{"id":270698,"date":"2001-08-27T00:00:00","date_gmt":"2001-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/laxmidas-bapudas-darbar-and-anr-vs-smt-rudravva-and-others-on-27-august-2001"},"modified":"2015-06-06T17:20:52","modified_gmt":"2015-06-06T11:50:52","slug":"laxmidas-bapudas-darbar-and-anr-vs-smt-rudravva-and-others-on-27-august-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/laxmidas-bapudas-darbar-and-anr-vs-smt-rudravva-and-others-on-27-august-2001","title":{"rendered":"Laxmidas Bapudas Darbar And Anr vs Smt. Rudravva And Others on 27 August, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Laxmidas Bapudas Darbar And Anr vs Smt. Rudravva And Others on 27 August, 2001<\/div>\n
Author: B Kumar<\/div>\n
Bench: S.P. Bharucha, Y.K. Sabharwal, Brijesh Kumar<\/div>\n
           CASE NO.:\nAppeal (civil) 2031  of  2000\n\n\n\nPETITIONER:\nLAXMIDAS BAPUDAS DARBAR AND ANR.\n\n\tVs.\n\nRESPONDENT:\nSMT. RUDRAVVA AND OTHERS\n\nDATE OF JUDGMENT:\t27\/08\/2001\n\nBENCH:\nS.P. Bharucha, Y.K. Sabharwal & Brijesh Kumar\n\n\n\n\nJUDGMENT:\n<\/pre>\n
BRIJESH KUMAR, J.\n<\/p>\n
\t\tThe question that directly falls for consideration
\nin this appeal is whether or not, a petition under Section 21
\n(1)(h) of the Karnataka Rent Control Act,  for eviction of a
\ntenant under a contractual fixed term lease, would be
\nmaintainable on the ground of reasonable and bona fide
\nrequirement of the landlord. On certain occasions earlier,
\nthe question has been considered by this Court as well\tas
\nHigh Courts including  Full Benches of the Karnataka High
\nCourt but there does not seem to be a  cohesion of views.\n<\/p>\n
\t\tThe brief factual background giving rise to the
\npoint is that in the year 1905, the mother and guardian of
\none Gurappa Channabasappa Belaguri,  holding a power of
\nattorney, leased out his non-agricultural land to Anant
\nParashuram Nagaonkar for a period of 99 years, to
\nestablish a factory.  In the year 1907, the lessee Nagaonkar
\naforesaid, assigned the lease in favour of Ramdas Vithaldas
\nDarbar for a sum of Rs.8,500\/-\tThe original parties to the
\nagreements have all died and their heirs have stepped into
\ntheir shoes and they are parties to the present proceedings.\n<\/p>\n
\t\tIn the year 1986 the lessors served  a notice to
\nthe lessees calling upon them  to vacate the premises on the
\nground that the lessees did not pay rents for the period
\n1.3.85 to 31.3.86 and that the property was also  bona fide
\nrequired for their occupation.\tReply to the notice is said to
\nhave been sent by the lessees denying default in payment as
\nalleged and asserted inter alia\t that the lessors had no right
\nto terminate the lease in view of the 99 years fixed term
\nlease under the agreement. Thereafter, however, the
\nlessors filed an application under Section 21(1)(h)  and 21
\n(1)(p) of the Karnataka Rent Control Act 1961 on the ground
\nthat the premises were bona fide required by them for
\nstarting their own business.\n<\/p>\n
\t\tThe lessees contested the  petition on the
\nground that the fixed term lease was subsisting which
\nexpires\t only on   29.2.2004.  It was also pleaded that in
\nfact it was a perpetual\t lease which could not be terminated.
