SURENDER v. HOUSE RENT CONTROLLER — 1978 DIGILAW 50 (KAR)

( 1 ) IN this writ petition under Article 226 of the Constitution of India, the petitioner has sought for quashing of the order of the special Deputy Commissioner, bangalore, marked at Ext. 'f-4' dt. 4-11-1976 and for a direction to respondents 1, 5 and 6 to evict respondent-2 from the premises after declaring that the premises are vacant and to proceed in accordance with law lor allotment of the premises. ( 2 ) THE facts in brief are that one C. N. Gopal, owned a cinema theatre known as 'shivananda Theatre'. It was leased to the petitioner's uncle one Rangaiah on 29-12-41 for a period of five years under Ext. 'a' with option and liberty to renew or extend the period of lease for a period of another five years subject to such terms and conditions as may be mutually agreed upon. Before the expiry of the period of lease for five years c. N. Gopal, entered into an agreement with the 2nd respondent as per ext. 'c' dt. 2-9-46 for a period of ten years in the first instance with option of the tenant to continue for a further period of five years on the same terms with a similar second option to continue for another period of five years. In Ext. 'c', it was stipulated that the rent shall be payable by the 2nd respondent with/effect from the date on which the possession of the theatre is made over to the tenant by the landlord who shall if necessary take such steps as may be required to obtain and deliver possession to the tenant as soon as possible. C. N. Gopal filed a suit for eviction against rangaiah the uncle of the petitioner in OS. 112 of 1946 on the file of the subordinate Judge, Bangalore and obtained a decree dt. 31-3-49 against rangaiah, who filed RA. 217148-49 before the High Court of Mysore (Karnataka) on 14-11-50. C. N. Gopal, and Rangaiah, entered into an agreement for a fresh lease for ten years. In pursuance of the second lease agreement entered into between Gopal and Rangaiah with two five year option. Rangiah refused to vacate the premises. The 2nd respondent filed a suit for eviction on the basis of Ext. 'c' in OS. 52/50-51 in the Dist Court at bangalore. The suit was dismissed on 30-7-53.-The 2nd respondent filed ra. 263 of 1954 before this Court. Rangiah refused to vacate the premises. The 2nd respondent filed a suit for eviction on the basis of Ext. 'c' in OS. 52/50-51 in the Dist Court at bangalore. The suit was dismissed on 30-7-53.-The 2nd respondent filed ra. 263 of 1954 before this Court. The appeal was dismissed with some modifications. The 2nd respondent filed CA. 1263 of 1967 before the Supreme court. During the pendency of the appeal, Rangaiah died. Hence the petitioner was impleaded as his legal representative before the Supreme court. The Supreme Court allowed the appeal and granted a decree in terms of the agreement of lease Ext. 'c'. The petitioner as legal representative filed a review petition before the Supreme Court which came to be dismissed. In the meantime the premises was purchased by the 4th respondent, who is the wife of the petitioner on 16-10-74 under a sale deed. In execution of the decree of the Supreme Court, the petitioner was evicted and the 2nd respondent was put in possession on 12-11-75. The 2nd respondent entered into an agreement on 12-11-75 and formed a partnership agreement called 'brindavan Enterprises' and took one Dayananda pai as partner and has been carrying on the business of Cinematography exhibition by name 'brindavan Enterprises'. ( 3 ) FURTHER, by a notice dt. 2-6-76 under Sec. 4 (3) Karnataka House Rent control Act, 1961, (to be called the Act) the House Rent Controller, bangalore City, called upon the 4th respondent landlord to explain as to why she should not be prosecuted under Sec. 4 (3) of the Act for contravention of the provisions of Section 4 (1) and (2) of the Act. Further, by another notice dated 2-6-76 under Section 10a (1) of the Act, the Rent controller, called upon the 3rd respondent to explain as to why he should not be evicted from the above premises. ( 4 ) OBJECTIONS were filed by 2nd and 4th respondents. Further, by another notice dated 2-6-76 under Section 10a (1) of the Act, the Rent controller, called upon the 3rd respondent to explain as to why he should not be evicted from the above premises. ( 4 ) OBJECTIONS were filed by 2nd and 4th respondents. Upon consideration of the objections and arguments, the House Rent Controller, was of the view that the moment the partnership was formed the 2nd respondent ceased to be a tenant and at that moment a vacancy had arisen, though not physically but notionally and the action on the part of the 2nd respondent amounted to sub-letting in favour of the 3rd respondent and the occupation of the suit premises by the 3rd respondent on 12-11-75 was in violation of Sec. 4 (2) of the Act, and thus unauthorised, and directed the 3rd respondent to vacate the suit premises and hand over possession to his office, failing which action would be taken to evict him forcibly. The 3rd and the 2nd respondents filed an appeal before the Special deputy Commr in HRC. App. No. 189/76-77 against the order of the House rent Controller. The learned Special Deputy Commr, took the view that the 2nd respondent continued as a lessee of the premises, though for the purpose of business he had taken another partner and that the act of the 2nd respondent did not amount to sub-lease. Therefore, he held that it was not open to the Rent Controller