@JUDGMENTTAG-ORDER
1. This writ petition is filed under Articles 226 and 227 of the Constitution of India with an affidavit praying that in the circumstances stated therein, this Court may be pleased to Annexures ''A'' & ''B'' and etc.,
This writ petition coming up for hearing this day, the Court made the following:
This writ petition by Sri D.S. Srinivasa Murthy, is directed against the order dated 27.5.1982 made by the Spl. Deputy Commissioner, Bangalore District, Bangalore in HRC (City) Appeal No.77/81-82 on his file, confirming the order made by the Rent Controller, City area, Bangalore in H.R.C.No.ALT 18/81 dated 6.3.1981 on his file, allotting the premises in favour of respondent No.2-N.V. Venugopal in the writ petition.
2. Sri C.S. Shatrugnaiah Setty intimated the vacancy of the premises in question on 3.1.1981 and the Rent Controller notified the same. Notice under Section 8(1)(A) of the Karnataka Rent Control Act (hereinafter referred to as the Act) was also sent to Shatrugnaiah Setty. Sri Srinivasa Murthy intervened in the proceeding before the Rent Controller and claimed that he was the landlord of the premises and that the premises was not vacant. The second respondent in the writ petition, namely, N.V. Venugopal was one of the applicants for allotment. The Rent Controller found that Sri Srinivasa Murthy was living in the premises after one Narayana Setty vacated the premises unauthorisedly. In that view, the Rent Controller allotted the premises in favour of the second respondent in the writ petition, namely, N.V. Venugopal. Aggrieved by the said order, Sri Srinivasamurthy the present writ petitioner went up in appeal before the Spl. Deputy Commissioner and the Spl. Deputy Commissioner, as stated above, dismissed the appeal on confirming the order of the Rent Controller. Aggrieved by the same, Sri Srinivasa Murthy has instituted the above writ petition before this Court.
3. It is the case of Srinivasa Murthy that the property devolved on him by virtue of a Will executed by the owner Smt. Seethamma. As against that, it is the case of the first respondent that he got the property by a will executed by Sri Rama Setty, the owner. The writ petitioner further averred that when Seethamma died there was no tenant in the suit premises and as such after her death by virtue of the will he entered into possession of the property land so there was no vacancy at all. It is in that view that he submitted that the Rent Controller was not justified in notifying the vacancy. Alternatively, the learned Counsel for the writ petitioner submitted that assuming that Srinivasa Murthy was in unauthorised occupation, it was incumbent on the Rent Controller to proceed under Section 10(A) of the Karnataka Rent Control Act before he notified the vacancy. These are, therefore, the two points on which the writ petition is based.
4. The learned Counsel appearing for the respondents submitted that there was specific finding in the order of the Spl. Deputy Commissioner that Narayana Setty was the tenant at the time when Seethamma died and Srinivasa Murthy came into possession after Narayana Setty vacated the premises unauthorisedly. As such, the learned Counsel submitted that this Court sitting in writ jurisdiction cannot question that finding.
5. The learned Counsel further submitted that though Srinivasa Murthy was in unauthorised occupant of the premises, it was competent for the Rent Control to notify the vacancy and if after the allotment order was made, possession was not secured, it was upto him to evict unauthorised occupant. Thus, the points that arise for my consideration in the present writ petition are:
(1) Whether there is finding given by the appellate authority that Narayana Setty was in occupation of the premises as a tenant and whether Srinivasa Murthy occupied the premises unauthorisedly after Narayana Setty vacated the premises?
(2) Whether the Rent Controller could notify the vacancy before acquiring vacant possession after clearing the unauthorised occupation from the premises?
6. I was taken through the relevant documents. The order of the learned Spl. Deputy Commissioner is at Annexure-B. In the course of his order in para 9, the learned Spl. Deputy Commissioner has found thus:
"In this letter dated 16.2.1981, Sri narayana Setty has stated that he is living there as a tenant on a monthly rent of Rs. 250/-. Though he has denied the fact in his subsequent affidavit dated 19.2.1981, this affidavit cannot be believed in view of the other independent evidence available in the records. I am, therefore, of the opinion that Sri Narayana Setty was living in the premises as a tenant and vacated the same." Thus, it is obvious that the Spl. Deputy Commissioner has found that Narayana Setty was living as a tenant at the time when Seethamma died and it was subsequently after Narayana Setty vacated that Srinivasa Murthy-the present writ petitioner occupied the suit premises. That way, Srinivasa Murthy becomes an unauthorised occupant.
