Judgment:
ORDER
1. This writ petition under Articles 226 and 227 of the Constitution of India, is filed by tenant of premises No. 48, Old No. 1/3 Linden Street, Palmgrove Road, Austin Town, Bangalore. Respondents I and 2 are father and son; Respondents 3 and 4 arc the other sons of respondent-1; they are the owners; it is stated in the order that it is a joint family property. Premises was leased to petitioner in 1969. It is a residential building. It is the case of the owners that though the leasing of the premises was illegal, in the sense, that vacancy had not been intimated and the leasing was not through the instrumentality of the Rent Controller, it was regularised under Secs. 31-B and 31-C of the Act. Sub-section (2) of S. 31-C provides that on an order of regularisation being passed under sub-section (1) of S.31-C the tenant shall be deemed to be an allottee under S. 5 of the Karnataka Rent Control Act. Sub-section(3) of Sec. 31-C reads thus :--
'(3) The provisions of sub-section (3) of S. 4 and S. 10A shall not apply when an order under sub-section (1) is made.'
2. Sub-section (3) of S. 4 deals with conviction of landlord who has contravened sub-sections(1) and (2) of S.4. In other words, with the regularisation, the landlord, who would otherwise be liable for conviction, gets an immunity and in law he is treated as having not contravened the provisions of Sec. 4. Further, the tenant, after regularisation cannot be proceeded with under S. 10-A of the Karnataka Rent Control Act i.e., eviction by the controller of an occupant in contravention of Sec. 4. Thus by regularisation the landlord and tenant are the beneficiaries and both stand to gain for getting exemption from penal consequences. The illegal act, donejointly gets legalised. Such being the legal position, the respondents-landlords sought eviction of tenant-petitioner under S. 21 ((1)(h) of the Karnataka Rent Control Act for their bona fide use and occupation in H.R.C. 3078/88 before the Court of Small Causes at Bangalore and the same is pending. At this stage the owners have filed a petition before the Rent Controller seeking summary eviction of the tenant under S. 21A of the Act. The Rent Controller in spite of the object ions has allowed that petition and has directed eviction of the tenant. It is this order that is challenged in this Writ Petition.
3. The questions that crop up for consideration are :
(1) Whether the Rent and Accommodation Controller has competency and jurisdiction to entertain the petition of the landlord to evict his tenant under S. 21A(1) or (2) of the Act?
(2) Whether the order of the Rent Controller is arbitrary and capricious?
4. To appreciate the several points that arise for consideration it becomes necessary to refer to some of the important provisions of the Act. The non obstante clause in S.21(1) reads thus :--
'21(1). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant :
Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:--'
(Underlining is mine)
5. Under this clause no order for recovery of possession of any premises in favour of landlord against a tenant can be made by any Court or authority, except on grounds provided in clauses (a) to (p) of that Section by the Court. Obviously therefore an order of eviction in favour of landlord and against atenant can be passed only by the Court and not by any other authority the jurisdiction being exclusive. Among the several grounds for eviction, one ground which needs a mention, in the context of the facts of this case, is clause (p) which reads thus -
'(P) that the tenant whether before or after the coming into operation of this Part has built, or acquired vacant possession of, or been allotted, a suitable building,'
On 20th August, 1976 Section was amended so as to enable an allotte tenant to seek summary eviction of his tenant, through the Prescribed Authority i.e.. Controller, if the allotte tenant having constructed or acquired a house is not in a position to vacate the allotted house within one year from 20-8-1976 and shift to his own house or having vacated the house seeks possession of his own house. The eviction of the tenant i.e., allotte tenant's tenant shall be done after summary enquiry and by the use of force, if necessary and the Controller shall put the allotte tenant in possession of his own building. The expression 'his own building' occurring in clauses (a), (b) and (c) refer to the building of allotte tenant. On putting the allotte tenant in possession of his own building the scheme is complete and the allotted house occupied by the allottee since vacated becomes available to the Rent Controller for proceeding under Part 11. On a plain reading of Ss. 21 and 21-A it becomes manifest that they operate in two different situations: Under Sec.21 the order of eviction is in favour of landlord against his tenant to be passed by the Court; Under Sec. 21 -A the act of eviction is resorted to, if necessary, by force, by the Prescribed Authority who will, after evicting the tenant put the allotte tenant in possession of 'his own building'. The order of eviction passed by Court is revisable under Sec. 50 whereas the order of eviction passed by the Controller is final and it can only be challenged in Writ Jurisdiction. That such is the intention of these provisions is made clear in Mohamed Kaleemulla Khan v. House Rent and Accommodation Controller, ILR (1988) Kant 2609. In coming to such conclusion I relied upon Bench decisions of this Court inSrinivasa Vakil v. State of Karnataka, : AIR1980Kant44 ; Dr. R. Rajasekhar v. Narayan, ILR (1987) Kant 757, and the submission made by the High Court Government Pleader, who clearly stated that there is no provision in the Act enabling the Controllerto pass an order of eviction in favour of landlord against his tenant.
