Sri C.N. Seetharam vs Bangalore Timber Corporation

B.V. Nagarathna, J.—This revision petition is tiled by the landlord challenging the order dated 18.1.2006 in HRC. No. 546/2002 by the II Addl. Small Causes Judge at Bangalore.

The Petitioner filed the eviction petition invoking Sections 40 and 27(2)(j) of the Karnataka Rent Act, 1999 seeking eviction of the respondent tenant horn premises bearing No. 135, comprising of two vacant sites with temporary structures situated on 1st Main Road, Seshadripuram, Bangalore-20. It was contended that the lease in respect of the said premises was on monthly basis and the rent was Rs. 600/- p.m. and the purpose of lease was to carry on business in retail timber trade and for other allied purposes, that previously HRC. No. 2124/88 was filed against the respondent u/s 21(i)(1) of the Karnataka Rent Control Act, 1961 (for short "1961 Act") and the said petition was allowed. Being aggrieved by the same, the respondent herein had preferred HRRP No. 773/96 and during the pendency of the said petition, the Hon''ble Supreme Court rendered its decision u/s 31 of the 1961 Act and as a result, by order dated 4.11.1998 this court set aside the order passed by the trial court. Thereafter, legal notice dated 21.1.1999 was got issued by the petitioner terminating the tenancy and ejectment suit in O.S. No. 2786/99 was filed and the same was pending. In the meanwhile the Rent Act, 1999 was promulgated with effect from 31.12.2001 and the landlord filed the petition u/s 40 of the said Act. It was contended by the landlord that the lease was for the purpose of carrying on business in retail timber trade and for allied purpose and the tenant was entitled to put up temporary structures, during the period of lease and that the landlord intended to put up a commercial complex on the entire schedule premises and therefore, sought for possession of the schedule premises. It was also contended that the landlord had the requisite financial support and he had obtained plan and sanction from the corporation authorities and the same had already been produced in the previous proceedings in HRRP. No. 2124/88 and hence, sought for possession of the schedule premises u/s 40 of the Act and also eviction of the tenant as contemplated u/s 27(2)(j) of the Act.

After issuance of notice from the trial court, the respondent tenant in the said petition filed his objections admitting his relationship with the landlord under a lease deed dated 1.12.1965 for the purpose of carrying out timber business and contended that there were certain structures put up by him and therefore, the schedule premises could not be called vacant sites. It was also contended that the petition was not maintainable u/s 40 of the Act and also u/s 27 and that Section 40 of the Rent Act, 1999 made a discrimination between vacant lands and buildings. Further, the built up area was more than 14 sq.mts. and was admittedly, non-residential and therefore, the Rent Act, 1999 was not applicable to the said premises.

In support of his case, the petitioner examined himself as PW1 and got marked Ex.P-1 to P-5 while respondent examined himself as KW 1 and get marked Ex.K1-K5.

On the basis of the material on record, the trial court framed the following petitions for its consideration:

Whether the petitioner proves that the respondent is a tenant of the schedule premises?

Whether the petitioner proves that the petition is not hit by Section 2(3)(g) of Karnataka Rent Act of 1999?

Whether the petitioner proves that he requires the schedule premises for his use and occupation and also he is entitled for severance of the schedule premises and for possession of the said property as contended u/s 40 of Karnataka Rent Act of 1999?

Whether the petitioner proves that the respondent and other members of its firm have acquired the vacant possession of the premises before or after commencement of the Act as contended in the petition and as contemplated u/s 27(2)(j) of Karnataka Rent Act of 1999?

Whether the petitioner further proves that she is entitled for an order of eviction?

What order?

The trial court by its order dated 18.1.2006 held that the petition filed under Sections 40 and 27(2)(j) of the Rent Act, 1999 is dismissed as being hit u/s 2(3)(g) of the said Act being aggrieved by the said order of dismissal, the landlord has preferred this revision petition.

I have heard Shri. D.N. Manjunath, learned Counsel for the petitioner and Shri. V.V. Upadhyaya, learned Counsel for the respondent.

