To use the language of the H.R.C. Judge, “Order has been made on the basis of equity and in pursuance of live and let live policy.” It is obvious he has passed the order solely on the basis of equity. “Equity is a roguish thing” says John Selden Table-talk, 1689, ‘Equity’. Equity comes in when law is silent. Karnataka Rent Control Act laws are very clear. The landlord has to prove reasonableness and bona fides of his claim. The eviction order passed by the learned H.R.C. Judge taking into consideration mainly equity is perverse
KARNATAKA HIGH COURT
SINGLE BENCH
( Before : M.B. Vishwanath, J )
SRI VENKATESHWARA VIDYALAYA — Appellant
Vs.
SHAMANTHA — Respondent
HRRP. No’s. 2841 and 3710 of 1992
Decided on : 20-03-1995
Karnataka Rent Control Act, 1961 – Section 21 (1) (h), Section 21 (1) (j), Section 50
Cases Referred
Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., AIR 1979 SC 1559 : (1979) 3 SCC 398 : (1979) 3 SCR 1107
Panchamal Narayan Shenoy Vs. Basthi Venkatesha Shenoy, AIR 1971 SC 942 : (1970) 1 SCC 499 : (1970) 3 SCR 734
M. Balaram and Others Vs. M.S. Vasanth and Another, AIR 1978 Kar 102 : (1978) ILR (Kar) 415 : (1978) 1 KarLJ 150
Counsel for Appearing Parties
K. Dinesh Rao, for the Appellant; Sekhar Shetty, for the Respondent
ORDER
Vishwanath, J
1. These two Revision Petitions filed u/s 50 of the Karnataka Rent Control Act (for short ‘the K.R.C. Act’) arise out of the order dated 26th March, 1992 passed by the Additional Small Cause Judge in H.R.C.No. 1995 of 1988. H.R.R.P.No. 2841 of 1992 has been filed by the tenant. H.R.R.P.No. 3710 of 1992 has been filed by the landlord. The parties would be referred as per their ranks in the lower Court.
2. The landlady filed the Eviction Petition u/s 21(1) Proviso (h)(j) and (k) of the K.R.C. Act. In the Eviction Petition the landlady has alleged:- The petitioner-landlady has purchased the premises bearing No. 182, situate at Link Road, Malleswaram, Bangalore-3. The respondent is a tenant on the schedule premises on a rent of Rs. 350/- per month. “The schedule premises is an old structure and is in a dilapidated condition and requires immediate demolition and reconstruction. The existing construction has been built up out of brick, cement plastering and has lost its life. The building is in a dilapidated condition and will not last for a long duration.” The schedule property cannot be made use of as it is required by the petitioner for her bona fide use and occupation. The petitioner reasonably and bona fide requires the petition schedule property for the purpose of demolishing it and then erecting a new building in its place. The petitioner has obtained the sanctioned plan and licence to build the structure. The petitioner proposes to erect a new non-residential building. The petitioner has got the means to erect a new building after demolishing the existing structure.
3. The Corporation of the City of Bangalore has issued notice for dismantling the existing structure as it is in a dilapidated condition and if dangerous for human habitation. There is no earning member in the family of the landlady for improving the living standard of the landlady and the members of her family. It has become absolutely necessary for the petitioner-landlady to augment the income of the family and to provide employment to the members of the family. The petitioner’s husband intends to carry on business of the building material such as cement, steel, sanitary fittings etc., in the proposed building. The petitioner’s husband is without employment. He has experience as a contractor and he has got requisite knowledge to carry on the business of building materials. The place where the petition schedule property is situate is ideally suited to their requirements for their proposed business. The entire proposed building to be erected is required for their own use and occupation. The requirement of the petitioner is reasonable and bona fide.
4. If eviction of the respondent is not ordered the petitioner-landlady will be put to greater hardship and injury. The tenant would not be put to any harm or injury. The tenant is capable of getting alternative accommodation.
