Full Judgment Text
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PETITIONER:
M/S MODERN TAILORING HALL
Vs.
RESPONDENT:
SHRI H.S. VENKUSA & ORS.
DATE OF JUDGMENT: 24/04/1997
BENCH:
M.M. PUNCHHI, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
With C.A. Nos. 12711/96,12712-12713/96
O R D E R
Leave was granted in these appeals limited to the
question whether after demolition and reconstruction of the
building, the appellants-tenants have a right of re-entry.
The Karnataka Rent Control Act, 1986 in its Section 21
(1) (h) confers on the landlord the right to claim eviction
of a building bona fide required for his own occupation and
Section 21(1)(j) confers on him the right to seek eviction
to have the building demolished and reconstructed, but
subject to the right of re-entry of the tenant. These two
rights are encircled with corresponding obligations inasmuch
as under the former provision the landlord is required to
enter the premises himself within the statutory period
failing which the tenant has a right of re-entry, and in the
latter provision, the landlord is required to give an
undertaking so as to ensure observance of the terms of re-
entry on reconstruction of the building. The present cases
are such in which the landlord has sought eviction of the
tenants under Section 21(1)(h) of the Act on the ground that
he bona fide requires the premises for his own use and
occupation but after demolition and reconstruction. The
point arising for consideration is whether the landlord’s
claim was rightly based under Section 21(1)(h) or was it
founded under Section 21(1)(j)?
The consistent view of the Karnataka High Court in a
series of decisions starting from the case titled as Smt.
Rohinibai vs. Vishnumurty -1980 ILR Karnataka Series Vol.1
page. 340 (D.B.) is that the two provisions, i.e., Section
21(1)(h) and Section 21 (1)(j) are mutually exclusive and
that demolition and reconstruction of a premises by the
landlord for his own use and occupation, after getting an
order of eviction, clearly falls under Clause(h) of Section
21(1) and not under Clause (j). It has been viewed that the
plea of the landlord for bona fide requirement, for his own
use and occupation of the premised under Section 21(1)(h),
would include the occupation of the premises after making
any alteration or a new construction on securing an order of
eviction. This extended meaning was given by the Karnataka
high Court on the basis of a decision reported in Ramnikal
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Pitambardas Mehta Vs. Indradaman Amratlal Sheth- 1964 98)
SCR Page.1, a decision by a three member Bench of this
Court. Identical provisions of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 were examined and it
was held that the demolition of the existing building and
subsequent erection of a new building were only intermediate
steps in order to make the building fit of occupation by the
landlord. A nitch was thus carved that till the new building
was altered or reconstructed to the satisfaction of the
landlord, his obligation to enter the premises within the
statutory provided period got extended. It was also held
that the provisions relating to demolition and
reconstruction saddled with the obligation to provide to the
tenant re-entry could not possibly apply to the case where
the landlord reasonably and bona fidely requires the
premises for his own occupation even if he had to priorly
demolish the premises and erect a new building on it. And
further it was viewed that qualitatively the eviction under
the provision, such as provided under Section 21 (1)(j) of
the Act presently in hand, would apply to cases where the
landlord does not require the premises for his own
occupation, but requires it for erecting a new building to
be let out to the tenants. Thus, it is obvious that the
Karnataka High Court has maintained the distinction between
the two provisions sharply and has never let these
provisions overlap with each other.
There is a lone voice however made by a learned single
judge of the High Court in ILR 1990 Karnataka 4060 -P.K.
Upadhyaya Vs. A. Venkatesh to rule that if there be with the
Court an occasion to choose between Clauses (h) and (j) in
directing eviction of a tenant, it will have to lean in
favour of clause (j) rather than ordering eviction under
Clause (h) of Section 21 (10 of the Act. This has been
pressed into service to opt for eviction under Section 21
(1)(j). this attempt of the learned Single judge to demolish
the exclusivity of the two sub-clauses (j) & (h) of Section
21 (1), well drawn by the Division Bench in Smt. Rohinibai
Vs. Vishnumurthy - 1980 ILR Karnataka Series Vol.1 page 340
is uncalled for . The ground of eviction given in the two
provisions being mutually exclusive have flowing therefrom
separate individual rights and obligations and they cannot
be permitted to overlap so as to confer on the Court the
discretion of employing one provision over the other . An
application of the landlord, if not falling under section 21
(1) (h), would on its own, merit dismissal. The court cannot
treat it in its discretion as one under Section 21(1)(j) and
order and unwanted eviction. The distinction qualitatively
has to be maintained. We therefore decline to take a view to
the contrary, even if it be possible, than the one taken by
the High Court based as it is on the decision of this court
in Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth-
1964 (8) SCR page 1.
As a result, these appeals fail and are hereby
dismissed. In passing however it need be added that Civil
Appeal Nos. 12712-12713/96 would have otherwise to be
dismissed because sub-letting was another ground of eviction
as ordered by the High Court qua which leave has not been
granted and that matter had been put to rest. No costs.