SWAYAMPRABHA Vs. HOUSE RENT AND ACCOMMODATION CONTROLLER

JUDGEMENT

(1.) THE petitioner, in this petition, is the owner of the premises bearing No. 5, III Cross, puttaranganna Layout, Pipe Line, Malleswaram, Bangalore. In this petition, she has challenged the correctness of the order dated 29th of April 1993, a copy of which has been produced as annexure-B, passed by the third respondent confirming the order dated 29th July 1992, a copy of which has been produced as Annexure-A, passed by the first respondent treating the premises, referred to above belonging to the petitioner, as having become vacant and allotting the same in favour of the second respondent.

(2.) IT is the case of the petitioner that the premises in question was not vacant at any time and the same was in her juridical possession having been occupied by her younger sister one Dr. Savitharani and her husband. According to the petitioner, since the said sister of the petitioner, who is a Doctor by profession, and her husband, who is an Engineer, used to go to work early in the morning and return late in the evening and the premises was not vacant at any time and the same has been in possession of the petitioner from the very date of its purchase by the petitioner and prior to the purchase of the premises by the petitioner, it was in actual possession and enjoyment of the vendor of the petitioner. It is her further case that though the father of the petitioner had appeared before the first respondent and brought to his notice that the premises in question was not vacant and was occupied by the petitioner's sister and her husband, the first respondent, without any justification, treated the premises as having become vacant and allotted the same in favour of the second respondent solely relying upon the report of the Revenue inspector and also the alleged spot inspection of the premises said to have held by the first respondent without notice either to the petitioner or to her father; and that the appeal filed by the petitioner before the third respondent challenging the order passed by the first respondent, also came to be rejected without considering the claim of the petitioner on merits and in a mechanical manner.

(3.) SRI Sundar Raj, learned Counsel appearing for the petitioner, submitted that the orders impugned are totally illegal and suffer from errors apparent on the face of the record. According to the learned Counsel, the orders impugned are liable to be quashed mainly on three grounds. Firstly, he submitted that respondents 1 and 3 have, to come to the conclusion, that the premises in question had fallen vacant, solely relied on the report of the Revenue Inspector and also the alleged spot inspection said to have been held by the first respondent without giving notice to the petitioner or her father and, therefore, the orders impugned are liable to be quashed on the ground that there is no material on record to support the findings of respondents 1 and 3 that the premises in question had fallen vacant and also on the ground that the entire procedure followed by the first respondent was in disregard to the principles of natural justice. Elaborating this submission, the learned Counsel submitted that it is not permissible for respondents 1 and 3 to rely upon the report of the Revenue Inspector without furnishing a copy of the said report either to the petitioner or at least to the father of the petitioner, who had appeared before the first respondent in the course of the proceedings on behalf of the petitioner. It is further pointed out by the learned Counsel that the Revenue Inspector, who is stated to have given the report, was also not examined in the course of the proceedings by the respondent and he was not made available for cross-examination on behalf of the petitioner. Secondly, the learned Counsel pointed out that the entire approach made by respondents 1 and 3 in respect of the matters in controversy is erroneous in law. He submitted that respondent 1 and 3 have proceeded on the basis that the burden is on the petitioner to establish that the premises had not fallen vacant and the petitioner having failed to discharge the said burden, the first respondent is entitled to proceed on the assumption that the premises in question has fallen vacant. The learned Counsel pointed out that the said approach made by respondents 1 and 3 is erroneous in law and totally unwarranted from the reading of the provisions of Part-II of the Karnataka Rent Control Act, 1961 (hereinafter referred to as "the Act" ). It is the contention of the learned Counsel that since the first respondent gets jurisdiction to notify the premises as vacant and allot the same, he is required to satisfy himself that the premises had fallen vacant. If there is no material or evidence collected by the first respondent, according to the learned Counsel, it is not permissible for the first respondent to proceed on the assumption that the premises had fallen vacant and on that basis, on that basis, allot the premises. In support of this submission, the learned Counsel relied upon a Decision of this Court in M. JAYARAM vs. HOUSE RENT and ACCOMMODATION controller, ILR1992 KAR 1915 , 1992 (2 )Karlj1. Finally it is the contention of Sri Sundar Raj that the orders impugned are not speaking orders and they came to be passed in a mechanical manner and in disregard to the mandate contained in Sections 4, 5 and 8 of the Act.