\nThe trial court, namely, the District Munsif allowed the
\npetition and passed an order dated  2.3.1990 for eviction of
\nthe lessees under clause (h) of Sub-section (I) of Section
\n21 of the Act holding that it was not a permanent lease and
\nthat Section 21 of the Karnataka Rent Control Act would\t be
\napplicable to the lease in question.\n<\/p>\n
\t\tBoth parties preferred revision before the
\nDistrict Court, the lessors against  part of the order
\nrejecting their petition under Clause (p) of Section 21(1) of
\nthe Karnataka Rent Control Act whereas the lessees against
\nthe part of the order of evicting them under Cl. (h) of sub-
\nsection (1) of\tSection 21 of the Act.\tThe learned District
\nJudge held that it is a lease of permanent nature. Section
\n21 (1) of the Karnataka Rent Control Act therefore will not
\nbe applicable.\tThe order of the District Munsif was
\nreversed except the part by which  eviction under Section
\n21 (1)(p) of the Act was refused.\n<\/p>\n
\t\tThe respondent-lessors preferred a revision
\nbefore the Honble High Court. It  has been allowed, holding
\nthat the Distt. Court erred in finding that the lease  was
\nperpetual in nature.  It is further observed that there
\ncannot be any presumption in favour of perpetual lease since
\nthere should be clear and unambiguous language to infer
\nsuch a lease. The provisions of the Karnataka Rent Control
\nAct have been held to  be applicable, de hors the contract
\nof lease and,  the lessor has been found to be\tentitled to
\nmove a petition for eviction of the lessee under Section 21
\n(1)(h) of the Act, even before the expiry of fixed term of
\n99 years.\n<\/p>\n
 A perusal of the judgment of the High Court indicates
\nthat one of the\t two contentions raised before it was that
\nthe finding of the District Court, holding that it was a
\nperpetual lease is erroneous.  According to the lessor, the
\nlease was for a fixed period of 99 years.  Alternatively,  the
\nsubmission was even if it was a permanent lease, provisions
\nof Section 21 of the Karnataka Rent Control Act would be
\napplicable for seeking eviction of the lessee on the basis of
\nthe provisions of the Statute.\tThe High Court came to the
\nconclusion that lease in question is fixed term contractual
\nlease of 99 years with\toption of one renewal.\tIt will
\nhowever\t not be necessary, for us, to go into the question
\nrelating to perpetual or non-perpetual nature of lease in
\nview of submission made on behalf of the appellant that
\ntheir endeavour will be to show that the Karnataka Rent
\nControl Act would not apply even for  termination of  a fixed
\nterm subsisting lease.\tTherefore, no submissions have been
\nmade before us to show that the lease is a perpetual lease.
\nWe would, therefore,  proceed to examine the other
\nquestion relating to applicability of Section 21 (1)(h) of the
\nKarnataka Rent Control Act to a subsisting fixed term
\ncontractual lease, as in the case in hand.\n<\/p>\n
While dealing with  the aforesaid question, the High
\nCourt has relied upon a Full Bench decision of the Karnataka
\nHigh Court reported in AIR 1997 Karnataka  311 M\/s.
\nBombay Tyres  International Ltd. versus K.S. Prakash,
\nwhere it has been held that a proceeding for eviction under
\nSection 21 of Karnataka Rent Control Act would be
\nmaintainable notwithstanding the fact that the lease under
\nwhich tenant enjoys possession is an unexpired term lease.
\nThe relevant paragraph\tfrom the Full Bench decision
\naforesaid, is quoted  below:\n<\/p>\n
In view of what is stated above, we are
\nclearly of the opinion that the decision of
\nthe Full Bench of this Court in Sri
\nRamakrishna Theatres case ILR (1992)
\nKant 1296: (AIR 1993 Kant 90), is no longer
\ngood law in the light of the decision  of the
\nSupreme Court in Sri Lakshmi
\nVenkateswara Enterprises case ILR (1994)
\nKant 1659.  Accordingly, we hold that a
\nlandlord is entitled to an order of eviction
\nif he satisfies one or other conditions
\nmentioned in S.21 of the Karnataka Rent
\nControl Act notwithstanding the fact that
\nthe lease under which the tenant is in
\npossession of the premises is for a term
\nand that it has not expired on the date
\nwhen the application for eviction is filed.”\n<\/p>\n
It is clear that the Full Bench in Bombay Tyres
\n(supra) followed the decision of this Court  in the case of
\nSri Lakshmi Venkateshwara Enterprises Pvt. Ltd.Versus
\nSyeda Vajhiunnissa Begum  reported in ILR  (1994)
\nKarnataka 1659.\n<\/p>\n
Sri Lakshmi Venkateshwara Enterprises (supra)
\nwhile holding that provisions of the Rent Control Act would
\nbe applicable to a fixed term contractual lease relied upon a
\ndecision reported in AIR 1979 S.C.  1745  Dhanapal
\nChettiar versus Yesodai Ammal & Anr. It is further
\nobserved in M\/s. Bombay Tyres that interpretation of
\nDhanapal Chettiars case\t given by the Supreme Court in
\nSri Lakshmi Venkateshwara Enterprises (supra) is binding
\non it.\tIt will be beneficial to peruse\t Paragraph 15 of the
\njudgment in M\/s. Bombay Tyres which is quoted below:\n<\/p>\n
It was contended by the learned counsel
\nfor the tenants that the decision of the
\nSupreme Court in Dhanpal Chettiars case
\nAIR  1979 S.C. 1745 is confined only to a
\ncase of determination of a lease under
\nS.106 of the T.P. Act and that the
\nprinciples cannot be extended to cases
\nwhere a term is provided for in the lease.