7. The learned Counsel for the respondents invited my attention to a decision of the Supreme Court in the case of MOHD. YUNUS v. MOHDMUSTAQIM AND OTHERS (A.I.R. 1984 S.C. at page 38) wherein his Lordship Justice Son who spoke for the Bench has observed in para 7 of the judgement thus:
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record."
8. That being so, this Court sitting in writ jurisdiction under Article 227 of the Constitution cannot assume jurisdiction of an appellate authority to find fault with the finding of the Spl. Deputy Commissioner. The finding on facts binds this Court. Therefore, I cannot differ from the concurrent finding of the Spl. Deputy Commissioner and the Rent Controller that the present writ petitioner was an unauthorised occupant of the premises, after Narayana Setty, the tenant vacated the premises.
9. The next question that is urged for consideration is: whether it was incombent on the Rent Controller to first evict the unauthorised occupant before he could issue the notice under Section 4 of the Act.
10. The learned Counsel for the writ petitioner invited my attention to Sub-section (3) of Section 10(A) of the Act, which reads:
"(3)(a) Upon service of an order under sub-section (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 sections 4, 5, 8, 9 and 10 shall apply to the building as if intimation of vacancy of the building was given to the controller the date on which he took possession it".
11. Relying on this sub-section, the learned Counsel submitted that provisions of Section 4 would come in only after the Rent Controller takes possession of the building from the anauthorised occupant and not before. Hence, he submitted that the vacancy notice issued by the Rent Controller is one without jurisdiction. This question whether the Rent Controller could issue notice even before he obtained possession of the building from the unauthorised occupant came up for consideration before this Court in the case SHARDA BAI v. HOUSE RENT CONTROLLER AND OTHERS (1980(1) Karnataka Law Journal at page 373). His Lordship Jagannatha Shetty, J. in the course of his judgement has ruled thus:
"It seems to me that the power conferred under S. 10(2) has not been rendered superfluous by insertion of S. 10A(1) to (3). If it was the intention of the Legislature, then there would have been deletion of S. 10(2). Since S. 10(2) continues to be in the statute, the Court cannot ignore it, and the Controller cannot be denied of it. The Controller could allot any building even when it is under the unauthorised occupation by someone and forcibly evict such person if the landlord does not give vacant possession. That is precisely what the Explanation to the proviso to S.5 and S.10(2) provides for. S.5 expressly authorises the Controller to lease a building notwithstanding that it is subject to an agreement of lease or has been let or occupied in contravention of sub-sec.(2) of S. 4. The argument of the learned counsel for the petitioner that the power conferred by the Explanation to S. 5 could now be invoked only against a person who has occupied the building in contravention of S. 4(2) subsequent to the intimation of its vacancy is too hard to be accepted. There is no reason to restrict the operation of the said Explanation or limit it only to such persons. Reed Dickerson Quotes Justice Frankfurther (3) who said:
"The judicial construction ought to stick close to what legislature says and not draw prodigally upon unformulated purposes of directions."
6. To sum up, it may be stated that before the incorporation of S.10A by Amending Act 14 of 1969, the procedure for summary eviction of a person who enters the building in contravention of S.4(2) had not been provided. Now S.10A provides for such procedure. It also authorises the Controller to evict such person and take possession of the building. Before the amendment, the possession of building be taken from an unauthorised occupant only after its allotment, but after the said amendment, the illegal occupant could be evicted even before the allotment. But then, the Act does not require that the Controller should be in possession of the vacant building before it is notified or allotted to any applicant. After the allottment of such building, he could call upon the landlord to give vacant possession and upon his failure, the Controller shall take possession by using such force as may be required."
12. That being so, it is obvious that even without taking possession of the vacant possession of the building the Rent Controller is competent to notify the vacany and after he allots the building, if the allottee is not put in possession by its owner, the Rent Controller is at liberty to use force for taking possession. Using such force as is necessary, as is laid down by His Lordship in the aforesaid decision. Hence, I am unable to bring myself to agree with the submission made by the Counsel for the writ petitioner that before notifying the vacancy the Rent Controller ought to have taken vacant possession of the building.
13. In the result, therefore, the writ petition fails and is dismissed. It is, however, observed that since the premises are in the unauthorised occupation, as held by the Spl.Deputy Commissioner, it would be necessary for the Rent Controller to proceed against the unauthorised occupant after issuing necessary notice to the occupant, to take vacant possession of the building for putting the allottee in possession.
14. Sri P.M. Appaji-High Court Govt. pleader is permitted to file his memo of appearance within two weeks.
