ORDER
Hakeem, J.
1. These Revision Petitions arise out of the order passed by the trial Court on an application under Section 28(1)(b) of the Karnataka Rent Control Act, 1961 (the Act) directing the landlord to put respondent-1 (hereinafter referred the tenant) in possession of the reconstructed shop premises now in the occupation of respon-dent-2 (hereinafter referred as the new tenant).
2. The brief facts leading to these proceedings are as follows:
D.V. Haridev, the petitioner in C.R.P.No. 2653 of 1985 is the owner and landlord of the premises bearing No. 6, B.V.K. Iyengar Road, Bangalore-53. B. Narayanamurthy, respondent-1 in both the petitions (since deceased) was in occupation of the old premises as a tenant under the landlord. The landlord sought for eviction of the tenant on the ground under Section 21(1)(j) of the Act, in H.R.C. No. 1378 of 1976. The landlord's case was that the entire building consisting of three shops including the premises is required for the immediate purpose of demolition and reconstruction of a new building in its place. After contest the learned trial Judge by his order dated 17-9-1979 allowed the landlord's claim and directed the tenants to vacate the premises within four months. The trial Court had, inter alia, directed that the landlord shall commence the work of demolition within two months from the date he is put in possession of the premises. C.R.P. No. 11 of 1980 challenging the correctness and legality of the trial Court's order was rejected by the order of this Court dated 24-1-1980 granting the tenant extension of time till 30-4-1980 to deliver possession of the premises. However, the tenant actually delivered possession of the premises to the landlord only on 20-6-1980. On 10-7-1980 demolition of the building was commenced and the new building was completed in or about October 1981. Immediately thereafter the new tenant was inducted into the premises. The original tenant having expired in the mean time, on 17-10-1981 his legal representatives sought for re-entry into the new premises followed by an application under Section 28(1)(b) of the Act on 30-10-1981, which was registered as H.R.C. No. 2865 of 1981. The said application was contested by the landlord as well as by the new tenant. By the impugned order, the learned trial Judge has allowed the said application holding that the petitioners therein were entitled to be put in possession of the premises, subject to payment of fair rent. The correctness and legality of this order has been challenged by the landlord and the new tenant in these proceedings.
3. Sri Santosh Hegde, learned Counsel for the landlord and Sri G.P. Shivaprakash, learned Counsel for the new tenant urged the following contentions viz., that in the absence of a statutory notice as contemplated under Section 27 of the Act, the tenant was not entitled to claim his right of re-entry into the reconstructed premises. That the tenant had waived his right of reentry for valid consideration viz., after receiving a sum of Rs. 5,000/- from the landlord and that the trial Court had committed an error in law in upholding the tenant's claim that since there was oral notice of his intention to occupy the newly constructed shop premises absence of a written notice is not fatal to the tenant's Claim for re-entry. On the contrary Sri C.V. Subba Rao, learned Counsel for the tenant contended that no notice in writing under Section 27 of the Act was necessary in view of the alleged unequivocal undertaking by the landlord to put the tenant in possession of the newly constructed premises and the election by the tenant to occupy the same. In any event there was waiver of notice by the landlord and as such the notice in writing was merely an empty formality. Even otherwise, the landlord was given notice as per Ex.P-4 dated 15-12-1980 within the prescribed time, which is stated to have been sent under certificate of posting.
