ORDER
Venkataraman, J
1. The petitioner has filed this Petition for quashing the order dated 18.4.95 in HRC/DC/A-152-1994-95 passed by the second respondent and for a Writ of Mandamus or any other Writ or direction declaring that order dated 14.3.95 passed by the third respondent is illegal, arbitrary and unenforceable and to consider the matter afresh by giving an opportunity to the petitioner to lead evidence before it in HRC/ACC(E) 274/94 and proceed with the case thereafter.
2. The facts giving rise to this Petition in brief are as hereunder: The Revenue Inspector attached to the office of third respondent, House Rent and Accommodation Controller, Bangalore, gave a report dated 23.8.94 to the effect that the premises bearing No. 544, Ground Floor, First Stage, Indiranagar, Bangalore, had fallen vacant. The Controller issued a notice to the petitioner-landlord to show cause as to why the vacancy was not reported. The petitioner by his reply dated 30.8.94 while admitting that the premises had fallen vacant, pleaded that he was out of station and when he returned to Bangalore he received the notice and that he had however the intention of informing the Controller about the premises falling vacant after returning to Bangalore. He further stated that he needed the premises for occupation of his son who was expected to be transferred from Ranchi, where he was presently employed. Though in that letter he stated that he was enclosing Form-l under Section 4(1) of the Karnataka Rent Control Act ('the Act' for short) he had not done so. Thereafter the Controller suo moto notified the vacancy on 24.9.94 and issued a notice to the petitioner under Section 4 of the Act along with a copy of the notification. The fourth respondent and another applicant applied for allotment. The petitioner filed objections contending that the building was constructed in 1991 and was less than 5 years in age and as such it was exempted from provisions of Part-II of the Act. He also contended that the premises were required for the use of his son. He produced a certificate issued by the Bank to show that he had taken a loan from the Bank on 20.4.91 and 21.5.91for construction of that house and also a certificate issued by the K.E.B. to the effect that installation No. MEH.26398 was serviced on 3.12.91. Corporation notice revising the annual value from Rs. 18,000/- to Rs. 31,800/- with effect from 1.4.92 was also produced. The Revenue Inspector produced another certificate issued by the K.E.B. which showed that installation bearing RR No. 3EH 18441 and 3EH26398 in premises No. 664, I Main Road, Indiranagar were serviced on 20.9.86 and 5.12.91 respectively. One of the applicants also produced an extract of Corporation Assessment Register to show that premises No. 644 was assessed even prior to 1989. Though the petitioner was asked to produce the sanctioned plan of ground floor to show as to when it was constructed the petitioner did not produce it on the ground that he had given the plan to the Bank. The Rent Controller inspected the premises and found that installation No. 26398 pertained to the first floor and the installation No. 3EH 18441 pertained to the ground floor. On the material on record the Controller held that the premises in question namely ground floor of No. 644 was constructed in 1986 itself, that the letter of the Bank showed that the loan was given for construction of first floor and that the objection taken by the petitioner regarding the age of the building was not true. She also held that the petitioner's claim that he requires it for his son's occupation was not acceptable as at the time of the inspection she found that the premises in question was in occupation of one P. Vishwanathan and family and the petitioner's son was employed and living at Ranchi. As the fact that the vacancy had arisen had been admitted by the petitioner himself in his reply to the notice, the Controller allotted the premises to the fourth respondent. The Deputy Commissioner before whom the petitioner challenged the order has dismissed the appeal affirming the order of the Controller.
3. After the filing of this Petition the State Government has issued a Notification No. RE 77 GHR 95 dated 24.4.95 in exercise of the power conferred by Sub-section (6) of Section 2 of the Act directing that provisions of Sections 4, 5 and 10A of the said Act shall cease to be applicable to the area within the limits of the Bangalore City with effect from the date, of publication of the Notification in the Official Gazette. The Notification is published in an Extraordinary Gazette dated 24.4.95. Thus from 24.4.95 the provisions of Sections 4, 5, and 10A have ceased to apply to Bangalore City.
4. Sub-section (6) of Section 2 of the Act reads as hereunder:
'(6) The State Government may at any time by notification direct that all or any of the provisions of Parts II, III, IV, V or VI shall cease to be applicable to any area whether specified in Schedule I, II or III or not, on such date as may be specified in the notification; and on that the said provisions shall cease to be applicable to such area.
Provided that Section 6 of the Karnataka General Clauses Act, 1899 shall apply when any provision of this Act ceases to be applicable to any area, as if it had then been repealed by a Karnataka Act.
Provided further that the issue of a notification under this sub-section shall not preclude the issue of a notification under Sub-section (5) applying all or any of the provisions of the said parts to such area.'
