Shivashankar Bhat, J.
1. This Revision Petition is by the owner of the premises, arising out of an order rejecting I.A.No.VIII filed by it, in an Execution proceedings initiated by the erstwhile tenant of the premises. For the sake of convenience, the petitioner is referred as 'the landlord' and the respondent, 'the tenant', hereinafter.
2. In the year 1984, the landlord sought eviction of the tenant from a premises bearing No. 99 in Chowdeshwari Temple Street, Bangalore, under Section 21(1)(j) of the Karnataka Rent Control Act (for short, 'the Act'). The landlord asserted that the said premises was an old one and the landlord intended to put up a new and modern building of a substantial structure, consisting of 2 to 4 floors etc.
3. The parties, at that time settled the matter of eviction amicably; the tenant agreed to vacate the premises within a month and the landlord agreed to vacate the premises within a month and the landlord agreed to put up the new building within six months. The building plan was marked as Ex.P.1. The landlord agreed to let out the ground-floor of the new premises to the tenant on a monthly rent of Rs. 600/- to which, landlord agreed. Landlord had received a sum of Rs. 2,000/- earlier and another cheque for Rs. 25,000/-from the tenant, as advance was also received by the landlord. A written agreement dated 22-7-1985 was entered into, marked Ex.P.2 in the said proceedings. The measurement of the shop to be let out to the tenant was stated as 30' 8" x 9' 8" as per the sanctioned plan. These terms were reiterated in the respective depositions, of the landlord and the tenant.
4. By an order dated 13-8-1985 the Court of Small Causes Judge made a considered order accepting the case of the landlord under Section 21(1)(j) and thereafter ordered eviction of the tenant incorporating the terms of the compromise. The operative part of the order (decree for eviction) was as follows:
"Petition filed by the petitioner under Section 21(1)(j) of the Karnataka Rent Control Act, 1961 is allowed, in terms of the compromise petition. Respondent-tenant is ordered to vacate and handover the vacant possession of the schedule premises by 30-8-1985. Petitioner is ordered to complete the reconstruction work within a period of six months from 30-8-1985 and thereafter should put up respondent-tenant in possession of the ground floor premises measuring 30'.6" east-west and 9'.8" north-south and the respondent to pay the rent of Rs.600/- p.m. from the date of occupying the proposed shop in the ground floor of the schedule premises. Parties are directed to bear their own costs."
5. The tenant, admittedly vacated the premises as agreed upon, by 30th August 1985. Thereafter, the landlord put up a new building, but did not lease the premises (part of the new building) to the tenant, as agreed. Hence, the tenant caused the issuance of a notice dated 18th October 1986, seeking possession of the premises, in terms of the decree for eviction.
In the notice it was pointed out that, recently the construction of the new building was over and that the tenant was making repeated requests since January 1986 to complete the construction and to put him in possession of the premises.
In the reply (dated 30-10-1986) sent on behalf of the landlord, to the aforesaid notice, the basic facts were not disputed. However, it was asserted that in the ground-floor only one shop measuring 181/2 x 37' was constructed to the knowledge of the tenant with an intention to have this entire shop premises for the purpose of the business of the landlord. According to this reply, the tenant had expressly informed the landlord that he (the tenant) was not interested in getting back possession of 9'8" x 30'8". The reply, further asserted that, the tenant failed to issue any notice under Section 27 of the Act within the statutory period, obviously because, he did not want the premises. It was asserted that the landlord occupied the premises on 8-8-1986 and the tenant attended the opening ceremony. According to the landlord, the construction was complete in February 1986 itself. It is not necessary to refer to other statements in this reply except to para-3 of the reply, where, the landlord alleges arrears of rent being due from the tenant for the period 1980 to August 1985 and that the tenant had agreed to furnish correct figures to enable him to receive the balance out of the advance of Rs. 27,000/-, though no statement as to the arrears is found in the compromise dated 22nd August 1985 or in the deposition of the landlord.
In the circumstances, the tenant filed the Execution case seeking vacant possession of the premises measuring 30' 8" x 9' 8" as described in the schedule to the application. The landlord filed a lengthy objection to this application raising several pleas and thereafter filed I.A.No.VIII, to decide the question of maintainability of the Execution case. According to the landlord, the decree for eviction, incorporating the terms of compromise, was not executable; it was also contended that, the tenant, having failed to issue the notice under Section 27 of the Act, had no right to seek vacant possession of the new premises.
