Venugopala Kubair v. S. Srinivasan — 1982 DIGILAW 173 (KAR)

Judgement ORDER : - An unfortunate dispute between two respected professors of two prestigious Universities of the State, with high academic qualifications has arisen for determination in this case. All efforts made by me and their learned counsel to persuade the learned and respected professors to amicably settle their dispute did not bear fruit. With no alternative left, but with a heavy heart, I have to decide this case on merits. In order to appreciate the questions that arise for determination, it is necessary in the first instance to notice the facts of the case. 2. Among others, the petitioner, a Professor of Chemical Engineering in the Indian Institute of Science, Bangalore, is the owner of a residential premises, consisting of a ground floor bearing No. 81/1 and a first floor bearing No. 81/1A, situated on 4th Main Road, Malleswaram, Bangalore City. 3. On 10-12-1979, the petitioner borrowed a sum of Rs. 5,000/- from one Smt. Shashikala Srinivasan under a registered deed of mortgage and delivered possession of the first floor which will be hereafter referred to as the premises to the mortgagee on the same day on the terms and conditions stipulated in that deed. Before the petitioner delivered, possession of the premises, the petitioner or the mortgagee did not obtain the permission of the Rent and Accommodation Controller, City Area (hereinafter referred to as the Controller) as required by the provisions of the Karnataka Rent Control Act, 1961 (Karnataka Act 22 of 1961) (hereinafter referred to as the Act). 4. On or about 27-1-1981, a Revenue Inspector attached to the office of the Controller reported that the premises was vacant and proceedings for its allotment be initiated under the Act. On that information, the Controller suo motu initiated proceedings and notified the petitioner in the appropriate form who on receipt of the same appeared before the Controller and filed his objections to the effect that the premises was in occupation of the mortgagee and was, therefore, not available for allotment. In that view, the Controller notified the mortgagee. On the hearing date the mortgagee appeared before the Controller and did not file any written objections before him. 5. On 10th Sept, 1981 the Controller inspected the premises and another premises that was stated to be in occupation of the mortgagee. In that view, the Controller notified the mortgagee. On the hearing date the mortgagee appeared before the Controller and did not file any written objections before him. 5. On 10th Sept, 1981 the Controller inspected the premises and another premises that was stated to be in occupation of the mortgagee. On 14-9-1981 the Controller made an order (Annexure-B) allotting the premises to respondent No. 1, and Associate Professor of Veterinary College. Bangalore, who was one of the applicants. 6. Against the order of the Controller, the petitioner filed an appeal in H.R.C. (City) Appeal No. 170 of 1981-82 before the Special Deputy Commissioner, Bangalore District, Bangalore (hereinafter referred to as the DC) under S.12 of the Act impleading the allottee and the mortgagee, as respondents. On an examination of the contentions urged before him, the DC by his order dated 4-3-1982 (Annexure-F) has dismissed the appeal filed by the petitioner. Aggrieved by the said orders, the petitioner has presented this petition under Article 226 of the Constitution before this Court challenging them on diverse grounds. 7. On 27-3-1982 the petitioner has redeemed the mortgage of the premises and is stated to have obtained possession from the mortgagee. 8. The petitioner has alleged that the DC on hearing the appeal on 26-11-1981, reserved the same for orders and posted it to 10-12-1981 for pronouncement of his orders. on which day he neither pronounced the same nor gave the next date viz., 4-3-1982 on which day he actually pronounced his orders and that pronouncement is violative of S.46 of the Act. 9. On the initiation of proceedings and their validity, the petitioner has alleged that a vacancy in law and fact had, not arisen to authorise the controller to initiate proceedings and allot the premises to respondent No. 1. 10. Lastly, the petitioner has alleged on the subsequent redemption of mortgage, he bona fide requires the premises for his own use and accepting his need, this Court should permit him to occupy the premises. 11. Respondent No.1, the allottee, has filed his return justifying the impugned orders. In his return, respondent No. 1, has alleged that he is not in occupation of any premises of his own or in occupation of any rented premises and his need for occupation is genuine and immediate. 12. 11. Respondent No.1, the allottee, has filed his return justifying the impugned orders. In his return, respondent No. 1, has alleged that he is not in occupation of any premises of his own or in occupation of any rented premises and his need for occupation is genuine and immediate. 12. Smt. Shashikala Srinivasan, the mortgagee, who was a party before the Controller and the DC, though initially impleaded, has been given up later by the petitioner. Respondents 3 and 4 viz., the DC and the Controller have produced their records. 13. Sri C.N. Rajan, learned counsel for the petitioner contends that the pronouncement of the order by the DC on 4-3-1982 in violation of S.46 of the Act is illegal. 