5. The main contention of Sri S. Vijaya Shankar, the learned Senior Counsel appearing for the petitioner, is that in view of the above Notification the order of allotment made by the Controller has lapsed or abated, that though Section 6 of the Karnataka General Clauses Act ('the KGC Act' for short) is made applicable that provision would save only the rights vested in a party by virtue of the provisions of the repealed Act and that a right which cannot be said to be a vested right would not be saved. According to him under the provisions of the Transfer of Property Act a landlord has the right to lease out his property to anyone he likes when a vacancy arises or to occupy it himself and the provisions of Sections 4, 5 and 10A of the Act are restrictions on that rights of the landlord and as such the fourth respondent who had sought for an allotment had only a statutory right to have his application considered under the repealed provisions and he had no vested right. He further contended that though an order of allotment had been made in fourth respondent's favour, as he had not been put in possession of the premises, his right is still inchoate and it is not a right which is saved by Section 6 of the KGC Act. He strongly relied on the Decisions of the Supreme Court in D.C. BHATIA AND ORS. v. UNION OF INDIA AND ANR. : (1995)1SCC104 and PARRIPATI CHANDRASEKHARRAO & SONS v. ALAPATI JALAIAH : [1995]3SCR817 , in support of his contention,
6. Sri S. Shekar Shetty, the learned Counsel for the fourth respondent, contended that the Notification makes it clear that the provisions of Sections 4, 5 and 10A of the Act ceased to apply only with effect from the date of publication in the Notification i.e., 24.4.95 and that as such it is patent that it has no retrospective operation so as to render the order already passed ineffective and that apart, Section 6 of the KGC Act, which is made expressly applicable, clearly shows that the order of allotment passed as well as the right of the fourth respondent to occupy the premises in pursuance of the order are in no way affected. With regard to the Decisions of the Supreme Court relied on by the petitioner's Counsel he pointed out that in those cases the amendments which brought about repeal of certain provisions of the Rent Act had not made the provisions of the General Clauses Act applicable and that the Supreme Court also was not required to consider whether the right acquired under the repealed Act stood saved by virtue of the provisions of the General Clauses Act. He pointed out that in JAYANTHILAL AMRATLAL v. THE UNION OF INDIA AND ORS. : AIR1971SC1193 , it is held that in order to see whether rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment, has by its new provisions kept alive the rights and liabilities under the repealed law, but whether it has taken away those rights and liabilities. He also pointed out that the Supreme Court in JOSE DA COSTA AND ANR. v. BASCORA. SADASHIVA SINAI NARCORNIN AND ORS. : AIR1975SC1843 , has held that even a right of appeal which was available when a suit was filed cannot be said to have been taken away unless that right is taken away expressly or impliedly with retrospective effect or that the Court to which the appeal lay at the commencement of the suit stands abolished and contended that the allotment which has been lawfully done is not affected by the subsequent cessation of the applicability of those provisions.
7. The first Proviso of Sub-section (6) of Section 2 of the Act expressly makes the provisions of Section 6 of the KGC Act applicable when a provision of the Act ceases to apply to any area by virtue of a Notification issued by the Government in exercise of its powers under that sub-section. Section 6 of the KGC Act reads as hereunder:
'6. Effect of repeal.- Where this Act or any Mysore Act or Karnataka Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.'
Clause (b) clearly lays down that the repeal will not affect 'anything duly done or suffered thereunder'. The object and amplitude of such a clause arose for consideration before the Supreme Court in HASAN NURANI MALAK v. S.M. ISMAIL, ASSISTANT CHARITY COMMISSIONER, NAGPUR AND ORS : [1967]1SCR110 . In that case the Madhya Pradesh Public Trust Act was previously applicable to the area of Vidharba and subsequently Bombay Public Trust Act was made applicable to that area. While the Madhya Pradesh Act of 1951 stood repealed by the Bombay Act, so far as it applied to Vidharba, there was a saving clause which provided that the repeal or cessation of the Act shall not in any way affect anything duly done or suffered under the laws thereby repealed or ceasing to apply before the said date. There were other saving clauses similar to Clauses (c) to (e) of the KGC Act. The question which arose for consideration was whether the Assistant Charity Commissioner appointed under the Bombay Public Trust Act had jurisdiction to hold enquiry under the Bombay Act in spite of a previous finding recorded under the provisions of the Madhya Pradesh Act to the effect that the Trust in question was not a public trust. The Supreme Court interpreting the words 'anything duly done' at para 10 has held as hereunder:
'The words 'anything duly done' in Sub-clause (a) are veryoften used by the legislature in saving clauses such as we havein Section 86(3). Section 6 of the General Clauses Act, 1897 alsoprovides that unless a different intention appears the repeal of anAct would not affect anything duly done or suffered thereunder.The object of such a saving clause is to save what has beenpreviously done under the statute repealed. The result of such asaving clause is that the pre-existing law continues to govern thething done before a particular date from which the repeal of sucha pre-existing law takes effect. In Universal Imports Agency v. Chief Controller of Imports and Exports, : [1961]1SCR305 , construing the words 'things done' used in Para 6of the Fresh Establishments (Application of Laws) Order, 1954,this Court held that on a proper interpretation the expression'things done' was comprehensive enough to take in not only thethings done but also the effect of the legal consequences flowingtherefrom. The inquiry held by the Registrar under the M.P. Actwas indisputably 'a thing duly done' under that Act. The inquiryand its result having been saved by Section 86(3)(a) theycontinue to be governed by the M.P. Act in spite of its ceasing toapply in Vidarbha.'
