Sameeulla Khan vs Spl. Dy. Commr., Bangalore and Others

In this petition under Art. 226 of the Constitution, the petitioner has challenged the order dated 5-5-1979 of the Special Deputy Commissioner, Bangalore District, Bangalore (hereinafter referred to as the D.C.) in H.R.C. Appeal No. 254 of 1978-79 (Ext. C) affirming the order dated 3-11-1978 of the House Rent Controller, City Area, Bangalore (hereinafter referred to as the Controller) in case No. H.R.C. Misc. 323 of 1970 (Ext. B).

Among others respondent No. 3 is the owner of a non-residential premises or a shop bearing No. B-46 situated at P.B.R. Lane, Police Road Cross, Bangalore-2 (hereinafter referred to as the Shop). In about 1946 or so, respondent No. 3 had leased the shop to one Guru or Swamy on a monthly rent of Rs. 30, who died in about 1972. Some time after the death of the said tenant the petitioner occupied the shop without the knowledge and consent of respondent No. 3 and an order of allotment by the Controller. Evidently, with the object of creating evidence in his favour, the petitioner appears to have sent rents to respondent No. 3 by money order which was refused by him on the ground that he was not his tenant. Undaunted by the said refusal of respondent No. 3, the petitioner instituted a proceeding under S. 19 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act) in the Court of the principal first Munsiff, Bangalore in H.R.C. No. 33 of 1973 seeking the assistance of the said Court for deposit of rents and payment thereto to respondent No. 3 under that provision. Not unnaturally respondent No. 3 opposed the said application made by the petitioner and contended that he was not his tenant Accepting the case of respondent No. 3, the learned principal first Munsiff by his order dated 14-10-1974 rejected the application made by the petitioner in these terms:

"ORDER

Petitioner: Sri K.S.N. Respondent: Sri L.S.R.

Evidence

Pleadings seen-Respondent does not recognise the applicant as his tenant. He is not ready to accept rent. In the proceeding under S. 19, the parties cannot get a finding as to whether petitioner is a tenant or not.

Therefore, nothing more can be done in this case. Proceedings closed.

No costs.

Sd/-

G.S. Visweswara,

Pril. First Munsiff, Bangalore."

Simultaneously the petitioner had also instituted a suit in O.S. No. 1066 of 1973 in the Courtof the III additional first Munsiff, Bangalore against respondent No. 3 and the Corporation of the City of Bangalore for a permanent injunction restraining them from demolishing the shop and disturbing his peaceful possession and enjoyment of the said shop, which was resisted by both the defendants. In that suit, respondent No. 3 reiterated his case pleaded in H.R.C. No. 33 of 1973 and the Corporation denied that any attempt had been made by it to demolish the shop. On a consideration of the evidence placed by the parties, the learned third additional first Munsiff by his judgment and decree dated 24-7-1975 found that the petitioner was not in lawful possession of the shop andthat the Corporation had made no attempt to demolish the shop and the petitioner was not therefore, entitled for an injunction sought by him. Both these proceedings, in which the petitioner has been found to be in unlawful possession have become final.

Another desperate attempt made by the Petitioner under the Act has landed him in this Court. On 11-12-1976, the petitioner made an application before the Controller under Part V-A of the Act for regularisation of his occupation of the shop. As the petitioner had sought for regularisation of a non-residential premises, the Controller prima, facie, taking the view that regularisation of the same was not permissible under Chapter V-A of the Act, issued a notice on 12-5-1978 to the petitioner and respondent No. 3 to show cause as to why action should not be taken against them under S. 4(3) and 10-A of the, Act. In response to the said notice, the petitioner filed a statement praying for regularisation, while respondent No. 3 opposed the said request. In proof of his assertion, respondent No. 3 produced certified copies of the orders passed in H.R.C. No. 33 of 1973 and O.S. No. 1066 of 1973. On a consideration of the contentions urged by the parties, the Controller by his order dated 3-11-1978 found that the petitioner who was in occupation of a non-residential premises un-authorisedly was not entitled for the protection under Part V-A of the Act and directed him to vacate and hand over vacant possession of the shop to the Controller on or before 30-11-1978 failing which to evict him by using force, if necessary. Against the said order of the Controller, the petitioner filed an appeal in H.R.C. Appeal No. 254/78-79 before the D.C. who by his order dated 5-5-1979 had dismissed the same and has affirmed the order of the Controller, the validity of which is challenged by him in this writ petition.