It is submitted on behalf of the petitioner that the petition filed u/s 40 of the Karnataka Rent Act was maintainable, Elaborating his submission he stated that the Karnataka Rent Act, 1999 does not apply to nonresidential "buildings" as such in view of the express provision u/s 2(3)(g) of the said Act and that a very small exception is carved out in the said Clause by excepting non-residential premises having plinth area below 14 sq.mtr which are used for commercial purpose to which the Act applies, but since in the instant case, the vacant lands are used for non-residential purpose, the Act applies, Under the circumstances, the landlord can invoke Section 40 of the Rent Act, 1999 to seek possession of the premises. That in the instant case, when the entire premises was required, the applicability of severance was absent and hence, the condition u/s 40 is not to be complied with and therefore, the petition ought to have been allowed by the trial court. He further submitted that the landlord had pleaded and made out any case that he was ready and willing to commence toe work of construction and hence, the said condition u/s 40 was also complied with and therefore, the trial court ought to have allowed the petition of the landlord on merits also. He therefore, requested this court to hold that the petition is maintainable u/s 40 of the Act and allow the revision petition.

Per contra, it is submitted by learned Counsel for the respondent that the petition u/s 40 of the Act is not maintainable as the Act does not apply to non-residential premises as such except to buildings having plinth area below 14 sq.ms if they are used to commercial purpose. He further contended that unless the schedule premises is capable of severance, Section 40 is not applicable. That since the entire vacant land is required in the instant case, there was no question of severance and hence the said Section could cot have been invoked by the landlord. Under the circumstances he submitted that the petition u/s 40 of the Act was not maintainable and therefore, this revision petition ought to be dismissed. He also submitted that in the event of this court coming to a conclusion that the petition u/s 40 is maintainable since there has been no determination on the merits of the case, the matter would have to be remanded back to the trial court for that purpose. Learned Counsel has intact adopted the arguments of Counsel for tenant in HRRP No. 136/07 which was heard along with this revision petition and is being disposed of by a separate order today.

Having heard the learned Counsel on both sides the following points arise for my consideration:

i) Whether the Rent Act, 1999 does not apply to the premises used for non-residential purpose, except premises having a plinth area not exceeding 14 sq.mtr. used for commercial purpose?

ii) Whether the petitioner was justified in invoking Section 40 of the Act seeking possession of the schedule premises?

iii) Whether Section 40 applies only when there is severance of the vacant land from the rest of the premises which will not cause undue hardship to the respondent?

iv) Whether the petitioner has made out a case u/s 40 of the Act?

v) What order?

The undisputed facts are that the subject matter of lease are vacant sites and the purpose for which the lease has been given is for carrying on business in retail trade of timber and in order to do so, permission was granted by the petitioner to put up temporary structures during the subsistence of the lease. Therefore, the subject matter of the lease is not building, but vacant land or building sites.

Section 40 is a special provision regarding vacant building sites. The said provision is an additional right granted to the petitioner to seek possession of vacant land notwithstanding any such right a petitioner may have u/s 27 of the Act which deals with eviction of a respondent. In order to answer points Nos. 1-3, it is necessary to analyse the relevant provisions.

Section 40 reads as follows:

Special provision regarding vacant building sites: Notwithstanding anything contained in Section 27 where any premises let comprise of vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose and the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him and the Court, on an application made to it in this behalf by the petitioner, is satisfied that the petitioner is ready and willing to commence the work and that the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, the Court may,-

(a) direct such severance;

(b) place the petitioner in possession of the vacant land;

(c) refer the case to the Controller to determine the rent payable by the respondent in respect of the rest of the premises; and

(d) make such other order as it thinks fit in the circumstances of the case.

The said provision is similar to Section 24 of the Delhi Rent Act, 1958 which reads as follows:

Special provision regarding vacant building sites.

Notwithstanding anything contained in Section 14, where any premises which have been let comprise vacant land upon which it is permissible under the building regulations or municipal bye-laws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose and the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him and the Controller, on an application made to him in this behalf by the petitioner, is satisfied that the petitioner is ready and wilting to commence the work, and that the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, the Controller may.-

(a) direct such severance;

(b) place the petitioner in possession of the vacant land;

(c) determine the rent payable by the respondent in respect off the rest of the premises; and

(d) make such other order as he thinks fit in the circumstances of the case.

