Allowed

Sridhar Rao v. P. Vasudeva Acharya

Karnataka HC11 Mar 2024WP/23105/2016

Case brief

AI extract

What is this about?

Landlord's heirs challenged a revision order holding the Karnataka Rent Act inapplicable as premises' plinth area exceeded 14 sq.m. The High Court held open platform area cannot be included in plinth area and that the Revision Court wrongly held the eviction cause did not survive without hearing; both orders were set aside and the eviction petition remanded.

What did the court decide?

Impugned revision order dated 07.12.2015 and trial court order dated 02.04.2007 set aside; matter remanded to II Addl. Civil Judge (Jr.Dn.) & JMFC, Udupi in HRC No.36/1996 to decide bonafide requireme

Sridhar Rao Vs P. Vasudeva Acharya — Landlord and Tenant | Karnataka HC (2024)

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1 - NC: 2024:KHC:9900 WP No. 23105 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR WRIT PETITION NO. 23105 OF 2016 (HRC)

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BETWEEN:

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SRIDHAR RAO, S/O LATE K. BHASKAR RAO, AGED ABOUT 48 YEARS,

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KRISHNARAJ RAO, S/O LATE K. BHASKAR RAO, AGED ABOUT 45 YEARS,

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RAJSHREE M. RAO, D/O. LATE K. BHASKAR RAO, AGED ABOUT 51 YEARS,

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JAYASHREE SHANUBHOGUE, D/O LATE K. BHASKAR RAO, AGED ABOUT 50 YEARS,

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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PETITIONERS 1 AND 2 ARE RESIDENTS OF DOOR NO.10-1-158, TENKAPETE, UDUPI TOWN.

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PETITIONER 3 IS RESIDENT OF D-1, 30, LENVADRI SOCIETY, SECTOR 19A, FLAT NO.49-21, NEAR POWER HOUSE, NEUROL, MAHARASHTRA – 400 706. PETITIONER 4 IS RESIDING NEAR KADIYALI KAMALA BAI HIGH SCHOOL, KADIYALI, UDUPI.

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…PETITIONERS

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(BY SRI.AJITH ANAND SHETTY, ADVOCATE)

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2 - NC: 2024:KHC:9900 WP No. 23105 of 2016

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AND:

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P. VASUDEVA ACHARYA, S/O. LATE RAMACHANDRA ACHARYA, AGED ABOUT 47 YEARS,

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P. VENKATARAJA ACHARYA, S/O LATE RAMACHANDRA ACHARYA, AGED ABOUT 42 YEARS,

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MANORAMA R. ACHARYA, W/O LATE RAMACHANDRA ACHARYA, AGED ABOUT 67 YEARS,

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LEELA AITHAL, D/O LATE RAMACHANDRA ACHARYA, AGED ABOUT 45 YEARS,

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DEVIKA, D/O LATE RAMACHANDRA ACHARYA, AGED ABOUT 40 YEARS,

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MALLIKA, S/O. LATE RAMACHANDRA ACHARYA, AGED ABOUT 38 YEARS,

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ALL ARE RESIDENTS OF 1-3-42, PADIGAR, POST KUNJIBETTU, UDUPI – 576 102, AND ALSO AT DOOR NO.10-1-158A, TENKUPETE, UDUPI TOWN, UDUPI TALUK AND DISTRICT.

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…RESPONDENTS

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(BY SRI. PRASANNA V.R., ADVOCATE FOR R1 TO R3; NOTICE TO R4 TO R6 ARE HELD SUFFICIENT VIDE ORDER DATED 04.08.2021)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN RENT REVISION PETITION NO.5/2007 FROM THE REGISTRY OF THE HON'BLE PRL. DISTRICT JUDGE, UDUPI; SET ASIDE THE ORDER DATED 07.12.2015 PASSED BY THE HON'BLE PRL. DISTRICT JUDGE, UDUPI, IN RENT REVISION PETITION NO.5/2007 AT ANNEX-A AND ETC.

