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Bharat Petroleum Corporation Ltd. Vs. Mohd. Haneef Choohey - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2049 of 1982
Judge
Reported inAIR1986Kant191; ILR1984KAR401
ActsKarnataka Rent Control Act, 1961 - Sections 21(1); Burmah Shell Acquisition of Undertakings in India Act, 1976 - Sections 5 and 6
AppellantBharat Petroleum Corporation Ltd.
RespondentMohd. Haneef Choohey
Appellant AdvocateS.G. Sundara Sway, Adv. for ;King and Partridge
Respondent AdvocateShivaraj Patil, Adv.
Excerpt:
.....by this impugned direction the second respondent virtually set asides the inquiry report, order of penalty and the order of appellate authority. therefore, the impugned direction issued by the second respondent is without power and authority. - hence, we are clearly of the view, that even in cases of 'term lease',the landlord can initiate proceedings under s. 7. the two other decisions referred to by the learned single judge are (1964) 1 mys lj 8 and (1974) 2 kant lj 416. so far as the (1964) 1 mys lj 8 is concerned it has to be stated that it is based on the reasoning in [1963]3scr312 which we have already mentioned, does not hold good in view of what is laid down by the supreme court in the decision reported in [1980]1scr334 .8. the other decision, which bas been relied upon by.....murlidhar rao, j. 1. this revision petition has been referred to a division bench by the learned single judge of this court, by order dt. 15-3-1984 : since his lordship felt that the law laid down in gurusiddaiah k. v. a. vittal bhat : air1984kant66 requires reconsideration, in view of the judgments of the supreme court in v. dhanapal chettiar v. yeshodai ammal : [1980]1scr334 and in firm sardarilal vishwanath v. pritam singh : [1979]1scr111 .2. the facts giving rise to this revision petition are that the respondent landlord has leased out the premises to the petitioner-tenant by a lease deed dt. 10-5-1954, for a period of 10 years, with an option to the tenant to renew the same for a further period of 10 years. the second lease deed came to be executed on 237-1963. in the second lease.....
Judgment:

Murlidhar Rao, J.

1. This revision petition has been referred to a Division Bench by the learned single Judge of this Court, by order dt. 15-3-1984 : since His Lordship felt that the law laid down in Gurusiddaiah K. v. A. Vittal Bhat : AIR1984Kant66 requires reconsideration, in view of the judgments of the Supreme Court in V. Dhanapal Chettiar v. Yeshodai Ammal : [1980]1SCR334 and in Firm Sardarilal Vishwanath v. Pritam Singh : [1979]1SCR111 .

2. The facts giving rise to this revision petition are that the respondent landlord has leased out the premises to the petitioner-tenant by a lease deed dt. 10-5-1954, for a period of 10 years, with an option to the tenant to renew the same for a further period of 10 years. The second lease deed came to be executed on 237-1963. In the second lease deed also, there was an option clause enabling the tenant to exercise his option. On the 25th Mar. 1973, the tenant sent a notice to the landlord expressing his willingness to exercise his option, to renew the lease for a further period of 10 years. This was not served on the landlord. Thereafter, the tenant got served the notice through his representative and the landlord in the meanwhile initiated these, proceedings, before the Munsiff, Gulbarga. After appreciating the evidence, the learned Munsiff on 15-4-1981, allowed the petition and granted eviction decree. The tenant, thereafter, filed CRP (HRC) No. 15 of 1981, before the District Judge, Gulbarga. The District Judge by his order dt. 3-2-1982, confirmed the order of the Munsiff and dismissed the revision petition. Against these concurrent findings, the tenant has come up before this Court Under S. 115 C.P.C.

3. Since this is a revision under S. 115 CPC, we are not inclined to go into the factual issues of the case, concluded by the two Courts below, on the basis of appreciation of evidence. However, since the order of reference deals with only one question 'whether the law laid down by the learned single judge of this Court in Gurusiddaiah's case : AIR1984Kant66 , requires reconsideration', we confine ourselves to that question.

