ORDER
Doddakale Gowda, J.
1. Decree of eviction passed against deceased father of respondents in R.C. O.P. No. 9 of 1964 on the file of the
Munsiff, Mangalore was set aside in Appeal No. 56 of 1967 by District Court. Mangalore, but, restored in C.R.P. No. 1879 of 1968 by this Court. Operative portion of the order of Civil Revision Petition reads thus :
“The respondents are granted four months’ time from to-day to vacate their respective premises The petitioner shall start demolishing the building for the purpose of reconstruction within one month from the date she actually enters into vacant possession of the schedule premises.”
Possession has been delivered on 13-2-1970.
2. Thereafter, legal notices have been exchanged; tenants demanding possession, owner denying right of restoration. Even contempt proceedings have been initiated – in CCC 102 of 1973 filed by some other tenant, first petitioner gave an undertaking to construct ground floor of new building in T.S. No. 186 of 1982 of 13th Cross, Mangalore City as per building licence dated 11/16 11-1976 and to complete the same within the period stipulated in licence, subject to setback of 10 feet of building from the road boundary, if permitted by the Municipality. In CCC 132 of 1977 filed by present respondents, this Court has ordered thus :–
“The fights of the parties are governed by Sections 27 and 28 of the Karnataka Rent Control Act. The complainants may execute the order in question. There are no grounds to entertain this complaint. The complaint is rejected.”
3. As petitioner failed to restore possession or induct deceased Kochappa Devadiga or present respondents who are his legal representatives, an Execution Case No. 323 of 1978 was filed on the file of Munsiff, Mangalore, seeking restoration of possession. Petitioner raised various objections for execution including maintainability. Unfortunately that execution petition was dismissed for default on 9-6-1983.
Thereafter, I.A.I was filed in C.R.P. No. 1879 of 1968 seeking amendment of order of this Court Amendment sought for was to include following para in operative portion of the order which reads thus:–
“Clause (v)(A) that the petitioner do give possession of the premises (reconstructed portion) to the tenant at a fair rent to be fixed as provided under Section 28(1) and 2(b) of the Karnataka Rent Control Act.”
Order passed on I.A.I. reads thus :–“Heard
It appears, the amendment as sought to be incorporated in the order of this Court, is not permissible under Law. The Court has stated in the order what was required to be stayed as provided under Section 26 of the Act.
Mr. Narayana Rao, however, submitted that the tenant is also entitled to occupy the premises after reconstruction, under Sections 27 and 28, such a right to re-occupy the premises on construction is given to the tenant in accordance with the provisions contained in Section 26, 27 and 28 of the Act. He is at liberty to make such an application for enforcing his right to occupy the premises so constructed. He may as well institute a suit, if he so desires.
With these observations, I.A.I is disposed of”. (underlining is of mine)
4. Thereafter, respondents filed Execution Case No. 7 of 1986 on the file of the Principal Munsiff, Mangalore, requesting to restore possession in accordance with Sections 27 and 28 of the Act. Trial Court, after holding enquiry, negatived all the pleas of petitioner and directed to deliver any one of the premises in the ground floor, of the petition schedule premises, which is equal in extent to the one that was occupied by the tenant before it was demolished, within 30 days from the date of the said order. Validity of this order is challenged in this Civil Revision Petition.
5. Various grounds urged are (i) execution petition is not maintainable ; (ii) barred by limitation as well as principles
of res judicata ; and (iii) petitioner also pleaded that respondents are not entitled to relief on the ground of acquiescence.
6. Different views expressed by this Court in various decisions has given rise to determine the forum of relief available to a tenant to enforce right of restoration of possession as conferred under Sections 27 and 28 of the Act.
Eviction decree against deceased Kochappa Devadiga was passed, under Clause (j) of proviso to Sub-section (1) of Section 21 of the Karnataka Rent Control Act (hereinafter referred to as the ‘Act’), holding that premises are reasonably and bona fide required by landlord for immediate purpose of demolition and reconstruction. Decree of eviction of trial Court directed (i) tenant to deliver vacant possession within six months ; (ii) in case landlord fails to demolish the premises within a period of six months to put back tenant in possession of the premises; and (iii) if landlord starts reconstruction after taking possession to cause a notice served before completion so as to ascertain willingness of a tenant to occupy the premises. Order passed in C.R.P. No. 1879 of 1968 is already extracted. Reason for extracting terms of orders is to demonstrate that there is no order in favour of a tenant for induction or restoration of possession on reconstruction.
