Full Judgment Text
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PETITIONER:
K. SRINIVASA RAO
Vs.
RESPONDENT:
K.M. NARASIMHAIAH GOPAL KRISHNA
DATE OF JUDGMENT09/02/1989
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
SHARMA, L.M. (J)
CITATION:
1989 SCR (1) 577 1989 SCC (1) 667
JT 1989 (1) 229 1989 SCALE (1)325
ACT:
Karnataka Rent Control Act, 1961: Sections 21(1)(j), 27
and 28--Tenant’s right to occupy a reasonably comparable
shop in the reconstructed building.
HEADNOTE:
The appellant was one of the eight tenants in the build-
ing belonging to Respondent No. 1, who filed eviction peti-
tions against all the 8 tenants on the ground that the
building was bona fide required by him for immediate demoli-
tion and construction as contemplated under Section 21(1)(j)
of the Karnataka Rent Control Act. In the petition against
the appellant, it was specifically stated that he might
occupy the premises corresponding to the original tenement
in the new building after it was built. The application of
Respondent No. 1 for deletion of the words "corresponding
portion" and for leave to withdraw the offer made earlier,
were rejected. Upon a memorandum filed by the appellant
consenting to a decree being passed in pursuance of Section
21(1)(j) of the Act, the Court passed an order allowing the
eviction petition against the appellant.
After the reconstruction work commenced, appellant gave
a notice to Respondent No. 1 of his intention to occupy the
corresponding shop in the new building, agreeing to pay the
fair rent as contemplated under Section 27 of the Act.
Meanwhile Respondent No. 1 who got the eviction decree,
filed an appeal before the District Judge, challenging the
eviction decree on the ground that the Court had no juris-
diction to pass any decree by consent under Section 21(1)(j)
of the Act. The District Judge allowed the appeal. Immedi-
ately thereafter Respondent No. 1 inducted Respondent No. 2
as a tenant in a shop in the reconstructed building reasona-
bly corresponding to the shop occupied by the appellant in
the old building, and Respondent No. 2 started his business
in the shop. The appellant preferred a Revision Petition to
the High Court against the order of the District Judge, and
in the Revision Petition the appellant impleaded the second
Respondent also.
The High Court allowed the Revision Petition and held
that the decree passed by the Munsiff under Section 21(1)(j)
of the Act was not a
577
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578
decree passed by consent but was a valid decree passed by a
competent Court after application of mind. It was also held
that the landlord was liable to place the tenants in vacant
possession of the reconstructed building as provided in the
Act, and that the rights of the second Respondent were
subject to the rights of the original tenant conferred on
them under Sections 27 and 28 of the Act.
After the High Court’s order, the appellant filed an
application under Sections 27 and 28 of the Act before the
trial court seeking permission to occupy the shop premises
which was in possession of Respondent No. 2. The trial court
allowed the application. On revision, the High Court set
aside the order of the trial court, taking the view that the
appellant was not entitled to claim the shop occupied by
Respondent No. 2 and Respondent No. 1 was required to give
the appellant any tenement in the newly constructed build-
ing. Against this order of the High Court the appellant has
filed this appeal by special leave.
On behalf of the appellant, it is claimed that he is
entitled to be put in possession of the shop facing the Main
Road and occupied by Respondent No. 2, whereas he was of-
fered a shop not facing the Main Road.
Allowing the appeal,
HELD: 1.1 The appellant is entitled to be handed over
the possesssion of the shop occupied by respondent No. 2.
[585B]
1.2 Under the provisions of Section 28 of the said Act,
the appellant became entitled to occupy a tenement in the
new building. Although there is nothing specific in the
language of sub-section (1) of Section 28 to that effect, a
fair, commonsense reading of the provisions of subsection
(1) of Section 28 would show that a tenant against whom
eviction decree has been passed under Section 21(1)(j) and
who has given notice as contemplated under Section 27 of
that Act would be entitled to a tenement in the new building
which could be said to be reasonably comparable to or to
reasonably correspond to the tenement in respect of which
the decree was passed. The High Court based its judgment on
the consideration of a question which really was not materi-
al, namely, whether the appellant was entitled to get an
identical shop in the new building, whereas the real ques-
tion was as to whether he was entitled to a comparable shop.
