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Dakshina Maharashtra JaIn Sabha Vs. Rabiyabi - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberM.S.A. No. 45 of 1977
Judge
Reported inILR1985KAR1405; 1985(1)KarLJ57
ActsKarnataka Rent Control Act, 1961 - Sections 2(7), 4(2) and 14(2)
AppellantDakshina Maharashtra JaIn Sabha
RespondentRabiyabi
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateJayakumar S. Patil, Adv. for R-2 to 5
DispositionAppeal dismissed
Excerpt:
.....provisions of the new act. the expression 'premises' in the bombay act cannot be understood as 'area' in karnataka act. the two expression have different connotations. therefore, the notification of exemption will not ensure to the benefit of the plaintiff after the coming into force of the karnataka rent control act. - indian evidence act,1872[c.a.no.1/1872] section 83: [v.jagannathan, j] encroachment of property - survey - surveyors report - held, it is, clear from a careful reading of the section 83 of indian evidence act, 1872, that if any map or plan is made for the purpose of any cause, the said map or plan will have to be proved to be accurate. the onus of proving such map as accurate lies on the party who wants to rely on the said map or plan. it has to be proved that the..........of section 2 of the bombay act, reads thus :'(1) parts i and iv of this act shall extend to the (bombay area of the state of maharashtra.(2) parts ii and iii shall extend respectively to the areas specified in schedules i and ii to this act and shall continue to extend to any such area notwithstanding that the area ceases to be of the description therein specified.(3) the (state) government may, by notification in the official gazette extend to any other area any or all of the provisions of part ii or part hi or of both.(4) the (state) government may, at any time by like notification direct that any or all the provisions of part ii or part iii or of both, as the case may be, shall cease to extend to such area and on such date as may be specified in the notification ; and on that date.....
Judgment:

Murlidher Rao, J.

1. This appeal is filed by the plaintiffs in Long Cause Suit No. 97/61 on the file of the Prl. Munsiff, Hubli. Theappellants have challenged the order of remand.

2. This appeal is against the order in R.A. No. 6/74. The Learned Civil Judge while allowing the appeal and setting aside the judgment and decree of the Court below, hasremanded the suit to the Trial Court with a direction to record the findings on Issues 1, 2 and 4 and dispose of the suit, as early as possible, in accordance with law.

3. The brief facts which need mention are as follows : The plaintiffs filed the present suit on (sic)-11-1961 for recovery of possession, rent and mesne profits in respect of thepremises bearing Municipal Nos. 2707/1A, 1B, 1C, 1D and 1E situated at Hubli. Before filing the suit, the plaintiffs had applied to the State Government to exempt the premises from the operation of Bombay Rent Control Act under Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (for short 'the Bombay Act'). The StateGovernment, by a notification dated 11-11-1959 (Ex. 43) granted the said exemption; as consequence of which the plaintiffs instituted the present suit, in the Civil Court on 1-11-1961. It is pertinent to mention that the Bombay Act was in force till 30th December 1961 and on 31st December 1961 theKarnataka Rent Control Act, 1961 (for short the Karnataka Act) came into force. Since the relief relates to the eviction of the tenants in Hubli-Dharwar Municipal Corporation area which is included in Schedules I, II and III of the Karnataka Act, in the normal course, the plaintiff should have initiated proceedings under the Karnataka Rent Control Act.However, by virtue of the exemption granted under Ex. 43, the plaintiffs have instituted this Long Cause Suit.

4. Defendants took up several contentions. One of the important contentions, so far the present appeal is concerned is, whether the notification Ex. 43 issued under the provision of the Bombay Act would govern the proceedings instituted on 1-11-1961 after the coming into force of the Karnataka Rent Control Act. In this appeal, we are mainly concerned with this question. At this stage, it is necessary to mention that the respondents have filed cross objections in this Court, against the finding on issue No. 7 which relate to the issuing of the quit notice to the tenant before instituting the present suit. It is the validity of these two findings so recorded by the Appellate Court that are challenged in this Miscellaneous Second Appeal and in the cross objections respectively.

5. The trial Court by its order dated 27-(sic)-1973 rejected the plaint under Order 7 Rule II C.P.C holding that the plaintiffs have no cause of action and cannot maintain a suit. The Trial Court is also of the opinion, that the notification Ex. 43, issued and the provisions of the Bombay Act, were not helpful to the plaintiffs and therefore the suit was not maintainable Against this order of rejection of plaint, the plaintiffs filed R.A. No. 6 74.