4. The learned single Judge, in, Gurusiddaiah's case : AIR1984Kant66 , has held that, before initiating proceedings under S. 21(l) of the Karnataka Rent Control Act, the landlord should have a right of re-entry and in the case of lease for fixed term, he has no such right of re-entry before the expiry of the lease period. In this context it is further held that if an eviction petition is filed before the expiry of the term, it would be premature and incompetent. Support for this reasoning, is sought to be, derived from the judgment of the Supreme Court in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad : [1963]3SCR312 and two decisions of this Court, rendered, by a single Judge, in B. Sundara v. Purushotham Baliga (1964) 1 Mys LJ 8 and Pralhad Hucharao Chitgupi v. Hubli Ginning & Trading Co. Ltd., (1974) 2 Kant U 416. In other words, the reasoning proceeds, on the footing that the lease should be determined, in the first instance, to get a right of re-entry. Obviously, the determination of lease can be only in one of the modes provided in the T.P. Act, it. In may be either by efflux of time or by terminating the lease, by issuing notice under S. 106 of the T.P. Act. But, with respect this approach, betrays the effect of altered legal position, under the Rent Control Act. The time honoured notion of existence of right of reentry must yield place to new rights enacted by Statute. The ruling, reported in : [1963]3SCR312 has been considered in Dhanapal Chettiar's case : [1980]1SCR334 . Dealing with this case, at paragraph 11 of the judgment, the Supreme Court has made the following observation:

'...It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive ten or for eviction of tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act as mere termination of the lease entitles the landlord to recover procession. But in the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions on his rights to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act ............'

5. The judgment in the above case has been rendered by a Bench of 7 Judges. In view of this pronouncement of the Supreme Court, the reliance placed by the learned single Judge on : [1963]3SCR312 , cannot be correct. In addition to the above, the Full Bench of this Court in P. Venkanna v. Janadri Venkanna Setty : AIR1981Kant20 , has held that before initiating proceedings 'for eviction, under S. 2 1(1) of the-Rent Control Act it is not necessary for the landlord, to determine the tenancy, by issuing a notice under S. 106 of the T.P. Act. The Full Bench has relied upon the Supreme Court judgment referred to above i.e., : [1980]1SCR334 .

6. In the order of reference, there is a reference to yet another decision of the Supreme Court in : [1979]1SCR111 , which reiterates this legal position. The non obstante clause in sub-sec. (1) of S. 21 of the Rent Control Act, makes it clear that the right given to the landlord is ' notwithstanding anything to the contrary contained in any other law or contract'. It is obvious, the clause has an overriding effect. It follows, therefore that even if that is a contract for a stipulated term, the law gives a right to the landlord, to initiate action, for eviction, if the conditions in the section are fulfilled. To hold otherwise, would be making the non obstante clause redundant. Hence, we are clearly of the view, that even in cases of 'term lease', the landlord can initiate proceedings under S. 21(l) of the Act. 'A fie view taken by the learned single Judge in Gurusiddaiah's case : AIR1984Kant66 is not correct and hence it has to be overruled.

7. The two other decisions referred to by the learned single Judge are (1964) 1 Mys LJ 8 and (1974) 2 Kant LJ 416. So far as the (1964) 1 Mys LJ 8 is concerned it has to be stated that it is based on the reasoning in : [1963]3SCR312 which we have already mentioned, does not hold good in view of what is laid down by the Supreme Court in the decision reported in : [1980]1SCR334 .

8. The other decision, which bas been relied upon by the learned single Judge is, (1974) 2 Kant LJ 416. The learned single Judge who decided the case in (1974) 2 Kart U 416) has observed that in terms of the provisions of S. 21 of the Act the 'land lord must have a right of re-entry if not anything else'. The learned single Judge has observed that he must have acquired the right of re-en try either under the law or under a contract. In making his observation the learned single Judge does riot appear to have noticed the non obstante clause in S. 21 (1) of the Act, which makes the provision of S. 21 applicable, notwithstanding anything to the contrary in any other law or contract. That being so, for the reasons already. given in the preceding paragraphs we consider that the said reasoning adopted by the learned single Judge is not sound, hence we overrule the cases reported in 1964 (1) Mys LJ 8 and (1974) 2 Kant LJ 416.

