Dismissed

K S Lakshminarayana Setty v. Smt T S Geetha S

Karnataka HC26 Mar 2021HRRP/25/2013

Case brief

AI extract

What is this about?

This revision petition challenges an order dismissing a claim for redelivery of a newly constructed building under the Karnataka Rent Acts. The court held that the petitioners forfeited their right of re-entry due to failure to deliver vacant possession within the mandated six-month period and failure to serve requisite notices, and that this right was not saved by the Karnataka Rent Act, 1999 whi

What did the court decide?

The revision petition is dismissed with costs of Rs. 10,000/- and the impugned order of the Court of Small Causes is upheld.

K S Lakshminarayana Setty Vs Smt T S Geetha S — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^th DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA

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HRRP NO.25 OF 2013

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BETWEEN:

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K. S. LAKSHMINARAYANA SETTY AGED ABOUT 85 YEARS, S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.93/4,

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EAST END ROAD, 2^ND CROSS,

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BASAVANAGUDI,

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BENGALURU – 560 004.

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K.S.DWARKANATH SETTY SINCE DEAD BY LRs.

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(A). K.D.MANJUNATHA, SON OF K.S.DWARKANATH SETTY, AGED ABOUT 52 YEARS, PROPRIETOR OF K.S.M.STORES.

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K.R.S.COMPLEX, M.G.ROAD, CHINTAMANI, KOLAR DISTRICT – 563 125.

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(B) K.S.SHANKAR

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SON OF K.S.DWARKANATH SETTY, AGED ABOUT 48 YEARS,

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SON OF K.S.DWARKANATH SETTY, AGED ABOUT 46 YEARS,

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(D).	SMT.B.S.GEETHA
	D/O K.S. DWARKANATH SETTY, AGED ABOUT 54 YEARS,
(E)	SMT.ASHA
	W/O SURESH BABU, AGED ABOUT 50 YEARS,
(F)	SMT.USHA W/O NAGARAJ SETTY, AGED ABOUT 44 YEARS,
	PETITIONER NO. 2(B) TO (F) ALL ARE RESIDING AT K.S.M.STORES. K.R.S.COMPLEX, M.G.ROAD, CHINTAMANI, KOLAR DISTRICT – 563 125.
3.	K.S.ANANDA RAM SETTY AGED ABOUT 80 YEARS,
	S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.39, SHARADHANANDA BHAVAN ROAD, VISWESWARAAPURAM, BENGALURU – 560 004.
4.	K.S.VISHWANATHA SETTY AGED ABOUT 76 YEARS,
	S/O K.K.SANJEEVA MURTHY SETTY,
	R/AT NO.699, 22^NDCROSS, 18^THMAIN ROAD, BANASHANKARI 2^NDSTAGE,
	BENGALURU – 560 070.
5.	K.S.SURENDRA GUPTA
	AGED ABOUT 74 YEARS, S/O K.K.SANJEEVA MURTHY SETTY,
	R/AT NO.94/95, SUSHEELA APARTMENTS,

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SURVEYOR STREET, BASAVANAGUDI. BENGALURU - 560 004.

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K.S.PARTHASARATHY AGED ABOUT 72 YEARS, S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.79/A, 2^ND FLOOR, RANGARAO ROAD, SHANKARAPURAM, BENGALURU - 560 004.

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K.S.RAMAKRISHNA SETTY AGED ABOUT 67 YEARS, S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.22/1, 1^ST FLOOR, VASANTHA NILAYA, PIPE LANE C STREET BHARATHI NAGAR, BENGALURU - 560 001.

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K.S.PRAKASH CHANDRAGUPTA SINCE DEAD BY L.RS.

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8(A). VASUDA PRAKASH W/O LATE. K.S. PRAKASH CHANDRA GUPTA. AGED ABOUT 63 YEARS,

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8(B) ANISHA PRAKASH D/O LATE. K.S. PRAKASH CHANDRA GUPTA. AGED ABOUT 27 YEARS,

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BOTH ARE R/AT NO.206, SHANTHI APARTMENTS, B TYPE, 1^ST FLOOR, 9^TH BLOCK, JAYANAGAR, BENGALURU - 560 069.

