SRINIVASA MURTHY v. SHATRUGNAIAH SETTY — 1987 DIGILAW 317 (KAR)

SHIVASHANKAR BHAT, J. ( 1 ) THE appellant was the petitioner in W. P. No. 19578/82. He challenged the order of the 3rd respondent (Rent and Accommodation Controller) as affirmed by the 4th respondent (Special Dy. Commissioner ). By the impugned order, the premises in question was allotted to the 2nd respondent. 1st respondent is a rival claimant to the title of the premises. ( 2 ) APPELLANT claims title under a will left by one Seethamma. 1st respondent traces his title through the will of one Rama Setty. According to 1st respondent, Seethamma had only a limited interest in the premises and the ownership vested in Rama Setty. It is unnecessary to go into this question, as it is outside the purview of the present proceedings. ( 3 ) PROCEEDINGS under Section 4 of the Karnataka Rent Control Act, 1961 (hereinafter referred as 'the Act'), were initiated by the 3rd respondent, on the basis of a letter written by one Narayana setty, stating that, be was a tenant of the premises and that he vacated it. Similarly, 1st respondent also reported vacancy. The appellant contended that, Narayana Setty was never a tenant, but was living with late Seethamma, as a close relative and that he was also residing in the premises. Narayana Setty, in the meanwhile withdrew his earlier letter. The fact that appellant was residing at the time of spot inspection by the 3rd respondent and continues to reside therein, is not in dispute. ( 4 ) THERE is a concurrent finding by the authorities below, that Narayana Setty was a tenant. There is also a finding that the occupation of the premises by the appellant was in contravention of section 4 (2) of the Act. These findings are affirmed by the learned Single Judge. No legal infirmity has been pointed out as to how the said findings could be assailed in appeal. Therefore, we proceed on the assumption that the premises in question was tenanted earlier and that the appellant occupied it in contravention of Section 4 (2) of the Act. ( 5 ) THE learned Counsel for the appellant contended that, when admittedly, the appellant is found to be in occupation of the premises, the 3rd respondent could not have made an order of allotment under the provisions of Sections 5 to 8 before evicting the alleged unauthorised occupant under Section 10-A of the Act. ( 5 ) THE learned Counsel for the appellant contended that, when admittedly, the appellant is found to be in occupation of the premises, the 3rd respondent could not have made an order of allotment under the provisions of Sections 5 to 8 before evicting the alleged unauthorised occupant under Section 10-A of the Act. It was argued that proceedings under Section 10-A were to precede, before, allotment proceedings could be initiated. ( 6 ) THE object of the Act, inter alia, is to provide for the leasing of buildings. Under Section 4, every landlord shall, within 15 days after the building becomes vacant, give intimation of the fact, to the Controller. There is a bar against letting out, occupying or using, any building which becomes vacant, without intimation of the vacancy being given to the Controller and thereafter for a period of 15 days from the date on which the intimation is received by the Controller, etc. Section 5 empowers the Controller to direct the landlord that any vacant building be given to the landlord for his use and occupation, or it may be given on lease to such other person as the said authority thinks fit. An order under Section 5 may be made, irrespective of the fact whether intimation of its vacancy has been given under Section 4 or not. Section 8 provides the procedure to be followed before making an order under Section 5. Section 9 refers to the contents of such order. Consequences of an order under Section 5 stated under Section 10. It directs the delivery of possession of the building to the allottee, by the landlord and provides for the terms of tenancy between the allottee and the landlord. Section 10 (2) which is relevant reads thus: "if the landlord fails to deliver possession under Sub-section (1), the Controller or any officer authorised by him may take possession of the building breaking open locks, if any, using such force with such police assistance as may be required for evicting any person in occupation or control of such building who refused to deliver and for removing any obstruction or resistance in the taking of such possession". ( 7 ) HERE, it may be noted once again, that, an order under Section 5 may be made, irrespective of the intimation of vacancy was given or not. ( 7 ) HERE, it may be noted once again, that, an order under Section 5 may be made, irrespective of the intimation of vacancy was given or not. But the appellant relies on Section 10-A (introduced in July 1969) which is reproduced below : "10-A Eviction by the Controller : (1) Where in accordance