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1978 DIGILAW 14 (KAR)

MUHAMMAD YACOOB HUSSAIN v. MAHENDAR KAUR

1978-01-12

M.RAMA JOIS

body1978
( 1 ) WHETHER the officers of the High Court are officers of the State Govt and consequently can claim preference in the matter of allotment of residential premises under the provisions of the Rent Control Act, 1961 and the rules framed thereunder is the question that arises for consideration in this writ petition. ( 2 ) THE petitioner is an official having been appointed by the Chief justice and serving on the establishment of this Court. He made an application before the Rent Controller, Civil Area, Bangalore, for allotment of premises bearing No. 25, Rathan Sing Road, Frazer Town, bangalore. Similarly, respondent No. 1 made an application for the allotment of the same premises. She is a Central Govt servant working in the p and T Department. ( 3 ) IT is not in dispute that the Divisional Commissioner having been duly authorised by the State Govt, issued a direction in purported exercise of his power under the proviso to Sec. 8 of the Karnataka Rent control Act, 1961 (hereinafter called 'the Act'), directing the Rent controller to allot the premises for the allotment of which the petitioner made the application, to him and that even without such direction a state Govt Officer has preferential claim in view of Rule 4 (B) of the Rules framed under the Act. ( 4 ) THE Rent Controller passed the order on 7-4-1977 rejecting the application of the petitioner and allotting the premises to the first respondent. The reason given by the Rent Controller for ignoring the direction issued by the State Govt under the proviso to Section 8 of the act is set out hereinafter. It reads :" There is direction from the Divisional Commr, Bangalore division in favour of one of the applicants Sri Mohd Yacoob Hussain this applicant is a Class III State Govt employee working in High court of Karnataka. The applicant is already living in a House bearing No. 7, Bharathinagar 'e' Street, 3rd cross, Bangalore. The applicant contends that the owner of that house requires the same for reconstruction. No notice from the landlord or the sanctioned plan for reconstruction of the house is produced by the applicant. The applicant has not produced any material to show what are his requirements and how the present house is unsuitable for his occupation. The applicant contends that the owner of that house requires the same for reconstruction. No notice from the landlord or the sanctioned plan for reconstruction of the house is produced by the applicant. The applicant has not produced any material to show what are his requirements and how the present house is unsuitable for his occupation. The applicant being in occupation already of a house is bound to satisfy about his requirements for another accommodation, before the direction in his favour can be acted upon. The applicant has placed. absolutely no material to justify his claim for another accommodation. Therefore, under the provisions of sub-section (5) (3) of Sec. 8 of the KRC Act, I overlook the direction and reject the claim of the applicant. " ( 5 ) THE petitioner preferred an appeal before the Special Deputy commr, Bangalore, District, who is the appellate authority under the act. The appeal was dismissed as per order dated 3-6-1977. The contention of the petitioner before the appellate authority was that the direction issued by the State Govt under the proviso to Sec. 8 is binding on the Rent Controller and he had no authority to ignore the said direction on any ground. The appellate authority also rejected the contention of the petitioner and confirmed the order of the Rent Controller allotting the premises to respondent 1. The reason for rejecting the contention of the petitioner is set out in para 10 of the order of the appellate authority and the same reads as follows :" So far as HRC A. No. 6/77-78 is concerned the contention of the appellant is that he is the direction holder and the Controller had not given proper weight to the direction and had rejected the application of the direction holder. It is seen from the order of the Controller that the appellant in HRC A. 6/77-78 is already living in a house bearing No. 7, Bharathinagar 'e' street III cross, Bangalore, and he has not produced any material to show that his requirement is an immediate one and that the present house where he is living is unsuitable for accommodation. It is the responsibility of the direction holder to establish his immediate needs and satisfy the controller that the present accomodation is unsuitable and he requires the notified premises. It is the responsibility of the direction holder to establish his immediate needs and satisfy the controller that the present accomodation is unsuitable and he requires the notified premises. In this case he has not produced any evidence in support of his request and the Controller is right it over-looking the direction and rejecting the application of the direction holder under sec. 5 (3) of Sec. 8 of the Act. On this plea I find no justification to interfere with the order of the Controller. In view of the foregoing both the appeals HRC A. No. 7/77-78 filed against the order dated 7-4-1977 of the Controller in HRC ACC. 57/77-78 stand dismissed -. . . " ( 6 ) SRI Farooq, learned Counsel for the petitioner contended that the order of the Rent Controller as well as that of the appellate authority suffer from patent error of law, in that, not only the authorities have acted in contravention of the direction issued by the Divisional Commr under the proviso to Sec. 8 of the Act, but they have also ignored the order of priority regarding the allotment of residential building set out in rule 4 (B) of the Karnataka Rent Control Rules, 1961 (hereinafter referred to as 'the Rules' ). ( 7 ) PROVISO to sub-sec (2) of Sec. 8 of the Act authorises the State govt or anv officer authorised by the State Govt not below the rank of a Deputy Commr to issue direction that a particular building available for allotment shall be leased to any public authority or any officer of the state Govt or of the Central Govt and if such a direction is issued subject to clauses (3), (4) and (5) of Sec. 8 of the Act, the Rent Controller is bound to allot the premises to the person concerned as directed. ( 8 ) RULE 4 (B) of the Rules sets out the order of priority which the controller is bound to observe in the allotment of the premises. This, however is only subject to sub-sec (2) of Sec 8. According to the order of priority, a