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K.S.DANDAYUDHAPANI AGED ABOUT 62 YEARS, S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.2612, 8^TH MAIN ROAD, 15^TH CROSS, BSK 2^ND STAGE, BENGALURU – 560 070. 10. K.S.VIJAYA KUMAR AGED ABOUT 59 YEARS, S/O K.K.SANJEEVA MURTHY SETTY. R/AT NO.461/C, 7^TH CROSS, 7^TH BLOCK, RANGARAO ROAD, SHANKARPURAM, BENGALURU – 560 004. 11. SMT.K.S.VASUVAMBA AGED ABOUT 56 YEARS, D/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.79/3, 2^ND FLOOR, RANGA RAO ROAD, SHANKARPURAM, BENGALURU – 560 004. 12. K.S.SUBHASH AGED ABOUT 68 YEARS, S/O K.K.SANJEEVA MURTHY SETTY, R/AT NO.9, 1^ST CROSS, RAMA LAKSHMI NIVAS, 10^TH MAIN ROAD, 7^TH BLOCK, A 4^TH PHASE, B.S.K. 3^RD STAGE, GURURAJA LAYOUT, BENGALURU – 560 085. PETITIONER NO.1, PETITIONERS 3 TO 7 PETITIONERS 9 TO 11 L.RS OF 2^ND AND 8^TH PETITIONER ALL

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ARE REPRESENTED BY THEIR P.A.HOLDER THE 12^TH PETITIONER.

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…PETITIONERS

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(BY SRI.P.D. SURANA, ADVOCATE)

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AND:

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SMT T. S. GEETHA S @ GEETHA RAMAKRISHNA.

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DEAD BY LRs.

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1(A) DR.K.SHRUTHI, D/O LATE T.S.GUPTA, W/O K.N.TRIVIKRAM, MAJOR,

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R/AT NO.64, RANGAVILAS, ALL SMILES DENTAL CARE, SHANKARMUTT ROAD, SHANKARPURAM, BENGALURU – 560 004.

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… RESPONDENT

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(SRI.GANESH V. SHIVASWAMY., ADVOCATE )

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THIS HRRP IS FILED UNDER SECTION 46(1) OF KARNATAKA RENT ACT 1991, AGAINST THE ORDER DATED 07.11.2012 PASSED IN MISC NO. 235/2005 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 26 TO 28 OF KARNATAKA RENT CONTROL ACT 1961 R/W SEC. 17(3) OF KARNATAKA RENT ACT.

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THIS HRRP COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are in revision against the order passed by the Court of Small Causes in Misc.No.235/2005. The said petition was filed under Section 26 to 28 of Karnataka Rent Control Act, 1961 r/w Section 17(3) of Karnataka Rent Act, 1999, for a direction to the respondents herein to deliver the possession of the newly constructed building described in the schedule. Learned Chief Judge dismissed the petition by the impugned order dated 17.11.2012 in Misc. No 235/2005.

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The undisputed facts of the case are as follows:

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The respondent’s mother Smt. T.S.Geetha filed an eviction case against the petitioners herein in HRC.No.1997/1984. The said eviction petition was allowed by the Chief Judge, Court of Small Causes on 23.6.1989 under Section 21(1)(i) and (j) of the Karnataka Rent Act, 1961. The petitioners challenged the said order before this court in CRP.No.7088/1989. By order dated 09.07.1991, the petition was disposed of granting four months time to

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the petitioners/tenants to vacate the schedule premises in favour of the respondent /landlady. The petitioners were held entitled for re-entry under Sections 26 to 28 of the Karnataka Rent Control Act, 1961. However the petitioners failed to deliver vacant possession of the schedule premises to the respondent within the time prescribed by this court in CRP.No.7088/1989. Instead, the petitioners challenged the said order before the Apex Court in SLP.No.18846/1991 and the same was dismissed on 5.12.1991. Even thereafter the petitioners failed to deliver vacant possession of the premises to the respondent and hence the respondent had to take recourse to the execution proceedings and ultimately the vacant possession of the schedule premises was obtained by the respondent through process of court on 15.09.1992.

