NAGAMMAL v. K. VS SPL. DY. CMMR. , BANGALORE — 1978 DIGILAW 224 (KAR)

( 1 ) ADMITTEDLY, the petitioner is the owner of a residential premises bearing No, 48 situated at 6th Cross Road, Swimming Pool Extension, malleswaram, Bangalore-3, and the same had been leased, on a rent of rs. 150 per month. On the tenant vacating the premises, the petitioner on 19-9-1977 intimated the vacancy of the premises to the House Rent and accommodation Controller. City Area, Bangalore, (hereinafter referred to as 'the Controller') under the provisions of the Karnaaka, Rent Control act, 1961 (hereinafter referred to as 'the Act') and sought his permission for self-occupation. As required by Rule 3 of the Karnataka Rent Control rules, 1961 (herein after referred to as 'the Rules'), the Controller notified the vacancy in response to which respondent NO. 3 and 12 others filed their applications for allotment of the premises in their fayour. On 10th october, 1977, the Controller considered the claim of the petitioner and other applicants and by his order of the same date rejected the claim of the petitioner and, allotted the premises, to respondent No. 3 (Ext. A ). Against the said order of the Controller, the petitioner filed an appeal before the Special Deputy Commissioner, Bangalore District, Bangalore, (hereinafter referred to as 'the Deputy Commissioner') with an appication for stay of the operation of the order under appeal- On 15-10-1977 the Deputy Commissioner stayed the operation of the order under appeal (Ext. B) for which reason respondent No. 3 did not occupy the premises in pursuance of the allotment order made in his favour. On 6-1-1978, the deputy Commissioner dismissed the appeal filed by the petitioner. On 9-1-1978, respondent No. 3 appraised the Controller the dismissal of the appeal filed by the petitioner and therefore requested him for delivery of the premises to enable him to occupy the same. On that request, the Controller issued an order to respondent No. 4 authorising him to deliver the premises to respondent No. 3 by breaking open the locks and taking the police assistance if necessary (Ext. D ). In pursuance of that order, resh pondent No. 4 is stated to have broken open the locks of the premises and delivered the same to respondent No. 3 on 11-1-1978 at 9-30 A. M. In this writ petition presented on 12-1-1978, the petitioner has challenged the orders dated 10-10-1977 and 9-1-1978 of the Controller (Exts. D ). In pursuance of that order, resh pondent No. 4 is stated to have broken open the locks of the premises and delivered the same to respondent No. 3 on 11-1-1978 at 9-30 A. M. In this writ petition presented on 12-1-1978, the petitioner has challenged the orders dated 10-10-1977 and 9-1-1978 of the Controller (Exts. 'a' and 'd') and the order dated 6-1-1978 of the Deputy Commissioner (Ext. 'c' ). ( 2 ) IN her writ petition, the petitioner has in detail set out her case for self occupation of the premises. She has averred that she and her other two sisters are widows and that she requires the; premises for her own use and the use of her sisters and the children of her last sister who are studying in Schools and Colleges in Bangalore City, She has also asserted that the Controller and his Revenue Inspector have delivered the premises to respondent No. 3 in utter defiance of the order dated 11-1-1978 issued by the Deputy Commissioner (Ext. F) taking advantage of her helpless position. The Deputy Commissioner, the Controller and the revenue Inspector despite service of notice, have remained absent and have not filed any return denying any of the allegations made by the petitioner. Even respondent No. 3 who is represented by a counsel has also not filed any return defying any of the allegations made by the petitioner. At my request, Shri G. R. Nataraj, learned High Court Government pleader, has made available the records of the office of the Controller. ( 3 ) SHRI N. S. Srinivasan, learned counsel for the petitioner, at the forefront contended that the orders dated 6-1-1978 and 10-10-1977 of the deputy Commissioner and the Controller rejecting the clain of the petitioner for self-occupation is based on no evidence and is based on surmises and conjectures and is contrary to the evidence on record. Shri Srinivasan therefore maintained that the orders suffer from manifest illegalities apparent on the face of the record and has resulted in substantial failure of justice and therefore they are liable to be quashed. Shri G. Basavaraj learned counsel for respondent No. 3. Shri Srinivasan therefore maintained that the orders suffer from manifest illegalities apparent on the face of the record and has resulted in substantial failure of justice and therefore they are liable to be quashed. Shri G. Basavaraj learned counsel for respondent No. 3. refuted the contention of Shri srinivasan and urged that the petitiqner in justification of her plea had, not placed any evidence before the authorities and the order of the Controller allotting the premises affirmed in appeal, does not call for my interference under Art. 226 of the Constitution. ( 4 ) IN the intimation of vacanqy against Column Nos. 11 and 13, the petitioner has stated as under: - "11. Whether it is proposed to For self occupation and bona fide re-let the building or