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2009 DIGILAW 406 (KAR)

Jayanthilal Chandulal Kothari v. C. K. Radesh

2009-06-16

B.V.NAGARATHNA

body2009
Judgment :- This Revision Petition is filed by the respondent challenging the order dated 5.4.2007 passed in HRC.No.200/2002 by the Chief Judge of Small Causes at Bangalore. 2. For the sake of convenience, the parties shall be referred to as per their status before the trial Court. 3. The relevant facts are that the petitioner had filed a petition under Section 40 of the Karnataka Rent Act, 1999 (for the sake of brevity called “Rent Act, 1999) contending that he is the absolute owner in respect of the schedule properties bearing Nos.137 and 19 being a composite property situated at 1st Main Road, Seshadripuram, Bangalore-20 and 1st Mani Road, Srirampuram, Bangalore-20. The said property was gifted to the petitioner by way of a Registered Gift Deed dated 30.12.1999 by his father. That the petitioner had got issued a notice on 6.3.2002 and the same was received by the respondent on 8.3.2002 calling upon the respondent to attorn tenancy and also to pay arrears of rent. The schedule premises was leased by the father of the petitioner to one C.N.Keshavamurthy under a deed of lease dated 1.4.1977 and the property leased was two vacant sites, the purpose of the lease was to carry on business in retail timber. As per the terms of the lease, the respondent could put up temporary structures to carry on his business during the subsistence of lease period and the monthly rent was Rs.650/-per month. According to the petitioner, since the schedule premises was required by his father for putting up a commercial complex, O.S.No2655/1999 was failed on the file of City Civil Court, Bangalore, but the same was withdrawn as not pressed. It was contended in the eviction petition that the schedule premises was required by the petitioner for putting up a commercial complex on the entire schedule premises and he had already made arrangements to obtain necessary plan and licence from the corporation of City of Bangalore and he had possessed sufficient funds for the proposed construction and if needed his father was willing to support financially. He therefore sought possession of the schedule premises by filing a petition under Section 40 of the Rent Act, 1999. 4. He therefore sought possession of the schedule premises by filing a petition under Section 40 of the Rent Act, 1999. 4. After service of notice from the trial court, the respondent appeared and filed an application under Order VII Rule 1 of the CPC seeking rejection of the plaint on the ground that the petition was not maintainable under Section 40 of the Rent Act 1999. The trial court after hearing both sides dismissed the eviction petition filed by the petitioner by allowing the application filed by the respondent by its order dated 22.3.2003. Being aggrieved by the said order of rejection of the eviction petition, the petitioner filed HRRP.No.262/2003 before this court. By order dated 15.7.2006, this court set aside the impugned order and remanded the matter back to the trial court for reconsideration of the case under Section 40 of the Act and dispose of the same expeditiously. Being aggrieved by the said order, the respondent filed Special Leave Petition No.16306/2006 before the Hon’ble Supreme Court of India. During the pendency of the said Special Leave Petition, statement of objection was filed by the respondent on 17.2.2007. Thereafter by order dated 5.4.2007, the eviction petition was allowed under Section 40 of the Act and the respondent was directed to handover vacant possession of the schedule property within a month from the date of the said order. Being aggrieved by the said order this revision petition was filed on 13.4.2007. During the pendency of this revision petition, the Hon’ble Supreme Court by order dated 23.11.2007 directed that since the point raised in the Special Leave petition is also in issue before this court in this revision petition the said question be decided by this court in accordance with law uninfluenced by the observation made by this court in the order dated 15.7.2006. 5. 5. As stated above, during the pendency of the Special Leave Petition before the Hon’ble Supreme Court and in the absence of there being any stay of the proceedings before the trial court, the respondent filed the statement of objections before the trial court on 17.2.2007, inter alia, contending that the petition was not maintainable under Section 40 of the Rent Act, 1999 and that even if the Section 40 was to apply to the fact and circumstances of the case, there was no pleading with regard to the petitioner being ready and willing to commence the work on the schedule premises that the petitioner did not require the schedule premises as he had several other vacant lands and properties available with him for the proposed development and that the timber business was the only source of livelihood for the respondent and hence, sought dismissal of the petition. 6. In support of his case, the petitioner examined himself as PW1 and got marked Exs.P-1 to P-16 while the respondent did not let in any evidence. 7. On the basis of the material on record, the trial court raised the following points for its consideration: 1. Whether the petitioner proves that he require the property to put up a commercial complex as contemplated under Section 40 of the Karnataka Rent Act as contended? or 2. What order of decree? and answered Point No.1 in the affirmative and allowed the petition under Section 40 of the Rent Act, 1999. Being aggrieved by the said order, the respondent has preferred this revision petition. 8. I have heard learned senior counsel, Sri.K.G.Raghavan for M/s.Dua Associates for the petitioner and learned counsel Sri. D.N.Manjunath for the respondent herein. 9. Sri.K.G.Raghavan learned senior counsel while contending that the petition filed under Section 40 of the Karnataka Rent Act was not maintainable elaborated his submission by stating that the Karnataka Rent Act, 1999 does not apply to nonresidential building in view of the express provision under Section 2(3)(g) of the said Act and that a very small exception is carved out in the said clause by excepting nonresidential premises having plinth area below 14 sq.mtr which are used for commercial purpose to which the Act applies and since in the instant case, the vacant lands are used for non-residential purpose, the Act does not apply. Under the circumstances, the petitioner could not have invoked Section 40 of the Rent Act, 1999 to seek possession of the premises. He further contended that in the event of Section 40 being applicable to the schedule premises, then in that case, unless the schedule premises is capable of severance, the said section cannot be applied. But in the instant case, when the entire premises was required, the applicability of severance was absent and hence, the condition under Section 40 was not complied with and therefore, the petition ought to have been dismissed. He further submitted that the petitioner had not pleaded or made out any case that he was ready and willing to commence the work of construction and hence, the said condition under Section 40 was also not complied with and therefore, the trial court ought to have dismissed the petition of the petitioner. He therefore, requested this court to hold that the petition is not maintainable U/s 40 of the Act or in the alternative to dismiss the petition. Learned counsel has also referred to the Delhi and Maharashtra Rent Acts during the course of his submission. 