to direct the 3rd respondent to vacate the premises treating it. as unauthorised. ( 5 ) THE questions which arise for decision are (1) Whether the provisions of Chapter II of the Act which includes sec. 4 are attracted in case a non-residential building, the monthly rent of which exceeds Rs. 500 or the annual value of which exceeds Rs. 6,000 becomes vacant; (2) Whether the 4th" respondent was required to give intimation as required under Sec-4 (1) of the Act, when the premises in question became vacant on 12-11-75 by virtue of the execution of the decree for possession granted by the Supreme Court in Civil Appeal No. 1263 of 1967; ' (3) Whether the occupation of the premises by respondents 2' and 3 on 12-11-75 is contrary to the provisions of Sec. 4 (2) of the Act; and (4) Whether the Controller (respondent-1) is justified in law in passing the impugned order at Ext. 'e-3' and interference by the Special deputy Commissioner (respondent-6) in appeal is unwarranted in law. Mr. N. Santhosh Hegde, learned Advocate for the petitioner, firstly, contended that any change in the occupancy of a premises creates a vacancy as contemplated under Sec. 4 (1) of the Act. He urged that a decree obtained for possession of a non-residential building under Sec. 31 of the Act is not exempted and it is subject to Sec. 4 (1) and (2) of the Act. Therefore, it is urged that when there was change of occupancy by virtue of a decree of the Civil Court, the premises becomes vacant and in such a gase, the provisions of S. 4 are attracted, He laid stress on the word ' otherwise' found in Sec. 4 (1) of the Act. According to Mr. Hegde, the word 'otherwise' includes cases wherein the premises become vacant by virtue of a decree of a Civil Court or by an order obtained for possession in respect of non-residential buildings to which provisions of Sec. 21 (1) (h) of the act are not made applicable. Further, he urged that the Supreme Court's decree cannot be equated with the order of eviction passed under the provisions of Sec. 21 (1) (h) of the Act, and the decree cannot override the provisions of the Act. ( 6 ) MR. S. G. SUNDARASWAMY, learned Advocate for the 2nd and 3rd respondents contended that by execution of the decree obtained for possession the premises in question has not become vacant within the meaning of Sec. 4 (1) of the Act. Since this writ petition raises the very question raised before the Supreme Court, the petitioner's right has been extinguished and he cannot be allowed to agitate the same matter. Secondly, he contended that the petitioner is not an aggrieved party and he has no legal right to seek relief under Art. 226 of the 'constitution. The petition suffers from laches of delay and hence it is liable to be dismissed. Before we consider the merits of the respective contentions raised on tehalf of the parties, it is necessary to refer to the relevant provisions of the Act. Sec. 21 in Part V of the Act, deals with the control of eviction of tenants and obligatioji of landlord and other relevant sections of the Act. Before we consider the merits of the respective contentions raised on tehalf of the parties, it is necessary to refer to the relevant provisions of the Act. Sec. 21 in Part V of the Act, deals with the control of eviction of tenants and obligatioji of landlord and other relevant sections of the Act. ( 7 ) SECTION 21 (1) (h) of the Act, reads as under :" Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery ef possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant: provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, viz. , (h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlod is a trustee of a public charitable trust, that the premises are required for occupation for the purpose of the trust. " ( 8 ) SEC. 31 of the Act, which finds a place in the above Chapter deals with the exemption in respect of certain buildings. It says that nothing contained in this Part shall apply to a non-residential building the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees. The proviso to this Section is not important for the purposes of this case. Sec. 4 in Part II of the Act deals with the lease of buildings. It reads thus :" 4. The proviso to this Section is not important for the purposes of this case. Sec. 4 in Part II of the Act deals with the lease of buildings. It reads thus :" 4. Intimiation of vacancy by landlords.- (1) Every landlord shall within fifteen days after the building becomes vacant by his ceasing to occupy it or by the termination of a tenancy or by the eviction of the tenant or by the release of the building from requisition, or otherwise, give intimation in the prescribed form by registered post to the Controller; (2) Except as provided in this Part, no person shall let, occupy or otherwise use any building which becomes vacant without the landlord giving intimation under sub-sec (1) and for a period of 15 days from the date of which the intimation is received by the Controller or within a period of one week after termination of the proceedings under Section 8' if any, whichever is later: provide'd that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in clause (h) of the proviso to sub-sec (1) of Sec. 21 or to any building which has been released from requisition for the use of occupation of the landlord himself. (3) Any landlord who contravenes the provisions of sub-sec (1) or (2) shall, on conviction, be punished with fine which may extend to one thousand rupees; provided that such fine shall not be less than fifty rupees. (4) Nothing contained in this Section shall apply- (ii) to a non-residential building the monthly rent of which does not exceed twenty-five rupees or the annual rental value of which does not exceed three hundred rupees. "section 5 of the Act, reads thus : "5. ''order of leasing of vacant building.