G. A. BAQUARI v. STATE OF KARNATAKA — 1979 DIGILAW 116 (KAR)

K. A. SWAMI, J. ( 1 ) THE petitioner is common to both the writ petitions. In this order the parties, will be referred to as per their ranking in writ petition No. 5514 of 1977. The owner of the premises in question bearing No. 12 richmond Road, Bangalore, is the 4th respondent in writ petition No. 5514 of 1977 and he is also the 3rd respondent in writ petition No 5909 of 1977. In writ petition No. 5514 of 1977, the petitioner has clallenged the validity of the orders passed by the 2nd respondent (The Special deputy Commissioner), and the 3rd respondent (The House Rent Controller ). The 3rd respondent by the order dt. 13-1-1977 in H. R. C. Misc. 218/76-77, directed the petitioner to vacate the premises in cuestion. By the said order, the 3rd respondent has also further directed prosecution of the owner of the premises in question for violation of section 4 (1) and (2) of the karnataka Rent Control Act, 1961 (hereinafter referred to as the Act ). In the appeal preferred by the petitioner before the 2rd respondent in H. R. C. A. No. 288 of 1977, the aforesaid order of the 3rd- respondent has been confirmed and the appeal has been dismissed granting time till 13-5-1977 for vacating the premises in question on the ground that the petitioner has consented for passing of the said order. As against the said order, the petitioner preferred a Review Petition before the 2nd respondent and that review petition also was dismissed by the order dated 23-6-1977. Thus, the petitioner has challenged the aforesaid three orders in writ petition No. 5514 of 1977. ( 2 ) DURING the pendency of the proceeding in the aforesaid HRC. Misc. 218 of 76-77. the Act came to be amended by act No. 66 of 1977. In pursuance of the said amendment, the petitioner filed a declaration before the 3rd respondent under section 31-B of the Act for regularisation of his occupation as per section 33-C of the act. The 3rd respondent has rejected the said application by the order dt 23-6-1977. It is this order that has been challenged in writ petition No. 5909 of 1977. The 3rd respondent has rejected the said application by the order dt 23-6-1977. It is this order that has been challenged in writ petition No. 5909 of 1977. ( 3 ) THE case of the petitioner in both these writ petitions, is that the entire premises in question bearing No. 12 Richmond road, Bangalore, was under the possession of the Posts and Telegraphs Department and the said Department vacated the premises and thereafter the 4th respondent applied to the 3rd respondent for releasing the premises for his personal use and occupation. Accordingly, the 3rd respondent released the premises in favour of the 4th respondent for his own use and occupation. Thereafter, as per the case of the petitioner the 4th respondent got half portion of the premises bearing No. 12, Richmond road, converted into a non-residential building by obtaining an order by the 3rd respondent under section 11 of the Act. The further case of the petitioner is that he and the 4th respondent started a business in partnership under the name and style "keep-fit Club" in the portion of the aforesaid premises, which was permitted by the 3rd respondent to be used as a non-residential building and this partnership business was commenced on 26-10-1975. According to the case of the petitioner, there was no deed of partnership (and it was only by way of an oral agreement) the partnership business was commenced and as per the oral agreement the petitioner was to give Rs. 1000 per month to the owner of the premises in question (4th respondent) being the profit of the business and that this partnership business according to the case of the petitioner went on till November 1976 and in the month of november 1976, the partnership business came to end. It is the further case of the petitioner that after the partnership business came to an end, he continued the business of 'keep Fit Club' in the premises in question and became the tenant of the said premises. It is the further case of the petitioner that after the partnership business came to an end, he continued the business of 'keep Fit Club' in the premises in question and became the tenant of the said premises. His further case is that after the partnership business between the 4th respondent and himself came to an end, the relationship between them was not cordial, therefore, the 4th respondent by writing anonymous letter to the Rent Controller, got the proceedings initiated under Sec. 10-A of the Act, for eviction of the petitioner from the premises in question, on the ground that the occupation of the petitioner of the premises in question, was in contravention of section 4 of the Act It is the further case of the petitioner that the 3rd respondent, in pursunce of the said anonymous letter, issued notices to the petitioner as well as to the 4th respondent and thereafter has passed the order in question holding that there has been an unauthorised letting and further holding that the occupation of the premises by the petitioner was in contravention of section 4 (2) of the Act. ( 4 ) ON