10. Per contra, it is contended by Sri.D.N. Manjuanth, learned counsel for the respondent-petitioner that the order does not call for any interference inasmuch as the trial court rightly concluded that the petition was maintainable under Section 40 of the Rent Act, 1999 and that the revision has to be dismissed. According to him, Section 40 pertains to vacant land and that the schedule premises is vacant land only a temporary structure for the purpose of doing business was allowed to be put up during the subsistence of lease only in a small portion of the land and that petitioner requires the premises for putting up a commercial complex and Section 40 enables the petitioner to seek possession under the said provision notwithstanding anything contained in Section 27 of the Act which is a general provision dealing with eviction of respondents and since, the petitioner had complied with the conditions applicable to the facts of the case, possession of the scheduled premises ought to be given to the petitioners. 11. 11. Having heard the learned counsel on both sides the following points arise for my consideration: i) Whether the Rent Act, 1999 does not apply to the premises used for non-residential purpose, except premises having a plinth area not exceeding 14 sq.mtr. used for commercial purpose? ii) Whether the petitioner was justified in invoking section 40 of the Act seeking possession of the schedule premises? iii) Whether Section 40 applies only when there is severance of the vacant land from the rest of the premises which will not cause undue hardship to the respondent? iv) Whether the petitioner has made out a case under Section 40 of the Act? v) What order? 12. The undisputed facts are that the subject matter of lease are vacant sites and the purpose for which the lease has been given is for carrying on business in retail trade of timber and in order to do so, permission was granted by the petitioner to put up temporary structures during the subsistence of the lease. Therefore, the subject matter of the lease is not building, but vacant land or building sites. 13. Section 40 is a special provision regarding vacant building sites. The said provision is an additional right granted to the petitioner to seek possession of vacant land notwithstanding any such right a petitioner may have under Section 27 of the Act which deals with eviction of a respondent. In order to answer points No.1-3, it is necessary to analyse the relevant provisions. 14. The said provision is an additional right granted to the petitioner to seek possession of vacant land notwithstanding any such right a petitioner may have under Section 27 of the Act which deals with eviction of a respondent. In order to answer points No.1-3, it is necessary to analyse the relevant provisions. 14. Section 40 reads as follows: “Special provision regarding vacant building sites:-Notwithstanding anything contained in Section 27 where any premises let comprise of vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose and the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him and the Court, on an application made to it in this behalf by the petitioner, is satisfied that the petitioner is ready and willing to commence the work and that the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, the Court may,- .(a) direct such severance; .(b) place the petitioner in possession of the vacant land; .(c) refer the case to the Controller to determine the rent payable by the respondent in respect of the rest of the premises; and (d) make such other order as it thinks fit in the circumstances of the case.” The said provision is similar to Section 24 of the Delhi Rent Act, 1958 which reads as follows: “Special provision regarding vacant building sites Notwithstanding anything contained in section 14, where any premises which have been let comprise vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose and the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him and the Controller, on an application made to him in this behalf by the petitioner, is satisfied that the petitioner is ready and willing to commence the work and that the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, the Controller may:- .(a) direct such severance; .(b) place the petitioner in possession of the vacant land; .(c) determine the rent payable by the respondent in respect of the rest of the premises; and .(d) make such other order as he thinks fit in the circumstances of the case.” A similar provision is found in Section 16 (1)(i) of the Maharashtra Rent Control Act, 1999 which reads as follows: “When petitioner may recover possession: .(1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a petitioner shall be entitled to recover possession of any premises if the court is satisfied- .(k) that where the premises are land in the nature of garden or ground pertaining to the building such land is required by the petitioner for the erection of new building which a municipal authority has approved or permitted him to building thereon.” 15. A bare reading of the above provisions makes it apparent that Section 40 of the Karnataka Rent Act and Section 24 of the Delhi Rent Act are almost identical and begin with a non-obstante clause and which are in addition to other provisions for seeking eviction under the respective Acts. 16. The heading to the Section 40 is with regard to “vacant building sites” and the section states that .(1) where any premises which have been let comprise vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose, .(2) the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him. .(3) he may make an application to the court and if the court is satisfied that, .(a) the petitioner is ready and willing to commence the work and that .(b) the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, then the Controller may :- .(i) direct such severance, .(ii) place the petitioner in possession of the vacant land. (iii) refer the case to the controller to determine the rent payable by the respondent in respect of the rest of the premises and (iv) make such other order as he thinks fit in the circumstances of the case. 17. However, there is one basic difference between the provisions of the Karnataka Rent Act and Delhi Rent Act with regard to the definition of the word “premises”. 17. However, there is one basic difference between the provisions of the Karnataka Rent Act and Delhi Rent Act with regard to the definition of the word “premises”. Under the Karnataka Act “premises” is defined under Section 3(i) as follows:-“(i) “premises” means:- .(i) a building as defined in clause (a); (ii) any land not used for agricultural purpose.” “Building” is defined under Section 3(a) as follows: “Building” means any building or but or part of a building or hut other than a farm house, let or to be let separately and includes; .(i) the garden, ground 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 the building or hut; .(ii) any furniture or equipment supplied by the petitioner 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 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.” 18. The definition of a building under Section 3(a) of the Karnataka Act does not include land but under Section 3(i) of the Act the definition of “premises” has two components viz., building and land not used for agricultural purpose. 