14. Sri M.K. Srinivasa Iyengar, learned counsel for respondent No. 1 and Sri U. Abdul Khader, learned High Court Government Pleader, appearing for respondents 3 and 4 contend that the defect committed by the DC that has not occasioned any failure of justice is a curable irregularity. 15. On 26-11-1981, the DC heard the appeal, reserved the same for orders and posted it to 10-12-1981 for pronouncement of his orders and did not pronounce the same on that day and pronounced the same on 4-3-1982 without earlier intimating the same to the parties. This is not disputed by the parties and is also borne out by the order sheet of the appeal maintained by the DC. 16. Section 46 of the Act requires the appellate authority or the Controller to pronounce his orders on the day the case is heard or on a future day of winch due notice should be given to the parties. That the order pronounced by the DC on 4-3-1982, without giving due notice of the same to the parties, is in disregard of Section 46 of the Act, can hardly be doubted. 17. Both parties do not dispute that the DC heard them on 26-11-1981. When the DC had heard the parties on the appointed day, the failure to pronounce the orders after due notice to the parties at best is only a curable irregularity. In any view, the defect committed by the DC, though regrettable and should have been avoided by him, which I fervently hope will be avoided by him in future, has not occasioned any failure of justice to the petitioner. In any view, the defect committed by the DC, though regrettable and should have been avoided by him, which I fervently hope will be avoided by him in future, has not occasioned any failure of justice to the petitioner. In my view, this contention, if accepted would only result in an exercise in futility and would not really advanced the cause of substantial justice. For all these reasons, I reject this contention of Sri Rajan. 18. Sri Rajan next contends that a vacancy of the premises had not arisen in fact and law on all material dates and without deciding that jurisdictional fact, the authorities have illegally allotted the premises. In support of his contention, Sri Rajan strongly relies on the ruling of this Court in A.C. Joseph v. Special Deputy Commr. Bangalore (1979 (1) Kant LJ 137). 19. Sri Iyengar urged that on the admitted facts and circumstances of the ease and the stand taken by the mortgagee, the finding of fact recorded on the vacancy was unexceptionable and the ratio in Joseph's case had no application. 20. (That) a vacancy of a premises should exist and the Controller must first find that the premises is vacant in law and fact before allotment to another person under the Act, can hardly be doubted. But, the question is whether the authorities have determined that question and the same is sustainable or not. 21. In his order, the Controller has first addressed himself to the question of vacancy. On a consideration of the material placed before him, all the facts and circumstances and a personal inspection of the premises the Controller has found that the premises was vacant. In appeal also, the DC has examined that question and has concurred with the finding recorded by the Controller. 22. Whether a vacancy in fact exists or not is primarily a question of fact. Both the authorities have concurrently found on that question against the petitioner. A finding of fact recorded by the authorities, if based on evidence, cannot properly be interfered by this Court in exercise of its extraordinary jurisdiction under Art.226 of the Constitution. An examination of the orders discloses that their finding on the vacancy is based on evidence. On this short ground alone, the contention of the petitioner is liable to be rejected. 23. An examination of the orders discloses that their finding on the vacancy is based on evidence. On this short ground alone, the contention of the petitioner is liable to be rejected. 23. Before the Controller the petitioner was content in stating that the premises was in occupation of the mortgagee Smt. Shashikala Srinivasan and that question be decided after notifying the said person. In response to the notice issued to her, the mortgagee appeared before the Controller and did not lodge any written objection and did not even contend that the premises was not vacant. Even alter the Controller made his order expressly holding that a vacancy had arisen, the mortgagee did not challenge that order in an appeal or in any other legal proceeding. From this, it follows that the person that was primarily responsible in contesting the existence of vacancy or otherwise had accepted the same. 24. Assuming that the Controller did not give a full and fair opportunity to the mortgagee to state her case and contest the matter, that is not a matter on which the petitioner can make a grievance. I, therefore, find it difficult to appreciate the submission of Sri Rajan that a full and fair opportunity was not afforded to the mortgagee to file her objections, state her case and contest the proceedings before the Controller. 25. In deciding the question, one cannot be blind to the fact that the premises was delivered by the petitioner to the mortgagee without the permission of the Controller. On such delivery itself. I am of the opinion that a vacancy in law arose (vide Subramanyaswamy S. v. Deputy Commr., Bangalore, 1981 (1) Karnataka LJ 451: (AIR 1981 Kant 190). On the question whether the premises, in fact, became vacant for reasons best known to her, the mortgagee, who was principally concerned, has not supported the case of the petitioner or has challenged the orders made against her. In my view, the ratio in Joseph's case does not bear on the point, 26. On the above discussion, I hold that the finding on the question of vacancy does not suffer from an error of jurisdiction and illegality justifying this Court's interference under Art.226 of the Constitution. 