\nLearned counsel also relied on various
\nobservations of the Supreme Court in the
\nabove decision in support of his case.\tBut
\nwe are afraid that we cannot accept the
\ncontention of the learned counsel for the
\ntenants.  In Sri Lakshmi Venkateshwara
\nEnterprises case (ILR (1994) Karnataka
\n1659), the Supreme Court has considered
\nthe very same decision and has stated that
\nthe above decision clearly holds that the
\nprovisions of the Rent Control Act would
\napply notwithstanding the contract.   The
\neffect of the decision in Dhanpal Chettiars
\ncase is stated by their Lordships of the
\nSupreme Court and we are bound by the
\nsame.  This Court cannot take a different
\nview  as to what was laid down in Dhanpal
\nChettiars case.\t What is decided in Dhanpal
\nChettiars case\tis stated by their
\nLordships in paragraph 11 of the Judgment
\nof Sri Lakshmi Venkateshwara Enterprises
\ncase.  It is to the effect  that the
\nprovisions of the Rent Control Act would
\napply de hors the contract.   When the
\nSupreme Court has laid down the law to
\nthat effect, this Court has necessarily to
\nfollow the same and we do so.\n<\/p>\n
\t\tThis necessarily leads us to see and find out the
\nproposition of law as  laid down in the case of Dhanapal
\nChettiar (Supra).  It is a decision by a Bench of Seven
\nJudges.\t The facts  being that the  land-lady moved an
\napplication for eviction of her tenant under the provisions
\nof Tamil Nadu Rent Act on the ground of her personal need.
\nThe petition was dismissed.   On appeal, though her case of
\nbona fide requirement was upheld but eviction was refused
\ndue to lack of notice to quit in accordance with law.  The
\nHigh Court dealing with the matter in revision, held that
\nnotice to quit under Section 106<\/a> of the Transfer of
\nProperty Act was not necessary for seeking an eviction of a
\ntenant under the provisions of the Rent Act<\/a>.  The question
\ntherefore, as was under consideration before this Court is
\nmentioned in Para 1 of the judgment itself which is quoted
\nbelow:-\n<\/p>\n
.as to whether in order to get a decree
\nor order for eviction against a tenant under
\nany State Rent\tControl Act, is it necessary
\nto give a notice under Section 106<\/a> of the
\nTransfer of Property Act.\n<\/p>\n
It   has been held that the purpose of giving a notice
\nunder Section 106<\/a> of the Transfer of Property Act is only
\nto terminate the contract  of tenancy but it would not be
\nnecessary if  the tenant incurs the liability of eviction under
\nthe provisions of the Statute.\t In such a case the notice
\nunder Section 106<\/a> of the Transfer of Property Act would
\nonly be a formality and a surplusage and it need not be given
\nby way of any double protection to the tenant.\tIt has been
\nfurther observed that even though tenancy may be
\nterminated by giving a notice under Section 106<\/a> of the
\nTransfer of Property Act yet  the landlord will not be in a
\nposition to initiate the proceedings for eviction in absence
\nof any liability incurred by the tenant as provided in the
\nStatute. Therefore, notice under Section 106<\/a> of the
\nTransfer of Property Act  loses significance.  In the end of
\nPara 18 of the judgment it has been observed as follows:\n<\/p>\n
.But on the first assumption we have
\ntaken a different  view\t of the matter and
\nhave come to the conclusion that
\ndetermination of a lease in accordance with
\nthe Transfer of Property Act<\/a> is
\nunnecessary and a mere surplusage because
\nthe landlord cannot get eviction of the
\ntenant even after such determination.  The
\ntenant continues  to be so even thereafter.
