Holding

A tenant evicted under Section 21(1)(j) who gives notice under Section 27 is entitled to be placed in possession of a shop in the new building that is reasonably comparable to his original premises, and the rights of a subsequent tenant are subordinate to those of the original tenant.

Summary

The appellant, a tenant of a shop in a building owned by Respondent No. 1, was evicted under Section 21(1)(j) of the Karnataka Rent Control Act, 1961, which allows demolition and reconstruction. The eviction petition stated that the tenant could occupy a corresponding shop in the new building, and the tenant gave notice under Section 27 to occupy such premises. After demolition began, the landlord inducted Respondent No. 2 as a tenant in a shop that the appellant claimed was comparable to his original shop, prompting the appellant to seek possession of that shop. The High Court held that the landlord was only required to provide any tenement in the new building, not a comparable one, and set aside the trial court’s order in favor of the appellant. The Supreme Court examined the language of Sections 27 and 28 and held that a tenant evicted under Section 21(1)(j) who gives notice is entitled to a shop that is reasonably comparable to his original premises, and that the rights of a subsequent tenant are subordinate to those of the original tenant. Consequently, the Court ordered the landlord to hand over the shop occupied by Respondent No. 2 to the appellant. The appeal was allowed with costs against Respondent No. 1.

Issues considered

Whether a tenant evicted under Section 21(1)(j) of the Karnataka Rent Control Act and who gives notice under Section 27 is entitled to a comparable shop in the reconstructed building.
Whether the landlord’s obligation under Section 28 is limited to providing any tenement or requires a reasonably comparable premises.
Whether the decree passed by consent under Section 21(1)(j) is valid and within the jurisdiction of the Munsiff.
Whether the rights of a subsequent tenant are subject to the rights of the original tenant under Sections 27 and 28.

Legislation cited

Karnataka Rent Control Act, 1961s. 21(1)(j), s. 27, s. 28

Subjects

rent controlevictionreconstructiontenant rightscomparable premiseslandlord obligationsSection 21Section 27Section 28Karnataka Rent Actspecial leaveSupreme Court

Judgment

K. SRINIVASA RAO
A
v.
K.M. NARASIMHAIAH GOPAL KRISHNA

FEBRUARY 9, 1989

.... [M.H. KANIA AND L.M. SHARMA, JJ.] B

Karnataka Rent Control Act, 1961: Sections 21(J)(j), 27 and
28-Tenant's right to occupy a reasonably comparable shop in the re-
constructed building.

The appellant was one of the eight tenants in the building belong-
ing to Respondent No. 1, who filed eviction petitions against all the 8
c
tenants on the ground that the building was bona fide required by him
for immediate demolition and construction as contemplated under Sec·
lion 2l(l)G) of the Karnataka Rent Control Act. In the petition against
the appellant, it was specifically stated that he might occupy the pre·
mises corresponding to the original tenement in the new building after D
it was built. The application of Respondent Nu. 1 'for deletion of the
words "correspondig portion" and for leave to withdraw the offer
made earlier, were rejected. Upon a memorandum filed by the appellant
consenting to a decree being passed in pursuance of Section 2l(l)(j) of
the Act, the Court passed an order allowing the eviction petition against
the appellant. E

After the reconstruction work commenced, appellant gave a
notice to Respondent No. 1 of his intention to occupy the corresponding
1 shop in the new building, agreeing to pay the fair rent as contemplated
..._~_under Section 27 of the Act. Meanwhile Respondent No. 1 who got the
. · eviction decree, filed an appeal before the District Judge, challenging F
the eviction decree on the ground that the Court had no jurisdiction to
pass any decree by consent under Section 2l(l)(j) of the Act. The
District Judge allowed the appeal. Immediately thereafter Respondent
No. 1 inducted Respondent No. 2 as a tenant in a shop in the recon·
structed building reasonably corresponding to the shop occupied by the
appellant in the old building, and Respondent No. 2 started his business G
}...: in the shop. The appellant preferred a Revision Petition to the High
· ' Cou11 against the order of the District Judge, and in the Revision Peti-
tion the appellant impleaded the second Respondent also.

