D.K. Nabhirajiah vs The State Of Mysore And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 297 of 1951

Decision Date: 26 May 1952

Coram: N. Chandrasekhara Aiyar, M. Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea

D.K. Nabhirajiah filed a petition against the State of Mysore and other respondents, and the Supreme Court of India delivered its judgment on 26 May 1952. The judgment was authored by Justice N. Chandrasekhara Aiyar, who sat on a bench together with Justices M. Patanjali Sastri, Mehr Chand Mahajan and B.K. Mukherjea. The case is reported as 1952 AIR 339 and 1952 SCR 744. The dispute concerned the Mysore House Rent and Accommodation Control Order of 1948 and the question of whether the orders issued under that regulation violated the fundamental right to property protected under Articles 31 (2) and 19 (1)(f) of the Constitution of India.

The petitioner, a merchant named D.K. Nabhirajiah, owned a house situated in Bangalore City. The house became vacant on 1 September 1949 after the previous tenant vacated. On 13 September 1949 the Rent Controller, exercising authority under the 1948 Control Order, issued an order allotting the house to another individual and directed the petitioner to deliver possession to the new occupant. The petitioner objected to that order and pursued various remedies in an effort to have it set aside, but none of those attempts succeeded. Subsequently, forcible possession was effected against the petitioner pursuant to an order dated 11 April 1950.

Unsatisfied with the outcome, the petitioner approached the Supreme Court under Article 32 of the Constitution, seeking a writ to quash both the original allotment order and the later orders that were used to enforce it. The petitioner argued that the orders infringed his constitutional rights under Articles 31 (2) and 19 (1)(f), contending that the state’s action amounted to an unlawful deprivation of his property.

The Court examined the timing of the initial allotment order and observed that it had been made before the Constitution came into force, at a time when the Control Order validly permitted a house to be appropriated for the occupation of a private individual. Consequently, the Court held that the allotment order could not be challenged on the ground that it contravened Articles 31 (2) or 19 (1)(f). The Court further noted that the fact possession was actually taken only after the 11 April 1950 order was irrelevant, because the petitioner’s right to possession had already been lost when the earlier Controller’s order was issued. Additionally, the Court found that Article 31 (2) did not apply because there was no acquisition of the house by the State; possession can be taken only from a person who is entitled to it, and the landlord’s entitlement had been removed by the Controller’s order.

Finally, the Court ruled that the power granted by clause (bb) of sub-clause (2) of Rule 81 of the Defence of India Rules, which formed the basis of the Control Order, was not limited to situations where the house was available for letting or sub-letting. The power extended even when the landlord neither required the house for his own use nor had already let it to another person. The petition, identified as Petition No. 297 of 1951 and filed under Article 32, was thus dismissed, and the orders of the Deputy Commissioner and the House Rent Controller were upheld.

The petitioner, D.K. Nabhirajiah, a merchant who owned house No. 291 situated on Fifth Main Road in Gandhi Nagar, Bangalore, filed an application under article 32 of the Constitution. The relief sought was the setting aside of the orders issued by the Deputy Commissioner and the House Rent Controller of Bangalore, which allotted the petitioner’s house to Sri Aswathanarayana Rao and directed the forcible taking of possession. Counsel for the petitioner was S.K. Venkataranga Iyengar. The State of Mysore appeared as the first respondent, represented by the Advocate-General of Mysore, A.R. Somanatha Iyer, assisted by R. Ganapathy Iyer. The second respondent, the House Rent Controller of Bangalore, was represented by K. Ramaseshayya Chowdhury, and the third respondent, the allottee, was Sri Aswathanarayana Rao. The judgment was delivered on 26 May 1952 by Justice Chandrasekhara Aiyer. The factual background disclosed that the previous tenant vacated the premises on 1 September 1949 after protracted litigation. On 2 September 1949 the petitioner gave notice of vacancy to the House Rent Controller as required by law, stating that he intended to use the house for his own purposes, namely to establish a business in electrical goods for his grown-up sons. Conversely, the third respondent sought the house for a children’s school operated under the name Bala Mandir. Accordingly, he applied to the Rent Controller for allotment and also appealed to the Minister for Law and Labour. The second respondent issued an order on 13 September 1949 directing the petitioner, under clause 3(2) of the Mysore House Rent and Accommodation Control Order 1948, to surrender possession of the house to Sri Aswathanarayana Rao, who was identified as the Director of Bala Mandir, invoking clause 3(4) of the same order.

