Mohan, C.J.
1. Residential premises No. 48 (Old No. 1/3), situated at Linden Street, Palmgrove Road, Austin Town, Bangalore, is owned by the appellants in Writ Appeal No. 291 of 1990. That was leased to the 1st respondent in the year 1969. Subsequent to the lease, occupation of the 1st respondent was regularised under Sections 318 and 31C of the Karnataka Rent Control Act, 1961 (here in after referred to as the Act). On or before 20-8-1976, the 1st respondent acquired 2 residential premises, viz., No. 59, 1st Floor, Residency Road, Bangalore, and No. 26, Wellington Street, Bangalore. In view of the said acquisition, the appellants/landlords filed a petition under Section 21A of the Act before the House Rent and Accommodation Controller, Bangalore-1, for eviction of the 1st respondent. The case was registered as No. HRC.ACC.21.A(1)/1989 on his file. By an order dated 27-9-1989 the House Rent and Accommodation Controller directed the eviction of the 1st respondent under Section 21A(2) of the Act. However, the 1st respondent was granted one months time to vacate the premises. The Rent and Accommodation Controller further directed the appellants/landlords to report the vacancy under Section 4 of the Act after possession of the premises was obtained by them. This order of the House Rent and Accommodation Controller was challenged by the 1st respondent in Writ Petition No. 18420 of 1989 in so far as it had been directed to be evicted. The matter came up before our learned brother Justice Murlidher Rao, who, by the order dated 2-1-1990, held that under Section 21 A(2) of the Act there was no possibility of ordering eviction against the 1st respondent. In the course of the order, the learned Judge also made certain observations against the House Rent and Accommodation Controller. While allowing the Writ Petition, the learned Judge also directed the appellants to pay costs of Rs. 2,000/- as Advocate Fee. Aggrieved by the same, the appellants/landlords have come up in appeal in Writ Appeal No. 291 of 1990.
2. In so far as strictures have been passed against the House Rent and Accommodation Controller, Writ Appeal No. 1192 of 1990 has been filed by the House Rent and Accommodation Controller in his personal capacity, while qua House Rent and Accommodation Controller, Writ Appeal No. 935 of 1990 has been filed. Therefore, all these three appeals arise out of the same order of the learned Single Judge.
3. Sri U.L Narayana Rao, learned Counsel for the appellants in j Writ Appeal No. 291 of 1990, submits that, no doubt, under Section 21 A(2) of the Act there is no specific power conferred on the House Rent and Accommodation Controller to direct eviction; but he submits that reaching such conclusion, as the learned single Judge has done, would amount to rendering the Section itself ineffective. If really the object of the Section (Section 21A) is to secure accommodation to such of those landlords who have been deprived of their enjoyment and occupation by reason of induction of tenants, whereas such tenants have acquired other residential premises, to continue the order of allotment will affect the landlords harshly. In support of his submission Sri Rao placed reliance on the Decisions of this Court in T. VAMANA KINI AND ETC. v. U. RAMACHANDRA PAI, AIR 1985 Karnataka 23: ILR 1984(2) KAR 379 and in DR. R. RAJASHEKAR v. S. NARAYAN, : ILR1987KAR757 .
In this case, there is no justification for the learned single Judge to award costs of Rs. 2,000/- against the landlords, because the order of the House Rent and Accommodation Controller makes it very clear that the House Rent and Accommodation Controller did nothing more than relying on the Judgment of this Court. Therefore, that part of the order awarding costs requires to be set aside.
4. In the other appeals, viz., Writ Appeals Nos. 935 and 1192 of 1990, it is argued that the learned single Judge had made certain remarks against the House Rent and Accommodation Controller which are not justified in the circumstances. It was not the case of anyone that the order came to be passed by the House Rent and Accommodation Controller on collateral considerations. Therefore, that conclusion is not justifiable.
The learned Judge should not have placed reliance on the earlier Writ Petition in which he came across the order of this House Rent and Accommodation Controller for holding that the conduct and functioning of this House Rent and Accommodation Controller do not appear to be straight, as the circumstances did not warrant such an observation. Therefore, the learned Counsel for the appellants, viz.; the House Rent and Accommodation Controller, have prayed that these remarks may be expunged.
