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2002 DIGILAW 716 (KAR)

K. N. SARASWATHAMMA v. SARALA

2002-11-22

A.V.SRINIVASA REDDY

body2002
SRINIVASA REDDY, J. ( 1 ) IN this petition filed under (the repealed Act for short) the petitioner-landlord prays for setting aside the order dated 6. 11. 1998 passed in h. R. C. No. 1493/96 by the XVIIIth Addl. Small Causes Judge, bangalore, dismissing the eviction petition filed under Section 21 (1) (h) of the Act. ( 2 ) THE facts necessary for the disposal of the revision, briefly stated, are as under: the landlady filed the petition under Section 21 (1) (h) of the repealed Act for eviction of the respondent on the ground that the accommodation that was available with her was not sufficient for her requirement. The son of the petitioner examined himself as p. W. 1. The respondent examined herself but did not submit to cross-examination by the petitioner. The Court-below came to the conclusion that the requirement of the petitioner is reasonable but proceeded to dismiss the petition on the ground of lack of bonafides on the part of the petitioner. The conclusion reached by the Courtbelow on the question of bonafides was accentuated by the fact that the first and third floor portions fell vacant even before filing of the petition and the petitioner failed to occupy them despite her need to have additional accommodation. Thus, though the Courtbelow concurred with the petitioner on the question on reasonable requirement of the petition premises it, nevertheless, dismissed the eviction petition. Aggrieved by the said order, the present revision is filed. ( 3 ) I have heard the learned Counsel on both sides. ( 4 ) DURING the pendency of the revision in this Court, the old act has come to be replaced by The Karnataka Rent Act, 1999 (the act for short) which has in its wake brought about substantial changes in the matter of regulation of eviction. The rigour of proof that a landlord has to discharge for getting an order of eviction against a tenant on any of the grounds available to him under section 27 of the Act has been considerably whittled down in the act, by incorporation of a legal fiction in Explanation I to Section 27. By Explanation I to Section 27 the Act mandates that the Court shall presume that the premises are so required, without the landlord being required to prove the genuineness of the requirement. By Explanation I to Section 27 the Act mandates that the Court shall presume that the premises are so required, without the landlord being required to prove the genuineness of the requirement. The provisions of the New Act, while introducing this legal fiction in favour of the landlord, has imposed the only onus on him of proving that he does not posses a more suitable accommodation for his occupation. Thus, the need of the landlord to prove that the premises is required by him for his own bonafide use and occupation has been totally done away with by explanation I Section 27 of the act by introduction of this legal fiction. I would be making a reference to Section 27 (2) (r) of the Act in the course of this order. I would be required to examine the relative merits of this revision petition only with reference to the provisions contained in the Act as the Old Act has been repealed in its entirety. Chapter -VI of the act lays down the several grounds under which the landlord can recover possession of the premises. Section 27 (2) (r) covers the ground of occupation for self or for any member of his family. The relevant provision reads: 27. Protection of tenants against eviction - (1) notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or high Court in favour of the landlord against a tenant, save as provided in sub - section (2 ). (2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (r) that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation. (r) that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation. Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall lie under this clause unless a period of one year has elapsed from the date of the acquisition. Explanation I - For the purposes of this clause and Sections 28 to 31 - (I) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required; (Underlining is mine) (II) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law. Explanation II - For the purposes of this clause and Section 28 to 31 an occupation by the landlord of any part of a building of which any premises let out by him forms a part shall not disentitle him to recover possession of such premises. ( 5 ) FROM a conjoint reading of Section 27 (2) (r) and Explanation i it becomes clear that the Act creates a legal presumption in favour of the landlord that the premises is in fact required by him for occupation for himself or for any member of his family dependent on him. In the light of presumption that is available to a landlord under explanation I to Section 27 of the Act, there could be no challenge to the requirement of the premises by the landlord for his own use and occupation or for any member of his family if he is the owner thereof. More over in the present