with the provision of Section 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-section (2) of Section 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 Subsection (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 he specified in the order and deliver possession thereof to the Controller. (3) (a) Upon service of an order under Sub-section (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, 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 persons in occupation and take possession of the building and thereupon the provisions of Sections 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. (b) The provision of Sub section (2) of Section 10 shall apply to any action taken by the controller under Clause (a)". (b) The provision of Sub section (2) of Section 10 shall apply to any action taken by the controller under Clause (a)". ( 8 ) THE appellant, refers to Sub-section (1) which empowers the Controller to call upon the person who is in occupation of the building in contravention of Section 4 (2), to show cause as to why he should not be "evicted. Under Section 10-A (2), the Controller may direct such an occupant to vacate the building. Section 10-A (3) empowers the Controller to dispossess such a person and take possesion of the building Thereafter, it is stated, in Section 10-A (3) that, provisions of sections 4, 5, 8 to 10 shall apply to the building as if intimation of vacancy was given to him. ( 9 ) THE argument is - Actual eviction of the unauthorised occupant was a condition precedent for the exercise of power under Section 5 ; till then, as the building is not actually vacant, question of making an order under Section 5 does not arise. Since allotment order can be made only in respect of a vacant building, provision to get the building vacated is made under Section 10- A. Therefore, whenever a building is occupied in contravention of Section 4 (2), proceedings under section 10-A is compulsive without which, Sections cannot be resorted to. In this case, no proceedings was taken against the appellant under Section 10-A ; therefore the order of allotment in favour of 2nd respondent was without jurisdiction. ( 10 ) SRI C. B. Srinivasan, the Learned Counsel for the 2nd respondent, contended that, recourse to section 10-A is optional and not a condition precedent to the exercise of the power under sections 5 to 10. He relied on Section 10 (2) which empowers the Controller to take possession of a building, on allotment, in case, the landlord fails to deliver possession, in spite of an order under Section 10 (1 ). Sections empowers the Controller to make the order of allotment, whether intimation of vacancy has been given by the land-lord under Section 4 ( 1) or not. Section 10-A (3) (a), creates a fiction by saying the provisions of Sections 4, 5, 8 to 10 shall apply as if intimation of the vacancy of the building was given to the Controller. Section 10-A (3) (a), creates a fiction by saying the provisions of Sections 4, 5, 8 to 10 shall apply as if intimation of the vacancy of the building was given to the Controller. This brings out boldly the distinction between two sets of proceedings and make them independent of each other. ( 11 ) HAVING heard the respective contentions and the reasons advanced thereto, we are of the opinion that the appeal has to be dismissed. ( 12 ) THE Act is a regulatory measure. Its object is to control rents and evictions and to provide for leasing of buildings. It overrides any other law regarding matters covered by it. Landlord is not free to choose his tenant; his right to demand rent is fettered. His right to take possession by evicting the tenant is vastly curtailed. Whenever a building covered by the Act, becomes vacant, inter alia, by the cessation of its occupation by the landlord or by termination of tenancy or by the eviction of the tenant, law requires an intimation of such a vacancy being given to the controller. Such a vacant building cannot be occupied or used by anyone without an appropriate order of the Controller, or until the conditions stated by Section 4 (2) are satisfied. The Controller may allot the building on lease having regard to the statutory guidance, in which the requirements of public authorities are given certain preferences. In view of the acute shortage of houses, it is imperative that allotment proceedings should culminate as early as possible. It will not be in the public interest to have elaborate and lengthy proceedings in such matters. ( 13 ) WHENEVER someone occupies a building in contravention of Section 4 (2), such an occupation is an act of illegality. The building has to be treated as vacant at the earliest point of time that precedes the illegal entry and occupation by the person, who occupies it contrary to Section 4 (2 ). At that particular point of time, the provisions of Sections 5 to 8 will operate, enabling the controller to