ORDER
B.V. Nagarathna, J.
1. Though this matter was posted for admission, with the consent of learned Counsel on both sides, it was heard finally.
2. This revision petition is filed by the tenant challenging the order dated 21.7.2008 passed in HRC. No. 10106/2007 on the file of the XV Addl. Small Causes Judge (Mayo Hall Unit), Bangalore. The respondents herein are the landlords.
3. For the sake of convenience the parties shall be referred to in terms of their status before the trial court.
4. The landlords who are the petitioners before the trial court tiled a petition under Section 27(2)(r) of the Karnataka Rent Act, 1999 ('Rent Act, 1999') seeking eviction of the tenant in respect of the schedule premises comprising of a shop situated in the ground floor of a shopping complex at Avenue Road, Bangalore. According to the petitioners, they are the absolute owners of the petition schedule premises bearing No. 145 called Ranganatha Mansion at Avenue Road, Bangalore and petitioner No. 1 is an association of persons and petitioner No. 2 to 4 are the members of the first petitioner. The respondent is a tenant in respect of the portion of the premises separately numbered as 13 on a monthly rent of Rs. 2,200/- apart from other charges. The tenancy is as per English calendar month. A notice dated 14.6.2007 was sent by the petitioners to the respondent and in her reply dated 21.6.2007 she admitted her relationship with the petitioners as a tenant. Since the 3rd petitioner namely V.R. Sathyanarayana is a businessman having sufficient business in gold and silver articles and the petition 5cheduie premises is suitable for commencing his business in the said premises and he has sufficient capital for the commencement of his intended business, eviction was sought under Section 27(2)(r) of the said Act.
5. According to the petitioners, they do not have any other accommodation in their possession to accommodate V.K. Satyanarayana, the third petitioner, for starting his business. That the husband of the respondent. Sri. P.A. Mahesh Kumar, was the tenant of the. schedule premises till his death on 24.4.2007 and on his death and by virtue of the provisions of Karnataka Rent Act, 1999, the respondent has become a tenant of the schedule premises which has been admitted by her. That the respondent is a chronic defaulter in the payment of rents, but the rents up to 1.7.2007 have been paid. According to the petitioners though the respondent was assured of possession for one year from the date of death of P.A. Mahesh Kumar as his legal representative, a demand notice was sent to her on 14.6 2007 and after receiving a reply, a rejoinder was sent on 28.6.2007 asking her to vacate the premises but since she did not do so, the petition for eviction was filed under Section 27(2)(r) of the Rent Act, 1999.
6. After receipt of notice from the trial court, the respondent appeared and filed her statement of objections contending interalia, that the petition was not maintainable in as much as it was premature, in view of Section 5 of the Rent Act, 1999 and the same was liable to be dismissed in limine. While traversing various averments made in the eviction petition, respondent contended that after the death of her husband, she had inherited tenancy of her husband and was entitled to be in possession of the schedule premises in view of the provisions of Section 5 of the Rent Act, 1999. She also submitted that the petition schedule premises was not required by petitioner No. 3 and also there were other premises in the commercial complex where the petitioner could make use of in the event of the requirement being genuine. She also denied that she was a chronic defaulter in the payment of rents and stated that she had paid the rents up to 31.12.2007 which was up to date. She also denied she was entitled to inherit tenancy only for one year after the death of her husband, but on the other hand she contended that she was entitled to continue for five years and therefore, sought dismissal of the petition.
7. In support of their case the petitioners examined third petitioner as PW.1 and got marked Ex.P1 to P4, while the respondent examined herself as PW.1 and got marked Ex.P1 to P5.
8. On the basis of the above material the trial court framed the following points:
1. Whether the petition is premature?
2. Whether the petitioners prove that they require the petition schedule premises for the use and occupation of the 3rd petitioner?
3. What order?
After considering the evidence on record answered point No. 1 by stating that the petition was maintainable and point No. 2 in the affirmative and allowed the petition and directed the respondent to hand over vacant possession of the schedule premises to the petitioners within six months from the date of the order. Being aggrieved by the said judgment the tenant has preferred this revision petition.
9. I have heard Sri. A. Madhusudhana Rao, learned Counsel for the petitioner herein and Sri. Yoganarasimha, learned Senior Counsel for M/s. Murthy Associates, Counsel for Respondent Nos. 1 to 4.