The High Court allowed the Revision Petition and held that the
decree passed by the MunsilTunder Section 21(l)(j) of the Act was not a H
577
578 SUPREME COURT REPORTS [1989] 1 S.C.R.

A decree passed by consent but was a valid decree passed by a competent
Court after application of mind. It was also held that the landlord was
liable to place the tenants in vacant possession of the reconstructed
building as provided in the Act, and that the rights of the second
Respondent were subjectto the rights of the original tenant conferred
on them under Sections 27 and 28 of the Act.
B
After the High Court's order, the appellant filed an application
under Sections 27 and 28 of the Act before the trial court seeking
permission to occupy the shop premises which was in possession of
Respondent No. 2. The trial court allowed the application. On revision,
the High Court set aside the order of the trial court, taking the view that
C the appellant was not entitled to claim the shop occupied by Respondent
No. 2 and Respondent No. 1 was required to give the appellant any
tenement in the newly constructed building. Against this order of the
High Court the appellant has filed this appeal by special leave.

On behalf of the appellant, it is claimed that he is entitled to be
D put in possession of the shop facing the Main Road and occupied by
Respondent No. 2, whereas he was offered a shop not facing the Main
Road.

Allowing the appeal,

E HELD: 1.1 The appellant is entitled to be handed over the pos-
sesssion of the shop occupied by respondent No. 2. [585B]

1.2 Under the provisions of Section 28 of the said Act, the appel-
lant became entitled to occupy a tenement in the new building. Although
there is nothing specific in the language of sub-section (1) of Section 28 ~
F to that effect, a fair, commonsense reading of the provisions of sub- · ; ""'-
section (1) of Section 28 would show that a tenant against whom eviction
decree has been passed under Section 21(1)G) and who has given notice
as contemplated under Section 27 of that Act would be entitled to a
tenement in the new building which could be said to he reasonably com-
parable to or to reasonably corre;;pond to the tenement in respect of
G which the decree was passed. The High Court based its judgment on the
consideration of a question which really was not material, namely,
whether the appellant was entitled to get an identical shop in the new
building, whereas the real question was as to whether he was entitled to
'~
'
a comparable shop. [583G-H; 584A-B I

H 1.3 The original shop occupied by the appellant admeasured
K.S. RAO v. K.M. NARASIMHAIAH [KANIA, J.] 579

17' x 9' and was facing the Main Road. The shop which respondent No. 1
A
offered to the appellant was admeasuring only 11' 6" x 8' 6" and was
not facing the Main Raod but was on the rear of the new building. This
shop cannot be considered as comparable to the shop originally
occupied by the appellant. Moreover, it is not as if comparable shops
were not available. In fact, re.spondent No. 1 constructed several shops
of 9' x 16' facing the Main Road, one of which he has given away in a B
hurried mann_er, to respondent No. 2, probably with a view to forestall
the claim ·of the appellant. In these circumstances, the appellant could
not be compelled to accept tbe shop offered by respondent No. I, which
is in no way comparable. The appellant was entitled to a shop reason-
ably corresponding, to the original shop occupied by him as the circum-
stances would permit. It was not the appellant's case that he is entitled to
an identical shop but that he was entitled to a comparable shop. It is not c
open now to respondent No. 2 to resist the claim of the appellant.
Respondent No. 2 was joined as a party in the revision petition wherein
the High Court held that the rights of respondent No. 2 are subject to
the rights of the original tenant conferred upon him under Sections 27
and 28. This decision has not been challenged by respondent No. 2 in D
any proceedings and has now become final as agaimt him. [584C-E, G; 585A]

Sreenivasa Rao v. Narasimhaiah, [1972) I Mysore Law Journal;
490, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1017 E
of 1975.

From the Judgment and Order dated 10.10.1974 of the
Karnataka High Court in Civil Revision Petition No. 187 of 1974.
\
·~f-. N.B. Datar and Ravi P. Wadhwani for the Appellant. F

P.R. Ramasesh, S.S. Padmaraj, Naresh Kaushik and Ms. Lalitha
Kaushik for the Respondents.

The Judgment of the Court was delivered by
G
KANIA, J. This is an appeal against a judginent of a learned
Single Judge of the Karnataka High Court by Special Leave granted
under Article 136 of the Constitution.