6. The lower Court relying on the decision of a learned single Judge of this Court in RAMAKRISHNA AITHAL v. VARADAPPA AND ANR. unreported decision in MANJUNATHA v. BHAVARLAL CRP. No. 1999/1985 - DD 17-4-1986 overruled the landlord's objections and rejected the application.
Hence this revision petition.
7. Apart from the learned Counsel appearing for the parties, we have also heard, the learned Advocate General, Sri H.B. Datar, Senior Advocate and Sri B.P. Holla.
8. Sri V. Krishnamurthy, the learned Senior Advocate for the landlord, advanced the following prepositions:
(i) The tenant is seeking a fresh lease in respect of a new premises on Its construction, on the basis of the compromise decree for eviction. Since there is no relationship of landlord and tenant between the owner and the evicted tenant, and the subject matter of the lease is a new premises, the decree for eviction cannot be executed, so as to create a new relationship of landlord and tenant.
(ii) The eviction from the old premises and its destruction, results in snapping the ties between landlord and tenant entirely. No provision in the Act creates the relationship of landlord and tenant between the parties, in respect of the new premises.
(iii) If any right is sought to be created by the terms of compromise decree, same has to be enforced by a regular suit.
(iv) There is no provision of law, through which, the landlord can be compelled to construct the new premises, after he demolishes the old premises.
(v) To enforce the right to have the lease of the new premises, notice under Section 27(1) of the Act is a condition precedent; since the tenant, admittedly has not issued any such notice, no right accrued to him under Sections 27 and 28.
(vi) Terms of the compromise, incorporated in the decree for eviction are opposed to the provisions and scheme of Sections 27 and 28 and hence ultra vires those terms are therefore unenforceable, being void.
(vii) The purported right created by Sections 27 & 28 being statutory, is capable of enforcement only as provided by the statute; if the Act is silent as to the forum through which right can be enforced, the right cannot be enforced at all.
Sri Krishnamurthy contended that the order of eviction under Section 21(1)(j) coupled with a direction to handover the new premises or any part thereof to the tenant, is not an executable order or decree. According to the learned Counsel, Sections 27 and 28 created a new, hitherto unknown, right in the tenant to claim the lease of the new premises; this is not a common law right; it is not possible to conceive that the relationship of landlord and tenant continued, once an order of eviction is made and it is given effect to; on demolition of the premises which was the subject matter of the earlier lease, no relationship of landlord and tenant can continue between the owner of the old premises and the evicted tenant of the demolished premises; the provisions of Sections 27 and 28 are silent as to the forum through which the ex-tenant could seek entry into the new premises. Therefore, the alleged statutory right cannot be enforced at all. According to the learned Counsel, a statutory right can be enforced only in the manner provided by the statute and if the statute is silent as to the forum, the right becomes unenforceable in law.
S.T. MUTHUSAMI v. K. NATARAJAN AND ORS. was referred in support of this contention. Sri Krishnamurthy also referred to a few observations in PRABHAKARAN NAIR etc. etc. v. STATE OF TAMIL NADU AND ORS. .
In Muthusami's case, the question pertained to the propriety of interfering with an election process at an intermediate stage, by invoking the Writ Jurisdiction. The election was to the office of the Chairman of a Panchayat governed, by the Tamil Nadu enactment. The said Act provided for the settlement of disputes concerning the election; therefore the Supreme Court reiterated the principle that, in such a circumstance, the High Court should not exercise the Writ Jurisdiction and the parties should resort to the provisions of the relevant law which provides for the machinery to resolve the election disputes. Sri Krishnamurthy laid great emphasis on the statement:
"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same times gives a special and peculiar remedy for enforcing it....The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
Sri Krishnamurthy argued that if the statute having conferred a right, does not specify the remedy to enforce it, either the right cannot be enforced at all, or, could be enforced only by resort to ordinary Courts. It was argued that the rights and liabilities created by Sections 27 and 28 of the Act, were non-existent under the Common Law, and these rights and liabilities are purely statutory.
9. The nature of the rights and liabilities under Sections 27 and 28, are the creations of the Act. There are many legislations which make serious inroads into the common law concepts, in which the sanctity attached to the bargains and contractual relationships, are given a go by, in the public interest. There is no dispute that an order for the recovery of possession made in favour of the landlord under the various Clauses (a) to (p) of the proviso to Section 21(1) of the Act is executable; In fact, such an order is described as a decree for eviction of the tenant.
But here, the nature of the proceedings to be resorted to by the tenant to get into the possession of the newly built premises after his eviction under Clause (j) of proviso to Section 21(1) is the subject of controversy raised on behalf of the landlord.