10. It is submitted on behalf of the petitioner herein i.e., the tenant that in the instant case the eviction petition ought to have been dismissed by the trial court as not maintainable in view of the fact that tenant had inherited the tenancy under Section 5 of the Rent Act and that she was entitled to be in possession of the schedule premises for a period of five years. Even according to the respondent/landlords, the tenant was entitled to be in possession for a period of one year from the date of death of the original tenant namely the husband of the petitioner and hence the petition was not maintainable since it was premature. He further submits that a person who has inherited tenancy under Section 5 of the Act cannot be equated to a tenant and hence provisions of Section 27 could not have been invoked against the petitioner herein. He further submits that the respondents/landlords have not made out a case under Section 27(2)(r) of the Act in as much as the respondents have not stated in their petition that they required the premises for PW.1 and further the absence of alternative accommodation not being proved the trial court could not have allowed the petition. While elaborating his submission Counsel for the petitioner has submitted that it is nowhere stated in the petition that the schedule premises is required for business and further by not stating that the premises in which the third petitioner is carrying on business is inadequate, the ground under Section 27(2)(r) has not been made out. He has also relied upon certain decisions winch shall be adverted to later on.
11. Per contra, it is submitted on behalf of the respondent herein that is the landlords that a person who inherits tenancy under Section 5 of the Rent Act, 1999 is also a tenant within the meaning of the Act In the first instance a person has to comply with the conditions mentioned in Section 5 in order to inherit tenancy, but that in the instant case the petitioner herein has not complied with the said conditions and therefore, she had not at all inherited the tenancy under Section 5 of the said Act. Assuming that she is a tenant within the meaning of the said Act, it was not necessary for the landlord to wait for five years before invoking Section 27 of the said Act; that Section 27 of the said Act is equally applicable to a person who has inherited tenancy under Section 5 and therefore, the contention that the petitioner was entitled to be in possession of the premises for a period of five years is not correct. He further submits that the respondent/landlords were entitled to file the petition seeking eviction of the petitioner by invoking Section 27(2)(r) of the Act and that they had made out a case under the said provision and therefore, the trial court rightly allowed the petition which does not call for any interference in this revision. The citation relied upon by the learned Senior Counsel during the course of his arguments shall also be adverted to.
12. After hearing learned Counsel on both sides, the following points arise for my consideration:
1. Whether the petitioner herein had complied with the conditions prescribed under Section 5 of the Act so as to inherit tenancy of the schedule premises?
2. Whether a person who inherits tenancy under Section 5 of the Act is a 'tenant' within the meaning of Section 3(n) of the Act?
3. If the answer to the above point is in the affirmative, whether sum a tenant is liable to be evicted within five years of inheritance of tenancy under the provisions of Section 27 or under other provisions of the Act?
4. Whether the respondents/landlords had proved their case under Section 27(2)(r) of the Act?
5. What order?
13. From the material on record, it is not in dispute that the original tenant P.A. Maheshkumar had died on 24.4.2007 and that his widow the petitioner herein was continuing in possession of the schedule premises. It is also not in dispute that within one year after the death of the original tenant the petition under Section 27(2)(r) had been filed, in fact the notice seeking eviction was got issued on 21.6.2007, within two months after the death of the original tenant Under the circumstances, the first point to be considered is as to whether the petitioner herein had inherited tenancy under the provisions of Section 5 of the Act.
14. Before answering the said question it would be of relevance to extract Section 5 of the Rent Act 1999 in order to find out the terms and conditions mentioned therein 30 as to find out whether the respondent/tenant had complied with the said conditions to be entitled to inherit the tenancy.
(1) In the event of death, of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death in his successors in the following order, namely-
(a) Spouse
(b) Son or daughter or where there are both son and daughter both of them;
(c) Parents;
(d) Daughter-in-law, being the widow of his predeceased son:
Provided that the successor has ordinarily bean living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependant on the deceased tenant:
Provided further that a right to tenancy shall not devolve upon successor in case such successor or his spouse or any of his dependant son or daughter is owning or occupying a premises in the local area in relation to the premises let.