act, for the allotment of the premises. Section 5 clearly empowers him to make an order of allotment, whether intimation of vacancy was given to him or not. Section 5 does not restrict the power of allotment only when vacancy is intimated. Section 5 clearly empowers him to make an order of allotment, whether intimation of vacancy was given to him or not. Section 5 does not restrict the power of allotment only when vacancy is intimated. ( 14 ) THERE is no non-obstante clause in Section 10 A. It confers a power on the Controller to seek explanation from a person, whom he believes to be in unauthorised occupation, as to why he should not be evicted and thereafter provides the procedure to be followed. It creates a machinery to enable the Controller to enquire into the nature of the possession of an occupant and evict him if necessary. It is a provision, to effectuate the policy of the Statute, to control the leasing of the premises. ( 15 ) IF in every case, an enquiry under Section 10-A is necessary, it will result in prolongation of the proceedings for allotment. Purpose of the Act in no way gets frustrated or diluted, by not reading Section 10-A proceedings, as a condition precedent for the allotment proceedings. There is nothing wrong if Section 10-A proceedings is resorted simultaneously with the allotment proceedings, or even if it is not resorted at all, in case, it was felt to be unnecessary. ( 16 ) EXISTENCE of vacancy, no doubt, confers jurisdiction on the Controller to make an order under section 5. The process of finding, whether the building is vacant or not may overlap or supplement, the proceedings contemplated under Section 10-A, or vice-versa. In a case coming under Sections 5 to 10, the actual possession is taken by the Controller after the order of allotment. But, in the case of proceedings under Section 10-A, taking of possession is prior to the allotment order, as is clear from Section 10-A (3) (a) Thereafter by virtue of the legal fiction, as if vacancy has been intima ted, Section-5 etc. , are attracted. ( 17 ) THE learned Counsel for the appellant has not explained as to how the procedure followed prejudiced him in this case. The nature of his possession was gone into and the finding that he occupied the building in contravention of Section 4 (2) was given, only after hearing him. He had adequate opportunity to prove his case. The materials placed by both sets of parties were considered by the respondents 3 and 4. The nature of his possession was gone into and the finding that he occupied the building in contravention of Section 4 (2) was given, only after hearing him. He had adequate opportunity to prove his case. The materials placed by both sets of parties were considered by the respondents 3 and 4. He cannot make it a point of grievance that, he could have continued in the illegal occupation for a few more months, in case, two different sets of proceedings,-one under Section 10-A and another under Section 5 had been resorted. There is no justification either under equity or under law, to sustain such a plea of the appellant. ( 18 ) A few decisions of this Court were cited before us : In Sameeulla Khan -v.- Special Deputy Commissioner, Bangalore and Ors. 1979 (2) KLJ 351 there is an observation by a learned Single Judge of this Court that, the power conferred by Section 10-A is not discretionary but compulsive. This is relied, to contend that proceedings under section 10-A should precede the proceedings under Section-5. The petitioner, Khan occupied the shop on the death of a tenant and tried to create a tenancy in his favour by sending rent to the landlord. On refusal by the landlord to accept rent, he applied under Section 19 to deposit the rent. There were other proceedings, including proceedings started by him to have his occupation regularised by the Controller. When this application for regularisation came before the controller, he started proceedings under Section 10-A of the Act and directed Khan to handover possession of the shop to the Controller. This order was challenged in a Writ Petition, after failure of his appeal before the Dy. Commissioner. The contention was, that, petitioner, being a trespasser, his eviction can be sought only by recourse to Civil Court and Section 10-A was inapplicable. It was held by the learned Single Judge that, the position of law stood altered after the introduction of Section 10-A in the year 1969 and an unauthorised occupant can be dispossessed under Section 10-A of the Act, (whatever may be the earlier law ). At page 354-355, it is observed. : ". . . . It was held by the learned Single Judge that, the position of law stood altered after the introduction of Section 10-A in the year 1969 and an unauthorised occupant can be dispossessed under Section 10-A of the Act, (whatever may be the earlier law ). At page 354-355, it is observed. : ". . . . The provision