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PETITIONER: D.K. NABHIRAJIAH

       Vs.

RESPONDENT: THE STATE OF MYSORE AND OTHERS.

DATE OF JUDGMENT: 26/05/1952

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN

CITATION:  1952 AIR  339            1952 SCR  744

ACT:      Mysore  House  Rent and Accommodation.  Control  Order, 1948-Validity--Fundamental  right  not  to  be  deprived  of property--Constitution  of  India,  Arts.  31  (2),  19  (1) (f)--Order  of  allotment  before  Constitution  came   into force--Possession     taken     thereafter--Validity      of proceedings--Writ for quashing orders--Maintainability.

HEADNOTE:     A  house belonging to the petitioner in  the  Bangalore City  fell  vacant on the 1st September,  1949, and  on  the 13th  September, 1949, an order was passed by the Rent  Con- troller 745 under  the  Mysore  House  Rent  and  Accommodation  Control Order,  1948,  allotting  the house to  another  person  and directing  the petitioner to deliver possession to the  lat- ter.  The petitioner protested and took various steps to get the  order  vacated  but he was  unsuccessful  and  forcible possession  was  taken from him under an order made  on  the 11th April, 1950. He applied to the Supreme Court under Art. 32 of the Constitution for  quashing the order allotting the house and the subsequent orders made to enforce that  order, on  the ground, infer alia, that these  orders   contravened the provisions of Arts. 31 (2) and 19 (1) (f) of the Consti- tution:      Held,  (i)  that  as the order of  allotment  was  made before  the Constitution came into force and at a time  when the  Control Order provided, validly, that a house could  be taken for the occupation of a private individual, the  order could not be impugned on the ground that it contravened Art. 31 (2) or 19 (1)(f) of the Constitution: (ii) the fact  that possession was actually taken only in pursuance of an  order made  on the 11th April, 1950, was immaterial as  the  peti- tioner’s right to possession was lost earlier; (iii) Art. 31 (2)  was inapplicable for another reason also, namely,  that there  was  no  acquisition of the house by  the  State,  as taking of possession can only be from a person who is  enti- tled  to possession and the landlord lost his right to  pos-

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session by reason of the Controller’s order.     Held also, that the power conferred by cl. (bb) of  sub- cl.  (2)  of Rule 81 of the Defence of  India  Rules  (under which the Control Order was made) was not confined to  cases where  the house was available for letting or subletting  in the  sense that the landlord did not require the  house  for his own use or had not let it to another himself.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 297 of 1951.     Petition under Art. 32 of the Constitution of India  for enforcement of fundamental rights by quashing the orders  of the  Deputy Commissioner and House Rent  Controller,  Banga- lore, allotting the petitioner’s house to the 3rd respondent and for taking forcible possession of the same. S.K. Venkataranga Iyengar for the petitioner.     A.R.  Somanatha  Iyer, Advocate-General of  Mysore,  (R. Ganapathy Iyer, with him) for the respondent No. 1.     K. Ramaseshayya Chowdhury for the respondent No. 2.     1952.   May 26  The Judgment of the Court was  delivered by 746     CHANDRASEKHARA  AIYAR J.--This is an  application  under article  32 of the Constitution for quashing the  orders  of the  Deputy Commissioner and House Rent  Controller,  Banga- lore,  (2nd respondent) allotting house No. 291, Fifth  Main Road,  Gandhi  Nagar,  Bangalore City, for the  use  of  Sri Aswathanarayana  Rao (3rd respondent)  and  taking  forcible possession  of  the same. The State of Mysore has  been  im- pleaded as the first respondent,      The  facts are these.  The petitioner D.K.  Nabhirajiah is  a merchant and is the owner of the  premises  aforesaid. After  lengthy  litigation,  the previous  tenant    of  the premises  vacated it on 1st September, 1949. On 2nd  Septem- ber,  1949, the petitioner notified the vacancy to  the  2nd respondent  as required by law but added that he wanted  the premises for his own use to set up one.of his grown-up  sons in  a  business in electrical goods.  The  third  respondent Aswathanarayana  Rao  however wanted the house for  a  chil- dren’s  school which he was running under the name  of  Bala Mandir and so he not only applied to the Rent Controller for allotting to him that house but also moved the Minister  for Law and ’Labour for the same purpose.    The  second respondent made an order on  13th  September, 1949, in the following terms:    "With  reference  to your vacancy report in  respect  the above  place  you  are informed under clause 3  (2)  of  the Mysore House Rent and Accommodation Control Order, 1948 that the  building is required for the occupation of  Balamandira Home for the children and for residential use of the  Direc- tor.   You are therefore directed under clause 3 (4) of  the Mysore  House Rent and Accommodation Control Order, 1948  to hand  over  possession of the above house to  the  said  Sri Aswathanarayana Rao, Director, Balamandira."    By an order dated 20th September, 1949, made on an appli- cation  by  the petitioner dated 16th September,  1949,  the Deputy Commissioner refused to reconsider the allotment  and required  the petitioner to give effect to the same at  once and deliver possession to the allottee, 747     The  petitioner preferred an appeal to the  Commissioner of Labour who is the House Rent Control Appellate  Authority and obtained a stay, but the appeal was eventually dismissed

