INDIAN OIL CORPORATION LIMITED v. LAKSHMI VARMA — 1996 DIGILAW 213 (KAR)

A. J. SADASHIVA, J. ( 1 ) THIS revision petition is filed under Section 50 (1) of the Karnataka Rent Control Act, 1961 (for short 'the Act'), calling in question the correctness of the order dated December 8, 1992, passed by the learned Additional Small Causes Judge (SCCH: 10), Bangalore, in H. R. C. No. 94 of 1991 directing the eviction of the revision petitioners under Section 21 (1) (1) and (h) of the Act. ( 2 ) THE revision petitioners were respondents and the respondent was the petitioner in the Court below. In this petition they will be hereinafter referred to in accordance with their status in the Court below. ( 3 ) A vacant land bearing No. 6-A, Richmond Road, Bangalore-560 025, admeasuring 8400 sq. ft. or thereabouts was let-out by the petitioner to the respondents for the purpose of erecting a petrol pump or high speed diesel oil pump and servicing and lubricating stations, and for using the said land as oil and/or petroleum depot for storage and use of oil, petroleum and other products under a registered lease deed dated October 21, 1970, initially for a period of ten years and renewable at the option of the lessee, for extension of lease by a period of another ten years. The lease period including the extended period came to an end on the expiry of October 21, 1990. Clause (j) of the said deed provides for delivery of vacant possession of the demised premises by the tenants to the landlord and it reads as follows:" (J) The lessee shall at the expiration or sooner determination of the said term yield up and deliver peaceful and vacant possession of the demised premises and in the event of any installation, erection, alteration or substitution having been made thereon or underneath the surface restore the same to their original state and condition in which the same has been demised. All buildings, structures, installations, fittings, fixtures and erections of whatsoever kind and nature whether in, upon or underneath the demised premises shall during the said term and at the expiry thereof entirely belong to and revert to the lessee who shall be entitled to take away the same provided that the demised are restored in their original state and condition. . . ". . . ". ( 4 ) THE demised premises under the lease deed is described in the schedule annexed to the said deed and it reads as follows:"all that piece or parcel of vacant land situate in the District of Bangalore, Taluk Bangalore, Village in the registration Sub-District of Bangalore, District of formerly of tenure and now of Mrs. Laxmi Varma and bearing non-agricultural Municipal No. 6-A, Hissa No. and admeasuring 8400 Sq. ft. or thereabouts and bounded on the North by the land Municipal No. 7, on the East by municipal No. 7, on the South by the Richmond Road, and on the West by vacant land bearing Municipal No. 6, which said piece of land is shown on the plan thereto hereto annexed and thereon surrounded by a Red Boundary Line and was formerly and is now in the occupation of the lessors". ( 5 ) THE agreed rent for the demised premises is initially at Rs. 700/- per month for a period of first five years and Rs. 800/- per month for the next five years. As stated supra, the said lease came to be renewed after the expiry of ten years on the same terms and conditions, and the lease came to an end on the expiry of October 21, 1990. ( 6 ) THAT after the expiry of the lease period the petitioner caused a notice issued to the respondents calling upon them to vacate and hand over vacant possession of the demised premises to her as she intends to put-up construction on the said land and to utilise it for her personal occupation and also for the occupation of her family members. In view of the non-compliance of the demand by the respondents the petitioner filed an eviction application under Section 21 (1) (h) and (1) of the Act. It is stated in the petition that she has been demanding vacant possession of the schedule property from the respondents after the expiry of the lease period. The respondents instead of handing over possession are demanding further renewal of the lease for which she is not agreeable. The petitioner has further stated in her petition that she owns the schedule property and other properties, by the security of which she can raise the required finance for putting up of a building on the schedule property. The respondents instead of handing over possession are demanding further renewal of the lease for which she is not agreeable. The petitioner has further stated in her petition that she owns the schedule property and other properties, by the security of which she can raise the required finance for putting up of a building on the schedule property. The petitioner desires to put-up a building of her own on the schedule property after getting the building licence from the corporation of the City of Bangalore. Thus the petitioner has got financial ability to put-up a building on the schedule property as per the plan to be sanctioned and the said building proposed to be constructed is required bona fide and reasonably for her use and also for the use of the members of her family. She has stated that she is a Reader in English in A. P. S. College of Arts and science. She has decided to take voluntary retirement in order to commence coaching classes in English for which she requires a separate and independent premises. She