to evict a person in occupation of a building in contravention of Part-II and its delivery to the Controller has been made to give effect to the regulatory provisions made in part-II of the Act. Sub-section (3) of Section 10a effectuates the legislative policy and the intent and the power conferred on the Controller by Sub-sections (1) and (2) of Section 10-A of the act. Sub-section (3) empowers the Controller summarily and forcibly to dispossess a person against whom an order is made under Sub-section (2) of the Act. All these provisions have been made to effectuate the legislative policy and intent of the provisions made in Part-II of the Act. The power conferred on the Controller by Section 10-A is an independent and special power and has no reference to the rights of an owner or landlord to evict a person in unlawful occupation of a building like the petitioner". ( 19 ) THEREAFER, the Court proceeded to consider the next submission, that the power, conferred on the Controller by Section 10-A to evict an unauthorised occupant, was a discretionary one and on the facts of the case, petitioner should not have been ordered to deliver possession For this proposition the word 'may' in Section 10-A (1) was relied. On a consideration of the principles of statutory construction, this contention was rejected and it was observed at page 356: ". . . . . . . . the word 'may' occurring in Section 10-A of the Act has necessarily to be interpreted only as compulsive and not a permissive. In other words, whenever the Controller finds that a person has occupied a building in contravention of Section 4 of the Act, he is under a compulsive duty to evict such a person, take possession of the building and then initiate proceedings for allotment of the building in accordance with the other provisions made in Part-II of the Act. In other words, whenever the Controller finds that a person has occupied a building in contravention of Section 4 of the Act, he is under a compulsive duty to evict such a person, take possession of the building and then initiate proceedings for allotment of the building in accordance with the other provisions made in Part-II of the Act. The word 'may' has been used in Section 10-A as a matter of pure convention and courtesy and is intended to be mandatory in character. In this view, I hold that the Controller could not have exercised any discretion and permitted the petitioner to continue to occupy the shop that had been occupied by him in contravention of Section 4 of the Act for which reason the question of directing him to exercise his discretion does not arise". ( 20 ) WE are not able to understand as to how this passage helps the appellant. The decision does not declare that, Section 10-A proceedings are to be condition precedent for a proceeding under section 5. The said decision is based on the well known principle that, a statutory authority has a duty to exercise a power vested in him, whenever, the prerequisite conditions exist, for the achievement of the object of the statute in question The Controller will be failing in his duty, if he continues to be a passive witness to the unauthorised occupation by a person who occupied the building in contravention of Section 4 (2 ). Nature of the proceedings to be adopted in a given case - whether under Section 5 or under Section 10-A - was not at all gone into, since it did not arise in the said case. ( 21 ) DECISION in Sharada Bai -v.- House Rent Controller 1980 (1) KLJ 373 was rendered by his lordship Justice Jagannatha Shetty (as he then was ). The question posed therein was whether allotment of the building by the Controller was valid, when the building was already under the unauthorised occupation of a third person. The object of introducing Section 10-A was held, to overcome an earlier decision of this Court, which said that, the Controller gets power to evict an unauthorised person only after the Controller makes an order of allotment. After Section 10-A was introduced, the Controller gets such a power of eviction even without making an order of allotment. The object of introducing Section 10-A was held, to overcome an earlier decision of this Court, which said that, the Controller gets power to evict an unauthorised person only after the Controller makes an order of allotment. After Section 10-A was introduced, the Controller gets such a power of eviction even without making an order of allotment. The conclusions are stated at page 375, para-6 : "to sum up, it may be stated that before the incorporation of Section 10a by Amending Act 14 of 1969, the procedure for summary eviction of a person who enters the building in contravention of Section 4 (2) had not been provided. Now Section 10a provides for such procedure. It also authorises the Controller to evict such person and take possession of the building. Before the Amendment, the possession of a building could