- (1) The Controller may, by order in writing served on the landlord, direct that any vacant building, whether intimation of its vacancy has been given by the landlord under sub-sec (1) of Sec. 4 or not be given to the landlord for the use and occupation or on lease to such public authority or other person as he may think fit. Explanation:-A building may be directed to be leased under this sub-section notwithstanding- that it is subject to an agreement of lease or has been let or occupied in contravention of sub-sec (2) of section 4. , (2) Any landlord^vho contravenes an order made under sub-ace (1) shall, on conviction, be punished with simple imprisonment for a term which may extend to three months or with fine or with both. Section 8 (2) of the Act reads thus :" In selecting the public authority or other person in whose favour an order may be made under this section, the Controller shall observe such order of priority as may be prescribed. "rule 4 of the Karnataka Rent Control Rules 1961 (to be hereinafter called the 'rules') lays down the order of priority. Rule 4 (1) of the Rules says that where no direction is made under the proviso to sub-sec (2) of sec. 8, the Controller shall observe the following order of priority in selecting the public authority or other person in whose favour an order may be made under the said section, viz," (AA) In the case of non-residential building: - 10. Where the monthly rent of the building exceeds Rs. 500 to any person who has obtained the consent of the landord for the lease of the building in his favour. "section 10a of the Act, deals with eviction by the Controller. It reads :" 10a. Eviction by the Controller.- (1) Where in accordance with the provisions of Sec. 4, the vacancy of any building is required to be intimated to the Controller and is not so intimated, and the Controller believes or has reason to believe that any person has in contravention of sub-sec. (2) of Sec. 4 occupied the building or any part thereof, he may by notice in writing, call upon the person in occupation to show cause, within a time to be fixed by the Controller, why such person should not be evicted therefrom. (2) If the person to whom, a notice was issued under sub-sec. (1) fails to appear before the Controller,. (2) If the person to whom, a notice was issued under sub-sec. (1) fails to appear before the Controller,. or having appeared, fails to satisfy the Controller, that he is entitled to remain in occupation of the building, the Controller may, without prejudice to any other action which may be taken against him under this Act, or under any other law for the time being in force, direct him by order in writing to vacate the building within such period as may be specified in the order and deliver possession thereof to the Controller. (3) (a) Upon service of an order under Subsec. (2), the person against whom an order is made and every person claiming under him shall vacate the building and deliver possession thereof to the Controller. ( 9 ) IF the building is not vacated and its possession delivered to the controller within the period specified in the order, the Controller may summarily dispossess the person in occupation and take possession of the building and thereupon the provisions of Secs. 4, 5, 8, 9 and 10 shall apply to the building as if intimation of vacancy of the building was given to the Controller on the date on which he took possession of it. " now the first question for determination is whether the provisions of chapter II of the Act, which include Sec. 4 are attracted in case a nonresidential building, the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees becomes vacant. The answer to this question must be in the affirmative. Under Sec. 31 of the Act, application of the provisions of Sec. 21 and other Sections contained in Part V of the Act is exempted to a non-residential building, the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees. But there is no such exemption for the lease of such a non-residential building under sec. 4 (4) (ii) of the Act, which exempts the lease of a non-residential building the monthly rent of which does not exceed Rs. 25 or the annual rent does not exceed Rs. 300. But there is no such exemption for the lease of such a non-residential building under sec. 4 (4) (ii) of the Act, which exempts the lease of a non-residential building the monthly rent of which does not exceed Rs. 25 or the annual rent does not exceed Rs. 300. Further, explanation in Sec. 5 of the Act, says that a building may be directed to be leased under this section notwithstanding that it is subject to an agreement of lease or has been let or occupied in contravention of sub-sec (2) of Sec. 4 of the Act. Sub-sec (2) of Sec. 5 of the Act, makes the contravention under sub-sec (1) of Sec. 5, punishable with simple imprisonment for a term which may extend to three months or with fine or with both. Further, Sec. 4 (2) of the Act, prohibits any person occupying any building which becomes vacant without the landlord-giving intimation under sub-sec (1) for a period of fifteen days from the date