use and not to let out. portion thereof and if so. to whom. "13. Additional in- Since the landlady is residing with formation, if any - her younger sister in a rented house, she wants to occupy herselt for her bona fide use. "along with the intimation, the petitioner has also filed an affidavit inter-alia stating that she proposes to occupy the premises, along with her sisters and their children. In the affidavit the petitioner has also pleaded; that the is a widow and has no male support and proposed to reside in her own house. Before the Controller, no other person has filed any affidavit or placed any evidence rebutting the assertions made by the petitioner in her application and in her affidavit. Even the usual report of the Revenue inspector which is called for by the Controller and which is normally the basis to hold one way or the other, has not stated that the assertions made by the petitioner were not true and should not be acted upon. While this is the position established from the records, the Controller in his order on the plea of the petitioner for self-occupation holds thus: -"4. This is a case whore the landlady is a widow without any issue. She is comfortably living with her sister in the I. T. I. Colony. She is considerably aged and it cannot be believed that she would come Rind stay alone in the notified building without the help and assistance of her sister. The plea of self-occupation is also contingent upon the coming of another sister from Madras which is a future event. She is considerably aged and it cannot be believed that she would come Rind stay alone in the notified building without the help and assistance of her sister. The plea of self-occupation is also contingent upon the coming of another sister from Madras which is a future event. It is on record that the notified building was let out for a number of years. The reasons offered by the landlady that she would come and stay in the notified building herself is not convincing. In my opinion she is putting forward this plea with some oblique purpose and her needs are not bona fide from all points of view. I, therefore, over-rule the objections of the landlady and proceed to allot the notified building as per law. "before the Deputy Commissioner, no other fresh material appears to have been placed by any of the parties. In affirming the order of the Controller, the Deputy Commissioner, after setting out the respective contentions of the parties observes thus: -"6. Haying heard the elaborate arguments of both the counsels, perused; the papers of the case, I find that the order of the Controller allotting the premises in. favour of the respondent allottee does not call for any interference from this authority. The only point to be considered in. this case is whether the request of the landlady is genuine or not. The landlady of the subject premises is a widow and she is staying with her youngest sister who, is working in I. T. I, factory and living in the official quarters. The landlady is staying with her sister since 18 years, she has no issues, she is aged and she cannot live alone without the support of her sister. The contentions of the appellant (landlady that the I. T. I. Co. , is not permitted to allow any relative or sister or brother to stay in the quarters provided to its employees is rather strange. In this connection, I would, like to point out that the landlady is living with her sister for the last 18 years and no such thing had happened hitherto and the landlady has not produced any documentary evidence in support of her contentions. Further durin g these eighteen years, the subject premises fell vacant twice and both the time the landlady had let out the premises without the knowledge of the Rent Controller. Further durin g these eighteen years, the subject premises fell vacant twice and both the time the landlady had let out the premises without the knowledge of the Rent Controller. If the landlady is in rea,l need of the premises, she, would have occupied the premises when the premises fell vacant last time. The other contentions of the appellant/ landlady in regard to education of her another sister's children. I feel that this requires no consideration. In Bangalore, the distance is not a problem. Now the children as admitted are grown up and they can easily attend to schools and colleges from I. T. I. Colony itself as other children of the Colony. I am not convinced with the contentions of the appellant-landlady in support of her claim. Theerefore the request of the landlady is neither genuine nor urgent. Whereas the respondent allottee is a State Government official and is under orders of eviction under S. 21-A of the Act his need is a pressing one and it should be considered. For the foregoing reasons, I see no reason to interfere with the order of the Controller. The appeal is dismissed. "earlier I have pointed out the assertions made by the pst'. tioner in the intimation of vacancy and her affidavit before the Controller and also before this Court which stands unrebutted by any one including the revenue Inspector who has enquired into the matter and submitted his report on 10-10-1977. But very strangely both the authorities hold that the requirement of the petitioner is not true and is motivated by some oblique