Loading...

Nagarathnamma vs Special Deputy Commissioner on 7 February, 1991

Karnataka High Court
Nagarathnamma vs Special Deputy Commissioner on 7 February, 1991
Equivalent citations: ILR 1991 KAR 813
Author: Mohan
Bench: Mohan, S Patil


JUDGMENT

Mohan, C.J.

1. Here is a case of glaring example how an arm of a meaningful law can be twisted to disgorge the benefit earned after a hard fought battle.

2. The appellant is the owner of premises bearing No. 116, Railway Parallel Road, 3th Cross, Kumara Park West, Bangalore. The said premises was leased out in favour of M/s. Karnataka State Constructions Corporation Limited (for short Corporation). At that time, the appellant was residing in a rented premises. Therefore, she claimed the premises for her bona fide need and reasonable use. The appellant filed O.S.No. 822 of 1984 before the City Civil Judge, Bangalore, against the said Corporation and prayed for eviction of that tenant and recovery of possession. That suit was decreed on 20th June 1984 on the ground of bona fide need and reasonable use. The tenant agreed to vacate on 30th June 1984 on a compromise memo filed by the parties. The appellant took possession of this property and because the premises had fallen into repairs certain renovations were being effected. At that stage on 16-10-1984 a report was made by the Revenue Inspector to the effect that notwithstanding the landlady taking possession of the premises, it had not been occupied ever since the tenant vacated on 30th June 1984. Therefore, suo motu the Rent and Accommodation Controller notified the vacancy. Thereupon, the appellant contested the notification of the vacancy. The Rent and Accommodation Controller by an order dated 11-1-1985 came to the conclusion that under Sub-section (2) of Section 4 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act) the premises should have been occupied within two months from the date on which it became vacant. If it is not so occupied, intimation of vacancy ought to have been given. Accordingly, he held that the premises was available for occupation. He also discountenanced the plea that the landlady was residing in a rented premises. In this view, he directed her to vacate the premises and made the allotment in favour of the 3rd respondent – Amaranath Shetty, who, at the time of allotment, had become a Minister for Tourism and Development, as he was the only applicant who prayed for allotment. This order of the Rent and Accommodation Controller, Bangalore, was appealed against by the appellant to the Special Deputy Commissioner, Bangalore District, Bangalore. The Deputy Commissioner also concurred with the same, in that, the proviso to Section 4(2) of the Act had not been complied with in the instant case. Aggrieved by these concurrent Judgments, the matter was taken up to this Court in W.P.No. 8194 of 1985. The learned single Judge was of the view that the suit O.S.No. 822 of 1984 itself was misconceived. In any event, on the date when the former tenant namely, the Corporation vacated the premises, in the eye of law, there was vacancy. Therefore, it was incumbent, on the landlady to give an intimation to the Rent and Accommodation Controller which she had not done. Therefore, the order of the Rent and Accommodation Controller making allotment and the confirmatory appellate order were sound. Consequently, the Writ Petition was dismissed. It is under these circumstances, the present Writ Appeal has come to be preferred.

3. Mr. Rangaraju, learned Counsel for the appellant, vehemently urges as follows:

1) It is incorrect to hold as has been done by the learned single Judge that the suit O.S.No. 822 of 1984 was misconceived. As the law then stood, that was the only option available to the appellant because under Section 31 of the Act there was a bar to proceed against the tenants in occupation of non-residential building where the rent was more than Rs. 500/- p.m. Where, therefore, the only remedy available was to file a civil suit and if the same was availed of, certainly the appellant cannot be blamed.

2) The learned Judge proceeded upon a wrong hypothesis, in that, the landlady had failed to give intimation to the Rent and Accommodation Controller about the vacancy. In the words, he would put the case under Section 4(1) of the Act. That was not how the matter proceeded either before the Rent and Accommodation Controller or before the Appellate Authority. Both the authorities hold that the appellant had not complied with the second proviso to Section 4(2) and therefore the premises was free for allotment. Thus, the appellant cannot be penalised for not giving an intimation under Section 4(1) which was not the ground put against her either by the Rent and Accommodation Controller or by they Appellate Authority.

3) As regards the concurrent orders, this is a case in which eviction in O.S.No. 822 of 1984 was passed on the ground that the landlady required the premises bona fide and for reasonable use. As a matter of fact, it has been so observed by the Rent and Accommodation Controller. In such a case, the decree for eviction would tantamount to an order under Section 21(1)(h) of the Act. If really to a case of eviction under Section 21(1)(h), a benefit is available, under Sub-section (2) of Section 4 the same benefit must be extended to this case as well. In other words, on the facts alleged and established in this case where the eviction of the tenant is on the ground of bona fide need of the landlady and for her reasonable use, the consideration which ought to have been applied under Section 21(1 )(h) ‘mutatis mutandis’ must apply. Then only, law could be construed not only reasonably but harmoniously. One cannot be solely guided by the strict letter of the law but it is the spirit which counts. So looked at, the failure to extend the benefit in this case by both the authorities is wrong.

