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M.A. Sharada Bai Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2101 of 1965
Judge
Reported inAIR1969Kant162; AIR1969Mys162; ILR1968KAR368
ActsMysore Rent Control Rules, 1961 - Sections 4, 4(1), 4(2), 6, 8 and 8(4)
AppellantM.A. Sharada Bai
RespondentState of Mysore and ors.
Excerpt:
.....limited to period specified in section 4 (2) during which he is under statutory obligation to keep building vacant - rights of landlord after termination of proceedings under section 8 are not controlled by section 4 (2) but by other provisions of para 2 of act. (ii) validity - whether rule 3 (ii) ultra vires the act - stage at which controller is required to consider cause shown by landlord is when he determines whether he is satisfied or not about the necessity or expediency of making order under section 8 (4) - incase building is bona fide required by landlord for occupation by himself he may satisfy controller that it is not necessary or expedient to make order directing building to be leased - where controller make order to that effect landlord is free to occupy the building -..........(4)...................................(omitted as unnecessary)section 5:order of leasing of vacant building. (1) the controller may, by order in writing served on the landlord, direct that any vacant building whether intimation of its vacancy has been given by the landlord under sub-section (1) of section 4 or not, be given on lease to such public authority or other persons as he may think fit. explanation:--a building may be directed to be leased under this section notwithstanding that it is subject to an agreement of lease or has been let or occupied in contravention of sub-section (2) of section 4. (2).....................(omitted as unnecessary)section 8:procedure to be followed before ordering leasing of any building for a public authority or other person.(1) before issuing.....
Judgment:

Govinda Bhat, J.

The questions referred to the Full Bench are:

1. Whether under sub-section (2) of Section 4 of the Act, the only restriction imposed on a landlord is that he shall not let, occupy or permit to be occupied building referred to in sub-section (1) for a period of 15 days from the date on which intimation of vacancy 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, and whether the said restriction will stand removed on the Controller granting permission to the landlord?

OR

Whether the restriction above referred to is an absolute restriction and whether the permission of the Controller is an additional requirement to be complied with by the landlord even after the termination of the periods specified in the said sub-section (2)?

2. If the answer is in the affirmative to the first alternative to the first alternative in the above question, then is sub-rule (ii) of Rule 3 of the Rules ultra vires of the Act, in so far as it (the sub-rule) leaves no discretion but requires the Controller to--

(i) send immediately after the receipt of the intimation of vacancy, a copy of the intimation of vacancy and report the date to which the case stands posted, to the State Government or the Officer authorised under the proviso to sub-section (2) of Section 4; and

(ii) notify on the notice board of his office the particulars of the building that has fallen vacant and the date on which the case stands posted.

OR

Is that sub-rule to be construed as being applicable only when no permission has been given under sub-section (2) of Section 4, by the Controller to the landlord?

3. Whether the Controller can permit a landlord to occupy his building which has become vacant, before considering any application for allotment of that building, that may be made under Rule 6 of the Rules and received by the Controller within the date of hearing specified by the Controller under Rule 3(ii) (for considering the causes, if any, shown by the landlord or other person)?

2. In order to appreciate the questions referred to the Full Bench, it may be useful to briefly state the facts of the case and the contentions urged by the parities. The petitioner who is a landlord of a residential building in Bangalore City reported its vacancy to the Controller appointed under the Mysore Rent Control Act, 1961, hereinafter referred to as the 'Act'. In the letter of intimation of the vacancy submitted in Form No. 1 as prescribed under the Mysore Rent Control Rules, 1961, hereinafter called the 'Rules' the petitioner stated that the building was required for her bona fide occupation and that it is not proposed to be relet and therefore permission may be granted to her to occupy the same. The Controller (Respondent No. 3) on receipt of the said vacancy intimation examined the petitioner and made an order rejecting her request and then notified the building for allotment. Against the said order the petitioner preferred an appeal to the Deputy Commissioner, Bangalore Urban District (Respondent No. 2) who after hearing the petitioner's advocate made an order on the 10th September 1965, dismissing the appeal, holding that the procedure followed by the Controller was not regular, that the petitioner's request for permission to occupy the building ought to have been considered after the Controller initiated proceedings under Section 8 and therefore, the appeal was premature.