5. In the objections to the Eviction Petition the respondent-tenant has stated:- The respondent was originally paying rent at the rate of Rs. 160/- per month. After purchase of the property by the landlady, the husband of the landlady repeatedly demanded enhancement in the rent. So the respondent agreed to increase the rent to Rs. 350/-per month. The landlady was not satisfied with this increase. They started demanding higher rent, The respondent refused to increase the rent any further. The husband of the landlady, in his bid to evict the respondent attempted to demolish the portion of the premises on 10,12.1986. Again on 31.1.1987 further attempt was made to demolish another portion of the premises. Immediately the respondent lodged a police complaint. The respondent filed Original Suit No. 611 of 1987 and moved for an order of temporary injunction. The Court ordered status quo. Aggrieved by this order the respondent preferred C.R.P.No. 479 of 1987 before the High Court and obtained an order of injunction against the petitioner and her husband. The said order is still in force. The petitioner’s husband who was a Corporator was trying to obtain an order of demolition of the petition schedule premises from the City Corporation, The respondent filed Writ Petition No. 14641 of 1987 before the High Court and in the said Writ Petition an order of temporary injunction was passed against the Corporation. The husband of the petitioner managed to get a notice issued by the Deputy Director of Public Instruction directing the respondent to shift from the present premises. The respondent filed Writ Petition No. 8011 of 1988 before this Court challenging the notice issued by the Deputy Director of Public Instruction. The High Court was pleased to grant stay of the operation of the notice.
6. Having failed to somehow evict the respondent, the landlady has filed the present Eviction Petition on the ground that she requires it for her own use and occupation. It is denied that the petition schedule building is an old structure and is in a dilapidated condition. The building is in a very good condition and there is no need to demolish it. “If is denied that the petitioner is in need of the schedule premises for her own use and occupation.” The petitioner-landlady even now has been getting good income from business etc. The petitioner and the landlady and ‘her family members own several premises in different parts of Bangalore City. They get a rent of Rs. 10,000/- per month. The present petition has been filed with a view to evicting the respondent and then let it on lease for higher rent. The respondent has been running a school in the petition schedule property. There are about five hundred students studying in various classes in the school. Those students are of the same locality. If an order of eviction is passed it is impossible for the respondent to shift the school. On the other hand no hardship will, be caused to the petitioner if eviction is not ordered.
7. In the trial Court P.W.1 who is the husband and Power of Attorney holder of landlady and P.W.2 have been examined on behalf of the petitioner-landlady. On behalf of the respondent R.W.1 – Keshava Murthy the Secretary of the School, R.Ws.2 and 3 who are the lady teachers in the school have been examined. The learned Small Cause Judge has stated in his order (i) that the petition under Clause (h) of Section 21(1) is dismissed. In the same breath he has stated (ii) that the petition under Clauses (h) and (j) of Section 21 (1) of the K.R.C. Act is allowed. The operative portion of the order passed by the learned Small Cause Judge is as follows:
“ORDER
(i) Petition u/s 21(1)(h) of the Karnataka Rent Control Act is dismissed.
(ii) Petition u/s 21(1)(h) and (j) of the Karnataka Rent Control Act is allowed on the following terms :-
(1) The petitioner shall commence the work of the demolition and reconstruction of that portion of the schedule property excluding the schedule premises after the end of December, 1992.
(2) The petitioner shall first reconstruct the building excluding the schedule premises and then allow the respondent to occupy the reconstructed portion temporarily till the entire building is constructed by the petitioner.
(3) The respondent shall commence the process of evicting the schedule premises in April, 1993. The respondent shall shift its school to the portion of the newly constructed building temporarily till the petitioner demolishes the schedule premises and reconstructs the entire building.
(4) After the petitioner completes the construction of the entire building, the front portion shall be used by the petitioner for his business.
(5) The respondent shall run the school in hind portion of the newly constructed building in an area equal in size with the area presently occupied by it.
(6) The respondent shall pay the fair rent to the petitioner for the portion of the newly constructed building occupied by it.