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and the said order vacated on 28th December. 1949. He  filed a Revision Petition No. 97 of 1949-50 before the  Government of Mysore but without success and the Government declined to interfere  by  their order dated 14th March, 1950.  He  then resorted to the High Court of Mysore by means of a  petition under  section  45 of the Mysore Specific Relief  Act.  This again  was dismissed on the ground that the party who  seeks to  obtain an order under the said section cannot do  so  on the  allegation that the statute which enjoins the doing  or for  bearing  of the act is itself illegal or  ultra  vires. Applications moved under article 226 of the Constitution  in the course of the same proceedings also failed. This was  on 5th January, 1951.      Some  intermediate steps may now be set out. The  third respondent complained that he had not been given possession. On this complaint, the second respondent passed an order  on the 20th March, 1950, to the following effect :--     "Sri  Aswathanarayana  Rao, the allottee  of  the  above house, has reported that you have not handed over possession of the house to him. You are required to show cause  immedi- ately  why you should not be prosecuted for failure t0  obey the order.  Please note that if the house is not handed over to the allottee, action will be taken under clause 3 (6)  to take forcible possession of the house through police."     The  petitioner  lodged  a protest  against  this  order pointing out that the House Rent Accommodation Control Order did  not vest the Controller with jurisdiction to allot  the house,  but on 23rd March, 1950, he received  the  following reply:--     "Your  letters under reference have been examined  care- fully.   It is not correct to say that allotment of a  house to any party (private)is illegal.  Clause 3 of 97 748 the  Mysore  House Rent Control Order, 1948, is  amended  to include  any  person also.  I do not find any  other  reason except that you are evading to give possession to the allot- tee.   You are hereby finally warned that if  possession  is not given to the allottee action will be taken to  prosecute you and take forcible possession of the house."      On  11th  April, 1950, the second respondent  made  the following order:--     "Whereas premises No. 291, Fifth Main Road, Gandhi Nagar was allotted to Sri Aswathanarayana Rao of Balamandira   The owner’s appeal before the Labour Commissioner and Government having  been rejected the owner filed a petition before  the High  Court of Mysore who passed an interim order and  which was  vacated by the order referred to above.   A  subsequent appeal before the Labour  Commissioner has also been reject- ed and stay vacated in Endorsement in H.R.C. 1/1940-50 dated 10th  April,  1950.  I therefore direct the owner Sri  D.  K Nabhirajiah to hand over possession of the said house to Sri Aswathanarayana Rao at once, failing which, I authorise  the Superintendent of Police, Bangalore City or any other  offi- cer empowered by him in his behalf to take possession of the house  and  hand over to the allottee,  Sri  Aswathanarayana Rao."     As this order was not obeyed by the petitioner, forcible possession  was taken of the house with police help and  the third respondent was given possession.     The petitioner seeks to quash the above-mentioned orders of  the second respondent dated 20th September,  1949,  20th March,  1950, 23rd March, 1950, and 11th April,  1950.   The prayer  in the petition is thus worded: --     "for  quashing the orders of the second  respondent  No.

