V MAROLI Vs. ARCHBISHOP OF BANGALORE

JUDGEMENT

(1.) in the first writ petition, the petitioner has questioned the legality of the allotment of a premises in favour of the second respondent by the rent and accommodation controller, civil area, Bangalore, and the order of the deputy commissioner, Bangalore district, dismissing his appeal against the order of the rent controller. The second writ petition is presented by the allottee - the second respondent in the first writ petition - challenging the validity of sub-rule (1)(a)(10) of Rule 4 of the Karnataka rent control rules, which requires the rent controller to give priority in the matter of allotment of non-residential buildings, the rent of which exceeds Rs. 500-00, in favour of the person who has secured the consent of the landlord. For the sake of convenience, in the course of our Order, we would be referring to the parties as in the first petition.

(2.) brief facts of the case, are these: the petitioner in W.P. No. 20391/86 is a citizen of india. He secured electrical engineering degree qualification in 1965. He went to dubai on some employment and returned in the year 1985. He secured import licence for importing machinery required for modern concrete block making issued by the government of India on 6-12-1984. A non-residential premises situated in st. Patrick's shopping arcade, residency- brigade road junction, Bangalore, was notified for allotment by the rent and accommodation controller, civil area, Bangalore, as required under Section 8 of the Karnataka Rent Control Act, 1961 the act' for short). As many as nine persons filed applications seeking allotment. The petitioner and the second respondent were among them. The rental of the premises as notified by the rent controller was Rs. 800-00 per month. Rule 4(1) (a) of the Karnataka rent control rules, ('the rules' for short) prescribe certain priorities required to be observed by the rent controller in making allotment of residential and non-residential premises. Sub-rule (10) thereof provided that in respect of non-residential building, the monthly rent of which exceeds Rs. 500-00, the premises should be allotted to the applicant who has secured the consent of the landlord. The petitioner had secured the consent of the landlord. The rent controller, however, considered that the consent given by the landlord has to be taken into consideration only when the concerned applicant establishes his bona fides for the requirement of the notified premises and that as far as the petitioner was concerned, he admittedly being a non-resident Indian it was unlikely that he would make use of the premises and therefore the consent of the landlord deserves to be ignored. The rent controller considered that among the nine applicants, the second respondent's claim was genuine and accordingly proceeded to make allotment in favour of the second respondent. Aggrieved by the order of the rent controller, the petitioner preferred an appeal before the deputy commissioner, Bangalore district, under Section 12 of the act. The appellate authority agreed with the view taken by the rent controller and dismissed the appeal. Aggrieved by the said Order, the petitioner has presented this petition.

(3.) Sri f.l.f. alvares, the learned counsel for the petitioner, contended that when Rule 4(1) (a) (10) expressly provided that in respect of non-residential premises, the monthly rental of which exceeded Rs. 500-00, priority must be given in the matter of allotment to any applicant who had secured the consent of the landlord, the same was binding on the rent controller and he had no discretion to go into the bona fides of the requirement of an applicant who had secured the consent of the landlord. In support of the contention, the learned counsel relied on the judgment of this court in the case of Vishalakshi v Special Deputy Commissioner, 1978(2) kar. L.j. p. 49. In the said decision, this court held that the rent controller was bound to observe the priority prescribed under Rule 4(1)(a) of the rules. The learned counsel also relied on another judgment of this court in Suresh Heblikar v House Rent And Accommodation Controller, 1987(2) kar. L.j. sh. N. 335: ILR 1987(2) kar. 1215. In the said decision, this court held that the power conferred on the rent controller to make allotment was under sub-section (2) of Section 8 which itself provided that the rent controller shall observe such order of priority as may be prescribed and therefore when the rules prescribe priority in the matter of allotment, the rent controller cannot make any allotment in disregard of the priority.