has also stated that her husband Sri Ranghunandan is a qualified Engineer and has obtained Diploma in Business Administration and also a certificate course in Industrial Engineering from Germany and has got experience in industrial development for more than twenty years and he is having his own small scale industry at peenya Industrial Estate. He is also associated with Bit technology (S) Private Limited, Singapore, and for the said purpose he requires a separate premises to establish his office. She has also stated that her daughter Sapna Raghunandan is studying in B. Sc. Computer Science and she wants to do post-Graduate Diploma in Computer Science from NIIT and she is interested in establishing a firm dealing with Software. The petitioner has also pleaded greater hardship in case of refusal to grant an order of eviction. ( 7 ) THE respondents having entered appearance filed their objections inter alia denying the case of the petitioner in toto. They have characterised the requirement of the petitioner as hollow and without substance in addition to pleading that the respondents would suffer greater hardship than the petitioner if an order of eviction is made. Accordingly, they pray for dismissal of the petition. They have characterised the requirement of the petitioner as hollow and without substance in addition to pleading that the respondents would suffer greater hardship than the petitioner if an order of eviction is made. Accordingly, they pray for dismissal of the petition. ( 8 ) THE learned trial Judge after receiving evidence and hearing the parties granted the application of the petitioner on both the counts. The learned trial Judge has held that the demised premises is a vacant land and the rent is being paid only in respect of the vacant land and by virtue of the agreement the respondents shall remove all their structures, erections and fixtures and shall bring the demised premises into its original position. The learned Judge has recorded a finding that the petitioner has also established a case for the bona fide and reasonable occupation of the building by her and she would suffer greater hardship if an order of eviction is not made. Accordingly he allowed the petition and directed the eviction of the respondents by his order dated December 8, 1992. It is this order which is called in question in this petition. ( 9 ) SRI C. Ravindran, learned Counsel appearing for the respondents has raised three contentions, namely, that the schedule property is not a vacant land as defined under the provisions of the Act and therefore an application under Section 21 (1)0) of the Act is not maintainable and if at all the petitioner seeks any relief it must be under Section 21 (1) (j) of the Act; He has next contended that the bona fide and reasonable requirement of the petitioner, if read in the light of her evidence would not stand the judicial scrutiny; The case of the petitioner is also unacceptable for her failure to examine her husband who is the best witness in respect of his business. He further contended that the Court below has failed to consider the question of relative hardship in the light of the public inconvenience likely to be caused if an order of eviction is granted and he assails the order for non-consideration of the case of the parties for partial eviction as envisaged under Section 21 (4) of the Act. ( 10 ) TO begin with, I shall deal with this last contention as the same could be disposed of without entering into much discussion. ( 10 ) TO begin with, I shall deal with this last contention as the same could be disposed of without entering into much discussion. It is well established that the Courts are required to consider the case of partial eviction only where there is an order under section 21 (1) (h) of the Act. The principal ground for eviction of the respondents in this case is not 21 (1) (h) of the Act, but section 21 (1) (1) of the Act. If the petitioner establishes her case under Section 21 (1) (1) of the Act there is no need to consider the case of partial eviction under Section 21 (4) of the Act. In view of the petitioner having established her case under Section 21 (1) (1) of the Act for the reasons to be given hereinafter, the contention of Sri C. Ravindran learned Counsel appearing for the petitioners that the order under revision is unsustainable for non-consideration of the case of the respondents for partial eviction as envisaged under Section 21 (4) of the Act shall fail and accordingly it is rejected. ( 11 ) SRI C. Ravindran has next contended that the petitioner/respondent is not entitled for any relief under Section 21 (1) (1) of the Act, in view of the change of nature and character of the petition schedule premises. He admits for having taken the vacant land on lease. However, he contends, but by virtue of the agreement he has erected certain structures, installed machineries and thus the petition schedule premises is not a vacant land for the purpose of the Act and therefore the remedy available to the petitioner is not under Section 21 (1) (1) of the Act but under Section 21 (1) (j) of the Act. The learned trial Judge following the decision of this Court has rejected the contention of the respondents. I have gone through the objection filed by the respondents. Such a plea is not raised in their objections. In the absence of any pleading it is not just and proper for the respondents to contend that the schedule premises