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Upon taking possession, respondent demolished

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the entire building during the year 2001-02. According to the petitioner, the progress was very slow and repeated requests made by the petitioners to speed up the

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construction and to put the petitioners in possession was not heeded by the respondent and thus contending, the petitioners sought for redelivery of the newly constructed building by making an application under Sections 26 to 28 of the Old Act r/w Section 17(3) of The Karnataka Rent Act, 1999. This application was filed on 30.9.2005 and the same was numbered as Misc.235/2003. During the course of trial petitioner No.12 was examined as PW-1 and in his evidence while reiterating the grounds he deposed that after demolishing the building, the respondent did not commence construction immediately as per the directions of the Court; the construction was made on very slow pace; the request made by the petitioners to deliver possession was not at all heeded by the respondent; the respondent did not intimate about the completion of the construction and therefore O.S.No.6893/2004 was filed by the petitioners for possession of the property; but the same was withdrawn reserving liberty to file the above petition. It has to be noted that in his evidence PW-1 did not state that he had called upon the respondent to deliver

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vacant possession of the property and that he had given notice to the respondent – landlord intimating his intention to occupy the new building within six months as mandated under Section 27 of the Act.

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Considering the above evidence, the learned Small Causes Judge rejected the petition on the ground that by failing to deliver vacant possession of the premises within the time prescribed by this court in CRP.7088/1989 , the petitioners have forfeited their right of re-entry. In support of this conclusion, the learned Chief Judge relied on the judgment of the Hon’ble Apex Court in the case of - Ram

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Nath and another Vs. M/s. Ram Nath Chhittar Mal

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and others - AIR 1961 SC 104 .

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The contention of the learned counsel for the petitioners is that the decision relied on by the Chief Judge was rendered under the provisions of Delhi Rent Control Act, whereas the provisions of the Karnataka Rent Control Act did not provide for any forfeiture of the right of reentry by the tenant for want of notice within the time

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prescribed under Section 26 to 28 of the Karnataka Rent Act. In support of his submission, the learned counsel for the petitioners has placed reliance on the decision rendered by the Division Bench of this court in the case of

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C.Yethrappa Vs. D.Yusuf Khan & another reported in

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1992 KLJ Pg. 437 , wherein it is held that eviction based

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on compromise between the parties and the order providing for re-delivery of possession to the tenant after reconstruction by landlord; the order is executable as a decree and there is no necessity to file application under Sections 26,27 and 28 of the Act. Further the learned counsel has placed reliance on the unreported decision of this court in HRRP.No. 3913 of 1990 – Sri. Shah

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Vardichand Poonamchand Vs. Smt.

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Lakshminarasamma , decided on 22.1.1997, wherein the Single bench of this court has held that the decisions referred by the Hon’ble Supreme Court in Ram Nath and

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another Vs. M/s. Ram Nath Chhittar Mal and others – [1961 (1) SCR 600 and Ghanshyam Hazarimal and another Vs. Nathmal Lasminarayan (1976 AIR CJ 78)

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were rendered under the provisions of Delhi and Ajmer Rent Control Act, 1952 and the Madhya Pradesh Accommodation Control Act respectively. In those enactments, the tenant’s right to get back possession after the construction of the new building was dependent on his having delivered possession on or before the date specified in the order; whereas under Sections 26 to 28 of the Karnataka Rent Act, right of the tenant for re-entry is not dependent on the tenant surrendering possession of the premises within the time fixed by the court. There is also no provision under the Rent Control Act, 1961 which required the Court to specify the time within which the landlord should vacate the premises; therefore merely because the petitioner did not handover possession within the time fixed by the Court or that the respondents had to take out execution to secure possession cannot be a ground to refuse the relief under Sections 26 to 28 if the petitioner is otherwise entitled to it. Further, placing reliance on the decision of the Hon’ble Supreme Court in the case of State of Bihar and others Vs. Bihar Rajya

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Bhumi Vikas Bank Samiti, Bihar, Jharkhand – Air

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2018 SC 3862 , with reference under Section 29(A) and 34(5) of Arbitration and Conciliation Act, 1996, the learned counsel would submit that the vested right of a party cannot be taken away by the non-compliance of issuance of prior notice before filing the petition. Thus the learned counsel for the petitioners would submit that the impugned order having been passed by the Learned Chief Judge contrary to the settled principles of law and the decisions rendered by this court in HRRP.No.3913 of 1990 requires to be set aside.

