Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 188 (KAR)

K. Thimmegowda v. B. S. Nagaraj Rao

2008-03-18

N.KUMAR

body2008
JUDGMENT Kumar, J. This is the defendant’s second appeal against the concurrent findings recorded by the Courts below that the plinth area of the schedule property is more than 14 Sq.Meters and therefore, the Karnataka Rent Act; 1999 is not applicable and hence, the defendant is liable to be ejected from the schedule property. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The subject matter of the suit is a shop premises bearing No.6 comprised in Sathyaprakash building/complex bearing K.Ho.4488 and A.R.No.5693, situated at Bus stand road, Hassan City. 4. The plaintiff is the owner of the schedule property. The defendant is a tenant of the schedule premises. A lease deed came to lie entered into between the parties on 1.6.1987. The rent was fixed at Rs.600/-. It was a monthly tenancy. The plaintiff filed HRC No.3 7/1989 under the provisions of the Karnataka Rent Control Act, 1961 for eviction of the defendant. In view of Section 31 of the Old Act being restored by virtue of pronouncement of the Supreme Court, he withdrew the said eviction petition. The plaintiff got issued” a legal notice dated 11.9.2000 under Section 106 of the Transfer of Property Act terminating the tenancy. As the defendant did not vacate the premises, he has filed the present suit” for ejectment on 16.10.2000. 5. The defendant contested the claim. He contended that he is tenant since 1975 by virtue of a lease deed dated 20.12.1975 on a monthly rent of Rs.400/- and the duration of lease was five years and therefore, he is not tenant from 1.6.1987 as contended. Subsequently, the rent was enhanced to Rs.600/-. As .the schedule premises leased is less than 14 Sq.Meters, the Karnataka Rent Act, 1999 is attracted and the suit filed is not maintainable. 6. The trial Court framed as many as five issues. The plaintiff examined himself as PW-l and examined a witness as PW..2 and produced 12 documents which are marked as Exs.Pl to P12. The Defendant examined himself as DW-land examined a witness as DW-2 and produced one document, which is marked as EX.Dl. 7. At the instance of the parties, the Court appointed a Commissioner who has submitted his report, a sketch and a mahazar which are marked as Exs.Cl to C3. The Defendant examined himself as DW-land examined a witness as DW-2 and produced one document, which is marked as EX.Dl. 7. At the instance of the parties, the Court appointed a Commissioner who has submitted his report, a sketch and a mahazar which are marked as Exs.Cl to C3. Both the parties have not filed any objections to the Commissioner’s report and the measurement given by the Commissioner in his report is accepted. 8. The trial Court on appreciation of the aforesaid oral and documentary evidence on record and also the Commissioner’s report held that the plinth area of the schedule premises is more than 14 Sq. Meters. Therefore, Karnataka Rent Act, 1999 is not attracted. As the tenancy of the defendant is duly terminated, the defendant has no right to continue in possession and therefore, it passed a decree for ejectment. Aggrieved by the said judgment and decree, the defendant preferred a regular appeal. The lower appellate Court on re-appreciation of entire evidence on record and after formulating the points for consideration has agreed with findings recorded by the trial Court and dismissed the appeal. Aggrieved by these two concurrent findings, the defendant is in second appeal. 9. The learned counsel for the appellant assailing the impugned judgment and decree of the Courts below urged only one ground, i.e., though the plinth area of the schedule premises is in excess of 14 Sq. Meters, the carpet area of the schedule premises is less than 14 Sq. Meters and therefore, the Karnataka Rent Act, 1999 is attracted and the suit of the plaintiff is not maintainable. In support of his contention, he relied on the judgment of this Court in P. R. Radhakrishna Setty and Sons Co. Vs. Satish Babu, where it is has been held as under: “What is important is “plinth area used for commercial purpose”. The word “used” assumes importance. Therefore, only the area used for commercial purpose shall be taken into consideration. In such event, walls cannot be used and as such, their measurements need not be taken”. 10. Per contra, the learned Senior Counsel Sri Padubidri Raghavendra Rao for the respondent contended that once it is held that the plinth area is more than 14 Sq. Therefore, only the area used for commercial purpose shall be taken into consideration. In such event, walls cannot be used and as such, their measurements need not be taken”. 10. Per contra, the learned Senior Counsel Sri Padubidri Raghavendra Rao for the respondent contended that once it is held that the plinth area is more than 14 Sq. Meters, the suit is maintainable and the Courts below committed no illegality in passing the impugned judgment and decree and relied upon the judgment of this Court in SMT.P. VATSALA UPADHYA AND OTHERS vs SRlKANTH KESHA V RAIKAR, where it has been held as under: “10…….Clause (g) of Sub-section (3) of Section 2 which is relevant for the purposes of considering the question involved in these petitions states that the provisions of the New Act do not apply to any premises used for non-residential purpose having a plinth area of not exceeding 14 Sq. meters used for commercial purpose. It is not in dispute that the tenants are making use of the shops in question for commercial purpose. In my view any 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. What is important is the purpose or the making use of the shops in question for purposes of determining whether it is residential or non-residential.” 