(2) If a person, being successor mentioned in Sub-section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependant on him on the date of his death, or he or his spouse or any of his dependant son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of tenant; an, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished.
15. From a reading of the said prevision it is evident that in the event of death of tenant, the right of tenancy would devolve on certain categories of his successors in a particular order for a maxim am period of five years from the date of death. The order of succession is also mentioned. However, in order to inherit the said tenancy certain conditions have to be complied by the successor, they are, that 1) the successor had ordinarily been living or carrying on business in the premises with the deceased/tenant as a member of his family upto the date of his death; 2) he/she was dependant on the deceased tenant; 3) in case the successor or his spouse or any of his dependant son or daughter is owning or occupying the premises in the local area in relation to the premises let, then the right to tenancy would not devolve on the successor. The above conditions are mentioned in the two provisos to Section 5(1). While adverting to the above conditions, Section 5(2) states that if condition Nos. 2 or 3 above are not satisfied, in that event the successor shall acquire the right to continue in possession as a tenant for a limited period of only one year from the date of death of the tenant and on expiry of that period or on his death whichever is earlier, the right of such successor to continue in possession of the premises would become extinguished. For the removal of doubt, by way of explanation, it has been provided that in the event of the right of any successor to continue in possession of the premises becomes extinguished under Section 5(2) of the Act, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises hut if there is no other successor of the same category, then the right to continue in possession of the premises would no pass on to any other successor specified in any other category or categories. It is also stated that the right of every successor to continue in possession of the premises is personal to such a successor and shall not on the death of the successor devolve on any of his heirs.
16. In the case of Kodi Nagappa (deceased by L.Rs) v. Smt. Hampamma (deceased by L.Rs) 2008 (6) Kar LJ 420 the distinction between a tenant under the 1961 Act and a tenant under the 1999 Act has been made by stating that under 1961 Act while the legal heirs of the deceased-tenant themselves became tenants and were entitled for the protection under 1999 Act, the legal heirs or the relatives of the tenant who were living with the tenant at the time of his death do not become tenants by themselves, under the Rent Act, 1999, the protection to such persons is in terms of Section 5 and it was for a limited period only.
17. It is however the contention of the learned Senior Counsel for the landlords that the wife of the tenant in the instant case bad not complied with the conditions prescribed under Section 5 in as much as she was not carrying on any business in the premises with the deceased/tenant up to the dare of his death. Hence she was not entitled to inherit the tenancy, Therefore, while at the first instance contending that Section 5 was not applicable in view of non-compliance with the Conditions mentioned therein, alternatively, he submitted that since rents were accepted by the landlords from her there was creation of a new tenancy and therefore, Section 5 was again not applicable to the facts of the case. The answer to the said contention is however, found in a decision of this court in the case of B. Chikkanna v. N. Narasinga Rao (deceased) by L.Rs. reported in AIR 2006 Kar 375. While dealing with the circumstances in which the tenancy are inheritable in the context of non-residential premises, this court has held that the words 'has ordinarily been living or currying on business in the premises with the deceased/ tenant as a member of his family up to the date of his death' have to be liberally interpreted and not literally interpreted because if these words are literally interpreted, then the wile who is not carrying on business in the premises with the husband would not be entitled to the tenancy rights at all and such a grammatical construction would lead to absurdity and a manifest contradiction on the apparent purpose of enactment and would result in injustice hardship and inconvenience which was never intended by legislature. Hence, it is stated that the mere fact that the wife was living with the tenant as a member of his family up to the date of his death would be sufficient compliance with condition No. 1 so as to enable her to inherit tenancy rights even in respect of his business premises for a period of five years provided the other two conditions referred to above are also satisfied. Hence, the contention of the learned Senior Counsel that use of the words 'living or carrying on business' have to be read in the respective context of residential and non-residential premises and cannot be made applicable both in respect of residential as well as non-residential premises is not acceptable. The use of the word 'or' between the words has ordinarily been living' on the one hand and 'carrying on business' on the other hand, means that either of the conditions would have to be satisfied by the successor and not both the conditions, be it residential or nonresidential premises. The said interpretation would then enhance the object and purpose of Section 5 or otherwise by splitting the above words in the context of residential or non-residential premises, as the case may be would not serve the object and purpose of the Section. It is also relevant to note that since the wife of the tenant (petitioner herein) was living with the deceased tenant and dependent on her husband at the time of MD death and that she has no other premises in the local area in relation to the premises let, she would be entitled to inherit tenancy up to a maximum period of five years. Therefore, the inheritance of tenancy only for a period of one year as per Section 5(2) of the Act does not arise in the instant case. For the aforesaid reasons, the contention of the learned Senior Counsel is rejected. Hence, point No. 1 is answered against the respondent/landlords.