(7) The rent shall be fixed by the petitioner after taking into consideration the cost of constructing the area equal in size with the schedule premises and the rates of rent prevailing in the area.
(8) As far as possible, the petitioner and the respondent are directed to co-operate with each other in the matter of the construction of the building, because it is very difficult to lay all the guide lines in this matter.
The parties should bear in mind that present order has been made on the basis of equity and in pursuance of the live and let live policy.”
8. As the learned Small Cause Judge himself says, he has passed the order on the basis of equity and in pursuance of ‘live and let live’ policy. In his anxiety to please both sides, the learned Small Cause Judge (H.R.C. Judge) has displeased both the parties. H.R.C.No. 2841 of 1992 has been filed by the tenant challenging the order passed by the learned Small Cause Judge, H.R.C.No. 3710 of 1992 has been filed by the landlady challenging the same order. Common arguments were heard in H.R.C. No. 2841 of 1992.
9. At the time of arguments the learned Counsel appearing for the landlady submitted that he would not press the ground under clause (k) of Section 21(1) of the K.R.C. Act.
10. I have set out above, the final order passed by the learned H.R.C. Judge. It is clear that he says (i) that the petition under Clause (h) of Section 21(1) is dismissed. In the same breath he says (ii) that the petition under Clauses (h) and (j) of Section 21(1) of the Act is allowed on the following terms. The learned Small Cause Judge has not understood the scope of Eviction Petition filed by the landlord on the ground that he wants the petition schedule premises for his own use and occupation after demolition and reconstruction. The law in this regard has been laid down in many Decisions by the Supreme Court and also by this Court. It has been laid down by this Court in M. Balaram and Others Vs. M.S. Vasanth and Another,
“When once the landlord obtains possession under Clause (h) he may occupy it in the same condition or he may alter the building to suit his convenience or he may demolish and reconstruct it. Simply because he intends to demolish and reconstruct the building after taking possession under Clause (h) the facts would not attract Clause (j).”
The learned H.R.C. Judge allowed the petition under Clause (h) of Section 21(1) of the K.R.C. Act. He could not have allowed it under Clause (j) also.
11. The tenant has been running a school where there are about 500 boys studying in various standards. This is not a case in which partial eviction could have been ordered.
12. The husband of the landlady was a Corporator. P.W.1 is the husband of the landlady. P.W.1 has produced the building plan-Ex.P4, licence-Ex.P5 issued by the Corporation, Ex.P6-estimate, Exs.P8 and P9 are the pass-books, both standing in the name of the landlady and her husband respectively, issued by Karnataka Chit Syndicate. Ex.P10 is the certificate issued by the Janata Co-operative Bank Ltd., certifying that the landlady is entitled to a loan of Rs. 80,000/-. There can be no doubt that the landlady is financially sound and can demolish the building and reconstruct it.
13. Now the point for consideration is, whether the requirement of the landlady under Clause (h) of Section 21(1) of the Karnataka Rent Control Act is reasonable and bonafide.
14. It is the definite case of the landlady as set out in paragraph 5 of the petition that the schedule building is an old structure and is in a dilapidated condition and requires immediate demolition and reconstruction. It is the further case of the landlady that the existing construction has “lost its life” and will not last for a long duration. This is denied by the tenant. The case of the tenant is that the construction is sound and safe.
15. Ex.R10 is the Interim Order passed by this Court in Writ Petition No. 8011 of 1988 which was filed by the tenant against the landlady. This Writ Petition was filed by the tenant in view of the notice issued to it by the Deputy Director of Public Instruction directing the tenant to shift the school from the present building within fifteen days from the date of the said notice. The case of the tenant in the Writ Petition was that this notice by the Deputy Director of Public Instruction had been, issued at the instance of landlady and her husband.
