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S.A. Hokrani Vs. S. Kouslyabai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1742 of 1981
Judge
Reported inAIR1985Kant138; ILR1984KAR825
ActsKarnataka Rent Control Act, 1961 - Sections 8(2); Karnataka Rent Control Rules, 1961 - Rule 4(1)(B), 4(B) and 4(B)(8)
AppellantS.A. Hokrani
RespondentS. Kouslyabai and ors.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateM.R. Achar, Govt. Adv., ;K. Narayan and ;C.R.V. Swamy, Advs.
Excerpt:
.....of appointment and removal and of making rules for the conditions of services. it is well settled canon of construction that the context lends colour to the words and while construing the words, it is necessary to bear in mind the object and the intention of the legislature. if the expression officer of the government is to be given a narrow meaning and is to be understood to mean only an officer serving under the executive then the very object or intent of the provisions to provide residential accommodation to all persons belonging to the civil service of the state would be defeated......4(b) of the rules. this court held that the words used in proviso to s. 8 are any officer of the state government or of the general government' (the same words are also used in r. 4(b) of the rules). the petitioner being an official on the establishment of the high court, cannot be considered as a servant of the state government and therefore, the divisional commissioner had no authority to issue any direction under proviso to sub-sec. (2) of s. 8 of the act. similarly, the petitioner not being a state government servant, he is also not entitled to claim preference under r. 4(b) of the rules. in mohammad yacoob hussain's case this court has relied on the decision in p. k. bose v. chief justice, calcutta high court, : [1955]2scr1331 .6. s. 8 of the act reads:'8. procedure to be followed.....
Judgment:

Mahendra, J.

1. On a reference made by the learned single Judge this writ petition is posted before us for hearing.

2. The petitioner having now retired from service he is no longer interested in prosecuting the petition. But as the question that arises for consideration in this case is of considerable importance, we propose to consider the merit of the contentions rose in this case.

3. The facts of the case are these:

The landlady of premises No. 51/1, Out house, Surveyor Street, Basavangudi, Bangalore-4 reported the vacancy, of the premises to the Controller, Bangalore City, Bangalore and requested for release of the premises for her occupation. After this vacancy was notified, the petitioner and seven others applied for allotment of the premises. The petitioner had also obtained a direction by the Divisional Commissioner under S. 8(2) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act'), for allotting the premises in his favour. The Controller held that the claim of the landlady was not genuine and reasonable. He held that in view of the enunciation made in Mohammad Yacoob Hussain v. Mahendra Kaur, (1978) 1 Kant LJ 174: (AIR 1978 NOC 178) (Kant), the petitioner is not entitled for the issue of a direction under S. 8(2) of the Act in his favour and is also not entitled to claim any preference under R. 4(l) (B) of the Karnataka Rent Control Rules, 1961 (hereinafter referred to as the 'Rules'), and allotted the premises to one C. S. Anantharaman, Upper Division Clerk, in the Office of the General Manager Telecommunications, Bangalore-9. Aggrieved by the said order both the landlady and the petitioner filed appeals before the Special Deputy Commissioner, Bangalore District, Bangalore and both the appeals came to be dismissed. The claim of the petitioner was negatived following the decision of this Court in Mohammad Yacoob Hussain's case. The petitioner, in this writ petition, has challenged the said order.

4.The learned single Judge being of opinion that the decision of this Court in Mohammad Yacoob Hussain's case needs reconsideration, has referred this case for disposal by a Division Bench.

5. In Mohammad Yacoob Hussain's case (AIR 1978 NOC 178) (Kant) the facts were almost similar. The petitioner was an official on the establishment of the High Court. He claimed allotment both on the ground that there was a direction in his favour by the Divisional Commissioner under sub-sec. (2) of S. 8 of the Act and also on the ground that he was entitled for preference or priority in allotment under R. 4(B) of the Rules. This Court held that the words used in proviso to S. 8 are any officer of the State Government or of the General Government' (The same words are also used in R. 4(B) of the Rules). The petitioner being an official on the establishment of the High Court, cannot be considered as a servant of the State Government and therefore, the Divisional Commissioner had no authority to issue any direction under proviso to sub-sec. (2) of S. 8 of the Act. Similarly, the petitioner not being a State Government servant, he is also not entitled to claim preference under R. 4(B) of the Rules. In Mohammad Yacoob Hussain's case this Court has relied on the decision in P. K. Bose v. Chief Justice, Calcutta High Court, : [1955]2SCR1331 .