11. In order to appreciate this contention, it is necessary to see the wordings of Section 2(3 )(g) of the Act. “Sub-Section (3) of Section-2- Nothing contained in this Act shall apply, (g) to any premises used for non-residential purpose but excluding premises having a plinth area of not, exceeding fourteen square meters used for commercial purpose.” 12. The word “premises” is defined under Section 3 (1) as under: premises means- (i) a building: as defined under clause (a); (ii) any land not used for agricultural purpose. 13. The “building” is defined in clause (a) as under: 3 (a). The word “premises” is defined under Section 3 (1) as under: premises means- (i) a building: as defined under clause (a); (ii) any land not used for agricultural purpose. 13. The “building” is defined in clause (a) as under: 3 (a). “building” means any building or hut or part of a building or hut other than a farmhouse, let or to be let separately and includes, (i) the garden, grounds and out-houses, if any appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut or part of building or hut.; (ii) any furniture or equipment supplied by the landlord for the use in such building or hut or part of a building or hut; (iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or a lodging house.” 14. The definition of premises is clear. Both the building and the land fall within the definition of the premises under the Act. However, in so far as the land is concerned, if it is used for agricultural purpose, then, it would not be a premises under the Act. It is only the land not used for agricultural purposes is premises under the Act. The word ‘building’ is also defined. But, a farmhouse, which is normally constructed in an agricultural land is not included in the definition of the word ‘building’. Therefore, agricultural land and farmhouse do not fall within the definition of the premises, under the Act. 15. Again ‘premises’ is broadly classified as residential and nonresidential. Residential purpose, residential user and purpose of residence is defined, which includes letting out the premises for running a public institution. The public institution is also defined under the Act. Therefore, the premises which is not used for residential purpose which is let out for running a public institution, though not used for residential purpose are all governed by this Act, subject to Section 2( e). However, Section 2(g) of the Act makes it clear that nothing contained in the Act shall apply to any premises used for non-residential purpose. That is, if a premises is used for non-residential purpose, then, the Act is not applicable to such premises. This is the general rule. However, Section 2(g) of the Act makes it clear that nothing contained in the Act shall apply to any premises used for non-residential purpose. That is, if a premises is used for non-residential purpose, then, the Act is not applicable to such premises. This is the general rule. However, an exception is carved out to this general rule. That is, if a non-residential premises is used for commercial purpose and its plinth area is less than 14 Sq.Metres, the Act is made applicable. In other words, the exemption from the application of the Act is for a non-residential premises, having a plinth area exceeding 14 Sq.Metres and used for commercial purpose. The user of the premises decides the application of the Act. If the premises is used for non-residential purpose, the Act is not applicable. If the non-residential premises is used for commercial purpose and the plinth area of the said non-commercial premises exceeds 14 Sq. Metres, then also, the Act is not applicable. The Act IS made applicable to a non-residential premises used for commercial purpose having a plinth area of less than 14 Sq.Metres. Therefore the meaning of plinth area assumes importance. 16. The word plinth is defined in various dictionaries. P.Ramanatha Iyer Concise Law Dictionary: “plinth means- part of a wall or structure between ground level and the level of the lower floor of a building above ground level” Random House Dictionary of the English Language: “A slab-like member beneath the base of a . column or pier; a square base or a lower block, as of a pedestal; a projecting course of stones at the base of a wall; earth table.” The Chambers Dictionary: ‘plinth - the square block under the base of a column; a block serving as a pedestal; a flat-faced projecting base at the bottom of a wall. The Oxford Dictionary: ‘plinth’ - a block of stone on which a column or statue stands. The Longman Dictionary: ‘plinth’ - a square block usually made of stone, that is used as the base for a pillar or statue. The Oxford Dictionary: ‘plinth’ - a block of stone on which a column or statue stands. The Longman Dictionary: ‘plinth’ - a square block usually made of stone, that is used as the base for a pillar or statue. In the City of Bangalore Municipal Corporation Building bye-laws 01’2003, plinth, plinth area and plinth level has been defined as under: “Plinth” means the portion of a structure between the surface of the surrounding ground and surface of the floor immediately above the ground; “Plinth area” means the built-up covered area of the building/buildings immediately above plinth level; “Plinth level” means the level of the floor of a building immediately above the surrounding ground; 17. From the aforesaid, it is clear that plinth area of a premises includes the area or space beneath the walls of a building. If the space or area beneath the walls is excluded, and only the space between the walls are taken into consideration, then it is commonly called as “carpet area”. It means actual usable space, where one can put a carpet. Therefore, “plinth area” and “carpet area” has a definite connotation and there is no ambiguity in the meaning of these words. 