the contrary, the case of the 4th respondent the owner of the premises, is that he has not let out the premises to the petitioner at any time and there was no partnership business between the petitioner and himself and that the petitioner represented to the 4th respondent that he had been driven out from the premises which he was occupying and that he had no other accommodation, therefore, on humanitarian grounds, he allowed the petitioner to occupy the premises in question and that there was no relationship of landlord and tenant. ( 5 ) THE 3rd respondent has held that the pertnership business was not established, and the occupation of the petitioner was unauthorised as it was in contravention of section 4 (2) of the Act. This order of the 3rd respondent as already stated above, has been confirmed by 2nd respondent. ( 6 ) SRI B. G. Sridharan, learned Counsel for the petitioner, urged the following points for consideration (1) That the entire proceeding before the 3rd respondent-House Rent Controller, initiated under section 10-A of the Act is without jurisdiction, inasmuch as, there was no contravention of section 4 (1) and (2) of the Act, because, there was no vacancy. ( 6 ) SRI B. G. Sridharan, learned Counsel for the petitioner, urged the following points for consideration (1) That the entire proceeding before the 3rd respondent-House Rent Controller, initiated under section 10-A of the Act is without jurisdiction, inasmuch as, there was no contravention of section 4 (1) and (2) of the Act, because, there was no vacancy. (2) That after the dissolution of the partnership business, the continuation of the possession of the premises by the petitioner canaot be said to be unauthorised or illegal as his initial entry into the premises, along with the owner as a partner in the business conducted in the premises, was lawful. (3) That before the order came to be passed by the Rent Controller under section 10-A of the Act, the petitioner had made an application under section 31-B of the act, for regularisation of his occupation of the premises in question as a tenant and that being so, the proceeding under section 10-A of the Act ought not to have been proceeded with before deciding the application under section 31-B of the Act. (4) That the petitioner did not agree before the Special Deputy Commissioner for vacating the entire premises and the order passed by the Special Deputy commissioner on that ground is not correct and that the order passed on the application under section 31b of the Act was without notice to the petitioner, and as such, the said order is passed in violation of the principles of natural justice, hence the same is null and void. ( 7 ) POINT No. I. It is the case of the petitioner that to start with, there was a partnership business between tne petitioner and the 4th respondent and that partnership business continued upto November, 1976, that being so, the premises in question, even accepting the case of the petitioner that he was a partner in the business along with the 4th respondent as true, to start with, the premises in question was not occupied by the petitioner as a tenant, but as a partner along with the 4th respondent the owner of the premises. When, according to the case of the petitioner, the partnership came to an end and the 4th respondent ceased to occupy the premises in question, the petitioner could not have continued to remain in occupation of the premises in question without there being an order of allotment made by the 3rd respondent. Section 4 of the Act provides that 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 intima- tion in the prescribed form by registered post to the Controller. ( 8 ) IN the instant case, after the premises in question came to be released in favour of the owner (4th respondent) he continued to. occupy the same, though he was doing the business in partnership with the petitioner as per the case of the petitioner only. When once the partnership came to an end, the petitioner could not have continued to remain in occupation of the said premises without their being aa order of allotment made by the 3rd respondent in that behalf. The fact that the petitioner physically continued to remain in possession of the premises, did not in any way make the provisions of section 4 of the Act, inapplicable, inasmuch as, when once the partnership came to an end, the petitioner alone continued to remain in occupation of the premises in question and the owner ceased to occupy the same. That being so, it was incumbent upon the owner of the premises to give intimation of the vacancy in the prescribed form to the Rent Controller as per sec. 4 (1) of the Act as soon as he ceased to occupy the same. Further the petitioner could not have been continued to remain in occupation of the premises in question, when once the landlord ceased to occupy it along with the petitioner, without there being an order of allotment. The contention of the petitioner that he physically continued to remain in possession of the premises in question, therefore, there was no vacancy end as such, the provisions of S. 10-A of the act, did not