motive, though there is no evidence to reach such a conclusion. On, the other hand, the affidavit filed by the petitioner and her needs passionately pleaded have been totally ignored by the authorities on almost fanciful reasons and without any justification and on totally untenable grounds. I am therefore of the opinion that there is force in the contention of Shri srinivasan that the finding of the authorities is based on no evidence and is based on conjectures and surmises. But Shri Basavaraj valiantly contended that there is no evidence to establish the case of the petitioner. His case is that the, petitioner has not examined herself or any other person and has not placed any oral evidence and therefore her claim for occupation has been rightly rejected by thfe authorities. But Shri Basavaraj valiantly contended that there is no evidence to establish the case of the petitioner. His case is that the, petitioner has not examined herself or any other person and has not placed any oral evidence and therefore her claim for occupation has been rightly rejected by thfe authorities. It is not the case of Shri Basavaraj that respondent No. 3 or any other person filed any affidavit before the Controller denying any of the assertions made by the petitioner or the Controller called upon her to place oral evidence in support of her case. I am therefore of the opinion that there; is no merit in the contention of Shri Basavaraj and reject the same. ( 5 ) LET me, now examine, whether any of the reasons given by the authorities are well founded in law also. ( 6 ) ONE of the principal reasons given by the authorities is that the petitioner has been living in I. T. I. Colony for the last many years and that she can continue to live in the same place. The Act does not require the owner of the premises to continue to live with others and cannot seek for self-occupation even if it becomes vacant. It is not the case of any body that the petitioner has more than one premises. When the premises has become vacant, I do not see as to why the petitioner's wish to occupy her own premises though it may be she has no children should not be respected. Another reason given by the Deputy Commissioner is that the sister's children can continue to travel and study in the institutions in the City. It is not for the authorities to say as to how the seif-landlady should regulate her affairs- All that the authorities had to examine was whether her needs were genuine and bona fide. If this is established, the authorities were bound to release the premises to the landlady for her self-occupation. In the course of his order the Deputy commissioner has observed that the landlady had let out the premises on more than one occasion which was seriously disputed by Shri Srinivasan. Assuming that to be so, I do not see how it is relevant in determining the request of the petitioner for self-occupation when a vacancy arose. In the course of his order the Deputy commissioner has observed that the landlady had let out the premises on more than one occasion which was seriously disputed by Shri Srinivasan. Assuming that to be so, I do not see how it is relevant in determining the request of the petitioner for self-occupation when a vacancy arose. In my opinion, the criticism of Shri Srinivasan that every one of the reasons given by the authorities for rejecting the claim of the petitioner for self- occupation are either fanciful or not relevant is well founded,. ( 7 ) SHRI Srinivasan pointed, out that the petitioner and, her two younger sisters are all widows and they have no other male support. Shri Srinivasan also maintained that the husband of the last sister with whom the petitioner was residing all these years died about 3 or 4 years ago and that sister has four children studying in the Colleges and schools in the City. He, therefore, maintained that the petitioner and her sisters with their children propose to occupy the premises and live there for the rest of their life and taking these facts into consideration, the authorities should have permitted the petitioner to occupy her own premises. At the hearing of the case, the petitioner and her sisters were also present in Court and it was a pathetic sight for me to see their position i am distressed that the authorities should not have taken into consideration all these facts and should have rejected the claim of the petitioner on totally irrelevant grounds. In these circumstances, I am of the opinion that the claim of the petitioner for self-occupation is well founded and she is therefore entitled for such an order under the Act. ( 8 ) SHRI Srinivasan next contended that the order for delivery passed by the Controller and the delivery effected by the Revenue Inspector without giving 5 days from the date of service of the orders as required by sub-sec, (b) of S. 9 of the Act is manifestly illegal. Shri Srinivasan maintaineed that the order for delivery besides being disregard of the order of the Deputy Commissioner, does not give the requisite time to the petitioner to deliver possession of the premises to respondent No. 3-allottee. Shri Srinivasan maintaineed that the order for delivery besides being disregard of the order of the Deputy Commissioner, does not give the requisite time to the petitioner to deliver