Akokyamary vs House Rent Controller and Others

The order dt. 5.4.1982 made in H.R.C. Appeal No. 198/81-82 by the Deputy Commissioner, Bangalore, is challenged in this writ petition.

The Rent Controller initiated suo-motu proceedings for allotment of the premises bearing No.48, Nangegowda Street, Doddamavalli, Bangalore.

The two grounds on which the proposed action was resisted by the petitioner are: (i) Premises has not become vacant as Sri Janardhana Naidu, tenant of the premises has not vacated and (ii) Premises is required for personal use and occupation.

Pursuant to the notification issued by the Rent Controller, six per sons filed applications for allotment. The Rent Controller on examination of the merits of the claims of respective applicants allotted the premises on 30.11.1981 in favour of one Shivaji Rao. Unfortunately, Shivaji Rao declined to occupy the premises. The 3rd respondent was unsuccessful in securing an order of allotment in his favour.

On failure of the allottee occupying the premises, the Rent Controller has released the premises in favour of the owner as per order dt. 7.12.1981, with liberty to lease the premises to a person of her choice.

The 3rd respondent who was unsuccessful in securing an allotment in his favour preferred an appeal to the Deputy Commissioner questioning the correctness of the order of allotment in favour of Shivaji Rao. The Deputy Commissioner has set aside the latter order and remitted the matter to the Rent Controller to consider the claim of applicants including respondent-3, for allotment. Since Sri Shivaji Rao declined to occupy the premises no necessity arose either to quash or set aside the order of allotment, except setting aside the order permitting the owner to lease the premises to a person of her choice. An appellate Court can certainly take cognizance of subsequent change of events for the purpose of moulding the relief.

The contention of the petitioner is that, on failure of the allottee occupying the premises, she is entitled to occupy the premises for herself or to lease to a person of her choice. It is further contended that on termination of the proceedings under S. 8 of the Act, there is no necessity to consider the claim of the remaining applicants who were unsuccessful before the Rent-Controller.

In support of his contention, reliance was placed on sub-sec. (2) of S. 4 of the Act which reads thus:

"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-sec. (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"

This section envisages two ways by which a proceeding before the Rent-Controller can be terminated. One is after determination of the vacancy to allot the premises to any one of the applicants, and the other is to release the property to the owner, in case she establishes her need. In the instant case the Rent Controller has rejected the claim of the petitioner for self occupation. So, the only other way by which the proceeding can get terminated isby allotment of the premises to one of the applicants.

So the question that arises for consideration is, when does a proceeding got terminated or deemed to have been terminated for the purpose of sub-sec. (2) of S. 4. Can it be said that as soon as an order of allotment is made, whether the allottee is put in possession or not, the proceedings got terminated leaving no choice to the Rent Controller to make such orders as are necessary or expedient in the interest of justice?

The Rent Controller is under an obligation to regulate the lease of the premises which has fallen vacant. Under S. 5 of the Act the Controller, who has initiated the suo-motu proceeding or on receipt of vacancy report can permit the landlord to occupy the premises for his use and occupation or direct the lease of the premises in favour of a public authority or other persons as he may think fit. Ss. 6 and 7 of Chapter II are not relevant for the purpose of this case. The procedure prescribed under S. 8 has to be followed before ordering the lease of any building in favour of a public authority or other persion. Sub-Sec. (4) of S. 8 which is relevant for the purpose of this case reads thus:

"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."

When once the landlord''s claim is rejected, there is no option except to lease the premises in accordance with the provisions of this Chapter. As per sub-sec. (1) of S. 10, upon service of an order under S. 5, the landlord shall deliver possession of the premises to a person to whom the building is directed to be leased on the date specified in such order and such authority or person shall be deemed to be the tenant of the landlord with effect from the date on which the possession of the building is delivered. From the scheme of this Chapter it becomes thus clear, till possession is delivered to an allottee, allotment proceeding will not get terminated.

The procedure that was in vogue making provisional allotment and; final allotment has become obsolete as observed by a Division Bench of this Court in K. Balakrishna vs. Sub. Deputy Commissioner, Bangalore, (1973) 2 Mys.L.J. 1. The decision in Sangeetha Textiles vs. Asst. Commissioner & Rent Controller, Shimoga, (1979) 2 Kar.L.J. Sh. N. 49, is of no assistance to the petitioner since that was a case where no action was taken for allotment within the period prescribed in sub-sec. (2) of S. 4. The contention of the petitioner that as soon as the allottee fails to occupy the premises, the owner gets a right to occupy the premises or to lease out to a person of her choice, if accepted would virtually defect the object of the Act itself. The phrase "and make such further orders as appear to him to be necessary or expedient in connection therewith", found in sub-sec. (4) of S. 8 enables the Controller to consider the claim of the remaining applicants if the person in whose favour an allotment is made declines to occupy the premises. If as contended the proceeding gets terminated with the passing of the order of allotment, there may not be occasion to make further order as appear to him to be necessary or expedient. These words become redundant. A fortiori the order dated 7.12.81 will also be invalid. The policy which is unmistakably discernible from various sections of this Chapter is that none shall lot any accommodation or occupy the same except in pursuance of an order by the Rent Controller. After over-ruling the claim for personal occupation. the only other way of regulating the lease of the premises is to allot to a person is need of occupation. That policy would be defeated if the construction urged on behalf of the petitioner is accepted. As already indicated, the proceedings will not get terminated unless the allottee is inducted to possession, vide S. 10. Under these circumstances, it is not possible to accept the plea that as soon as an allotment is made, whether the allottee occupies the premises or not, proceedings get terminated enabling the landlord to occupy the premises or to let out to a person of her choice.

In the instant case, the 3rd respondent being dis-satisfied with the order of allotment made in favour of Shivaji Rao preferred an appeal to the Deputy Commissioner seeking a direction to allot the premises to him. The appeal is only a continuation of the proceeding before the Rent Controller. Even on this count also the petitioner cannot successfully contend that the proceeding before the Rent Controller stood terminated immediately after an order of allotment was made in favour of Shivaji Rao.

It is needless to state that the relief under Art. 226 of the Constitution is discretionary and unless it has resulted in manifest in-justice or irreparable loss or injury, there is no justification for interference. Neither the petitioner has challenged the order of allotment made in favour of Shivaji Rao nor has made any grievance rejecting her claim for personal use and occupation. The finding that premises is not required by petitioner has become conclusive. In the appeal which is nothing but a continuation of the original proceedings, if a direction is given to the Rent Controller to consider the claim of the 3rd-respondent for allotment in accordance with law, the petitioner cannot make any grievance. Hence, I find no merit in the writ petition. The writ petition is rejected Rule discharged. No costs.