A similar provision is found in Section 16(1)(i) of the Maharashtra Rent Control Act, 1999 which reads as follows:

When petitioner may recover possession (1) Notwithstanding anything contained in this Act but subject to the provisions of Section 25, a petitioner shall be entitled to recover possession of any premises if the court is satisfied-

(k) that where the premises are land in the nature of garden or ground pertaining to the building such land is required by the petitioner for the erection of new building which a municipal authority has approved or permitted A him to building thereon.

A bare reading of the above provisions makes it apparent that Section 40 of the Karnataka Rent Act and Section 24 of the Delhi Rent Act are almost identical and begin with a non-obstante Clause end which are in addition to other provisions for seeking eviction under the respective Acts.

The heading to the Section 40 is with regard to "vacant building sites" and the Section states that

(1) where any premises which have been let comprise vacant land upon which it in permissible under the building regulations or municipal bye-taws, for the time being in force, to erect any building, whether for use as a residence or for any other purpose,

(2) the petitioner proposing to erect such building is unable to obtain possession of the land from the respondent by agreement with him.

(3) he may make an application to the court and if the court is satisfied that,

(a) the petitioner is ready and willing to commence the work and that,

(b) the severance of the vacant land from the rest of the premises will not cause undue hardship to the respondent, then the Controller may:

(i) direct such severance,

(ii) place the petitioner in possession of the vacant land.

(iii) refer the case to the Controller to determine the rent payable by the respondent in respect of the rest of the premises and

(iv) make such other order as he thinks fit in the circumstances of the case.

However, there is one basic difference between the provisions of the Karnataka Rent Act and Delhi Rent Act, that is, with regard to the definition of the word "premises". Under the Karnataka Act "premises" is defined u/s 3(i) as follows:

(i) "premises" means:

(i) a building as defined in douse (a);

(ii) any land not used for agricultural purpose.

"Building" is defined u/s 3(a) as follows:

"Building" means any building or nut or part of a building or hut other than a farm house, let or to be let separately and includes;

(i) the garden, grounds and out-houses, if any appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut or part of building or hut;

(ii) any furniture or equipment supplied by the petitioner for the use in such building or hut or part of a building or hut;

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,

but does not include a room or other accommodation in a hotel or a lodging house:

The definition of a building u/s 3(a) of the Karnataka Act does not include land but u/s 3(i) of the Act the definition of "premises" has two components viz., building and land not used for agricultural purpose.

However, under the Delhi Act premise is defined u/s 2(i) as follows:

(i) "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes:

(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;

(ii) any furniture supplied by the petitioner for use in such building or part of the building;

but does not include a room in a hotel or lodging house;

The above definition of premises does not include vacant land.

In this context, it would also be of relevance to consider the definition of premises under the Maharashtra Rent Act Section 7(8) defines premises as follows:

"premises'' means - any building or part of a [building let or given on licence separately] (other than a farm building, including-

(i) the garden, grounds, garages and outhouses, if any, appurtenant to such building or part of a building,

(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof,

but does not include o room or other accommodation in a hotel or lodging house.

Under the Delhi Act and the Maharashtra Act the definition of "premises" is restricted to a building or a part of building and includes the garden, grounds and out-houses appurtenant to a building or part of a building. But under the Karnataka Act, the definition of "premises" not only includes a building, but also any land not used for agricultural purpose. The definition of "building" u/s 3(a) of the Karnataka Act is similar to the definition of "premises" under the Delhi Act and the Maharashtra Act Therefore, the Delhi Act and Maharashtra Act do not take within the fold of definition of "premises", land not used for agricultural purpose. On the other hand, under the Karnataka Act any land not used for agricultural purpose comes within the definition of premises. Under the circumstances, when the word "premises" is used u/s 40 of the Karnataka Act and u/s 24 of the Delhi Act which provisions are although in pari materia their meanings and contexts would vary. However, both Acts use of the phrase "where any premises which have been let comprise "vacant land" upon which it is permissible under the building regulations or municipal bye-laws to erect any building whether for use as a residence or for any other "purpose". The term "Vacant land" is not defined in the Karnataka Act Under the Karnataka Act the word premises would take within its scope not only vacant land which is appurtenant to a balding as defined u/s 3(a) of the Karnataka Act viz., garden, ground etc., but also any vacant land not used for any agricultural purpose as the same also comes within the definition of premises u/s 3(i) of the Act. But under the Delhi and Maharashtra Act since the definition of premises do not extend to any land as such, but only to building and includes garden, grounds and out-houses if any appurtenant to a building of to a part of such building, vacant land not used for agricultural purpose would not come within the purview of definition of premises under the Delhi Act or the Maharashtra Act Since the definition of vacant land is not enunciated under the Karnataka Act, keeping in mind the object and purpose of Section 40 of the Act, vacant land must be interpreted to include not only garden, grounds end out-houses, if any appurtenant to a building or to a part of such building but also vacant land not used for agricultural purpose as tar as Karnataka Act is concerned. Therefore, Section 40 of the Karnataka Act applies not only to a vacant land i.e., vacant building, sites appurtenant to a building or a part of a building, but also to any land which is not used for agricultural purpose which is a vacant building site. However the term vacant land in Section 16(1)(i) of the Maharashtra Act, and Section 24 of Delhi Act, is restricted to only garden, grounds and out-houses, if any appurtenant to a building or to a part of such building above vacant land.

