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1990 DIGILAW 107 (KAR)

VENKATESHVARULU v. DEPUTY COMMISSIONER

1990-03-02

D.R.VITHAL RAO, K.A.SWAMI

body1990
K. A. SWAMI, J. ( 1 ) THIS Writ Appeal is preferred against the order dated 2nd February 1990 passed in W. P. No. 12184/1989, The Appellant was the petitioner in the Writ Petition. He is 1n occupation of the premises bearing No. 757 situated at 28th Main, III Phase, J. P. Nagar, Bangalore. The 3rd respondent is the owner of the premises. ( 2 ) A proceeding under Section 10a of the Karnataka Rent Control Act (hereinafter referred to as the 'rent Control Act') was initiated against the appellant-petitioner on the ground that he had occupied the premises in question which was governed by the provisions of the Rent Control Act without an order of allotment, therefore, his occupation was illegal, hence he was liable to be evicted under Section 10a of the Rent Control Act. The defence of the appellant-petitioner was that the building was not five years old on the date he occupied the premises, therefore, the provisions of Parts II and III of the Rent Control Act were not attracted to the premises. ( 3 ) IT is not in dispute that the petitioner occupied the premises in question on 12-11-1981. The rent Controller as well as the Appellate Authority. e. , the Deputy Commissioner, have held that the building was completed on 1-10-1976 as per the completion report submitted by the owner of the building to the Bangalore Development Authority. Therefore they have negatived the contention of the petitioner and have ordered for eviction of the petitioner under Section 10a of the Rent Control Act. The learned Single Judge also has held thus: "the factual finding of both the authorities below is that the building was completed on 1-10-1976. This finding is based on the completion certificate given by the landlord to the bangalore Development Authority. Therefore, the fact that the assessment came to be levied in the year 1977 will be of no consequence. Thus, the factual finding that the building is more than five years old and therefore the provisions of the Karnataka Rent Control Act 1961 would apply, cannot be assailed. 2. Writ Petition is dismissed. 3. Time is granted till 30-4-1990 to vacate the premises. " accordingly, the learned Single Judge has rejected the petition. Thus, the factual finding that the building is more than five years old and therefore the provisions of the Karnataka Rent Control Act 1961 would apply, cannot be assailed. 2. Writ Petition is dismissed. 3. Time is granted till 30-4-1990 to vacate the premises. " accordingly, the learned Single Judge has rejected the petition. ( 4 ) IT is contended by Sri Shivaram, learned Counsel for the appellant that a mere report by the owner that the construction of the building has been completed on 1-10-1976 is not the deciding factor for the purpose of finding out whether the building is five years old in order to attract the provisions of Parts II and III of the Rent Control Act; that what is necessary is the assessment of the building by the local authority that in the instant case the building has been assessed with effect from 1-10-1977 therefore, the occupation of the petitioner is within five years from 1-10-1977. It is also contended that in view of the provisions contained in Section 310 of the karnataka Municipal Corporations Act, 1976, (hereinafter referred to as the 'corporations Act') in respect of the buildings situated in the Corporation area, the building cannot be occupied unless the owner submits a completion certificate in the prescribed form to the Commissioner and the permission is granted by the Commissioner to occupy the building. Therefore, it is contended that the date of grant of occupancy certificate should be taken as the date for completion of the construction for the purpose of Sub-section (2) of Section 2 of the Rent control Act inasmuch as without such occupancy certificate, building cannot be occupied. Hence the provisions of Parts II and III of the Rent Control Act, were not attracted to the premises in question, on 12-11-1981. Therefore, the proceeding initiated under Section 10-A of the Rent control Act was not maintainable. ( 5 ) IN the light of the aforesaid contentions, the points that fall for consideration are as follows: i) Whether the provisions of Parts II and III of the Rent Control Act were attracted to the premises in question on 12-11-1981? ii) Whether the provisions of Section 310 of the Municipal Corporations Act, 1976 have any bearing on or control the provisions of Sub-section (2) of Section 2 of the Rent Control Act? ii) Whether the provisions of Section 310 of the Municipal Corporations Act, 1976 have any bearing on or control the provisions of Sub-section (2) of Section 2 of the Rent Control Act? ( 6 ) AS both the points are inter-connected, it is convenient to consider both the points together. POINTS NOS. 1 and 2 ( 7 ) ON the basis of the evidence on record, it has been found by respondents 1 and 2 that the construction of the premises in question was completed on 1-10-1976. This finding is based on the completion report submitted by the owner of the premises in question to the Bangalore development Authority long prior to initiation of the proceeding in question. Such a report was submitted no sooner the construction of the premises in question was completed and long prior to the induction of the appellant into the premises as a tenant. This finding being a finding of fact, is affirmed by the learned Single Judge. We do not see any ground, nor it is brought to our notice that any material evidence on record is left out from consideration so as to persuade us to take a view different