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Karnataka High Court · body

1986 DIGILAW 72 (KAR)

AROKYAMARI v. HOUSE RENT CONTROLLER

1986-02-04

RAMA JOIS, RAMAKRISHNA

body1986
RAMA JOIS, J. ( 1 ) IN this Writ Appeal, important questions of law regarding the interpretation of the provisions of Sections 4, 8 and 12 of the Karnataka Rent Control Act, 1961 ('the Act' for short), arise for consideration, they are : (i) Whether the restriction imposed by Section 4 (2) of the Act on the right of the landlord to occupy the premises till after one week from the date of termination of the proceedings under section 8 of the Act does not extend till the termination of proceedings finally in an appeal preferred under Section 12 of the Act. (ii) Whether the Rent Controller has the power or is under an obligation to consider the claims of unsuccessful applicants after having made an order in an enquiry commenced under Section 8 of the Act allotting the premises in favour of one of the applicants in the event of such allottee not availing the order of allotment ? ( 2 ) THE facts of the case, in brief, which have given rise to the above questions are: (i) The premises bearing No. 48, Nanjegowda Street, Doddamavalli, Bangalore, belongs to the appellant. Sometime in November 1981 there was an information furnished to Rent Controller, by someone, that the premises had become vacant, but nevertheless, the appellant occupied the premises without giving intimation to the Rent Controller as required under Section 4 of the Act. On receiving such information, the Rent Controller suo moto notified the vacancy and initiated proceedings under Section 8 of the Act. In the said proceedings, notice was also given to the appellant. The appellant appeared before the Rent Controller and sought permission for her own bona fide use and occupation of the premises. There were several applicants seeking allotment of the same premises before the Rent Controller. On of them was Shivaji Rao, a Second Division clerk in the Directorate of Health and Family Welfare Services of the State Government, another was respondents. There was a direction issued by the Competent Authority under the proviso to section 8 (2) of the Act to the Rent Controller, to allot the premises in favour of Shivaji Rao. In view of the direction, the Rent Controller made an allotment order in favour of Shivaji Rao on 30-11-1981. However, Shivaji Rao did not occupy the house pursuant to the allotment order. In view of the direction, the Rent Controller made an allotment order in favour of Shivaji Rao on 30-11-1981. However, Shivaji Rao did not occupy the house pursuant to the allotment order. A week thereafter, by an order dated 7-12-1981, the Rent Controller permitted the appellant to occupy the premises. (ii) Respondent-3 preferred an appeal against the order of the Rent Controller under Section 12 of the Act to the Deputy Commissioner within the time allowed under the Section. The Deputy commissioner allowed the appeal by order dated 5-4-1982 (Annexure-C ). In the said order, the learned Deputy Commissioner held that upon the failure of Shivaji Rao to occupy the premises pursuant to the allotment order, the Rent Controller failed in his duty in not taking further proceedings to consider the applications of the other competing applicants, and in making an order permitting the landlord to occupy the premises, on 7-12-1981. On that view of the matter, the Deputy Commissioner directed the Rent Controller to consider afresh the competing claims of all other remaining applicants and to make a fresh allotment order. Aggrieved by the said order, the appellant preferred the Writ Petition. (iii) The Learned Judge dismissed the Writ Petition taking the view that under the provisions of section 8 (4) of the Act, the Rent Controller had the duty and jurisdiction to consider the cases of remaining applicants, if in a given case, the allottee failed to occupy the premises. Questioning the correctness of that view the appellant has presented this appeal. In view of these facts the two questions set-out first arise for consideration. ( 3 ) THE relevant provisions of the Act which have come up for interpretation are Sections 4, 8 (4) and 12. Section 4 reads: intimation 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. xxx xxx xxx xxx (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-section (1) and 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 Section 8, if any, whichever is later (underlining by us) sub-Section (1) of Section 4 requires a landlord to give intimation of vacancy of any premises which becomes vacant within 15 days from the date on which the vacancy occurs. Sub-section (2) of Section 4 of the Act prohibits the owner of a premises from occupying or letting the premises which becomes vacant for a period of 15 days from the date on which the intimation was given to Rent Controller or till the expiry of one week after the termination of the proceedings under Sections 8, if any, whichever is later. The language of the provision is very clear. If within 15 days from the date on which the intimation is given, no proceedings under section 8 is commenced the restriction imposed on the landlord to occupy the premises comes to an end. If, however, within 15 days from the date of intimation, the proceedings under Section 8 commences, the restriction on the right, of the landlord to occupy, continue not only for the whole period duing which the proceedings under