Class III officer of the State Govt gets priority over a Class iii officer of the Central Govt. ( 9 ) THE contention of the petitioner is that he is a State Govt servant and a direction has. This, however is only subject to sub-sec (2) of Sec 8. According to the order of priority, a Class III officer of the State Govt gets priority over a Class iii officer of the Central Govt. ( 9 ) THE contention of the petitioner is that he is a State Govt servant and a direction has. also been issued in his favour under the proviso to sec. 8 (2) of the Act by the Divisional Commr who is authorised by the state Govt to issue such directions and even without such a direction, he is entitled to preference over respondent No. 1 as respondent No. 1 is a Central Govt servant. ( 10 ) SRI H. Sulaiman Sait, learned Counsel appearing for respondent 1, however, contended that the petitioner is not a State Govt servant and therefore, the direction issued by the Divisional Commr in his favour in purported exercise of his power under sub-sec (2) of Sec. 8 of the Act is invalid and further the petitioner not being a State Govt servant, he cannot also claim priority under rule 4 (B) of the Rules. ( 11 ) THE aforesaid question was not raised by respondent-1 either before the Rent Controller or before the Appellate Authority. However, as the question is a pure question of law depending on the interpretation of the proviso to Sec. 8 of the Act and Rule 4 (B) of the Rules, and it goes to the root of the matter, he was permitted to raise this point. ( 12 ) IN view of the point raised by respondent-1, the question for consideration is, whether the petitioner is a State Govt servant. It is not disputed that the petitioner is appointed and working on the establishment of this Court and he was appointed as such by the Chief Justice. The question, whether a person who is appointed on the establishment of the high Court is a State Govt servant or not. has already been answered by the Supreme Court in Pradyat Kumar v. Chief Justice of Calcutta, AIR 1956 SC 285 . In the said case, the question that arose was, whether the consultation with the Public Service Commission under Art. 320 (3) (c) of the Constitution is necessary in respect of disciplinary matters affecting a person serving on the establishment -of the High Court. In the said case, the question that arose was, whether the consultation with the Public Service Commission under Art. 320 (3) (c) of the Constitution is necessary in respect of disciplinary matters affecting a person serving on the establishment -of the High Court. The relevant portion of Art. 320 (3) (c) reads as follows : -" 320. (1) and (2) * * * (3) The Union Public Service Commission or the State public Service Commission as the case may be, shall be consulted. . . (a) and (b) * * * (c) on all disciplinary matters affecting a person serving under the Govt of India or the Govt of a State in a civil capacity, including memorials or petitions relating to such matters". The contention raised by the appellant in the above reported case was that before imposing penalty on him, the Public Service Commission should have been consulted in view of clause (c) of sub-art (3) of Art. 320 of the Constitution. The question was considered by the Supreme Court and it was held that a person appointed on the establishment of a High court, falls within the scope of the phrase "person appointed to public service and posts in connection with the affairs of the State" and also of the phrase "a person who is a member of a civil service of a State" as used in Articles 310 and 311, but he would not be a person serving under the Government of a State. The relevant portion of the judgment is at page 292 of the report and it reads as follows : ". . . . . . . In using somewhat different phraseology, the contention was to demarcate the staff of the High Courts from the other civil services of the Union or the State. The phrase 'persons serving under the Govt of India or the Govt of a State' seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Govt functioning in the name of the President or of the Governor or of a Rajpramukh. The phrase 'persons serving under the Govt of India or the Govt of a State' seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Govt functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the conditions of service. Arts. 53, 77, 154 and 166 of the Constitution show that while the executive power of the Union or the State is vested, respectively, in the President or the Governor and that executive action is to be taken in their respective names, such action is the action of the Govt of India or the govt of a State. But the administrative action of the Chief Justice is outside the scope of these Articles. It appears therefore that in using the phrase "govt of India and Govt of a State" in Art. 320 (3) (c), the Constitution had in view the above mentioned demarcation. . . . " ( 13 ) THE words used in proviso to Sec. 8 are "any officer of the State govt or of the Central Govt. " The same words are also used in Rule 4 (B) of the Rules. The petitioner being an official on the establishment of the high Court, cannot be considered as a servant of the State Govt. Therefore, the Divisional Commr had no authority to issue any direction under the proviso to sub-section (2) of Sec. 8 of the Act. Similarly, the petitioner not being a State Govt servant, he is also not entitled to claim preference under rule 4 (B) of the Rules. ( 14 ) IN the circumstances, I uphold the contention raised on behalf of the first respondent that the petitioner not being a State Govt servant the direction issued by the State Govt under Sub-section (2) of Sec. 8 of the Act, is invalid and further the petitioner could not also claim preference on the basis of rule 4 (B) of the Rules. ( 15 ) THEREFORE, assuming that the reasons given by respondents 3 and 4 for disregarding the direction issued by the Divisional Commr are unsustainable, in view of the conclusion that the petitioner is not a State govt servant the direction issued itself was invalid. The authorities were entitled to disregard the direction, as the same had been issued, in favour of a person in whose, favour, no such direction could be issue under proviso to sub-section (2) of Sec. 8 of the Act. ( 16 ) FOR the reasons stated above, I uphold the orders impugned in the writ petition though on grounds different from the one on the basis of which they were based. Accordingly, the rule is discharged and the writ petition is dismissed, but without costs. --- *** --- .