The material portion of the order of the Deputy Commissioner (R. 2) reads thus:

'I have considered the arguments of the learned counsel and perused the records. The procedure that the House Rent Controller has followed in this case appears to be not clear. There was no reason as to why he made an enquiry into the request made by the appellant even before he gave a date for hearing the appellant and other applicants. The appellant has herself expressed her desire to occupy the premises. She has to wait for a period of 15 days from the date of intimation of vacancy before she could occupy the premises herself. During this period the learned House Rent Controller has to notify the vacancy and if there are applications, enquire into the matter and if the landlady herself desires to occupy the premises and if he is satisfied of her bona fides he could permit her to occupy the premises. But the learned counsel for the appellant says that the House Rent Controller need not have notified the vacancy. The request made is not in accordance with the procedure laid down in rule 3 of the House Rent Control Rules, which lays down that immediately after the receipt of intimation of vacancy of any building the Controller shall notify the notice board of the office the particulars of the building given in items 1, 2 and 9 of Form 1. It goes without saying that only on the date of hearing the Controller has to consider the needs of the landlady-appellant and if her needs are genuine as made out in her statement, from independent enquiries and also from the statement of other applicants he should decide the issue and permit the appellant to occupy the premises herself. If he finds that there are no bona fides he should allot it to other applicants.

In view of the above provision, in the rules, the appeal cannot be allowed at this stage. If the appellant is aggrieved by the final orders passed by the learned House Rent Controller, she might come up in appeal again to this Court. The appeal is therefore dismissed.'

3. Aggrieved by the order of Respondent No. 2, the petitioner approached this Court for relief under Art. 226 of the Constitution of India in which she has urged that under the scheme of the Act, the controller can take proceedings under Section 8 only after deciding whether or not he should grant permission to the landlord to occupy the building; and that Rule 3(ii) is repugnant to sub-section (2) of Section 4 of the Act and therefore ultra vires. On the said contention, the Division Bench before whom the matter came up for hearing, referred the above questions for decision of the Full Bench.

4. The question for decision in the writ petition is whether the Controller, before initiating proceedings under S. 8 of the Act in respect of a building vacancy intimation of which has been given under section 4(1) is required to decide whether or not the building is bona fide required by the landlord for occupation by herself and therefore no order directing the leasing of the building is necessary or expedient or whether that matter has to be decided at the stage of making an order under sub-section (4) of section 8?

5. The contention of the learned counsel for the petitioner was that sub-section (2) of Section 4 empowers the Controller to grant permission to the landlord to let, occupy or permit to be occupied a building referred to in sub-section (1) and that power is required to be exercised before the Controller initiates proceedings under section 8. His argument was that as Section 8 contemplates the ordering of leasing of any building to any public authority or other person selected by the Controller and the question of the landlord being directed to leave the building to himself is inconceivable, the claim of the landlord that the building is bona fide required for self occupation and therefore should not be directed to be leased, should necessarily be decided before starting proceedings under section 8. He further argued that sub-rule (ii) of Rule 3 which requires the Controller to specify a date of hearing for considering the causes, if any, shown by the landlord and other persons in response to the notice issued under sub-section (1) of Section 8 immediately after the receipt of intimation of vacancy of any building before deciding the request of the landlord for permission to occupy, is repugnant to sub-section (2) of section 4 of the Act.

6. The provisions of the Act and the Rules relevant for purpose of deciding the questions referred to us are Sections 4, 5 and 8 and Rule 3. The said provisions read thus:

'Section 4:--

Intimation of vacancy by landlords:--

(1) Every landlord shall, within fifteen days after the building becomes vacant by his ceasing to occupy it or by the termination of a tenancy or by the eviction of the tenant or by the release of the building from requisition, or otherwise, give intimation by registered post to the Controller:

Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to sub-section (1) of section 21 or to any building which has been released from requisition for the use and occupation of the landlord himself.

(2) A landlord shall not without the permission of the Controller let, occupy or permit to be occupied building referred to in sub-section (1) without giving intimation 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.

(3)..................................(Omitted as unnecessary)

(4)...................................(Omitted as unnecessary)

Section 5:

Order of leasing of vacant building.

(1) The Controller may, by order in writing served on the landlord, direct that any vacant building whether intimation of its vacancy has been given by the landlord under sub-section (1) of section 4 or not, be given on lease to such public authority or other persons as he may think fit.

EXPLANATION:--A Building may be directed to be leased under this section notwithstanding that it is subject to an agreement of lease or has been let or occupied in contravention of sub-section (2) of section 4.

(2).....................(omitted as unnecessary)

Section 8:

Procedure to be followed before ordering leasing of any building for a public authority or other person.

(1) Before issuing any order under Section 5 or Section 6, the Controller--

(a) shall call upon the landlord or any other person who may be in possession of the building by notice in writing to show cause, within seven days from the date of the service of such notice on him, why the building should not be ordered to be leased to a public authority or other person as may be specified in the notice; and;

(b) may, by order direct that neither the landlord nor any other person shall without the permission of the Controller dispose of or structurally alter the building or let it out to a tenant or occupy it or use it until the expiry of such period not exceeding one month, as may be specified in the order.