is not a vacant land but a land with building and therefore not attracted by Section 21 (1) (1) of the Act. Even otherwise, the contention of sri C. Ravindran is unacceptable in view of the decision of this court and that of the Apex Court. Even otherwise, the contention of sri C. Ravindran is unacceptable in view of the decision of this court and that of the Apex Court. ( 12 ) IN Krishnapasuba Rao Kundapur (dead) by L. Rs. and another v Dattatraya Krishnaji Karani , the Supremo Court considering a similar question arising from the Bombay Rents, hotel and Lodging House Rates Control Act, has held as follows:"clause 2 of the rent note dated 28th August, 1943, covered the entire City Survey No. 1577/17, but we are now concerned only with the letting of the portion of the property excluding the shop on the north-eastern corner. The rent note stated that the subject-matter of this letting for which the rent was payable by the tenant was open land with a "khatta". It is common case before us that "khatta" is not a building. Clause 1 stated that on a portion of the land the tenant had built a shed of corrugated iron sheets at his own cost. Clause 5 stated that on the termination of the tenancy the tenant would remove the structures raised by him including the timber, the pillars, the iron materials and the stones used for paving the floor. On a plain reading of the lease, it is clear that the subject-matter of the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease in a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See: Messrs. Bhatia co-operative Housing Society Limited v D. C. Patel and Dr. K. A. Dhairyawan and Others v J. R. Thakur and Others. In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at his own cost before the execution of the rent note. The building belonged to the tenant and was not the subject matter of the letting. The land only was the subject-matter of the letting. Consequently, the premises are land within the meaning of Section 13 (1) (i)". The building on the land was constructed by the tenant at his own cost before the execution of the rent note. The building belonged to the tenant and was not the subject matter of the letting. The land only was the subject-matter of the letting. Consequently, the premises are land within the meaning of Section 13 (1) (i)". The facts in this case are not different from the facts in the case before the Supreme Court. It is clear from the agreement of lease, what was demised was a vacant land; The rent agreed was in respect of the vacant land. The tenant was allowed to put-up structures after he was put in possession with a condition that he shall remove all these structures, fixtures, etc. , at the time of expiry of the lease. It is specifically stated that:". . . . All buildings, structures, installations, fittings, fixtures and erections of whatsoever kind and nature whether in, upon or underneath the demised premises shall during the said term and at the expiry thereof entirely belong to and revert to the lessee who shall be entitled to take away the same provided that the demised premises are restored in their original state and condition". In view of the facts stated above, it is clear that the demised premises which is the subject-matter of the petition is only a land and not a land with building and therefore attracted by section 21 (1) (1) of the Act. ( 13 ) SRI C. Ravindran, next contended that the petitioner has not placed any material in regard to the resources so construct a building in support of her case and therefore she has failed to establish the requirement of Section 21 (1) (1) of the Act. In view of this contention it is necessary to note Section 21 (1) (1) of the act which reads as under:"21 (1) (1 ). That, where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon". That, where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon". The requirement of the provision is the petition premises shall be a vacant land and the landlord reasonably and bona fide requires the same for erection of a new building and the local authority or other competent authority has approved or permitted the landlord to build thereon. In view of the decision of the Supreme Court referred to above, I have already recorded a finding that the petition premises is a vacant land; That, the period of lease has already been expired; The petitioner wants to put-up construction to provide a class room for her and separate portion for her husband to establish his office and another portion for her daughters to establish their Office. It is no doubt true that the requirement of her daughters may not be imminent. But it is a future requirement. While undertaking a construction it is always proper and reasonable to have the future in view and to provide all facilities and amenities that may be necessary for the better living of ones own kiths and kins. In this view of the matter, it cannot be said that future requirement of the daughters of the petitioner is either unreasonable or lacks bona fides. The provision no where requires the landlord to establish that he or she has means to put-up construction. While considering the bona fide and reasonable requirement of putting up a new construction, the question of financial resources would naturally arise for consideration. But it is to be remembered that the petitioner is constructing either a building or a complex as the case may be, not only for herself but she