6. S. 8 of the Act reads:

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

(1) Before issuing any order under S. 5 or S. 6 the Controller -

(2) In selecting the public authority or other person in whose favour an order may be issued under this section, the Controller shall observe such order of priority as may be prescribed:

Provided that where the State Government, or in respect of any area, any officer not below the rank of a Deputy Commissioner authorised by the State Government in this behalf, directs that any building shall be leased to any public authority or any officer of the State Government or of the Central Government, the Controller shall, subject to the provisions, of sub-secs. (3), (4) and (5), make an order under this section in favour of such public authority or officer, as the case may be:

Provided further that no such direction shall be issued in favour of any person, who or any member of whose family owns a residential building in the same city, town or village in which the building is situated.

(3) to (5) ..........................'

7. The priority to be observed by the Controller is prescribed by R. 4 of the Rules which reads:

'Order of priority: - (1) Where no direction is issued under the proviso to sub-sec. (2) of S. 8, the Controller shall observe the following order of priority in selecting the public authority or other person in whose favour an order may be made under the said section namely: -

(A) In case of non-residential buildings: -

(1) to (10) ..................

(B) In case of residential buildings: -

(1) to (7) ..............

(8) Officers employed under the State Government who are not in possession of any alternative accommodation;

(9) Officers employed under the Central Government who are not in possession of any alternative accommodation;

(10) to (15) ................'

8. Sub-section (1) of S. 8 of the Act directs that before issuing any order under S. 5 or 6 of the Act, the Controller, shall serve notice calling upon the landlord or any other person in possession, to show cause within seven days of service of notice why the building should not be leased to a public authority or other person specified in the notice. Sub-sec. (2) of S. 8 of the Act directs the Controller to observe such order of priority as may be prescribed under the Rules, in selecting the Public Authority or other person in whose favour an order may be made leasing any building under S. 8 of the Act. The proviso to sub-sec. (2) of S. 8 of the Act further directs the Controller to make an order leasing the building to any 'Public Authority' or any 'Officer of the State Government or the Central Government' to whom the State Government or the authorised officer has directed, to lease the building.

9. The Controller has therefore, in the first instance, to order the leasing of the building in favour of the public authority or any officer of the State Government or Central Government to whom the State Government or the authorised officer directs the building to be leased. When no such direction is issued by the State Government or the authorised officer the Controller is required to follow the order of priority prescribed in R. 4, and select the public authority or other person in whose favour an order may be made leasing the building. It is only thereafter the Controller may make an order leasing the building under Ss, 5 and 6 of the Act.

10. A direction under proviso to sub-sec. (2) of S. 8 of the Act can only be issued in favour of a public authority or any officer of the State Government or of the Central Government. Under R. 4(B) it is only 'Officers employed under the State Government or under the Central Government' who are entitled to claim preference.

11. The question for consideration is whether the petitioner who is an officer on the staff of the High Court comes within the meaning of the expression 'an officer of the State Government' eligible to secure a direction in his favour under sub-sec. (2) of S. 8 of the Act and whether he is entitled to claim preference under R. 4(B) of the Rules.

12. We may at this stage, refer to Pradyat Kumar Bose's case : [1955]2SCR1331 . The appellant who was the Registrar and Accountant General of the High Court of Calcutta was dismissed from service, by an order made on 3-9-1951 by the Chief Justice. His writ petition challenging the order of dismissal was dismissed by the Calcutta High Court. In his appeal before the Supreme Court one of the questions raised was that the appellant was entitled to the protection under Art. 320(3)(c) of the Constitution and the order of dismissal was therefore vitiated.

13. Art. 320(3)(c) of the Constitution so far as is relevant for our purpose reads thus:

'The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity including memorials or petitions relating to such matters'.