7. Thus, main controversy relates to forum of relief re: maintainability of execution petition.
In order to resolve this controversy, it is necessary to refer to salient provisions of the Act touching on this aspect. Section 24(1) of the Act enjoins Court to ascertain from the tenant of his willingness to be placed in occupation of the premises or part thereof from which he is to be evicted and on recording such option, direct delivery of possession to owner within a particular date so as to enable the landlord
to commence work of repairs. Under Sub-section (2) of Section 24, landlord who has taken possession from tenant for repairs, shall give notice to tenant two months before the date on which the work of repairs is likely to be completed and tenant in turn within 15 days of such intimation, inform landlord of his acceptance of offer. If tenant gives intimation and makes necessary deposit of one month’s rent, landlord is required to place him in occupation of premises or part thereof on original terms and conditions subject to increase of rent, if any, under Section 16(1) of the Act. If tenant fails to give such intimation or make deposit, his right to occupy stands terminated. As per Sub-section (3) of Section 24 of the Act, if landlord fails to commence the work of repairs within one month of the specified date or fails to complete the work within a reasonable time or having completed the work fails to place the tenant in occupation of the premises in accordance with Sub-section (2), the Court, may on an application of tenant made within one year of the specified date, order the landlord to place him in occupation of the premises or part thereof, on original terms and conditions and on such order, landlord and any person who may be in occupation shall give vacant possession to tenant of the premises or part thereof.
If landlord fails to occupy the premises within three months from the date of obtaining possession pursuant to decree of eviction under Clause (h) i.e., for personal use and occupation or premises are re-let within one year of the said date to any person other than the original tenant, Court, on an application made within 13 months from such date, direct landlord to place such tenant in occupation of the premises on original terms and conditions and such order being made, landlord and any person who may be in occupation of the premises shall give vacant possession to original tenant – vide Section 25(1) of the Act.
Likewise, if landlord having obtained possession of premises pursuant to decree of eviction under Clause (j) of proviso to Sub-section (1) of Section 21 of the Act, viz., that premises are reasonably and bona fide required by the landlord for immediate purpose of demolition and reconstruction, does not commence work of demolition within the period specified in decree, tenant can demand restoration. In case landlord fails to comply with such demand, he can make an application within six weeks from the date of expiry of the period specified in decree. If Court is satisfied that Landlord has not substantially commenced the work of demolition within a period of one month so accordance with the undertaking, the Court shall order landlord to deliver vacant possession of the premises on terms and conditions on which he had occupied it immediately before eviction. Such an order is deemed to be an order within the meaning of Clause 14 of Section 2 of the Code of Civil Procedure and Landlord is required to forthwith deliver vacant possession to tenant – vide Section 26.
Right to seek restoration is without prejudice to penal consequences envisaged in sub-sections of those sections.
As per Section 27, tenant may within six months from the date on which be delivered vacant possession of the premises to landlord give notice of intention to occupy new building on its completion, if landlord has commenced work of demolition and reconstruction. Landlord, on receipt of such notice intimate tenant the date on which said construction is likely to be completed three months ahead -vide Section 28(1) of the Act. If tenant fails to occupy the premises within one month from the date on which he is entitled to occupy, he will forfeit his right and landlord is entitled to recover from the tenant a sum equal to three times the amount of fair rent vide Clause (a) of Sub-section (2) of Section 28 of the Act. On the other hand, if landlord fails without reasonable excuse to place tenant in occupation in accordance with Sub-section (1) of Section 28 without prejudice to the right of tenant, landlord is liable for conviction.
Section 43 provides for restoration of amenities and effective implementation of order, in case, amenities are not restored. In other words, Section 43 is compendious, provides for passing of an interim order and to make further direction as provided in Sub-section (5) of Section 43 of the Act, to restore amenities.