19. However, under the Delhi Act premises is defined under Section 2(i) as follows: .(i) “premises” means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes:- .(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building; (ii) any furniture supplied by the petitioner for use un such building or part of the building; but does not include a room in a hotel or lodging house;” The above definition of premises does not include vacant land. 20. 20. In this context, it would also be of relevance to consider the definition of premises under the Maharashtra Rent Act, Section 7(8) defines premises as follows: “ “premises” means-any building or part of a [building let or given on licence separately] (other than a farm building, including- .(i) the garden, grounds, garages and out-house, if any, appurtenant to such building or part of a building, .(ii) 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 lodging house.” 21. Under the Delhi Act and the Maharashtra Act the definition of “premises” is restricted to a building or a part of building and includes the garden, ground and outhouse appurtenant to a building or part of a building. But under the Karnataka Act, the definition of “premises” not only includes a building, but also any land not used for agricultural purpose. The definition of “building” under Section 3(a) of the Karnataka Act is similar to the definition of “premises” under the Delhi Act and the Maharashtra Act. Therefore, the Delhi Act and Maharashtra Act do not take within the fold of definition of “premises”, land not used for agricultural purpose. On the other hand, under the Karnataka Act any land not used for agricultural purpose comes within the definition of premises. Under the circumstances, when the word “premises” is used under Section 40 of the Karnataka Act and under Section 24 of the Delhi Act which provision are although is pari materia their meanings and contexts would vary. However, both Acts use of the phrase “where any premises which have been let comprise “vacant land” upon which it is permissible under the building regulations or municipal bye-laws to erect any building whether for use as a residence or for any other purpose", under the Karnataka Act vacant land is not defined but the word premises would take within its scope not only vacant land which is appurtenant to a building as defined under Section 3(a) of the Karnataka Act viz., garden, ground etc., but also any vacant land not used for any agricultural purpose as the same also comes within the definition of premises under Section 3(i) of the Act. But under the Delhi and Maharashtra Act, since the definition of premises do not extend to any land as such, but only to building and includes garden, grounds and out houses if any appurtenant to a building or to a part of such building, vacant land not used for agricultural purpose would not come within the purview of definition of premises under the Delhi Act or the Maharashtra Act. Since the definition of vacant land is not enunciated under the Karnataka Act, keeping in mind the object and purpose of Section 40 of the Act, vacant land must be interpreted to include not only garden, grounds and out-houses, if any appurtenant to a building or to a part of such building but also vacant land not used for agricultural purpose as far as Karnataka Act is concerned. Therefore, Section 40 of the Karnataka Act applied not only to a vacant land i.e., vacant building, sites appurtenant to a building or a part of a building, but also to any land which is not used for agricultural purpose which is a vacant building site. However, the term vacant land in Section 16(i)(1) of the Maharashtra Act and Section 24 of Delhi Act, are restricted to only garden, grounds and out-houses, if any appurtenant to a building or to a part of such building above vacant land. 22. Also, under Section 40 of the Karnataka Act and Section 24 of the Delhi Act the said vacant land could be put to use as a residence or for any other purpose (non-residential or commercial purpose) by erecting a building. Further when the petitioner is unable to obtain possession of the land from the respondent by an agreement, then he may make an application to the court. Under both the Acts, the Act envisages that court has to be satisfied with regard to two conditions viz., .(i) the petitioner is ready and willing to commence the work, .(ii) the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent. 23. Under both the Acts, the Act envisages that court has to be satisfied with regard to two conditions viz., .(i) the petitioner is ready and willing to commence the work, .(ii) the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent. 23. A contention has been raised by the learned counsel for the respondent that the petitioner has to prove bother the above conditions and unless there is a severance of the vacant land from the rest of the premises which would not cause undue hardship to the respondent, the court would not have jurisdiction to grant relief to the petitioner. It is further contended that where there is no severance of the vacant land from the rest of the premises that is, where the entire land is required by the petitioner, then in such a case Section 40 cannot be invoked. However, what has to be noted is the use of the words “building” sites in Section 40 of the Act and the words the “premises let comprise of vacant land” and “severance of the vacant land from the rest of the premises”. If under the Karnataka Act the definition of premises meant only building and land appurtenant to the said building, then the contention of the learned counsel for the respondent could have been accepted as the vacant land to the building would then have to be separated from the rest of the building for the purpose of construction and which severance would not cause undue hardship to the respondent. But when the definition of “premises” under the Karnataka Act is not restricted to a building or vacant land appurtenant to a building, but also includes land not used for agricultural purpose, in that case, when the petitioner requires the entire vacant land, the question of severance would not arise. Merely because severance would not be applicable when the entire premises comprising of land is required by the land lord does not mean that Section 40 cannot be invoked by the petitioner who has let-out vacant land to a respondent. Merely because severance would not be applicable when the entire premises comprising of land is required by the land lord does not mean that Section 40 cannot be invoked by the petitioner who has let-out vacant land to a respondent. Therefore, severance of the “vacant land” from the rest of the “premises” is a mandatory condition when the premises is comprised of building as defined under Section 3(a) of the Act in which event the vacant land appurtenant to a building would be required by the land lord to put up a construction as the land on which a building stands cannot be called a vacant land or when a portion of a vacant land not used for agricultural purpose is required by the land lord and not the entire land. This is also apparent from the fact that Section 40 uses the words “severance of the vacant land from the rest of the premises” which would apply not only in the case of premises being a building but also to any land not used for agricultural purpose, as premises comprises both of the above under the Karnataka Act. However, severance would not be applicable when the entire vacant land is required by the petitioner. 