from the one taken by respondents 1 and 2 and the learned Single Judge. Hence we hold that it is proved in the case that the construction of the premises in question was completed on 1-10-1976. ( 8 ) THE learned Counsel for the appellant placed reliance on a decision of the Supreme Court in om PRAKASH GUPTA v. DIG VIJENDRAPAL GUPTA, AIR1982 sc 1230b , 1982 (1 ) SCALE153 , (1982 )2 SCC61 , [1982 ]3 SCR491 , 1982 (14 )UJ213 (SC ) the Supreme Court in that decision considered the provisions of Sub-section (2) of Section 2 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (Act 13 of 1972) (for short "u. P. Act" ). The relevant portion of Sub-section (2) of Section 2 of the U. P. Act as extracted in the decision of the Supreme Court was as follows: "except as provided in Sub-section (5) of Section 12, Sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24a, 24b, 24c or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: explanation-I - For the purposes of this sub-section a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time. . . . " There is no explanation to Sub-section (2) of Section 2 of the Rent Control Act similar to the one contained in Sub-section (2) of Section 2 of the U. P. Act. Sub-section (2) of Section 2 of the karnataka Rent Control Act reads thus: "2. Application of the Act - (1) xx xx (2) Parts II and III of this Act shall be applicable to the areas specified in Schedule-I: provided that the said Parts shall not apply to a building constructed after the first August 1957 for a period of five years from the date of construction of such building. " ( 9 ) FROM the aforesaid provisions of Sub-section (2) of Section 2 of the Karnataka Rent Control act, it is clear that the date of construction of the building is the deciding factor in order to find out whether Parts- II and III of the Rent; Control Act are attracted to the buildings constructed in the areas specified in Schedule-I Co the Rent Control Act. The premises in question is constructed in the area specified in Schedule-I to the Rent Control Act. The premises in question is constructed in the area specified in Schedule-I to the Rent Control Act. The provisions of Parts-II and III of the Rent Control Act are applicable to a building constructed after 1st August 1957 and situated in the areas specified in Schedule-I to the Rent Control Act on and from the expiry of five years from the date of construction of the building. The fact that the building is subject, to assessment and the assessment of the building has or has not been made by the Corporation is not relevant for deciding the date of construction of the buildings for the purpose of applying parts II and III of the Rent Control Act. Similarly the fact that the assessment is made by the corporation subsequent to the date of completion of construction of building is also not relevant as there is no such provision contained in Sub-section (2) of Section 2 of the Rent Control Act, making it relevant as has been done in Explanation-I to Section 2 (2) of the U. P. Act. ( 10 ) IN the aforesaid Om Prakash Gupta's case, in the light of Explanation-I to Sub-section (2) of section 2 of the U. P. Act, the Supreme Court, as already pointed out above, held thus: "6. As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June 1967 and not on the date of the first assessment and that if this be so, the appellant would be entitled to the benefit of Section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March 1978. In order to appreciate this argument, it will be expedient to refer to Explanation I to subsection (2) of Section 2 which has already been extracted. In order to appreciate this argument, it will be expedient to refer to Explanation I to subsection (2) of Section 2 which has already been extracted. Explanation-I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise by the local authorities having jurisdiction and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied. . . for the first time. A perusal of explanation-I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than 10 years' old on the date when the revision came to be decided by the High Court and therefore there was no question of giving the benefit of Section 39 of the Act to the appellant. " Therefore, the decision in Om Prakash Gupta's case turned upon the wordings contained in explanation-1 to Sub-section (2) of Section 2 of the U. P. Act. Therefore, it is not possible to apply the said decision to the case on hand. In the instant case, the date of construction was intimated by the owner long prior to the induction of the appellant into the premises in quest ion inasmuch as the report of completion of the construction of the premises in question was submitted by the owner on 1-10-1976. In the instant case, the date of construction was intimated by the owner long prior to the induction of the appellant into the premises in quest ion inasmuch as the report of completion of the construction of the premises in question was submitted by the owner on 1-10-1976. ( 11 ) IT is next contended by Sri Shivaram, learned Counsel for the appellant that under Section 310 of the Corporations Act, it is necessary for the owner of the building to submit a completion report to the Commissioner of the Corporation within one month from the date of completion of the erection of a building and it is also necessary to obtain the permission from the commissioner to occupy or use the building and without that the building cannot be occupied or used. Therefore, it is the date of grant of occupancy certificate or in the absence of occupancy certificate, the date of assessment of the building by the Corporation is the relevant date to determine the date of completion of the