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners' grandfather, Sri Raghavendra Rao, leased out the premises bearing door numbers 10-1-158A, 10-1-158B, and 10-1-58C situated in Tenkapete, Udupi Town. The subject premises were bequeathed to the petitioners. During his lifetime, the father of the petitioners filed a petition under Section 27(2)(a)(b)(c)(r) and 31(a) of the Karnataka Rent Act, 1999 (referred to as 'the Act 1999'), seeking to vacate and gain vacant possession of the premises, stating that they are required for carrying on the business of printing/publishing and a stationery mart.

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The respondents, tenants, entered appearance and contended that the provisions of the Act 1999 are not applicable to the premises in question since the plinth area of the scheduled premises exceeds 14 Sq. meters.

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The Trial Court appointed a Court Commissioner to assess the factual plinth area of the Schedule-A premises. The Commissioner, after investigation, submitted a report stating that the plinth area of the Schedule-A premises is 141 Sq. meters, and the passage/ platform in front of the shop premises measures 22.5 Sq. meters. Relying on the report submitted by the Court Commissioner, the Trial Court allowed the petition, stating that the landlord has made out a prima facie case for vacating the tenant for the purpose of carrying on business.

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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Being aggrieved, the respondents filed a revision petition under Section 27(2) (r) of the Act 1999. The Revision Court allowed the revision petition, stating that the plinth area of the Schedule-A premises is more than 14 Sq. meters; therefore, the provisions of the Act, 1999, are not applicable as stated under Section 2(3)(g) of the Act. Also, the original petitioner/landlord having died during the pendency of the petition, the cause for evicting the respondent/tenant does not survive for consideration. Taking exception, this petition is filed.

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Learned counsel for the petitioners would submit that the Revision Court has committed an error in including the platform area of the shop premises for assessing the plinth area of the Schedule-A premises, and if the same is excluded from the plinth area of the Schedule-A premises, it is less than 14 Sq. Meters. Therefore, the provisions of the Act are applicable.

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Per contra, learned counsel for the respondents would submit that the platform area of the Schedule-A premises, which is let out for the respondents for business purposes exceeds 14 Sq. meters. Therefore, the provisions of the Act are not applicable. In support, he places reliance on the decision of this Court in the case of Smt.P.Vatsala Upadhya and Others Vs. Srikanth Keshav Raikar reported in ILR 2004 KAR 1637. He further submits that the two shops were leased in favor of the respondents for carrying on business, and the lease is not separate and distinct; therefore, it is

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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inferred that the lease was composite, and the plinth area of the two shop premises exceeds 14 Sq. meters.

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Considered the submissions made by the learned counsels for the parties.

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Admittedly, the two shop premises belonging to the petitioners' grandfather were let out for lease to the respondents. Schedule-A premises were leased to the respondents under a written lease deed, and Schedule-B premises were leased to the respondents orally. The petitioners' father, during his lifetime, had filed a petition for evicting the respondent, stating that the said premises are required for his wife for printing/publishing business and a stationery mart. The petitioners' father died during the pendency of the petition before the Trial Court. The wife of the original petitioner came on record as petitioner No.1(a), and her two sons came on record as petitioner Nos.1(b) and (c) before the Trial Court. Petitioner No.1(a) died during the pendency of the proceedings before the Revision Court.

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Section 2 of the Act deals with the application of the Act, and subsection (3) states that nothing contained in this Act shall apply to any premises for non-residential purposes but excluding premises having a plinth area exceeding 14 Sq. meters used for commercial purposes. Therefore, the issue is whether the provisions of the Act are applicable, and the platform area of the premises which is let out has to be taken into consideration for the purpose of the applicability of the Act.