16. It is seen from the Interim Order of this Court Ex.R10 that the tenant-petitioner was called upon by this Court to produce certificates from reputed firms of Engineers to the effect that the building was sound and safe for running the, school. Thereafter the tenant produced two certificates, one issued by S.S.N. Associates, Engineers and Contractors and another issued by Matrix Consultants, Engineers and Designers. Both these reputed firms of Engineers and Designers, it is seen from Ex.R10, had certified that the building was fit for running school. It is further clear that forty five affidavits had been fifed in this Court by the parents of the children studying in the petition schedule school stating that they have personally seen the building and the building was safe.
17. This Court in order to ensure that the building was safe and there was justification to grant an Interim Order, directed the Chief Engineer, Communications and Buildings, Public Works Department, Bangalore to cause inspection of the building and to state whether the building was safe for running a school.
18. Thereupon the Executive Engineer of the concerned Division has stated in his letter dated 15.6.1988 produced before this Court that the building was sound and it was fit for running a school for another twenty years.
19. The contents of the order passed by this Court as per Ex.R10 knock the bottom of the plaintiff’s claim that the building is in a dilapidated condition and it requires immediate demolition and that the petition building has lost its life and would not last for a long duration.
20. The landlady is prepared to make any allegations for the purpose of obtaining an eviction order. It has been laid down in Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., that the existing condition of the building far from being totally irrelevant is a vital factor while considering the bona fide requirement. It is argued by the learned Counsel for the landlady that this Decision by a Bench of two Judges cannot be looked into in view of the earlier Decision of the Supreme Court by a Bench of three Judges reported in Panchamal Narayan Shenoy Vs. Basthi Venkatesha Shenoy, . This argument cannot be accepted because the earlier Decision has been considered in Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., .
21. I agree with the learned Counsel for the landlady that when a landlady files a petition for demolition and reconstruction, the landlady need not prove that the condition of building is such that it immediately requires demolition. But in the instant case the definite case of the landlady as set out in the Eviction Petition cannot be lost sight of. Ex.P3 is the notice issued by the Corporation to the landlady in respect of the petition schedule premises directing her to pull down the structure since it was unsafe and dangerous. In view of this notice, issued to the landlady, the tenant approached this Court and filed Writ Petition No. 14641 of 1987. Ex.R8 is the certified copy of the Order in Writ Petition No. 14641 of 1987.
22. The Officers of the Corporation and the landlady and her husband were the respondents. This Court has noticed that in respect of the notice-Ex.P3 issued by the Corporation there were three suits pending in the Civil Court wherein the proceedings of the Corporation pursuant to the notice impugned by the tenant in Writ Petition No. 14641 of 1987 were also the subject matter. This Court, as could be seen from the certified copy of the Order Ex.P8, directed the landlady and her husband and the Corporation not to take any action pursuant to the impugned notice.
23. The discussion above shows that the notice Ex.P8 was got issued at the instance of the husband of the landlady who was a Corporator, to coerce the tenant to vacate.
24. I agree with the conclusion of the H.R.C. Judge that it is difficult to believe that the schedule premises is in a dilapidated condition and so it is necessary to demolish it.
25. As has been already adverted to, it is mentioned in the Eviction Petition that the building might collapse at any time. In his evidence before Court the husband of the landlady except stating that “this building is in a dilapidated condition” has not stated anything else. This leads the Court to take the conclusion that the husband of the landlady does not state in his evidence what is averred in the Eviction Petition.
26. It is argued by the learned Counsel for the landlady that it is not suggested to P.W.1 that the requirement of the landlady is not reasonable and bonafide. No doubt suggestion in terms of the statute language has not been made to P.W.1 but from the defence set up and the trend of cross examination it is clear that the tenant has denied that the requirement of the landlady is reasonable and bona fide.
27. It is further argued by the learned Counsel for the landlady that even in the objection to the Eviction Petition it is not stated that the requirement of the landlady is not reasonable and bona fide. The statute language of course has not been used by the tenant in the objections. But from paragraph-8 of the objections it is clear that the tenant has denied that the landlady requires the schedule premises for her own use and occupation.
28. The case of the landlady is that her husband requires the petition schedule premises for demolition and reconstruction since her husband intends to carry on the business of building materials such as cement, steel, sanitary fittings etc., in the proposed building.
