ORDER
1. Rao Bahadur Annaswamy Mudaliar Trust is constituted under a Will dated 31-10-1914 of Rao Bahadur B. P. Annaswamy Mudphan Rao died on 22-1-1924. The object and the purpose for which the trust property could he put into use is settled under a scheme framed by the Court of the District Judge. Civil Station Bangalore in O.S. I of 1946.
2. The eviction petitions schedule premises bearing Municipal Nos. 49, 50 and 51 of St. Marks Road and No. 41, Museum Road, Bangalore which are adjacent properties are owned by the said Trust. In respect of premises Nos. 49 and 50 measuring about 22560 sq. feet HRC No. 6864/80 and in respect of premises No. 51 measuring about 32980 sq. feel, HRC 6865/80 were filed by the Trust against the petitioners and some others seeking their eviction in terms of the provisions of Section 21(1)(h) and (j) of the Karnataka Rent Control Act, 1961. The lease in respect of both the premises commenced on 31-8-1956 in favour of Airflow Transport (India) Private Ltd., a Company incorporated under the Companies Act, 1956, which has preferred HRRP Nos. 6281 and 6282 of 1988.
3. The other petitioners in these revision petitions claim to be in occupation of different portions of the leased premises as sub-tenants under the said company excepting the petitioner in HRRP No. 6309/88 who has preferred not to disclose the capacity in which it is in occupation/possession. The tenant Airflow Transport (India) Private Ltd., are admittedly not in physical occupation of any portion of the petition schedule premises.
4. As noticed above the aforesaid premises were taken on lease under two lease deeds Exs. P.6 and P.7 both dated 31-8-1956. Under Ex.P.6 premises Nos. 49 and 50 were leased on a monthly rent of Rs. 228/-. Under Ex.P.8 premises bearing No. 51, St. Mark's Road and No. 41, Museum Road were leased on monthly rent of Rs. 178/-. The term of the lease in the first instance was fixed at ten years renewable by another period of ten years.
5. The eviction was sought on the ground that the schedule premises were required for the purpose of the Trust i.e. to construct a new school building for Primary/Middle/High Schools and Industrial School to be started by it. In the eviction petition it was slated that the existing Buildings would be demolished and a new building utilizing the entire space would be put up.
6. The tenant i.e., the Airflow Transport (India) Private Ltd., (hereinafter referred to as 'the tenant') disputed the bona fide requirement of the Trust contending that in terms of the scheme framed by the Court in O.S. 1 of 1946 the Trust could only run a Primary School and that such a school has already been started and is being run by the trust on Moore Road in art area approximately measuring 200 x 600'. It was contended by the tenant that it was not open for the trust to establish any other school other than the primary school in terms of the scheme. It was also pleaded that the petition schedule premises are situated in a predominantly commercial locality and, therefore, would not be suitable for establishing a school therein. The tenant also disputed the availability of sufficient funds for the trust to meet the cost of putting up a new school building. It was also pleaded that in terms of the lease deed the tenant has invested huge sums of money for construction of several permanent buildings within the premises and greater hardship would be caused to the tenant if eviction were to be ordered.
7. The defence of the other petitioners who are either sub-tenants or have secured possession of portions of the premises in some other manner are identical. In addition some of the petitioners have pleaded that there is no relationship of landlord and tenant as between them on the one hand and the tenant on the other.
8. The eviction petitions were filed on 10-4-1978. On behalf of the Trust, the Secretary-cum-Managing Trustee has been examined as P.W. 1. He has produced Ex.P.1 which is the certified copy of the proceedings of the meeting of the Board of Trustees, held on 31-7-1976. Ex.P.2 is the approved plan dated 24-7-1977. Ex.P.3 is the no objection certificate issued by the Bangalore Development Authority for establishing a school in the premises in question.
9. P.W. 1 has deposed in his evidence that the Board of Directors have resolved at their meeting held on 17-9-1977 to sell 47 properties belonging to the Trust and Utilise the sale proceeds thereof for the construction of the school complex. Ex. PA is the 'certified extract of the minutes of the Board. He has also stated in his evidence that an application has been made to the jurisdictional Court for amendment of the objects of the scheme, of the Trust and permission to sell 47 properties. Ex.P.5 is the certified copy of the permission granted by the Court to sell the properties. The properties which were to be sold was estimated to be of the value of Rs. one crore. He has stated that four properties were put up for public auction and one property fetched a sum of.Rs. 2,75,000/-. He has deposed that steps have been taken for sale of the other properties. According to this witness, the estimated cost of the proposed school building was Rs. 30 lakhs. He asserted that the trust has got sufficient funds to put up a new building and to establish the proposed school and has concluded his evidence in chief by slating that public interest will suffer and the charitable intention of the trust would be frustrated if an eviction order was not passed.