will provide for others also. When such is the case, naturally there will be demand for the offices and for other establishments. In the present days it is not uncommon in Bangalore City for the builders to get advance at the time of commencement of construction. Hence, money is no problem for the petitioner to putup construction particularly in view of her statement that she can secure advances on the security of the present petition property and her other properties. In the present days it is not uncommon in Bangalore City for the builders to get advance at the time of commencement of construction. Hence, money is no problem for the petitioner to putup construction particularly in view of her statement that she can secure advances on the security of the present petition property and her other properties. There is no dispute that the corporation of City of Bangalore and the Town Planning authority have sanctioned the plan for construction of the building on the petition schedule premises. The said plan is produced at Exhibit P-7. It is therefore clear that the petitioner has established the requirement of Section 21 (1) (1) of the Act. ( 14 ) THIS Court dealing with a similar situation in Jivaji @ Balasaheb Venkatesh Anikhindi v Sadashiva Rao Ramachandra rao Pote and Others , has held that:"34. In the instant case, the premises involved is an open site. The landlords have also sought for eviction of the tenant under Section 21 (1) (h) of the Act. Therefore, the following question arises for consideration: "if the landlord seeks possession of an open site let out to a tenant governed by the provisions of the Act on the ground that he reasonably and bona fide requires the schedule premises open site for the purpose of erection of a new building for his own use or occupation or, as in the instant case, for the purpose of running a lodging house to augment his income, whether the provisions of Section 21 (1) (1) or 21 (1) (h) of the Act are attracted ?"35. The Act makes a specific provision in clause (1) of subsection (1) of Section 21 of the Act for eviction of a tenant from the premises which is a land not used for agricultural purposes, by the landlord if he reasonably and bona fide requires it for the erection of a new building. Therefore, in such a case, the landlord is required to satisfy the requirement of clause (1) of Section 21 (1) of the Act. Under clause (1) it is not necessary for the landlord to prove that the new building proposed to be erected by him is required for his own use and occupation. Therefore, in such a case, the landlord is required to satisfy the requirement of clause (1) of Section 21 (1) of the Act. Under clause (1) it is not necessary for the landlord to prove that the new building proposed to be erected by him is required for his own use and occupation. What he is required to prove is that he reasonably and bona fide requires the premises, which is an open site, for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon. After such construction he may either occupy himself or use it in any manner, or let it out as per law. Whereas if the landlord requires possession of the premises which is an open site not for erecting a new building but for his own use and occupation, he has to make out a ground falling under section 21 (1) (h) of the Act. It may be possible that the landlord may require the open site for his own use and occupation without erecting any building on it. Therefore, in such a case, merely because the premises is an open site, he is not required to satisfy clause (1) of sub-section (1) of Section 21 of the Act. It is only when the landlord requires possession of the premises which is an open site for the purpose of erecting a new building whether he requires the building erected on the open site for his own use and occupation or for some other purpose. In any case, it is clause (1) of section 21 (1) that is attracted and not clause (h) of Section 21 (1 ). Therefore, he is required to satisfy clause (1) of section 21 (1) of the Act. 36. In the instant case, as already pointed out, the landlords have sought for eviction of the tenant on the ground that they required the schedule premises which is an open site for erecting a new building. Therefore, it is not clause (h) but it is clause (1) of sub-section (1) of Section 21 of the Act that is attracted. 36. In the instant case, as already pointed out, the landlords have sought for eviction of the tenant on the ground that they required the schedule premises which is an open site for erecting a new building. Therefore, it is not clause (h) but it is clause (1) of sub-section (1) of Section 21 of the Act that is attracted. Therefore, the landlords are not entitled to seek eviction under clause (h) of sub-section (1) of Section 21 of the Act for the purpose of erection of a new building without satisfying clause (1) of sub-section (1) of Section 21 of the Act. No doubt, the Court below has not gone into this aspect of the matter. However, it has rejected the prayer made by the landlords for eviction of the tenant under Section 21 (1) (h) of the Act. Therefore, the ultimate conclusion of the learned District Judge rejecting the prayer for eviction under Section 21 (1) (h) of the Act is not required to be disturbed. Accordingly Point No. 2 is answered in the negative for the reasons given by us and not for the reasons given by the learned District Judge". In view of the aforesaid