29. In his evidence before Court P.W.1 husband of the landlady has stated that he proposes to construct a building of 18 sqs. and that he is a building contractor. I find it difficult to believe that a huge area of 18 sqs. is required to carry on the intended business.
30. P.W.1 has stated that there are eleven members in his family and that he wants to augment the income. But he has not produced the ration card or any other document to show that in fact there are eleven members in the family. P.W.1 who is the Secretary of the School has stated in his evidence that the husband of the petitioner used to approach him and abuse him. He has further stated that he (P.W.1) tried to evict the respondent forcefully from petition schedule premises with the help of rowdy elements. There is material to show that because of the threat by the husband of the landlady, the school authorities filed a suit.
31. Ex.R1 is the letter sent by the landlady to the school in which she has stated that the school authorities were paying a rent of Rs. 160/- per month and they should increase the rent from Rs. 160/-. In Ex.R1 it is stated that the house tax has gone up and so they should increase the rent. It is not stated how much house tax was increased. R.W.1 has stated that at the instance of the petitioner they enhanced the rent to Rs. 350/- per month. R.W.1 has stated that after increasing the rent to Rs. 350/- again the petitioner demanded increase at the rate of Rs. 1,000/- per month and that he expressed his inability to increase the rent. There is some force in the argument that the landlady wanted higher rent.
32. The learned H.R.C. Judge has allowed the petition under Clauses (h) and (j) of Section 21 (1) of the K.R.C. Act. I have already stated that there cannot be an order both under Clauses (h) and (j) of Section 21 (1) of the K.R.C. Act. The learned Small Cause Judge has ordered that after demolition and reconstruction, the front portion should be used by the petitioner for his business and the respondent shall run the school in the hind portion of the newly constructed building in an area equal in size to the area presently occupied by respondent.
33. To use the language of the H.R.C. Judge, “Order has been made on the basis of equity and in pursuance of live and let live policy.” It is obvious he has passed the order solely on the basis of equity. “Equity is a roguish thing” says John Selden Table-talk, 1689, ‘Equity’. Equity comes in when law is silent. Karnataka Rent Control Act laws are very clear. The landlord has to prove reasonableness and bona fides of his claim. The eviction order passed by the learned H.R.C. Judge taking into consideration mainly equity is perverse. The learned Judge has not noticed the facts appearing against the landlady.
34. Facts against the landlady appear in bold relief. These facts shed lurid light on the landlady’s claim that her requirement is reasonable and bonafide.
35. For the aforesaid reasons, I am of the opinion, the impugned order cannot be sustained. Eviction Petition is liable to be rejected.
36. It is argued by the learned Counsel for the landlady that schools run on tenanted premises have no special protection and eviction orders are passed in respect of premises where schools are run. I am aware of this position. In the instant case, facts are different. Landlady’s husband-P.W.1 has admitted in his evidence that house No. 946 at Kodandaramapuram Extension belongs to his mother. It came to his mother from her mother. He has admitted that he owns a house at 12th ‘A’ Cross, Kodandaramapuram shed area. He has admitted that house No. 39, 1st Main Road, Kodandaramapuram, 12th Cross belonged to him and he sold it about six months back and there is an agreement. He has stated that the sale is not yet registered. He has stated that he owns a site in ‘D’ Block, II Stage, Rajajinagar. On the petition schedule premises the tenant has been running a school and there are about 500 students. R.Ws.2 and 3 are two lady teachers who have stated that they will be put to hardship if school is closed down since they cannot work elsewhere.
37. If eviction had been ordered, in my opinion, there would have been more hardship to tenant.
ORDER
H.R.R.P.No. 3710 of 1992 filed by the landlady is dismissed.. H.R.R.P.No. 2841 of 1992 filed by the tenant is allowed. The eviction order in H.R.C.No. 1995 of 1988 stands dismissed. In the circumstances each party to bear her/its own costs.
(1996) 1 KantLJ 200
Tags: KARNATAKA HIGH COURT