(2)...........(omitted as unnecessary)

(3)............(omitted as unnecessary)

(4) 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:

(5)............(omitted as unnecessary)

Rule 3:--

Intimation of vacancy and notification of vacancies:--

(i) The intimation of vacancy of the building to be given by a landlord under sub-section (1) of Section 4 shall be in Form 1 in triplicate.

(ii) Immediately after the receipt of intimation of vacancy of any building the Controller shall specify a date of hearing for considering the causes, if any, shown by the landlord and other persons. He shall send a copy of the intimation of vacancy and report the date to which the case stands posted for selecting the public authority or person in whose favour an order may be made under section 8, to the State Govt. or where an officer has been authorised under the proviso of sub-section (2) of Section 8, to such officer and shall notify on the notice board of his office the particulars of the building given in items 1, 2, 4 and 9 of Form I, and also notify the date to which the case stands posted and shall keep a copy of the intimation in the office for the inspection of all persons desiring to see it.'

7. The object of the Act, as stated in its preamble, inter alia, is to provide for the control of the leasing of buildings. The right of owners of buildings to occupy or let their buildings is restricted by the provisions of the Act contained in Part II. Under the scheme of the Act, the object of control of the leasing of the buildings, is ought to be achieved by the Controller making a selection of the tenant in respect of a vacant building to be let or relet and the landlord being directed to lease the same to the tenant selected by the Controller. The tenant selected by the Controller is deemed to be the tenant of the landlord with effect from the date on which the possession of the building is delivered. If the landlord fails to deliver possession of the building to the tenant selected by the Controller, the Controller or any officer authorised by him, is empowered to take possession of the building after removing all obstructions and give possession to the tenant (vide Section 10 of the Act).

The Act by Section 4(1), imposes a statutory obligation on every landlord to give intimation of vacancy within fifteen days after the building becomes vacant. It further forbids every landlord from letting or occupying a building which has become vacant without giving intimation of vacancy (vide sub-section (2) of Section 4). This restriction prohibiting every landlord from letting or occupying a building which has become vacant without giving intimation of vacancy to the Controller is intended to achieve the object of the Act. Where the landlord gives intimation of vacancy as provided under the Act, pending orders making the selection of the tenant, the landlord is under a statutory obligation to keep the building vacant for the duration of the period prescribed in sub-section (2) of Section 4 viz., a period of fifteen days from the date on which the intimation of vacancy 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. The statutory obligation imposed on every landlord, to so keep vacant such building during the said period is not an absolute restriction; the statute empowers the Controller to relax that restriction. The scope and ambit of that power of the Controller under sub-section (2) of section 4 will be considered a little later.

8. Immediately on receipt of intimation of vacancy, the Controller is required to take the following steps;

(a) He shall issue a notice as provided under clause (a) of sub-section (1) of Section 8 calling upon the landlord to show cause, within seven days from the date of service of such service, why the building should not be ordered to be leased to a public authority or other person as may be specified in the notice.

(b) He shall specify a date of hearing for considering the causes, if any, shown by the landlord and other persons and take all steps as required by sub-rule (ii) of Rule 3.

(c) He may by order direct that neither the landlord nor any other person shall without his permission dispose of or structurally alter the building or let it out to a tenant or occupy it or use it until the expiry of such specified period not exceeding one month, as may be specified in the said order (vide Section 8(1)(b)).

(d) On consideration of the causes, if any shown by the landlord on the date fixed for hearing, if he is satisfied that it is necessary or expedient to direct the building to be leased, he shall make an order to that effect directing the leasing of the building to such public authority or other person as may be specified in the order (vide sub-section (4) of Section 8). A copy of such order is required to be served on the landlord (vide section 5).

9. It follows from the language of Section 8(4) that where the Controller is satisfied that the landlord bona fide requires the building for his occupation, he shall make an order stating that he is satisfied that it is not necessary or expedient to direct the building to be leased. When such an order is made which enables the landlord to occupy the vacant building, the Controller does not make any allotment in favour of the landlord as in the cases arising under section 6. The statutory obligation to keep the building vacant imposed by sub-section (2) of Section 4 pending the selection of the tenant by the Controller, comes to an end within one week after the termination of the proceedings under Section 8. The Act imposes no restriction on the right of the landlord to occupy his building after the proceedings under Section 8 come to an end except where the Controller has directed the building to be leased to a tenant selected by him.

