A.C. Joseph vs Spl. Dy. Commr., Bangalore and Others

Shri A.C. Joseph, petitioner before me, who claims to be the owner of a residential premises bearing No. 13/1 situated at Hutchins Road, Bangalore City, has challenged an order dated 23-5-1978 of the Special Deputy Commissioner, Bangalore District, Bangalore, in H.R.C. Appeal No. 314 of 1977-78 (Ext. B) affirming the order dated 7-2-1978 of the House Rent Controller, Civil Area, Bangalore, in Case No. HRC 23 ACC/78 (Ext. A) allotting the said premises to respondent No 3.

As the assertion of the petitioner that he is the owner of the premises is not denied and disputed by the respondents, I propose to examine his claim on that basis.

On 22-12-1977, a Revenue Inspector attached to the Office of respondent No. 2 reported that the premises were vacant and action may be taken to notify the vacancy. On that report, respondent No. 2 ordered to issue notices to the inmates on or before 29-12-1977. From the records, it is not possible for me to gather as to whom the notices were issued in pursuance of the order of the Controller. On 10-1-1978 one Smt. Dhanamma who is stated to be the mother-in-law of the petitioner gave an intimation of the vacancy of the premises. In that intimation, she claimed the premises for her own use and occupation. On 18-1-1978, the petitioner filed an affidavit before respondent No. 2 claiming that the premises had not fallen vacant and therefore to cancel the Notification of vacancy issued in that behalf. In the meanwhile, respondent No. 2 had notified the vacancy in response to which respondent No. 3 and 8 others filed their application; each praying for allotment of the premises in his own favour. The application of respondent No. 3 which alone now survives was filed on 18-1-1978. Before the application or along with the application respondent No. 3 did not deposit one month''s rent of the building as advance. From the records it is seen respondent No. 3 deposited a sum of Rs. 200 on 6-2-1978 probably that being the amount specified in the notice of vacancy issued by respondent No. 2. On 7-2-1978 respondent No. 2 considered the claim of the petitioner for cancellation of the notice of vacancy and the claim of respondent No. 3 and others for allotment. Evidently after hearing the arguments, the Controller, by his order dated 7-2-1978 holding that the premises were vacant, allotted the same to respondent No. 3 on the ground that he had a preferential claim over the other applicants which was unsuccessfully challenged by the petitioner before respondent No. 1, the validity of which are challenged by him in this writ petition under Art. 226 of the Constitution.

Shri H.N. Narayam, learned counsel for the petitioner, contended (1) that the application made by respondent No. 3 without a prior deposit of one months advance rent or deposit along with the application is an invalid application and (2) that the finding of the authorities that there is a vacancy based on no evidence, is vitiated and therefore their orders are liable to be quashed.. In support of his contention, Shri H.N. Narayana strongly relied on the rulings of this Court in M. Krishna Rao v. H.N. Thimmayya, 1962 Mys.L.J. 261 and in Ram Rao T.N. v. Deputy Commissioner, Chikmagalur, (1977) 1 Kar.L.J. 71. Shri Murlidhar Rao, learned counsel for respondent No. 3, while refuting the contentions of Shri H.N. Narayan, strenuously contended that the enunciation made by Ahmed Ali Khan J. in Krishna Rao''s case is not sound and requires reconsideration.

Shri H.N. Narayan, learned counsel for the petitioner, strenuously contended that an application for an allotment under the Karanataka Rent Control Act 1961 (hereinafter referred to as ''the 1961 Act'') has to be made in the prescribed form and has to be accompanied by a prior deposit of one months rent of deposit along with the application and if not so made the application is an invalid application; and is liable to be rejected in limine. In this case, respondent No. 3 has made the application in the prescribed form and therefore the only question that requires my examination is whether the application which was not accompanied by a deposit of one months rent prior to the application or along with the application invalid or not. In order to appreciate this question, it is necessary to read sub-sec. (5) of S. 8 of the 1961 Act which reads thus:

"8 (5) Notwithstanding anything contained in sub-sec. (4), noorder under the said sub-section shall be made in favour of a person other than a public authority, unless- (i) such person has made an application in the prescribed form to the Controller for allotment of a building for his use or occupation, (ii) Such person has deposited or deposits with the Controller for payment to the landlord an amount equal to one month''s rent of the building as advance, and (iii) the Controller is, satisfied that such person is not occupying or for reasonable cause, cannot occupy a building, which is his, own or for the possession of which he is suitable for his requirements."

Let me first examine the true scope of this section unaided by the authorities.