8. Conspectus of these various provisions would indicate that a specific remedy is provided for restoration of possession to a tenant who has surrendered possession or who has suffered decree of eviction under Clause (i) on completion of repairs. A tenant, dispossessed or ejected under Clause (h), can seek restoration by making an application within the period stipulated in Section 25, in case, landlord does not occupy the premises or re-lets within one year of the said date to any person other than the original tenant. A tenant who has suffered a decree of ejectment under Clause (j) can also seek restoration of possession by making an application to Court which passed the decree within a period stipulated in Section 26 of the Act, in case, landlord fails to commence work of demolition or erection.
9. Decrees of eviction, in instances referred to above, do
not contain a term for induction and there will be no order to restore possession to a tenant on completion of repair or after reconstruction, much less contain a direction to restore possession to tenant in case landlord fails to occupy premises having obtained possession for personal use and occupation of re-lets. Words contained in Sections 24 to 26 ‘tenant may make an application to the Court’ or ‘Court may on an application of tenant made’ suggest that it is an independent remedy but not a right flowing from a decree of eviction. In the very nature, there cannot be a decree in
favour of a tenant fixing the date for completion of repairs or reconstruction as that is subject to so many vagaries. That is why, legislature has specifically provided a remedy i.e., to file an application to the Court complaining breach or infringement of statutory right of induction so that, Court may, after holding an enquiry, as it deems fit, direct landlord to restore possession and such an order is deemed to be an order within Clause (14) of Section 2 of Code of Civil Procedure. It is presumptuous to assume a decree in favour of a tenant though there exists no decree. There may be a corresponding obligation by landlord to induct a tenant who has suffered a decree under Clause (j), but mode of enforcement of that obligation is a core point for consideration.
10. There is a good deal of difference between a right flowing from a decree and an enforcement of statutory right. Right of induction or re-entry to a tenant is not a common law right, but a statutory right. It cannot ipso facto be executed unless culminated in a decree or an order having the force of a decree Settled distinction that exists between these two is, decree is executable as rights are adjudicated and incorporated in it; whereas enforcement of statutory right, which is subject to fulfilment of condition enumerated in these Sections need expression of decision by Court and it is only on incorporation of such right in the form of a decree that becomes executable.
11. Non-compliance by landlord who has obtained a decree of eviction under Clause (j) may be visualised under three circumstances, viz., (i) having obtained possession, may not demolish; (ii) having obtained possession may demolish, but not starts; reconstruction ; and (iii) on reconstruction, may not be willing to induct or restore possession to tenant.
Specific remedy is provided in Section 26 to meet first contingency.
What should happen if landlord after obtaining possession, demolishes but does not reconstruct. But, Court cannot fold its hand on the ground that there is no specific remedy provided by legislature to meet such contingency. Court, in order to give effect to statutory right of restoration of possession of a tenant, may take action for contempt or commission of fraud on Courts.
12. Now, coming to last contingency – Sections 27 and 28 deal with restoration of possession to tenants who has suffered decree under Clause (j). Though numerically the are numbered as two Sections, in fact, they constitute one in law – reason being they speak of what a tenant should do in case he desires restoration and discharge of corresponding obligation by landlord. In other words, they are reciprocatory in nature.
13. Section 27 stipulates that tenant should give notice within six months from the date on which be delivered vacant possession of premises expressing his intention to occupy it on completion. Clause (a) & (b) of that Section are not relevant as they deal with rent to be paid/fixed after reconstruction. Sub-section (i) of Section 28 postulates that landlord on receipt of such notice should intimate the tenant not less than three months before date on which erection of new building is likely to be completed. Clause (a) of Sub-section (2) of Section 28 states, if tenant fails to occupy the building within a period of one month from the date on which he is entitled to occupy it under Sub-section (1), he will forfeit his right apart from being liable to pay a sum equal to three times monthly fair rent. Clause (b) of Sub-section (2) of Section 28 says that in case landlord fails without reasonable excuse to comply with provisions of Sub-section (1), or to place the tenant in occupation of building, he shall, without prejudice to his liability to place the tenant in vacant possession of building on conviction, be punished with fine which may extend to five hundred rupees.
14. Though right is conferred to seek restoration, there is omission to repeat phrases such as ‘Courts may on an application filed by tenant restore possession’ or ‘may on an application filed to the Court’ as in previous Sections. It is this omission that has caused difficulty to determine forum of relief i.e., whether possession can be restored in execution or by means of an application to Court which passed the decree or by way of a suit.