4) Lastly it is submitted that both the authorities have failed to note that what is required is occupation under the second proviso to Section 4(2) of the Act. Occupation does not mean physical, occupation. Even juridical possession or occupation would be good enough. The definite case of the landlady here is that having regard to the fact that the property had fallen into repairs, she had taken possession and was effecting repairs. That would amount to occupation. It does not mean physical occupation. If it is so narrowly construed, it would work undue hardship. After all the Rent Control Act is one to prevent unreasonable eviction of the tenant and not altogether throwing a blanket against eviction.

4. Mr. P. Vishwanatha Shetty, learned Counsel for the 3rd respondent, would counter these submissions stating that this is a case in which on the admitted facts there was a liability on the part of the landlady to intimate vacancy before 15th July 1984 because admittedly she took possession on 30th June 1984. If she had otherwise occupied without such Intimation then, that is bad in law because Sub-section (2) of Section 4 of the Act is very clear in its terms.

He further submits that it is impossible to contend that an order of Civil Court would tantamount to an order of eviction under Section 21(1)(h) of the Act unless and until the Legislature in its wisdom has provided for such a contingency. In the guise of interpretation the scope of the Section cannot be enlarged. Where, therefore, the first proviso to Section 4(2) avowedly contemplated a contingency of eviction under Section 21(1)(h), the appellant cannot be heard to contend that the decree for eviction would enure to the proviso.

He also submits that if really the statutory obligation under Section 4(1) has been violated, the Judgment of the learned single Judge proceeding on that basis cannot be interfered with. The orders of the Rent and Accommodation Controller and the Appellate Authority make it very clear that as late as 16-10-1984 the premises was vacant. Even from that point of view, the orders cannot be held to be wrong because in such a case the second proviso to Section 4(2) will get attracted namely, failure to occupy.

Lastly he submitted that there is no evidence in this case that she was effecting repairs after she obtained possession on 30th June 1984. Hence, no exception could be taken to these concurrent orders as confirmed by the learned single Judge.

5. In order to appreciate the respective arguments, we will do well to extract Sub-sections (1) and (2) of Section 4 along with the two important provisos:

4. Intimation of vacancy by landlords –

(1) Every landlord shall, within fifteen days after the building becomes vacant by his ceasing to occupy it or by the termination of a tenancy or by the eviction of the tenant or by the release of the building from requisition, or otherwise, give intimation in the prescribed form by registered post to the Controller.

(2) Except as provided in this Part, no person shall let, occupy or otherwise use any building which becomes vacant without the landlord giving intimation under Sub-section (1) and for a period of fifteen days from the date on which the intimation is received by the Controller or within a period of one week after the termination of the proceedings under Section 8, if any, whichever is later:

Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 21 or to any building which has been released from requisition for the use and occupation of the landlord himself;

Provided further that if the building is not occupied in accordance with an order for possession under Clause (h) of the poviso to Sub-section (1) of Section 21, or if the building is not occupied by the landlord after its release from requisition, within a period of two months from the date of such order or release, as the case may be, the landlord shall immediately after the said period of two months or within such further time as the Controller may allow, give intimation to the Controller in accordance with the provisions of this subsection and for this purpose the buildings shall be deemed to have become vacant on the date of the expiry of the said period of two months.”

In this case we may at once repel the argument about the applicability of Section 4(1) of the Act. That was not the ground put against the appellant either by the original authority namely, the Rent and Accommodation Controller or by the Appellate Authority. We will now extract the relevant portions of the orders of the original authority as well as the Appellate Authority. The Controller held as follows:

“It is true that the Court of the City Civil Judge, Bangalore City has passed a decree allowing the compromise petitioner under Order XXIII Rule 3 of the Code of Civil Procedure wherein the schedule premises has been released to bona fide and reasonable use by the landlady. After taking possession from the previous tenant, she ought to have occupied the premises within a period of 2 months which she has failed to do so. In other words, she has not complied with the order of the Civil Court passed in O.S.No. 822/1984 and even to this day the premises is lying vacant. Under Section 4(2) of the Karnataka Rent Control Act 1961, it is made very clear that if the building is not occupied in accordance with an order for possession under Section 21(1)(h) within a period of 2 months from the date of such order or taking possession, the landlord shall immediately after the said period of 2 months or within such further time as controller may allow, give intimation to the controller in accordance with the provisions of Section 4(2) and for this purpose the building shall be deemed to have become vacant to the date of the expiry of the said period of 2 months. This has been substituted by Act 14/1969. In the instant case, the landlady has failed to give the intimation of vacancy after the expiry of the 2 months and it is on account of her failure of the statutory obligation proceedings came to be initiated suo motu on the basis of the report of the Revenue Inspector dated 16-10-1984. Further report of the Revenue Inspector dated 13-11-1984 also clearly reveals that the premises is lying vacant even after the Court order for possession in favour of the landlady. Under these circumstances, and on the basis of material available before me and also as per the reports of the Revenue Inspector and on my personal inspection of the premises in question, I have no hesitation in holding that the premises is lying vacant and the same is available for the purpose of Part II of the KRC Act 1961. Hence the plea that the premises is not vacant as stated by the learned Counsel for the landlady holds no water.”