In his petition, the petitioner starts with the narration of the proceedings instituted by him for regularisation and has made reference only to those proceedings before the Controller and the. D.C. He nowhere alludes to the previous proceedings between him and respondent No. 3 in which the civil Court had positively found that he was in unauthorised occupation of the shop.

In his objections, respondent No. 3 while alluding to the previous proceedings noticed by me earlier, has resisted the, claim of the petitioner. He has stated that he had never leased the shop to the petitioner and there is no relationship of landlord and tenant between the parties and the action taken by the Controller to evict the petitioner is justified.

Sri. R.N. Narasimha Murthy, learned counsel for the petitioner contended that under S. 10-A of the Act, it is not open to the Controller to evict the petitioner though he is in unauthorised occupation of the shop and is a tresspasser. Sri B. Thilak Hegde, learned counsel for the third respondent refuted the contention of Sri. Narasimha Murthy and supported the orders of the Controller and the D.C.

At the hearing of the case, Sri. Narasimha Murthy, in my opinion, rightly did not challenge the finding recorded by the Controller and the D.C. that the petitioner was in unauthorised and unlawful occupation of the shop and that respondent No. 3 at no time had recognised him as histenant. According to Narasimha Murthy, S. 10-A or any other provision of the Act does not empower the Controller to evict a person who is in unlawful occupation of any premises and that a decree for eviction of a trespasser can only be legitimately granted by a civil Court and not by the Controller.

In M. Samarendra Naidu v. House Rent and Accommodation Controller, (1967) 2 Mys. L.J. 190, a Division Bench of this Court in somewhat similar circumstances ruled that it was not open to the Controller under the Act to evict a person like the petitioner and that the only remedy open to the owner of the premises was to seek for the eviction of the original tenant and subtenant who were in unlawful occupation by instituting proceedings for their eviction under 9. 21 (f) of the Act. As the ruling rendered by this Court in M. Samarendra Naidu''s case, (1967) 2 Mys. L.J. 190, had the effect of virtually defeating the provisions of the Act, in particular, the provisions made, in Part-II of the Act, the legislature stepped in by enacting Mysore Rent Control (Amendment) Act, 1969 (Mysore, Act 14 of 1969) which came into force on 21st July, 1969 vide Notification No. SO. 1516 dated 21st July, 1969, introducing S. 10-A of the Act conferring power on the Controller to evict a person who, had occupied any premises in contravention of S. 4 of the Act. S. 10-A introduced by the amending Act of 1969 reads thus:

"10-A. Eviction by the Controller: (1) Where in accordance with the provisions of S. 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-sec. (2) of S. 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 sub-sec-(1) fails to appear before the Controller, or haying appeared, fails to satisfy the Controller that ho 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 be specified in the order and deliver possession thereof to the Controller.

3(a) Upon service of an order under sub-sec. (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 Ss. 4, 5, 8, 9, and 10 shall apply to the building as if initimation of vacancy of the building was given to the Controller on the date on which he took possession of it.

(b) The provisions of sub-sec. (2) of S. 10 shall apply to any action taken by the Controller under clause (a)."