Subsequently, on 20 September 1949 the Deputy Commissioner, acting on an application filed by the petitioner on 16 September 1949, refused to reconsider the allotment and ordered the petitioner to comply immediately by delivering possession to the allottee. The petitioner appealed this order to the Commissioner of Labour, who served as the appellate authority for the House Rent Control, and obtained a temporary stay of execution. The appeal was later dismissed, and the stay was lifted by an order dated 28 December 1949. The petitioner then filed Revision Petition No. 97 of 1949-50 before the Government of Mysore, but the revision was dismissed and the government issued an order on 14 March 1950 refusing to interfere. Undeterred, the petitioner approached the High Court of Mysore, invoking section 45 of the Mysore Specific Relief Act, seeking further relief. The petition in the High Court was ultimately dismissed, with the court holding that the petitioner could not base his claim on the alleged illegality or ultra vires nature of the statutory provision that authorized the original order.

In the proceedings, the petitioner attempted to obtain relief under section 45 of the Mysore Specific Relief Act. The tribunal dismissed that petition, holding that a party could not obtain an order on the ground that the statute which mandated the act was itself illegal or ultra vires. Subsequent applications filed under article 226 of the Constitution, which were part of the same proceedings, were also rejected. The rejection of the constitutional applications was recorded on 5 January 1951.

Subsequent developments related to the possession of the house were set out as follows. The third respondent complained that possession of the premises had not been delivered to him. In response to that complaint, the second respondent issued an order dated 20 March 1950, directing the petitioner to show cause why he should not be prosecuted for failing to obey the earlier order to hand over possession. The order warned that if the house was not delivered to the allottee, action would be taken under clause 3(6) of the Mysore House Rent and Accommodation Control Order, 1948, to take forcible possession of the house through the police.

The petitioner protested this order, asserting that the House Rent Accommodation Control Order did not give the Controller the authority to allot the house. On 23 March 1950 the second respondent replied, stating that the petitioner’s contention was incorrect. The reply explained that clause 3 of the Mysore House Rent Control Order, 1948, had been amended to include any person, private or otherwise, as a possible allottee, and that there was no reason to accept the petitioner’s claim that he was evading his duty to give possession. The reply warned that failure to surrender possession would result in prosecution and forcible taking of the house.

On 11 April 1950 the second respondent issued a further order. That order recounted that premises No. 291, Fifth Main Road, Gandhi Nagar, had been allotted to Sri Aswathanarayana Rao of Balamandira. It noted that the owner’s appeal before the Labour Commissioner and the Government had been rejected, and that the owner’s petition before the High Court of Mysore, which had resulted in an interim order, had been vacated. A subsequent appeal before the Labour Commissioner had also been rejected, and the stay was vacated by endorsement in H.R.C. 1/1940-50 dated 10 April 1950. Accordingly, the order directed the owner, Sri D. K. Nabhirajiah, to hand over possession of the house to Sri Aswathanarayana Rao immediately, and authorized the Superintendent of Police, Bangalore City, or any other officer empowered by him, to take possession of the house and deliver it to the allottee if the owner failed to comply.

The petitioner did not obey the order of 11 April 1950. Consequently, police assistance was used to take forcible possession of the house, and the third respondent was given possession. The petitioner now sought to quash the orders of the second respondent dated 20 March 1950, 23 March 1950 and 11 April 1950, together with the earlier order dated 20 September 1949, on the basis that they were unlawful and beyond the authority of the Controller.

The petitioner relied on a series of orders dated 20 September 1949, 20 March 1950, 23 March 1950 and 11 April 1950. The prayer in the petition was expressly worded to request the quashing of the order of the second respondent numbered 522–Acc. (b)-49 dated 20 September 1949, an order that had been confirmed by the Appellate Authority in H.R.C. Appeal No. 117 of 1949-1950 on 28 December 1949 and subsequently affirmed by the Government of Mysore in H.R.C. Revision Petition No. 97 of 1949-1950 on 14 March 1950. The petitioner also sought the setting aside of later orders of the second respondent numbered 562 Acc. (b)-50 dated 20 March 1950, 23 March 1950 and 11 April 1950, each of which allotted and effected forcible possession of the property identified as No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the benefit of a private individual, the third respondent, and also requested an order for costs. The petitioner framed three principal contentions. First, it argued that the order allocating the premises to the third respondent violated the provisions of Article 31, sub-clause (2) and Article 19(1)(f) of the Constitution. Second, it contended that the order was discriminatory and therefore offended Article 14 of the Constitution. Third, it maintained that under the Defence of India Rules, which governed the issuance of the Accommodation Control Order, the allotment could be made only of houses that were available for letting, and that the present allotment did not meet that requirement.