be from an unauthorised occupant only after its allotment, but after the said amendment, the illegal occupant could be evicted even before the allotment. But then, the Act does not require that the Controller should be in possession of the vacant building before it is notified or allotted to any applicant. After the allotment of such building, he could call upon the landlord to give vacant possession and upon his failure, the Controller shall take possession by using such force as may be required. " (underlining is ours) ( 22 ) EARLIER, it was pointed out that, since Section 10 (2) was kept in tact even after the enactment of Section 10-A, Court should not ignore the said provision and it continues to operate. ( 23 ) THIS decision brings out clearly that the scheme of Section 5 etc. , was in no way altered, by the introduction of Section 10-A. Section 10-A conferred a power on the Controller which was found to be wanting earlier to effectuate the purpose of the Act. ( 24 ) U. Gopalakrishna Bhat -v.- Assistant Commissioner and Rent Controller and Ors. 1981 (1) KLJ 593 is a ruling of a Division Bench of this Court. In this case, the owner let out the premises in contravention of. Section 4 (2 ). Thereafter she reported vacancy. In the said proceedings, show cause notice was issued to the unauthorised tenant, under Section 10-A and ultimately he was ordered to handover possession. This order came up for challenge in this Court by the said unauthorised tenant. In this case, the owner let out the premises in contravention of. Section 4 (2 ). Thereafter she reported vacancy. In the said proceedings, show cause notice was issued to the unauthorised tenant, under Section 10-A and ultimately he was ordered to handover possession. This order came up for challenge in this Court by the said unauthorised tenant. The argument was that proceedings under Section 10-A should have been held after the allotment order, or at any rate, the power of eviction could have been exercised only under Section 10 (2) after the allotment order. The decision proceeds on the assumption that the Controller can make an order of allotment before evicting the person in unauthorised occupation (vide para-12 ). Thereafter, it was held at page 596 : "in our opinion, Sub-section (1) of Section 10a confers powers on the Controller to evict such unauthorised occupant even prior to making an order under Section 5 allotting the building to another person. Even if the power conferred under Sub-section (1) of Section 10a may overlap the power conferred under Sub-section (2) of Section 10 to a certain extent and in certain circumstances, that, by itself, would not be a ground for cutting down the ambit of Sub-section (1) of Section 10a". This decision in no way advances the contention of the appellant. The observations quoted above to some extent supports the proposition advanced by Sri Srinivasan. ( 25 ) IN V. L. Govindaraj Shetty -v.- Special Deputy Commissioner and ors. , 1983 (1) KLC 361 petitioner was the purchaser of a tenanted premises. Controller had initiated suo moto proceedings for allotment. Petitioner sought release of premises for his occupation, in case, it was held there was a vacancy. The person in occupation, Shet, contended that he was in lawful occupation as a tenant. Controller allotted the premises overruling the contentions of the petitioner and that of Shet. A perusal of paras 8 and 9 of the decision shows that the appellate order was a non-speaking order and certain findings recorded by the Controller were, admittedly, based on no evidence. Controller allotted the premises overruling the contentions of the petitioner and that of Shet. A perusal of paras 8 and 9 of the decision shows that the appellate order was a non-speaking order and certain findings recorded by the Controller were, admittedly, based on no evidence. In the circumstances of the case, the Learned Single Judge of this Court was of the view that "it would be proper for the Controller to issue a show cause notice" to Shet or any other person who claims or believed to be in possession, under Section 10-A of the Act so that, the Controller could make a satisfactory order. The decision rests on the facts of the case and no binding precedent flows out of it. ( 26 ) ORDER resulting from a simultaneous proceedings, both under Section 10-A and Tor allotment under Section 5, was the subject matter in Sajjan Raj -v.- House Rent and Accommodation controller ILR1987 KAR 776. In para 8 of this decision, His Lordship, justice Swami, concurred with the view stated in Sameulla Khan's case1, to the effect that the controller had a statutory duty to evict a person in occupation of a building, contrary to Section 4 (2 ). It was further held that there was no period of limitation to take action under Section 10-A. In paras 11. 1 and 11. 