on which the intimation is received by the Controller or within a period of one week after the termination of the proceedings under Sec. 8, if any, whichever is later. The proviso to Sec. 4 of the Act, exempts only the application of the provisions of that section to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in clause (h) of the proviso to sub-sec (1) of Sec. 21 of the Act, and to any building which has been released from requisition for use and occupation of the landlord himself. But there is no such exemption provided in Sec. 4 of the Act to a non-residential building which falls within the scope of Sec. 31 of the Act. Therefore, upon a reading of Sec. 4 (4) (ii) with Sec. 31 of the Act, there is no scope for the interpretation that a non-residential building, the possession of which is obtained by an order or decree of a Civil Court, does not come within the scope of Sec. 4 of the Act, as well as under the other sections in Part II of the Act. ( 10 ) MR. Sundaraswamy, however, contended that the lease of a cinema, theatre is not governed by the provisions of the sections found in Chap. II. ( 10 ) MR. Sundaraswamy, however, contended that the lease of a cinema, theatre is not governed by the provisions of the sections found in Chap. II. Reliance is placed upon a decision of the Supreme Court in Dwnraka Prasad v. Dwaraka Das Saraj (AIR. 1975 SC. " 1758 ). The Supreme Court has held that a lease of a lucrative theatre with expensive cinema equipments which latter pressed the lessee to go into the transaction cannot reasonably be reduced into a mere tenancy of a building together with fittings which but make the user of it more comfortable and when the renewed lease of 1959 was executed, there was a running cinema business and further the rent apportioned for the building qua was only a fraction of the rent for the costly fixtures intended for the cinema business. It held that the lease sued on did not fall within the scope of the definition of 'accommodaion' in U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947 ). This decision is of no assistance to Respts 2 and 3 in view of the fact, that no lucrative theatre with expensive cinema equipments was leased to the 2nd respondent by the previous owner, it was only a non-residenial building that was leased to him. Therefore, I am clearly of the opinion that a lease of cinema theatre is governed by the provisions of the Act, except Chap. V of the Act. ( 11 ) THE next and the crucial question for determination is whether the premises in question became vacant on 12-11-75 by virtue of execution of the decree for possession granted by the Supreme Court in Civil Appeal no. 1263 of 1967 in favour of the 2nd respondent. A building becomes vacant under Sec. 4 (1) of the Act, when an owner ceases to occupy it or by termination of tenancy or by eviction of the tenant or by the release of. the building from requisition or otherwise. In all those circumstances, the landlord is required to give intimation of vacancy to the Controller in a prescribed form by registered post. In the instant case, the building has not become vacant on the first four circumstances. ( 12 ) MR. SANTHOSH Hegde, relied upon the word 'otherwise' found in Section 4 (1) of the Act. In all those circumstances, the landlord is required to give intimation of vacancy to the Controller in a prescribed form by registered post. In the instant case, the building has not become vacant on the first four circumstances. ( 12 ) MR. SANTHOSH Hegde, relied upon the word 'otherwise' found in Section 4 (1) of the Act. His contention is that if a person obtains a decree for possession of the premises and executes the same, there will be change of occupancy, consequently the non-residential building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act. He further urged that when the decree for possession was executed on 12-11-75, the premises became vacant and the landlord was bound to give intimtaion in the prescribed form by registered post to the Controller. He also urged that the 2nd and 3rd respondents were prohibited under Sec- lion 4 (2) of the Act, from occupying or otherwise using the non-residential building which became vacant without the landlord giving intimation under sub-sec (1) of S. 4 of the Act. He pointed out that the proviso to sub" sec (2) of Sec. 4 of the Act, exempted only a building in respect of which the landlord obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to sub-sec (1) of Sec. 21 of the Act, and not under Sec. 31 of the Act, and therefore, contended that a decree for possession obtained in respect of a ncn-residential building coming within the exemption under Sec. 31 created a vacancy of a non-residential building which attracted the mischief of the provisions of Sections 4 to 13 of fart II of the Act. He further urged that the decree of the Supreme Court cannot bo equated with an order under Section 21 (1) (h) of the Act, and it cannot over-ride the provisions of the Act. ( 13 ) ON the other hand Mr. S. G. Sundaraswamy, contended that the decree for possession obtained by the 2nd respondent in respect of the building after fighting a litigation for over twenty years is not governed by the provisions of the Act. ( 13 ) ON the other hand Mr. S. G. Sundaraswamy, contended that the decree for possession obtained by the 2nd respondent in respect of the building after fighting a litigation for over twenty years is not governed by the provisions of