One of the elementary rules firmly established in ascertaining the intention of the Legislature is that the statute must be, read as a whole. From a reading of sub-sec. (5) of S. 8 of the 1961 Act as a whole, it seen the Legislature has provided that an intending applicant for allotment should make an application in the prescribed form and should also make a deposit of one month''s rent. Sub-clause (i) of sub-sec. (5) of S. 8 of the 1961 Act contemplates the filing of an application for allotment in the prescribed form. Sub-clause (ii) of sub-sec. (5) of S. 8 of the 1961 Act provides for deposit of one month''s rent. Sub-clauses (i) and (ii) of sub-sec. (5) of S. 8 must be read together and not disjunctively as providing for two separate and independent contingencies or situations. The deposit to be made is with reference to the application to be made under sub-clause (i) of sub-sec (5) of S. 8. The object of insisting on a deposit is to avoid filing of speculative and frivolous applications needlessly increasing the work of the authority. By the words "has deposited" occurring in subclause (ii) of sub-sec. (5) of S. 8, the Act permits the applicant to make an earlier deposit and by the wore "deposits," the Act provides a deposit to be made with the application and that is the only choice or concession that is given to the applicant. By permitting a deposit to be made at any time at the sweet will of the applicant, the very object of legislation would be defeated and such a construction has always to be avoided by the Courts. In my view, the deposit has to be made earlier to the application or with or along with the application and the same cannot be avoided by an applicant

Let me now turn to the authorities.

The uniform 1961 Act has come into force on 31st December 1961. Prior to 31st December 1961, in the old Mysore area, an Act called ''The Mysore House Rent and Accommodation Control Act of 1951 (Mysore Act XXX of 1951) (hereinafter referred to as the 1951 Act) was in force.'' In the 1951 Act also there was a corresponding provision providing for an application and deposit of rent and the corresponding provision viz., S. 3(3) reads thus:

"Sec. 3(3)(b): Notwithstanding anything contained in clause (a), no allotment order shall be made by the controller unless- (i) the allottee has made an application in the prescribed form to the Controller for allotment of a house for his use or occupation;

(ii) the allottee deposits with the Controller an amount equal to one-month''s rent of the house to be allotted; and (iii) The Controller is satisfied that the allottee is not occupying or for reasonable cause cannot occupy a house which is his own (or to the possession of which he is entitled) and which is suitable for his requirements."

On a reading of S. 3(3)(b) of the 1951 Act and sub-sec. (5) of S. 8 of the 1961 Act, it will be seen that the Legislature has almostly bodily lifted S. 3(3)(b) of the 1951 Act and has incorporated the same as S. 8(5) of the 1961 Act. In Krishna Rao''s case, Ahmed Ali Khan J. while holding S. 3(3)(b) as mandatory also spelt out the true meaning of that provision in these words-

"What the provision means is that when an application is made as prescribed in clause (1) to the Controller for an allotment of a premises, an amount equal to one month''s rent of the premises should be actually deposited with the Controller along with the application. The provision being mandatory, it should be complied strictly. Hence those who have not actually deposited the required amount with the House and Rent Controller along with the application cannot be construed to be applicants under the provisions of the Act."

In Rama Rao''s case, a Division Bench of this Court while interpreting sub-sec. (5) of S. 8 of the 1961 Act has expressed its concurrence to the views expressed by Ahmed Ali Khan J. in Krishna Rao''s case. When that is so it is not even open to me to doubt the correctness of the enunciation made by Ahmed Ali Khan J. in Krishna Rao''s case. Sri Murlidhar Rao, learned counsel for respondent No. 3, does not dispute that sub-sec. (5) of S. 8 of the 1961 Act as held by this Court in Rama Rao''s case is mandatory. But, he strenuously contended that in Krishna Rao''s case or Rama Rao''s case the true construction and interpretation of S. 8(5) of the 1961 Act or the corresponding provision in the 1951 Act did not directly arise for consideration and the interpretation placed by Ahmed Ali Khan, J. is only an obiter and is therefore not binding on me In Krishna Rao''s case, Ahmed Ali Khan, J. had to examine whether persons who had not made deposits along with their applications are entitled for consideration of their applications. It is in that context, Ahmed Ali Khan J, examined the question and enunciated the principle which has already been extracted by me. In my opinion, it is not an obiter as contended by Shri Murlidhar Rao. Shri Murlidhar Rao next contended that the Division Bench in Rama Rao''s case has only affirmed the principle that S. 3(3)(b) of the 1951 Act was mandatory and had not affirmed the enunciation made by Ahmed Ali Khan J, on the true scope and ambit of S. 3(3)(b) of the 1951 Act. Shri Murlidhar Rao is right in his submission that in Rama Roa''s case, the true construction and interpretation of S. 8(5) of the 1961 Act did not directly arise. But when the Division Bench expressed its approval to the interpretation placed by Ahmed Ali Khan J, in my opinion, the Division Bench was approving even the construction and interpretation placed by Ahmed Ali Khan J, in Krishna Rao''s case and the submission of Shri Murlidhar Rao to the contrary is without force Shri Murlidhar Rao finally contended that notwithstanding the enunciation made by Ahmed Ali Khan J, in Krishna Rao''s case as early as on 24-8-1961 the authorities functioning under the 1961 Act, parties and their counsel have always considered that one month''s rent could be deposited before the consideration of the applications by the Controller and have all along acted on that basis and therefore it is a fit case in which I should refer this matter for a decision by a Division Bench. In my opinion, if the, authorities have regulated the matter in disobedience of a ruling of this Court, it is unfortunate and is regrettable. As to the ignorance of the parties or some of their counsel that is not a matter on which I should refer the case to a Division Bench. Lastly when I find that the interpretation placed by Ahmed Ali Khan J, has found favour with a Division Bench, it would be sheer waste of time and would be a case of shirking my responsibility in deciding the case. I, therefore, see no merit in this contention of Shri Murlidhar Rao and reject the same.