2 it was also held, after quoting the relevant passage from Sharada Bai's case2, that both proceedings (for allotment and for eviction under Section 10a) can go on simultaneously, a view, with respect we say, accords with the scheme of the Act and its purpose. ( 27 ) IT is therefore not possible to hold, that the Controller should take possession of the premises under Section 10-A before he makes an order of allotment. His power under Section 5 is in no way hedged by such procedural limitation. There may be cases, when, Controller may deem it necessary to seek explanation and justification for a person's possession, which the Controller believed or had reason to believe, to be in contravention of Section 4 (2), before notifying the vacancy. His power under Section 5 is in no way hedged by such procedural limitation. There may be cases, when, Controller may deem it necessary to seek explanation and justification for a person's possession, which the Controller believed or had reason to believe, to be in contravention of Section 4 (2), before notifying the vacancy. One such situation is the ostensible possession and enjoyment being with an occupant for a very long number of years, There may be a situation when Controller may notify the vacancy and in the said proceeding, decide the factum of vacancy in the presence of all interested persons, and in case, he makes an order of allotment, he may also resort to Section 10 (2) to take possession. In another situation, the Controller may think it fit and proper to issue a notice under Section 10-A to a person in occupation of the premises in question, to arrive at a proper finding on the question of vacancy, before making the order of allotment. It is difficult, to envisage the possible situations that may crop up before the Controller. The facts in Sajjan Raj's case5 show as to how, for a long number of years, Controller may not be aware of the occupation of a building in contravention of Section 4 (2 ). Human ingenuity is capable of creating peculiar, unanticipated, manifold and diverse situations and the law should not be found lacking to meet such situations. As already stated, no principle of equity or justice requires the acceptance of the proposition advanced by the appellant in this case. ( 28 ) THE appellant further contended that the allottee-2nd respondent-has been set up by the 1st respondent, who is a rival claimant to the title of the property and these proceedings under the act, is an act of abusing the process of law. Dispute as to title, we are told, is pending before the civil Court On the existing material, it is not possible to hold that the process of law has been, in any way, abused by the respondents 1 and 2. ( 29 ) THE next contention was that, the proceedings for allotment initiated at the instance of a rival claimant to the title of the property (until his title is established) was without jurisdiction. It was also argued, very faintly, that, until the title in question is decided, allotment order cannot be made. ( 29 ) THE next contention was that, the proceedings for allotment initiated at the instance of a rival claimant to the title of the property (until his title is established) was without jurisdiction. It was also argued, very faintly, that, until the title in question is decided, allotment order cannot be made. ( 30 ) SECTION 5 empowers the Controller to take suo motu action. Therefore, question of initiation of proceedings, at the behest of a person, allegedly lacking in title, is irrelevant. In the face of the finding that, formerly Narayana Setty was a tenant and the appellant occupied the premises in contravention of Section 4 (2) after Narayana Setty vacated it, the contention raised by the appellant is entirely irrelevant. It is not possible to hold that a premises should be kept vacant for a long period awaiting the declaration of title by the Civil Court. The successful title holder can always seek possession of the premises for his occupation, under the appropriate provisions of the Act. ( 31 ) FOR these reasons, we hold : ( i) Proceedings under Section 10-A is not a condition precedent for the making of an order of allotment under Section 5. (ii) It is open to the Controller to proceed under Sections 5 to 10 independently of Section 10-A, or in a given case, he may resort to Section 10-A simultaneously with the proceedings for allotment. There may be a situation, when even without notifying vacancy earlier, Controller may resort to Section 10-A to take possession of the premises, and thereafter proceed under section 5. ( 32 ) CONSEQUENTLY the Writ Appeal fails and is dismissed, without an order as to costs. ( 33 ) THE appellant's Counsel made a request that in case the order under appeal is to be affirmed, the appellant may be given reasonable time to vacate the premises. In the circumstances of the case, we think it just, to grant two months time from today to the appellant to vacate the premises.