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522--Acc.  (b)-49 dated 20th September, 1949,  confirmed  by Appellate  Authority in H.R.C. Appeal No. 117  of  1949-1950 dated  28th December, 1949, and by the Government of  Mysore in H.R.C. Revision Petition  No.  97 of 1949-1950 dated 14th March 749 1950,   and   also  the  subsequent  orders of   the  second respondent  No.  562  Acc.  (b)-50  dated 20th March,  1950, 23rd  March,  1950,  and  11th April,   1950,   respectively allotting    and   taking over forcible  possession  of  the property  No. 291, Fifth Main Road. Gandhi Nagar,  Bangalore City,  for  the use of a private individual, the  third  re- spondent, and for costs."     The  contention  of the petitioner is a  threefold  one, namely :--      (1)  The order allotting the premises to the third  re- spondent  contravenes  the provisions of  article  31,  sub- clause (2) and article 19 (1} (f) of the Constitution.     (2)  The order is discriminatory and offends article  14 of the Constitution.     (3)  Under  the Defence of India Rules under  which  the Accommodation Control Order was made, the allotment can only be of houses available for letting.    It will be convenient here to set out the relevant legis- lative provisions.  The Mysore House Rent and  Accommodation Control Order,  1948,  (hereinafter referred to for the sake of convenience as the Control Order) was made in exercise of the powers conferred by clause (bb) of sub-rule (2) of  Rule 81  of the Defence of India Rules as applied to Mysore,  and it came into force with effect from 1st July, 1948.   Clause 3 of the Control Order provides, subject to two  exceptions, for  notice  being given by the landlord to  the  Controller within  seven days after a house becomes  vacant.  Subclause (2), as it originally stood, was in the following terms :--     "(2) If within ten days of the receipt by the Controller of  a notice under sub-clause (1), the Controller  does  not intimate the landlord in writing that the house is  required for  the  purposes of the Government of Mysore,  or  of  the Central Government, or of the Government of an Indian  Prov- ince or State, or of any local authority or public body,  or of  any  educational  or other public  institution  for  the occupation of any 750 officer  of any such Government authority, body or  institu- tion,  the landlord shall be at liberty to let the house  to any tenant, or if the Controller, on application made by the landlord permits the landlord to do so, to occupy the  house himself."       By a notification dated 4th May, 1949, the words:  "or for  the occupation of any individual" were added after  the words  "body or institution" in the said  sub-section.   The sub-clause as amended runs thus:    "(2) If within ten days of the receipt by the  Controller of  a notice under sub-clause (1), the Controller  does  not intimate the landlord in writing that the house is  required for  the  purposes of the Government of Mysore,  or  of  the Central Government, or of the Government of an Indian  Prov- ince or State, or of any local authority or public body,  or of  any educational or other public institution, or for  the occupation of any officer of any such Government  authority. body or institution or for the occupation of any individual, the  landlord  shall be at liberty to let the house  to  any tenant,  or  if the Controller on application  made  by  the landlord, permits the landlord to do so, to occupy the house himself."