24. It is to be observed that Section 40 has been incorporated under the Karnataka Rent Act by following the Delhi Rent Act without noticing that the definition of “premises” under both the Acts are totally different. However, Section 40 of the Karnataka Act has to be harmoniously interpreted with Section 3(i) read with Section 3(a) of the Act, which define premises and building respectively. When it is so interpreted, it becomes obvious that when the entire land not used for agricultural purpose, which is also premises within the meaning of the said Act is required, then the question of severance would not arise. Therefore, in any such circumstance, the petitioner is not required to prove that the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent. Therefore, in any such circumstance, the petitioner is not required to prove that the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent. Otherwise it would lead to an absurd result, when Section 40 would be applicable only when a portion of the vacant land is required by the petitioner in which case only principles of severance would be applicable and not when the entire land is required and d then when the entire vacant land is required by the petitioner, the said section cannot be invoked and the petitioner would not have the benefit of Section 40 of the Karnataka Act. 25. In this context, it would be of relevance to note that the definition of premises under the erst while Bombay Rents Act, 1947 definition is similar to the definition of premises under the Karnataka Act Further the definition of “premises” under the Karnataka Rent Act, 1961 is similar to the definition of premises under the Karnataka Rent Act, 1999 and the definition of “building” under the 1961 Act is similar to the definition of building under the Karnataka Rent Act 1999. 26. However, in the instant case Section 40 begins with non-obstante clause and in special provision which has to be given effect to irrespective of what is stated in Section 27 of the Act which is a general provision. The meaning of Section 40 has to be interpreted so as to enhance the object and intent of the said provision considering the fact that it has an over riding effect viz-a-viz Section 27 of the Rent Act. In fact it is also stated that in the interpretation of statutes courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. Hence, the provision that is available to the landlord under Section 40 to seek possession of vacant building, sites must be so interpreted that the Act is in fact applicable to such sites or otherwise, the said provision would become redundant. Under the circumstances, the contention that Section 40 would be applicable only where there is a severance and not otherwise is rejected. 27. Under the circumstances, the contention that Section 40 would be applicable only where there is a severance and not otherwise is rejected. 27. As already observed the phrase “vacant land” is not defined under the Act, but the definition of premises in Section 3(i) of the Act includes a building and any land not used for agricultural purpose. But the definition of building in Section 3(a) of the Act includes garden area appurtenant to a building or part of a building which is nothing but vacant land. Therefore, any land not used for agricultural purpose or garden or grounds appurtenant to a building can be vacant land which can be used as a building site for the purpose of putting up a construction either for use as a residence or for any other purpose within the meaning of Section 40 of the Act. If possession of vacant land appurtenant to a building is sought by the petitioner for the purpose of putting up construction, then in that case there would be severance of the vacant land from the rest of the premises comprising of the building in which event the court would have to direct severance and pass all consequential orders. On the other hand, if the possession of the building is also sought which also incidentally has ground or gardens appurtenant to it, then in that case Section 40 cannot be invoked at all. On the other hand, when the premises let out is vacant buildings site or vacant land not used for agricultural purpose and the entire land is required for the purpose of putting up of construction, then in that event there would no severance at all. Even if there is no severance of the vacant land where the entire vacant land is required in that case also Section 40 can be invoked or otherwise, if the contention of the learned Senior Counsel for the respondent is accepted, then in all cases where entire vacant land is required, Section 40 cannot be invoked at all and the land lord would have to invoke some other provision under the Act or any other law. Such a discrimination between a situation when the entire land is required and when a portion of the land is required is not envisaged by the law makers. 28. Such a discrimination between a situation when the entire land is required and when a portion of the land is required is not envisaged by the law makers. 28. At this stage it would be of relevance to note that under the Rent Control Act of 1961 Section 21(1) (i) & (m) were present which sections are absent in the Rent Act of 1999. The Said provisions are extracted below: “21. Protection of tenants against eviction: 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 any court or other authority in favour of the landlord against the tenant; 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; or That where the premises are land in the nature of garden or grounds appurtenant to a building or part of a building such land is required by the landlord for the erection of a new residential building which a local authority has approved or permitted him to build thereon.” 29. The said provisions are being excluded under the Rent Act 1999, is substituted by Section 40 of the Act. It would also be of relevance to note that when the premises are required by the petitioner for the purpose of building or re-building or to make any substantial addition or alteration including construction on the terrace of the premises or on the appurtenant land and such building or re-building or the substantial addition or alterations cannot be carried out when the premises being vacated, then Section 27(2) (h) of the Act can be invoked. But where the entire premises is not required and only a portion of the premises comprising of the vacant land is required, then in that case even if that vacant land is appurtenant to a building, Section 40 can be invoked where there can be severance between the constructed portion (building) which the respondent could retain and the vacant land which would be required by the petitioner to put up a construction. But if in a case the entire vacant land, which is the subject matter of lease is required, where there would be no severance, in that event, petitioner cannot be driven to initiate proceeding before any other forum and under any other law. 30. In this context it would be of significance to note that Section 40 begins with a non-obstante clause. Section 27 and 40 are mutually exclusive and in the absence of provisions in the nature of Section 21(1) (i) & (m) of the 1961 Act, in the Karnataka Rent Act 1999, section 