5. To the specific question put by this Court whether this Court has got power to expunge the strictures made by the learned single Judge against the House Rent and Accommodation Controller, while exercising the appellate jurisdiction under Section 4 of the Karnataka High Court Act, 1961, our attention has been drawn to the Full Bench decision of this Court in STATE OF KARNATAKA AND ORS. v. H. KRISHNAPPA AND ORS., ILR (Karnataka) 1975(2) 1015 particularly to para 78. Equally our attention has been drawn to the Division Bench decision of this Court in NINGANNA & OTHERS v. NARAYANA GOWDA AND ORS., 1983(1) KLJ 241 particularly to para 8.
6. In opposition to this, the learned Counsel for the 1st respondent/tenant who had been inducted in possession by the House Rent and Accommodation Controller, urges that Section 21A(2) of the Act will have to be construed as an independent Section. Not only Section 21A(1) of the Act begins with a non obstante clause, but equally the opening word of Section 21A(2) of the Act also is 'notwithstanding.' Therefore, one cannot really say that Section 21A(1) is meant to introduce a relief not contemplated under Sub-section (2) of Section 21A. The very fact that Section 21A(1) clothes the House Rent and Accommodation Controller with the jurisdiction to evict the tenant, viz., the 1 st respondent, does not follow that the same should be the position with reference to a case arising under Section 21 A(2) of the Act. Such an interpretation of the statute will have the effect of amendment to the legislation which is not in contemplation of the legislature. This was what was rightly commented upon by the learned single Judge. Therefore, no objection whatever could be taken on the merits of the case.
7. In regard to the other appeals filed by the House Rent and Accommodation Controller in the capacity of House Rent and Accommodation Controller and in his personal capacity, the appellants/landlords do not have much to say against his request for the relief.
8. For proper appreciation of the issue involved in these cases, we will extract Section 21A of the Act fully:
'21 A. Vacation of residential building in certain cases -
(1) Notwithstanding anything in this Act, on and from the date of coming into force of this Section -
(a) 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 (hereinafer referred to as 'his own building');
(b) such person shall be entitled to recover possession of his own building, in case it is let out to any person and he may apply to the prescribed authority for eviction of such other person:
Provided that no such application, shall be entertained unless the applicant has given notice of not less than four months requiring the person sought to be evicted to vacate the said building;
(c) the prescribed authority shall, after making such summary inquiry as it deems necessary, evict such other person, if necessary by using force and put the applicant in possession of his own building:
Provided that where such person owns more than one building which are all let out, the choice of which building he seeks possession for his own occupation shall lie with such person;
(d) The controller shall, while allotting premises under Section 5, give first priority immediately after the State Government and the Central Government to the persons to whom notice under the proviso to Clause (b) has been issued if such person makes an application in this behalf.
(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.
(3) Any person who contravenes the provisions of Clause (a) of Sub-section (1), or Sub-section (2) shall, on conviction, be punished with simple imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both.'
This Section came to be introduced to the original Act (Act No. 32 of 1961) by Amending Act No. 66 of 1976 and came into force with effect from 20-8-1976, This Section can be divided into 2 parts: viz., Section 21A(1) and 21A(2).
Under Section 21A(1) the tenant who has already acquired premises of his own has to vacate the premises allotted within one year from 20-8-1976, i.e., before 20-8-1977. Therefore, to such of those cases falling within the period from 20-8-1976 to 20-8-1977, Section 21A(1) will apply. It requires to be carefully noted that Sub-section (1) of Section 21A of the Act starts with the words 'notwithstanding anything in this Act'. Therefore, it has an over-riding effect. This is one part of Section 21A of the Act.
Coming to the second part of the Section, Sub-section (2) of Section 21A has to be looked into. It applies to the cases where the tenants acquired or constructed premises on or after 20-8-1976. If the acquisition or construction by the tenant is after 20-8-1976, he is obliged to vacate. It is beyond the period of one year as contemplated under Sub-section (1).
