1. The petitioner Dena Bank, in this proceeding, is represented by its Principal Officer at the Branch Office at Hubli. The Bank is aggrieved by an order dt. 22-12-1983 made by the House Rent and Accommodation Controller, Dharwad in proceedings under S. 10A of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Ace), by which premises No. 103 situated in Hubli within the limits of Hubli-Dharwad Municipal Corporation was held to be vacant and therefore liable to be allotted in accordance with the provisions contained in Part II of the Act and further that the Bank, was in unauthorised occupation of the said premises not being a tenant, Further, the Controller held that one of the officials of the Bank, namely, the Manager was in unauthorised occupation of the premises in question without the same being allotted by the Controller in accordance with the provisions of the Act. Aggrieved by that, the said officer Bank Manager went up in appeal to the Deputy Commissioner the authority prescribed under the Act inter alia contending that the Controller had no jurisdiction to initiate proceedings against him as the Bank was the tenant of the premises under the landlord and that the Bank had been paying rents regularly; that the building was never vacant in the sense that the tenancy had not ceased by operation of law or by mutual consent of the landlord and the tenant and there was, therefore, no vacancy required to be reported and as such, the provisions contained in S. 10A of the Act were not attracted. In substance, the argument was, the Rent Controller's order was without jurisdiction apart from being contrary to the evidence on record and illegal. The Deputy Commissioner disregarded the contentions advanced for and on behalf of the Bank by the Branch Manager and confirmed the order of the Rent Controller. Aggrieved by these two orders, the present Writ Petition is filed.
2. The lst and 2nd respondents in this proceeding are the Special Deputy Commissioner and the Rent Controller. The 3rd respondent is the landlord. It is only the 3rd respondent who is represented before me.
3. From detailed perusal of the orders in question what emerges is that the landlord appears to have setup the Controller to set in motion the law. It is not possible to determine with any degree of certainty the motive of the landlord to commence such action. That when the matter was actually investigated by the Revenue Inspector, it emerges from the evidence, the building was in the occupation of the Branch Manager and therefore, not physically vacant, but on the other hand, it was occupied. But that has not been the basis on which the Rent Controller and the Deputy Commissioner have proceeded but created a vacancy where there was none. On the facts, which were not disputed, their reasoning was that the first Branch Manager who occupied the premises as his residence had vacated it and for a long period the building had not been occupied by the succeeding Branch Manager. But the proceedings themselves were initiated when the succeeding Manager was in occupation of the building. Therefore, the occupation reasoning that the first Branch Manager occupant vacated and there was a vacancy neither reported by the Branch Manager nor, the landlord and that the second Manager occupied the same without an order of allotment by the Rent Controller and it was leased by the landlord as such without reporting the vacancy and liable for action under S. 10-A of the Act. The Bank produced a series of Rent receipts duty signed and admitted as such by the landlord showing that it was the Bank which was the tenant and not the Branch Manager. It was contended on behalf of the Branch Manager and the Bank that the Bank was the tenant and the Bank never terminated the tenancy and therefore, merely keeping the house in question vacant for an indefinite period did not in itself attract the provisions of the Act having regard to S. 4 of the Act. That argument has not been accepted.
4. Before me Mr. Dayanand Karanth has contended that once the proceedings are initiated without jurisdiction, any evidence which is on record can be looked into by this Court, as the same would be the part of the record in order to determine the question of jurisdiction and he reiterates the contention that the entire proceedings are initiated without jurisdiction. Per contra, learned Counsel for the 3rd respondent-landlord who supports the order in question practically admitting his guilt of having originally provoked the initiation of this proceedings contends that whether the house is vacant or not is a question of fact which this Court under Art. 226 of the Constitution cannot investigate. In support of this, he has relief, upon the decision of the learned Single Judge of this Court in the case of Dr. Venugopala Kubair v. Dr. S. Srinivasan AIR 1983 Kant 103. In that decision, I do not find that such a ruling has been made. What the learned Judge has stated is that the concurrent finding of facts recorded by the two authorities, below will not be interfered with by High Court under Art. 226 of the Constitution. That is not the same as saying that this Court cannot look into the facts to see whether the authorities below or the first of the authorities below had jurisdiction to initiate proceedings which has culminated in an order adverse to the petitioner. Then, my attention was drawn to an earlier decision of the Allahabad High Court in which that High Court has laid down that a question whether a house is vacant or not is a question of fact. Nobody can have dispute with that proposition. But, I must hold in favour of the contention advanced by Sri Dayanand Karanth on the simple construction of the, language employed in sub sec. (1) of S. 4 of the Act. That sub-section is as follows :
'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 in the prescribed form by registered post to the Controller.'
5. It is clear from the language employed as to when it becomes vacant and intimation of that fact is required. They are, that the owner must cease to occupy it or when the termination of the tenancy takes place or when the tenant is evicted or the building is released from requisition. The question of tenant occupying or continuing to the occupy it or keeping it without terminating the tenancy is not one c' the events in which vacancy is deemed to have occurred. In other words, there is complete freedom to the tenant once inducted legitimately to keep the premises vacant as long as he does not terminate the tenancy or is not evicted from the premises in accordance with the provisions of the Act.
6. The undisputed facts in this case, are, that the rent for the so-called vacant period was paid by the Bank and it was accepted by the landlord. For some time that it was kept vacant is also not disputed. The Bank has contended and proved by cogent evidence on production of appropriate rent receipts that the rent was paid throughout the period of occupancy by the first occupant, during the period when it was so kept vacant and during the period when the 2nd occupant occupied, conclusively establishing that the tenancy originally created had not been terminated. It would be useful to notice the stand taken by the landlord. The stand taken by the landlord .is that the 1st occupant-Branch Manager was the tenant who was inducted into the house and not the Bank. But the receipts received from the inception or commencement of the tenancy were in favour of the Bank. Therefore, there ought not to have been any reason accept perverse reasoning of the Deputy Commissioner or the Rent Controller to hold that the Bank was not the tenant and vacancy had occurred within the meaning of S. 4 of the Act and failure to report that vacancy gave jurisdiction to initiate proceedings under S. 10-A of the Act. The initiation of the proceedings by the Rent Controller was without jurisdiction.
7. For the foregoing reasons, the impugned orders are quashed. This Writ Petition is allowed.
8. Having regard to the circumstances of the case and that the facts which have unfolded themselves before the authorities fully, the landlord shall pay cost to the Bank. Advocate's fee is Rs. 250/-.
9. Petition allowed.