possession of the premises to respondent No. 3-allottee. Shri Basavaraj urged that so long as there is an order for delivery by the controller and respondent No. 3 has taken possession of the premises, ho illegality can be attached to the delivery of the premises to his client. ( 9 ) ON 6-1-1978 the Deputy Commissioner dismissed the appeal and therefore the stay order stood vacated on that day. A copy of the order was communicated to the Controller only on 7-1-1978. On a letter presented by respondent No. 3, the Controller issued an order on the same day directing respondent No. 4 to deliver the premises to respondent No. 3 on 11-1-1978. That order has not been personally served on the petitioner. It appears to have been served on one of the sisters of the petitioner at the time of effecting delivery of the premises to respondent No. 3. In order to examine the contention of Shri Srinivasan, it is necessary to read S. 9 of the Act. S. 9 reads thus: -"9. Contents of the order directing leasing of a building to a public authority or other person:-Every order under S. 5 or S. 6 shall be in writing and shall specify (a) the person to whom possession of the building should be delivered; (b) the dale on which such possession should be delivered, such date not being earlier than five days from the date of service of the order; and (c) the rent, if any, as fixed by the Controlle" under sub-sec. (4) of S. 8,"s. 9 states that the order should be in writing and should ajso specify the person to whom the possession of the building should be delivered and that date should not be less than 5 days from the date of service of the order. Normally when the Legislature uses the word 'shall' in any provision, the provision has to be construed as mandatory unless the context otherwise requires. Again in sub-sec, (b) of S. 9, the Legislature uses negative words. Whenever negative words are used in an enactment, such a provision has to be construed as mandatory. Normally when the Legislature uses the word 'shall' in any provision, the provision has to be construed as mandatory unless the context otherwise requires. Again in sub-sec, (b) of S. 9, the Legislature uses negative words. Whenever negative words are used in an enactment, such a provision has to be construed as mandatory. From the above it has to be held that S. 9 of the Act is mandatory and therefore requires strict compliance by the authorities and any disobedience of such a provision would necessarily result in nullification of the proceedings. The order dated, 9-1-1978 even if it is assumed that it has been served on the same day on the petitioner, though that is not the position, giving only two days time, is against the minimum period of five days from the date of service of the. order contrary to S. 9, is manifestly illegal. The object of giving five days clear time is obvious. Necessarily, a landlord who is in occupation of the premises should be given a reasonable time and the Legislature in its wisdom has made it that it should not be less than five days from the date of service of the order. I have found such disobedience in many a case that has come before me which is even beyond my comprehension. I do hope that such disobedience is not deliberate. I fervently hope that such disobedience will be avoided by the Controller in future. ( 10 ) AT the hearing, Shri Srinivasan has filed a Memo inter-aim stating that respondent No. 3 is due in a sum of Rs. 1,200 towards arrears of rent. In the very nature of things I cannot decide on the correctness of this assertion of the petitioner. But at the same time I can not permit respondent no. 3 to occupy the premises without payment of the arrears due by him. ( 11 ) I have found that the impugned orders are liable to be quashed and the petitioner is entitled to succeed. But in allowing the writ petition, i cannot ignore that respondent No. 3 has occupied the premises and is in occupation of the same for which he has necessarily to be given a reasonable time to vacate the premises. Shri Srinivasan also fairly stated that the petitioner would not object for giving reasonable time for respondent No. 3 to vacate the premises. Shri Srinivasan also fairly stated that the petitioner would not object for giving reasonable time for respondent No. 3 to vacate the premises. In my opinion having regard to all the facts and circumstances of the case, it would be reason" able to grant 3 months time from this day to respondent No.-3 to vacate the premiaes or till such time he is allotted another premises by the Controller whichever is earlier, subject to the condition that he' pays the arrears of rents if any within a period of one month and continues to pay the current rents from time to time. ( 12 ) IN the light of my above discussion, I quash the impugned orders by issue of a writ of ceritiorari and direct the House Rent and aceommodation Controller, City Area, Bangalore-respondent No. 2 to permit the petitioner to occupy the premises if necessary by forcibly evicting respondent no. 3 if he does not voluntarily vacate the premises on or before the time granted to him and deliver possession of the same to the petitioner. ( 13 ) RULE made absolute. ( 14 ) PETITIONER is entitled to her costs from respondent No. 3. Advocate's fee Rs. 100. --- *** --- .