The heading of S. 10-A reads "Eviction by the Controller". The heading of the section gives a clue in ascertaining the meaning of the section though the same cannot control the language of the section. S. 10-A in express terms confers power on the Controller to evict a person who is in occupation of a building in contravention of S. 4 of the, Act. S. 4 (1) of the Act directs the landlord to give intimation of vacancy of a building within 15 days of the building becoming vacant. Sub-sec. (2) of S. 4 replaced by the amending Act of 1969, prohibits any person to, let, occupy or otherwise use any building which becomes vacant without intimating the vacancy and without an order of allotment or permission by the Controller. Any building whether residential or non-residential in an area to which the Act applies, unless it is exempted cannot be occupied either by an owner, landlord or any other person except in accordance with the provisions made in Chapter II and an order made thereto by the Controller. Whenever any person occupies a building to which the Act applies in contravention of S. 4 of the Act, sub-sec. (1) of S. 10A requires the Controller to issue a show cause notice to all those persons that have contravened the provisions of the Act in respect of such a building. Sub-sec. (2) of S. 10-A of the Act empowers the Controller on considering the cause shown by those persons to evict a person who is in occupation of a building in contravention of S. 4 of the Act by giving him such time. Possession is required to be delivered to the Controller and not to the owner or the landlord or any other person. 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-sec (3) of S. 10-A effectuates the legislative policy and the intent and the power conferred on the Controller by sub-secs. (1) and (2) of S. 10-A of the Act. Sub-sec. (3) empowers the Controller summarily and forcibly to dispossess a person against whom an order is made under sub-sec. (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 S. 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. As owner of the shop respondent No. 3 has undoubtedly a right to seek the aid of an ordinary civil Court for a, decree for eviction against the petitioner. But that does not in anyway affect the power of the Controller to evict the petitioner and take possession of the shop and deal with its allotment in the manner provided by the provisions made in Part-II of the Act. The language of S. 10-A of the Act is clear, precise and unambiguous terms confers the power to evict a person who is in occupation of a building in contravention of S. 4 of the Act. Even though, the language of S. 10-A is clear, precise and unambiguous Sri Narasimha Murthy relied on S. 13 and various other provisions of the Act that have really no bearing in ascertaining the true scope and ambit of that Section. In my opinion, the attempt made by Sri Narasimha Murthy to unduly restrict the power conferred on the Controller by 3. 10-A of the Act and hold that he has no power to evict the petitioner who is in occupation of the shop in contravention of S. 4 of the Act, is opposed to all canons of construction of statutes and cannot therefore he accepted. As I have found that the petitioner has been in occupation of the shop in manifest contravention of S. 4 of the Act, it follows that the Controller had the power to make an order of eviction against him for which reason the order of the Controller and the order of the D.C. affirming the same does not suffer from infirmity. For these reasons, I hold that there isno merit in the contention of Sri Narasimha Murthy and I reject the same.

Sri Narasimha Murthy next contended that the, power conferred, on the Controller by S. 10-A of the Act to evict a person who is in occupation of a building in contravention of S. 4 of the Act is only discretionary and there was no compulsion to evict such a person and on the facts and circumstances of the case the discretion conferred by that provision should have been exercised in favour of the petitioner. Elaborating his contention Sri Narasimha Murthy maintained that the word "may" used in S. 10-A must be interpreted only as permissive and not as compulsive. In support of his contention that the word ''may'' should be interpreted as permissive Sri Narasimha Murthy strongly relied on the ruling of the Supreme Court in State of U.P. v. Jogendra Singh, AIR 1963 SC. 1618.

Sri Thilak Hegde refuted the contention of Sri Narasimha Murthy and urged that the word ''may'' occurring in S. 10-A of the Act must be interpreted as compulsive and not as permissive. Elaborating his contention Sri Hegde, maintained that if the word ''may'' is interpreted as permissive the whole object and scheme of the Act of regulating the lease of buildings made in Part-II of the Act would be defeated. In support of his contention Sri Hegde strongly relied on the ruling of the Supreme Court in Ramaji Missar v. State of Bihar, AIR 1963 SC. 1088, Division Bench ruling of the Jammu and Kashmir High Court in Collector v. Habibullah-Din, AIR 1967 J & K 44 and the ruling of the High Court of Calcutta in the matter of IndoBurma Wood Products (P) Ltd, AIR 1968 Cal. 198.