18. The statute being an edict of the Legislature, it is necessary that it is expressed in a clear and unambiguous language. The duty of the Court is to find the natural meaning of the words in the context in which they occur. These words must take their colour from the context in which they appear. The Court, ought to give a literal meaning to the language used by the Legislature unless the language is ambiguous Or its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act. Where the words are clear there is no absurdity, there is no ambiguity and the intention of the Legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. When the words used in a statutory provision are defined in the statute itself or the meaning of the said word is clear and there is no ambiguity, then there is no scope for interpretation of the said words by the Court. The Court shall give effect to that meaning ascribed to the said words. When the words used in a statutory provision are defined in the statute itself or the meaning of the said word is clear and there is no ambiguity, then there is no scope for interpretation of the said words by the Court. The Court shall give effect to that meaning ascribed to the said words. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed. Where, therefore, the language is clear, the intention of the Legislature is to be gathered from the language used. What is to be borne in mind is what has been said in the statute as also what has not been said. A construction which requires for its support, addition or substitution of words, or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity. Under the guise of interpretation the Court cannot give its own meaning or a different meaning contrary to the real meaning of the words. 19. The Supreme Court in the case of UNION OF INDIA vs DEOKINANDAN AGGARWAL, dealing with the power of the Court to legislate held as under: “It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the Legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the Legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it, which are not there. Assuming there is defect or an omission in the words used by the Legislature, the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court, of course, adopts a construction, which will carry out the obvious intention of the Legislature but could not legislate itself. But to invoke judicial activism to set naught legislative judgment, is subversive of the constitutional harmony and comity of instrumentalities.” 20. Therefore, the court has to give a literal meaning to the language used by the parliament in the aforesaid provision. But to invoke judicial activism to set naught legislative judgment, is subversive of the constitutional harmony and comity of instrumentalities.” 20. Therefore, the court has to give a literal meaning to the language used by the parliament in the aforesaid provision. The provision makes it clear that nothing contained in the Act shall apply to any premises used for non-residential purpose. Further, it states, if the plinth area of the non-residential premises exceeds 14 sq. metres and is Used for commercial purpose, then also the Act is not applicable. However, if the non-residential premises is used for commercial purpose and the plinth area of the said premises i.e., non-residential premises is less than 14 sq.metres, then, the provisions of the Act is applicable. As set out above, the meaning of the word ‘plinth area’ is unambiguous. It includes the area beneath the walls. Therefore, 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. Having regard to the meaning of the word ‘plinth’ in determining the plinth area, the space covered beneath the walls cannot be excluded. If the area covered beneath the walls is excluded and the actual space in between walls is taken into consideration, the said area is popularly known as ‘carpet area’ i.e., the actual usable space. But the legislature has not used the word ‘carpet area’. They have advisedly used the word ‘plinth area’. Therefore, the court has to necessarily take into consideration not only what has not been said but also what has been said in the statute. If that aspect is borne in mind, the legislature never meant to prescribe the ‘carpet area’ for deciding the exclusion of the non-residential premises used for commercial purpose from the application of the Act. It is not open to the court to substitute the word ‘carpet area’ in place of ‘plinth area’ used by the parliament in interpreting the aforesaid statutory provisions. If such a thing is permitted, it would amount to court re-writing the Section and reading’ carpet area’ in place of ‘plinth area’ which is not permissible in law. Therefore, there is no merit in the contention of the learned counsel for the appellant. 21. If such a thing is permitted, it would amount to court re-writing the Section and reading’ carpet area’ in place of ‘plinth area’ which is not permissible in law. Therefore, there is no merit in the contention of the learned counsel for the appellant. 21. In the light of the statutory provisions, if they are read harmoniously, the judgments and decrees passed by the Courts below holding that the schedule premises is more than 14 Sq. Meters. is fully justified. No substantial questions of law do arise for consideration in this second appeal which merit admission. Accordingly, the appeal is dismissed at the stage of admission. However, the appellant/defendant is granted six months time to vacate the schedule premises subject to the appellant/defendant filing an undertaking by way of an affidavit before this Court within four weeks from today undertaking to vacate the schedule premises on the expiry of six months period, without forcing the landlord to file an execution petition. If the appellant/defendant fails to file an undertaking as stated above or having filed the affidavit commits breach of the undertaking, he shall not be entitled to the benefit of six months period.