9. Mr. Sundarswamy, appearing for the tenant-petitioner contended that the rights under contract are still subsisting and therefore, notwithstanding what is contained in S. 21 of the Act, his client is not liable to be evicted. His contention was, that till the expiry of the lease term, under the lease deed, he is entitled to continue in the premises, in spite of his liability incurred in any of the conditions laid down in S. 21 of the Act; and unless the landlord gets the right of re-entry, he cannot institute proceedings under S. 21 of the Act. The point urged by Mr. Sundarswamy should not detain us any further, in view of the enunciation made by the Supreme Court in Dhanapal Chettiar V. Yesodai Ammal's case : [1980]1SCR334 . At this stage, it is relevant to reproduce the following observations from the above decision of the Supreme Court. The Supreme Court, while dealing with the Tamil Nadu Rent Act has observed that:

'The tenancy actually terminates on the passing of the order or decree for eviction and the building falls vacant by his actual eviction. The giving of the notice, therefore, is a mere surpluses and unlike the law under the Transfer of Property Act it does not entitle the landlord to evict the tenant.'

Further it is observed that :

'It will bear repetition to say that under the T.P. Act in order to entitle the landlord to recover possession determination of the leases necessary as during the continuance he could not recover possession, while under the. State Rent Act the landlord becomes entitled to recover possession only on fulfillment of the rigueur of law provided therein. Otherwise, not. He cannot recover possession merely by determination of tenancy. Nor can he be stopped from doing so on the ground that he has not certified the contractual tenancy. Under the State Rent Control Acts the concept of the contractual tenancy has lost much of its significance and force.'

In view of this clear enunciation, we are of the view, that the point canvassed by Mr. Sundaraswamy does not appeal to us; the contractual rights are replaced by the rights created by Statute, When the landlord seeks to' enforce his right, under the statute, the contract to the contrary cannot be set up as a defence, because to that extent, the contract stands eclipsed by the Statute.

10. In view of the above, the other contention raised by the petitioner under Ss. 5 and 6 of the Burma Shell Acquisition of Undertakings in India Act, 1976 does not really arise for consideration. The petitioner has stepped into the shoes of the original tenant and therefore what applies to the original tenant, is equally applicable to the petitioner/tenant also. Even if it is conceded that the petitioner was allowed to exercise the option for extension of the lease period, and the lease has been so extended, nevertheless, in view of the legal position enunciated above, the right of the landlord to initiate proceedings under S. 21(l) of the Act would be available to him. That being so, neither the provisions of Ss. 5 and 6 of the Burma Shell Acquisition of Undertakings in India Act, 1976, nor other conditions in 'term-lease' can have any bearing, on the right of the landlord, to initiate eviction proceedings. On facts, the Courts below have held that the requirement of the landlord is bona fide and reasonable. They have also held, that greater hardship would be caused to the landlord, as against the tenant, if a decree for eviction is refused in favour of the landlord. This being a revision, under S. 115 C.P.C. those findings are unassailable.

11. Proceedings were initiated in the year 1974. Even if the lease had been extended, the said lease would have expired on 31-7-1983 and thereafter the position of tenant would be that of statutory tenant and he could not enforce the terms of original contract. Since the lease is, in fact, not extended after 1983, these considerations become hypothetical.

12. For the foregoing reasons, we hold that the Revision Petition is liable to be dismissed, hence we dismiss the same.

13. Mr. Sundarswamy appearing for the tenant prayed that one year's time be granted, to his client to vacate the premises. However, on the facts and circumstances of the case we consider it reasonable to grant time till the end of April, 1985, subject to the condition, that the tenant continues to pay rents regularly as and when they accrue. No costs.

ORDER ON ORAL APPLICATION

Mr. Sundarswamy, learned counsel made an oral request for issue of certificate of fitness to appeal to the Supreme Court.

Since we have followed the law laid down by the Supreme Court, we do not consider that any more substantial question of law of general importance which requires to be further considered by the Supreme Court would arise. Hence the leave prayed for is refused.

14. Petition dismissed.


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