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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 579 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 581 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