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A.M. Obedulla Vs. S.M. Shafi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 4138 of 1981
Judge
Reported inILR1984KAR690; 1984(2)KarLJ263
ActsKarnatala Rent Control Act, 1961 - Sections 3 and 21(1)
AppellantA.M. Obedulla
RespondentS.M. Shafi
Appellant AdvocateUdaya Holla, Adv. for B.P. Holla, Adv.
Respondent AdvocateH.N. Narayan, Adv.
DispositionCivil revision petition dismissed
Excerpt:
.....the exclusion of other clauses .;the respondent landlord leased open vacant site to the petitioner-tenant. the landlord sought for eviction on the ground of reasonable and bona fide self occupation after erecting a building thereon for running a timber business under section 21(1) (h) and (j) of the act. the trial court passed an order of eviction holding that clauses (j) and (1) of the proviso to section 21(1) are not attracted and that clause (h) alone is attracted.;by the order of reference dated 15-3-1984 g.n. sabhahit, j. the matter was referred to the division bench on the ground that the view expressed in b.v. rathniah setty v. b. venkata rao (1975)(1) k.l.j. 75) requires re-consideration.;(i) it is plain that the words 'for occupation by himself' are not appearing in clause (1)...........for his personal occupation bona fide andreasonably. he wanted to construct a building in the vacant land for which he had obtained the sanction of the local authority. the landlord averred that after putting up the building he wanted to carry on his business in timber in the ground floor of the building and use the first - floor for other purposes.3. the tenant resisted the claim of the landlord. he averred that the landlord had other place of business and there was no necessity for him to put up a building or to occupy the suit premises. he also pleaded greater hardship in case he were evicted from the suit premises.4. the trial court raised the following points as arising for its consideration from the pleadings :1. whether the petition schedule premises is reasonably and bona.....
Judgment:
ORDER

15th March 1984

Sabhahit, J.

1. This Revision Petition by the tenant is directed against the Order dated 14th July 1981, made by the VII Additional Judge, Small Causes Court, Civil Station, Bangalore in H.R.C. No. 6564/80 (Old H.R.C. No. 599/77), allowing the Petition of the landlord for eviction of the tenant underClause (h) of proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961.

2. The landlord let out a vacant site to the tenant for carrying on timber business. The tenant had got up atemporary shed and was carrying on business. The landlord, by a notice dated 1-6-1977 demanded possession of the suit premises for his personal occupation bona fide andreasonably. He wanted to construct a building in the vacant land for which he had obtained the sanction of the local authority. The landlord averred that after putting up the building he wanted to carry on his business in timber in the ground floor of the building and use the first - floor for other purposes.

3. The tenant resisted the claim of the landlord. He averred that the landlord had other place of business and there was no necessity for him to put up a building or to occupy the suit premises. He also pleaded greater hardship in case he were evicted from the suit premises.

4. The Trial Court raised the following points as arising for its consideration from the pleadings :

1. Whether the Petition schedule premises is reasonably and bona fide required by the petitioner for his personal use and occupation, if so to which party greater hardship would be caused in the event of passing or refusing to pass an order of eviction ?

2. Whether the Petition Schedule premises is reasonably and bona fide required by the petitioner for the erection of new building sanctioned by the City Corporation, Bangalore if so whether respondent is liable for eviction on the ground of Section 21(l)(j) of the Act ?

3. To what order

5. During hearing, the landlord examined three witnesses including himself and the respondent examined himself and closed his case.Exts. P-1 to P-6 were got marked by the landlord and the tenant got marked Exts. R-1 to R-4. The Trial Court, appreciating the evidence on record answered Point No. 1 in the affirmative and in favour of the landlord and in that view it held that Point No. 2 did not survive for consideration and thus allowed the Petition of the landlord for eviction of the tenant under Clause (h) of the proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961.

6. Aggrieved by the said order, the tenant has come up with the above Revision Petition before this Court.

7. The learned counsel appearing for the Revision Petitioner strenuously urged before me that the Trial Court was not justified in holding that the landlord required the suit premises bona ride and reasonably for his personaloccupation. He submitted that the evidence on record showed that the landlord was having other three premises at his disposal wherein he was carrying on the same business and as such there was no need for him for the suit premises.

Hence he submitted that the Trial Court was not justified in awarding possession of the suit premises in favour of the landlord. As against that, the learned Counsel appearing for the tenant submitted that the Clause that was applicable to the facts of the case was Clause (1) and not Clause (h) and the requirement to be proved by the landlord under Clause(i) was more simple and as such the landlord was entitled to possession of the suit premises under Clause (1) of the proviso to Section 21 (1) of the K.R.C. Act.

8. The points, therefore that arise for my consideration are :

1. Whether the Trial court was justified in applying Clause (h) to the facts of the present case ?

2. Whether the proper clause applicable would be Clause (1) and not Clause(h) and if so,

3. Whether the landlord is entitled to the possession under Clause (1) of the proviso to Section 21 (1) of the Act ?

9. The undisputed facts are that a vacant site bearing No. 36 old, New No. 36/1 situate in New Bamboo Bazaar Street, was let by the landlord to the tenant in 1962 on a monthly rental of Rs. 20/- which rent came to be gradually increased thereafter from Rs. 20/- to Rs. 50/- per month. What was let to the respondent-tenant was vacant land. The tenant no doubt had put up a temporary shed in the vacant land for carrying out his business. The landlord averred in the petition that he wanted to put up a storeyed building in the vacant land and that the construction was approved by the Corporation and for that purpose he required the suit premises bona fide and reasonably for his personaloccupation. This is what he has averred in Paragraph 3 of the petition.