6. This brings me to consider the scope of Ss. 21-A(1)(a) and 21-A(2). These provisions read thus :
21-A(1)(a)
Notwithstanding anything in this Act, on and from the date of coming into force of this Section,--
any person who is in occupation or possession of a residential building as a tenant on allotment by the Controller, shall, within one year from the said date vacate such building if he owns in his name or in the name of any member of his family, a residential building in the same city, town or village (hereinafter referred to as 'his own building') :
21-A(2)
Notwithstanding anything in this Act, any person who being in occupation or possession of a residential building as a tenant on allotment by the Controller acquires or constructs on or after the 20th day of August, 1976 either in his own name or in the name of any member of the family a residential building in the same city, town or village shall within such time as may be prescribed vacate the building of which he is the tenant.
7. It is manifest that both these provisions apply to allotte tenants who are in occupation of allotted premises. The distinctive features in the above two sub-sections are emphasised to understand the different scopes and the purposes for which they are enacted. Under clause (a) the allotte tenant shall vacate the allotted premises within one year from 20-8-1976 i.e., before 20-8-1977 if he owns in his name or in the name of member of his family a residential building, called as 'his own building'. Sub-section (2) of S. 21-A refers to a situation where the allotte tenant acquires or constructs a residential building on and after 20-8-1976, that is to say anytime thereafter, a residential building in his name or in the name of member of his family, he shall vacate the allotted premises within such time as may be prescribed. Clause (a) speaks owning a house on 20-8-1976 and sub-sec. (2) covers the cases of allotte tenants acquiring or constructing a building after 20-8-1976. The earlier provision refers to the existing situation on 20-8-1976 and the latter provision is intended to meet a situation that may arise in subsequent period. The prescribed period for vacating the allotted house under sub-section (2) is prescribed by Rules. TheState Government has framed Rule 8A of the Karnataka Rent Control (Amendment) Rules, 1961, which is published in the Karnataka Gazette dated 19th February, 1981. The said Rule reads thus :--
'8A. Period for vacation of residential building in certain cases :
Any person who being in occupation or possession of a residential building as a tenant on allotment by the House Rent Controller acquires or constructs either in his own name or in the name of any member of his family a residential building in the same City, Town or Village, shall vacate the building of which he is such tenant :--
(a) within a period of one year from the date of commencement of this rule where the acquisition or construction is on or after the twentieth day of August 1976, but before the date of commencement of these rules; or
(b) within 30 days from the date of acquisition or construction where such acquisition or construction is on or after the commencement of this rule.'
The above Rule also makes it clear that an allotte tenant shall vacate the building within one year from the dale of commencement of this rule i.e., 19-2-1981 where acquisition or construction is on or after 20th of August, 1976 but before 19-2-1981 or within 30 days from the date of acquisition or construction where such acquisition or construction is on or after commencement of this Rule i.e. 19-2-1981.