10. In his cross-examination he has stated that an application has been made to the Civil Court, Bangalore seeking amendment of the objects clause of the trust and such an application was made even before the institution of the eviction proceedings. He has slated in his evidence that the said application filed by the trust was not taken up by Court promptly since the original records in O.S. 1 of 1946 could not be traced and by the time the original records were traced the application made by the trust was misplaced and therefore another application was made in the year 1983 and on the said application the Court granted permission as per Ex.P.5. In his evidence he has stated that close to the petition schedule premises there are number of prestigious schools, namely, Bishop Cotton Boys School, Bishop Cotton Girls School, St. Joseph' European High School and St. Joseph Indian High School, Baldwin Boys' School and Baldwin Girls' High School and many other convent schools. He has stated that in premises No. 59 Moore Road, Fraser Town, two educational institutions in the name of the R.B.P.A.M. High School and Higher Primary School are being run by the trust. He has .deposed that since the existing accommodation was not sufficient, a new block was being constructed. He has also stated that the petition schedule premises arc suitable for running of an educational institutions having regard to its location and site. He has denied that the eviction petitions have been instituted for extracting higher rent. He has deposed that the entire premises has been given on lease to the tenant only and not to any other sub-tenants/occupants. He has denied that trust has given permission to any one to put up permanent structures. The witness has been cross-examined by the other revision petitioners regarding Us requirement, the nature of relationship between the sub-tenants/occupants and the type of educational institutions that were proposed to be established.
11. Sri B. V. Acharya, learned Counsel appearing for the petitioners in HRRPNos. 6281/ 88,6282/88 and 6228/88 submitted that the trial Court erred in proceeding on the basis that in respect of trust properties it is not necessary to establish reasonable and bona fide requirement. The learned Counsel contended that under the provisions of Section 21(1)(h) of the Karnataka Rent Control Act, 1961 ('Act' for short) it cannot be said that it was not necessary for the trust to establish reasonable and bona fide requirement of the properties. He submitted that the reasonable and bona fide requirement of the landlord is a must for all categories of landlords including public charitable trust and therefore the interpretation placed by the trial Court on the provisions of clause (h) of sub-section (1) of Section 21 was erroneous.
12. Sri B. V. Acharya, therefore, submitted that it is necessary for this Court to call for a finding on the question of bona fide and reasonableness of the requirement of the trust. He also submitted that the terms of the scheme was enlarged for starting higher education only in the year 1984 by the order of the Court. He contended that the location of the property is not suitable for establishing an educational institution. He also submitted that permission has not been granted by the Education Department for establishing an educational institution, besides the licence and the sanctioned plan for construction of the building have expired. He further contended that under the Comprehensive Development Plan the land use of the petition schedule premises is notified for commercial purpose. He also submitted that the trial Court has not considered the question of partial eviction of the tenant.
13. Sri U. L. Narayana Rao, learned Counsel appearing for the petitioner in HRRP 6309/88 submitted that the petitioner was not a sub-tenant and me occupation. of the premises by the petitioner could be equated to that of a trespasser or a stranger in occupation.
14. Sri Udaya Holla, learned Counsel appearing for the petitioner in HRRP 6436/88 submitted that this Court cannot give a finding regarding bona fide and reasonableness of the requirement for the first time if the trial Court has failed to consider that aspect. He urged that it was incumbent on the part of the trial Court 10 consider the question of partial eviction. He relied on several decisions in this regard, : AIR1985Kant20 ; : AIR1994SC489 ; : ILR1985KAR2333 .
15. On the basis of the pleadings of the parties, the trial Court framed the following questions for adjudication :
(1) Whether the petitioner-trust requires the petition schedule premises for the purpose of the trust?
(2) If so, whether the first respondent would suffer greater hardship in case eviction is ordered?
(3) Whether the petition schedule premises are required reasonably and bona fide 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?
(4) If so whether the first respondent is not entitled to re-enter in accordance with the provisions of Sections 26 and 27 of the Act?
(5) Whether respondents 2 to 5 in HRC 6864/80 and respondents 2 to 10 in HRC 6865/80 are not liable for eviction under this petition?
16. The trial Court while considering the reasonable and bona fide requirement of the premises to achieve the object and purposes of Ihe charitable trust, rely ing on the decision of this Court in Mehtav Basti R. Nippani, 1983 (2) KLJ 258. has held mat when a public charitable trust files a petition for eviction under Section 21 (1)(h) of the Act, it is not necessary for it to prove that it requires the premises, bona fide and reasonably, and what was required to be proved was that the petitioner-trust require the premises for occupation for the purposes of the trust.