construction of the building. It is contended that completion of the construction is not of any use unless the Commissioner of the Corporation permits the owner of the building to occupy or use. Therefore, the date of submission of the completion certificate, as has been done in the instant case by the owner cannot be taken as the date of construction of the building. It is not possible to appreciate the contentions based on section 310 of the Corporations Act. ( 12 ) THE object of Chapter XV of the Corporations Act within which Section 310 falls is to regulate the construction of buildings within the Corporation area. Sections 295 and 321 contained in Chapter XV of the Corporations Act deal with the powers of the Corporation to regulate the construction of buildings. Therefore, Chapter XV of the Act in order to exercise effective control over the construction of the buildings, among other things, it also provides for submission of completion certificate by the owner of the building to, and grant of permission by the Commissioner to occupy or use the building. Section 310 as it stood at the relevant point of time viz. , 1-10-1976 and 21-12-1981 was as follows: "310. Section 310 as it stood at the relevant point of time viz. , 1-10-1976 and 21-12-1981 was as follows: "310. Completion certificate and permission to occupy or use: (1) Every person shall, within one month after the completion of the erection of a building" or the execution of any such work, deliver or send or cause to be delivered or sent to the commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner prescribed an shall give to the Commissioner all necessary facilities for the inspection of such buildings or of such work and shall apply for permission to occupy the building. (2) No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work, until ( a) permission has been received from the Commissioner in this behalf, or (b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission. " Of course, by Karnataka Act No. 32/1986 with effect from 17th June 1986 Sub-section (1a) has been inserted in Section 310; but it is not relevant for our purpose. Similarly in Sub-section (2), by the same amendment, after the words "any such building", the words "or part of the building" are inserted. In Clause (b) for the words "twenty one" the word "thirty" is substituted. This change in Sub-section (2) is also not relevant for our purpose because, the aforesaid amendments are effected with effect from 17-6-1986. ( 13 ) FROM the aforesaid provisions contained in Section 310 of the Corporations Act, it is clear that these provisions are intended to enable the Commissioner to exercise effective control over the erection of building or execution of work within the Corporation area. These provisions enable the Commissioner to inspect the buildings or works and grant permission for occupation, or use, the building constructed. The owner is required to submit within one month from the date of completion of the erection or execution of the work, completion certificate in the prescribed form. Thereafter it is open to the Commissioner to inspect the building or the work. The owner is required to submit within one month from the date of completion of the erection or execution of the work, completion certificate in the prescribed form. Thereafter it is open to the Commissioner to inspect the building or the work. This inspection is intended to satisfy as to whether the construction is in accordance with the sanctioned plan, and whether it contravenes any of the building bye laws. It also enables the corporation to take up assessment of the building for the purpose of determining the property tax, grant occupancy certificate if the building erected or the work executed is in accordance with the sanctioned plan and does not contravene any of the building bye-laws. Whereas the objects of the Karnataka Rent Control Act are to control rents and evictions and leasing of buildings and also to control rates of hotels and lodging houses and to provide for certain other matters connected thereto. Thus the objects of both the enactments are quite different. ( 14 ) CHAPTER XV of the Karnataka Municipal Corporations Act does not deal with the control of rents and evictions or leasing of buildings or the control of rates of hotels and lodging houses. Therefore, the provisions of Section 310 of the Corporations Act cannot be read into Section 2 (2) of the Rent Control Act, nor those provisions can be construed as controlling the provisions of section 2 (2) of the Rent Control Act. The provisions of Section 2 (2) of the Rent Control Act are clear and unambiguous. Without there being a permission to occupy the building granted by the commissioner of the Corporation and without the submission of a report of completion of the building by the owner, the date of construction of the building can be determined. The possibility of a owner of the building occupying or using the building or letting it out without submitting the certificate of completion of the construction to the Commissioner and without obtaining his permission cannot be excluded. Further, even after the submission of the certificate of completion of the construction of the building, assessment may not take place for a considerable period and the permission to occupy may not also be granted immediately. Further, even after the submission of the certificate of completion of the construction of the building, assessment may not take place for a considerable period and the permission to occupy may not also be granted immediately. In the event the commissioner of the Corporation fails to intimate as to grant or refusal of permission to use or occupy the building or refuse permission