8. The above discussion makes it clear that entire Sec. 21A only refers to the allotte tenant vis-a-vis his tenant and it provides a machinery to evict the allotte tenants tenant and secure the possession of his own building. The statement of Objects and Reasons in support of the Second Amendment Bill, 1976, which was enacted in L.A. Bill No. 61/76 makes this position clear, it reads thus :--
'(b) to make it compulsory for persons occupying Rent Controller allotted premises who own residential houses of their own in the same urban area to vacate the rented premises within a period of one year, and to correspondingly enable such persons to recover possession of their houses by a fast summary procedure.'
9. In view of this object it is crystal-clear that the Act was enacted to enable allotte tenants to recover possession of their houses by summary eviction. It was not intended to enable the owners or the landlords to seek eviction of their tenant by summary eviction as a parallel remedy or as a supplement to Sec. 21 of the K.R.C. Act. The Rent Controller had no jurisdiction to pass eviction order in favour of landlord against his tenant. But Mr. U. L. Narayana Rao, learned Counsel for respondents R-1 to R-4 owners and Mr. T. R. Subbana, High Court Govt. Advocate who appeared on behalf of Rent and Accommodation Controller submitted that the machinery provided in clause (c) of S. 21A can be invoked by the landlord to seek summary eviction of his tenant. Both of them heavily relied upon the following statement in the judgment of Justice Doodakale Gowda in Dr. R. Rajashekhar v. S. Narayan, ILR (1987) Kant 757. The said observation reads thus :
'Machinery provided under sub-sect ion (1) of S. 21A can conveniently be adopted to give effect to sub-section (2) of S. 21-A or supplanted by rules of natural justice. Undisputedly, petitioner has been heard and an enquiry has been held before passing impugned order. Hence, contention that in the absence of clause similar to clause (c) after sub-section (2) comprehending acquisitions of the type referred to therein no eviction could have been ordered is devoid of merit.'
It is clear the effect of the above observation was that the machinery provided in clause (c) authorising the prescribed authority to evict such other person if necessary by use of force and restore possession to the allotte tenant can be availed of even in cases coming under sub-section (2) of S.21A. This only means that an allotte tenant who has acquired or constructed a building on or after 20th of August, 1976 either in his own name or in the name of the member of the family having vacated the building within the period prescribed may initiate action before the prescribed authority to seek possession of 'his own building' by evicting the tenant through the prescribed authority if necessary by using force. The above observation of the learned Judge cannot be understood to enable the landlord who does not come in the picture in the context of Sec. 21A to seek a summary eviction of his tenant. The landlord is not a person who is in occupation of the house on allotment by Rent Controller and who has acquired or constructed a building of his own after 20th of August, 1976 and who has vacated the same within the prescribed period to enable him to move the prescribed authority and seek possession of his own building. The various clauses in sub-section (2) make it clear that it has no application to the landlord at all. The seeking of possession of his own building in clause(c) of S. 21A refers to the allotte tenant who owns a residential building or has constructed or acquired his own building. Therefore, it appears to me that the above observation of the learned. Judge cannot be understood as enabling a landlord to move the machinery of the prescribed authority i.e. Rent Controller to recover possession of his tenanted building. Otherwise, thewords 'person who being in occupation or possession of a residential building as a tenant on allotment by the Controller' in S. 21-A(2) become redundant. It is to put such applicant in possession of his own building that the machinery is provided under clause (c) of Sec. 21A of the Act. The above observation of Mr. Doodakale Gowda, J., lays down that the procedure and machinery provided in Cl. (c) can be availed of by the allotte tenants in either situations i.e. as covered by Cl. 21-A(1)(a) or 21-A (2), extracted above.