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Sri. Shivaswamy, learned counsel for the respondent however countered the above argument and would submit that the provisions of Sections 26 to 28 of the Karnataka Rent Act are not at all applicable to the facts of the case. The petition was filed after repeal of the Karnataka Rent Control Act, 1961; as on that day, the petitioners had no vested right of re-entry into newly constructed building. On the other hand, Section 36(3) of

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the 1999 Act specifically prescribes that the right of the tenant would be crystallized only after he delivered possession to the landlord on or before the dates specified in the order. In the instant case, the petitioners having not delivered the possession within the time stipulated by this court as rightly held by the trial court, the petitioners have forfeited their right of re-entry.

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I have considered the rival submission and have perused the impugned order and the reasons assigned by the learned Chief Judge and the contentions urged by the learned counsel for the petitioners. In my view, the very petition filed by the petitioners under Sections 26 to 28 of the Karnataka Rent Act, 1961 is not legally tenable. The said provisions read as under:

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26. Recovery of Possession for demolishing building and re-entry :- (1) Where a decree for eviction has been passed by the Court on the ground specified in clause (j) of the proviso to sub-Section (1) of Section 21 and the work of demolishing the premises has not been commenced by the land lord within the period specified in the decree, the tenant may give the landlord a notice of his intention to occupy the premises from which he has been evicted and if the landlord does not

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forthwith deliver to him vacant possession of the premises on the same terms and conditions on which he occupied them immediately before the eviction, the tenant may make an application to the Court within six weeks from the date of expiry of the period specified in the decree.

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(2) If the Court is satisfied that the landlord has not substantially commenced the work of demolishing the premises within the period of one month in accordance with his undertaking, the Court shall order the landlord to deliver to the tenant vacant possession of the premises on the terms and conditions on which he occupied it immediately before the eviction. On such order being made, the landlord shall forthwith deliver vacant possession of the premises to the tenant. Such order shall be deemed to be an order within the meaning of clause (14) of Section 2 of the Code of Civil Procedure, 1908.

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(3) Any landlord who recovers possession on the ground specified in clause (j) of the proviso tfo sub-section (1) of Section 21 and fails to demolish and construct a new building without any reasonable excuse, or fails to comply with the order of the Court under sub-section (2), shall, without prejudice to his liability in execution of the order under subsection(2), on conviction, be punish with fine which may extend to five hundred rupees.

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27. Tenant’s right to give notice to the landlord of his intention to occupy tenement in new building : - Where a decree for eviction has been passed by a Court on the ground specified in clause (j) of the proviso to sub-section (1) of Section 21 and the work of demolishing the premises and of the erection of a new building has been commenced by the landlord, the tenant may, within six months

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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, namely:-

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(a) that he shall pay to the landlord the fair rent in respect of the building:

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Provided that in respect of a residential building the tenant shall not be required to pay rent in relation to the area at more than double the rate at which he paid rent for his former building immediately before his eviction unless the landlord obtains an order of the Controller fixing the fair rent in respect of the building at a higher rate;

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(b) that his occupation of the building shall, save as provided in condition (a), be on the same terms and conditions as the terms and conditions on which he occupied the building immediately before the eviction.

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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 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.

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(2)(a) If the tenant fails to occupy the building within a period of one month from the date on which he is entitled to occupy it under sub-section (1), the tenant’s right to occupy the said building under the said sub-section shall terminate and the landlord shall be entitled to recover from the tenant, a sum

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equal to three time the amount of the monthly fair rent in respect of the building.

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(b) If the landlord fails without reasonable excuse to comply with the provisions of sub-section (1), or to place the tenant in occupation of the building he shall, without prejudice to his liability to place the tenant in vacant possession of the building, on conviction, be punished with fine which may extend to five hundred rupees.”