Also, u/s 40 of the Karnataka Act and Section 24 of the Delhi Act the said vacant land could be put to use as a residence or for any other purpose (nonresidential or commercial purpose) by erecting a building. Further when the petitioner is unable to obtain possession of the land from the respondent by an agreement, then he may make an application to the court. Under both the Acts, the Act envisages that court has to be satisfied with regard to two conditions viz.

(i) the petitioner is ready and willing to commence the work,

(ii) the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent.

A contention has been raised by the teamed Counsel for the respondent that the petitioner has to prove both the above conditions and unless there is severance of the vacant land from the rest of the premises which would not cause undue hardship to the respondent; the court would not have jurisdiction to grout relief to the petitioner. It is further contended that where there is no severance of the vacant land from the rest of the premises that is, where the entire land is required by the petitioner, then in such a case Section 40 cannot he invoked. However, what has to be noted is the use of the words "building" sites hi Section 40 of the Act and the words tine "premises hut comprise of vacant land" and "severance of the vacant land from the rest of the premises". If under the Karnataka Act the definition of premises meant only building and land appurtenant to the said building, then the contention of the learned Counsel for the respondent could have been accepted as the vacant land to the building would then have to be separated horn the rest of the building for the purpose of construction and which severance would not cause undue hardship to the respondent But when the definition of "premises" under die Karnataka Act is not restricted to a building or vacant land appurtenant to a building, but also includes land not used for agricultural purpose, in that case, when the petitioner requires the entire vacant land, the question of severance would not arise. Merely because severance would not be applicable when the entire premises comprising of land is required by the land lord does not mean that Section 40 cannot be invoked by the petitioner who has let-out vacant land to a respondent Therefore, severance of the "vacant land" from the rest of the "premises" is a mandatory condition when the premises is comprised of building as defined u/s 3(a) of the Act in which event the vacant land appurtenant to a building would be required by the land lord to put up a construction as the land on which a building stands cannot be called a vacant land, when a portion of a vacant land, not used for agricultural purpose is required by the land lord and not the entire land. This is also apparent from the fact that Section 40 uses the words "severance of the vacant land from the rest of the premises" which would apply not only in the case of premises being a building but also to any land not used for agricultural purpose, as premises comprises both of the above under the Karnataka Act However, severance would not be applicable when the entire vacant land is required by the petitioner.

It is to be observed that Section 40 has been incorporated under the Karnataka Rent Act by following the Delhi Rent Act without noticing that the demolition of "premises" under both the Acts ere totally different. However, Section 40 of the Karnataka Act has to be harmoniously interpreted with Section 3(i) read with Section 3(a) of the Act, which define premises and building respectively. When it is so interpreted, it becomes obvious that when the entire land not used for agricultural purpose, winch is also premises within the meaning of the said Act is required, then the question of severance would not arise. Therefore, in any such circumstance, the petitioner is not required to prove that the severance of the vacant land from the rest of the premises would not cause undue hardship to the respondent. Otherwise it would lead to an absurd result when Section 40 would be applicable only when a portion of the vacant land is required by the petitioner in which case only principles of severance would be applicable and not when the entire land is required. Then when the entire vacant land is required by the petitioner, the said section cannot be invoked and the petitioner would not have the benefit of Section 40 of the Karnataka Act.