10. As laid down by the Supreme Court in M/s. Amar Nath Om Prakash v. State of Punjab, : [1985]2SCR72 , judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret words of statutes; their words are not to be interpreted as statutes.
11. In State of Andhra Pradesh v. Krishnaiah Naidu, : AIR1989AP309 , a Bench of that High Court observed thus :
'A decision is an authority for the proposition it decides. A decision ought not to be read as a statute and principles inferred which were never intended to be enunciated.'
12. If the above principle is borne in mind the observations of the learned Judge quoted above cannot be understood as providing a machinery to the landlord to seek eviction of his tenant as a supplemental provision to S. 21 of the Act. The Act never intended to confer jurisdiction on Courts under Sec. 21 and on the Rent Controller under Sec. 21-A for passing eviction orders in favour of landlord or owner.
13. In interpreting the above Section of the Act, which is a social welfare legislation, one has to bear in mind the following observations of the Supreme Court in Kehar Singh v. State (Delhi Admn.), : 1989CriLJ1 :
'During the last several years, the 'goldenrule' has been given a go-by. We now look for the 'intention' of the legislature or the 'purpose' of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the Circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.'
14. Keeping in mind these observations and the objects for which the Amendment Act was enacted it becomes clear that sub-sections (1) and (2) of S.21A are intended to enable the allotte tenant who has constructed his own building or acquired a house at two different periods as mentioned in sub-sections (1) and (2) to get his tenant evicted after summary enquiry through the prescribed authority viz., the Rent Controller so that he can acquire possession of his own building through that instrumentality. The mischief it sought to undo was allotte tenants enriching themselves by leasing out the house which they have constructed or acquired and continue to stay in an allotted house, comparatively at a cheaper rate of rent. It was intended to put an end to the 'abuse' of allotment.
15. In view of my conclusion the ruling cited by Sri. U. L. Narayana Rao in Nathuram Weljibhai Vyas v. Mrs. Laxmibai Lunkaranji Chandak, (1983) 139 1TR 948 (Bom),will be of no assistance to support his contention. The said ruling lays down that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. As I have come to the conclusion that S.21 A does not confer jurisdiction on the Rent Controller to entertain a landlord's petition for summary eviction of his tenant any further reference to the said judgment would be unnecessary.
16. By the impugned order the Rent Controller while ordering the tenant to vacate the premises has directed the landlord to report vacancy under S. 4 of the Karnataka Rent Control Act, 1961. Under S.21-A(c) the Controller has to put the allotte tenant in possession of his own building, The allotte tenant, who has moved the machinery is not required to report vacancy under S. 4 of his own building because he secures possession through the prescribed authority (Rent Controller). Obviously in ordering eviction the Rent Controller has usurped the powers of the Court under S. 21 of the Karnataka Rent Control Act. He has directed the tenant to hand over possession to the landlord who in turn is directed to report vacancy under S. 4 of the Act. The order is not only illegal, but, it speaks of more than what the eyes can see. It is arbitrary and leans in favour of collateral considerations.
17. I have come across two cases of this officer (this writ petition and W.P. No. 19141 of 1989). In the other case the officer was directed to file an affidavit. His conduct and functioning do not appear to be straight. The Administration is required to take immediate action. Copy of this order and the order is W.P. No. 19141 of 1989 be sent to the Chief Secretary Govt. of Karnataka for prompt action.
18. For the aforesaid reasons, the Rent and Accommodation Controller could not have entertained the petition of the landlord and passed an order purporting to do so under S. 21-A of the Act. The Rent Controller has misconstrued the provisions of law and has assumed jurisdiction which was notvested in him. The landlord having initiated action under S.21(1)(h) has invoked a machinery which he could not have done and therefore he is liable to pay costs to the petitioner.
(19) In the result, I make the following order :
Writ petition is allowed. The impugned order of the Rent Controller is quashed. Advocate fee Rs. 2,000/-, to be paid by R-1 to R-4.
20. Petition allowed.