[583G-H; 584A-B]
1.3 The original shop occupied by the appellant admeasured
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17’ x 9’ and was facing the Main Road. The shop which re-
spondent No. 1 offered to the appellant was admeasuring only
11’ 6" X 8’ 6" and was not facing the Main Raod but was on
the rear of the new building. This shop cannot be considered
as comparable to the shop originally occupied by the appel-
lant. Moreover, it is not as if comparable shops were not
available. In fact, respondent No. 1 constructed several
shops of 9’ X 16’ facing the Main Road, one of which he has
given away in a hurried manner, to respondent No. 2, proba-
bly with a view to forestall the claim of the appellant. In
these circumstances, the appellant could not be compelled to
accept the shop offered by respondent No. 1, which is in no
way comparable. The appellant was entitled to a shop reason-
ably corresponding to the original shop occupied by him as
the circumstances would permit. It was not the appellant’s
case that he is entitled to an identical shoo but that he
was entitled to a comparable shop. It is not open now to
respondent No. 2 to resist the claim of the appellant.
Respondent No. 2 was joined as a party in the revision
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petition wherein the High Court held that the rights of
respondent No. 2 are subject to the rights of the original
tenant conferred upon him under Sections 27 and 28. This
decision has not been challenged by respondent No. 2 in any
proceedings and has now become final as against him. [584C-
E, G; 585A]
Sreenivasa Rao v. Narasimhaiah, [1972] 1 Mysore Law
Journal, 490, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1017 of
1975.
From the Judgment and Order dated 10.10.1974 of the
Karnataka High Court in Civil Revision Petition No. 187 of
1974.
N.B. Datar and Ravi P. Wadhwani for the Appellant.
P.R. Ramasesh, S.S. Padmaraj, Naresh Kaushik and Ms.
Lalitha Kaushik for the Respondents.
The Judgment of the Court was delivered by
KANIA, J- This is an appeal against a judgment of a
learned Single Judge of the Karnataka High Court by Special
Leave granted under Article 136 of the Constitution.
Respondent No. 1 is the landlord and K. Gopal Krishna
to whom notice was given by this Court and has appeared
pursuant thereto is
580
the person who was inducted as a tenant by respondent No. 1
in the said premises immediately on an appeal by respondent
No. 1 being allowed by the First Additional District Judge,
Bangalore as set out hereinafter. We direct that K. Gopal
Krishna be joined as respondent No. 2 in the appeal.
The appellant was one of the eight tenants in the build-
ing belonging to the respondent No. 1, in respect of a shop
admeasuring 9’ x 17’. The shop of the appellant was one of
the four shops on the ground floor of the building facing
Belepet Main Road, Bangalore City. The other premises in the
said building comprised four office premises on the first
floor. The respondent No. 1 filed eight eviction petitions
in the Court of the 1st Munsiff, Bangalore seeking eviction
of the tenants in the said building on the ground that the
building was bona fide required by him for the immediate
demolition and reconstruction as contemplated under Section
21(1)(j) of the Karnataka Rent Control Act, 1961 (hereinaf-
ter referred to as "the Karnataka Rent Act"). In the evic-
tion petition against the appellant, respondent No. 1 spe-
cifically stated that the appellant might occupy the prem-
ises corresponding to the original tenement in the new
building after it was built. 1t may be mentioned that subse-
quently, respondent No. 1 filed an application for amending
the averment in the eviction petition to delete the words
’corresponding portion’. He also filed an application for
leave to withdraw his offer set out earlier. Both these
applications were rejected. The appellant and one other
tenant filed memoranda consenting to a decree being passed
in pursuance of Section 21(1)(j) of the Karnataka Rent Act.
Pursuant to the memorandum filed by the appellant, wherein
it was stated that the key was also handed over to the
landlord, the court passed an order allowing the eviction
petition against the appellant under Section 21(1)(j) of the
Karnataka Rent Act. After the reconstruction of the building
was commenced, the appellant gave a notice to respondent No.
1 of his intention to occupy the corresponding shop in the
new building and stated that he was agreeable to pay the
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fair rent in respect of the said shop as contemplated under
Section 27 of the Karnataka Rent Act. It may be mentioned
that, in the meantime, respondent No. 1 got the plans of the
proposed new building altered from time to time and in these
revised plans dimensions of the shops proposed to be con-
structed in the new building were altered. In the meantime,
curiously enough, respondent No. 1 who had got the eviction
decree filed an appeal in the Court of the First Additional
District Judge, Bangalore, challenging the eviction decree
in terms of section 21(1)(j) of the Karnataka Rent Act
passed by the First Munsiff, Bangalore on the ground that
the said
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decree had been passed by consent and the court had no
jurisdiction to pass any decree by consent under Section
21(1)(j) of the Karnataka Rent Act. This appeal was allowed
by the learned Additional District Judge. Immediately on the
appeal being allowed, respondent No. 1 inducted respondent
No. 2 as the tenant in a shop in the new or reconstructed
building reasonably corresponding to the shop occupied by
the appellant in the old building and respondent No. 2
started business therein in the name and style of Sri Cut-
piece Centre. The appellant preferred a Revision Petition to
the High ’Court against this decision. In the said revision
petition, the appellant has joined as respondent No. 2, K.