In this context, it would be of relevance to note that the definition of "premises" under the erstwhile Bombay Rents Act, 1947 definition is similar to the definition of premises under the Karnataka Act Further the definition of "premises" under the Karnataka Rent Act, 1961 is similar to the definition of premises under the Karnataka Rent Act, 1999 and the definition of "building" under the 1961 Act is similar to the definition of building under the Karnataka Rent Act 1999.

Moreover, Section 40 begins with non-obstante Clause and is a special provision which has to be given effect to irrespective of what is stated in Section 27 of the Act which is a general provision. The meaning of Section 40 has to be interpreted so as to enhance the object and intent of the said provision considering the fact that it has an over-riding effect vis-a-viz Section 27 of the Rent Act. In fact 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. Hence the provision that is available to the landlord u/s 40 to seek possession of vacant building, sites must be so interpreted that the Act is in fact applicable to such sites or otherwise, the said provision would become redundant. Under the circumstances, the contention of Section 40 would be applicable only where there is a severance and not otherwise is rejected.

As already observed the phrase "vacant land" is not denned under the Act, but the definition of premises in Section 3(i) of the Act includes a building and any land not used for agricultural purpose. But the definition of building in Section 3(a) of the Act includes garden area appurtenant to a building or part of a building which is nothing but vacant land. Therefore, any land not used for agricultural purpose of garden or grounds appurtenant to a building can be vacant land which can be used as a building site for the purpose of putting up a construction either for use as a residence or for any other purpose within the meaning of Section 40 of the Act. If possession of vacant land appurtenant to a building is sought by the petitioner for the purpose of putting up construction, then in that case there would be severance of the vacant land from the rest of the premises comprising of the building in which event the court would have to direct severance and pass ail consequential orders. On the other hand, if the possession of the building is also sought which also incidentally has grounds or gardens appurtenant to it, then in that case Section 40 cannot be invoked at all. On the other hand, when the premises let out is vacant buildings she or vacant land not used for agricultural purpose and the entire land is required for the purpose of putting up of construction, then in that event there would no severance at ail. Even if there is no severance of the vacant land where the entire vacant land is required in that case also Section 40 can be invoked or otherwise, if the contention of the Counsel for the respondent is accepted, then in all cases where entire vacant land is required. Section 40 cannot be invoked at all and the land lord would have to invoke some other provision under the Act or any other law. Such a discrimination between a situation when the entire land is required and when a portion of the land is required is not envisaged by the law makers.

At this stage it would be of relevance to note that under the Rent Control Act of 1961, Section 21(1)(l) & (m) were present which Sections are absent in the Rent Act of 1999. The said provisions axe extracted below.

Protection of tenants against eviction: 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 any court or oilier authority in favour of the landlord against the tenant.

That where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building which a local authority or other competent authority has approved or permitted him to build thereon; or

That where the premises are land in the nature of garden or grounds appurtenant to a building or part of a building such land is required by the landlord for the erection of a new residential budding which a local authority has approved or permitted him to build thereon.

The said provisions being excluded under the Rent Act 1999, is substituted by Section 40 of the Act It would also be of relevance to note that when the premises are required by the petitioner for the purpose of budding or rebuilding or to make any substantial addition or alteration including construction on the terrace of the premises or on the appurtenant land and such building or re-budding or the substantial addition or alterations cannot be carried out without the premises being vacated, then Section 27(2)(h) of the Rent Act 1999 can be invoked. But where the entire premises is not required and only a portion of the premises comprising of the vacant land is required, then in that ease even if that vacant land is appurtenant to a building, Section 40 can be invoked where there can be severance between the constructed portion (building) which the respondent could retain and the vacant land which would be required by the petitioner to put up a construction. But it in a case the entire vacant land, which is the subject matter of lease is required, where there would be no severance, in that event, petitioner cannot be driven to initiate proceeding before any other forum and under any other law.

In this context it would be of significance to note that Section 40 begins with a non-obstante clause. Section 27 and 40 are mutually exclusive and in the absence of provisions in the nature of Section 21(1)(l) & (m) of the 1961 Act, in the Karnataka Rent Act 1999, Section 40 is the only provision available for a petitioner to seek possession of the premises comprising of vacant land. Therefore, both the conditions mentioned in Section 40 namely the readiness and willingness of the petitioner to commence the work and that the severance of the vacant land from the rest of the premises will not cause any undue hardship to the respondent are not mandatory conditions, but the second condition would be applicable depending upon the need of the petitioner and the facts and circumstances of the case.