10. Sections 27 and 28 of the Act come into automatically, on the passing of an order of eviction under proviso (j) to Section 21(1). Section 28 creates a liability on the part of the landlord to put the evicted tenant, in possession of the newly erected building. The question is, as to how this liability (which correspondingly confers a right on the tenant), could be enforced.
In Ramakrishna Aithal's case a learned Judge held the right and liability under Section 28 are to be executable as a decree for eviction, while in LEELAVATHI'S CASE another learned Judge did not agree with the former proposition.
In Leelavathi's case reference was made to the various 'applications' contemplated under Sections 24, 25 and 26 resulting in an order which may have to be executed thereafter, instead of seeking an execution straightaway for possession. Therefore, it was observed that there was no reason as to why a different kind of procedure of straightaway enabling the execution for possession by the tenant should be contemplated 5. by Section 28. In this connection it was observed in Leelavathi's case at para-10 that there was a difference between a right flowing from a decree and an enforcement of statutory right and that right of induction or re-entry of a tenant is not a common law right, but a statutory right; hence, it was held that the said statutory right cannot be executed unless culminated in a decree or an order having the force of a decree. However, at para-25, it was observed, in Leelavathi's case that, --
"Now coming to the case cited at the Bar, this Court in Ramakrishna Aithal v. Varadappa has, held that it is
executable. But the terms of the compromise are not extracted. Court has proceeded on the premise that there was an agreement for restoration and as such it is executable. As a pure proposition of law if it has declared, right conferred under Sections 27 and 28 is executable, be it preceded by a decree or otherwise, with utmost possible respect, I am unable to subscribe to that view."
The inference is, in case, the decree for eviction under proviso (j) to Section 21(1) included any term of compromise, such term can be executed; the need to file an application arises only in case, the right sought to be executed rests solely on the statutory right under Section 28.
We are of the view that the case before us can be decided without examining the abstract proposition of law posed In Leelavathi's case. Here, there is a decree comprising within itself the terms of the compromise. What is sought to be executed, is the decree under proviso (j) to Section 21(1). Unless these terms of the decree are held invalid, they are to be held as executable.
However, Sri Krishnamurthy contended that the terms of the compromise are ultra vires the provisions of Sections 27 and 28 and therefore the tenant should have sought the possession of the premises only after complying with the requirement of Section 27. It is in this connection the learned Counsel contended that the tenant's forum was the Civil Court.
11. Section 27 requires the tenant to issue a notice to the landlord within six months from the date on which he delivers vacant possession of the premises. The said notice to the landlord should convey his intention to occupy the new premises on the condition that he shall pay fair rent in respect of the new building and in other respects the occupation will be on the same terms and conditions on which he occupied the earlier building. The basic idea of Section 27 is to inform the landlord of the definite intention that the tenant would occupy the new premises with willingness to pay the rent as stated in the Section and also to abide by the conditions stated therein, so that the landlord may suitably arrange his affairs regarding the new premises on its completion. For the same reason, Section 28 requires the landlord to issue a tenant a notice not less than 3 months before the date on which the new building is likely to be completed and thereafter the tenant if fails to occupy the premises, within a period of one month from the date on which the building is completed, the tenant's right to the new building stands terminated.
12. If the Intention of the tenant is definite and it is convincingly conveyed to the landlord, that he intends to occupy the new premises and is willing to pay the fair rent and to abide by other terms, and conditions referred in Section 27 while occupying the new building, issuance of notice under Section 27 by itself will be an empty formality. Notices contemplated under Sections 27 and 28 are not based on any public policy and they are for the respective benefits of the landlord and the tenant. In this case the terms of compromise, incorporated in the decree for eviction, provides for the occupation of the tenant of the new premises, the rent payable by him and the extent of the said premises. The earnestness of the tenant to abide by these terms is established conclusively by the payment of an advance sum of Rs. 27,000/-. These terms are in no way opposed to the provisions of Section 27; instead, these terms are substantially in consonance with the provisions of Sections 27 and 28. Hence the contention of the landlord, against the validity of these terms must fail.