9. One redeeming feature as far as Section 21A(1) is concerned is that it enables the prescribed authority, after making summary enquiry, to evict the person even by use of force and put the tenant in possession of his own building. That is totally absent in Section 21A(2); because, it merely throws an obligation on the tenant to vacate the building within such time as may be prescribed. What is the consequence of not vacating the premises is not made known. There is an ominous- silence as far as this vital aspect is concerned. Concerning the penal provision, what is contained in Sub-section (3) of Section 21A is common to both, viz., disobedience to either Section 21A(1) or Section 21A(2). But, that does not detain us, since we are not considering Sub-section (3) of Section 21A of the Act. We are, therefore, of the opinion that the order of the House Rent and Accommodation Controller directing eviction under Section 21A(2) of the Act is totally without jurisdiction, and we may even say it is perverse. In Vamana Kini's case1 the Division Bench of this Court held in para 17 as follows:
'As both these Sections deal with eviction of tenants, namely, control of eviction of tenants, it is plain that they deal with the same subject, power to be exercised under Section 21A is with the Controller, while the jurisdiction under Section 21 vests with the Civil Court. Section 21A provides for summary enquiry and eviction of a tenant. Section 21 provides for enquiry which is also in legal parlance considered as summary but to be held by a Civil Court by following procedure applicable to small cause suits. In Bangalore metropolitan area it is the Court of Small Causes that is vested with this jurisdiction. In view of the affricated two non obstante clauses, it is manifest that Section 21A operates by itself despite Section 21 being in the statute. In other words, only the Rent Controller has the jurisdiction and power to evict a tenant provided the ingredients of Section 21A of the Act are satisfied and a landlord is precluded from approaching the ordinary Civil Court under Section 21 of the Act. In other words, Section 21A is entitled to precedence over Section 21 though the ingredients and the provisions are different. This reasoning flows from the principle laid down by the Supreme Court in the decision in B. Mohanbhai v. M.S.U. Mandir : [1976]1SCR411 while considering the non obstante clause in Section 13 of the Bombay Rents; Hotel and Lodging House Rates Control Act (57 of 1947) (as applicable to Gujarat).'
This in our considered opinion does not throw any light on the scope of Section 21 A(2) of the Act. Turning to Dr. R. Rajashekar's case a learned single Judge of this Court, while dealing with the distinction between Section 21A(1) and Section 21A(2) of the Act observed as follows:
'The distinction between Clause (a) of Sub-section (1) and Sub-section (2) of Section 21A is that Clause (a) covers cases where an allottee owns a premises, be it on the date of allotment or otherwise and Sub-section (2) brings within its clutches rest of the instances of acquisition such as through lease or mortgage with possession etc., including construction of a building as owner on and after 20th day of August 1976. It is true, Sub-section (2) is not followed up by a clause similar to Clause (c) Sub-section (1) of Section 21A...Inapt placing of Clause (c) or Sub-section (2) cannot be construed in such a way so as to deviate the object. Section should be read as a whole and intendment must be given effect to, though there is no repetition of clause like (c) after Sub-section (2). Machinery provided under Sub-section (1) of Section 21A can conveniently be adopted to give effect to Sub-section (2) of Section 21A or supplanted by rules of natural justice...The 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.'
The House Rent and Accommodation Controller in directing eviction under Section 21A(2) of the Act seems to have placed reliance on these Rulings. But, unfortunately, he did not take care to note the last paragraph of that case. As these Rulings do not lay down the correct law, there is no question of giving effect to Section 21 A(2) of the Act. We see, therefore, no difficulty in agreeing with the learned single Judge as far as the merits are concerned. Therefore, on merits we hold that the direction of eviction of the 1st respondent from premises in question by exercising the power under Section 21A(2) of the Act is wholly unwarranted.
10. We will take up the other 2 appeals filed by the House Rent and Accommodation Controller, one in his official capacity and the other in his personal capacity. The learned Judge in paragraph 16 of his order states:
'Obviously in ordering eviction the Rent Controller has usurped the powers of the Court under Section 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 Section 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.'
(Underlining is ours)
Again he observes in paragraphs 17 as follows:
'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 has 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 in W.P.No. 19141 of 1989 be sent to the Chief Secretary, Government of Karnataka, for prompt action.'
(Underlining is ours)
11. The question is whether these remarks can be expugned. We have our grave doubt as to whether exercising the power under Section 4 of the Karnataka High Court Act, 1961, we can expunge the remarks. The reason for us to say so, is that in State of Karnataka and Ors. v. H. Krishnappa and Ors., ILR (Karnataka) 1975(2) 1015 In paragraph 78 it was observed thus:
'As pointed out by the Supreme Court in Ladli Prasad v. Kamal Distillery : [1964]1SCR270 , where an appeal lies to a Division Bench of the High Court against a Judgment of a single Judge of the High Court exercising original or appellate jurisdiction, the decision of the single Judge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal, but the single Judge of the High Court cannot be regarded as a Court subordinate to the High Court. The single Judge being regarded as a Court below the Division Bench which hears the appeal from his decision, is a necessary incident of the concept of appellate jurisdiction which consists of powers to examine the correctness of the decision appealed against and to reverse, modify or affirm it, just as a Full Bench of the High Court has power to examine the correctness of a ruling of a Division Bench or a single Judge of the same High Court and to over rule such ruling.'