As already observed it the entire vacant land is required by the petitioner, there cannot be any severance of the vacant land from the rest of the premises but by that it would not mean that Section 40 is not available to a petitioner. The said Section must be interpreted purposefully with die object of enhancing the intention of the legislative to give relief to a petitioner to obtain possession of premises comprising of vacant land. Therefore, the use of the word "and" between the two conditions mentioned is not conjunctive but is disjunctive and the only mandatory conditions is that the petitioner must be ready and willing to continence the work of construction on the vacant land for which possession is being obtained from the respondent and when only a portion of the premises comprising of vacant land is required that the principle of severance would apply. But in the instant case since the entire vacant land is required by the landlord for putting up a commercial complex, the question of severance would not arise.

The next point to be considered is with regard to the applicability of Rent Act, 1999 to non-residential premises since it has been vehemently argued that since the said Act does not apply to a non-residential premises except those premises having a plinth area of 14 Sq.Mtr. which are used for commercial purpose and since in the instant case, the land has been used for non-residential purpose the said Act is not applicable, in support of the said contention, strong reliance has been placed on the decision of this court in the case of Chennachari and Ors. v. S. Saroja and Ors. reported in ILR 2005 Kar 481. In the said case, it was not in dispute that land measuring 40 ft. x 120 ft. was leased to the respondent as vacant land to run a timber depot at Mysore. An eviction petition was tiled under the 1961 Act before the trial court in HRC. No. 294/89 which was dismissed by an order dated 26.5.1995 by negativing the ground urged by the petitioner seeking eviction. The legal representatives of the petitioner filed a revision petition in Rent Revenue. No. 68/96 invoking Section 50 of the 1961 Act During the pendency of the said revision petition, the 1961 Act was repealed and the respondent also died on 18.2.1997. The legal representatives of the respondent were brought on record and the Rent Act 1999 came into force on 31.12.2001. The petitioner came up with an application u/s 5 of the 1999 Act contending that the premises in question was required to be vacated inasmuch as the period of five years had lapsed after the death of the original respondent. The said application was opposed. The revisional court however allowed the said application u/s 5 on the Rent Act 1999 and directed the respondents to be evicted. Challenging the said order, writ petition was preferred. The ground urged in the writ petition was that the revisional court had acted without jurisdiction since the Rent Act, 1999 was not applicable to the premises in question. The same was countered by stating that what was let out was only a vacant site and that the provisions of 1999 Act applied to vacant premises also, the embargo u/s 2(3)(g) of the Act was not attracted. This court held that the existence of plinth area always refers to a building and not to any vacant land. Therefore, what has been excluded is "building" having a plinth area exceeding 14sq. mtr. used for commercial purpose. In other words, a building used for commercial purpose and less than 14 sq.mtr. came within the applicability of the Act. Therefore, it has to be interrelated that the word "premises" used not once, but twice u/s 2(3)(g) of the Act is only in the context of building and not in the context of vacant land. The reason being that the concept of "plinth" is only with reference to a building and not with reference to any vacant land. In view of the above decision such a restrictive meaning to the word "premises" has to be given in Section 2(3)(g) by reading down its meaning. Section 3 of the Act which defines the word "premises" means

(i) a building as defined in Clause (a),

(ii) any land not used for any agricultural purpose.

Therefore, the concept of plinth area being considered as a standard or a reference point for exclusion of the applicability of the Act, the use of the word "premises" in Section 2(3)(g) is only in the context of a building as defined in Clause (a) to Section 3 and not any vacant land in which the concept plinth area would not at all be applicable. Therefore, the argument of the learned Counsel for the respondents that by virtue of Section 2(3)(g) of the Act, the Act is not applicable to the facts of the present case cannot be accepted.