13. The decision in K.G. MADKAJI RAO v. C.R. VIRUPAKSHAPPA CRP No. 2171/1973-DD 11/16-7-1974 - by Justice D.M. Chandrashekhar (as he then was), is very pertinent here. The tenant was ordered to be evicted under Section 21(1)(j) of the Act; hence he filed a revision petition in this Court. This Court observed while disposing of the revision petition, that the tenant was entitled to re-occupy the premises as provided under Sections 27 and 28 of the Act, whenever he is evicted under Section 21(1)(j); thereafter, it was observed:-
"Accordingly, it is now directed that the tenant shall vacate the premises by 1-12-1971 and the landlord shall start demolition within one month thereafter. As stipulated already, the landlord has to complete the construction within one year from the date of demolition and hand over possession to the tenant.
Subject to the above modification in the orders of the Courts below, this revision petition is dismissed."
Subsequently, the said order was clarified regarding the extent of the new premises to be handed over to the tenant. Accordingly the tenant vacated the old premises and the landlord put up a new construction, but did not hand over the extent of the new premises required of him to be handed over, to the tenant on completion of the new building. The tenant filed an application seeking execution of the order of eviction, whereby, the landlord had been directed to deliver the tenant, the new premises. It was contended by the landlord that, the tenant had not issued any notice under Section 27 of the Act and therefore, he was not entitled to seek re-induction to the new premises; the contention of the landlord was upheld by the Court of Munsiff; however, this view was reversed by this Court.
It was held, that the provisions of Sections 27 and 28 have to be complied with by a tenant, where, the Court has merely made a decree evicting him on the ground specified in the Clause 21(1)(j) of the Act, without giving any further direction that he should be put in possession of the reconstructed premises; but, where the Court, while making an order under Section 21(1)(j) gives a direction that the landlord should deliver possession of the reconstructed premises to the tenant, it is unnecessary for the tenant to comply with the requirements of Sections 27 and 28 of the Act. In the said case, the order of eviction directed the landlord to handover possession of the new premises to the tenant, and the said order did not envisage any notice to be issued by the tenant. It was observed, that the object of issuing notice under Section 27 of the Act was to make known to the landlord the intention on the tenant to take on lease the whole or a portion of the reconstructed premises. The learned Judge observed:
"As the object of the issuing a notice under Section 27 was, in substance fulfilled, the delay in giving a notice as contemplated under Section 27 of the Act, was, in the circumstances of this case, immaterial."
It was also observed, that the, terms of the order of eviction were binding on the landlord and he had to comply with them and those terms were not conditioned by the requirement of a notice under Section 27. According to this decision, if terms of the order of eviction are exhaustive, it is unnecessary for the tenant to resort to the provisions of Section 27; its provisions are for the benefit of the landlord, to know the intention of the tenant and if so, any conduct of the parties signifying the knowledge of such an intention would satisfy the requirement of Section 27. The decision and the facts of Madkaji Rao's case directly covers the present case. To the same effect is the decision of Justice Hakeem in Manjunath's case (CRP. 1999/1985)
14. The language of Sections 27 and 28 shows that these provisions are for the benefit of the parties only. A notice under Section 27 is to convey the tenant's intention to take on lease the new premises; notice under Section 28 to be issued by the landlord is to notify the tenant that the new premises will be ready for occupation soon, so that, the tenant may prepare himself to occupy the new premises; any failure on his part to occupy in spite of a notice under Section 28(1) results in the forfeiture of tenant's right to seek occupation of the new premises. Therefore, it can safely be said that the requirement of notices under these provisions are not based on any public policy, nor intended to advance any public interest; if so, these requirements could be waived by the party entitled to the benefit of the provisions.
15. The principle enunciated in SUPDT. OF TAXES, DHUBRI AND ORS. v. LAKSHMICHAND INDRA CHAND as to waiver, is equally applicable to the Interpretation of Sections 27 and 28 and the conduct of the parties hereto, it was held that waiver is an agreement to release or not to assert a right:
"a procedural requirement imposed for the benefit or protection of one party alone has sometimes been construed as subject to implied exception that it can be waived by the party for whose benefit it is imposed. In that context 'waive' means that the party has chosen not to rely upon the non-compliance of the other party with the requirement, or has disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon the non-compliance."
There is a type of waiver which -
"debars a person from raising a particular defence to a claim against him. It arises when he either agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped from raising it."
