M.P. Ganeshachar vs Asst. Commr. and Rent Controller Shimoga and Others

These two petitions are directed against an appellate order of the Deputy Commissioner, Shimoga, under the Karnataka Rent Control Act ("the Act"), in respect of an allotment of a building. There were two appeals before the Deputy Commissioner; one by Ganeshachar the petitioner in W.P. No. 13699 of 1979, and another by Shanthamma-the petitioner in W.P. No. 15627 of 1979. The Deputy Commissioner allowed the appeal of Ganeshachar while dismissing the appeal of Shanthamma, He has finally remanded the matter to the Rent Controller for re-notifying the vacancy of the building for the purpose of fresh allotment.

Shortly stated, the facts are these:

A building which is otherwise called ''Malige'' situate at B.H. Road, Bhadravathi was under the occupation of a tenant called K.S. Rayakar. Ganeshachar wanted the premises for his self occupation and so he requested the tenant to vacate. The tenant acceded to his request and surrendered possession on 24-8-1977. Thereafter, Ganeshachar without permission of the Controller occupied the ''Malige''. The Controller on coming to know of that, suo motu, notified the vacancy inviting applications for allotment. Satyanarayana the common respondents herein was one of the applicants in response to the said notification. The Controller allotted the ''Malige'' in his favour. Shanthamma challenged that order of allotment in H.R.C.A. No. 32/76-77 before the Deputy Commissioner contending inter alia that she was the owner of the ''Malige'' and without notice to her the Controller could not have allotted it. The Deputy Commissioner upon enquiry found that the notice issued to her by the Controller was not served and remanded the matter for fresh disposal.

After the remand, the Controller required the parties to intimate him the vacancy of the ''Malige''. Ganeshachar readily responded to the direction and on 4-3-1978 the Controller intimated that vacancy inviting applications for allotment. The last date fixed for receipt of applications was on 20-3-78. No application was received before that date. But on 21-3-1978 Satyanarayana came forward with his application. The Controller accepted that belated application rejecting the request of Ganeshachar for self occupation. The ''Malige'' was thereupon allotted to Satyanarayana. Shnanthamma had no notice of this proceedings. So, she again preferred an appeal to the Deputy Commissioner. Ganeshachar also took up the matter in appeal since he wanted the same for self occupation. The Deputy Commissioner found no substance in the appeal of Shanthamma. He said that she has no evidence in proof of her title. So stating he dismissed her appeal. But Ganeshachar was not so unfortunate. The Deputy Commissioner allowed his appeal in part. He held that the application of Satyanarayana which was admittedly filed after the last date, ought to have been rejected by the Controller. He accordingly set aside the allotment order and remanded the matter for re-notifying the vacancy. This remand order has now been challenged in these two petitions.

The primary question that arises for consideration is whether the Deputy Commissioner was justified in remanding the matter for re-notifyingthe vacancy of the ''Malige''?

I will first examine the contention urged for Ganeshachar. Sec. 4 prohibits the owner of a building from letting or occupying or otherwise using his building which becomes vacant except as provided under the Act. He is required to intimate the Controller the vacancy of the building within 15 days. He shall keep the building vacant for a period of 15 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 S. 8, if any, whichever is later. S. 8 provides procedure to be followed by the Controller for leasing out any building. It requires the controller to call upon the landlord or any other person who may be in possession of the building to show cause within 7 days why the building should not be ordered to be leased to a, public authority or other person as may be specified in the notice. After considering the causes, if any, shown by the landlord or other person in possession of the building, the Controller shall, if it is found necessary orexpedient so to do, direct the building to be leased to such public authority or other person specified in the notice. Upon the service of such order, the landlord shall deliver possession of the building to the authority or other person to whom the building is directed to be leased.

This in short is the procedure provided under the Act for the purpose of regulating the allotment of buildings which have fallen vacant. This procedure presupposes that whenever a vacancy is notified by the Controller, there would be applications from persons or authority for allotment. This presumption may not be unreasonable because there has always been a scarcity of accommodation everywhere and too many persons chasing too little vacancy. But cases do arise where applications are not received in response to the notification by the Controller. The Act expressly does not provide for disposal of such contingent cases. To find a satisfactory solution insuch cases, we may have to bear in mind the scope of Ss. 4, 6 and 8 of the Act. S. 4 imposes a restriction on the right of the landlord to occupy his building. He is under a statutory obligation to keep the building vacant pending the selection of tenant by the Controller. But if the Controller cannot select the tenant for want of applications, the owner''s right to occupy his building after the prescribed period cannot inmy opinion, be denied. The Act expressly or by necessary implication imposes no such interdict on the owner. The court, therefore, should not periodically draw upon unformulated purpose or direction. Nothing prevents the owner from occupying the building in the absence of an order of allotment by the Controller. The Controller cannot prevent the owner from doing so on the ground that he would re-notify the vacancy and hold another enquiry. The Act contemplates only one enquiry and not more than one in respect of a vacancy-

Similar was the view taken by the Full Bench of this court in M.A. Sharada Bai v. State of Mysore, (1968) 2 Mys.L.J. 384. While dealing with the scope of the relevant provisions of the Act, Govinda Bhat, J. (as he then was) speaking for the Full Bench observed:

"...The statutory obligation to keep the building vacant imposed by sub-section (2) of S. 4 pending the selection of tenant by the Controller, comes to an end within one week after the termination of the proceedings under S. 8. The Act imposes no restriction on the right of the landlord to occupy his building after the proceedings under S. 8 come to an end except where the Controller has directed the building to be leased to a tenant selected by him."

And he continued:

"On an examination of the scheme of the Act and its relevant provisions we are of opinion, that the Act contemplates only one enquiry by the Controller after receipt of intimation of vacancy of the building".

It is clear from these observations that the Act imposes not restriction on the right of the landlord to occupy his building after the termination of the proceedings under S. 8 except where the Controller has directed the building to be leased to a tenant selected by him. What follows from this discussion is that when there are no applications filed before the prescribed date in response to a notification of the vacancy, the Controller cannot re-notify the same. He must close the proceedings leaving the owner to occupy the premises.

In the view that I have taken, it must be held that the Deputy Commissioner was not justified in remanding the matter for re-notifying the vacancy. This conclusion is sufficient to dispose of both the writ petitions, although counsel for Shanthamma urged that she has had no opportunity before the Controller to have her say. It will be unnecessary to consider that contention. Since there was no valid application in response to the notification issued by the Controller, there was no obligation on the Controller to hear any one of the petitioners. The ''Malige'' reverts back to the person entitled to, and if any person has grievance against the other, he or she may agitate the claim in other appropriate proceedings and not before the Rent Controller.

In the result, the rule in W.P. No. 13699 of 1979 is made absolute. The orders impugned therein are quashed. The rule in W.P. No. 15627 of 1979 is discharged. In the circumstances, I make no order as to costs.