within 21 days (now it is 30 days after Karnataka Act no. 32/86) after receipt of the notice of completion, it is open to the owner to occupy the same. Therefore, it is clear that even there being no actual permission granted by the Commissioner, the building can be occupied or used if the Commissioner fails to intimate his refusal to grant permission within the aforesaid period. For the purpose of application of Part II and III of the Rent Control Act to the buildings constructed after 1-8-1957 in the area specified in Schedule I to Rent Control Act, what is germane is the age of the construction. If such construction is five years old from the date of construction, Parts II and III of the Rent Control Act are attracted. It cannot also be disputed that the age of the construction of the building does not depend upon grant or refusal to grant permission to occupy or use the building. Therefore, Section 310 of the Corporations Act in the absence of any provision in the Rent Control Act making the provisions of Section 310 of the corporations Act applicable or relevant for determining the date of construction, it is not possible to hold that the provisions of Section 310 of the Corporations Act either apply, or, are required to be taken into consideration in order to determine whether Parts II and III of the Rent control Act apply to a building constructed after 1st August 1957 in the areas specified in the schedule to the Act. As such it is also not possible to hold that Sub-section (2) of Section 2 of the Rent Control Act is governed by Section 310 of the Corporations Act. ( 15 ) IN the case of two local statutes intended to serve two different objects governing the same subject-matter viz. As such it is also not possible to hold that Sub-section (2) of Section 2 of the Rent Control Act is governed by Section 310 of the Corporations Act. ( 15 ) IN the case of two local statutes intended to serve two different objects governing the same subject-matter viz. , the building, as long as either of the enactments does not provide that the provisions contained in the other enactment will govern the situation or atleast there is an indication in the provisions contained in either of the statutes that the provisions contained in one statute can be applied to the provisions contained in the other statute; both the enactments cannot either be read together or held that one governs the other. Of course, if the provisions contained in both the enactments are intended to serve and achieve the same or similar objects, it would be necessary to read the provisions contained in both the enactments harmoniously so as to avoid conflict. But, in a case where both the enactments cover different fields or topics and serve different objects, as in the instant case, as already pointed out above, the provisions of both the enactments cannot be read together. As such the provisions contained in Section 310 of the corporations Act cannot be read into or held to control, the provisions contained in Sub-section (2) of Section 2 of the Rent Control Act. If it is held that the provisions contained in Section 310 of the Corporations Act govern the provisions of Section 2 (2) of the Rent Control Act and the date of granting permission by the Commissioner of the Corporation to occupy or use the building or the date of assessment of the building whichever is earlier is taken as the date of construction of the building for the purpose of Sub-section (2) of Section 2 of the Rent Control act, it would completely defeat the objects of the Karnataka Rent Control Act as to control of rents and eviction and leasing of buildings and it would also result in postponing the application of Parts II and III of the Rent Control Act to the buildings constructed after 1-8-1957 in the areas specified in Schedule- I to the Rent Control Act. Therefore, it is not possible to accept the contentions of the learned Counsel for the appellant based on Section 310 of the Karnataka municipal Corporations Act, 1976. ( 16 ) IT is next contended that the owner of the building was not examined in the case and he remained absent therefore the finding recorded is without any evidence on record. In this regard, it is relevant to notice that the Revenue Inspector attached to the Rent Controller investigated into the matter and obtained the records relating to the completion of the building as reported by the owner. On the basis of that, the proceeding was initiated. The petitioner had the opportunity to meet this aspect of the matter also. Nothing prevented him to adduce evidence to prove that the premises in question was not constructed on 1-10-1976 or that it was not five years old on the date. e. , 12-11-1981, when it was let out to him, therefore, Parts II and III of the Rent Control act were not attracted; but the petitioner failed to adduce any such evidence. Therefore, the fact that the owner of the building after putting in appearance in the proceeding did not continue to appear cannot be held to have affected the petitioner or the proceeding in question in any manner. ( 17 ) FOR the reasons stated above, Point No. 1 is answered in the affirmative and Point No. 2 is answered in the negative. Consequently, we do not find any ground to admit the appeal. It is accordingly rejected. ( 18 ) TIME granted to the appellant expires on 30th April 1990. In the facts and circumstances of the case, the appellant is granted time till the end of June 1990 to vacate and deliver vacant possession of the premises to the Rent Controller with keys and without causing any damage to the premises and on a condition that he continues to pay the rent which he was paying hitherto, to the 3rd respondent during the aforesaid period.