16. The landlord-petitioner, in the case before us, had ample option not to agree specifically to the re-induction of the tenant into the new premises and could have proceeded with the eviction petition to get an order from the Court under Section 21(1)(j), without any cither agreed terms; in such a case, if he had succeeded and obtained possession of the premises, certainly, it would have been open to him to raise the several pleas available to him by invoking the provisions of Sections 27 and 28 of the Act. Instead, he chose to amicably settle the matter and agreed for certain terms, to get an order of eviction. The agreement saved much of his time and energy from a lengthy legal proceedings, and reduced the burden of proving his case. The intention of the tenant to take on lease the new premises was clearly expressed by the payment of an advance sum of Rs. 27,000/-; the rate of rent was also agreed. The various subjects covered by Sections 26 and 28 were reduced into specific terms by an agreement of the parties and those terms were incorporated by the Court, in its order of eviction. In the circumstances, it has to be held that issuance of any notice under Section 27 will be an empty formality and the requirement of the said provision was waived by the landlord.
17. Prabhakaran Nair's case referred by the learned Counsel for the landlord, in no way helps him. There, the tenant questioned the validity of a similar provision for eviction of the tenant, without the corresponding Section for the re-induction of the tenant into the new premises. In view of this difference existing between the Tamil Nadu and other Acts, Tamil Nadu Act was attacked as unreasonable and discriminatory. This argument was repelled and the Supreme Court held that, it is for the respective States to enact the law with provisions relevant to the situation prevailing in each State.
18. In K. SRINIVASA RAO v. K.M. NARASIMHAIAH AND ANR. ILR 1989 KAR 1186: Judgments Today, 1989(1) SC 229 arises out of the Karnataka Rent Control Act, 1961. Supreme Court directed the landlord to handover to the tenant the new tenement in the newly constructed premises. The Supreme Court held that the tenant who was evicted under Section 21(1)(j) was entitled to a tenement in the new building which could be said to be reasonably comparable to or to reasonably correspond to the tenement in respect of which eviction decree was passed.
Therefore, it is not possible to hold that the statutory right created under Sections 27 and 28 is incapable of enforcement. Such a right if incorporated in the decree in pursuance of a compromise between the landlord and tenant, cannot be defeated or its fructification delayed by insisting on a separate forum to enforce it. The Act creates the relationship of landlord and tenant between the parties, as provided thereunder, In fact, concept of a 'statutory tenant' is not a new subject.
19. The (iv)th proposition advanced by Sri Krishnamurthy need not detain us. As the learned Advocate General pointed out, where the landlord files an application under the proviso (j) to Section 21(1), he has to plead and establish that premises are reasonably and bona fide required by him for the immediate purpose of demolishing with a view to erect a new building. Necessary averments and proof to show the bona fides in the pleading and the evidence, are to be taken as his undertaking to the Court, contemplated by Section 26(2). Section 26(2) refers to the 'undertaking' of the landlord. But the manner in which and the point of time of giving the undertaking are not stated in any of the relevant Sections. Therefore, the learned Advocate General is right in stating that, the Court has to treat the pleading and the requisite evidence of the landlord, as the undertaking. Having obtained an order of eviction, if the landlord fails to put up the new construction as pleaded in the main proceedings for eviction, without any reasonable cause, the conduct of the landlord would entail him to serious penal, civil and other, consequences; the normal human nature is such that, the landlords generally would not keep the site vacant, after demolishing the old premises. The extreme illustration placed before us by Sri Krishnamurthy, cannot be taken as a relevant factor to interpret these statutory provisions, and nullify their purpose.
20. Here is a case where the landlord obtained an order of eviction under Section 21(1)(j). The burden of establishing that the premises was reasonably and bona fide required for the immediate purpose of demolishing it and that such demolition is to be made for the purpose of erecting a new building in its place, was on the landlord; this burden was substantially eased by the tenant agreeing to vacate the premises under an order of eviction in terms of the agreed terms. The petitioner-landlord received a sum of Rs. 27,000/- from the tenant, which was paid by the tenant obviously to show his earnestness to take the new premises on lease; the landlord had the benefit of the said money to augment his resources for the construction of the new premises; further, he had the assurance of the tenant that he would occupy the new premises and pay an enhanced rent, (which was thrice the rent the tenant was paying earlier). The tenant vacated the old premises immediately. Having taken advantage of these terms of the compromise, it was highly inequitable and unjust on the part of the petitioner to deny the tenant the right to take the new premises on lease. All these years from about August 1985, the landlord enjoyed the sum of Rs. 27,000/- and has now set up a new plea for retaining the said amount, while refusing to lease the new premises. In the circumstances of the case, it has to be held that the order of the learned Judge of the Court of Small Causes does not call for interference under the revisional jurisdiction.
21. In the result, for the reasons stated above, this petition fails and is dismissed with costs.
Advocate's fee Rs. 2,000/-.