18. Having held so, the next point that arises for my consideration is as to whether the person who inherits tenancy under Section 5 of the Act is a 'tenant' within the meaning of Section 3(n) of the Act Section 3(n) of the Act reads as follows:
Tenant means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable, and includes:
(i) subtenant;
(ii) any person continuing in possession after the termination of his tenancy but does not include any person to wham a licence as defined in Section 52 of the Indian Easements Act, 1882 has been granted.
19. The said provision is exhaustive in respect of three categories of persons who pay rent, namely, (i) any person by whom the lent is payable, (ii) any person on whose account rent is payable and (iii) any person en whose behalf rent is payable, the definition is however, inclusive of various category of tenants, two of whom are mentioned, namely (i) sub- tenant and (ii) any person continuing in possession after the termination of his tenancy. Since the kinds of tenants haw not be enumerated within the definition of tenant under the Act, the question would be as to whether a person, who, as a successor has inherited tenancy under the provisions of Section 5 of the Act is a 'tenant' within the meaning of Section 3(n) of the Act.
20. Learned Counsel for the tenant has vehemently contended that a person who inherits tenancy under Section 5 of the Act is not a tenant within the meaning of the Act. Since the definition of tenant is an inclusive definition with regard to various categories of tenants, in as much as a subtenant who has no privity of contract with the landlord is also included within the said definition, and a person continuing in possession even after termination of tenancy with the landlord is also included within the said definition, I am of the view that a person who as a successor has inherited tenancy would also have to be included within the definition of tenant. Under the general law, a sub-tenant or any person continuing in possession after the termination of his tenancy cannot be considered to be a tenant unless the agreement between parties provides as such. However, the Rent Act, 1999 considers such category of persons also to be tenants, which is a statutory recognition of such persons to be included within the definition of tenant for the purpose of the Act. Therefore, a sub-tenant or a person continuing in possession after the termination of his tenancy are in fact statutory tenants. By the same consideration a successor who has inherited tenancy has also to be viewed as a statutory tenant within the definition of tenant under Section 3(n) of the Act since the said definition is net exhaustive on the various categories of tenants and only two categories have been enumerated. Therefore, a successor of a tenant who has inherited tenancy under the provisions of Section 5 is a tenant within the meaning of Section 3(n) of the Act.
21. in this contort it would be useful to the definition of tenant under Section 2(1) of the Delhi Rent Control Act, 1958 as amended, which reads as follows:
Tenant means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be, pay and includes:
(i) sub-tenant,
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified respective, in Explanation I and Explanation II to this clause, such of the aforesaid persons:
(a) spouse,
(b) son or daughter or where there are both son and daughter, both of them
(c) parents,
(d) daughter-in-law, being the widow of his pre deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include:
(A) any person against whom an order or dense for eviction has been made, except where such decree or order for eviction is liable to be re-Opened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976,
(B) any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1882 (56 of 1882) has been granted.
Explanation I,- The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death;
(c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased, person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death.
Explanation II: If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not finally dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year, and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
Explanation III: For the removal of doubts, it is hereby declared that:
(a) where, by reason of Explanation II. the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there, is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;
(b) the right of every successor, referred to in Explanation I to continue in possession after the termination of the tenancy shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs.
