 is the certified copy of the gift deed which is marked as secondary evidence as provided under section 65 of the evidence act after laying the foundation vide ex.p-9 stating that the original of the document is deposited with the pld bank. however, the perusal of the records would indicate that the defendants have not raised any objection before the trial court for marking the certified copy of the document at the time of evidence nor is it indicated as a ground in this appeal.10. in the result, we dismiss this appeal.11. however, in the circumstances of this appeal, we direct the parties to bear their own costs.12. writ appeal dismissed.

Venkatachala, J.

1. By consent of learned counsel, this appeal was treated as having been posted for hearing and we heard them.

2. This appeal is from the order of Sabhahit, J. allowing Writ Petition No. 9344 of 1978. Respondent 1 therein has presented this appeal. For the sake of convenience, the parties will hereinafter be referred to according to their respective positions in the writ petition.

3. Respondent 1 had let out and the petitioner had taken on lease, a residential building bearing No. 57/14(2), Harshamahal Road, Hassan town, in contravention of Ss. 4 and 5 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act'). Both of them filed declarations before the prescribed authority, House Rent Controller. Hassan (hereinafter referred to as the 'the Controller'). While the petitioner had sought for regularisation of his occupation of the residential building under sub-section (1) of Section 31-C, respondent 1 objected to such regularisation on the ground that the petitioner owned in the name of his wife a residential building which had been let out. The petitioner's reply to such objection was that the building could not be regarded as a residential building. However, the Controller upheld the objection of respondent 1 taking the view that that building though had been put to a non-residential use, should be treated as a residential building since it could be used for residential purpose by making some addition and alternation to that building.

4. Against that order, the petitioner preferred an appeal to the Deputy Commissioner who dismissed it upholding the view of the Controller.

5. The petitioner impugned the orders of the Controller and the Deputy Commissioner in the writ petition out of which this appeal has arisen. The learned single Judge, who heard the writ petition, allowed, it quashed the orders impugned therein and directed the Controller to regularise the petitioner's occupation of respondent 1's residential building. The learned single Judge disagreed with the view of the Controller and the Deputy Commissioner that the said building could be considered as a residential building merely because with some additions and alterations as it was possible to use that building for residential purpose after additions and alterations.

6. In this appeal, Sri. S. Nanjundaswamy, learned Counsel for the appellant (respondent 1) in the Writ petition, questioned the correctness of the view of the learned single Judge. He maintained that the view of the Controller and the Deputy Commissioner in the regard was the correct one. On the other hand, Sri G. S. Visweswara, learned Counsel for the petitioner, sought to support the order of the learned single Judge.

7. Sub-section (1) of Section 31-C reads:

(1) On receipt of the declaration under Section 31-B, the prescribed authority shall, if so satisfied pass an order declaring that the occupation of letting out from its inception is lawful.

Provided that no such order shall be passed in favour of a declarant who owns either in his own name or in the name of his family any residential building in the same city, town or village in which he building referred to in the declaration is situated.'

(Underlining is ours)

8. Section 31-C is in Part VA of the Act. As stated in Section 31-A, the provisions of that part apply in respect to residential building to which Part II of the Act applies. The expression 'residential building' has not been defined in the Act, but it is plain that that expression should have the same meaning in Part II and Part VA of the Act. The provisions of Part II of the Act treat residential and non-residential buildings differently. Clause (a) of Section 3 defines 'building' as 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 purpose. This definition of 'building' indicates that the purpose for which a building is let or is to be let, is the determining factor in deciding whether a particular building is a residential building or a non-residential building. From this, it follows that a building cannot be treated as a residential building under the Act, unless it is let for a residential purpose or can be let for residential purpose in its present condition.

9. In the present case, the building standing in the name of the petitioner's wife, consists of two rooms and one hall. Those two rooms are let for a godown and the hall for running a School. As pointed out by the Controller and the Deputy Commissioner, unless one some additions and alternations are made to this building. It cannot be used for residential purpose. In other words, it cannot be used for residential purpose, in its present condition. The learned single Judge has rightly held that this building cannot be treated as residential building within the meaning of that expression used in the proviso to sub-section (1) of S. 31-C of the Act. Hence, we are unable to find merit in this Appeal.

10. In the result, we dismiss this appeal.

11. However, in the circumstances of this appeal, we direct the parties to bear their own costs.

12. Writ appeal dismissed.

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