6. In the appeal before the lower Appellate Court, the contentions that were urged resulted in framing four points for determination. The said four points are :

1. Whether the repeal of Bombay Act, by Mysore Act would put an end to exemption granted under Ex. 43

2. Which is the provisions of law that is applicable to the suit, viz., Bombay Act or T.P. Act ?

3. Whether the notice quit as per Ex. 59 dated 12-5-61 is valid?

4. Whether there is Cause of action for the suit ?

5. What order ?

On the first point, the learned Appellate Judge answered in the affirmative, holding that the exemption, under the Bombay Act, could notensure to the benefit of the plaintiff after the coming into force of the Karnataka Act. On the second point, the Court below held that the Bombay Act is applicable to the suit and not the Transfer of Property Act. On the third point, the Court held that the notice to quit issued on 12-5-1961. 59 was valid and it terminated the tenancy as such the suit could be instituted on the basis of the said nonce. On the fourth point, the Court held that there is a cause of action for the plaintiffs to institute the present suit and therefore the suit was maintainable. Having held so, the lower Appellate Court set aside the order of rejection of plaint and has remanded the matter to the Trial Court to give findings on issues 1, 2 and 4. (sic) is the validity of this order that is challenged in this appeal.

7. Sri U.L. Narayana Rao, Learned Counsel appearing for the appellants, contended that in view of the provisions contained insub-sections (5) and (6) of Section 2 and Section 62 of the Karnataka Act, the plaintiffs had a vested right, by virtue of Ex. 43, to institute the proceedings under the provisions of the Transfer of Property Act and therefore, the finding recorded by the lower Appellate Court to the effect that the suit is maintainable under the Bombay Act is not correct. To appreciate this argument, it is necessary to find out the provisions contained in the Bombay Act as well as in the Karnataka Act. The relevant provision of Section 2 of the Bombay Act, reads thus :

'(1) Parts I and IV of this Act shall extend to the (Bombay area of the State of Maharashtra.

(2) Parts II and III shall extend respectively to the areas specified in Schedules I and II to this Act and shall continue to extend to any such area notwithstanding that the area ceases to be of the description therein specified.

(3) The (State) Government may, by notification in the Official Gazette extend to any other area any or all of the provisions of Part II or Part HI or of both.

(4) The (State) Government may, at any time by like notification direct that any or all the provisions of Part II or Part III or of both, as the case may be, shall cease to extend to such area and on such date as may be specified in the notification ; and on that date the said provisions shall cease to be in force in such area.

Section 4(ii) of the Bombay Act reads thus :

4(2) (ii) 'to premises held by a public trust for a religious or charitable purpose and let at a nominal or concessional rent;'

We are mainly concerned with sub-section (2)(ii) of Section 4 of the Bombay Act in this case. It is under this provision viz., Section 4(2)(ii), that Ex. 43 has been issued by the State Government on 17-11-1989. In the Karnataka Act sub-Sections (5) and (6) of Sections 2 deal with the power given to the State Government in respect of the application of the parts in the enactment. The said sub-sections read thus : 2.......

(5) The State Government may, by notification apply all or any of the provisions of Parts II, III, IV, V, or VI to such other area from such dates as may be specified in the notification.

(6) The State Government may at any time by notification direct that all or any of the provisions of Parts II, III, IV, V or VI shall cease to be applicable to any area whether specified in Schedule It II or III or not, on such date as may be specified in the notification and on that date the said provisions shall cease to be applicable to such areas :

Provided that section 6 of the Karnataka General Clauses Act 1899 shall apply when any provision of the Actceases to be applicable to any area, as if it had then been repealed by a Karnataka Act:

Provided further that the issue of a notification under this sub-section shall not preclude the issue of a notification under sub-section (5) applying all or any of the provisions of the said Parts to such area'.