22. A reading of the said definition of tenant under the Delhi Act makes it apparent that it is a combination of the definition of tenant under Section 3(n) of the Karnataka Rent Act, 1999 read with Section 5 of the said Act. The inheritability of tenancy which is under Section 5 of the Karnataka Rent Act is in fact incorporated within the definition Section 2(1) of the Delhi Rent Act which defines tenant and Sub-clause (iii) of Section 2(1) of the Act, in fact carves out of a category of tenant who is a successor of the original tenant who is continuing in possession alter the termination of tenancy. Under the Karnataka Rent Act also, a person continuing in possession after the termination of his tenancy is a tenant under Section 3(n) and in the event of the death of such a tenant also, Section 5 will be applicable, subject to the terms and conditions being complied with. Therefore, both the Sections which define a tenant are in pari materia with regard to categories of tenants in as much as both the definitions are inclusive in nature. Therefore, taking note of the definition of tenant under cue Delhi Rent Act it can safely be concluded that a person who has inherited tenancy under Section 5 of the Karnataka Rent Act is also a tenant within the meaning of Section 3(n) of the Act.
23. Learned Counsel for the tenant has however, relied upon a decision of this court in the case of Taradevi and Anr. v. Sakku Bai and Anr. reported in 2003 (1) KCCR 714 to contend that the legal representative of deceased tenant cannot be a 'tenant' within the meaning of Section 3(n) of the Act and hence the tenant in the instant case who has inherited the tenancy is not a tenant within the meaning of Section 3(n) of the Act and therefore Section 27 cannot be applied to such a person. The facts in the said case were that the landlords had filed a petition under Section 21(1)(h) & (i) of the Karnataka Rent Act 1961 '(1961 Act)' which has been repealed by the Karnataka Rent Act, 1999 against the tenant in respect of the petition premises. The tenant died on 30.12.1987 during the pendency of the eviction proceeding before the trial court and the trial court allowed the petition in toto. The legal representatives of the deceased/tenant took up the matter in revision before the District Judge who allowed the revision petition and dismissed the eviction petition. Being aggrieved by the said order the landlords preferred revision before this court, during the pendency of which, the 1961 Act was repealed and replaced by the Rent Act 1999. This court after adverting to Section 5 of the 1999 Act, after taking note of the fact that the original tenant had died on 13.12.1987 considered as to whether the legal representatives of the said tenant could claim to be tenants in their own right under the 1999 Act or whether they could be treated only as successors of the original tenant. After comparing the definition of a tenant under 1961 Act with that of Rent Act of 1999 held that since the original tenant had died more than five years ago, the maximum period to which a successor of the original tenant could succeed to the right of tenancy, had lapsed, Section 5 was applicable and after referring to Section 70(2)(b) of the Rent Act 1999, held that retrospective operation of Section 3(n) and 5 of the 1999 Act had to be inferred and the party affected could not escape from the said conclusion by stating that the 1999 Act had only been prospective effect. It was also held that when the matter was pending in revision before this court, it should be deemed to be a pending proceeding and accordingly Section 5 of the 1999 Act was applied with retrospective effect by virtue of the provision under Section 70(2)(b) and the revision petition was allowed since five years had lapsed and it was held that the tenants had to vacate the premises and were given three months time to quit and deliver vacant possession of the premises. The ratio of the said judgment is to the effect that persons who could claim to be tenants in their own right under the 1961 Act could not do so after the coming into force of the 1999 Act, as the 1961 Act was repealed. The question as to whether the person who inherited tenancy as a successor to the original tenant could be a tenant within the meaning of Section 3(n) of the 1999 Act, did not arise in the said decision. This court however, took into consideration the fact that even if the death of the original tenant had occurred after the enforcement of the 1999 Act, would have been entitled to inherit tenancy for a maximum period of five years only. By holding that Section 5 bad retrospective effect, concluded that the legal representatives of the original tenant were entitled to be in possession of the petition premises up to a maximum period of five years which period had also lapsed in the said case and hence allowed the eviction petition under Section 5 of the 1999 Act The question whether the legal representatives were tenants for the purpose of Section 27 of the 1999 Act was also not considered. Under the circumstances the ratio of the said decision cannot have a bearing in the context of the issues raised in the present case. For the aforesaid reasons point No. 2 is answered against the tenant and it is held that a person who inherits tenancy under Section 5 of the Act is a tenant within the meaning of Section 3(n) of the Act.
24. Further in the case of Jaya Andrew v. Yusuf (deceased by L.Rs) reported in 2004(4) KCCR 2202 it has been held that if the conditions mentioned in Section 5 are complied with, then the right of tenancy would devolve upon the legal representatives only for a period of five years which means that up to a maximum period of five years, the right of inheritance is confirmed and beyond the said period, the right gets extinguished. However, would that mean that at any time within five years, the liability of the tenant to be evicted would not arise at all? The same is answered next.