10. The permission of the Controller contemplated under sub-section (2) of section 4 of the Act, in our opinion, relates to and is confined to the period during which the landlord is under a statutory obligation to keep the building vacant. It was not the intent of the legislature to impose any absolute restriction requiring the landlord to keep the building vacant without any power of relaxation. It is possible to envisage circumstances where a landlord may need his vacant building for the duration of the period specified under sub-section (2) of Section 4: he may need his building to celebrate a wedding or other functions. It may happen that the order made by the Controller under Section 8 directing the building to be leased to any particular person is appealed either by the landlord or by other competing applicants and in such circumstances the tenant selected may not occupy the building. During the pendency of the proceedings under Section 8, the Controller is empowered to permit the landlord to let or occupy the building subject to the final result of the proceedings.

11. If we accept the contention of the learned counsel for the petitioner that Section 4(2) empowers the Controller to finally decide at the very outset the request of the landlord for permission to let or occupy the building and that where the Controller grants the permission, no proceedings under Section 8 could be taken, such as a construction is capable of defeating the purpose of the Act, conferring unguided power on the Controller and giving scope to much abuse of power. If the matter were to be finally decided before taking proceedings under Section 8, the public authorities and the members of the public would have no opportunity to oppose the request of the landlord and the matter will have to be decided by the Controller solely on the representation of the landlord. The Controller will have no adequate means of finding out the truth or otherwise of the case alleged by the landlord; but, if the landlord's claims were to be decided under Section 8(4) the public authorities and the members of the public who may be interested in securing the building on lease, would be in a position to place all materials necessary for decision by the Controller.

If the case of the landlord is considered under sub-section (4) of Section 8, no injustice will be caused to any party and the purpose of the Act, in our opinion, would be better served. The proceedings under Section 8 are expected to terminate expeditiously. While section 8 provides for the landlord to show cause against the proposal to direct the building to be leased to any public authority or other person selected by the Controller and for the controller to make an order after considering the causes shown by the landlord, there is no such provision for enquiry at an earlier stage before the commencement of the proceedings under Section 8. On an examination of the scheme of the Act and its relevant provisions, we are of the opinion, that the Act contemplates only one enquiry by the Controller after receipt of intimation of vacancy of the building. The permission contemplated under sub-section (2) of section 4 of the Act, in our judgment, is intended to be only for the duration of the period specified therein.

12. It is necessary to notice one more argument advanced by the learned counsel for the petitioner that if permission is granted to the landlord to occupy the building under sub-section (2) of Section 4 the building ceases to be a vacant building and it is only in respect of a vacant building that the Controller may make an order in writing directing the building to be leased and therefore, if the interpretation we have given is accepted, it will lead to the result that the Controller is empowered to direct the leasing of a building which is not vacant. The order directing the building to be leased is made under sub-section (4) of Section 8; the jurisdiction to make the order under section 8(4) is in respect of a building vacancy intimation of which has been given or should have been given by the landlord under Section 4(1). If permission under Section 4(2) is given to the landlord to occupy the building until the termination of the proceedings under Section 8, the building does not cease to be a building in respect of which the Controller has jurisdiction to make the order under Section 8(4).

13. For the reasons mentioned above, we answer the questions referred to the Full Bench as follows:--

Question 1 and 3:

Section 4(2) prohibits a landlord from letting, occupying or permitting to be occupied a building referred to in sub-section (1) without giving intimation of vacancy to the Controller. The said restriction imposed by the statute is absolute. Where the landlord gives intimation of vacancy the restriction on his rights is limited to the period specified in sub-section (2) of Section 4 during which he is under a statutory obligation to keep the building vacant. That restriction however is relaxed or removed where the Controller grants permission to let, occupy or permit to be occupied; but such permission is limited to and operative only for the period specified in Section 4(2) and cannot extend beyond that period. The rights of the landlord after the termination of the proceedings under section 8 are controlled not by Section 4(2) but by other provisions of Para II of the Act.

Question 2:

The stage at which the Controller is required to consider the cause shown by the landlord is when he determines whether he is satisfied or not about the necessity or expediency of making an order under sub-section (4) of Section 8. If the building is bona fide required by the landlord for occupation by himself, he may satisfy the Controller that it is not necessary or expedient to make an order directing the building to be leased. Where the Controller, on being satisfied with the cause shown, makes an order to the effect that it is not necessary or expedient to direct the building to be leased to a tenant to be selected by him, the landlord is free to occupy the building.

Rule 3 (ii) is not repugnant to section 4(2) of the Act and therefore valid.

Reference answered accordingly.


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