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1974 DIGILAW 260 (KAR)

K. R. DHANANJAYA v. K. S. KUMARAN

1974-11-18

K.J.SHETTY

body1974
( 1 ) THIS petition under Art. 227 is a sequal to the decision of this Court in WP. 2103 of 1974. ( 2 ) THE events leading upto the petition are these: Premises bearing no. 12 (old 1/a), IV Main Road, Kumara Park West, Bangalore, is residential premises of which K. S. Kumaran-respondent 1 is the owner. When it became vacant, the owner sought permission from the Rent controller to effect certain repairs. The Controller granted the permission with a direction to complte the repairs before the end of April, 1974. The repairs, for want of finance, could not be completed before the specified time. The owner entered into an agreement with one dr. (Mrs) Anasuya, Asst Surgeon, ESI Dispensary, Bangalore, as per the terms of which the Doctor has undertaken to effect necessary repairs at her costs and in consideration of which the owner agreed to mortgage the premises in her favour. ( 3 ) ON 30th April, 1974, the owner made an application before the Rent controller staging that the repairs were yet to be completed, and the premises might no,t be allotted to anybody else, except to the Doctor who would occupy the premises after necessary repairs. His application was also followed by a similar intimation by the Doctor informing the Controller that the premises might be alotted in her favour. But the Rent Controller refused to take notice of those intimations, He by his ordetr dj. 1st May, 1974 directed that the premises should be notified suo motu for allottment and fixed the date for receipt of the applications by 8th May, 1974, and the date of hearing on 17th May, 1974. ( 4 ) IN response to the notification, the petitioner was one among the several applicants for allotment. He is a State Government Officer who has obtained a direction from the Divisional Commissioner under S. 8 (2) of the Rent Control Act, 1961 directing that the premises shall be allotted to him. ( 5 ) CHALLENGING the suo motu action taken by the Controller, the owner preferred an appeal to the Special Deputy Commr under S. 12 of the Rent control Act. ( 5 ) CHALLENGING the suo motu action taken by the Controller, the owner preferred an appeal to the Special Deputy Commr under S. 12 of the Rent control Act. The, Deputy Commr while dismissing the appeal made certain observations stating that the owner did not intimate the vacancy even though the premises were ready for occupation and he permitted the Doctor to occupy the said premises without leave from the Controller. ( 6 ) THE legality of the appellate order was called in question in this court by tha owner in WP. 2103 1974, in which the contention urged was that the premises were not ready then tor occupation and tha Controller was too hasty in notifying the vacancy suo motu. It was further urged that the observations of the Commr regarding the alleged occupation of the premises by the Doctor was based on a report obtained from the Revenue inspector in respect of which the owner had no opportunity to explain at any time. While dealing with the contention this is what this Court observed :" I have perused the order of the Deputy Commr. His observation that the premises have been occupied by Dr. (Mrs) Anasuya was completely based on report obtained by him from the Revenue Inspector, in respect of which the petitioner has had no opportunity to explain at any time. In the circumstances, I allow the petition and set aside the order of the Deputy Commr. The Rent Controller shall now proceed to notify the premises for allotment in accordance with law. " ( 7 ) IT may be necessary to refer at this stage to a concession made by learned Counsel for the petitioner therein. He said that "he had no objection for the premises now being notified and allotted to any deserving applicant". Perhaps on the basis of that concession also, this Court directed that " the Rent Controller shall now proceed to notify the premises for allotment in accordance with law". ( 8 ) AFTER the decision of this Court, the owner executed a registered mortgage deal in favour of the Doctor with liberty reserved to the letter to occupy the premises alter obtaining necessary permission from the Controller in accoauajicei with law. The Doctor got the repairs to the premises completed and intimated the Controller about its vacancy with a request to release the same for her self-occupation. The Doctor got the repairs to the premises completed and intimated the Controller about its vacancy with a request to release the same for her self-occupation. On the basis of the said intimation, the Controller has again invited applications by issuing notification d/. 28th September 1974 in response to which it is said that the petitioner is a lone applicant for allotment. ( 9 ) ON 13th September, 1974 the petitionei had written a letter to the controller stating tnat the earlier proceedings commenced on the first notification should be continued ana the premises should be allotted to him as he was the holder of a direction issued by the Divisional Commr u S. 8 (2) of the Rent Control Act. The Controller rejected that request observing that this Court in WP. 2103/74 has set aside his earlier notification and also the appellate order of the Special Depupty Commissioner. Feeling aggrieved by the order made and the notification issued by the Controller, the petitioner has moved this Court with an application under Article 227. ( 10 ) THE first contention urged for the petitioner is that the order made by this Court