8. The above Authority shows that even an inquiry conducted under the repealed provisions would come within the expression 'things duly done'. In the present case the Notification of vacancy issued by the Controller, the inquiry done and the order of allotment of the premises to the fourth respondent would all come within the ambit of expression 'things duly done' under the repealed provisions and by virtue of Clause (d) of the KGC Act they are not in any way affected by the present Notification. When once the Controller passes an order of allotment, a right accrues to the allottee to occupy the premises. In this connection reference to Section 10 of the Act may be made. Section 10 of the Act reads as hereunder:
'10. Rights over the building ordered to be leased to a public authority or other person:-
(1) Upon the service of the order under Section 5 or 6, the landlord shall deliver possession of the building to the authority or person to whom building is directed to be leased on the date specified in such order and such authority or person shall be deemed to be the tenant of the landlord with effect from the date on which the possession of building is delivered to such authority or person at the rate of rent specified in such order, the other terms of tenancy being such as may be agreed upon between the landlord and the tenant or in default of any agreement, as may be determined by the Controller.
(2) If the landlord fails to deliver possession under Sub-section (1), Controller or any officer authorised by him may take possession of the building breaking open locks, if any, using such force with such police assistance as may be required for evicting any person in occupation or control of such building who refuses to deliver and for removing any obstruction or resistance in the taking of such possession.(3) xxx xxx xxx
9. Under the above provisions once the order under Section 5 is served on the landlord he is under an obligation to deliver possession to the person to whom the premises are allotted and if he fails to do so the Controller can forcibly secure the possession to the allottee. Thus once an order is passed while the landlord is under the obligation to deliver possession, the allottee gets a right to be put in possession. The obligation of the landlord and the right of the allottee arise out of the provisions which are subsequently repealed and they are expressly saved under Clause (c). It is worthwhile to note that the Notification in question has not made Section 10 of the Act inapplicable. In view of the above express provisions it cannot be said that the order legally passed by the Controller, allotting a house which fell vacant under the provisions of Section 5 prior to the date on which the Notification was published, would automatically lapse or abate by virtue of the Notification.
10. Coming to the Decisions of the Supreme Court in which strong reliance is placed by the learned Counsel for the petitioner tocontend that the right of a tenant under the Rent Act is not a vested right and as such it would not be saved when the provisions are made inapplicable, it may be noted that the Supreme Court was not dealing with a case where a lawful order had been passed under the provisions of the repealed statute and a party had been conferred a right in pursuance of that order. Question of considering saving provisions such as the provisions of Section 6 of the KGC Act did not arise in those Cases.
11. In D.C. Bhatiya's case, the question which arose for consideration was whether the amendment of Section 3(c) of the Delhi Rent Control Act by Amendment Act of 1988, by which a premises, the monthly rent of which exceeded Rs. 3,500/- were taken away from the ambit of the Rent Control Act and which amendment came into force on 1.12.88 would apply to tenancies created prior to 1.12.88. It was contended that the tenants whose tenancy had come into existence prior to 1.12.88 had acquired a vested right to be governed by the provisions of the Rent Control Act and as such the amendment cannot be given retrospective effect so as to take away that right. The Supreme Court, negativing that contention, has held as hereunder:
'We are unable to uphold this contention for a number of reasons. Prior to the enactment of the Rent Control Act by the various State Legislatures, the legal relationship between the landlord and tenant was governed by the provisions of the Transfer of Property Act. Delhi Rent Control Act provided protection to the tenants from drastic enhancement of rent by the landlord as well as eviction, except on certain specific grounds. The legislature by the Amendment Act No. 57 of 1988 has partially repealed the Delhi Rent Control Act. This is a case of express repeal. By Amending Act the legislature has withdrawn the protection hitherto enjoyed by the tenants who were paying Rs. 3,500/- or above as monthly rent. If the tenants were sought to be evicted prior to the amendment of the Act, they could have taken advantage of the provisions of the Act to resist such eviction by the landlord. But this was nothing more than a right to take advantage of the enactment. The tenant enjoyed statutory protection as long as the statute remained in force and was applicable to him. If the statute ceases to be operative, the tenant cannot claim to continue to have the old statutory protection.'
