1. These petitions have come up for disposal by this Bench by an order of reference dt. 8-4-1984, made by a learned Single Judge of this Court.
2. The learned single judge found that there appeared to be conflict of views expressed in the decision in Misrilal Parasmall v. H. P. Sadasiviah, (1963) 1 Mys LJ 100 and the decision in Lawrence Mascarenhas v. Ignatius Pereira, ILR (1973) Kant 798: (AIR .1973 Mys 324).
3. These petitions arise out of a common order dt. 9-8-1982 passed by the XVI Additional Small Cause Judge, Bangalore City, in HRC. Nos. 5727 of 1980, 5728 of 1980, 5729 of 1980, 5730 of 1980 and 5731 of 1980.
4. The undisputed facts are hat the petitioners-landlords are owners of the schedule premises. They filed the proceedings for an order in their favour under S. 21(l)(j), Karnataka Rent Control Act, 1961, (hereinafter referred to as the Act), putting forth their requirement that they intended to demolish the structure and put up new construction, according to the plan submitted by them.
5. The respondents-tenants in all these petitions disputed the claim of the landlords, raising various contentions, such as challenging their requirement on the ground that it was reasonable and bona fide. The trial Court recorded evidence and has come to the conclusion that the requirement of the landlords is reasonable and bona fide, so as to satisfy the ingredients of S. 21(l) (j). Even after coming to such a conclusion, no order of eviction was passed in favour of the petitioners landlords on the understanding of the law laid down in the decision in Lawrence Mascarenhas v. Ignatius Pereira, ILR (1973) Kant 798 equivalent to (1973) 2 Mys LJ 105: (AIR 1973 Mys 324). It is held that under Ss. 27 and 28 of the Act, statutory rights are conferred on the tenants and inasmuch as the landlords have not in the said plan provided for accommodation to some of the tenants when they exercise their option under Ss. 27 and 28; there will be breach of these provisions and therefore no decree for eviction could, in law be granted in favour of the petitioners landlords.
6. As already pointed out, the learned single Judge has observed that there appears to be conflict of views expressed by this Court in Misrilal Parasmall's case (1963 - 1 Mys LJ100), rendered by Hegde J. (as he then was), and the decision in Lawrence Mascarenhas v. Ignatius Pereira, (1972) 2 Mys LJ 105 (AIR 1973 Mys 324) rendered by Bhimiah, J. (as he then was).
7. Section 21(l)(j) of the Act reads as, follows:
'(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of .the landlord against the tenant;
Provided that the court may on an Application made to it, make an order for the recovery pf possession of a premises on one or more of the following grounds only, namely-
(a) & (b) .... .... ....
(j) that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished; or ............... '
8. When an order is passed under S. 21(l)(j) Ss. 26, 27 and 28 of the Act necessarily come into play. S. 26 provides for recovery of possession for demolition of building and re-entry where a decree has been, passed under cl. (j) of the proviso to sub-s. (1) of S. 21. Section 27 deals with tenant's right to give notice to the landlord of his intention to occupy a tenement in new building.
9. Pausing here for a moment, we may make it clear that S. 26 operates when the demolition of the schedule premises is to take place within the period fixed by the court and in fact, is not done by the landlord. S. 27 commences to operate after the construction of new building. S. 28 lays down that a landlord should intimate the tenant the date of completion and provides for tenant's rights to occupy the new building. S. 28(2) (b) is rather penal in its operation because, it lays down that if a landlord fails to comply with the provisions of S. 28, or to place the tenant in occupation of the building he shall without prejudice to his liability to place the tenant in possession, on conviction, be punished with fine, which may extend to five hundred rupees.Therefore, it could be without hesitation observed that when a landlord succeeds in securing an order of eviction, under cl. (j) of the proviso to sub-s. (I) of S.21 and fails to comply with the requirement of law or to discharge his obligations provided in the provisions already enumerated, the consequences envisaged by Ss. 26 and .28 of the Act would follow. But, what is absolutely clear is, when an order of eviction is passed under cl. (j) of the proviso to S. 21(l) of the Act, the affected tenant or tenants have been given a right, at their option, to notify the landlord of their intention to occupy a tenement, in the newly constructed building, subject to payment of fair rent. Now the question is whether such tenants can insist that a landlord who, while constructing new building, should construct in a particular manner so as to enable them to continue, either to reside or to carry on their business, as they were doing in the demolished premises.
10. As already pointed out, the trial court has rejected the claim of the petitioners landlords, only on the ground that the plan of the new construction, as, submitted by them, does not provide any accommodation, for at least two tenants, out of the respondents and therefore is hit by the principles of law laid down in Lawrence Mascarenhas's case (AIR 1973 Mys 324).
