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1983 DIGILAW 246 (KAR)

A. v. KANDASWAMY VS SPECIAL DY. COMMISSIONER.

1983-10-04

K.J.SHETTY, S.R.RAJASEKHARA MURTHY

body1983
JAGANNATHA SHETTY, J. ( 1 ) THIS petition has come up before us upon a reference made by Venkatesh, J. It raises a short, but an important question as to the power of the Deputy Commissioner to grant stay in an appeal preferred against the order of allotment made by the rent Controller. ( 2 ) THE matter arises in this way : the petitioner is the owner of a building bearing No. 56/1, VIII Cross, iv Main, Malleswaram, Bangalore city, which he purchased in 1976. At the time of purchasing the building, the ground-floor was in the occupation of a tenant and the first-floor was in the occupation of the petitioner. On June 25, 1983, the tenant vacated the premises. The petitioner then occupied the ground-floor and intimated the vacancy of the first- floor to the Rent Controller. While intimating fhe vacancy he informed the Controller that he wanted the premises for his self-occupation for the purpose of storing his business articles like butter and ghee. The rent Controller upon notifying the vacancy invited applications from intending tenants. There were in all five applicants, but only three of them were present at the time of hearing. Among those three applicants, respondent-3 Mallikarjunaswamy was selected and the Controller allotted the premises in his favour after rejecting the request of the petitioner for self-occupation. Challenging the validity of the order of the Controller, the petitioner appealed to the Special deputy Commissioner, Bangalore, under Section 12 of the Karnataka rent Control Act, 1961 with request to stay the order of allotment. But the Special Deputy Commissioner rejected that request and made an order dated September 6, 1983 in the following terms :" 6-9-1983 : I have seen the order of Rent Controller, The landlord intends to store butter and ghee in the suit premises. As such the stay cannot be given. The appeal will be heard on merits. Call for records". Being aggrieved by this order of the Special Deputy Commissioner, the petitioner has moved this Court for relief under Articles 226 and 227 of the Constitution. ( 3 ) THE primary question that arises for consideration is whether the appellate authority under Section 12 of the Rent Control Act was justified in refusing to stay the order of allotment challenged before him. ( 3 ) THE primary question that arises for consideration is whether the appellate authority under Section 12 of the Rent Control Act was justified in refusing to stay the order of allotment challenged before him. The counsel for the petitioner urges that the refusal to stay the order appealed would be defeating the purpose of right of appeal provided under the statute and it would also cause irreparable injury to the petitioner. The counsel for the respondent on the other hand contends that the appellate authority has exercised a sound discretion. There is no dire need for the petitioner to occupy the premises. Nor he could occupy the premises without permission of the Controller. Whereas the respondent is in need of the premises and it would, therefore, a hardship to the respondent if he is denied of possession during the pendency of the appeal. In support of his contention he also places reliance on the decision of this Court in P. Vasu v. The special Deputy Commissioner, Mysore A others, W. P. No. 17041/1980 - D. D. 13-4-1983. ( 4 ) IT is true that the observations of this Court in W, P. No. 17041/1980 are wholly in favour of the contention urged for the respondent. It was observed therein :-"in a case where an allotment is made pursuant to the vacancy report made by the landlord, the provisions contained in sub-section (2) of S. 4 of the Act, are attracted. Consequently, the landlord is not entitled to let. occupy or otherwise use the building which has been allotted to an applicant within a period of one week after the termination of the proceedings under S. 8 of the Act. In the instant case, the petitioner-landlord himself has gone in appeal against the order of allotment. The appeal being the continuation of the original proceeding, as long as the appeal is pending, it cannot be said that the proceeding under S. 8 of the Act, has terminated. That being so, the landlord is not entitled to let, occupy or otherwise use the building during the pendency of the appeal. The appeal being the continuation of the original proceeding, as long as the appeal is pending, it cannot be said that the proceeding under S. 8 of the Act, has terminated. That being so, the landlord is not entitled to let, occupy or otherwise use the building during the pendency of the appeal. Therefore, in such cases, the grant of an interim order staying the order of allotment would not be to the benefit of the landlord inasmuch as he is required to keep the premises vacant during the pendency of the appeal and at the same time, by reason of the interim order staying the order of allotment, the allottee will be unnecessarily prevented from occupying the building ; thereby, the landlord is not only deprived of the rent but is also deprived of the use of the building. Therefore, in such cases, grant of interim order staying the order of allotment is not warranted and it will not be in the interest of either of the parties to the proceeding and at the same time it does not in any way advance the object of the Act. Whereas, in such cases, if an interim order is refused, it will enable the allottee to occupy the premises and will also enable the landlord to collect the rent. Of course, if ultimately the landlord succeeds in the appeal, the tenant will have to vacate the premises. But, there is no justification whatsoever to grant an interim order in such cases staying the order of allotment during the pendency of the appeal as the same does not serve any purpose. "so far as the above statement of law is concerned there cannot be any doubt. It has been correctly summarised. The landlord cannot occupy the notified premises without the leave of the Controller. The stay order could only keep the allottee away from the premises, and may not bring material benefit to the landlord. The question, however, is whether it is correct to lay down as a general principle that there is no justification whatsoever in such cases to stay the order of allotment. ( 5 ) IT is an universally accepted principle that when a statute confers a right of appeal, it is implied that that the appellate authority must be held to have the incidental power to stay the order appealed against. ( 5 ) IT is an universally accepted principle that when a statute confers a right of appeal, it is implied that that the appellate authority must be held to have the incidental power to stay the order appealed against. It is no doubt a discretionary power, but that discretion has to be exercised for the purpose of dispensing complete justice between the parties. It is required to be exercised not arbitrarily but on sound and reasonable principles guided by well accepted judicial norms. While exercising the discretion, the authority is bound to look at all the circumstances of the case, the injury that is likely to cause to the allottee in not putting him in possession, and also the hardship that may cause to the landlord if the possession is given to the allottee during the pendency of the appeal. The authority is not bound to stay the order of allotment merely because it is lawful to do so. Generally, though not always, the stay may not be granted in such cases. The allottee may be driven to despair if the stay is granted and the appeal is not disposed of early. The allottee cannot be asked to fight the litigation, more often long drawn, without a shelter. It will not also be in the public interest to keep the premises vacant. If, on the other hand, the appellate authority is of the opinion that there is a compelling reason to grant stay, then it would be in the interests of both the parties to dispose of the appeal expeditiously say, within two or three weeks. ( 6 ) IN this case, this Court has already granted stay of the order of allotment. We are told that the special Deputy Commissioner has listed the appeal for hearing on October 28, 1983. In the circumstances, no more need be stated on the legality of the impugned order. We direct the Special Deputy Commissioner to dispose of the appeal on merits on October 28, 1983. The stay granted by this Court would continue till then. The Writ Petition accordingly stands disposed of. --- *** --- .