14. The Supreme Court had to consider whether a person belonging to the staff of a High Court comes within the scope of the words 'a person serving under the Government of India or the Government of a State in a civil capacity. The provisions in Chapter I of Part X IV of the Constitution relating to the services show that several Articles in this Chapter describe the services to which the Articles relate by a variety of terminology. The appropriate Legislature is vested with the power to regulate requirement and conditions of service 'of persons appointed in public services and posts in connection with the affairs of the Union or of any State.' Under Art. 309 'Every person who is a member of a civil service of the Union or holds any civil post under a State' holds office during the pleasure of the President or, as the case may be, of the Governor of the State. The two constitutional safeguards, viz., (1) of not being liable to be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him and (2) of not being liable to be dismissed or removed by an authority subordinate to that by which he was appointed, are available under Art. 311 'to a person who is a member of a civil service or the Union or of a civil service of a State, or holds a civil post under the Union or a State'. The requirement of consultation with the appropriate Public Service Commission on disciplinary matters is however available under Art. 320(3)(c) to 'a person serving under the Government of India or the Government of a State in a civil capacity'. There is a marked difference in the language used in Art. 320(3)(y) from that in Arts. 310 and 311. The salary, allowances and pensions of officers and members of the staff attached to a High Court are, as provided in Art. 229(3) paid out of the funds of the State and are charged to the Consolidated Fund of the State, The item relating to such administrative expenses has to form part of the annual financial statement to be presented to the State Legislature as is provided under Art. 202 and estimates thereof can be the subject matter of discussion in the Legislature under Art. 203(1). The Supreme Court in P. K. Bose's case therefore observed, 'The officers and members of the staff attached to a High Court clearly fall within the scope of the phrase' persons appointed to public set-vices and posts in connection with the affairs of the State' as under Arts. 310 and 311', and they must be taken 'to hold posts in connection with the affairs of the State and to be members of the Civil Service of the State' and further held the phrase 'persons serving under the Government of India or the Government of a State' seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and a staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the conditions of services. Arts. 53, 77, 154 and 166 of the Constitution show that while the executive power of the Union or the State is vested, respectively, in the President or the Governor and that executive action is to be taken in their respective names, such action is the action of the Government of India or the Government of a State. But the administrative action of the Chief Justice is outside the scope of these Articles. It appears therefore that in using the phrase 'Government of India or the Government of a State' in Art. 320(3)(c), the Constitution had in view the abovementioned demarcation.

15. In P. K. Bose's case : [1955]2SCR1331 the Supreme Court has not held that officers and members of the staff attached to a High Court are not State Government Servants. The Supreme Court has held that such persons are 'persons appointed to public services and posts in connection with the affairs of the State and are members of a civil service of a State' but are not 'persons serving under the Government of a State or the Government of India' and therefore the appellant was not entitled to the protection under Art. 320(3)(c) of the Constitution.

16. Supreme Court had to consider whether the Secretary of a Legislative Assembly is an officer of the Government in Pashupati Nath v. Nem Chandra, : [1984]1SCR939 . In that case the result of the election held for filling a vacancy in the Rajya Sabha by the elected members of the Uttar Pradesh Legislative Assembly was challenged on two grounds. One of which was whether the Secretary of the Legislative Assembly who was neither an officer of the Government nor of a local authority was not qualified to be appointed as the Returning Officer under S. 21 of the Representation of the People Act, 195 1. S. 21 of the Act reads:

'21 Returning Officers. - For every constituency, for every election to fill a seat or seats in the Council of States and for every election by the members of the Legislative Assembly of a State to fill a seat or seats in the Legislative Council of the State, the Election Commission shall, in consultation with the Government of the State, designate or nominate a returning officer who shall be an officer of Government or of a local authority'.

It was contended that the word 'Government' in the expression an officer of Government' used in S. 21 means the executive Government only and an officer of the Legislature not being an officer of such Government he was not qualified for being appointed as a Returning Officer. The Court observed 'in our Constitution which has a federal structure there are both at the level of the Union and at the level of the State detailed provisions, pertaining to the Legislature, the Executive and the Judiciary. All the three organs are concerned with the governing of the Country the first organ makes the laws the second enforces them and the third interprets them though sometimes their functions may be overlapping. In this sense all the three organs together constitute the Government at their respective level... There is no watertight compartment between the three major organs of the State' and further held that even though a person who works as an officer of the State Legislature and 'belongs under Art. 107 of the Constitution to the staff of a State Legislature he is still an officer of the Government in the broad sense in which the expression Government is used under Arts. 102(1)(a) and 191(1)(a) of the Constitution. If the expression 'Government' is construed as meaning the executive Government only then it would defeat the very purpose of the provisions of the Constitution. Similarly he has to be treated as an officer of the Government for purposes of Section 21 of the Act also, qualified for being appointed as the Returning Officer for an election held under the Act' and held 'We are of the view that the word 'Government' in Article 102(1)(a) and Article 191(1)(a) of the Constitution and the word 'Government in the expression' an officer of Government in Section 21 of the Act should be interpreted liberally so as to include within its scope the Legislature, the Executive and the Judiciary'.

17. The resulting position therefore is the Legislature, the Executive and the Judiciary the three organs of (he State which are concerned with the governing of the Country together constitute 'Government' at their respective level. Persons employed and serving under the Legislature, the Executive or the Judiciary are persons appointed to public services and posts in connection with the affairs of the State, are members of the Civil Service of the State and are 'Government Servants. Whether the word 'Government' in any provision of a statute is used to mean only the executive Government or is used to include the other organs of the State, namely, the Legislature and/or Judiciary depends upon the circumstances and the context in which the expression 'Government' is used. It is well settled canon of construction that the context lends colour to the words and while construing the words, it is necessary to bear in mind the object and the intention of the legislature. A word has therefore to be interpreted or construed so as to advance the legislative intention or object and not to hamper or defeat it.