the Act. He further urged that by virtue of a decree for possession of the non-residential building there is no scope to say that such a building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act. He urged that the word 'otherwise' occurring in Sec. 4 (1) of the Act, must be so construed as to include the circumstances enumerated in Sec. 4 (1) of the Act. He pointed out that the decree for possession is against the owner of the building and the petitioner who was a tenant. Further he Contended that while granting the decree in CA. 1263 of 1967 the Supreme Court impliedly considered the application of the provisions of Sees. 4, 8 and 10a of the Act. The petitioner having failed to raise the contentions under the provisions of Sections 4, 8 and 10a of the Act, cannot be permitted to raise those contentions now, in this writ petition. The judgment of the Supreme Court in ca. 1263 of 1967 is reposted in H. C. Rajan v. C. N. Gopal (AIR. 1975 SC. 261. ). The Supreme court has observed thus :" Before the suit came to be tried, the Mysore Rent Control Act, 1951 came into force on July 30, 1953, the Dist Judge dismissed the suit. An appeal was filed in the High Court against the judgment which while dismissing it in all respects aljowe'd it on November 27, 1959, partly by directing the 1st respondent to return the amount of rs. 18,000 received by him as advance with interest at 6% per annum from September 2, 1946, till date of payment. Against "that judgment this appeal is by certificate granted on November 6, 1962. But before the certificate was granted, on Decemer31, 1961, the Mysore Rent control Act, 1961 came into force whereunder by virtue of Section 31, buildings with monthly rent exceeding Rs. 500 were not governed by the Act. There is, therefore, now no impediment in the way of the appellant obtaining relief in this Court if he is otherwise entitled to. But before the certificate was granted, on Decemer31, 1961, the Mysore Rent control Act, 1961 came into force whereunder by virtue of Section 31, buildings with monthly rent exceeding Rs. 500 were not governed by the Act. There is, therefore, now no impediment in the way of the appellant obtaining relief in this Court if he is otherwise entitled to. " ( 14 ) IT is not necessary for us to examine what impediments existed from to time since the filing of the suit by reason of the changes in the Rent Control Law, because what we are concerned with is whether relief can now be given when that impediment can no longer bar the court from granting a decree. In Mohanlal Chunilal Kothari v. Tribhuvan haribhai Tamboli ( (1963) 2 SCR 706= air 1963 SC 358 ) it has been held that a Court can take into account the present position and and mould its relief. Now the only question is whether any relief can be given to the appellant. It is not denied before us, nor was it denied before the High Court that the lease in favour of the appellant was a demise in praesenti i. e. , Ext. 'd' is an agreement of lease and not an agreement to lease. Curiosly enough though the High Court accepted this position in the earlier stages of its judgment, in the latter part it seems to have overlooked what it had stated earlier and treated the lease as if it was an agreement to lease. On this basis it applied the doctrine of frustration as barring any remedy for the enforcement Exhibit 'd'". Further the Supreme Court at para 8 has observed thus :" Be that as it may, in this case we need not be concerned with any of these aspects because even under the fresh lease executed by the first respondent in favour of the 2nd respondent in the year 1950, the period of 20 years expired in 1970 after which the 2nd respondent has no right to possession under that leae deed. The Mysore Rent control Act of 1961 has removed any impediment for giving effect to the lease in favour of the appellant and today this Court is not precluded from putting the appellant in possession. The Mysore Rent control Act of 1961 has removed any impediment for giving effect to the lease in favour of the appellant and today this Court is not precluded from putting the appellant in possession. " ( 15 ) FURTHER in para No. 9 of the Judgment, it has observed thus:"the period of lease for ten years under clause 4 should begin from a particular point of time which point of time cannot by any stretch of the argument be the date on which the lease was executed, because Cl. 2 notes the fact that the landlord is not in possesion of the premises and has to put the appellant (tenant) in possession as soon the lease wa executed. Hence Cl. 2 states that the landlord should take such steps as may be required to obtain and deliver possession to the tenant (appellant) as soon as possible, which makes the giving of possession to the appellant the starting point of the lease. In other words for the purpose of Cl. 4 the starting point of the lease for determining the period of ten years is the obtaining of possession of the theatre. In any view of the matter the appellant is entitled to possession. ( 16 ) ACCORDINGLY, we allow the appeal, reverse the judgment and decree of the trial Court and the first appellate Court. The appellant will be put in possession under the terms of Ext. 