apply, cannot at all be countenanced. The contention of the petitioner that he physically continued to remain in possession of the premises in question, therefore, there was no vacancy end as such, the provisions of S. 10-A of the act, did not apply, cannot at all be countenanced. S. 10-A of the Act provides that the occupation of a premises by any person in contravention of the provisions of s. 4 (1) and (2) of the Act, would render such a person liable for eviction by the rent Controller. This is not a case in which the partnership business was started by the persons who were the tenants of the premises in question. This is a case in which even according to the case of the petitioner, the owner was in possession of the premises in question and the partnership business was being run in the premises. That being so, on the dissolution of the partnership business and on the cessure of the owner to occupy the premises, the possession of the petitioner could not be said to be that of a tenant and it would only be that of a person occupying the premises in contravention of S. 4 (1) and (2) of the Act. Therefore, the contention that the provisions of S. 10-A of the Act are not applicable, on the ground that the petitioner has been in possession of the premises in question, is not sound and does not merit acceptance. ( 9 ) POINT No. 2.-The second contention of the petitioner that since his initial entry into the premises as a partner of the firm along with the owner of the premises was lawful one and ;as such, after the dissolution of the partnership, his possession cannot be said to be unauthorised or illegal and as such, this is a case which falls, according to the contention of the learned Counsel for the petitioner within the scope of a decision of this Court reported is also not tenable. That was a case in which a company known as Bruce and Company took the premises in question in that case, on lease from the owner; thereafter, the said company sold their business as a going concern to one mr. Gomez; the said Mr Gomez sold the business concern as a going concern to the petitioner, in that case. That was a case in which a company known as Bruce and Company took the premises in question in that case, on lease from the owner; thereafter, the said company sold their business as a going concern to one mr. Gomez; the said Mr Gomez sold the business concern as a going concern to the petitioner, in that case. Under those circumstances, it was held that no vacancy occurred so as to require the landlord to give a vacancy report under S. 3 (2) of the mysore House Rent and Accommodation Control Act, 1951. From the facts of that case stated above, it is clear that the premises was in the possession of the tenant who was running a business and that tenant sold his concern as a running concern to another person. In the instant case, the premises was not in possession of the tenant, it was in possession of the owner with whom the petitioner herein was a partner in the business run in the premises in question. After the dissolution of the partnership, the petitioner herein who was not a tenant of the premises, could not have assumed the character of a tenant. Tenancy is a matter of contract. No such contract is either pleaded or proved. Further in the instant case, the 4th respondent could not have let out the premises without an order of allotment under the Act. Admittedly, to start with, there was no contract between the petitioner and the 4th respondent the owner of the premises in question to enable the petitioner to lawfully continue to remain in possession of the premises in question after the dissolution of the partnership. On the contrary, the case of the petitioner is that af er the dissolution of the partnership, his continuation of the business in the suit premises gave him the status of a deemed tenant. In this connection, it may be noticed that the Act, does not provide for a deemed tenancy. In the absence of any such provision under the Act, it is impossible to agree with the contention of the learned Counsel for the petitioner that the petitioner became a deemed tenant of the premises in question on the dissolution of the partnership business. In the absence of any such provision under the Act, it is impossible to agree with the contention of the learned Counsel for the petitioner that the petitioner became a deemed tenant of the premises in question on the dissolution of the partnership business. The decision relied upon by the learned Counsel for the petitioner, for the reasons stated above, has no application to the facts of the present case, though in the said decision, the provisions more or less similar to Sec. 4 (1) of the Act, have been considered. From what has been stated above, it is clear that the continuation of the possession by the petitioner alone of the premises in question, after the dissolution of the partnership with the owner of the premises, without an order of allotment under the act was unauthorised and was in contravention of the provisions contained in S. 4 (1) and (2) of the Act. ( 10 ) POINT No. 3.