18. The object and the legislative intent of-the Act is to provide for the control of rents and evictions, for leasing of buildings, to control rents of hotel and lodging houses and for certain other matters connected therewith. The Act therefore regulates the leasing of premises, the rent to be paid for the premises and for recovery of possession of the premises leased etc. Ss. 5 and 6 of the Act regulate the leasing of the premises by the Controller, S. 8 of the Act provides that before making an order leasing the premises under Ss. 5 and 6 of the Act, the Controller shall make an order leasing the premises in favour of a public authority or any officer of the State Government or of the Central Government, to whom the State Government or the authorised officer directs the premises to be leased and, when there is no such direction, select the public authority or other persons following the order of priority prescribed under the Rules. Sub-sec. (in) of S. 3 of the Act defines the expression 'persons' to include the State Government or the Central Government. The definition is extensive and is not restrictive. That is, the definition enlarges and not restricts the meaning of the expression 'person'. 'The benefit of priority prescribed under the Rules is therefore not restricted to only Government servants but is extended to other persons also. The order of priority to be observed in selecting a public authority or other person, in the case of non-residential buildings is prescribed in R. 4(A) and in the case of residential buildings, prescribed in R. 4(B) of the Rules. Under R. 4(B) of the Rules priority is given to Government of Karnataka for providing accommodation to any Minister, Judge, of tile High Court or Tribunal, Members of the Legislature, the Presiding Officers of the Legislature, Deputy Presiding Officers, Government whips of both the Houses, Members of any Committee or Board or Corporation or its employees. The persons who are entitled to the benefit of priority under this rule are not at all Government servants. Under R. 4(B)(8) officers employed under the State Government who are not in possession of any alternative accommodation are given priority. The intent and object of the legislature appears to be to provide residential accommodation to all persons including all the officers of the State Government because all such persons and all such officers of the Government whether they are working in the Executive Government, the Legislature or the Judiciary need buildings for their residence and providing accommodation to such persons and such Government servants is in the public interest. If the intention of the legislature is not to provide accommodation to all the Government servants but to only such of the officers serving under the executive only, the legislature would have used the expression 'any officer serving under the Government' or' any officer under the administrative control of the Government'. Priority is given under the Rules to the Judges of the High Court, Officers and staff of the subordinate Courts. It is, therefore, difficult to believe that the legislature intended to exclude the officers and members of the staff of the High Court from getting the benefit under the aforesaid provisions. If the expression officer of the Government is to be given a narrow meaning and is to be understood to mean only an officer serving under the executive then the very object or intent of the provisions to provide residential accommodation to all persons belonging to the civil service of the State would be defeated.

19. The State Government in the Statement of Objects filed refers to the object or the intention in using the word 'Government' and has also taken the stand that 'in view of the object and purpose of the Act and also considering the context the Legislature has used the expression 'any officer of the State Government' so as to cover the officers discharging their duties and holding posts in connection with the affairs of the State; which includes the officers who are appointed in all the three wings of the State, viz., the Executive, the Legislature and the Judiciary. The expression found in the proviso is not meant to restrict the benefit of the said proviso only to the officers of the executive of the State Government and 'the Rule making Authority and the Legislature did not intend to exclude the officials of the High Court from getting the benefit under the aforesaid provisions.'

20. We are, therefore, of the view that the word 'Government' in the expression 'officers of the State Government' in sub-see. (2) of S. 8 of the Act and in the expression 'officers employed under the State Government' in sub rule (8) of R. 4(B) of the Rules should the interpreted or understood to include within its scope or ambit all persons appointed to civil posts in the State who are under the administrative control of the Executive, or the Legislature or the Judiciary. Officers and Members of the staff of the High Court are therefore eligible to secure a direction in their favour under the sub-section (2) of S. 8 of the Act and are also entitled to the priority prescribed under R. 4(B) of the Rules.

21. The decision of this Court in Mohammad Yacoob Hussain's case (AIR 1978 NOC 178) (Kant) does not lay down the law correctly and we overrule the said decision.

22. As already noticed the petitioner having since retired is no longer interested in prosecuting the Writ Petition and it is therefore not necessary to quash the impugned order and issue any direction, this Writ Petition.

23. This Writ petition is disposed of in the above terms.

24. Ordered accordingly.


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