40 is the only provision available for a petitioner to seek possession of the premises comprising of vacant land. Therefore, both the conditions mentioned in Section 40 namely the readiness and willingness of the petitioner to commence the work and that the severance of the vacant land from the rest of the premises will not cause any undue hardship to the respondent are not mandatory conditions, but the second condition would be applicable depending upon the need of the petitioner and the facts and circumstances of the case. 31. As already observed if the entire vacant land is required by the petitioner, there cannot be any severance of the vacant land from the rest of the premises but by that it would not mean that Section 40 is not available to a petitioner. The said Section must be interpreted purposefully with the object of enhancing the intention of the legislature to give relief to a petitioner to obtain possession of premises comprising of vacant land. Therefore, the use of the word “and” between the two conditions mentioned is not conjunctive but is disjunctive and the only mandatory conditions is that the petitioner must be ready and willing to commence the work of construction on the vacant land for which possession is being obtained from the respondent and when only a portion of the premises comprising of vacant land is required that the principle of severance would apply. But in the instant case since the entire vacant land is required by the landlord for putting up a commercial complex, the question of severance would not arise. 32. But in the instant case since the entire vacant land is required by the landlord for putting up a commercial complex, the question of severance would not arise. 32. The next point to be considered is with regard to the applicability of Rent Act, 1999 to non-residential premises since it has been vehemently argued that since the said Act does not apply to a non-residential premises except those premises having a plinth are of 14 Sq.Mtr. which are used for commercial purpose and since in the instant case, the land has been used for non-residential purpose the said Act is not applicable. In support of the said contention, strong reliance has been placed on the decision of this court in the case of Chennachari and Others V/s S. Saroja and Others report in ILR 205 Karnataka 481. In the said case, it was not in dispute that land measuring 40 ft.x120 ft. was leased to the respondent as vacant land to run a timber depot at Mysore. An eviction petition was filed under the 1961 Act before the trial court in HRC.No.294/89 which was dismissed by an order dated 26.5.1995 by negativing the ground urged by the petitioner seeking eviction. The legal representatives of the petitioner filed a revision petition in Rent Revenue.No.68/96 invoking section 50 of the 1961 Act. During the pendency of the said revision petition, the 1961 Act was repealed and the respondent also died on 18.2.1997. The legal representatives of the respondent were brought on record and the Rent Act 1999 came into force on 31.12.2001. The petitioner came up with an application under Section 5 of the 1999 Act contending that the premises in question was required to be vacated inasmuch as the period of five years had lapsed after the death of the original respondent. The said application was opposed. The revisional court however allowed that said application under Section 5 of the Rent Act 1999 and directed the respondents to be evicted. Challenging the said order, writ petition was preferred. The ground urged in the writ petition was that the revisional court had acted without jurisdiction since the Rent Act, 1999 was not applicable to the premises in question. The revisional court however allowed that said application under Section 5 of the Rent Act 1999 and directed the respondents to be evicted. Challenging the said order, writ petition was preferred. The ground urged in the writ petition was that the revisional court had acted without jurisdiction since the Rent Act, 1999 was not applicable to the premises in question. The same was countered by stating that what was let out was only a vacant site and that the provision of 1999 Act applied to vacant premises also, the embargo under Section 2(3) (g) of the Act was not attracted. This court held that the existence of plinth area always refers to a building and not to any vacant land. Therefore, what has been excluded is “building” having a plinth area exceeding 14sq.mtr. used for commercial purpose. In other words, a building used for commercial purpose and less than 14 sq.mtr. came within the applicability of the Act. Therefore, the word “premises” used not once, but twice under Section 2(3) (g) of the Act is only in the context of building and not in the context of vacant land. The reason being that the concept of “plinth” is only with reference to a building and not with reference to any vacant land. In view of the above decision such a restrictive meaning to the word “premises” has to be given in Section 2(3)(9) by reading down its meaning. Section 3 of the Act which defines the word “premises’ means .(i) a building as defined in clause(a); .(ii) any land not used for any agricultural purpose. Therefore, the concept of plinth area being considered as a standard or a reference point for exclusion of the applicability of the Act, the use of the word “premises” in Section 2(3) (g) is only in the context of a building as defined in clause (a) to Section 3 and not any vacant land not used for agricultural purpose in which the concept plinth area would not at all be applicable. Therefore, the argument of the learned counsel for the respondents that by virtue of Section 2(3) (g) of the Act, the Act is not applicable to the facts of the present case cannot be accepted. 33. The above interpretation is also in consonance with the object and purpose of Section 40 of the Act. Therefore, the argument of the learned counsel for the respondents that by virtue of Section 2(3) (g) of the Act, the Act is not applicable to the facts of the present case cannot be accepted. 33. The above interpretation is also in consonance with the object and purpose of Section 40 of the Act. The said provision is only in the context of “vacant building sites’, where any premises comprises of vacant land, where the concept of plinth area is not applicable at all. Hence, a restrictive interpretation has to be given to Section 2(3) (g) of the Act in the context of plinth area to hold that the word premises in the said clause is referable only to a building and not to vacant land. Otherwise Section 40 of the Act would become redundant. Also under the said Section the use of the premises after obtaining possession can be for residence or for any other purpose which includes nonresidential or commercial purpose. Since a provision in statute cannot be so interpreted to make another provision in statute cannot be so interpreted to make another provision in the very same statute redundant, in order to give effect to Section 40 of the Act, a restrictive meaning to the word “premises” in Section 2(3) (g) has to be given so as to exclude vacant land from its scope by reading down the word “premises” in Section 2(3) (g) of the Act. 34. However, strong reliance was placed on the observations of this court in the above noted decision of this Court. However, what is relevant to note is that the above observations were not made in the context of Section 40 of the Rent Act 1999, but the said case was in the context of an eviction petition filed under Section 21(1)(a)(b)(c) and (f) of the 1961 Act as amended under the 1999 Act. In view of a harmonious reading of Section 2(3) (g) with Section 3(i) read with Section 3(a) and Section 40 of the Rent Act, 1999, it is held that the embargo under Section 2(3) (g) of the Act is only in the context of building having a plinth area and not in the context of Section 40 of the Act which deals with vacant land. 35. 