in WP. 2103/74 was bad, as necessary parties were not impleaded to the proceedings. It is said that the petitioner being an applicant for allotment with a direction under S. 8 (2) of the Rent Control Act in his favour, was a necessary party and should have been impleaded as such to the earlier proceedings. The second ground urged was that this court did not in the previous writ petition set aside the notification issued by the Controller, but only set aside the appellate order of the Special deputy Commr and therefore, the Controller has no jurisdiction to invite fresh applications by issuing another notification. ( 11 ) IN my view, both the, contentions cannot be accepted. I shall take up tha second contention first for consideration. The order of this court allowing the WP. 2103/74, if closely perused, does not lend support to the contention urged for the petitioner. This Court specifically directed that "the Controller shall now proceed to notify the premises for allotment in accordance with law", thereby meaning that the, Controller has to notify the premises again by calling applications from intending tenants. As otherwise there was no necessity to state that the Controller shall now notify the premises. This Court specifically directed that "the Controller shall now proceed to notify the premises for allotment in accordance with law", thereby meaning that the, Controller has to notify the premises again by calling applications from intending tenants. As otherwise there was no necessity to state that the Controller shall now notify the premises. Notify the premises means that the Controller shall notify the vacancy of the premises and in the context there cannot be any other meaning to the direction of this Court. That is what has been done by the Controller and in my view, the proceedings taken by him are strictly in accordance with the direction issued by this Court. ( 12 ) NOW, I take up the first argument advanced for the petitioner. The argument proceeded on the assumption that the petitioner being an applicant for allotment of the, premises, was a necessary party to the proceeding in which the notification of the Controller inviting applications for allotment was called in question. In my view, it is difficult to accept the contention. The normal rule is that it is open to the plaintiff or to the petitioner to array in the proceeedings such persons as he wishes to join as parities and it is equally open to him to give up any parties. That right, however, is not absolute. It is controlled by the rule of impleading necessary or proper parties. The law on that principle is well settled and it is sufficient, if I may refer to the observations made, by Subba Rap, J. as he then was, in Udit Narain Singh malapaharai v. Addl. Member, Board of Revenue, Bihar, AIR. 1963 SC. 786. :". . . . It is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 1963 SC. 786. :". . . . It is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. ""by applying the above principles, it cannot be said that an applicant for allotment should be regarded as necessary or proper party to the proceedings in which the owner challenged the validity of the action taken by the Controller without the landlord's intimation of vacancy of the premises in the previous proceedings whether in the appeal or writ petition, the Court was not called upon to adjudicate the rights inter se between the owner of the premises and the persons who have applied for allotment of the premises. The Count was only concerned with the legality of the notification issued by the Controller, when the repairs to the premises were not yet completed. In the proceedings in which such a question was required to be investigated, it seems to me, that the appplicant like the petitioner was not a necessary or proper party. The position would not be different merely because the petitioner has obtained a direction from the divisional Commr under S. 8 (2) of the Rent Control Act. I may hasten to, add that these principles should not be extended to a case where the controller has made any order in favour of the applicant. ( 13 ) BEFORE I part with the case, I may say a word about the apprehension of the petitioner regarding the direction issued by the) Divisional commr on 9th May, 1974 under S. 8 (2) of the Act stating that the premises shall be allotted in favour of the petitioner. It is not correct to presume that that direction has also been set aside by this Court. It is urged for the petitioner that the Controller is under that assumption. There is nothing in the previous proceedings or by the impugned order of the Controller to support that view. The direction issued by the Divisional Commr that the premises shall be allotted in favour of the petitioner was not in relation to any notification much less to the previous notification of the controller. There is nothing in the previous proceedings or by the impugned order of the Controller to support that view. The direction issued by the Divisional Commr that the premises shall be allotted in favour of the petitioner was not in relation to any notification much less to the previous notification of the controller. It was a direction with reference to the premises in question for which the petitioner has also applied in response to the second notification issued by the Controller. He is, therefore, entitled to take advantage of the said direction according to law even in the present proceedings. ( 14 ) WITH the above observation, the rule issued in this petition is discharged. No costs in the circumstances. --- *** --- .