'd' on payment of rs. 18,000 stipulated under the said Exhibit to the first respondent. " upon a careful reading of what has been excerpted above, it is cle'ar, that the Supreme Court felt that there was some impediment according to the provisions of the Mysore Rent Control Act, 1951, to grant the relief to the 2nd respondent. But by'virtue of Sec. 31 of the Act, which came into force on December 31, 1961, whereunder buildings with monthly rent exceeding rupees five hundred were not governed by the Act, the Supreme court found that there was no impediment in the way of appellant obtaining relief in the Court, if he was otherwise entitled to. It impliedly means that the decree obtained by respondent-2 was subject to the other provisions of the Act. It impliedly means that the decree obtained by respondent-2 was subject to the other provisions of the Act. ( 17 ) IT is significant to note that the Supreme Court has construed the- agreement of lease between the 2nd respondent and H. V. Rajan, the previous owner, as an agreement of lease and not an agreement to lease. Therefore, it disapproved the application of the doctrine of frustration as barring any remedy for enforcement of the agreement of lease as accepted by the High Court. The Supreme Court had in its view the provisions of sec. 31 of the Act, while examining whether there is any impediment under the Rent Control Act. Nowhere there is any reference made in the course of the judgment regarding the application of the other provisions of the Rent Control Act. Therefore, it is not possible to accept the contention of Mr. Sundaraswamy that the Supreme Court had impliedly considered the application of Secs. 4, 8 and 10a of the Act. Further, it is significant to note that the operative portion of the judgment says that the appellant will be put in possession in terms of Ext. 'c' viz, the agreement of lease, which contemplated that the landlord should take such steps as may be required to obtain and deliver possession to the tenant as soon as possible and that for the purpose of clause 4 of the agreement of lease " the starting point of the lpase that determines the period of ten years, is the obtaining of the possession of the theatre. Therefore the contention of Mr. Sundaraswamy, that the landlord did not obtain possession from the petitioner and deliver it to the 2nd respondent, but, the 2nd respondent obtained possession in terms of the decree and, therefore, the building did not become vacant within the meaning of Sec. 4 (1) of the Act, cannot be accepted. The enforcement of decree for possession obtained from the Supreme Court results in change of occupancy of the building and, therefore, the building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act. Therefore, in my opinion, the building became vacant within the meaning of Sec. 4 (1) of the Act. However, Mr. The enforcement of decree for possession obtained from the Supreme Court results in change of occupancy of the building and, therefore, the building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act. Therefore, in my opinion, the building became vacant within the meaning of Sec. 4 (1) of the Act. However, Mr. Sundaraswamy, contended that it is not the intend- ment of the legislature to put a person into further process of getting the building allotted inspite of the fact that he obtained a decree for possession from the Supreme Court. The policy underlying Sec. 4, is to remove the congestion and to make available the building at fair rent to needy people in areas in which the Act is made applicable. It is experienced that there is acute shortage of the residential as well as non-residential buildings in certain areas of the State, as a consequence of which rent racketing has been going on. It is to regulate the allotment of houses or buildings and to stop unhealthy trends that Sec. 4 was enacted in the public interest and such public interest cannot be undone when there is change in occupancy by virtue of a decree based upon an agreement of lease. The explanation in Sec. 5 of the Act lays down that a building may be directed to be leased under this Section notwithstanding that it is subject to an agreement of lease or has been leased out or occupied in contravention of sub-sec (2) of Sec. 4. The decree of the Supreme Court is based upon the agreement of lease. When it is permissible under the explanation, to direct lease of a building subjected to an agreement of lease it is futile to contend that a decree for possession obtained on the basis of an agreement of lease is not subject to the provisions of the Act, which, govern the lease of buildings in Part II of tht Act. ( 18 ) THEREFORE, as rightly contended by Mr. Santhosh Hegde, that whenever there is any change in the occupancy of a non-residential building, by virtue of a decree of the Civil Court, such a building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act, and all the provisions of Chapter II of the Act, are attracted. The contention of Mr. Santhosh Hegde, that whenever there is any change in the occupancy of a non-residential building, by virtue of a decree of the Civil Court, such a building becomes vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act, and all the provisions of Chapter II of the Act, are attracted. The contention of Mr. Sundaraswamy that by the execution of the decree, if possession is obtained the building cannot be said to become vacant, fails. Sec. 4 (1) of the Act, is mandatory, requiring every landlord to give intimation in the prescribed form by a registered post to the Controller if a building becomes, vacant in any one of the circumstances enumerated therein. Further, sub-sec (2) of Sec. 4 of the Act, prohibits any