reasons, the contention of Sri C. Ravindran, that the petitioner has failed to establish her case under 21 (1) (1) of the Act is rejected. ( 15 ) SRI C. Ravindran's next contention that the petitioner has failed to establish her case under Section 21 (1) (h) of the Act. At the outset, it may be stated that where there is an order of eviction under Section 21 (1) (1) of the Act, the ground under section 21 (1) (h) of the Act pales into insignificance, that is what this Court has held in Jivaji's case, supra. The reason being where there is an order of eviction under Section 2l (1) (1) of the act to enable the landlord to construct a building on the vacant land it is for the landlord as to how he or she should utilise the said construction. It may be used by the landlord exclusively for his/her occupation or it may be let-out in its entirity or a part may be utilised for his personal use and the remaining part may be let-out. It may be used by the landlord exclusively for his/her occupation or it may be let-out in its entirity or a part may be utilised for his personal use and the remaining part may be let-out. In those circumstances even if it is held that the petitioner has failed to establish her case under Section 21 (1) (h) of the Act, there cannot be any bar on the petitioner to use the building after construction to run coaching classes and allow he husband to establish his office and her children to establish their establishments. However, the learned Judge after considering the evidence produced by the parties has specifically recorded a finding that the petitioner also bona fide and reasonably require the petition premises for the personal use and occupation of herself and the members of her family after the construction of a building. The contention of Sri C. Ravindran that the petitioner is a reader and she is likely to become a Professor or a Principal in due course and therefore her desire to take voluntary retirement to start coaching classes does not stand to reason and is unacceptable. There is no general principle as such which guides or controls the human instinct. It is for each individual to take his or her own decision in order to reach his or her instinct. It is not uncommon and in fact there are so many illustrations where the persons in occupation of plump posts having resigned to go after a mirage. It is for the individual to take decision. If such an individual succeeds he will take fruits and if he fails he will reap consequences. It is not for the tenant to say as to how the landlord should take decisions and adjust himself or herself to the situations in life. He has also contested the case of the petitioner on the ground of the likely profit that may be received by the petitioner from running teaching classes. In my considered view all these factors are irrelevant to consider the bona fide requirement of the petitioner of the petition premises. The bona fides can be rejected only if the Court holds that her desire to start coaching classes is actuated by oblique motives. No suggestion has been made to the petitioner during her cross-examination that her intention is actuated by oblique motives. The bona fides can be rejected only if the Court holds that her desire to start coaching classes is actuated by oblique motives. No suggestion has been made to the petitioner during her cross-examination that her intention is actuated by oblique motives. The same is applicable to the need of her husband also. It is not in dispute that the husband of the petitioner is a qualified Engineer of certain standing. It is the case of the respondents that the husband of the petitioner could as well have his office in his residence. The first question that may be asked in such circumstances is, at whose cost? It is too much for the tenants to compel the respondent-landlord to have his residential and non-residential together and to suffer the usufructs of the business along with the members of the family. If there is any desire on the part of the husband of the petitioner to have his own office at a central place it cannot be said it is actuated by mala fides, particularly in the present days where the industrial atmosphere in Bangalore is being revolutionalised on account of the policy of liberalisation and the industrial parks are being established. ( 16 ) FOR the reasons aforesaid, this petition fails and accordingly it is dismissed with no orders as to costs. In the circumstances of the case, the petitioners are granted a period of nine months from today to vacate and hand over possession of the petition schedule premises subject to the revision petitioners-tenants continue to pay rents as and when it falls due. ( 17 ) IT is stated that, the possession of the premises is taken over by the petitioner/decree-holder on 12-3-1996, in the Execution Proceedings No. 1211 of 1996, in view of the dismissal of this petition for default. At the time of restoration of this petition it was made clear to the petitioner-landlord that, she should not interfere with the business of the respondents/ tenants. The delivery was not acted upon, all the erections, fixtures and storage tank were not removed. Therefore, it is agreed between the parties that they would not act upon the said delivery Mahazar. The respondent is permitted to report to the Executing Court not to enter satisfaction of the decree and to recall the delivery warrant in view of the order. --- *** --- .