-The third contention of the petitioner, that in view of the pendency of his application filed under s. 31-B of the Act, to regularise the occupation of the premises in question occupied by him in contravention of the provisions of Ss. 4 and 5 of the Act, it was not open for the 3rd respondent to dispose of the proceeding under S. 10-A of the Act, is also not tenable having regard to the facts of the case as pleaded by the petitioner himself. It is not in dispute that the premises in question came to be permitted by the rent Controller for non-residential purposes. Section 31-B of the Act applies only to the case of a residential premises and further it will apply only to such cases where the premises are let out. In the instant case, admittedly, even according to the case of the petitioner, he has been residing in the back portion and the front portion is being used for running the business. In the instant case, admittedly, even according to the case of the petitioner, he has been residing in the back portion and the front portion is being used for running the business. Firstly, the case of the petitioner is that he entered into the premises for running a business in partnership with the owner of the premises and after the dissolution of the partnership, it is not his case that he is continuing to remain in possession of the premises under any contract or agreement of lease That being so, it cannot be said that the petitioner, even if he is residing in a portion of the premises, which is admittedly a non-residential premises as permitted by the Rent controller, is residing as a tenant. In this connection, it is necessary to notice the relevant provisions contained in sub-section (1) of S. 31-B of the Act, which are as follows ;" 31-B. Voluntary declaration.- (1) notwithstanding anything in this Act, (i) any landlord who has occupied or let out a residential building ; or (ii) any person who has occupied such building as a tenant, in contravention of S. 4 or S 5, may within sixty days from the date of coming into force of this section, make a declaration in this behalf to the prescribed authority "thus, it is clear that on the admitted facts of the case as pleaded by the petitioner himself, the provisions contained in S. 31 b (1) of the Act are not at all attracted in the present case in view of the fact that the premises in question is a non-residential premises and further it was not let out by the 4th respondent to the petitioner. The tenancy pleaded by the petitioner is one of deemed tenancy claimed on the basis of his unauthorised continuation of posses. sion of the premises in question after the dissolution of the partnership without being let out by the owner 4th respondent. Thus, the tenancy i. e. , deemed tenancy pleaded in the present case, is not the one created by the parties by agreement or contract. Further it is not possible to spell out any such deemed tenancy from any of the provisions contained in the Act, and this aspect of the case has already been dealt with under Point Nus. and 2. Further it is not possible to spell out any such deemed tenancy from any of the provisions contained in the Act, and this aspect of the case has already been dealt with under Point Nus. and 2. That being so, the fact that the proceeding under S 0-A of the Act, came to be disposed of before deciding the application filed by the petitioner under S 31-B of the act, is of no material consequence having regard to the facts of the present case to which the provisions of S. 31-B of the Act, are not attracted. Accordingly, Point No. 3 is answered as above and against the petitioner. ( 11 ) POINT No. 4.-It was contended, on behalf of the petitioner that he did not agree before the Special Deputy commissioner for passsing an order dismissing the appeal and graming the time for vacating the premises. The case made out in Para 7 of the Writ Petition is as follows :" The petitioner had not made the respondent No. 4 as a party to the appeal. However, he appeard on 12- 4-1977 with an application to implead him as a respondent in the appeal. Therefore the pecial Deputy commissioner (Respondent No 2) had to consider that application also for further action. But, the 2nd respondent chose to discuss about the aspects of the case and in the course of the discussion advised both parties to have a compromise. On the part of the petitioner he was willing to vacate the non-residential portion subject to his rights to have the same allotted to him under the rules and so far as the residential portion was concerned he was entitled to continue the occupation of the same legally on several grounds. He brought to the notice of the respondent-2 that he had applied for regularisation of the occupancy under s. 31-B of the Act and therefore viewed from any angle be was entitled to retain the same. The respondent No, 4 was submitting with regard to his liability and for his exoneration from the liability arising out of the letting out of the premises. The respondent no. 2 observed in the course of the discussion that he would pass appropriate orders and therefore the petitioner and the fourth respondent went away. The respondent No, 4 was submitting