17. Section 21(1)(h) of the Act reads as here under:
'S. 21(1).....
(h) that the premises are reasonably and bona fide required by the landlord for occupation by himself for any person for whose benefit me premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust.''
(Emphasis supplied)
18. From a plain reading of the section which consists of two parts, it is obvious from the contrariety of the language between the first part and the second part that in so far as seeking occupation of the properly belonging to a public charitable trust was concerned, question of reasonable and bona fide requirement need not be established. All that is required to be established was that the premises are required for occupation for the purpose of the trust. In my view, the trial Court was right in holding that when the landlord, is a trustee of a public charitable trust, as in the instant case it is not necessary to establish the bona fide and reasonable requirement as is required to be established by a landlord who is not a trustee of a public charitable trust.
19. Sri S. G. Sundaraswamy, learned Senior Counsel appearing for the respondent-trust submitted that on behalf of the tenants/occupants only the petitioner in HRRP 6436/88 was examined as R.W. 1 and no other evidence has been let in by the tenants/occupants of the premises. R.W. 1 in his evidence has admitted that he look the premises on lease on 5-7-1972 from the tenant. He has stated that the lease deed was also registered. The monthly rent was Rs. 3500/- payable to Airflow Transport Company. He has also conceded that the Airflow Transport Company is the tenant under the trust and that the lease deed permits sub-lease. He claims to have modified the premises after he took possession of the same since it was in a dilapidated condition. Me has deposed that sanctioned plan was obtained from the Corporation. He has got marked Ex.R.2 endorsement issued by the Corporation regarding sanction of the plan. He has also produced the sanctioned plan. He claims to have invested more than six lakhs for remodeling the structure and has asserted that nobody took objection to the pulling up of permanent building. He has stated that he has in turn leased part of the premises which is in his occupation to 23 other tenanis. In his evidence he has stated that the schedule premises is not suitable for running of an educational institution since it is in a commercial locality and there is no sufficient space for playground if a school were to be established therein. He has also disputed the financial capacity of the trust to put up new buildings. He has stated in his evidence that the main tenant Airflow Transport Company is not effectively contesting the eviction petitions because there appears to be some collusion between the charitable trust and the company. In cross-examination he has admitted that he was fully aware of the fact that in terms of the lease between the trust and the main tenant the lease period was to expire by 31-7-1976. He Has stated in cross-examination that he allowed 23 persons 10 occupy certain specified areas in the building put up by him under licence. He has staled that he was receiving Rs. 16,000/-per month from the 23 licensees and he inducted them to the premises between the years 1976 and 1983. He has stated that the built area in his occupation is about 24,000 sq. feet and that he is in personal occupation of three rooms together measuring about 3000 sq. feet in extent.
20. This is all the evidence on record. The trial Court on the basis of the pleadings and the evidence on record has allowed the eviction petitions by noticing the delaying tactics of the tenants/occupants with a view to prolong the proceedings as long as possible and has held that the grounds under Section 21(1)(h) and (j) of the 'K.R.C. Act, 1961 have been made out and has directed the tenants/occupants to vacate and deliver vacant possession of the portion of the schedule premises in their respective occupation.
21. No exception could be taken as regards the conclusions reached by the trial Court on facts and on points of law that arose for consideration.
22. Almost at the conclusion the arguments, the learned Counsel for the parties noticed that the provision of sub-clause (iii) of clause (b) of sub-section (7) of Section 2 has been amended under the Karnataka Rent Control (Amendment) Act. 1994 (Karnataka Act No. 32/94). Section 2 of the Act deals with the question of application of the Act. Sub-section (7) of Section 2 read before the amendment, as hereunder:
'Section 2, Application of the Act:--
(7) Nothing in this Act shall apply--
(a) to (b).....
(bb) to any premises belonging to.--
(i) to (ii).....
(iii) a muzrai institution or a religious or charitable institution, under the management of the State Government;
(iv).....'
23. Section 2 of the Amendment Act reads as hereunder:--
'Amendment of S. 2 -- In Section 2 of the Karnataka Rent Control Act, 1961 (Karnataka Acl 22/61) in sub-section (7) in clause (bb);
(i) in sub-clause (iii) the words 'under the management of the State Government' shall be omitted.
(ii) to (iii).....'
24. The Amendment Act received the assent of the Governor on 13th day of September, 1994. Under sub-section (2) of Section 1 of the Amendment Act, the Amendment Act shall be deemed to have come into force with effect from 18-5-1994.
25. It is not in dispute that the respondent-landlord is a charitable institution, in view of the delegation of the words 'under the management of the State Government in terms of the Amendment Act, the application of any of the provisions of the Act would not apply to any muzrai institution or religious or charitable institution.