35. Another reason for so holding is that Section 40 itself speaks about erection of a building for a residence or for any other purpose. If the contention of the learned counsel for the respondent is accepted, then the words “whether for use as a residence or for any other purpose” cannot be given full meaning. “Non-residential purpose” or a “commercial purpose” is implied under Section 40 of the Act and vacant land can be used for putting up a building to be used for residential or for any other purpose after possession is obtained by the petitioner under the said Section in this context, it is relevant to note that under Section 3(k) of the Act defines residential user or purpose of residence to include letting out for running a public institution the said definition is an exclusive one and broad in nature. However, there is no definition of non-residential purpose or user in the Act. Hence, the contention regarding non-applicability of the Act to non-residential premises except those below 14 sq.mtr. is accepted only in the context of buildings. Moreover, in the context of Section 40, this contention is not at all relevant inasmuch as Section 40 deals with building Site or vacant land where concept of plinth is absent. 36. It is also significant to note that Section 27 is with regard to protection of respondents against eviction. Sections 28, 29, 30 and 31 deal with right of petitioner to recover immediate possession of the premises. Similarly, Sections 37, 38 and 40 deal with special provision for recovery of possession in certain cases. Whereas under Section 27 the petitioner is case with the heavy burden of proving a ground for seeking “eviction” of the respondent under Sections 28,29,30,31 and Sections 37 to 40, if the special circumstances exist, then the petitioner has the right to seek “possession” of the respondent premises. The right to seek possession under certain circumstances is quite different from the right to seek eviction of a respondent. If certain contingencies exist or there are circumstances which enable a petitioner to seek possession of the respondent premises, then the petitioner can invoke the provisions under the Rent Act itself and not by resorting to any other proceeding. It is in this context that Sections 37 to 40 have to be considered as these sections can be invoked notwithstanding anything contained under Section 27. It is in this context that Sections 37 to 40 have to be considered as these sections can be invoked notwithstanding anything contained under Section 27. Therefore, Section 37 to 40 have a over riding effect vis-à-vis Section 27 and even if a petitioner has a right to evict a respondent under the provisions of Section 27, he can still exercise his right under Section 37 to 40 depending upon the circumstances of the case. It would be of relevance to mention that Sections 38 to 40 of the Karnataka Act are in pari materia with Sections 21 to 24 respectively of the Delhi Act and the said sections also have an overriding the effect vis-à-vis Section 14 of the said Act which pertains to eviction of the respondents. Therefore Section 40 has to be given its full effect. 37. With regard to the principles of interpretation of statutes, it is well known that a statutes must be read as a whole and one provision of the Act should be construed with reference to the other provisions in the same Act so as to make consistent enactment of the whole statute so as to avoid any inconsistency or repugnancy either within a section or between a section and other parts of the statute. 38. In this context it is relevant to cite the decision of the Apex Court in the case of Krishna Kumar Vs. State of Rajasthan reported in AIR 1992 SC 1789 wherein it is stated that it is a settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principle of harmonious construction could be followed by avoiding head on clash. It should not be lightly assumed that what the parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same. The Apex Court quoted another decision in the case of Venkataramana Devaru Vs. State of Mysore reported in AIR 1958 SC 255 wherein it has been observed as follows: “The rule of construction is well settled that when there are in any enactment two provisions which cannot be reconciled with each other, they should be so interpreted that if possible effect should be given both. State of Mysore reported in AIR 1958 SC 255 wherein it has been observed as follows: “The rule of construction is well settled that when there are in any enactment two provisions which cannot be reconciled with each other, they should be so interpreted that if possible effect should be given both. This is what is known as the role of harmonious construction.” 39. In fact in the above decision it is also stated that in the interpretation of statutes, courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. Hence the provision that is available to the landlord under Section 40 to seek possession of vacant building, sites must be so interpreted that the Act is in fact applicable to such sites or otherwise, the said provision would become redundant. Under the circumstances Section 2(3) (g) of the Act must be harmonized with Section 40 as has been done above. 40. Moreover, in the instant case Section 40 begins with a non-obstante clause and is a special provision which has to be given effect to irrespective of what is stated in Section 27 of the Act which is a general provision. The meaning of Section 40 has to be interpreted so as to enhance the object and intent of the said provision considering the fact that it has an over riding effect viz-a-viz Section 27 of the Rent Act. In fact both Section 27 of the Act as well as Section 40 of the Act begin with a non-obstante clause. Whereas under Section 27 it states that “notwithstanding anything to the contrary contained in any other law or contract”, under Section 40 it states that “notwithstanding anything contained in Section 27”. From a reading of the above it becomes apparent that Section 40 is a special provision and has an over-riding effect viz-a-viz Section 27. In fact Section 27 itself is a special provision in the context of general law of landlord and tenant but Section 40 applies only in certain circumstances and therefore, Section 40 as an over-riding effect not only over Section 27 of the Act, but also in the context of general law dealing with landlord and tenant. Therefore, the full effect of Section 40 has to be given. 41. Therefore, the full effect of Section 40 has to be given. 