\nThat being so, making out a case under the
\nRent Act<\/a> for eviction of the tenant by
\nitself is sufficient and it is not obligatory
\nto found the proceedings on the basis of
\nthe determination of the lease by issue of
\nnotice in accordance with Section 106<\/a> of
\nthe Transfer of Property Act:\n<\/p>\n
\t\tIt is to be significantly noted that in Para 5 of
\nthe judgment  in Dhanpal Chettiar case, this Court while
\ngenerally referring to the different provisions of the
\nTransfer of Property Act<\/a> and the effect of the Rent Act<\/a>s
\nof different States observed thus:\n<\/p>\n
\t\tBut in all social legislations
\nmeant for the protection of the needy, not
\nnecessarily the so-called  weaker section of
\nthe society as is commonly and popularly
\ncalled, there is appreciable inroad on the
\nfreedom of contract and a person becomes
\na tenant of a landlord even against his
\nwishes\ton the allotment of a particular
\npremises to him by the authority
\nconcerned.  Under Section 107<\/a> of the
\nTransfer of Property Act a lease of
\nimmovable property from year to year, or
\nfor any term exceeding one year, or
\nreserving a y early rent, can be made only
\nby a registered instrument.   None of the
\nState Rent Acts has abrogated or affected
\nthis provision. (emphasis supplied)<\/p>\n
As a matter of fact the question of curtailment of fixed
\nterm contractual lease was not involved in the case of
\nDhanapal Chettiar (supra).\n<\/p>\n
It has no where been held that by virtue of the
\nprovisions of the Rent Act<\/a> the contract of term lease is
\ncompletely obliterated in all respects.\t The effect of Rent
\nAct<\/a> on tenancy under contract has been considered only to a
\nlimited extent confining it to the necessity of giving notice
\nunder Section 106<\/a> of the Transfer of Property Act.\n<\/p>\n
\t\tNext we may consider the decision in the case of
\nSri Lakshmi Venkateshwara Enterprises (supra)  It was a
\ncase relating to a term lease of 32 years.  In paragraph 5 it
\nhas been observed as follows:\n<\/p>\n
This Court in V. Dhanapal Chettiar v.\n<\/p>\n
Yesodai Ammal categorically laid down that
\ncontractual tenancy will lose its significance
\nin view of the Rent Control Act.  In that
\ncase, even the notice under Section 106<\/a> of
\nthe Transfer of Property Act  was held to
\nbe a surplusage.  It is therefore urged that
\nif a landlord could found an action on any
\none of the enumerated grounds  under
\nSection 21<\/a> of the Act, the action would be
\nmaintainable  notwithstanding the existence
\nof the contractual lease.\n<\/p>\n
The above observations have been made by referring the
\ndecision in Dhanapal Chettiars case (supra) without taking
\ninto account the context in which the Chettiars case was
\ndecided. The Court then proceeds to consider Section 21<\/a> of
\nthe Act which reads as under:\n<\/p>\n
21. Protection of tenants against
\neviction.-   Notwithstanding anything
\ncontained in any other law or contract, no
\norder or decree for the recovery of
\npossession of any premises shall be made by
\nany Court or other authority in favour of
\nthe landlord against the tenant.\n<\/p>\n
Provided that the Court may on an
\napplication made to it , make an order for
\nthe recovery of possession of a premises on
\none or more of the following grounds only,
\nnamely:- ..  (Emphasis supplied)<\/p>\n
On the basis of the above provision it has been observed
\nthat anything contained to the contrary, in any contract
\ncannot be prevail.\n<\/p>\n
    It may have to be scrutinized as  to  what extent
\nthe provisions of Section 21 of the Karnataka Rent Act shall
\nhave an overriding effect over any other law or a contract.
\nThe Rent Act<\/a>s have primarily been made, if not wholly, to
\nprotect the interest of tenants, to restrict charging of
\nexcessive rent and their rampant eviction at will.  In that
\nview of the matter Section 21 of the Karnataka Rent Act
\nprovides that notwithstanding anything to the contrary
\ncontained in any contract,  no order for eviction of a tenant
\nshall be made by Court or any other authority. Undoubtedly,
\nit is a provision providing statutory protection to the
\ntenants as it is also evident from the heading of Sec.21 of
\nthe Act.  This prohibition is however relaxed under the
\nProviso saying that an order for recovery of possession of
\nthe premises can be made  on an application made on that
\nbehalf only on the grounds as enumerated in clauses (a) to\n<\/p>\n
(p) to the Proviso. The non obstante clause contained under
\nSection 21<\/a> of the Act, will override any condition in any
\ncontract which may provide a ground for eviction other than
\nthose enumerated in Clauses (a) to (p) of Sub-section (1) of
\nSection 21<\/a>.  Such an additional ground in a contract shall be
\nrendered ineffective.  The use of the word `only in the
\nProviso is significant to emphasise that it relates to grounds
\nalone which cannot be added over and above as provided.