In the light of my above discussion I hold that the application presented by respondent No. 3 which was not accompanied by a prior deposit or a deposit along with his application was an invalid application and therefore the Controller had no jurisdiction and power to allot the premises to respondent No. 3, and the appellate authority in affirming the order of the Controller has committed a manifest error of law apparent on the face of the record. As no other applicant has challenged the order of the Controller before the appellate authority or before this Court, the question of considering the allotment of premises to any other applicant in the very proceedings out of which this writ petition arises cannot and does not arise.

Shri H.N. Narayan next contended that the finding that the premises are vacant and is therefore available for allotment has been reached by the authorities without holding any enquiry and without any legal evidence and is therefore vitiated.

Before the Controller, the petitioner asserted that there was no vacancy and the intimation of vacancy given by his mother-in-law Smt. Dhanamma had been obtained by an Inspector attached to the Office of respondent No. 2 by misleading her. The Controller has recorded his finding that there was a vacancy only on the basis of the report dated 22-12-1977 submitted by the Revenue Inspector attached to his office which is more or less reiterated by him in another report submitted on 6-2-1978. Except the reports of the Revenue Inspector and the affidavit filed by the petitioner which seriously disputes the assertion of the Revenue Inspector, there is no other evidence to sustain the finding of the Controller. The Controller and the appellant authority have recorded their findings that there is a vacancy on the basis of the reports of the Revenue Inspector as if it was gospel truth and the last word on that question. On the affidavit filed by the petitioner and his submission made in support of his case, the authorities say that he is not telling the truth and it is only oral and hard to believe. In my opinion, the entire approach made by the authorities in recording their finding that there is a vacancy and therefore the premises are available for allotment is wholly coursory, illegal and is violative of the principles of natural justice. In the context of a serious dispute raised by the petitioner on the question of vacancy, the Controller could not have rejected he assertion almost by a blind acceptance of the reports of the Revenue Inspector. In my opinion, he should have afforded a proper opportunity to the petitioner to establish his assertion that there was no vacancy if necessary by permitting him to place such evidence as is necessary for the determination of that issue and it is only on consideration of such evidence he should have recorded his finding on that question. The same infirmity is found in the order of the appellate authority also. It is hardly necessary to, point out that without first deciding whether there is a vacancy, the Controller gets no jurisdiction to allot the premises to any other person. As to whether there is a vacancy or not is a matter primarily for the Controller to decide and only on such a decision he can take steps for allotment of the premises duty considering the claim of the petitioner in that behalf. As I find that the Controller has not legally determined this issue, I have no alternative but to quash the impugned orders and remit the matter to the Controller for a proper determination of that issue and the disposal of the case in accordance with law.

In this case, respondent No. 2 has delivered the premises to respondent No. 3 almost making it, impossible for the petitioner to obtain an order of stay from this Court. From 24-5-1978 respondent No. 3 is in occupation of the premises in pursuance of its delivery effected by respondent No. 2. Even though I have found that respondent No. 3 who is now in occupation of the premises was not entitled for the allotment of the premises and its occupation, I cannot ignore his occupation and direct respondent No. 2 to evict the occupant from the premises over-night which will necessarily cause him great hardship and injury. In these circumstances, I grant 3 months time to respondent No. 3 to vacate the premises from this day subject to the condition that he pays the arrears of remits if any and continues to pay the rents to the petitioner regularly for the period permitted by this order. On the failure of respondent No. 3 to voluntarily deliver possession on or before the time permitted by this order, I direct respondent No. 2 to forcibly evict respondent No. 3 and deliver possession of the premises to the person that is entitled to possession. Ordered accordingly.

In the light of my above discussion, I quash the impugned orders by issue of a writ of certiorari. I further direct the issue of a writ in the nature of mandamus to respondent No. 2 to first ascertain whether there is a vacancy of premises bearing No. 13/1 situated at Hutchins Road, Bangalore City, and if it is found that there is a vacancy of the premises, take steps to notify the vacancy and allot the same considering the claims of the petitioner for self-occupation in accordance with law and in the light of the observation made in this order with all expedition and in any event within a period of 4 months from the date of receipt of the order/writ of this Court.

Rule made absolute.

Petitioner is entitled to his costs from respondent No. 3. Advacate''s fee Rs. 100.

Let a copy of this order be communicated to respondent No. 5 within 10 days from this day.