The Appellate Authority held as follows:

“On careful verification of records, I find that the landlady has secured the possession of the house in pursuance of the orders of the Civil Court and the report of the Revenue Inspector dated 16-10-1984 clearly mentions that even after the vacation of the previous tenant, the landlord has not occupied within two months after the previous tenant vacated the same. The finding of the Controller after spot inspection and local enquiry also confirms this fact. The spot inspection of the Controller is only a fact finding act of the Controller and it is not statutory/mandatory to issue notice to the parties before inspecting the spot. It is a well known presumption that such an inspection under the provisions of the Rent Control Act after issuing notice to the party will make the enquiry perfunctory as it gives scope for the landlord to project a different picture away from the facts when the Controller visits. Hence, the contention of the appellant in this regard also cannot be accepted. The landlady failed to occupy the premises in question even after 2 months from date of the vacation by the previous tenant and she has failed to furnish the reason or to inform the Court why she did not occupy the premises within 2 months and as such, the Controller has rightly rejected the contention of the landlady.”

Therefore, the whole case proceeds on the basis for the failure to occupy within two months from the date of vacancy as required under the second proviso to Sub-section (2) of Section 4. This is where the plea of the landlady that after she took possession on 30th June 1984, she was effecting repairs becomes very relevant. Unfortunately, this aspect of the matter has been completely lost sight of by the learned single Judge. He proceeded to view the matter only from the point of view of Sub-section (1) of Section 4; that was not the case of any one. At the risk of repetition we may state that that was not the case of the landlady, called upon to meet. Once we come to the conclusion that the second proviso to Sub-section (2) of Section 4 applies, then what is meant by occupation? Is it actual physical occupation or juridical possession or occupation? We consider that juridical possession or dominion over possession would be good enough. Here was a landlady who, having regard to the bad use of the premises by the previous tenant, namely, the Corporation, wanted to effect repairs. It should also be carefully borne in mind at this stage that it was let out for non-residential purpose to the said Corporation. Thereafter, she wanted to effect repairs and renovation to make it residential premises. Therefore, the report of the Revenue Inspector dated 10-1-1985 that the premises had not been occupied is totally incorrect and proceeds on a wrong conception that what is required is physical occupation. We cannot subscribe to that conclusion. Therefore, there was no vacancy at all to invoke the second proviso to Sub-section (2) of Section 4.

6. If this be the resultant position, the question would arise whether the suit itself was misconceived. With great respect to the learned Judge we disagree with his conclusion. Section 31 of the Act as it stood then, namely in 1984, prevented the landlady to seek the benefit of Section 21(1)(h) of the Act because of the inapplicability of Part V of the Act to non-residential premises of the rent of Rs. 500/- or more per month. Therefore, the only remedy was a civil suit. It is undeniable in this case that the decree was as a result of the compromise and the premises was released to the landlady for bona fide and reasonable use. In this regard we have already extracted the relevant portion of the order of the Rent and Accommodation Controller. Therefore, to say the benefit of the first proviso to Sub-section (2) of Section 4 would not be available to decrees of this character namely, where the bona fide and reasonable use had been established by the landlady, is to render the benefit conferred under this Act on the landlady nugatory or illusory. To put it in other words, one cannot merely cling to the letter of the law because it is said that he who clings to the letter of the law clings to the dry bone of the law. We may even quote Broom’s legal maxim:

“Qui Haeret in Liters Haeret in Cortice.”

Therefore, we have got to look into the spirit or the object with which this benefit had been conferred on the landlady. Accordingly, we conclude that the first proviso to Sub-section (2) of Section 4 would be fully applicable to this case.

7. We have already held that the landlady was effecting repairs and was renovating the building. That would be enough occupation in the eye of law. If that be so, the requirement to occupy within two months after the premises had fallen vacant did not and could not arise. From this point of view, the Rent and Accommodation Controller would have no jurisdiction to make the allotment. Therefore, the allotment made in favour of the 3rd respondent by the Rent and Accommodation Controller and confirmed by the Appellate Authority and further upheld by the learned single Judge cannot be supported in law.

8. Accordingly, we allow the appeal, set aside the order of the learned single Judge, quash the order of the Rent and Accommodation Controller, Bangalore, dated 11-1-1985 as well as the order of the Special Deputy Commissioner, Bangalore District, Bangalore, dated 1-6-1985, inasmuch as the landlady is in possession and enjoyment of the premises consequent to the interim orders of stay granted by this Court, the benefit of which if she had throughout, she can continue to possess and enjoy the same without any impediment. No costs.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information