Respondent No. 1 is the landlord and K. Gopal Krishna to whom
notice was given by this Court and has appeared pursuant thereto is H.
580 SUPREME COURT REPORTS [1989] 1 S.C.R.

the person who was inducted as a tenant by respondent No. 1 in the
A
said premises immediately on an appeal by respondent No. I being
allowed by the First Additional District Judge, Bangalore as set out
hereinafter. We direct that K. Gopal Krishna be joined as respondent
No. 2 in the appeal.

B The appellant was one of the eight tenants in the building be- ..)
longing to the respondent No. I, in respect of a shop admeasuring 9' x
17'. The shop of the appellant was one of the four shops on the ground
floor of the building facing Belepet Main Road, Bangalore City. The
other premises in the said building comprised four office premises on
the first floor. The respondent No. I filed eight eviction petitions in
the Court of the Ist Munsiff, Bangalore seeking eviction of the tenants
c in the said building on the ground that the building was bona fide
-required by him for the immediate demolition and reconstruction as
contemplated under Section 21(1)(j) of the Kamataka Rent Control
Act, 1961 (hereinafter referred to as "the Karnataka Rent Act"). In
the eviction petition against the appellant, respondent No. I specifi-
D cally stated that the appellant might occupy the premises correspond-
ing to the original tenement in the new building after it was built. It
may be mentioned that subsequently, respondent No. I filed an appli-
cation for amending the averment in the eviction petition to delete the
words 'corresponding portion'. He also filed an application for leave to
withdraw his offer set out earlier. Both these applications were
E rejected. The appellant and one other tenant filed memoranda
consenting to a decree being passed in pursuance of Section 21(1)(j) of
the Kamataka Rent Act. Pursuant to the memorandum filed by the
..
appellant, wherein it was stated that the key was also handed over to
the landlord, the court passed an order allowing the eviction petition ,
against the appellant under Section 21(1)(j) of the Karnataka Rent
Act. After the reconstruction of the building was commenced, the
-1.k
F
appellant gave a notice to respondent No. I of his intention to occupy
the corresponding shop in the new building and stated that he was
agreeable to pay the fair rent in respect of the said shop as contemp-
lated under Section 27 of the Karnataka Rent Act. It may be men-
tioned that, in the meantime, respondent No. 1 got the plans of the
G proposed new building altered from time to time and in these revised
plans dimensions of the shops proposed to be constructed in the new !""'
building were altered. In the meantime, curiously enough, respondent
No. 1 who had got the eviction decree filed an appeal in the Court of
the First Additional District Judge, Bangalore, challenging the evic-
tion decree in terms of section 21(1)(j) of the Karnataka Rent Act
H passed by the First Munsiff, Bangalore on the ground that the said
K.S. RAO v,. K.M. NARASJMHAIAH [KANIA, J.] 581

decree had been passed by consent and the court had no jurisdiction to
A
pass any decree by consent under Section 2l(l)(j) of the Kamataka
Rent Act. This appeal was allowed by the learned Additional District
Judge. Immediately on the appeal being allowed, respondent No. 1
inducted respondent No. 2 as the tenant in a shop in the new or
reconstructed building reasonably corresponding to the shop occupied
. by the appellant in the old building and respondent No. 2 started B
business therein in the name and style of Sri Cutpiece Centre. The
appellant preferred a Revision Petition to the High Court· against this
decision. In the said revision petition, the appellant has joined as
respondent No. 2, K. Gopal Krishna. The said revision petition was
allowed by the High Court. The High Court inter alia held that the
decree passed by the learned Munsiff under Section 21(1)(j) of the
Karnataka Rent Act was not a decree passed by consent but was a c
valid decree passed by a competent court after application of mind. In
respect of the objections raised by respondent No. 2, it was held by the
High Court that since the demolition and reconstruction were in
pursuance of an order of eviction passed under sub-clause (j) of
Section 21(1) of the Karnataka Rent Act, there cannot be any doubt D
that the' landlord is liable to place the tenants in vacant possession of
the reconstructed building as provided in the Act. It was' further held
that since the lease in favour of the second respondent came into
existence and the second respondent occupied the new building during
the pendency of the proceedings arising out of the landlord's eviction
petition under Section 21(1)(j) of the Karnataka Rent Act, the rights E
of the second respondent are subject to the rights of the original
tenants conferred on them under Sections 27 and 28 of the Karnataka
Rent Act. (See: Sreenivasa Rao v. Narasimhiah, [1972) 1 Mysore Law
Journal p. 490). ·