As has already indicated, there is nothing to execute in
the absence of a decree in favour of tenant.
15. As could be seen from Sections 24 and 26 of the Act, intention of legislature is to see that tenant who has suffered a decree of eviction on the pretext that demised premises is required far repairs or for demolition and reconstruction, should get back possession after completion of repairs and reconstruction. Similarly, if landlord has obtained possession on the ground that premises is required for personal use and occupation, fails to occupy within an year or re-lets, tenant is entitled to get restoration of possession. Object of these provisions is to see that tenant is not thrown out, at the mercy of landlords but to place restriction on mode of enjoyment of property on owner to overcome scarcity of accommodation.
16. Precepts of law are there should be no discrimination and no tenant other than tenants referred to in Sections 24 to 26 must suffer from any procedural disadvantage. There will be incongruity if no remedy is provided for a tenant to seek restoration on reconstruction. There is only one avenue of approach by asking whether legislature intended to differentiate tenant of this category from others falling under Sections 24 to 26 regarding mode of securing restoration of possession viz., whether a tenant of this category can also make an application to the Court which passed the decree of eviction or should it be by means of a suit or any other mode. As has already indicated, it is not possible to presume that legislature intended to treat a tenant of this category differently from others.
17. Having regard to these various criteria, even in case falling under Sections 27 and 28, if Court holds that ‘tenant, by making an application to Court which passed the decree, can seek possession’ will there be an expression or opinion different from what the legislature intended or will there be a violation of rule of construction of a statute ?
18. Undisputedly, Court cannot usurp the power of legislation in the guise of finding defects in draftsmanship and incorporate its view. “A casus omissus can in no case be supplied by a Court of law for that would be to make laws.” But, is there a total prohibition to supply essentials which have been inadvertently omitted so as to make the Act effective and meaningful or whether the Court can add or supplant this omission? Here comes the crux – to go by the letter or to give effect to legislative intendment.
19. There is a clash of judicial debate on this aspect – one view is that Court cannot usurp the powers of legislature and other it is permissible under certain circumstances to read into Act something which is not there so as to make effective and meaningful. Is law static or moderately progressive ?
20. Before referring to precedents, useful reference may be made to texts as both, differing views derive sustenance from different passages of these texts. In Maxwell on the interpretation of Statutes, Twelfth Edition, it is stated:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be, put upon it which modifies the meaning of the words and even the structure of the sentence.”
As Lord Reid has stated thus :–
“The canons of construction are not so rigid as to prevent a realistic solution.”
“The Courts are very reluctant to substitute words in a statute or to add words to it and it has been said that they will only do so where there is a repugnancy or something which is opposed to good sense.”
Good number of instances where Court has substituted/ added words to a statute to make it effective and meaningful are enumerated in subsequent pages.
Crawford in his Construction of Statutes says :–
“Omissions in a statute cannot, as a general rule, be supplied by construction–
But, inasmuch as it is the intention of the legislature which constitutes the law of any statute, and since the primary purpose of construction is to ascertain that intention, such intention should be given effect, even if it necessitates the supplying of omissions, provided, of course, that this effectuates the legislative intention. Some decisions seem to indicate a trend in this direction, and allow words omitted by oversight to be supplied, if the statute is otherwise meaningless, or if an amendment without interpolation is ineffective.
XXX XXX XXX XXX
It would seem that the only time the omitted case might be it eluded within the statute’s operation, would be when the legislature intended to include it but actually failed to use language which would, on its face, cover the omitted case. The inclusion would then be justified, if from the various intrinsic and extrinsic aids, the intent of the legislature to incorporate the omitted case, could be ascertained with a reasonable degree of certainty.”
In Craies on ‘Statute Law’ it is stated thus :
“It has already been stated that if a matter is altogether omitted from a statute, it is clearly not allowable to insert it by implication, for to do so would “not be to construe the Act of Parliament, but to alter it.” But where the alternative lies between either supplying by implication words “which appear to have been accidentally omitted,” or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words.”
21. Undisputedly by over-sight or lack of foresight or draftsmanship, there is omission of words referred to above in Section 28 of the Act. The language of the Section fails to achieve its apparent purpose. Under such circumstances whether the Court can remedy omission by adding what good sense and justice require?
