Judgment:
K.A. Swami, J.
1. This Writ Appeal is preferred against the order dated 31-1-1990 passed in Writ Petition No. 19550 of 1989. The appellant was the petitioner in the Writ Petition. He sought for quashing the orders dated 6-2-1989 and 27-10-1989, passed by Respondents 1 and 2, respectively under Section 10A of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act') directing eviction of the appellant/petitioner from the premises in question bearing No. 31, Chowlagalli, Cubbonpet, Bangalore-2.
2. The learned Single Judge has held that irrespective of the fact that there is a dispute between Respondents 3 and 4 regarding title to the premises in question and that dispute is going on in a suit before a Civil Court, as the building was more than 5 years old in the year 1985 and as the appellant/petitioner was inducted into the premises without an order of allotment by the Rent and Accommodation Controller contrary to the provisions contained in Section 4 of the Act and also irrespective of the fact that there is a proceeding initiated by Respondent No. 3 under Section 21(1)(a) and (h) of the Act, the proceeding under Section 10A of the Act is maintainable and the order of eviction passed under the said provisions is valid in law. The learned Single Judge has also distinguished the decision of a Single Judge in FERNANDIS v. HOUSE RENT CONTROLLER, : ILR1986KAR3249 .
3. Sri Yoganarasimha, learned Counsel appearing for the appellant, contends that as the appellant has been in possession of the premises as a tenant since 1935, and as the title of Respondent No. 3 is itself in dispute and the dispute is going on between Respondents 3 and 4 regarding the title to the schedule premises, the proceeding initiated under Section 10A of the Act at the instance of Respondent No. 3 is bad in law. It is further contended that at any rate in the light of the proceeding initiated by the 3rd respondent under Section 21(1)(a) and (h) of the Act against the petitioner, the 3rd respondent has accepted the appellant as a tenant. Therefore, it is not open to her to prosecute the proceeding under Section 10A of the Act. It is further submitted that the decision in Fernandis case clearly governs the case, and therefore the proceeding under Section 10A of the Act ought not to have been proceeded with in the light of the proceeding initiated under Section 21(1)(a) and (h) of the Act.
4. It appears to us that it is not possible to accept these contentions. It is also not possible to apply the proposition paid down in Fernandis case to the facts of this case. The fact necessary for the purpose of deciding the contentions raised by the learned Counsel for the petitioner/appellant are as follows:
There is a civil dispute going on between Respondents 3 and 4 regarding the title to the premises in question. The premises in question was more than 5 years old in the year 1985. Therefore, the provisions contained in Parts II and III of the Act were attracted to the premises in question on the date it was let out to the petitioner/Appellant. The definition 'landlord' makes it perfectly dear that any person who is for the time being receiving or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises.
Therefore, a person in possession of the premises entitled to receive rent whether he has a title to the property or not will fall within the definition of the word 'landlord1 for the purpose of the Act, i.e., for initiating a proceeding under Section 10A of the Act. In the instant case even though the dispute is going on between Respondents 3 and 4 regarding title to the premises, as it is the case of the appellant/petitioner himself that it was the 4th respondent who let out the premises, 4th respondent could be accepted for the purpose of this proceeding as the 'landlord' of the premises in question. If that be so, it was not at all open to the 4th respondent to let out the premises in question without intimating the vacancy to the Rent and Accommodation Controller, as required by the provisions contained in Section 4 of the Act. Even otherwise the premises which comes under the purview of Parts II and III of the Act cannot at all be let out to any person except in accordance with the provisions contained in Part II of the Act. Thus private letting out-side the purview of Part II of the Act, in respect of such premises is prohibited. Therefore, the occupation of the premises by the appellant/petitioner is unauthorised for the purpose of the Act.
That being the position, the fact that the 3rd respondent herself claimed title to the premises in question, and in assertion of that title initiated a proceeding under Section 21(1)(a) and (h) of the Act cannot by itself be sufficient to hold that the induction of the appellant/petitioner into the premises is lawful, as it is not in accordance with the provisions of the Act. Consequently it follows that Section 10A proceeding can very well be initiated irrespective of the fact that the 3rd respondent has initiated a proceeding under Section 21(1)(a) and (h) of the Act, as long as induction of the petitioner/appellant into the premises is unauthorised being opposed Part II of the Act.
5. In Fernandis case, the premises concerned therein was let out in the year 1976. Pursuant to the Amendment to the Act by Karnataka Act 66 of 1976 introducing Part V-A in the Act affording an opportunity to those who had come to occupy the premises as a tenant without an order of allotment to have their occupation regularised a declaration was permitted to be filed under Section 31B of the Act. Such a declaration was filed in that case. Without considering that declaration a proceeding under Section 10A was initiated. There was also a proceeding initiated under Section 21(1)(f) of the Act. In the light of the declaration filed under Section 31B of the Act which as per the provisions contained in Part V-A of the Act was required to be accepted and the occupation of the person in occupation was required to be regularised as a tenant. This Court held that in the facts and circumstances of the case initiation of a proceeding under Section 10-A of the Act, keeping aside the declaration filed under Section 31B of the Act was not warranted. Of course pendency of the proceeding initiated by the landlord under Section 21(1)(f) of the Act was also referred to. But the decision rested on the fact that the declaration filed under Section 31B of the Act was not considered. Thus the context in which the initiation of the proceeding under Section 10A of the Act was held to be not warranted was quite different from the context in which the proceeding under Section 10A of the Act has been initiated in the instant case. The occupation of the premises by a person who is let into the premises to which Part II of the Act applies without an order of allotment is not protected merely because the landlord who has inducted him into the premises files a proceeding for eviction under Section 21 of the Act. In such a case a proceeding under Section 10A of the Act can be initiated, irrespective of the fact that there is a proceeding filed by the landlord under Section 21 of the Act for eviction. We would like to make it clear that the decision in Fernandis case shall not be read as laying down the taw that wherever there is an illegal letting out, in other words, letting out of the premises to which Part II of the Act applies, outside the provisions of Part II of the Act without intimating the vacancy and without an order of allotment, Section 10A of the Act is not attracted. In such a case, merely because the landlord who is a party to such an illegal letting out has initiated the proceeding under Section 21 of the Act, and such initiation of a proceeding under Section 21 of the Act, will not give protection to the person who has been inducted into the premises without an order of allotment. Therefore, the decision in Fernandis case should be confined to the facts of that case and it is applicable to a case where in a declaration filed under Section 31B of the Act has not been ordered and a proceeding under Section 10A of the Act is initiated keeping back the declaration filed under Section 31B of the Act. That being the position, we are of the view that the proceeding initiated under Section 10A of the Act is perfectly valid. We must also bear in mind that the object of the Act is to make available for occupation of the premises to those who are in need of accommodation. The object of the Act is not to encourage illegal leasing. On the contrary, one of the objects is to eliminate illegal leasing without an order of allotment and it is for that purpose only Section 10A of the Act came to be introduced by the Amendment Act. Hence, on taking into consideration the facts and circumstances of the case, we are of the view that the order passed by the learned Single Judge does not call for interference. Accordingly the Writ Appeal fails and therefore it is rejected.
6. However, on the request made by the learned Counsel for the appellant that the appellant may be granted time to vacate the premises; the appellant is granted time, till 1st of July, 1990 to vacate the premises in question on condition that he files an undertaking into this Court on or before 30th March, 1990 that he will vacate and deliver vacant possession of the premises with keys to the Rent and Accommodation Controller on or before 1st of July, 1990.