4. The main emphasis in the tenant's contention is that in the facts and circumstances of the case, a notice in writing is deemed to have been waived and as such it was not necessary. Alternatively, reliance is sought to be placed upon Ex.P-4 dated 15-12-1980, a copy of the notice allegedly issued by the tenant under certificate of posting. The certificate of posting is Ex.P-5. It is significant to note that this document was not filed by the tenant along with the application but came to be filed and marked in evidence much later. This assumes significance, firstly, in view of the fact that the mode of service of the notice was not pleaded in the application. Secondly, no presumption can be raised regarding its delivery. Certificate of posting even if it is held to be genuine, only discloses the fact of posting. The address given in the notice is also incorrect. That apart, the evidence of the tenant's son regarding posting of the notice is also inconsistent. Certain other inferences militating against the issue of the notice can also be drawn from the averments therein. Admittedly, the tenant was struck by paralysis in January 1980 and remained invalid till the end of his life. The notice refers to an alleged oral agreement between the parties and an assurance given to him by the landlord that he will give possession of the new shop in about six months' time and further assuring him that he would intimate about it, and that the tenant need not give any notice in writing in the matter. From the various circumstances, including the inconsistent stand taken by the tenant and the improbability of any oral agreement in view of the serious contest of the landlord's claim for over four years till culmination of proceedings in this Court, it is difficult to comprehend waiver of notice and the exercise of option as alleged in the said notice. It is also difficult to believe that any such notice was in fact issued by the tenant or received by the landlord. Further, the alleged personal meeting and oral agreement between the landlord and the tenant, who had admittedly lost power of speech due to paralysis, cannot be believed.
5. It is vehemently contended by Sri Subba Rao that since Section 27 of the Act does not in terms prescribe notice to be in writing, oral notice is permissible. It is not possible to accept this contention. Section 27 of the Act provides:
'Section 27.
Tenant's right to give notice to the landlord of his intention to occupy tenement in new building:
Where decree for eviction has been passed by a Court on ground specified in Clause (j) of the proviso to Sub-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 possession of the premises to the landlord, give notice to the landlord of his intention to occupy the new building on the completion on the following conditions namely:-
(a) That he shall pay to the landlord the fair rent in respect of the building:-
** ** ** (b) That his occupation of the building shall, save as provided in condition (a) be on the same terms and conditions as the terms and conditions on which he occupied the building immediately before the eviction.'
It is clear that the notice contemplated under Section 27 can only be a notice in writing. Rule 28 of the Karnataka Rent Control Rules, which provides for the manner in which the intimation, notices and orders under the Act shall be given inter alia provides that all notice shall be served on the person concerned personally by delivering or tendering to him such notice. If such person is not found and service under Sub-rule (1) is not possible, service may be effected by giving or tendering the notice to an adult member of the family and taking his acknowledgment. If there is no adult member willing to accept the service, service may be effected by affixing a copy of the notice on some conspicuous part of the last known address of the premises of the person concerned. In that view of the matter it is not possible to hold that notice need not be in writing. As such i have no hesitation in holding that the landlord did not in fact receive any notice in writing.
6. The only question that remains for consideration is whether in the facts and circumstances of the case in the absence of notice as contemplated under Section 27 of the Act, the tenant can validly enforce his right to re-entry into the newly constructed premises.
7. Section 27 of the Act requires the tenant to issue a notice to the landlord within six months from the date on which he delivers vacant possession of the premises. The said notice should convey his intention to occupy the new premises on the condition that he shall pay the fair rent in respect of the new building and in all other respects the occupation will be on the same terms and conditions on which he occupied the earlier building. The basic object of Section 27 of the Act is to inform the landlord of the definite intention of the tenant to occupy the new premises with willingness to pay the fair rent and to abide by the conditions stated therein so that, the landlord may suitably arrange his affairs regarding the new premises on its completion. For the same reason Section 28 requires the landlord to issue a notice not less than three months before the date on which the new building is likely to be completed and thereafter if the tenant fails to occupy the premises, within a period of one month from the date on which the building is completed, his right to occupy the new building stands terminated. The learned Counsel for the tenant sought to place reliance upon the Bench decision of this Court in K.C. SAREE EMPORIUM v. A.C.K. KOTHARI : ILR1989KAR1981 in which it is inter alia held that if the intention of the tenant is definite and it is convincingly conveyed to the landlord, that he intends to occupy the new premises and is willing to pay the fair rent and to abide by other terms, and conditions referred to in Section 27 while occupying the new building, issuance of notice under Section 27 by itself will be an empty formality. Notices contemplated under Sections 27 and 28 are not based on any public policy and they are for the respective benefits of the landlord and the tenant. While I am in respectful agreement with the said view, it seems to me that the ratio of the said decision is not at all applicable to the facts and circumstances of the instant case. The distinction between that case 'and the instant case is apparent from the facts stated in para-20 of the said decision. It reads as under:
'Here is a case where the landlord obtained an order of eviction under Section 21(1)(j). The burden of establishing that the premises was reasonably and bona fide required for the immediate purpose of demolishing it and that such demolition is to be made for the purpose of erecting a new building in its place, was on the landlord; this burden was substantially eased by the tenant agreeing to vacate the premises under an order of eviction in terms of the agreed terms. The petit Loner-landlord received a sum of Rs. 27,000/- from the tenant, which was paid by the tenant obviously to show his earnestness to take the new premises on lease; the landlord had the benefit of the said money to augment his resources for the construction of the new premises; further, he had the assurance of the tenant that he would occupy the new premises and pay an enhanced rent, (which was thrice the rent the tenant was paying earlier). The tenant vacated the old premises immediately. Having taken advantage of these terms of the compromise, it was highly inequitable and unjust on the part of the petitioner to deny the tenant the right to take the new premises on lease. All these years from about August 1985, the landlord enjoyed the sum of Rs. 27,000/- and has now set up a new plea for retaining the said amount, while refusing to lease the new premises. In the circumstances of the case, it has to be held that the order of the learned Judge of the Court of Small Causes does not call for interference under the revisional jurisdiction.'
8. It is clear from the said decision itself that the provisions of Sections 27 and 23 of the Act has to be necessarily complied with by a tenant where the Court has merely made a decree evicting him or the ground specified in Section 21(1)(j) of the Act, without giving any further direction that he should be put in possession of the reconstructed premises. On the other hand, while making an order of eviction on the said ground if the Court gives a further direction that the landlord should deliver possession of the reconstructed premises to the tenant, it is unnecessary for the tenant to comply with the requirement of issuing the notice contemplated under the said provisions. In the instant case apart from directing the tenant to deliver possession within four months, the only direction to the landlord is to commence the work of demolition within two months from the date he is put in vacant possession of the premises. In the penultimate para of the eviction order it is specifically observed that 'whatever right the tenant has in the matter of re-occupation of the new building that is matter to be considered at a later stage and not in these proceedings.' Similarly even in the tenant's revision (C.R.P. No. 11 of 1980) apart from granting the tenant further time to vacate, no further directions are given. The tenant has also not established any oral agreement as alleged in this behalf to set up the plea of waiver as it is sought to be done now. It is well settled that 'waiver' is contractual and may constitute a cause of action. In Halsbury's Laws of England, Third Edition, Volume-14 at page-637, it is stated thus:
'Waiver is the abandonment of a right, and is either express or implied from conduct....
Where the right is a right of action, or an interest in property, an express waiver depends upon the same considerations as a release. If it is a mere statement of an intention not to insist upon the right, it is not effectual unless made with consideration.'
The waiver is thus a voluntary abandonment or relinquishment of a known right. It must be supported by a valid consideration unless it arises from conduct creating an estoppel. There is, at any rate, no such thing as estopped by waiver as observed by the Privy Council. (See DAWSONS BANK LTD. v. NIPPON MENKWA KABUSHIHI KAISH (JAPAN COTTON TRADING CO. LTD ) The alleged consideration according to the learned Counsel for the tenant is retention of Rs. 1,000/-which had been paid by the tenant as advance at the inception of the tenancy. On the other hand, the landlord has pleaded that the tenant had received Rs. 5,000/-before delivering possession of the premises on 23-6-1980, which, however, has not been satisfactorily established. In the circumstances much significance cannot be attached to this part of the case of the respective parties. It appears to be well settled that the provisions of the Rent Control Act providing extraordinary remedies being inroads upon the landlord's freedom of action, have to be construed strictly in accordance with the words actually used by the legislature and they cannot be given an extended, meaning. In that view of the matter, the impugned order cannot be sustained.
9. In the result, both the C.R.Ps. are allowed. The impugned order is set aside. The application filed under Section 28(1)(b) of the Act stands dismissed. In the circumstances of the case the parties shall bear their own costs.