Now tide as swept in favour of construing a Statute so as to promote the ‘general legislative purpose’ instead of adhering to ‘Golden Rule’ of interpreting a Statute according to grammatical and ordinary sense of the words.
In order to determine the purpose, Court has to look into Statute as a whole, social condition which gave rise to it and mischief which it intended to remedy. In other words Court looks at ‘factual matrix’ and uses all legislative aid to clear up things which would be unclear or ambiguous or doubtful. It is in juxta position of the proposition whether very citizen is bound by the words which Parliament has used or Court cannot add or subtract words. Lord Chancellor spoke of his experience of Legislatures
“How often a minister has said ‘The Courts will take a sensible view of this’, I beard the words from back benches, ‘Well, let us have it written into the Statute’?”
22. In Seaford Court Estates Ltd. v. Asher, 1949 (2) KB 481 it is stated thus :–
“Put into homely metaphor it is thus : A Judge should ask himself the question if the makers of the Act had themselves come across the ruck in the texture of it, how they have straightened it out ? He must do so as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases.
Comments on Stricter view of grammatical interpretation is:–
“The cold, logical and soulless approach defeats not only justice but also the intention of parliament Rigid legal thinking – a temporary aberration of the Middle Ages – seems to be making a comeback inspite of equity, Lord Mansfield and all other efforts to humanise law.”
23. Different views expressed by Supreme Court are culled out hereunder :–
In State of Madhya Pradesh v. Azad Bharat Finance Co. and Anr.,
“It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.”
In Tirath Singh v. Bachitar Singh and Ors.,
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.”
In Mahadeolal Kanodia v. The Administrator General of West Bengal ,
“The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency which interpretation should be discarded and an interpretation which will give effect to the purpose the legislature may reasonably be considered to have had will be put on the words, if necessary, even by modification of the language used.”
In Nalinakhya Bysack v. Shyam Sunder Haldar and Ors., AIR 1933 SC 148
“It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature amended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot aid the Legislature’s defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is for others than the Courts to remedy the defect; (1891) A.C. 531; 4 Moo. Ind. App. 179 and AIR 1933 PC 63. Rel. on.”
In S. Narayanaswami v. G. Panneerselvam and Ors.,
“An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible (see e.g. Sri Ram Ram Narain Medhi v. State of Bombay, , British India General Insurance Co. Ltd. v. Certain Itbar Singh , R.G. Jacob v. Union of India Courts may depart from this rule only to avoid a patent absurdity (see e.g. State of Madhya Pradesh v. Azad Bharat Finance Co., ). In Hira Devi v. District Board, Shahjahanpur, this Court observed :-
“No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.”
(underlining is of mine)
24. Preponderance of opinion being in favour of construction to achieve the legislative intendment and having regard to the facts that the legislature never intended to discriminate between a tenant and a tenant and of setting up of these Sections, words, such as ‘tenant can seek restoration of possession by making an application to the Court’ can legitimately be implied in Clause (b) of Sub-section (2) of Section 28, Otherwise, conferment of right under Sections 27 and 28 would become nugatory.
25. Now coming to the cases cited at the Bar, this Court in Ramakrishna Aithal v. Varadappa, ILR 1985 KAR 551 has, held that it is executable. But the terms of the compromise are not extracted. Court has proceeded on the premise that there was an agreement for restoration and as such it is executable. As a pure proposition of Saw if it has declared, right conferred under Sections 27 and 28 is executable, be it preceded by a decree or otherwise, with utmost possible respect, I am unable to subscribe to that view.
In Lawrence Mascreanhas v. Ignatius Pereira, 1973 (2) KLJ 105 this Court without examining the rights and privileges conferred under this Special Act and exercise of powers by the Court, as defined, has proceeded to hold that there is no bar for enforcement of such right by means of a Civil suit. With great respect, it does not touch the core of problem, and has no relevance.
In the view I have taken that restoration of possession can only be by making an application but not through execution there is no necessity to express any opinion on rest of the points urged.
26. In the result, this Civil Revision Petition is allowed. Impugned order is hereby set aside; reserving liberty to respondents to apply for restoration to Court which passed the decree. All other contentions left open.