Therefore, we are of the view that, when a single Judge exercises his Writ jurisdiction under Article 226 of the Constitution of India, he is not a Court subordinate to the Appellate Court.
Again in Ninganna and Ors. v. Narayana Gowda and Ors. [1983(1) Kar.L.J. 241 pp. 246 and 247] in paragraph 8, the observations are to the following effect:
'We are not impressed by the submission. Writ jurisdiction is conferred on the High Court by Article 226 of the Constitution and not on one or more Judges of the High Court. The Karnataka High Court Act, 1961 regulates the exercise of jurisdiction vested in the High Court. Section 9 thereof empowers a single Judge to exercise the writ jurisdiction of the High Court, i.e., to hear a Writ Petition. But it also enables a single Judge to refer a Writ Petition to a Division Bench, whereupon a Division Bench is empowered to exercise the writ jurisdiction. When an appeal is preferred under Section 4 of that Act against an order of single Judge to a Division Bench, the jurisdiction which the latter exercises is also the very same jurisdiction under Article 226 of the Constitution. On this aspect, a Full Bench of this Court in State of Karnataka v. H. Krishnappa [ILR 1975 (Kar) p. 1015 at 1049] stated as follows:
'.....When a Division Bench entertains an appeal from a decision of a single Judge in exercise of powers under Article 226, the Division Bench, in deciding such appeal, exercises the same power under that article, whether it (the Division Bench) affirms, reverses or modifies the decision of the single Judge'.
'When the Division Benches, which hear and decide appeals from the decisions of single Judges, are also a part of the High Court and exercise the same powers under Article 226, while deciding such appeals....'
The Writ Appeal jurisdiction, therefore, cannot be compared and is not akin to, an appellate jurisdiction as ordinarily understood, which presupposes the existence of a superior Court and an inferior Court. [See Shankar Ramachandra Abhyankar v. Krishnaji Dattatreya : [1970]1SCR322 ] and no such relationship exists between a single Judge and a Division Bench as both exercise the jurisdiction vested in the High Court. There is no difference between a Writ Petition referred to a Division Bench or a Writ Petition which comes up before a Division Bench through a Writ Appeal, in the matter of exercise of the jurisdiction and powers of this Court under Article 226 of the Constitution. Therefore, in our view in cases where a Division Bench hearing a Writ Appeal against an order of single Judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided without impleading necessary parties as a result of which defect, the order in the Writ Petition is liable to be set aside, the Writ matter having come up before the Division Bench, the most appropriate course for the Division Bench is to decide the Writ Petition itself. Therefore, we are unable to agree that we have no jurisdiction to hear the Writ Petition but must remit it to the learned single Judge. In this view of the matter, we have heard the Writ Petition on merits and are making this final order in it.'
Therefore, it is one thing to say that there is the power of the Appellate Court to affirm, modify or reverse the Judgment of the single Judge would obviously be on the merits of the case. But, it will be totally different to say that this Court, merely because the appellate power is available, can expunge the remarks made by the learned single Judge who exercised his jurisdiction under Article 226 of the Constitution of India and who is a part of the High Court itself. Therefore, we refuse to do so, however much we are persuaded in this regard. Notwithstanding, we are constrained to observe that, having regard to the facts of the case that the House Rent and Accommodation Controller in his order dated 27-9-1989 proceeded on the decision of this Court in Dr. R. Rajashekar's case the order does not lend itself to the criticism levelled by the learned single Judge in paragraphs 16 and 17 of his order which we have quoted above. Equally the orders if any passed without jurisdiction cannot straight away lead to the conclusion that the conduct and functioning of the House and Rent and Accommodation Controller do not appear to be straight. Further, the officer was not on trial. Barring these observations, we do not think that any further interference is warranted. We also hold that the award of costs against the landlords/Respondents 1 to 4 before the learned single Judge does not seem to be justifiable in the circumstances of the case, more so having regard to the Ruling of this Court in Dr. Rajashekar's case, : ILR1987KAR757 .
12. In the result, we dismiss Writ Appeal No. 291 of 1990. However, we set aside the award of costs. The other 2 appeals, viz., Writ Appeals Nos. 935 of 1990 and 1192 of 1990, are disposed of subject to the observations made by us above.