41. The use of word “shall” raises a presumption that a particular provision is imperative, but this prima facie inference may be rebutted by other consideration such as object and scope of enactment and the consequences flowing from such construction. There are numerous cases where “shall” has been construed as merely directory or applicable only under certain circumstances. However, in Section 40 what is to be notices is the use of word “may”. In the context of the court directing severance, this makes it apparent that it is only in those cases where severance of the vacant land from the rest of the premises is necessary, the court may give directions with regard to severance. Therefore where severance of the vacant land from the rest of the premises is not required, directions regarding severance need not be given by the court. Also, after the words “landlord is ready and willing to commence the work”, the word “and” is used followed by the words “that the severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant”. The sue of the word “and” in between the two phrases is also not conjunctive and do not make the two conditions mandatory, but on the other hand, the said condition referring “that the severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant” is applicable only when a portion of the vacant land is required. However, what is mandatory for the landlord to prove is that he is ready and willing to commence the work. 42. In fact, Section 3 which is the definition clause begins as “In this Act unless the context otherwise requires” and defines “premises” to mean a building as defined in clause (a), any land not used for agricultural purpose, but in the contest of Section 2(3) (g), the word “premises” used in the said provision has no reference to land at all, because the concept of plinth areas is only in the context of buildings and not land. Hence the word “premises” in Section 2(3) (g) must be interpreted to mean only a building, by reading down the definition of premises, by keeping in mind the context in which Section 2(3) (g) is applicable. 43. Hence the word “premises” in Section 2(3) (g) must be interpreted to mean only a building, by reading down the definition of premises, by keeping in mind the context in which Section 2(3) (g) is applicable. 43. In view of the above, it is held that the non-applicability of the Rent Act is only with regard to premises comprising of building excluding plinth area of 14 sq.ms. and therefore for all other premises, Rent Act is applicable. That the landlord was justified in invoking Section 40 of the Act in the instant case and that the condition of severance of the vacant land from the rest of the premises is not a mandatory condition particularly when the entire vacant land is required. Therefore, point Nos. 1 to 3 are answered against the petitioner herein. 44. The next question to be considered is as to whether the petitioner has made out a case under Section 40 of the Act. In his petition he has stated that he required the schedule premises for putting up a commercial complex and thereby improving the schedule property. He intends to build the ground floor consisting of shops; office and business establishment on the first floor and that he had made the necessary arrangements to obtain the necessary plan and licence from the Corporation of the City of Bangalore. He has also stated that the has sufficient funds for the proposed construction and if any additional financial assistance is required, his father would assist him and that he can also raise funds from the financial institutions. In order to develop the property into a commercial complex for deriving a better income, he has sought possessions from the respondent and since the entire vacant land is required, the question of severance would not arise. 45. The respondent in his statement of objections has however contended that the petitioner has not pleaded that he is “ready and willing” to commence the work on the schedule premises and therefore, the attempt to get possession is only a desire and hence the petitioner has not categorically averred regarding the need for the premises. 46. 45. The respondent in his statement of objections has however contended that the petitioner has not pleaded that he is “ready and willing” to commence the work on the schedule premises and therefore, the attempt to get possession is only a desire and hence the petitioner has not categorically averred regarding the need for the premises. 46. The petitioner examined himself as PW.1 and in his evidence has stated that the entire schedule premises in occupation of the respondent is required for the purpose of putting up commercial complex on the entire property so as to derive rent and other profits from prospective respondents as the schedule premises is situated in a commercial area comprising of shops and other business establishments and that it would be advantageous for him to put up a shopping complex. In order to corroborate his pleadings that he has intention to put up shopping complex, he has stated that he has applied for a sanctioned plan and licence from the Bangalore Mahanagara Palike (B.M.P) and he has produced the original receipts issued by B.M.P dated 5.10.2006 towards the sanction fee along with the blue print of the plan submitted before B.M.P. He has further stated that B.M.P. Authorities are about to sanction the plan and licence after which he would commence the construction work and hence he required vacant possession of the entire property and that it is not possible to put up construction in a portion of the property by way of an agreement with the respondent. He has also stated that estimate were got prepared through M/s. Design Forum Architect & Interior Designers as per estimate dated 29.11.2006 and that bank balance of Rs. 1,78,168 has been shown as ready amount to be invested and it is also averred that he can raise necessary funds from the Nationalized Bank or financial institution on the security of the property and that his father and brother of would also assist him financially. 47. In order to corroborate his deposition, PW.1 has produced Ex.P6 & P7 which are the original receipt for having applied for licence and Ex.P8 and P9 are the copies of the plan, Ex.P10 is the estimate and Ex.P11 is the bank statement relating to the account. 48. 47. In order to corroborate his deposition, PW.1 has produced Ex.P6 & P7 which are the original receipt for having applied for licence and Ex.P8 and P9 are the copies of the plan, Ex.P10 is the estimate and Ex.P11 is the bank statement relating to the account. 48. A perusal of the said documents clearly reveal that the petitioner has taken sufficient steps with regard to his need to put up a commercial complex on the schedule premises. Merely because he has not used the phrase “ready and willing to commence the work” in the pleading does not mean that the petitioner does not have an intention to put up a construction on the schedule premises. What Section 40 requires is the satisfaction of the court that the petitioner is ready and willing to commence the work on the schedule premises. Considering the fact that the documents produced by PW.1 were held to be sufficient and satisfactory by the trial court so as to prove that he is ready and willing to commence the work and in the absence of any rebuttal evidence by the respondent, the satisfaction recorded by the trial court does not require to be interfered with in this revision. It is significant to note that the respondent after a great delay filed the statement of objection, but did nothing more thereafter in order to rebut the case of the petitioner or produce any evidence to justify his case. In fact the trial court has recorded in detail about this aspect of the matter which