person to occupy or otherwise use any building which becomes vacant without the landlord giving intimation under sub-section (1), unltil the lapse of 15 days from the date on which the intimation is received by the Controller or within a period of one week of the termination of the dings under Sec. 8, if any, whichever is later. ( 19 ) IN the fnstant case admittedly the 4th respondent has failed to intimate the vacancy to the Controller. Thus the 4th respondent has contra- vened the provisions of Sec. 4 (1) of the Act. Respondents 2 and 3 have occupied the building in question without the landlord giving intimation under sub-sec1) of Sec. 4 of the Act, in contravention of Sec. 4 (2) of the act. Thus, there is clear violation of the mandatory provisions of sub- sees (1) and (2) of Section 4 of the Act, by respondents 2, 3 and 4. The contravention of these provisions is made punishable under sub-sec (3) of Sec. 4 of the Act. But, no prosecution is ordered against respondent-4 by the Controller. ( 20 ) THE next question for determination is whether the Rent Controller' respondent-1 gets jurisdiction in such cases to pass an order of leasing such a non-residential building. Sec. 5 (1) of the Act, says that the Controller may by order in writing served on the landlord, direct that any vacant building, whether intimation of its vacancy has been given by the landlord under sub-sec (1) of Sec. 4 or not, be given on lease to such public authority or other person as he may think fit. Sec. 5 (1) of the Act, says that the Controller may by order in writing served on the landlord, direct that any vacant building, whether intimation of its vacancy has been given by the landlord under sub-sec (1) of Sec. 4 or not, be given on lease to such public authority or other person as he may think fit. A building may be directed to be leased under this sub-section, notwithstanding that it is subject to an agreement of lease or has been let out or occupied in contravention of sub-sec (2) of Sec. 4 of the Act. Sub-sec (2) of Sec. 5 says that any landlord who contravenes an order* made under sub-sec (1) shall on conviction be punished with simple imprisonment for a term which may extend to three months or with fine or with both. ( 21 ) THESE provisions undoubtedly clothe the Controller respondent-1 to pass an order in writing for leasing of such vacant non-residential building in favour of any person or direct that such building be given to the landlord for his use and occupation. Contravention of the provisions of sec. 5 (1) of the Act, is made punishable under sub-sec (2) of Sec. 5 of the act. Therefore, the impugned order passed by the Controller respondent-1 as per Ext. 'e-3' is legal and valid and did not call for interference by the appellate authority the 6th respondent. ( 22 ) THE Controller, respondent-1, under misconception of law has taken action on the ground that the 2nd respondent has sub-let the premises to the 3rd respondent. Further, the Controller is wholly in error in coming to the conclusion that the building has notionaly, but not physically, be- proceecomet vacant. The 6th respondent the Special Deputy Commissioner, has not addressed himself to the relevant question arising in the appeal while reaching the conclusion that whenever a tenant takes a partner there is no vacancy or sub-letting. It is clearly a case of building becoming vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act and occupied by respondent-3 in contravention of the provisions of Sec. 4 (2) of the Act. It is clearly a case of building becoming vacant within the meaning of the word 'otherwise' found in Sec. 4 (1) of the Act and occupied by respondent-3 in contravention of the provisions of Sec. 4 (2) of the Act. Therefore the direction given by the 1st respondent to the 3rd respondent Mjs Brindavan Enterprises to vacate the suit premises and handover possession of the same to his office, failing which action would be taken to evict forcibly, is legal and valid and it must be upheld and 'the impugned order passed by the 6th respondent in appeal is liable to be quashed. ( 23 ) HOWEVER, Mr. Sundaraswamy, strenuously contended that the petitioner is not an aggrieved person and that he has no legal right to maintain this writ petition. He urged that for issue of a writ of certiorari under art. 226 of the Constitution, the petitioner should establish a legal right to be enforced against a public authority who should owe a duty to him and that there should be a demand and refusal by that authority. He further urged that chance of the petitioner to apply for allotment of the nonresidential building in question is not a legal right. Reliance is placed on the decisions of the Supreme Court in Jasbhai Motibhai Desai v. Roshan kumar ( AIR. 1976 SC. 578.) and Moni Subaat Jain v. State of Haryana (AIR. 1977 SC. 276 ). ( 24 ) IN the former decision the Supreme Court has observed thus :" According to most English decisions in order to have locus standi to invoke certiorari jurisdiction,, the petitoner should be an "aggrieved person" and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as matter of course, but if he does not fulfil that character, and is a 'stranger', the Court will in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: who is an aggrieved person''? And what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. And what are the qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have ben devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi for 'standing' to invoke, certiorari jurisdiction. " ( 25 ) IN the latter decision the Supreme Court in Para 9 of its judgment has observed thus :" The High Court rightly dismissed the petition. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicial enforceable right as well as a legally protected sight before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do some thing or to abstain from doing something. "on the basis of these two decisions Mr. Sundaraswamy contended that the petitioner is neither an aggrieved person nor he has any locus standi to seek relief under Art. 226 of the Constitution of India. ( 26 ) MR. SANTHOSH Hegde, learned Counsel for the petiioner, contended that the petitioner fought litigation against respondent-2 in three Courts in respect of a non-residential building and that he is not a' stranger to the litigation between himself and the 2nd Respt. He asserted that the petitioner is an aggrieved person and he has locus stand to seek the relief. He urged that the building was purchased by his wife respondent-4 at a cost of Rs. 4,00,000 and has become the owner of the building in question. ( 27 ) IF there is no direction issued under the proviso to sub-sec (2) of sec. He urged that the building was purchased by his wife respondent-4 at a cost of Rs. 4,00,000 and has become the owner of the building in question. ( 27 ) IF there is no direction issued under the proviso to sub-sec (2) of sec. 8, the 1st respondent is required to observe the order of priority in selecting the public authority or other person in whose favour an order may be made u|r. 4 of the Rules. U/r. 4 (A) (10) where the monthly rent of the bldg exceeds Rs. 500 and any person who has obtained the consent of the landlord for the leasing of the building in his favour is entitled for allotment of the premises. He asserted that the petitioner is certain in obtaining the consent of the 4th respondent for the lease of the building in his favour and, therefore, he urged that it is not a mere chance of getting the building in question allotted under Rule 4 (A) (10) of the Rules, if the controller, the 1st respondent is not inclined to allot non-residential building to persons enumerated in Rule 4 (A) (1) to (9) of the Rules. Further, Mr. Santhosh Hegde, urged that the 4th respondent who is the wife of the petitioner has become the owner of the non-residential building after inventing four lakhs of rupees. The petitioner and the 4th respondent are living together. He pointed out that the Controller, the 1st respt has discretion under Sec. 5 (1) of the Act, to allow the landlord to have the use and occupation of a building and if she is permitted to do so', that will also enure to the benefit of the petitioner. Therefore, he urged that having regard to the burdens and financial interests of the petitioner, and Respt. 4, the petitioner is an aggrieved person. Therefore, he contended that there is locus standi for claimnig relief under Art. 226 of the Constn. ( 28 ) HE placed reliance upon the decision in Bar Council of Maharashtra v.- Dabholkar (AIR. 1975 SC. 2092. ). In Para 27 of the judgment the Supreme Court has observed thus :" Where a right of appeal to the Courts against an administrative or judicial decision is. ( 28 ) HE placed reliance upon the decision in Bar Council of Maharashtra v.- Dabholkar (AIR. 1975 SC. 2092. ). In Para 27 of the judgment the Supreme Court has observed thus :" Where a right of appeal to the Courts against an administrative or judicial decision is. created by statute the right is invariably confined to a person aggrieved or a person who claims to be aggrieved; the meaning of the words a person aggrieved may vary according to the text of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed upon him. The meaning of the wordls "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the back-ground of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words 'persons aggrieved' in Secs. 37 and 38 of the act, are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is, whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interest. " ( 29 ) THE ratio of the above decision is applicable to this case A more liberal approach is required in the background of the Act, which deals with proprietary rights involving financial interests of the parties. Therefore, it is not possible to accept the contention of Mr. Sundaraswamy, that the petitioner does not come within the meaning of the words "person aggrieved" and that he has no locus standi to claim relief under Art. 226 of the Constitution of India. Therefore, it is not possible to accept the contention of Mr. Sundaraswamy, that the petitioner does not come within the meaning of the words "person aggrieved" and that he has no locus standi to claim relief under Art. 226 of the Constitution of India. ( 30 ) FOR the reasons stated above, the impugned order passed by the Special deputy Commissioner, Bangalore (6th respondent) M case No. 189/ 1976-77 dated 4-11-1976 marked as Ext. 'e-4' is hereby quashed and the order of the Controller (1st respondent) in HRC. Misc. No. 211 of 1976 dated 20-9-1976 marked as Ext. 'e-3' is upheld. The 1st respondent Controller is directed to take further action in pursuance of his order in accordance with law. In the result, the writ petition is allowed. Parties to bear their own costs. Send a true copy of the order to the 1st respondent (Rent Controller) forthwith. --- *** --- .