case the Courtbelow itself has accepted the case of the petitioner -landlord that the premises were reasonable required by her for her occupation. The fact also remains that as of now the petitioner does not have any other alternative accommodation. More over in the present case the Courtbelow itself has accepted the case of the petitioner -landlord that the premises were reasonable required by her for her occupation. The fact also remains that as of now the petitioner does not have any other alternative accommodation. The question of bonafides is no longer a criterion for determining the fate of a petition for eviction as the Act has done away with the need to establish the bonafides. The case set up by the petitioner before the Court-below was that the petition premises is required for the occupation of herself and six other family members. She has also spelt out the reason why she had filed an eviction petition against the tenants occupying the other portion of the schedule premises. ( 6 ) LEARNED Counsel for the respondent Mr. R. B. Sadasivappa relied on the ruling of the Apex Court in AMARJIT SINGH vs khatoon QUAMARAIN1, wherein the Apex Court has held that the landlady would not be entitled to the relief of eviction where it is shown that any other premises owned by the landlady fell vacant during the pendency of the eviction proceedings and the landlady did not prefer to occupy the same. The Apex Court observed that in such an event it cannot be said that the landlady had no other reasonably suitable accommodation and that in those circumstances it must be held that the landlady is not entitled to an order of eviction. In the same decision which is also relied upon by Mr. R. B. Sadashivappa, the Apex Court had occasion to deal with the question of bonafide requirement. Commenting on what does not constitute bonafide requirement, the Apex Court observed: If the landlady or the landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property be letting it out for higher income, she would be disentitled to evict her tenant on ground of her need. The philosophy and principle of rent restriction law have nothing to do with the private exploitation of property by the owners of the property inderogation of the tenants need of protection from eviction in a society of shortage of accommodation. The philosophy and principle of rent restriction law have nothing to do with the private exploitation of property by the owners of the property inderogation of the tenants need of protection from eviction in a society of shortage of accommodation. ( 7 ) BUT, then, there has been such a drastic shift in the philosophy and principle of rental laws as perceived by the State that it finds expression in the Act in the form of various provisions which lean in favour of the landlord and the object intended to be achieved by such a drastic shift in rental laws is attributed by the Legislature to the immediate need to overcome the acute shortage in housing. The argument advanced in support of the new legislation being that such liberal laws would over a period of time encourage people to invest in housing which in turn would take care of the unethical exploitation of the tenants by the landlords as the supply as a result of increased investments in housing would more than meet the demand for housing. ( 8 ) IN STATE OF KERALA vs MATHAI VERCHESE2,the Apex court had occasion to caution how the courts should avoid resorting to judicial legislation, in the following terms: The Court can merely interpret a provision so as to make explicit the intention of the legislature. It cannot rewrite, recast or redesign the provision since the power to legislate has not been conferred on the court. Proceeding further in the same vein, the Apex Court observed: The Court should make a purposeful interpretation so as to effectuate the intention of the legislature and not a purposeless one in order to defeat the intention of the legislators wholly or in part. If the purpose and object behind the enactment of the new legislation is to overcome the shortage in housing by having a more liberalised approach and doing away with the need to provide stringent proof in support of the grounds for eviction, the Court bound as it is to give a purposeful interpretation as to effectuate the intention of the legislature and not a purposeless one in order to defeat the intention of the legislature, can not go into the question of bonafides as it is no longer a criterion under the present act for deciding the issue in an eviction petition filed by the landlord for her own requirement. Therefore, the decision relied upon by the learned Counsel for the respondent is not in any way helpful to him because of the changes effected in law. 8. The petitioner having established her requirement of the premises and that as of now she does not possess any suitable accommodation, she is entitled to an order of eviction under Section 27 (2) (r) of the Act. ( 9 ) IN the result, the Revision Petition is allowed and the respondent-tenant is given three months time to vacate the petition premises. --- *** --- .