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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The term 'plinth area' is not defined under the Act, 1999. The Bureau of Indian Standards has issued guidelines for the purpose of the method of measurement of Plinth, Carpet, and Rentable areas of buildings, wherein Clause-4.1 states that the plinth area shall be the built-up covered areas measured for the categories mentioned in 3.2 and shall include such areas as given in 4.1.1 and exclude the areas given in 4.1.2. For the purpose of the plinth area, the following shall be included: a) Area of the wall at the floor level excluding plinth offsets, if any; when the building consists of columns projecting beyond cladding, the plinth area shall be taken up to the external face of cladding. Clause-4.1.2 states that the following shall not be included in the plinth area:

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a) Area of loft; b) Area of architectural band, cornice, etc.; c) Area of vertical sunbreaker or box louver projecting out and other architectural features, for example, slab projection for flower pot, etc.; d) Open platform; e) Terrace; f) Open spiral/service staircases; and g) Area of machine room, towers, turrets, domes projecting above the terrace level.

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11. The Co-ordinate Bench of this Court in the case of K.Thimmegowda Vs. B.S.Nagaraj Rao and Others reported in ILR 2008 KAR 2753 has ruled that, in finding out the measurement of the non-residential premises, not only the actual space available between the walls but also the area covered by the walls has to be taken into consideration.

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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12. The Co-ordinate Bench of this Court in the case of Smt.P.Vatsala Upadhya and Others (stated supra) has ruled that the vacant space left by the landlord in front of the shop should also be included, having regard to the purpose or usage of the premises by the tenants, and therefore the provisions of the Act, 1999, do not apply to any premises used for non-residential purposes having a plinth area exceeding 14 Sq. meter s used for commercial purposes.

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13. The phrase 'plinth area' is not defined under the Act, 1999, and clause (g) subsection (3) of Section (2) of the Act states that applicable space of the commercial premises of which the plinth area is more than 14 S q. meters , the provisions of the Act are not applicable. The provision does not state that the front space of the shop premises is to be included for the purpose of determining the plinth area.

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14. The building by-laws state that 'plinth area' means the built-up covered area of the building/buildings immediately above plinth level, and plinth level means the level of the floor of a building immediately above the surrounding ground. Therefore, the front space or the platform cannot be included for the purpose of the plinth area.

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15. The schedule A & B premises were let out separately and not under one composite deed , and therefore it cannot be said

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8 - NC: 2024:KHC:9900 WP No. 23105 of 2016

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the lease was composite so as to contend that the plinth area of both premises exceeds 14 sq.mts.

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16. The original petitioner had categorically stated that the subject premises are required for the bona fide purpose of his wife who intends to carry on the business i.e., stationary shop and book stall and also for publishing purposes since the license was issued in favor of his wife. The original petitioner died during the pendency of the proceedings before the Trial Court, and petitioner No.1/wife and two sons were brought on records as legal representatives. Petitioner No.1(a) i.e., wife died during the pendecny of the proceedings before the Revision Court.

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17. Whether the children of the deceased petitioner No.1(a) have got rights to vacate/evict the respondents on the ground that they intend to set up the business in the schedule premises is the matter which requires consideration by the Trial Court. The Revision Court without offering an opportunity of hearing the petitioners to substantiate whether the cause of action survives or not has passed the impugned order, and the same is not sustainable in law. Accordingly, I pass the following:

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ORDER

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i. Writ petition is allowed.

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ii. The impugned order dated 07.12.2015 passed by the Prl. District Judge, Udupi in RRP No.5/2007 and the order dated 02.04.2007 passed by the II Addl. Civil Judge

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NC: 2024:KHC:9900 WP No. 23105 of 2016

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(Jr.Dn) and JMFC, Udupi in HRC No.36/1996 are hereby set aside and the matter is remanded to the II Addl. Civil Judge (Jr.Dn) and JMFC, Udupi to dispose of the proceedings in HRC No.36/1996 only to the extent as to whether the petitioners satisfy the bonafide requirements for vacating the respondent under Section 27(2)(r) of the Act.

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iii. The trial Court, to conclude the proceedings within a period of four months from the date of receipt of certified copy of this order.

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iv. Registry to return the Trial Court records.

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All contentions except the applicability of the Act are kept open.

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Sd/-

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JUDGE

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RKA List No.: 1 Sl No.: 31

Sridhar Rao v. P. Vasudeva Acharya

Case brief

What is this about?

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Sridhar Rao v. P. Vasudeva Acharya

Case brief

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