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 Sub-clause (8) says :-- "The landlord shall not let the house to a tenant or  occupy it  himself,  before the expiry of the period  of  ten  days specified in sub-clause (2), unless he has received  intima- tion  that  the house is not required for the  purposes  re- ferred  to in that sub-clause or the permission referred  to therein, earlier."   To this sub-clause, a proviso was added by a  notification to the following effect:     "Provided  that  the Controller,  before  requiring  the house for any of the purposes stated above, shall take  into consideration such representation, if any, as may be made by the owner regarding his bona fide requirements for  personal occupation." Then comes sub-clause (4) which reads as follows :--      "(4)  If the house is required for any of the  purposes or for the occupation by any of the officers 751 specified  in sub-clause (2)the landlord shall deliver  pos- session  of the house to the Government authority,  body  or institution concerned and such Government authority or  body or  institution  shall  be deemed to be the  tenant  of  the landlord,  with retrospective effect from the date on  which the  Controller  received notice under sub-clause  (1),  the terms  of the tenancy being such as may be agreed  upon  be- tween the landlord and, the tenant:     Provided that the rent payable shall not exceed the fair rent which may be payable for the house under the provisions of this Order."     The Mysore House Rent and Accommodation Control Order of 1948 was repealed by the Mysore House Rent and Accommodation Control  Act XXX of 1951. But what is relevant and  material for  disposal of this petition is the earlier Control  Order as all the proceedings now in question were taken under it.     If  the allotment had been made under the Control  Order prior  to  the date of its amendment on 4th May,  1949,  the petitioner  would have had a good case to urge.   Sub-clause (2)  as it then stood spoke of the house being required  for certain  specified purposes or for any educational or  other public  institution, or for the occupation of an officer  of any Government authority, body or institution;and the  house could  not  have been  required  for the   occupation  of  a private  individual.   But the amendment  has  enlarged  the scope  of the power of the Controller by providing that  the requirement may also be for the occupation of any  individu- al.     The  answer to the first contention based on article  31 (2) or article 19(1) (I) of the Constitution is a short one. The Constitution came into force on the 26th January,  1950, after the impugned orders were made and at a time when there was nothing like a chapter of Fundamental Rights. The  argu- ment  that the requisition in the present case was  not  for any public purpose and the restriction on the respondent  to hold property must be in the interests of the general public presupposes that the Constitution governs the case.  This 752 assumption,  however,  is not well-founded.   The  order  of allotment  was made before the Constitution came into  force and at a time when the Control Order provided, validly, that a  house  could  be taken for the occupation  of  a  private individual.  During the period of 10 days specified in  sub- clause  (2), the landlord could not let the house or  occupy it  himself,  and on allotment, he was bound to  deliver  up possession  to  the allottee.  His rights as  landlord  were thus at an end so far as possession was concerned.

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    Whether retrospective effect  could be given to article 13  (1) of the Constitution arose for decision  in  Keshavan Madhava  Menon v. The State of Bombay(1). Dealing  with  the argument  that the said article rendered voidab  initio  and for all purposes an earlier law which was inconsistent  with fundamental  rights, it was laid down by this Court in  that case  "that such laws existed for all past transactions  and for enforcing all rights and liabilities accrued before  the date of the Constitution." (Per Das J., at page 234).    Mr. Justice Mahajan observed at pages 249 and 250:--      "It  is  admitted that after the  26th  January,  1950, there  has been no infringement of the appellant’s right  of freedom of speech or expression.  In September, 1949, he did not   enjoy  either  complete freedom of  speech   or   full freedom  of expression.  It  is in relation to the   freedom guaranteed  in   article 19 (1) of the Constitution  to  the citizen  that  the provisions of article 13  (1)  come  into play.   the article does not declare any law void  independ- ently of  the  existence of  the freedoms guaranteed by Part III.  A  citizen must be possessed of  a  fundamental  right before he can ask the court to declare a law which is incon- sistent  with it void; but if a citizen is not possessed  of the right, he cannot claim this relief." These remarks  have application here.     The  learned Advocate for the petitioner sought  to  get over this difficulty by pointing out that the (1) [1951] S.C.R. 228. 753 dispossession took ’place on 11-4-1950. This, however, is no answer.  The  dispossession  was a  mere  consequence  which followed  under clause ’3, sub-clause (6)    of the  Control Order.   The  right to possession was lost earlier  and  the landlord merely held on to the property.   Article31 (2)does not apply for another reason. There  was no  acquisition  by the State of the house.  The  taking  of possession  can  only be from a person who  is  entitled  to possession.   The petitioner landlord  lost  his  right   to possession   by reason  of the Controller’s order.  As  soon as the allotment is made, the allottee becomes a tenant  and the owner becomes the landlord by reason of sub-clause (4)of the  Control Order and the learned Advocate-General  of  the Mysore  State   contended   that a   statutory  tenancy  was thereby created. It is no doubt true that it is provided  by sub-clause (4) that the terms of the tenancy may be such  as may be agreed upon between the landlord and the tenant,  and there is no provision, as found in the later Act, as to what is  to happen in the event of there being no agreement.   If it  is correct that a tenancy is brought into  existence  by the  operation of the statute, it is possible that  in  case the  terms are not the subject of any agreement between  the landlord  and the tenant, the ordinary law of  landlord  and tenant  will apply in the absence of any provision  for  the fixation of terms by the Controller.  But the point does not arise for decision in this case and nothing. further need be said about it.     The applicability of sub-clause (4) of the Control Order was  sought to be avoided in another manner. It was  pointed out  that sub-clause (2) referred in its first part "to  the purposes of the Government of Mysore" etc., and in its later part "for the occupation of any officer or any such  Govern- ment  authority, body or corporation, or for the  occupation of an individual", but that when we come to sub-clause  (4), the  two  categories are kept distinct or  separate  and  in referring to the second category the Control Order 754