Sections continues and till that date but also one week thereafter. This aspect is also concluded by Full Bench decision of this Court in M. A. Sharada Bai v. State of Mysore and Ors. , ILR 1968 Mysore 368 - 1968 (2) Mys. L. J. 384. ( 4 ) NOW the crucial question which arises for consideration is whether the restriction on the landlord to occupy the premises which comes to an end one week after the termination of proceedings under Section 8 of the Act does not also continue till the period during which an appeal is pending under Section 12 of the Act? That Section confers a right of appeal on any person aggrieved by an order passed by the Rent Controller. Therefore, not only the landlord but also unsuccessful applicants before the Rent Controller have the right of appeal to the Deputy commissioner against the order of the Rent Controller. That Section confers a right of appeal on any person aggrieved by an order passed by the Rent Controller. Therefore, not only the landlord but also unsuccessful applicants before the Rent Controller have the right of appeal to the Deputy commissioner against the order of the Rent Controller. It is well-settled that an appeal has to be treated as a continuation of the original proceeding and the presentation of the appeal and its pendency has the effect of affecting the finality of the order made in the proceedings under section 8. Therefore it must be held that where the proceedings under Section 12 is pending against an order made by the Rent Controller under Section 8, the proceedings under Section 8 cannot be regarded as having terminated. As a result, the restriction imposed under Section 4 (2) continue to operate till the date of the order of the Appellate Authority and a week thereafter or if there is an order of remand only after the further proceedings before the Rent Controller comes to an end and a week thereafter. Any other view would defeat the right of appeal conferred on an unsuccessful applicant under Section 12 of the Act for, if by the failure of the allottee to occupy the premises within one week, the restriction on the Landlord not to occupy the premises is removed and he occupies the premises it would be impossible for the appellate authority to allot the premises to the appellant, even if it were to set aside the order of allotment and consider it expedient to allot the premises to the appellant. An interpretation which defeats the power under, and purpose of, a statutory appeal/provision has to be eschewed. For these reasons our answer to the first question is as follows : the restriction imposed by Section 4 (2) of the Act on the right of the landlord to occupy the premises not only exists during the pendency of proceedings and one week from the date of termination of the proceedings under Section 8 of the Act but also till the termination of proceedings finally in an appeal preferred under Section 12 of the Act, and a week thereafter. ( 5 ) NOW the next question for consideration is whether the Rent Controller has the power or the duty to consider the case of unsuccessful applicants just because a person in whose favour an order of allotment was made by the Rent Controller fails to occupy the premises? The answer to the question depends upon the interpretation of Section 8 (4) of the Act. It reads : "8. Procedure to be followed before ordering leasing of any building for a public authority or other person - (1) to (3) xx xx xx (4) If, after considering the causes, if any, shown by the landlord or other person in possession of the building the Controller is satisfied that it is necessary or expedient so to do, he may by an order in writing direct the building to be leased to such public authority or other person specified in the notice under Sub-section (1) at such rent as shall be specified in such order and may make such further orders as appear to him to be necessary or expedient in connection therewith : provided that the rent specified in any such, order shall not be less than- (i) the fair rent, if any, fixed for the building ; or (ii) if any fair rent has not been fixed for the building, the rent last paid for the building ; or (iii) if no rent was last paid, the rent determined by the Controller, on the basis of the rental value of the building as entered in the property tax assessment book of the local authority ; or (iv) If no property tax has been assessed in respect of the building, the rent determined by the controller on the basis of the prevailing rates of rent in the locality for similar buildings in similar circumstances ; provided further that unless the rent specified in such order is the fair rent of the building, the tenant or the landlord shall be entitled to apply for fixation of fair rent in respect of the building. " (underlining by us) The Deputy Commissioner has held that when Shivaji Rao in whose favour the allotment was made by the Rent Controller by an order dated 30-11-1981 failed to occupy the premises, it was obligatory on the part of the Rent Controller under Section 8 (4) to have considered the applications of remaining applicants and therefore, he could not have proceeded to make the order dated 7-12-1981 permitting the appellant to occupy the premises. The said order of the deputy Commissioner has been upheld by the Learned Single Judge holding that the words "and may make such further orders as appear to him to be necessary or expedient in connection therewith" which forms the last part of Subsection (4) of