.,.:<.. Subsequent to this order of the High Court allowing the revision F
· petition of the appellant, the appellant filed an application under Sec-
tions 27 and 28 of the Karnataka Rent Act before the Trial Court for
permitting him to occupy ihe said shop premises which had been given
by respondent No. 1 in the possession of respondent No. 2 as a tenant.
· The Trial Court allowed this application filed by the appellant and
held that the appellant was entitled to get the said shop occupied by G
respondent No. 2 which admeasured 9' x 16 ' in place of the old one.
~ On revision, by the impugned order, the High Court set aside the
order passed in favour of the appellant, taking the view that the appel-
lant was not entitled to claim the shop occupied by respondent No. 2
and respondent No. 1, the landlord, was only required to give to the
appellant a tenement, that is, any tenement in the newly constructed H
582 SUPREME COURT REPORTS [1989] 1 S.C.R.

A building. The appellant claims to be entitled to be put in possession of
the shop admeasuring 9' x 16' facing the Belepet Main Road occupied
•
by respondent No. 2 whereas respondent No. 1 has offered to the
appellant only a shop behind this shop admeasuring 11' 6" x 8' 6"
which is not facing the main road, namely, the Belepet Main Road. It
is this claim of the appellant which was accepted by the Trial Court but
B rejected by the High Court on revision. The order of the High Court is
challenged before us in this appeal.

In order to appreciate the contentions raised by the appellant,
we may set out the relevant provisions of the Karnataka Rent Act.
Section 21 of the said Act protects tenants against eviction. The relev-
c ant portion of the said section runs thus:

"21. Protection of tenants against eviction.

(1) Notwithstanding anything to the contrary
contained in any other law or contract, no order or
D 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:

Provided that the court may on an application
made to it, make an order for the recovery of posses-
E sion of a premises on one or more of the following
grounds only, namely:

x x x x

. (j) that the premises are reasonably_ and bona ~ -jt.
F fide reqmred by the landlord for the immediate~·
purpose of demolishing them and such demolition is ·
to be made for the purpose of erecting a new building
in place of the premises sought to be demolished:

x x x x
G
Section 27 of the said Act runs thus:

"27. Tenant's right to give notice to the landlord of his inten·
tion to occupy tenement in new building.

H Where decree for eviction has been passed by a Court
,,

K,S, RAO v, K,M, NARASIMHAIAH [KANIA, J,J 583

on the ground,specified in clause (j) of the proviso to sub- A
-1 section (1) of Section 21 and the work of demolishing the
premises and of the erection of a new building has been
commenced by the landlord, the tenant may, within six
months from the date on which he delivered vacant posses-
sion of the premises to the landlord, give notice to the
landlord of his intention to occupy the new building on its B
completion on thefollowing conditions, namely:

(a) that he shall pay to the landlord the fair rent in
respect of the building:

x x x x"
c
!)-- The rest of the provisions of this Section are not material for our
purpose.

Sub-section (1) of Section 28 of the said Act runs thus:
D
I "'28. Landlord to intimate the tenant, date of comple-
tion and tenant's right to occupy the new building.

(1) On receipt of notice from the tenant under
section 27, the landlord shall, not less than three months
before the'date on which the erection of the new building is E
likely to be completed, intimate ,the tenant the date on
' which the said erection shall be, completed, On the said
date, the tenant shall be entitled to occupy the building.

x x x x"
F
In the case before us the decree against the appellant was passed
under the provisions of Section 21(1)(j) of the Karnataka Rent Act.
The appellaiJHenant gave notice of his intention to occupy the tene-
ment in the new building as required under the provisions of Section 27
of the said Act. This is the undisputed position. In view of this, urider
the provisions of Section 28 of the said Act,' the appellant became G
entitled to occupy a tenement in the new building. The only question
before us is as to what is the nature of the tenement to which he is
entitled. Thereis nothing specific in this connection in the language of
sub-section (1) of Section 28. However, a fainommonsense reading of
the provisions of sub"section (1) of Section 28 would show that a
tenant against whom eviction decree has been passed under Section H
'