Sub-secs. (1) and (2) of S. 10-A no doubt employ the word ''may'' which is generally considered to be permissive and not compulsive. By the use of the word ''may'' itself it would be wrong to hold, that the power conferred on the Controller is only permissive or discretionary. As to whether the word ''may'' has been used as compulsive or not has to be ascertained having regard to the scheme and object of the Act and the context in which those words occur in S. 10-A of the Act.

Earlier, I have, noticed, the object of enacting Part-II of the Act. Part-II of the Act has been enacted primarily to regulate, the lease and. occupation of buildings that are not exempted from the provisions of the Act. The Act itself has beep enacted to regulate the lease and occupation of buildings in areas where there is acute shortage of residential and, non-residential accommodation and control contracts that can otherwise be made by an owner or a landlord of a building. The Act, in particular Part-II of the Act. has been enacted in the public interest or for the public good,. The construction suggested by Sri Narasimha Murthy would entitle every owner, landlord or tenant to induct another person in contravention of S. 4 of the Act and then contend that S. 10-A of the Act is only permissive and therefore, proceedings be dropped. Acceptance of such an argument would really defeat the mandatory provision made for the public good. While exercising his powers under S. 10-A of the Act, the Controller undoubtedly acts in a quasi judicial capacity or as a judicial authority. In interpreting the word ''may'' occurring in statutes where the statute has been enacted for the public good and conferring power on a judicial authority Maxwell in his interpretation of statutes quoted with approval by the Supreme Court in Ramji Missar case, AIR 1963 SC 1088, observed thus:

"Statutes which authorise, persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they ''may'' or shall, if they ''think fit'' or ''shall have power'', or ''that it shall be lawful'' for them to do such acts, a statute appears to use the language of mere permission, but it has beep so often decided as to have become an axiom that in such cases expression may have to say the least-a compulsory force."

On the application of these principles the word ''may'' occurring in S. 10-A of the Act has necessarily to be interpreted only as compulsive and not as permissive. In other words, whenever the Controller finds that a person has occupied a building in contravention of S. 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 S. 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 S. 4 of the Act for which reason the question of directing him to exercise his discretion does not arise. For these reasons I reject the contention of Shri Narasimha Murthy.

Sri Narasimha Murthy, lastly, contended that in the event of my upholding the impugned orders, the petitioner should be granted atleast one year''s time to vacate the shop. Sri Thilak Hegde, though initially opposed the grant of any time, had no objection for granting some reasonable time to the petitioner to vacate the shop. In my opinion having regard to the facts and circumstances of the case and the protracted litigation between the parties it would be reasonable to permit the petitioner to vacate the shop within one month from this day. I therefore, permit the petitioner to vacate the shop within a period of one month from this day.

I have found that the impugned orders do not suffer from any infirmity. Sri Thilak Hegde is right in his submission that the petitioner while invoking the extra-ordinary jurisdiction of this Court should have disclosed all the earlier proceedings between him and respondent No. 3 noticed by me earlier which were within his exclusive knowledge and he has deliberately suppressed them only with the object of securing an admission and an order of stay from this Court. The proceedings narrated by me earlier also reveal the various impermissible and abortive legal proceedings instituted by the petitioner by which he has been able to hold on to the shop for well over 7 years. In these circumstances, I am of the view that this is a fit case in which I should dismiss the petition filed by the petitioner by levying exemplary costs. In my opinion, having regard to all the facts and circumstances of the case, I consider it proper that the petitioner should pay exemplary costs of Rs. 250 to respondent No. 3 in this petition.

In the light of my above discussion, I hold that the rule issued in this case is liable to be discharged with exemplary costs of respondent No. 3.

Rule issued in the case is discharged with costs of respondent No. 3 Advocate''s fee Rs. 250. But, the petitioner is granted one month''s time, to vacate the shop. In case the, petitioner does not vacate and hand over possession of the shop to the Controller within one month from this day, the Controller is thereafter free to dispossess the petitioner or any person claiming under him and take possession of the same to be dealt with in accordance with law.

Let a copy of this order be communicated to respondents 1 and 2 within 7 days from this day.