with regard to his liability and for his exoneration from the liability arising out of the letting out of the premises. The respondent no. 2 observed in the course of the discussion that he would pass appropriate orders and therefore the petitioner and the fourth respondent went away. This happened in the chambers of respondent-2 but not in the open Court Next day when the petitioner went to the case worker, he was asked to sign the order sheet and accordingly the petitioner signed in obedience to the court's order as was represented to him. The contents of the order sheet were not read over to the petitioner by the case worker but he remarked to the petitioner that the orders were passed as per the discussion took place on the previous day. The petitioner went back with the bona fide impression that the orders were passed in the light of the discussion which took place in the chambers of the Deputy Commissioner. The petitioner had affixed the signature in the office of the Deputy Commissioner. But to the surprise of the petitioner he came to know on 16-5-1977 when he received the communication from the respondent No. 2 that the petitioner should vacate the entire premises by 13-5-1977. The certified copy of the order of the respondent No. 2 dated 12-4-1977 is produced and the typed copy of the same is marked as ex. 'j'. To his further surprise the petitioner now learns that the order- sheet dated 12-1-1977 as per Ex. 'j' was written in the hand-writing of the then case worker of the Special Deputy Commissioner. "in this connection, it is pertinent to notice that the owner of the premises had filed the application for impleading himself, earlier to the passing of the order by the rent Controller. The records of the Special Deputy Commissioner and also that of the Rent Controller have been received in the case. As per the order-sheet in H R. C. A. No. 288/76-77 of the Special Deputy comissioner, it is clear that the owner of the premises Sri Mirza, (respondent-4 here- in), filed the application on 5-3-77 for being impleaded as a party to the appeal; thereafter, the appeal came to be adjourned ; and ultimately it was heard on 4-4- 1977 and came to be posted for orders on 12-4-1977. Both parties appeared and as per the consent expressed by the petitioner and the owner of the premises (4th respondent herein), the Special deputy Commissioner has passed the order dis rissing the appeal and granting time for vacating the same. The order passed by the Special deputy Commissioner on 12-4-1977, is as follows :"12-4-77. Both the appellant and respondent appeared in person and stated that both have agreed, and as per their consent the un- sathorised occupant will vacate the premises on or before 13-5-1977 and the landlord will report the vacancy of the premises as per rules to the controller. In view of the above fact, the Controller is informed to take action to vacate the occupant if he does not vacate the premises before 13-5-1977 as per his earlier order dated 1?-1-1977. In view of the mutual understanding the question of considering the admission of the appeal does not arise. With the above observation, the appeal is dismissed as not maintainable Intimate the Controller and the parties. "immediately thereafter, a review petition came to be filed by the petitioner. In the review petition, it was not his case that he did not agree for the order. In para 3 of the review petition, this what has been stated" But without considering his application this Hon'ble Court was pleased to discuss the matters and the petitioner was obliged to give the consent for vacating the non-residential portion of the premises as was understood by him subject to his rights to get the same portion allotted to him under due process of law". What was pleaded in the review petition is that he agreed for vacating only the non-residential premises The order passed by the Special Deputy Commissioner on the review petition makes it clear that the petitioner agreed for vacating the entire premises and on that basis the Deputy commissioner passed the order. What was pleaded in the review petition is that he agreed for vacating only the non-residential premises The order passed by the Special Deputy Commissioner on the review petition makes it clear that the petitioner agreed for vacating the entire premises and on that basis the Deputy commissioner passed the order. The relevant portion from the order passed in the Review Petition by the Deputy Commissioner dated 23-6-77 is as follows :" On 12-4-77 when the case was taken up for hearing both the appellant and the landlord of the premises represented jointly that the appellant would vacate the suit premises on or before 13-5-77 and the landlord would intimate the vacancy in accordance with the provisions of the Act after the appellant vacates the premises and that this authority may grant a month's time to enable the appellant to vacate. The appellant also intimated that, if his request is conceded he does not want to press the appeal. In accordance with submission made this authority dismissed the appeal as hot maintainable as the case was posted for arguments