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A plain reading of the above provisions make it evident that in order to exercise the right of re-entry, the tenant is required to give the landlord a notice of his intention to occupy the premises from which he has been evicted and delivered the vacant possession of the premises to the landlord. The issuance of notice envisaged under Section 24 is not an empty formality rather it is a pre-condition to enforce the right of re-entry reserved under the decree or order of the court. As per this Section, if the work of demolishing the premises has not been commenced within the time specified in the decree, he is required to give notice to the landlord of his intention to occupy the premises and invoke the remedy available under Section 26 of the Act within six weeks from the date

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of expiry of the period specified in the decree. Section 27 of the Act also requires the tenant to issue notice to the landlord of his intention to occupy tenement in the newly constructed building within six months from the date on which he delivered vacant premises to the landlord. Section 28 would come into force only on receipt of notice under Section 27 of the Act.

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In the instant case, undisputedly no notice was issued by the petitioners either requesting the respondent - landlord to effect construction within six months from the date of delivery of vacant possession or intimating their intention to occupy the tenement in the newly constructed building. Though in the course of arguments, learned counsel for the petitioners contended that the law does not require any written notice, and it suffices for the purpose of the Act if an oral notice is given to the landlord in compliance of the requirement of Sections 26 to 28 of the Act, but as already noted above, neither in the pleadings nor in the evidence, the petitioners have taken up a plea

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that such an oral notice was given to the respondentlandlord. Even if it is assumed that an oral notice was given to the respondent even then, the cause of action arose for the petitioners to approach the court in the year 1999; but the instant petition has been filed in the year 2005 and by then the Karnataka Rent Control Act, 1961 itself came to be repealed. As per the Rent Act, 1999 only the pending proceedings were saved by virtue of Section 70 of the Act. Undisputedly, as on the date of the Karnataka Rent Act 1999 coming into force, no proceedings were pending between the parties and as such, there was no relationship of landlord and tenant between the petitioners and the respondent as on the date of presentation of the petition. In view of this change, the petitioners cannot seek to sustain the right of re-entry based on the orders of this Court in CRP No.7088/1989. As per Section 70 of the Act no such legal right of the tenants have been saved and only the pending proceedings are saved.

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Apart from the above, it is also necessary to note that Section 36 of the Karnataka Rent Act, 1999 which deals with recovery of possession for repairs and rebuilding and re-entry also gives a right to the tenant to enforce the vested right within one month of the specified date on failure of the landlord to complete the work within a reasonable time. Section 36(3) prescribes that such a right could be enforced by the tenant provided that he had delivered possession on or before the date prescribed in the order. Undisputedly in the present case, possession of the property having been delivered only on 15.9.1992, the petitioners cannot take recourse of Section 36(3) of Act. As a result, the principle laid down by the Hon’ble Supreme Court in State of Bihar and Ors. V. Bihar

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Rajya Bhumi Vikas Bank Smiti, Bihar, Jharkand reported in AIR 2018 SC 3862 that a vested right of a party to challenge the award under Section 34 cannot be taken away for non-compliance of issuance of prior notice before filing of the arbitration petition cannot be applied to the facts of the case. As the petitioners have failed to

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enforce their right within the time prescribed under Sections 26 to 28 of the Act, they have forfeited their right of re-entry much before the enactment was repealed. The right of the petitioners has not been protected under the Karnataka Rent Act, 1999. As a result, the petitioners have absolutely no basis to sustain the claim for re-entry.

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For the above reasons, I do not find any legal error or infirmity in the impugned order warranting interference under Section 46 of the Karnataka Rent Control Act. Consequently, the revision petition being devoid of merits is liable to be dismissed. Accordingly, the petition is dismissed with costs of Rs.10,000/-.

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Sd/JUDGE

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sd/SA

K S Lakshminarayana Setty v. Smt T S Geetha S

Case brief

What is this about?

What did the court decide?

K S Lakshminarayana Setty v. Smt T S Geetha S

Case brief

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What did the court decide?

What the court decided

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