\nThe whole contract or other conditions not related to
\neviction or grounds of eviction shall not be affected.\tSo far
\na fixed term lease is concerned, it shall be affected only to
\nthe extent that even after expiry of period of the lease the
\npossession cannot be obtained by the lessor unless one or
\nmore  of the grounds contained in Section 21<\/a> of the Act
\nare available for eviction of the tenant. There is nothing to
\nindicate nor it has been held in any case that in view of
\nSection 21 of the Karnataka Rent Act a contract of fixed
\nterm tenancy stands obliterated in totality.  As indicated in
\nthe earlier part of this judgment in the case of Dhanapal
\nChettiar it has been observed in Paragraph 5 that none of
\nthe State Rent Acts have abrogated  or affected the
\nprovisions of Section 107<\/a> of the Transfer of Property Act
\nwhich provides for lease of immovable property from year
\nto year or for a term more than a year or reserving a yearly
\nrent.  As indicated earlier, the  Proviso to sub-section (1) of
\nSection 21 of the Karnataka Rent Act limits the grounds on
\nwhich landlord can seek eviction of a tenant. Nothing has
\nbeen indicated\tby reasons of which it can be concluded that
\na contract of tenancy looses significance on coming into
\nforce of the Karnataka Rent Act.  The effect of non
\nobstante clause,   in our view\thas been rightly explained in
\nthe Full Bench decision in the case of Sri Ramakrishna
\nTheatres Ltd. versus General Investments and
\nCommercial Corporation Ltd. & Ors. AIR 1993 Karnataka
\n90   In one of the decision of this Court reported in 1989
\n(2) S.C.C. 686\tModern Hotel versus V.K.
\nRadhakrishnaiah,  it has been held that period of a
\nsubsisting lease for fixed term could not be curtailed in
\nabsence of a forfeiture clause in the lease.
\nThe effect of the non-obstante clause contained
\nunder Section 21 of the Karnataka Rent Act on the fixed
\nterm contractual lease may be explained as follows:-\n<\/p>\n
(i) On expiry of period of the fixed term lease,
\nthe tenant would be liable for eviction only on
\nthe grounds as enumerated in Clauses (a) to\n<\/p>\n
(p) of Sub-section (1) of Section 21<\/a> of the
\nAct.\n<\/p>\n
(ii) Any ground contained in the agreement of
\nlease other than or in addition to the grounds
\nenumerated in Clauses (a) to (p) of Sub-
\nsection (1) of Section 21<\/a> of the Act shall
\nremain inoperative.\n<\/p>\n
(iii) Proceedings for eviction of a tenant under a
\nfixed term contractual lease can be initiated
\nduring subsistence or currency of the lease
\nonly on a ground as may be enumerated in
\nClauses (a) to (p) of Sub-section (1) of Section
\n21<\/a> of the Act and it is also provided as one of
\nthe grounds for forfeiture of the lease rights
\nin the lease deed, not otherwise.\n<\/p>\n
(iv) The period of fixed term lease is ensured and
\nremains protected except in the case
\nindicated  in  preceding paragraph.\n<\/p>\n
      With great respect therefore, in our view, the
\ndecision in the case of Dhanapal Chettiar (supra) has not
\nbeen correctly construed in the case of Sri Lakshmi
\nVenkateshwara Enterprises Pvt. Ltd. (supra) and it no
\nmore holds good nor the Full Bench decision  following it, in
\nthe case of Bombay Tyres International Ltd. (supra). The
\nearlier judgment of the full Bench of the High Court in the
\ncase of Sri Ramakrishna\t Theatres Ltd.(supra) lays down
\nthe law correctly.\n<\/p>\n
\t\tAs a result of the discussion held above, the
\nimpugned judgment of the High Court cannot be sustained.
\nThe appeal is allowed and the judgment and order passed by
\nthe High Court is set aside.\n<\/p>\n
\t   In the facts and circumstances of the case,
\nthere would however be no order as to costs.\n<\/p>\n
\t\t\t\t\t\t———————–J.\n<\/p>\n
\t\t\t\t\t\t(S.P. Bharucha)<\/p>\n
\t\t\t\t\t\t———————–J.\n<\/p>\n
\t\t\t\t\t\t(Y.K. Sabharwal)<\/p>\n
\t\t\t\t\t\t———————-J.\n<\/p>\n
\t\t\t\t\t\t(Brijesh Kumar)<\/p>\n
August 27, 2001<\/p>\n
1<\/span><\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Laxmidas Bapudas Darbar And Anr vs Smt. Rudravva And Others on 27 August, 2001 Author: B Kumar Bench: S.P. Bharucha, Y.K. Sabharwal, Brijesh Kumar CASE NO.: Appeal (civil) 2031 of 2000 PETITIONER: LAXMIDAS BAPUDAS DARBAR AND ANR. Vs. RESPONDENT: SMT. RUDRAVVA AND OTHERS DATE OF JUDGMENT: 27\/08\/2001 BENCH: S.P. Bharucha, Y.K. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-270698","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nLaxmidas Bapudas Darbar And Anr vs Smt. 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