27. In my view, the ratio in Joseph's case does not bear on the point, 26. On the above discussion, I hold that the finding on the question of vacancy does not suffer from an error of jurisdiction and illegality justifying this Court's interference under Art.226 of the Constitution. 27. Sri Rajan lastly contends that even if the plea of the petitioner that the premises was not vacant is repelled, the premises should be released for his self occupation as he bona fide requires the same for his own use and occupation. Elaborating his contention, Sri Rajan maintained that the petitioner a senior Professor of the Indian Institute of Science, genuinely requires the premises for carrying on his research activities and guidance of his pupils. 28. Sri Iyengar contends that the petitioner never laid any foundation for release of the premises for his own occupation before the authorities and this plea pleaded for the first time before this Court cannot be examined and accepted by this Court. 29. (That) before the Controller or before the appellate authority, the petitioner never sought for release of the premises for his own occupation is not disputed by Sri Rajan. But, he contends that only on the redemption of mortgage on 27-3-1982, the petitioner became entitled to seek for self occupation and the earlier failure of his client to seek for self occupation, cannot be a ground for this Court to reject that claim without examining and deciding the same. 30. Whether a person requires a premises for his own occupation or not is primarily a question of fact that has to be pleaded and established before the very first authority viz., the Controller that is competent to decide that and all other relevant questions. The fact that the petitioner had mortgaged or the mortgagee was in occupation of the premises, did not prevent him from alternatively contending before the Controller that the same should be released for his self occupation. Even in the appeal filed, the petitioner did not raise any ground on this plea. 31. A plea on a question of fact, cannot be permitted to be raised for the first time before this Court. Even in the appeal filed, the petitioner did not raise any ground on this plea. 31. A plea on a question of fact, cannot be permitted to be raised for the first time before this Court. As the petitioner had not raised this plea before the fact finding authority it is not proper for this Court to permit the petitioner to raise the same for the first time before this Court (to?) examine and decide the same. In this view, I decline to examine this belated plea of the petitioner and reject the same. 32. As all the contentions urged for the petitioner fail, this writ petition is liable to be dismissed. But, at this stage, respondent No. 1, having regard to the accommodation available, the area and location of the premises, vountarily offers to pay a sum of Rs. 600/- as rent Per month as against Rs. 400/- per month fixed by the Controller. The memo filed by respondent No. 1 in that behalf reads thus: "The 1st respondent submits that in case this Hon'ble Court were to confirm the allotment made by the Rent Controller, this respondent is prepared to pay higher rent of Rs. 600/- per month." Sri Rajan who is naturally keen on further contesting the matter is not agreeable for the offer made by respondent No. 1. But, as respondent No. 1 has voluntarily offered to pay higher rent of Rs. 600/- it is necessary to modify the orders of the authorities to that exent and permit the petitioner to work out his remedies on all other matters. 33. In the light of my above discussion, I modify the impugned orders to the extent they relate to the rate of rent only and fix the same at Rs. 600/- per month as against Rs. 400/- per month, and dismiss this writ petition in all other respects. But, in the circumstances of the case, I direct the parties to bear their own costs. 34. Sri. U. Abdul Khader, learned High Court Government Pleader is permitted to file his memo of appearance for respondents 3 and 4 within 15 days from this day. 35. After I pronounced my order dismissing this writ petition. But, in the circumstances of the case, I direct the parties to bear their own costs. 34. Sri. U. Abdul Khader, learned High Court Government Pleader is permitted to file his memo of appearance for respondents 3 and 4 within 15 days from this day. 35. After I pronounced my order dismissing this writ petition. Sri Rajan makes an oral application for stay of the operation of my order for at least 15 days to enable the petitioner to obtain a certified copy of the order, then file an appeal and move for stay. 36. Sri Iyengar opposes the prayer of Sri Rajan. 37. An appeal lies against my order as of right. So far, the order of allotment made in favour of respondent No. 1 has not been implemented and he has not been put in possession of the premises. In this view, it is proper to stay the operation of my order for a period of 10 days. I, therefore, stay the operation of my order for a period of 10 days.