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2009 (3) KantLJ 386
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
B.K. Suresh Babu & Others - Appellant
Versus
Ananthalakshmi & Others – Respondent
House Rent Revision Petition No.524 of 2006 (EVI)
Date of Judgment : 10-12-2008
KARNATAKA SCHEDULED CASTES & SCHEDULED TRIBES (PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978 - Sections 5, 3(n) &41: [Anand Byrareddy, J] Inheritability of tenancy - Respondents claiming as successors of tenant who died in year 1987 - Not claiming any independent right of tenancy under any subsequent agreement - Held, A distinction is to be made of legal representatives of tenant who had died before 31.12.2001 and legal representatives of a tenant who has died after 31.12.2001. And it is only in cases falling under the latter category that Section 5 would stand attracted and the former would continue to be treated as tenants for purposes of Chapter-VI of the 1999 Act. Though Section 5 operates prospectively it would certainly take into account events prior to the date of the Act coming into force namely, 31.12.2001. Section 5, therefore, is prospective in operation. In that, the right of a legal representative of a tenant to claim protection u/S. 3 (n) read with S.21 of the 1961 Act is taken away prospectively with the coming into force of the 1999 Act, which recognizes only a limited right in such legal representatives. S.5 is not applied retrospectively as the requisite for an action in terms of Section 5 is an event that has occurred before the coming into force of the new Act. The right of a legal representative of a tenant who claims his right to occupation only as the successor of the tenant, but not under in terms of Section 5 which contemplates that the tenancy would stand determined with the death of the tenant subject to Section 5. The limited protection afforded may have spent itself out before the coming into force of the Act or it may be after the coming into force of the Act. This would hardly make any difference in the applicability of the same. The rule against retrospective construction would, therefore, not be applicable to Section 5 only because, a part of the requisites for its action is drawn from a time antecedent to its passing. To construe it otherwise, would result in nullification of its operation.
(This House Rent Revision Petition is filed under Section 46 (1) of Karnataka Rent Act against the Order dated 17.8.2006 passed in HRC No.11/2005 on the file of the VII Additional Small Causes Judge, Bangalore (SCCH-3), dismissing the petition filed under Section 27(2)(a) of KR Act for recovery of possession of the suit schedule premises.)
Heard the Counsel for the parties.
2. The petitioners are said to be the owners of property bearing no.445 (old no.32), OPH Road, Bangalore. The said premises measuring about 8’ x 11’ was leased to the father of the respondents by the father of the petitioners, on a monthly rent of Rs.14/- which stood enhanced and was Rs.40/-at the time of presentation of the petition before the trial Court.
The petitioners are brothers and have obtained the subject property as their share at a partition in terms of a compromise decree in a civil suit, OS 4327/2003, before the Court of the City Civil Judge, Bangalore.
The petitioners had filed the eviction petition under section 27(2)(a) and (j) of the Karnataka Rent Act, 1999 (hereinafter referred to as the ‘1999 Act’). The petitioners had raised a further specific plea that the respondents had continued in occupation of the subject premises after the death of the original tenant, in their capacity as his successors. Hence, in terms of Section 5 of the 1999 Act, their right to such occupation stood extinguished after the expiry of five years from the date of such death of the tenant.
Incidentally, the petitioners herein had, along with their elder brother who is no more, preferred an eviction petition earlier in respect of the very premises in case No.HRC 10352/1983 under Section 21(1)(a)(h) and (p) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the ‘1961 Act’). The same was dismissed on merits by order dated 12.4.1989, and was confirmed in a revision petition before this Court in HRRP 4879/1989, by an order dated 30.3.1995.
The respondent had entered appearance before the trial Court and contested the petition under the 1999 Act. The trial Court has rejected the petition.
The trial Court has opined that the plea insofar as the right of the respondents to continue in occupation of the premises having stood extinguished five years after the death of the original tenant in the year 1987, not having been raised in case no. HRC 3051/1989, the petitioners are deemed to have waived their claim to seek repossession.
The trial Court has held that the ground under Section 27(2) is not established.
The trial Court has further opined that the requirement of the premises for the occupation of the petitioners was also not established as the question had attained finality in the earlier petition and stood confirmed by this Court in HRRP 4879/1989. And for the very same reason has held that the ground raised under Section 27(2)(j) was barred by res-judicata in terms of Section 61 of the 1999 Act.
3. Shri Shaker Shetty appearing for the petitioners contends that the right of the petitioners has crystallized in the year 2003, on a partition having been effected, and their legal status and circumstances stood varied pursuant to the same. The finding of the trial Court that they are yet bound by the earlier order of dismissal of the eviction petition brought by the petitioners as members of a joint family is hence erroneous.
It is contended that the presumption of requirement contemplated under the provisions of the 1999 Act has been overlooked by the trial Court.
The trial Court has committed an error of law in holding that the petitioners are deemed to have waived their right to invoke Section 5 of the 1999 Act as no such plea was raised in the earlier proceedings.
As the last of the contentions of Shri Shetty was apparently a circumstance that has been addressed by the trial Court with reference to the legal position, the matter was heard at length.
4. It is contended that a specific plea was raised invoking Section 5 of the Karnataka Rent A
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