584 SUPREME COURT REPORTS [1989] 1 S.C.R.

A 21(1)(j) and who has given notice as contemplated under Section 27 of -1
the Act would be entitled to a tenement in the new building which
could be said to be reasonably comparable to or to reasonably cor-
respond to the tenement in respect of which the decree was passed. It
appears to us that the learned Judge of the High Court who delivered
the impugned judgment has based it on the consideration of a question
B which really was not material, namely, whether the appellant was
entitled to get an identical shop in the new building, whereas the real .>
question was as to whether he was entitled to a comparable shop. On
the facts of the present case, it can be seen that the original shop
occupied by him admeasured 17' x 9' and was ffafcing the Belept Main i·~·
Road. The shop which respondent No. 1 has o ered to the appellant
C was only admeasuring 11' 6" x 8' 6" and was not facing the Belepet
Main Road but was on the rear of the new building. We fail to see how
this shop can be considered as comparable to shop originally occupied ·-t(
by the appellant. Moreover, it is not as if comparable shops were not
available. In fact, respondent No. 1 constructed several shops of 9' x
16' facing the Belepet Main Road, one of which he has given in a
D hurried manner, as set out earlier, to respondent No. 2, probably with ."-
a view to forestall the claim of the appellant. In these circumstances,
we fail to see how the appellant could be compelled to accept the shop
1
offered by respondent No. 1, which is in no way comparable. The
provisions referred to earlier clearly suggest that, at the least, the "'«'
appellant was entitled to a shop as reasonably corresponding to the
E original shop occupied by him as the circumstances would permit. It
may be clarified here that it is not the appellant's case that he is
entitled to an identical shop but that he was entitled to a comparable ,
shop. It was submitted by Mr. Kaushik, learned counsel for respon-
dent'No. 2 that as far as the shop given to him is concerned, which is
claimed by the appellant, he has already_ obtained tenancy of the said ~ .
F shop from respondent No. 1 and there is no reason why his tenancy~~
should be disturbed. It is urged by him that there are a number of
similar shops constructed by respondent No.1-landlord facing the
Belepet main Road and there is no reason why his shop should be
picked out for being given to the appellant. In our view, whatever
might be the merits of this submission, it is not open now to respon- ;
G dent No. 2 to make this submission or resist the claim of the appellant.
Respondent No. 2 was joined as a party in the revision petition dis-
posed by a Division Bench of the Mysore High Court as set out earlier, ~:
which was between the same parties and which decision in which we
have already discussed to in some detail earlier (reported in Sreenivasa
Rao v. Narasirnhiah, [19721 1 Mysore Law Journal p. 490). In that
H case, the High Court held that the rights of respondent No. 2 are
K.S. RAO v. K.M. NARASIMHAIAH [KANIA, J.] 585

subject to the hghts ofihe original tenants conferred upon them under A
Sections 27 and 28. This decision has not been challenged· by respon-
dent No. 2 in any proceedings and has now become final as against
him. In view of this, it is not open to him now to raise any of the
contentions which he has sought to raise. It was open to him to make
any submmission which he wanted to make in that case or to file an
B
appeal against the judgment in so far as it adversely affected him but
he has not chosen to do so and it is not now open to him to raise these
contentions. We are of the view that the appellant is entitled to be
handed over the possession of the shop occupied by respondent No. 2.

Before parting with the case, we may mention that the learned
counsel for the appellant referred to a couple of decisions given by c
High Courts holding thai und<er provisions similar to those we have
discussed earlier, a tenant is not entitled to identical premises in the
newly constructed building, but in the view which we have taken, as
set out earlier, these decisions are of no relevance.
D
In the result, the appeal is allowed with costs against respondent
No. 1 and respondent No. 1 is directed to put the appellant in posses-
sion of the said shop occupied by respondent No. 2 as a tenant and
respondent No. 2 is directed to hand over his shop for the aforesaid
purpose. There will be no order as to costs as between the appellant
• and respondent No. 2.
E
G.N. Appeal allowed.