26. The learned Counsel appearing for the petitioners after strenuous arguments on the merits of the case, relying on Amendment Act urged that consequent to the amendment the forum created under the provisions of the Act cannot adjudicate upon the merits of the case and the proper course for the respondent is to institute a suit in the Civil Court.
27. The learned Counsel for the respondent-landlord submitted that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary, implication made to have retrospective operation. He submitted that under the Amendment Act it is not provided that the provisions of the amendment would be applicable to the pending matters. He urged that in the instant case since there is already an eviction order passed by the trial Court which is now before this Court in revision, the provisions of the Amendment Act would not be applicable to the instant case and the plea of the petitioners that the forum created under the provisions of the Act would lose its jurisdiction because of the amendment cannot be legally sustained.
28. The learned Counsel submitted that the eviction petition was instituted on 10-4-1978 and the order under revision was passed on 12-9-1988 and the revision petitions were filed soon thereafter and if this Court had decided these revision petitions before 1994 amendment, the petitioners could not have challenged the validity of the decrees. The learned Counsel emphasised that under sub-section (2) of Section 1 of the Amendment Act, the amendment shall be deemed to have come into force with effect from 18th day of May 1994 and therefore the provisions of the Amendment Act should be held to be prospective. 29. In support of his submission, the learned Counsel relied on the following decisions : (1) : [1951]2SCR221 ; (2)AIR 1957 SC 540; (3) : [1985]2SCR1051 : (4) : [1990]3SCR7 and (5) 1971 (1) Mys LJ 453 : (AIR 1971 Mys 298). On the other hand, the teamed Counsel appearing for the petitioners relied on a number of decisions in support of their submission that in view of the provisions of the Amendment Act, the revision petitions have to be allowed and the eviction petitions instituted by the landlords have to be dismissed on the ground of want of jurisdiction 10 entertain the petitions.
30. In a latter decision of the Supreme Court in R. Rajagopal Reddy (dead) by LRs. v. Padmini Chandrasekharan. : [1995]213ITR340(SC) in which the question that arose for consideration was whether Section 4(1) of the Benami Transactions (Prohibition) Act. 1988, applies to any pending suit, or action to enforce any right in property held benami if such proceedings were initiated by the person claiming to be the real owner prior to coming into force of Section 4(1). the Supreme Court overruled its previous ruling Mitilesh Kumari v. Prem Behari Khare, : [1989]177ITR97(SC) .and has held that the opinion expressed in the said case did not lay down the correct law.
31. In view of the Amendment Act and the decision of the Supreme Court cited. I have to grapple with this vexed issue whether the express forum created under the provisions of the Act would not be available to a muzrai institution or charitable trust and eviction orders passed by such a forum before the Amendment Act would become ineffective consequent to the amendment.
32. It is unfortunate that the properties of the charitable trust are presently in occupation of some strangers to the trust who are deriving the maximum benefit from the properties thus frustrating the purposes of the trust. It is obvious that the amendment is intended to help charitable trust in securing possession of its properties by depriving the statutory protection afforded to the tenants under the provisions of the Act. In the instant case if it w ere to be held that the amendment would render the decree ineffective, it would deprive the charitable trust the benefit of 20 years litigation and the trust would go back to square one and perhaps have to file a civil suit for securing possession of the premises in question.
33. Sub-section (2) of Section 1 of the Amendment Act provides that the amendment. shall be deemed to have come into force with effect from 18-5-1994. The legislature in its wisdom, keeping in view that the amendment was intended for the benefit of charitable institutions by making it easier for them to secure possession of properties, has purposely specified the date from which the forum created under the Act looses its jurisdiction.
34. Long years ago, I read a book entitled 'Commence in Law' by PAUL VINOGRADOFP, Corpus Professor of Jurisprudence in the University of Oxford, wherein he emphasises that Law must be supplemented by equity, there must be a power of adaptation and flexible treatment, sometimes rendering decisions which appear to be at variance with formally recognised law but turn out to be intrinsically just. The problem consists in keeping the function of this important element of flexible equity proportionate to the elements of certainty and stable tradition. A capricious treatment of statutes and leading precedents by the Courts would prove quite as destructive of justice as a rigid application of obsolete rules. Application of law in this as in so many other cases is a matter not only of exact knowledge, but of art all depends on the sense of due proportion in a wise combination of two distinct tendencies.
35. For the foregoing reasons, and, in the circumstances of the case, I hold that eviction orders dated 12-9-1988 under revision are not affected by the amendment and would remain effective.
36. These revision petitions fail and the same are dismissed, granting time of 8 (Eight) weeks for the petitioner to vacate and deliver vacant possession of the premises.
37. Petition dismissed.