25. The next issue would then be as to whether a successor of the original tenant who has inherited tenancy under Section 5 can be evicted within five years which is the prescribed period of inheritability, by invoking Section 27 of the Act or any other provision which deals with obtaining possession by certain category of landlords.
26. Section 27 is in Chapter VI of the Act which deals with regulation of eviction and since Section 27(2)(r) has been invoked in the present case, and the same is extracted as follows.
Section 27(1): 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 the court, District Judge or High Court in favour of the landlord against a tenant, save as provided in Sub-section (2).
(2) The Court may, on an application made to it I the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(r) that the premises let are required, whether in the same form or after re-construction or re-building, by the landlord for occupation for himself or for any member of his family if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation:
Provided that where the landlord has acquired the premises by transfer, no application for the recovery of possession of such premises shall he under this Clause unless a period of one year has elapsed from the date of the acquisition.
Explanation I: For the purpose of this Clause and Sections 28 to 31:
(i) where the landlord in his application supported by an affidavit submits that the premises are required by him for occupation for himself or for any member of his family dependent on him, the Court shall presume that the premises are so required;
(ii) premises let for a particular use may be required by the landlord for a different use if such use is permissible under law.
Explanation II: For the purposes of this Clause and Sections 28 to 31 an occupation by the landlord of any part of building of which any promises let out by him forms a part shall not disentitle him to recover the possession of such premises.
Explanation III: For the purposes of this clause, and Section 28 to 31 'owner of the premises' includes a person who has been allotted such premises by the Bangalore Development Authority or any other local authority by way of an agreement of hire purchase, lease or sublease, even before the full ownership rights accrue to such hire purchaser, lessee or sub-lessee, as the case may be:
That where the landlord is a trustee of any Public Charitable Trust, the premises are required for occupation for the purpose of the trust.
27. The words 'landlord' and 'tenant' mentioned in Section 27(1) of the Rent Act, 1999 have to be given the same meanings as per the definition Clause and therefore, a tenant under Section 27(1) of the said Act would include the successor who has inherited tenancy under Section 5 of the said Act as such a person is also a tenant within the meaning of Section 3(n) of the Act as held by me while answering point No. 2 above.
28. The question would then be as to whether within the statutory period of five years mentioned in Section 5 of the Act, a landlord can taxe action against the tenant who has inherited tenancy. Before answering the same it is necessary to advert the definition of tenant under 1961 Act. Section 3(r) of the 1961 Act read as under:
Tenant means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mothers of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents of fees in a public market, cart stand or slaughter house or of rents for shops has been framed out or leased by a local authority.
29. The said Section included within the meaning of definition of tenant his/her surviving spouse or any SOD or daughter or father or mother of the deceased/tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant. Therefore, the succession of tenancy was restricted to a spouse, son or daughter or father or mother of the deceased/tenant provided he or she had been living with the tenant in the premises up to the death of the tenant. The conditions for inheritance of tenancy are mentioned in Section 5 of Rent Act 1999.