The above interpretation is also in consonance with the object and purpose of Section 40 of the Act The said provision is only in the context of "vacant building sites", as stated in the heading to the section, where any premises comprises of vacant land, where the concept of plaint area is not applicable at all. Hence, a restrictive interpretation has to be given to Section 2(3)(g) of the Act in the context of plinth area to hold that the word premises in the said Clause is referable only to a building and not to vacant land. Otherwise Section 40 of the Act would become redundant. Also under the said Section the use of the premises after obtaining possession can be for residence or for any other purpose which includes non-residential or commercial purpose. Since a provision in statute cannot be so interpreted to make another provision in the very same statute redundant In order to give effect to Section 40 of the Act a restrictive meaning to the word "premises" in Section 2(3)(g) has to be given so as to exclude vacant land from its scope by reading down the word "premises" in Section 2(3)(g) of the Act.

However, strong reliance was placed on certain observations of this court in the above noted decision of this Court But, what is relevant to note is that the above observations were not made in the context of Section 40 of the Rent Act 1999, but the said case was in the context of an eviction petition filed u/s 21(1)(a)(b)(c) and (f) of the 1961 Act as amended under the 1999 Act. In view of a harmonious reading of Section 2(3)(g) with Section 3(i) read with Section 3(a) and Section 40 of the Rent Act, 1999, it is held that the embargo u/s 2(3)(g) of the Act is only in the context of building having a plinth area and not in the context of vacant land or Section 40 of the Act.

Another reason for so holding is that Section 40 itself speaks about erection of a building for a residence or for any other purpose, if the contention of the learned Counsel for the respondent is accepted, then the words "whether for use as a residence or for any other purpose" cannot be given full meaning. "Non-residential purpose" or a "commercial purpose" is implied u/s 40 of the Act and vacant land can be Used for putting up a building to be used for residential or for any other purpose after possession is obtained by the petitioner under the said Section In this context, it is relevant to note that u/s 3(k) of the Act defines residential user or purpose of residence to include letting out for running a public institution, the said definition is an exclusive one and broad in nature. However, there is no definition of non-residential purpose or user in the Act. Hence, the contention regarding non-applicability of the Act to non-residential premises except those below 14 sq. mts. is accepted only in the context of buildings. Intact, in the context of Section 40, this contention is not at all relevant inasmuch as Section 40 deals with building Site or vacant land where concept of plinth is absent.

It is also significant to note that Section 27 is with regard to protection of respondents against eviction. Sections 28, 29, 30 and 31 deal with right of the petitioner to recover immediate possession of the premises. Similarly, Sections 37, 38 and 40 deal with special provision for recovery of possession m certain cases. Whereas u/s 27 the petitioner is cast with the heavy burden of proving a ground for seeking "eviction" of the respondent under Sections 28, 29, 30, 31 and Sections 37 to 40, if the special circumstances exist, then the petitioner has the right to seek "possession" of the respondent premises. The right to seek possession under certain circumstances is quite different from the right to seek eviction of a respondent. If certain contingencies exist or there are circumstances which enable a petitioner to seek possession of the respondent premises, then the petitioner can invoke the provisions under the Rent Act itself and not by resorting to any other proceeding, it is in this context that Sections 37 to 40 have to be considered as these Sections can be invoked, notwithstanding anything contained u/s 27. Therefore, Sections 37 to 40 have an over-riding effect vis-a-vis Section 27 and even if a petitioner has right to evict a respondent under the provisions of Section 27, he can still exercise his right under Sections 37 to 40 depending upon the circumstances of the case, it would be of relevance to mention that Sections 38 to 40 of the Karnataka Act are in pari materia with Sections 21 to 24 respectively of the Delhi Act and the said Sections also have an overriding the effect vis-a-vis Section 14 of the said Act which pertains to eviction of the respondents. Therefore Section 40 has to be given its full effect.

With regard to the principles of interpretation of statutes, it is well known that a statute must be read as a whole and one provision of the Act should be construed with reference to the other provisions in the same Act so as to make consistent enactment of the whole statute so as to avoid any inconsistency or repugnancy either within a Section or between a Section and other parts of the statute.

In this contort it is relevant to cite the decision of the Apex Court in the case of Krishan Kumar Vs. State of Rajasthan and others, 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 en clash. It should not be tightly assumed that what the parliament has given with one band, 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 Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, wherein it has been observed as follows:

The Rule of construction is welt 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 he given both. This is what is known as the role of harmonious construction.