'The Petitioner desires to secure possession of the premises since be requires the same for putting up a construction and also for the purpose of a timber business. The Petitioner has also secured a sanctioned plan for putting up the said construction'.

In his evidence also he has made it clear that he wants to carry out timber business in the ground floor of the building and use the first floor for his purposes. Thus, the landlord requires his vacant land which was let to the tenant bona fide and reasonably for the erection of a new building which the local authority has approved or permitted him to build thereon. This without more falls within the purview of Clause (1) of the proviso to Section 21 (1) of the Karnataka Rent Control Act, 1961. For Clause (1) reads that:

'That where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon;'

10. In the Petition however, instead of mentioning Clause (1) the Petitioner mentioned Clause (h) and (j) which obviously misled the Trial Court. But it is needless for me to point out that it is the function of the Court to apply the proper law to the established facts in the case and as such the Court ought to have applied Clause (1) instead of Clause (h) of the Act.

11. The learned Counsel appearing for the Revision Petitioners, however, submitted that when the landlord wants to put up a building in the open land and use it personally for himself, the proper Clause that is applicable is Clause (h) and not Clause (1). For that proposition he relied on a decision of this Court in B.V. Rathniah Settyvs.B. Venkata Rao 1. It is no doubt true that in that decision His Lordship Justice Chandrashekhar, J as he then was has ruled :

'that where the landlord requires a demised land for his ownoccupation for erecting a new building thereon to such a case it is Clause (h) and not Clause (i) which is applicable'.

His Lordship has reasoned that just as when the land-lord wants to demolish and reconstruct a building and use it for himself it is Clause (h) and not Clause (j) that is applicable, similarly when the landlord wants to put up a building and use it for himself it is Clause (h) and not Clause (1) that is applicable. Speaking on this aspect His Lordship has observed :

'The reasoning in the aforesaid decisions namely, the mere fact that the landlord intends to demolish the demised premises and to erect a new building in place thereof does not affect the question of his requiring the house reasonably and bona fide for his occupation applies, in my opinion, with equal force to a case where the landlord requires the demised land for his own occupation for erecting a new building thereon. To such a case it is Clause (h) and not Clause (1) of Section 21(1) of the Act that applies, The landlord after obtaining under Clause (h) of Section 21(1) of the Act. eviction of the tenant from the demised land, has a natural and proprietary right to deal with that land as he chooses in order to make it suitable for his occupation. The provisions of Clause (1) of Section 21(1) apply, in my opinion, to a case where the landlord requires the demised land for erecting a new building which he does not intend to occupy for himself but intends to let out to others'.

12. The learned Counsel appearing for the landlord-respondent in the Revision Petition seriously commented on this reasoning. He pointed out that in Clause (1) there was nothing to indicate that the new building to be constructed with the permission of the local authority was meant for letting out. Such an intention of the legislature was clear in Clause (j). For under Clause (j) when possession was taken for immediate demolition of the existing building and for reconstruction of the same, the landlord is under anobligation under Sections 26, 27 and 28 to let out suitable portions to the erstwhile tenants. There is no such obligation created under Section 21(1)(1) of the Act. Therefore he pointed out that the reasoning of the learned Judge was obviously fallacious.

13. The legislature in its wisdom has introduced different Clauses in the proviso to Section 21(1) under which the land-lord is at liberty to seek for eviction of the tenant. The wordings in each Clause has to be understood in the proper perspective. The legislature does not use any wordssuperfluously nor can the Court read any words in the Clause which are not to be found in the Clause.

14. It is no doubt true that the intention of the Rent Control Act is to prevent rack renting and indiscriminate eviction of the tenants. The Rent Control Act was found necessary because of scarcity of accommodation in relation to the demand existing. Therefore it was necessary for the legislature to regulate the distribution of existing houses to prevent rack renting and indiscriminate eviction of tenants. It was also found necessary by the legislature thatencouragement should be given to the citizens to put up new structures. With that in view several provisions have been introduced in the Rent Control Act. One of them is that the provisions regarding rent and letting would not apply to a newly constructed house for a period of five years and Section 21 (1) (1) and (m) are also in the same direction. Section 21(1)(1) encourages the citizens to put up new building in open land with the approval of the local authority. There is no further restriction placed on the right of the citizen to put up new building when he requires the vacant land leased by him bona fide and reasonably for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon; the Court is under an obligation to order eviction of the tenant from the open land for the purpose of putting up the new building. There is no further restriction placed as in Clause (h) The question of comparative hardship would not arise. Section 21(1)(1) is more liberal in favour of the land-lord than Section 21(l)(h). In fact, the Supreme Court India in Krishnapasuba Rao Kundapurv. Dattatraya Krishnaji Karani.

'When the tenant takes up open site on lease and puts up a shed of a corrugated iron sheets in a portion of the land, the lease would be still of the vacant land'.

That being so, it is quite clear that what is applicable to the facts of the case is Clause (1) and not Clause(h) of the proviso to Section 21 (1) of the Act.

15. The ruling of this Court in B. V. Rathniah Setty v. B.Venkata Rao, 1975(1) K.J 75 therefore, requires a second look by a Division Bench. Hence I find it necessary to refer this case to a Division Bench for decision.


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