30. On a comparison of Section 3(r) of 1961 Act with Section 5 of the Rent Act, 1999 it is noted that the latter Act is more rigorous both in terms of the conditions prescribed for inheriting tenancy and also restricts the period of tenancy. Under the 1961 Act there was no restriction with regard to inheritance of tenancy. In fact the successor of a deceased tenant was a tenant until he was evicted by due process of law, but under the Rent Act 1999 subject to compliance with the conditions mentioned in Section 5, a successor would achieve the status of tenant within the meaning of Section 3(n) of the Act but the said status is for a maximum period of five years only and not beyond that and at the end of live years the tenancy automatically stands extinguished and would not devolve on any other heirs. On the other hand, under the definition of tenant under Section 2(1) of the Delhi Rent Act no statutory period of inheritance of tenancy has been prescribed. Therefore, the legislature in its wisdom has restricted the right of inheritance of tenancy under Section 5 of the Rent Act, 1999 to a maximum period of five years from the date of death of the original tenant. The question however, remains as to whether within the period of five years an eviction petition could be maintained. Having answered already that a person who inherits tenancy under Section 5 of the Rent Act, 1999 is a tenant, within the meaning of Section 3(n) of the Act, could he be given a special insatment when it comes to eviction, under Section 27 of the Act or when immediate possession of the premises has be taken by certain categories of landlords under Section 28 to 31 of the Act or such other provisions in Chapter VI. The right to recover possession of premises under 1999 Act is regulated by Chapter 6 of the Act which alone can be invoked by a landlord. While Section 27 speaks of the grounds for seeking eviction by a landlord, Section 28 to 31 gives the right to recover immediate possession of premises to certain categories of landlords such as widows, employees to State or Central Government, Members of Armed forces and such other persons. If it is to be held that till the statutory period of five years lapses a tenant who has inherited tenancy under Section 5 of the Act cannot be evicted, then the object and purpose of Section 27 to 31 and such other provisions would be defeated. Merely because a successor of the original tenant has inherited tenancy, he cannot be placed in a different tooting or at a higher level as compared to any other tenant. All that the legislature intended was instead of giving a complete inheritance of tenancy, restricted the inheritance to a period of five years. But by that reason, it cannot be held that for the said period of live years, the tenant who has inherited the tenancy is immuned from eviction and therefore, cannot be evicted or that he cannot be dispossessed. In fact, Section 5, when harmonized with Section 3(n) of the Act which defines a tenant, when read in the context of Section 27 of the Act would mean that a person who has inherited tenancy under Section 5 of the Act is liable to be evicted within the said period of five years if the landlord can make out a case for eviction or seek possession under the various provisions of the Act.
31. In this context it would be apposite to refer to a decision of the Hon'ble Supreme Court in the case of Jaya Andrews v. Yusuf (deceased by L.Rs) reported in 2004(4) KCCR 2202, cited by the Counsel for the petitioner, wherein it has been held that the Legal representatives of the original tenant can continue for a period of five years from the death of original tenant and then quit and deliver vacant possession of the schedule premises. The said dictum indicates that, the maximum period of tenancy that can be inherited is five years and that cannot be read as the minimum period. In HRRP. No. 392/2006, relied upon by the Counsel for the petitioner, disposed of on 20.12.2007, it has been held in the context of Section 31(1)(a) as follows:
What the legislature intends by this provisions is to restrict the heritability of a tenancy depending upon the circumstances under which the said tenancy is claimed The maximum that could be claimed is a period of five years. Ft has nothing to do with the court's power to pass an eviction order against the L.Rs of the deceased tenant during the said period of five years. If the original tenant could be evicted from the premises on the landlord making out a case for eviction, under Section 6 or any other provisions of the Rent Act, a similar eviction order could be passed against the L.Rs of the deceased tenant.
32. Though the said dictum is in the context of Section 31 of the Act, the same is equally applicable in the case of Section 27 of the Act also, as merely because the statute says that the tenancy is inheritable for five years, the landlord cannot be mute for the said period, although he has good grounds to evict the said tenant.
33. In this context it is relevant to cite the decision of the Apex Court in the case of Krishna Kumar v. State of Rajasthan reported in : [1991]3SCR500 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 tightly 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 v. State of Mysore reported in AIR 19S8 SC 255 wherein it has been observed as follows:
The Rule of construction is well settled that when there are in an 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.
34. Under the circumstances, the decision reported m the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh and Ors. reported in : (1961)ILLJ540SC that where there is a conflict between a specific provision and a general provision, a specific provision would prevail over the general provision and the said Rule applies to resolve the conflict between different provisions in different statutes as well as the same statues in as much as the general provision would apply only to such cases which are not covered by special provision is not applicable to the present case in view of the applicability of the Rule of harmonious construction, as harmonious interpretation is given to Section 5 and Section 3(n) and Section 27 of the Rent Act, 1999 in the instant case. In fact in the said 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. Therefore, the successor who has inherited tenancy under Section 5 of the Act is a tenant within the meaning of Section 3(n) of the Act and he is liable to be evicted even within the period of five years of inheritance. Hence the said point is answered against the tenant. Therefore, the petition for eviction filed under Section 27(2)(r) of the Act was maintainable.
35. Having held so the last issue to be answered is as to whether the landlords have made out a case for evicting the tenant under Section 27(2)(i) of the Act.