To assess these contentions, it was necessary to set out the relevant legislative framework. The Mysore House Rent and Accommodation Control Order, 1948—referred to herein for convenience as the Control Order—was promulgated pursuant to 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 became effective on 1 July 1948. Clause 3 of the Control Order provided, subject to two specific exceptions, that a landlord must give notice to the Controller within seven days after a house became vacant. The original sub-clause (2) of that provision read as follows: “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 Province or State, or of any local authority or public body, or of any educational or other public institution for the occupation of any officer of any such Government authority, body or institution, 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 4 May 1949, the words “or for the occupation of any individual” were inserted after the phrase “body or institution” in the said sub-clause. Consequently, the amended sub-clause (2) read: “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 Province 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.” This amendment and the accompanying provisions formed the statutory basis against which the petitioner’s arguments were to be measured.

The provision states that a house is required for the purposes of the Government of Mysore, the Central Government, the Government of an Indian Province or State, any local authority or public body, any educational or other public institution, or for the occupation of any officer of such Government authority, body or institution, or for the occupation of any individual. In such a case the landlord is at liberty to let the house to any tenant, or, if the Controller, on an application made by the landlord, permits it, the landlord may occupy the house himself. Sub-clause (8) provides that the landlord shall not let the house to a tenant or occupy it himself before the expiry of the ten-day period specified in sub-clause (2), unless he has received earlier intimation that the house is not required for the purposes referred to in that sub-clause or that the permission mentioned therein has been granted. A proviso was later added by notification, which provides that before requiring the house for any of the stated purposes, the Controller must consider any representation made by the owner regarding his genuine need for personal occupation.

Sub-clause (4) reads that if the house is required for any of the purposes or for the occupation by any officer specified in sub-clause (2), the landlord shall deliver possession of the house to the concerned Government authority, body or institution, and such authority shall be deemed to be the tenant of the landlord. This deemed tenancy is deemed to have retrospective effect from the date on which the Controller received notice under sub-clause (1). The terms of the tenancy are to be agreed between the landlord and the tenant, provided that the rent payable shall not exceed the fair rent that may be payable for the house under the provisions of the Order. The Mysore House Rent and Accommodation Control Order of 1948 was later repealed by the Mysore House Rent and Accommodation Control Act XXX of 1951. However, for the purpose of disposing the present petition, the earlier Control Order remains relevant because all the proceedings in question were initiated under it. Had the allotment been made under the Control Order before its amendment on 4 May 1949, the petitioner would have had a strong argument. At that time sub-clause (2) limited the requirement to specified public purposes or to the occupation of an officer, and it did not permit the house to be taken for the occupation of a private individual. The amendment of 4 May 1949 expanded the Controller’s power by adding that the requirement may also be for the occupation of any individual.

In this case the Court examined the first contention, which was founded on Article 31(2) and Article 19(1)(i) of the Constitution. It observed that the Constitution had become operative on 26 January 1950, whereas the orders that were being challenged had been issued before that date, at a time when the Constitution did not yet contain a chapter on Fundamental Rights. Consequently, the argument that the requisition was not made for a public purpose and that the restriction on the respondent’s right to hold property must be justified in the interest of the general public presupposed that the Constitution governed the dispute. The Court held that this presumption was untenable because the order of allotment was made prior to the coming into force of the Constitution and, under the then-applicable Control Order, a house could validly be taken for the occupation of a private individual. During the ten-day period specified in sub-clause (2) the landlord was prohibited from letting the house or occupying it himself, and once the allotment was effected the landlord was obliged to surrender possession to the allottee, thereby terminating his rights of possession. The question of whether Article 13(1) of the Constitution could be given retrospective effect had been decided in Keshavan Madhava Menon v. The State of Bombay. In that decision the Court ruled, quoting Das J. at page 234, that “such laws existed for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.” Justice Mahajan, at pages 249-250, further explained that after 26 January 1950 there had been no infringement of the appellant’s freedom of speech or expression, and that in September 1949 the appellant did not enjoy full freedom of speech or expression. He clarified that Article 13(1) becomes relevant only in relation to freedoms guaranteed by Part III, and that a citizen must already possess a fundamental right before he can seek a declaration that an inconsistent law is void; a citizen lacking such a right cannot claim that relief. The Court found these observations applicable to the present dispute. The petitioner’s counsel attempted to overcome the difficulty by noting that the dispossession occurred on 11 April 1950, but the Court rejected this argument, stating that the dispossession was merely a consequence of clause 3, sub-clause (6) of the Control Order, and that the landlord’s right to possession had been lost earlier when he merely retained physical control of the property. Moreover, the Court held that Article 31(2) was inapplicable for another reason: there had been no acquisition of the house by the State, and a taking of possession can arise only from a person who is legally entitled to such possession.