Section 8 empowers the Rent Controller to consider the casts of remaining applicants and to make a fresh allotment order. The Learned judge has held that if such an interpretation was not given to those words that portion of the section would become redundant. ( 6 ) IN our view, the last portion of Sub-section (4) of Section 8 empowers the Rent Controller to pass further orders only in connection with an order already made allotting a premises in favour of a public authority or another person if it becomes expedient. For instance, if the rent payable by the allottee incorporated in the allotment order is shown to be erroneous by the landlord or the description of the premises is shown to be erroneous or any other mistake had crept into the order of allotment, the Rent Controller is given the power to make appropriate orders in connection with the order already made so that the correction found necessary in the order are made, to avoid confusion or hardship to the landlord or tenant as the case may be and to make the order fully effective. There is no warrant to interpret the provision as conferring an unlimited power of reopening the case and to hold that as and when the person in whose favour the allotment is made, fails to occupy the premises, the Rent Controller could allot it to another applicant and go on doing so till all the applications are exhausted. The only power given under section 8 (4) is an incidental power to pass such order in connection with the order already passed and nothing more. The only power given under section 8 (4) is an incidental power to pass such order in connection with the order already passed and nothing more. ( 7 ) IN our opinion, the view taken by the Deputy Commissioner, that the moment Shivaji Rao failed to take the benefit of the allotment order, the Rent Controller was under a duty to consider the case of the other applicants is erroneous and cannot be upheld. ( 8 ) WE should however add that in an appeal presented under Section 12 of the Act, it is competent for the Appellate Authority to consider the allotment order and if the Appellate authority is of the view that the order of allotment made by the Rent Controller was wrong and the case of any other applicant/appellant was more merited, the Deputy Commissioner as the appellate Authority could make an order of allotment substituting the allotment order made by the Rent Controller Further, if the Appellate Authority is of the view that after coming to the conclusion that the order of allotment made by the Rent Controller was bad and the Rent controller should be directed to dispose of all the applications afresh he has the power to do so. In that event, the consequences would be original order of the Rent Controller stands set aside and the proceedings under Section 8 before the Rent Controller gets reopened and the Controller would have liberty of passing a fresh order in exercise of his power under Section 8 (4) of the act. But as pointed out above, the Rent Controller having made an allotment order, if there was no appeal under Section 12 by any one challenging that allotment order, just because the allottee fails to occupy the premises that would not entitle the Rent Controller to reopen the matter and to consider the cases of the remaining applicants. ( 9 ) IN the present case, the Deputy Commissioner did not come to the conclusion that the order of allotment made in favour of Shivaji Rao was illegal. In fact he could not have come to such conclusion because that allotment was made in obedience to the order made by the Competent authority under the proviso to Section 8 (2) of the Act. In fact he could not have come to such conclusion because that allotment was made in obedience to the order made by the Competent authority under the proviso to Section 8 (2) of the Act. Therefore, the mere fact that Shivaji Rao failed to occupy the premises did not confer any jurisdiction either on the Rent Controller or the deputy Commissioner to have the cases of other applicants reconsidered. In the circumstances, we answer the second question as follows : the Rent Controller has no power or duty to consider the cases of unsuccessful applicants, if a person in whose favour an order of allotment was made by the Rent Controller, fails to occupy the premises. ( 10 ) THE Learned Counsel for Respondent-3 submitted that if we take the view that the order of the Appellate Authority is bad, the matter might be remitted to the Deputy Commissioner directing to dispose of the appeal afresh in the light of the interpretation of Sections 12 and 8 (4) of the Act made in this order. We consider it inexpedient to remit the matter for two reasons. First, it is difficult for the Deputy Commissioner to hold that the order of allotment made by the rent Controller in favour of Shivaji Rao was bad for the reason that the allotment was made by the Competent Authority under Sub-section (2) of Section 8 of the Act and there were no valid reasons for disregarding the directions. Secondly, the proceedings under Section 8 commenced in the year 1981 and more than 4 years have elapsed and it would be unfair to the landlord to keep the proceedings under Section 8 pending for such a long period. ( 11 ) IN the circumstances, we make the following order: (i) Writ Appeal is allowed. (ii) In reversal of the order made by the Learned Single Judge, the Writ Petition is allowed, and the order of he 2nd Respondent - the Deputy Commissioner, Bangalore is set aside.