Gopal Krishna. The said revision petition was allowed by the
High Court. The High Court inter alia held that the decree
passed by the learned Munsiff under Section 21(1)(j) of the
Karnataka Rent Act was not a decree passed by consent but
was a valid decree passed by a competent court after appli-
cation of mind. In respect of the objections raised by
respondent No. 2, it was held by the High Court that since
the demolition and reconstruction were in pursuance of an
order of eviction passed under sub-clause (j) of Section
21(1) of the Karnataka Rent Act, there cannot be any doubt
that the landlord is liable to place the tenants in vacant
possession of the reconstructed building as provided in the
Act. It was’ further held that since the lease in favour of
the second respondent came into existence and the second
respondent occupied the new building during the pendency of
the proceedings arising out of the landlord’s eviction
petition under Section 21(1)(j) of the Karnataka Rent Act,
the rights of the second respondent are subject to the
rights of the original tenants conferred on them under
Sections 27 and 28 of the Karnataka Rent Act. (See: Sreeni-
vasa Rao v. Narasimhiah, [1972] 1 Mysore Law Journal p.
490).
Subsequent to this order of the High Court allowing the
revision petition of the appellant, the appellant filed an
application under Sections 27 and 28 of the Karnataka Rent
Act before the Trial Court for permitting him to occupy the
said shop premises which had been given by respondent No. 1
in the possession of respondent No. 2 as a tenant. The Trial
Court allowed this application filed by the appellant and
held that the appellant was entitled to get the said shop
occupied by respondent No. 2 which admeasured 9’ x 16 ’ in
place of the old one. On revision, by the impugned order,
the High Court set aside the order passed in favour of the
appellant, taking the view that the appellant was not enti-
tled to claim the shop occupied by respondent No. 2 and
respondent No. 1, the landlord, was only required to give to
the appellant a tenement, that is, any tenement in the newly
constructed
582
building. The appellant claims to be entitled to be put in
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possession of the shop admeasuring 9’ x 16’ facing the
Belepet Main Road occupied by respondent No. 2 whereas
respondent No. 1 has offered to the appellant only a shop
behind this shop admeasuring 11’ 6" x 8’ 6" which is not
facing the main road, namely, the Belepet Main Road. It is
this claim of the appellant which was accepted by the Trial
Court but rejected by the High Court on revision. The order
of the High Court is challenged before us in this appeal.
In order to appreciate the contentions raised by the
appellant, we may set out the relevant provisions of the
Karnataka Rent Act. Section 21 of the said Act protects
tenants against eviction. The relevant portion of the said
section runs thus:
"21. Protection of tenants against eviction.
(1) Notwithstanding anything to
the contrary contained in any other law or
contract, no order or decree for the recovery
of possession of any premises shall be made by
any court or other authority in favour of the
landlord against the tenant:
Provided that the court may on an
application made to it, make an order for the
recovery of possession of a premises on one or
more of the following grounds only, namely:
X X X
X
(j) that the premises are reasona-
bly and bona fide required by the landlord for
the immediate purpose of demolishing them and
such demolition is to be made for the purpose
of erecting a new building in place of the
premises sought to be demolished:
X X X
X
Section 27 of the said Act runs thus:
"27. Tenant’s right to give notice to the
landlord of his intention to occupy tenement
in new building.
Where decree for eviction has been passed by a
Court
583
on the ground specified in clause (j) of the
proviso to subsection (1) of Section 21 and
the work of demolishing the premises and of
the erection of a new building has been com-
menced by the landlord, the tenant may, within
six months from the date on which he delivered
vacant possession of the premises to the
landlord, give notice to the landlord of his
intention’ to occupy the new building on its
completion on the following conditions, name-
ly:
(a) that he shall pay to the landlord the fair
rent in respect of the building:
X X
X X"
The rest of the provisions of this Section are not material
for our purpose.
Sub-section (1) of Section 28 of the said Act runs thus:
"28. Landlord to intimate the tenant,
date of completion and tenant’s right to
occupy the new building.
(1) On receipt of notice from the
tenant under section 27, the landlord shall,
not less than three months before the date on
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which the erection of the new building is
likely to be completed, intimate the tenant
the date on which the said erection shall be
completed. On the said date, the tenant shall
be entitled to occupy the building.