The Court observed that the petitioner, who was the landlord, had lost his right to possession because of the order issued by the Controller. Under the Control Order, once an allotment was made, the person to whom the allotment was given automatically became a tenant and the former owner was deemed to become a landlord according to sub-clause (4) of that Order. The Advocate-General of Mysore State therefore argued that a statutory tenancy was thereby created. The Court noted that sub-clause (4) indeed provides that the terms of such tenancy may be agreed upon between the landlord and the tenant, but it contains no provision, unlike the later Act, indicating what should happen when the parties fail to reach an agreement. The Court held that if a tenancy arises by operation of the statute, then in the absence of any agreement on terms, the ordinary common law principles governing landlord and tenant relationships would apply, since the statute does not prescribe a method for fixing the terms. However, the Court stated that this point did not arise for decision in the present case and therefore no further discussion on it was necessary. The Court then turned to the attempt to defeat the operation of sub-clause (4) by reliance on sub-clause (2). It was pointed out that the first part of sub-clause (2) refers to “the purposes of the Government of Mysore,” while the later part speaks of “for the occupation of any officer or any such Government authority, body or corporation, or for the occupation of an individual.” In sub-clause (4) the two categories are kept distinct, and the Order refers only to the requirement of the house for occupation by officers, saying nothing about occupation by an individual. Moreover, the amending Act did not insert the words “or for the occupation of any individual” into sub-clause (4). On that basis, it was urged that the Advocate-General’s contention that a statutory tenancy had been created should fail. The Court acknowledged that at first glance this argument seemed plausible. Nevertheless, when sub-clause (2) is read as a whole, considering the object of the legislation, the Court found that there is no necessary opposition between the two categories. The phrase “for the purposes” can be interpreted to include “occupation” as well. The omission of the words “for the purposes” in the later part of sub-clause (2) was apparently made to avoid clumsy language; “for the occupation” reads more smoothly than “for the purposes of the occupation.” The Court noted that the second ground of discrimination was not pressed. It then proceeded to consider the third ground, which involved clause (bb) of sub-clause (2) of Rule 81 of the Defence of India Rules, but the discussion of that clause was left for subsequent analysis.

The provision concerned the regulation of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether supplied with board. It specified, in particular, that the regulation could be used (i) to control rents for such accommodation, either generally or when let to specified persons, classes of persons or in specified circumstances; (ii) to prevent the eviction of tenants and sub-tenants from such accommodation in specified circumstances; and (iii) to require that such accommodation be let either generally, or to specified persons or classes of persons, or in specified circumstances. It was argued that the power conferred by this sub-clause applied only when the house was actually available for letting or sub-letting and not when a house was not available. In other words, the argument claimed that if a landlord declared that a premises was needed for his own occupation, the Government would have no authority to requisition it. The argument emphasized the word “regulating”. The Court found this interpretation to be unsound. The wording indicated that the Government might provide for and regulate the letting and sub-letting of premises, as the phrase “may by order provide” in sub-clause (2) made clear. Accepting the petitioner’s argument would render the statutory powers ineffective, because every landlord could claim that the premises were needed for personal occupation or already let to another, thereby removing them from the scope of the regulation.

The Court observed that no requisition of property occurred in the present case under section 75(A) of the Defence of India Rules. The Control Order at issue had been issued under rule 81(2)(bb), which authorises regulation of letting and sub-letting of houses. The Court characterised this as an exercise of police power in the public interest, not as an exercise of eminent-domain power, where questions of compensation and public purpose would arise. During the arguments, it was suggested that the amendment notification dated 4 May 1949, which inserted the words “or for the occupation of any individual”, was invalid because regulation under clause (bb) could only be for the defence of British India, the efficient prosecution of war, or the maintenance of essential supplies and services, and that taking property for private occupation lay beyond the scope of the power. The Court noted that the petition did not raise that ground and further observed that the Control Order was said 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. The Court remarked that it had not been provided with that Act and therefore could not consider it.

The Court observed that the statutory provision on which the Control Order was alleged to have been made had not been produced before the Court and had not even been mentioned during the oral arguments. Consequently, the Court held that it was not in a position to pronounce a decision on the validity of that provision, and therefore no ruling was required on that particular issue. In view of this lack of material, the petition was found to be unsuccessful and was dismissed, with the Court expressly stating that no order as to costs would be made. Accordingly, the petition was dismissed in its entirety. The petitioner was represented by counsel identified as K.R. Krishnaswarny, while the respondents were represented by counsel identified as P.A. Mehta.