on ground of maintainability. The appellant has now preferred this revision petition requesting for the reconsideration of the order of dismissal. "thus, it is clear that the petitioner agreed before the Special Deputy Commissioner for vacating the entire premises. No mala fides have been alleged against the Appellate Authority. There is no reason whatsoever for the Special Deputy commissioner to dismiss the appeal on the ground which is now alleged to be "not admitted by the petitioner. " This aspect has been further re-affirmed by the Special Deputy commissioner in the order passed in the review petition filed by the petitioner. Thus, the contention of the petitioner that he did not agree before the Special Deputy commissioner for vacating the entire premises, is not correct and as such it is not acceptable. Accordingly the first part of point No. 4 is answered against the petitioner. ( 12 ) THE last contention of the petitioner is that the order under S. 31-B of the Act, came to be passed without notice and as such the said order is null and void. Accordingly the first part of point No. 4 is answered against the petitioner. ( 12 ) THE last contention of the petitioner is that the order under S. 31-B of the Act, came to be passed without notice and as such the said order is null and void. Though the contention of the petitioner is well-founded and it was incumbent upon the Rent Controller to hold an enquiry and to afford an opportunity to the petitioner to prove his case, but having regard to the facts of the case as pleaded by the petitioner that he entered the premises as a partner with the owner of the premises and not as a teaant, further the premises in question being a non-residential premises, the application filed under S. 31-B of the act is not maintainable and as such does not deserve to be enquired into. It has already been pointed out while dealing with points 2 and 3 that the provisions of S. 31-B (I) of the Act arff-not appicable to thefacts of the present cases The application under s. 31-B of the Act could be maintained by the person in occupation of the. residential premises if such person claims to have been tet into the premises as a tenant in contravention of the provisions of Ss. 4 and 5 of the Act. The applicat on under S. 31b (1) of the Act can also be filed by the landlord who has occupied or let out a residestial premises in, contravention of S. 4 or 5 of the Act, But, in this case, we are not concerned with the application of the landlord as the landlord has not made any such application. In the instant case, the person in occupation of the premises i. e. the petitioner has made the application under s. 31-B of the Act and it is not the case of the petitioner that he was let into the premises as a tenant. In the instant case, the person in occupation of the premises i. e. the petitioner has made the application under s. 31-B of the Act and it is not the case of the petitioner that he was let into the premises as a tenant. The premises also is not a residential premises That being so, even thought the order passed by the rant Controller under S. 31-B of the Act is, violative of the principles of natural justice and canaot be sustained, but, in, view of the case put forth by the petitioner, that he was not a tenant of the premises and the premises is not a residential premises, it is not necessary to quash the order passed under S. 31b of the Act and direct the Rent controller to enquire into the same afresh as the provisions of S. 31b of the Act are not attracted in the instant case. Thus the 2nd part of point No. 4 is answered as above. ( 13 ) SRI B. G. Sridharan, learned counsel for the petitioner tried to rely upon the pleadings in the suits filed subsequent to these proceedings in question and tried to make out that there was an admission made by the owaer that the petitioner was occupying the premises as a tenant and that therefore the entire proceedings are vitiated. It must be pointed out that it is the definite case of the petitioner himself that he was a partner and net a tenant and nowhere at any stage of the proceeding it was his case that he was a tenant of the premises. The pleadings of the parties in the subsequent proceedings for different reliefs which did not form part of the proceedings before the authorities below, cannot be relied upon in these proceedings in order to judge the correctness of the orders passed by the authorities below. ( 14 ) FOR the reasons stated above, both these writ petitions fail and accordingly the same are dismissed. ( 14 ) FOR the reasons stated above, both these writ petitions fail and accordingly the same are dismissed. ( 15 ) TAKING into consideration of the fact that the petitioner is said to be running the 'keep-Fit Club' in the premises, in question and further it was submitted by the learned Couasel for the petitioner that several members are visiting the Club every day, in order to avoid inconvenience to the Members of the Club and to enable the petitioner to secure an alternate accommodation, the petitioner is granted six months time to vacate the premises in question. --- *** --- .