In the above Case the question whether the amendment would apply to pending proceedings was not considered and no opinion was given.
12. In Parripati Chandrashekarrao's case, a tenant had filed applications before the Rent Court for a direction to permit him to deposit rent in Court, for fixation of fair rent and for prevention of some inconvenience caused to him. A Notification was issued with effect from 26.10.83 exempting from all provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, buildings whose monthly rent exceeded Rs. 1000/-. The Rent Controller rejected the petitions filed by the tenant on the ground that in view of the Notification he had no jurisdiction. That order was affirmed in Appeal. The High Court however held that the Notification did not apply to pending proceedings and as such Rent Controller had jurisdiction. The Supreme Court relying on the Decision in D.C. Bhatiya's case pointed out that the tenant enjoys the protective shield extended to him only so long as and to the extent the special legislation operates and that protection does not create any vested right which can operate beyond the period of protection or during the period the protection is not in existence. It was further held that when the protection does not exist the normal relations of the landlord and tenant come into operation and as such in that case the tenant who had the rights and remedies under the Act to claim reliefs against the landlord lost the same, the moment the protection was taken away as those rights and remedies were not vested rights.
13. It may be noted that in both the above Cases the tenants were seeking to rely on the protection given to them by the provisions of the Rent Act prior to their repeal. While in the first case it was contended that the rights of the tenant under the old law would continue to exist even after the repeal of the same, in the second case, the tenant had sought for some order under the law which stood repealed. No order had been passed giving any relief to the tenant under the provisions of the Rent Act. The Supreme Court has held that the repealed provisions gave only certain protection to the tenants and the tenants have no vested rights by virtue of its provisions and that once there is repeal of those provisions the protection gets withdrawn and the question of vested rights of the tenant being affected would not arise.
For the same reason it is held that the application filed by the tenant seeking some relief under the repealed provision which was still pending cannot be continued after the repeal or amendment. In this case what we are concerned with is whether an order lawfully passed prior to the Notification making certain provisions inapplicable ceases to be operative in view of the Notification. This is not a case where fourth respondent is seeking some protection given to him under the repealed provisions. As such the above Decisions of the Supreme Court have no application to the point at issue. The question on hand has to be decided with reference to the provisions of Section 6 of the General Clauses Act and as already pointed out under Clauses (b) and (c) of that Act the impugned order continues to be operative.
14. The learned Senior Counsel for the petitioner relying on the observations in para 53 of D.C. Bhatia's case to the effect that if any new or further step is needed to be taken under the repealed Act that cannot be taken even after the Act is repealed, contended that as in this case possession has not been delivered and as something more has to be done to put the fourth respondent in possession, that cannot be done after the repeal of the provisions. The above observation refers to some further step being taken to acquire the right under the repealed Act and in such a case that step cannot be taken once the Act is repealed. In the present case the order is already passed and nothing is required to be done under the provisions of Sections 4, 5 and 10A of the Act which cease to apply to the area in question. What is required to be done is to put the fourth respondent in possession by taking action under Section 10 which is still in force. As such the question of doing something under the repealed provisions does not arise in this case.
15. After careful consideration of the contentions raised by the learned Senior Counsel for the petitioner and the relevant legal provisions, I hold that the Notification dated 24.4.95 does not have the effect of rendering the order of allotment made by the Controller prior to the date of Notification inoperative.
16. Coming to the merits of the Writ Petition the learned SeniorCounsel for the petitioner contended that the petitioner had not been given sufficient opportunity to prove that the premises in questionwere less than 5 years old. It is seen that the appellant has producedcertain documents before the Controller and though the Controller required him to produce sanctioned plan he did not do so. When the petitioner complained before the appellate authority that he had not been given sufficient opportunity to produce evidence the appellate authority, i.e., the Deputy Commissioner, has given him time to produce the relevant evidence. However he has not chosen to do so. The two authorities, on the material on record and for valid reasons, have come to the conclusion that the premises were built in 1986. If really the premises were built in 1991 nothing prevented the petitioner from obtaining a copy of the sanctioned plan or take out summons to the Bank to produce the sanctioned plan. The two authorities have correctly assessed the material produced by the petitioner and have pointed out that they did not show that the premises in question were built in 1991.
17. A submission was made by the learned Senior Counsel that the Rent Controller had conducted spot inspection without notice to the petitioner. No such grievance was put forth before the Deputy Commissioner in the appeal filed by the petitioner. The petitioner has not disputed the correctness of the observations made by the Rent Controller at the time of the inspection in the appeal filed before the Deputy Commissioner. As such it is not open to the petitioner to now complain about the inspection done by the Controller. As the petitioner's own reply disclosed that a vacancy had occurred, the Controller has allotted the premises to the fourth respondent. No grounds are made out to quash the impugned orders.
18. For the above reasons this Petition is dismissed.