X X X
X"
In the case before us the decree against the appellant
was passed under the provisions of Section 21(1)(j) of the
Karnataka Rent Act. The appellant-tenant gave notice of his
intention to occupy the tenement in the new building as
required under the provisions of Section 27 of the said Act.
This is the undisputed position. In view of this, under the
provisions of Section 28 of the said Act, the appellant
became entitled to occupy a tenement in the new building.
The only question before us is as to what is the nature of
the tenement to which he is entitled. There is nothing
specific in this connection in the language of sub-section
(1) of Section 28. However, a fair commonsense reading of
the provisions of sub-section (1) of Section 28 would show
that a tenant against whom eviction decree has been passed
under Section
584
21(1)(j) and who has given notice as contemplated under
Section 27 of the Act would be entitled to a tenement in the
new building which could be said to be reasonably comparable
to or to reasonably correspond to the tenement in respect of
which the decree was passed. It appears to us that the
learned Judge of the High Court who delivered the impugned
judgment has based it on the consideration of a question
which really was not material, namely, whether the appellant
was entitled to get an identical shop in the new building,
whereas the real question was as to whether he was entitled
to a comparable shop. On the facts of the present case, it
can be seen that the original shop occupied by him admeas-
ured 17’ x 9’ and was facing the Belepet Main Road. The shop
which respondent No. 1 has offered to the appellant was only
admeasuring 11’ 6" x 8’ 6" and was not facing the Belepet
Main Road but was on the rear of the new building. We fail
to see how this shop can be considered as comparable to shop
originally occupied by the appellant. Moreover, it is not as
if comparable shops were not available. In fact, respondent
No. 1 constructed several shops of 9’ x 16’ facing the
Belepet Main Road, one of which he has given in a hurried
manner, as set out earlier, to respondent No. 2, probably
with a view to forestall the claim of the appellant. In
these circumstances, we fail to see how the appellant could
be compelled to accept the shop offered by respondent No. 1,
which is in no way comparable. The provisions referred to
earlier clearly suggest that, at the least, the appellant
was entitled to a shop as reasonably corresponding to the
original shop occupied by him as the circumstances would
permit. It may be clarified here that it is not the appel-
lant’s case that he is entitled to an identical shop but
that he was entitled to a comparable shop. It was submitted
by Mr. Kaushik, learned counsel for respondent No. 2 that as
far as the shop given to him is concerned, which is claimed
by the appellant, he has already obtained tenancy of the
said shop from respondent No. 1 and there is no reason why
his tenancy should be disturbed. It is urged by him that
there are a number of similar shops constructed by respond-
ent No.1 landlord facing the Belepet main Road and there is
no reason why his shop should be picked out for being given
to the appellant. In our view, whatever might be the merits
of this submission, it is not open now to respondent No. 2
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to make this submission or resist the claim of the appel-
lant. Respondent No. 2 was joined as a party in the revision
petition disposed by a Division Bench of the Mysore High
Court as set out earlier, which was between the same parties
and which decision in which we have already discussed to in
some detail earlier (reported in Sreenivasa Rao v. Narasim-
hiah, [1972] 1 Mysore Law Journal p. 490). In that case, the
High Court held that the rights of respondent No. 2 are
585
subject to the rights of the original tenants conferred upon
them under Sections 27 and 28. This decision has not been
challenged by respondent No. 2 in any proceedings and has
now become final as against him. In view of this, it is not
open to him now to raise any of the contentions which he has
sought to raise. It was open to him to make any submission
which he wanted to make in that case or to file an appeal
against the judgment in so far as it adversely affected him
but he has not chosen to do so and it is not now open to him
to raise these contentions. We are of the view that the
appellant is entitled to be handed over the possession of
the shop occupied by respondent No. 2.
Before parting with the case, we may mention that the
learned counsel for the appellant referred to a couple of
decisions given by High Courts holding that under provisions
similar to those we have discussed earlier, a tenant is not
entitled to identical premises in the newly constructed
building, but in the view which we have taken, as set out
earlier, these decisions are of no relevance.
In the result, the appeal is allowed with costs against
respondent No. 1 and respondent No. 1 is directed to put the
appellant in possession of the said shop occupied by re-
spondent No. 2 as a tenant and respondent No. 2 is directed
to hand over his shop for the aforesaid purpose. There will
be no order as to costs as between the appellant and re-
spondent No. 2.
G.N. Appeal al-
lowed.
586