It has to be mentioned that the word 'area' occurs in this Section in more than one place. In sub-section (2) of Section 2, the Karnataka Act says that Parts II and III of this Act shall be applicable to the 'area' specified in Schedule I. Similarly, in sub-section (3) of the said Act it is stated that Parts IV and V of this Act shall be applicable to the areas specified in Schedule II. So also sub-section (4) of Section 2 of Part VI of this Act shall be applicable to the 'area'' specified in Schedule. III. The Schedule attached to the Act which is under Section 2(2) mentions the various places in which Various parts of the Act are applicable. So far as the 'area'' within the Corporation is concerned, all the parts in that Act are applicable by virtue of the Corporation area being included in Schedules, I, II and III. The controversy that arises for consideration, is whether the word 'area' occurring in Section 2 must be understood to destroy the right or privilege or the immunity granted to the plaintiff under Ex.43, issued under sub-section (2) of Section 4 of the Bombay Act. Having extracted the provisions of Section 2 of the Bombay Act, it is clear, that the said Section enables the State Government to issue a notification specifying that the provisions of the Act shall not apply to thepremises held for religious or charitable purpose and let out at a nominal or concessional rate. A plain reading of this Section manifests that the Government has been given the power to exempt the ''premises' held by public trust for religious or charitable purpose or which are let out at nominal or concessional rate from the operation of the Act.

8. In the Karnataka Act sub-section (7) of Section 2 also mentions certain premises which are exempted from the operation of the Karnataka Act Those premises are enumerated in Clauses(a), (b), (bb), (bc) and (c) of sub-section (7) of Section 2. There is no provision corresponding to sub-section (2) of Section 4, occurring in the Bombay Act in the Karnataka Act.

9. Sri U. L. Narayana Rao, however urged that sustenance can be got from the word 'areas' occurring in sub-sections (5) and (6) of Section 2 and therefore, it should be understood that the State Government has got the power to exempt a building from the operation of the Act. Sri U.L. Narayana Rao's contention was that there is nothing contrary in the Karnataka Act which destroys or takes away the exemption granted under Exhibit 43. It is difficult to accept this contention, for the simple reason that while sub-section (2) of Section 4 of the Bombay Act clearly mentions that the 'premises' held by a public trust for a religious or charitable purpose and let out at a nominal or concessional rent, could be exempted by issue of a notification under sub-section (2) of Section 4 of the Bombay Act. There is no provision which enables the Government to exempt a particular building or class of building except those which are enumerated in sub-section (7) of section 2. Similar contention was raised in the case of Union of India v. T.R. Rao, 1970 (1 ) KLJ. 43 4 @ 444. The Court has made the following observations :

'As the present Act contains no provision corresponding to S. 20 of the old Act empowering the Government to exempt any class of premises from the provisions of the present Act, the present Act must be held to manifest a 'different intention' as referred to in Ss. 6 and 8 of the General Clauses Act. The notification cannot survive the repeal of the old Act as the notification is inconsistent with the present Act, there being no corresponding provision in the present Act empowering the Government to exempt any class of building from any of the provision of the present Act.

The exemption from eviction from premises leased to the MES, granted under the Notification, ceased to operate on the repeal of the old Act, and is not available when the landlords of such premises seek eviction under clause (h) of S. 21(1) of the present Act.'

Since there is no provision in the Karnataka Act to exempt a building or a premises the exemption granted vide Ex. 43, would be contrary to the provisions of the new Act. The expression 'premises' in the Bombay Act cannot beunderstood as 'Area' in Karnataka Act. The two expressions have distinct connotation. Therefore in the instant case, Ex. 43 dated 17-11-1959 issued under the Bombay Act will notensure to the benefit of the plaintiff after the coming into force of the Karnataka Rent Control Act. The Courts below have followed the ruling referred to above and I affirm those findings.

10. So far as the cross-objection is concerned, it is regarding the validity of the quit notice. In view of the full Bench decision of this Court m Papinayakanahalli Venkanna & others v. Janadri Venkanna Setty, 1981(1) KLJ 568 it is not necessary to determine the lease by issue of a notice while maintaining a petition under the provisions of the Karnataka Rent Control Act. In the instant case, the Courts below have held that the suit is tried under the provisions of the Bombay Rent Control Act. Since both the parties have agreed thatthe suit is instituted before 31-12-1961, i.e., before the coming into force of the Karnataka Act, there is no merit in the cross objection. Accordingly, it is dismissed. Therefore, the order of remand passed by the Court below has to be affirmed.

11. Accordingly, this appeal is dismissed.


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