36. The third petitioner has deposed as PW.1 and in his evidence by way of affidavit has stated that P.A. Maheshkumar was the tenant and alter his death on 24.4.2007, his widow was considered to be a tenant by virtue of Section 5 of the Rent Act 1999. The respondent is not tarrying on any business in the schedule premises along with the tenant. That he is conversant in the business of gold and silver articles as jeweler and that he does not have any independent business of his own and therefore, requires the schedule premises for starting his own business. The schedule premises is in the ground floor of shopping complex which has access to the customers and that he does not have any other premises or property which could be used for his business or which is more suitable than the schedule premises. He has also deposed that the respondent has kept the schedule premises under lock and key and did not require the same in any manner.
37. In his cross-examination he has stated that though there were 40 shops in the complex belonging to the petitioners in only one of the shops, FW. 1 along with the 2nd and 4th petitioner was running a jewelry business and that there was no other vacant shop in the said complex for PW. 1 to commence an independent business. He has also stated that there is no other premises where he can commence his independent business and therefore, the schedule premises is required for his business.
38. As opposed to this evidence, the respondent had stated that her husband was running a bullion business in the schedule premises and that she was depending on her husband and that she had inherited the tenancy of her husband and was in possession of the schedule premises after his death in terms of Section 5 of the Act. While stating that the petitioners have other premises available, she has stated that she is entitled to the protection under Section 5 of the Act and could not be evicted. Hence the petition was premature and had to be dismissed.
39. In her cross-examination she has stated that her husband had taken an overdraft to an extent of Rs. 75,00,000/- from Indian Overseas Bank for the purpose of business. Her husband and his brother died on the same day; that the schedule premises was seized by the bank and thereafter the possession was handed over to her. She intends to commence jewelry business in the said shop but due to lack of funds she has not yet commenced the same and that she has been supported by her brother and lather for her living. She has however, admitted as true that the 3rd petitioner is doing a joint family business in jewelry and that she is not doing any business in the schedule premises. Though she has said that it as false that the 3rd petitioner has no other premises suitable for his independent business, she has not given any details about any such independent business.
40. On a consideration of the above evidence, it becomes clear that the schedule premises is required for the purpose of the 3rd petitioner commencing an independent business in gold and silver articles, that he is doing the said business along with his brothers and that he has the requisite experience for starting his own business. The premises is suitable considering the fact that it is on the ground floor and easily accessible for customers, and petitioners do not have any other property or premises suitable for third petitioner's business. After the death of the tenant the respondent has kept the schedule premises under lock and key and therefore, docs not require the same. Both in the pleadings as well as in the evidence it has been averred and deposed that the 3rd petitioner requires the premises for starting an independent business in his name. The said requirement cannot be held to be one which is not genuine, considering the fact that he is doing business along with his brothers and he intends to commence his own business for which he had requisite experience also. Hence the requirement under Section 27(2)(r) of the Act has been stated by the petitioners in the pleading as well as evidence and hence presumption that the schedule premises are required for occupation of the 3rd petitioner has to be raised in the instant case. The said presumption is not rebutted by any cogent evidence.
41. As far as the petitioners having any other reasonable suitable accommodation is concerned, though the respondent in her evidence had stated that the 3rd petitioner has other suitable accommodation for commencing his independent business, no details of the same have been given by PW.1 in her evidence. On the other hand PW.1 in his evidence had said that though there are forty shops in the shopping complex belonging to the petitioners, there is no vacant shop in the said building and the schedule premises is the only one which is suitable for commencing his independent business. In the absence of there being any material with regard to the availability of any other suitable accommodation, it has to be held that the respondent has not discharged her burden of ousting the case of the petitioners on the basis that there was other suitable accommodation.
42. Hence it is concluded that the petitioners have made out a case under Section 27(2)(r) of the Act arid that the presumption was rightly raised by the trial court and in the absence of any rebuttal evidence the benefit of presumption has to be upheld in favour of the landlords. Hence point No. 4 is answered in favour of the petitioner/landlords.
43. Accordingly, the revision petition is dismissed and the order of the trial court is confirmed. The tenant is granted two months time to vacate and hand over vacant possession of the schedule premises from the date of this order. No costs.