11. In our opinion, this question is no longer res integra. S. 8(5), Mysore House Rent and Accommodation Control Act, 1951 (hereinafter referred to as the old Act), is replaced by S. 27 of the Act. The provisions in both these sections are comparable. They have been provided to achieve the same object, particularly in safeguarding the interest of the tenants who have been evicted on such a ground. While dealing with this provision, Hegde, J. (as he then was), has in the decision in Misrilal Parasmall's case (1963-1 Mys LJ 100), laid down that there is no provision in the said Act under which courts can direct the landlord to reconstruct the building in any particular manner, repelling the contention, urged on behalf of the tenants, that reconstruction should not be made so as to make it impossible for the tenants to reoccupy any portion of the newly constructed building and such construction would deprive the tenants of the opportunity, which is granted in their favour by the Statute to reoccupy a portion of the new premises.
12. What has been held by Bhimiah, J. (as 1e. then was) in the decision in Lawrence Mascarenhas's case (AIR 1973 Mys'324), is to the effect, that a tenant is entitled to get an area carved out in the very portion of the newly constructed building, on which he was having his tenancy right in the demolished building. It is in the following words :
'Where before demolition of the building, there was no upstairs and the tenant was occupying a portion in the ground floor, he is entitled to that area carved out in the ground floor and not anywhere else. The landlord has no right to offer to the tenant any area of the landlord's choice. He is bound in law to give the tenant the approximate area which was in the tenant's occupation on which the new building has been constructed'.
13. It is because of this proposition that the trial court has rejected the petitioners application on finding that there was no accommodation available for at least two out of the five respondents-tenants.
14. Perusal of the aforesaid sections namely, 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 be constructed, after demolition of the old building should be of such and such a type as to provide not only accommodation to them 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, in our view, stand to reason to hold that a landlord should construct premises, so as to, provide accommodation, for all the tenants evicted from the old premises. As already pointed out, this view finds ample support from the reasoning in M/s. Misrilal Parasmall's case (1963-1 Mys LJ 100).
15. In the decision in Janab Abbubucker v. Mai De Deus Church (1982)2 Kant LJ 598, Sabhahit, J., has considered the provisions in Ss. 27 and 28 of the Act in the light of the afore-cited two decisions. The question that arose for consideration if this decision, before Sabhahit, J. was whether after reconstruction of the building, the tenant could insist on the landlord to provide the same premises in the same area which he occupied earlier. It has been laid down that after reconstruction, the tenant cannot insist on the landlord to let out the portion, in the same area, which he had occupied earlier and further that the tenant has also no right to dictate to the landlord, in what shape the building should be constructed, after demolition. His Lordship while considering the decision in Lawrence Mascarenhas's case (AIR 1973 Mys 324), has rightly construed, that what has been laid down therein is as per incuriam because Bhimiah, J. while rendering the decision in Lawrence Mascarenhas's case, has not taken into consideration the law laid down by Hegde, J. (as he then was) in Misrilal Parasmall's case. It has also been observed by Sabhahit, J. that the provisions of S. 27 in the Act replace the provisions in S. 8(5) of the old Act.
16. The position in law arrived at in the preceding paragraphs need not, in our considered opinion, lead to any confusion. There is no scope to understand that the right given to a tenant or tenants by the Statute is rendered inoperative.
17. When a landlord approaches the court for eviction under S. 21(1) 6) of the Act, he has to establish that his requirement is reasonable and bona fide. Apart from other, elements in regard to which he has to satisfy in the court, he has also to satisfy the court, that he has the necessary financial capacity and he has also taken steps to have the preliminaries, like submitting plans and securing the plans from the corporation authorities of the Municipal authorities sanctioned. This part of it will satisfy the courts of his bona fides. The right exercisable by the tenants under Ss. 27 and 28 of the Act is required to be put by the tenants, in case, they choose to dispute the reasonableness of the requirement of the landlord. In a given case, it is possible for a tenant to show, to the satisfaction of the court, that the requirement of the landlord is not reasonable, as he has some oblique motive like securing higher rent from the tenant or getting rid of him once for all. Therefore, the right provided to a tenant, in the, aforementioned provisions, 'Will have to be regarded as a circumstance, along with other facts and circumstances available in a given case, to decide whether the requirement of a particular landlord is or is not reasonable.
18. The trial Court has not at all approached the material on record, bearing in mind, this position both in law and on facts, particularly relating to appreciation and assessment of the material on record, before coming to the conclusion, that the landlord had satisfactorily established that his requirement is reasonable and bona fide. The trial Court ought to have considered this material namely the absence of accommodation to two out of the five tenants in this light. It has failed to do so.
19. In view of the foregoing, we allow these revision petitions, set aside the impugned orders and remit the matter to the trial Court, with a direction to re-register the H. R. C. Matters in their original numbers and dispose of the same according to law, after giving opportunity to both sides, if they choose to pray for that to adduce additional evidence, bearing in mind what has been laid down in the preceding paragraphs. No order as to costs under the facts and circumstances of these cases.
20. Petitions allowed.