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speaks  only of the requirement of the house for the occupa- tion  by any of the officers and nothing is  said about  the occupation  of   any individual. The amending  Act  did  not introduce the words "or  for the occupation of any individu- al"  into sub-clause (4). Therefore, it was urged  that  the whole  basis  of the Advocate-General’s contention  about  a statutory tenancy being created fell to the ground. At first sight,  there  seems to be something in the  point.  But  if sub-clause  (2)  is  read as a whole, having  in  ’view  the object  sought  to  be achieved by the  legislation,  it  is fairly  clear  that there is no  such  necessary  antithesis between  the  two categories or clauses and that  the  words "for the purposes" can be so read as to include "occupation" also.  ’the omission of the words "for the purposes" in  the latter part of sub-clause (2) was perhaps to avoid  inartis- tic phraseology. "For the occupation" certainly reads better than "for the purposes of the occupation".     Ground No. 2 regarding discrimination was not pressed.     Then, we come to ground No 3. Clause (bb) of  sub-clause (2)  of  Rule 81 of the Defence of India Rules is  in  these terms:--      "(bb) for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or  non-residential,  whether furnished or  unfurnished  and whether with or without board, and in particular,--     (i)  for  controlling the rents for  such  accommodation (either  generally  or  when let  to  specified  persons  or classes of persons or in specified circumstances);     ((ii)  for preventing the eviction of tenants  and  sub- tenants from such ’accommodation in specified  circumstances and);    (iii) for requiring such accommodation to be let  either generally, or to specified persons or classes of persons, or in specified circumstances;  ....  ," 755     It  was urged that the power conferred under  this  sub- clause  applied  only  to those cases where  the  house  was available for letting or sub-letting and not to eases  where a  house was not so available, in other words, if the  land- lord  of any premises said that they were required  for  his own  occupation, the Government had no power to  requisition the same, Emphasis was laid on the word "regulating".  This, however, is an obviously unsound interpretation to be placed upon the words.  They mean that the Government might provide for and regulate the letting and sub-letting etc., and  that such is the scope is clear from the words in sub-clause  (2) "may by order provide". The argument for the petitioner,  if accepted,  would render the powers entirely nugatory, as  it would  then be open to every landlord to say that the  prem- ises  are required for self-occupation, or even that he  has already  let it out to another and that therefore it is  not available for being let.      There was no requisition of property in this case under section  75 (A) of the Defence of India Rules.  The  Control Order was promulgated under rule 81 (2) (bb) which  provides for the regulation of letting and sub-letting houses. It  is rather  the  exercise  of a police power  of  regulation  in public  interest  than anything done in the  exercise  of  a power  of  eminent  domain, in which  case  alone  questions relating to compensation and public purpose will arise.     In  the course of the arguments, it was  suggested  that the amendment notification of 4th May, 1949, introducing the words "or for the occupation of any individual" was  invalid because  the  regulation of letting  and  sub-letting  under clause  (bb) could only be for the Defence of British  India

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or  for the efficient prosecution of the war, or  for  main- taining  supplies and services essential to the life of  the community,  and that the taking of property for the  occupa- tion  of a private individual was outside the scope  of  the power.   Apart  from the fact that no such ground  has  been taken in the petition, it has also to be noted that 98 756 the Control Order purports to have been made not only  under clause  (bb)  of sub-rule (2) of rule 81 of the  Defence  of India  Rules,  but  also under the  Supplies,  Services  and Miscellaneous Provisions (Temporary Powers) Act of 1947.  We have not got this Act before us and it was not even referred to  in  the course of the arguments.  Hence no  decision  is called for on this point.     The petition fails and is dismissed without any order as to costs.                                    Petition dismissed. Agent for the petitioner: K.R. Krishnaswarny. Agent for the respondents: P.A. Mehta.