In fact in the above decision it is also stated that in I 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. Hence the provision that is available to the landlord u/s 40 to seek possession of vacant building, sites must be so interpreted that the Act is in fact applicable to such sites or otherwise, the said provision would become redundant. Under the circumstances Section 2(3)(g) of the Act must be harmonized with Section 40 as has been done above.

Moreover, in the instant case Section 40 begins with a non-obstante Clause and is a special provision which has to be given effect to irrespective of what is stated in Section 27 of the Act which is a general prevision. The meaning of Section 40 has to be interpreted so as to enhance the object and intent of the said provision considering the met that it has an over riding effect viz-a-viz Section 27 of the Rent Act. In fact both Section 27 of the Act as well as Section 40 of the Act begin with a non-obstante clause. Whereas u/s 27 it states that "notwithstanding anything to the contrary contained in any other law or contract", u/s 40 it states that "notwithstanding anything contained in Section 27". From a reading of the above it becomes apparent that Section 40 is a special provision and has an over-riding effect viz-a-viz Section 27. In feet Section 27 itself is a special provision in the context of general law of landlord and tenant but Section 40 applies only m certain circumstances and therefore, Section 40 has an overriding effect not only over Section 27 of the Act, but also in the context of general Jaw dealing with landlord and tenant. Therefore, the full effect of Section 40 has to be given.

The use of word "shall" raises a presumption that a particular provision is imperative, but this prima facie inference may he rebutted by other consideration such as object and scope of enactment and the consequences flowing from such consideration. There are numerous cases where "shall" has been construed as merely directory or applicable only under certain circumstances. However, in Section 40 what is to be noticed is the use of word "may". In the context of the court directing severance, this makes it apparent that it is only in those cases where severance of the vacant court from the rest of the premises is necessary, the court may give directions with regard to severance. Therefore where severance of the vacant land from the rest of the premises is not required, directions regarding severance need not be given by the court. Also after the words "landlord is ready and willing to commence the work", the word "and" is used followed by the words "that the severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant".

The use of the word "and" in between the two phrases is also not conjunctive and do not make the two conditions mandatory, but on the other hand, the said condition referring "that the severance of the vacant land from the rest of the premises will not cause undue hardship to the tenant" is applicable only when a portion of the vacant land is required. However, what is mandatory for the landlord to prove is that he is ready and willing to commence the work.

In fact, Section 3 which is the definition Clause begins as "In this Act unless the context otherwise requires" and defines "premises" to mean a building as defined in Clause (a), any land not used for agricultural purpose, but in the contest of Section 2(3)(g), the word premises used in the said provision has no reference to land at all, because the concept of plinth area is only in the context of buildings and not land. Hence the word "premises" in Section 2(3)(g) must be interpreted to mean only a building, by reading down the definition of premises, by keeping in mind the context in which Section 2(3)(g) is applicable.

In view of the above, it is held that the non-applicability of the Rent Act is only with regard to premises comprising of buildings excluding plinth area of 14 sq. ms. and therefore for ail other premises, Rent Act is applicable. That the landlord was justified in invoking Section 40 of the Act in the instant case and that the condition oi severance of the vacant land from the rest of the premises is not a mandatory condition particularly when the entire vacant land is required. Therefore point Nos. 1-3 are answered against the respondent herein.

Having held that the petition u/s 40 of the Karnataka Rent Act 1999 is maintainable, it is necessary to consider as to whether the landlord has made out a case u/s 40 of the said Act. The landlord has let in evidence as PW.1 and he has produced certain documents also. He has been cross-examined by the tenant. The tenant has also let in his evidence and has been cross-examined. He has also got certain documents marked in evidence. The trial court however, held that the Rent Act 1999 is not applicable to the premises in question in view of Section 2(3)(g) of the Act and did not consider the other issues raised u/s 40 of the Act and also do not give any finding on merits.

Under the circumstances this revision petition is allowed and the impugned order is set aside acid the matter is remanded to the trial court to consider the case on merits and then to arrive at a conclusion as to whether the landlord has made out a case for seeking possession of the schedule premises. Since the petition for eviction is of the year 2002 and earlier an eviction petition was filed in the year 1988, the trial court is graded three months time from the date of receipt of this order, to dispose of the matter on merits.