shall be adverted to. 49. At this stage it is necessary to consider the submission of the learned Senior counsel for the respondent with regard to opportunity not being given to the respondent to let in evidence in the matter. In this context it is necessary to note that initially an application under Order VII Rule 11 of the code was filed by the respondent seeking rejection of the petition. The said application was allowed, against which, the petitioner filed HRRP.No.262/2003, which revision was allowed and the matter was remanded to the trial court for re-consideration by order dated 15.7.2006. The said order was challenged by the respondent before the Hon’ble Supreme Court in S.L.P.No.16306/2006. The Supreme Court did not stay the proceedings before the trial court. The said application was allowed, against which, the petitioner filed HRRP.No.262/2003, which revision was allowed and the matter was remanded to the trial court for re-consideration by order dated 15.7.2006. The said order was challenged by the respondent before the Hon’ble Supreme Court in S.L.P.No.16306/2006. The Supreme Court did not stay the proceedings before the trial court. Under the circumstances the trial court was duty bound to proceed with the consideration of the case both on the question of maintainability as well as on merits. It was only on 17.2.2007, that statement of objections were filed by the respondent before the trial court. The petitioner examined himself as PW.1 but since the counsel for the respondent was absent, cross-examination by him was taken as nil and the trial court in its judgment has recorded the following: “………Further this evidence produced by the petitioner is not challenged by the respondent in spite of several dates and he has evaded the court and he has also not cared to the lead evidence in the matter. The contention taken by the respondent in his objections remained as contentions and he has not sworn to the contents by getting into the witness box and the way in which the matter has been defended at one stage, the respondent remained absent including the counsel they have not cross-examined and accordingly, the petitioner was discharged. Later, when the matter was posted for respondent’s evidence, they have filed an application to recall P.W.1 for cross-examination and accordingly it was allowed but again without cross-examining the petitioner immediately the respondent has filed an application for adjournment praying time to cross examine even after the application came to be allowed. That shows the respondent does not want to go with the merit. They are very much interested to drag on the matter by one reason or the other by filing applications after applications without any basis. It is nothing but disgrace on the respondent and their concerned persons. Accordingly, the prayer made by the respondent was rejected and as they failed to lead evidence and also failed to cross-examine the petitioner, the petitioner was discharged and the evidence of the respondent was not adduced. Accordingly, the matter came to be closed. It is nothing but disgrace on the respondent and their concerned persons. Accordingly, the prayer made by the respondent was rejected and as they failed to lead evidence and also failed to cross-examine the petitioner, the petitioner was discharged and the evidence of the respondent was not adduced. Accordingly, the matter came to be closed. In spite of the same, the respondent’s counsel have shown their perverse intelligence in the matter by filing I.A. after I.A and also they have filed a memo stating that they are challenging the orders of the court without supporting of any documents for which no value can be given by this court. Accordingly, all these things have been ignored, as it is care even after taking permission to cross-examine P.W.1 and the application came to be allowed, they did not go on the matter but they have filed an application for adjournment on the very day which discloses the exercise of perverse intelligence by them in the matter and always the respondent used to remain absent and it is only the counsel keeping the party outside the court used to do all these mischievous acts with an intention to drag on the matter, even though the matter is filed in the year 2002 and we are in the year 2007 approximately 4 years over……I can only say it is unfortunate such a situation is frequent before the courts particularly before the courts at the District level. Under such circumstances, without saying anything more about the respondent and his concerned persons, there is absolutely nothing to disbelieve the evidence of the petitioner supported by the documents which is unchallenged and the respondent has also not adduced any evidence. Accordingly, I accept the evidence and I am of the opinion that the petitioner has proved his claim over the property as required under Section 40 of the Karnataka Rent Act. Accordingly, I answer point No.1 in the positive. 50. From the above it is clear that after filing statement of objections and in the absence of there being stay of proceedings before the trial court, the respondent ought to have made use of the opportunity given to him to cross-examine the petitioner and also adduce rebuttal evidence but he did not choose to do so. 50. From the above it is clear that after filing statement of objections and in the absence of there being stay of proceedings before the trial court, the respondent ought to have made use of the opportunity given to him to cross-examine the petitioner and also adduce rebuttal evidence but he did not choose to do so. Under the circumstances the evidence produced by the petitioner was considered by the trial court and after finding that he had made out a case under Section 40 of the Act, a direction was issued to the respondent to hand over vacant possession of the schedule property to the petitioner. After the disposal of the matter before the trial court on 5.4.2007, the Hon’ble Supreme Court disposed of S.L.P on 23.11.2007 directing this court to decide the question with regard to maintainability of the petition under Section 40 in accordance with law. Accordingly, the issue regarding maintainability has been decided against the respondent. But with regard to the merits of the case, despite the respondent not making use of the opportunity, I find that in the interest of justice an opportunity must be given to him to cross-examine the petitioner and also to adduce any evidence that he may have. Under the circumstances the matter is remanded back to the trial court with a direction to give an opportunity to the respondent to cross-examine PW.1 and also to lead evidence if he is so advised. Considering the fact that the case was file before the trial court in the year 2002 and earlier a suit was filed in the year 1999 in respect of the same premises, the trial court is directed to dispose of the case on merits within a period of four months from the date of the receipt of this order. 51. For the aforesaid reasons while holding that the eviction petition is maintainable under Section 40 of the Act the finding on satisfaction recorded by the trial court based on the eviction of the petition only is set aside and the matter is remanded back to the trial court with the above directions in order to give another opportunity to the petitioner herein. 52. For the aforesaid reasons, the revision petition is allowed in part. No costs.