ORDER
Shivashankar Bhat, J.
1. The Writ Petition was listed for orders in the morning. But was taken up for hearing with the consent of the Counsel for both sides after 2.30 P.M. The learned Government Pleader produced the records for perusal.
This Writ Petition is directed against the order of the Deputy Commissioner, Bangalore District, Bangalore (as the Appellate Authority under the Karnataka Rent Control Act) whereby he rejected the application of the petitioner-landlady for stay of the allotment order made in favour of 3rd respondent, during the pendency of the appeal.
2. On the basis of the alleged vacancy report, the Rent Controller notified the premises in question as vacant. The petitioner contended that the premises was not vacant and that she was residing in the house. The Rent Controller relied on the report of the Revenue Inspector to assume that the premises was vacant, consequent on the vacating of premises by the tenant Srikanth. The Rent Controller also states that he held a spot inspection and found the house vacant. Petitioner asserted that she was not aware of the local inspection. It is also seen from the records that no statement of the neighbours was obtained. Petitioner, admittedly is an employee of a Bank at Bangalore. But no investigation has been made as to where she was staying in case she was not residing in her premises in question. However, the Rent Controller allotted the premises in favour of the 3rd respondent, who is also an employee of another Bank at Bangalore. Against this order, petitioner filed an appeal before the Deputy Commissioner and sought stay of the allotment order. This prayer for stay was rejected by the Deputy Commissioner. Hence this Writ Petition.
3. On 5-5-1987, this Court directed stay of the allotment order. But the 3rd respondent contends that even before the communication of the stay order he took possession of the premises at about 10.15 A.M. on 5-5-1987, under a mahazar prepared by the Revenue Inspector, attested by the Police Constables, an Attendar of H.R.C. and another person from Banashankari. Therefore he contends that Writ Petition itself has become infructuous.
4. Petitioner has filed affidavits of neighbours to show that she was residing in the premises and that she was dispossessed on 5-5-1987 after she obtained the interim order from this Court. She states that even though she brought to the notice of the Revenue Inspector of the stay order made in this Writ Petition, she was dispossessed, overlooking the order of this Court.
5. The questions for consideration are —
(i) Whether the Writ petition has become infructuous ? and
(ii) Whether the order of the Deputy Commissioner is liable to be set aside ?
6. The assertion of the allottee that the Writ Petition has become infructuous cannot be accepted. He cannot take advantage of a situation, which, obviously, was brought about by himself to defeat the interim order made by this Court on 5-5-1987. Dubious methods adopted to defeat the order of this Court cannot yield good result. Allottee relies on the mahazar prepared on 5-5-1987. It states that the landlady vacated the premises voluntarily and handed over possession. It further states that she received her household articles when delivery warrant was read over to her. If landlady was not in occupation of the house, question of her vacating the premises with her belongings would not arise. The very statement in the mahazar falsifies the primafacie finding of the Deputy Commissioner that the landlady was not in occupation of the premises.
7. The mahazar is timed as 10-15 a.m. Not a single neighbour has attested it. The signatories are the two Police Constables, the Revenue Inspector and a person from Banashankari, (though the premises is in Jayanagar,) and a peon of H.R.C. The Writ Petition was filed on 5-5-1987. That means, necessary preparations to file the Petition must have been made earlier, including giving of instructions to the Advocate. When landlady has taken steps to file the Writ Petition, it is hard to believe that she voluntarily vacated the premises without protest and without even stating that she had instructed to file the Writ Petition.
8. Landlady has also filed affidavits of five persons who are neighbours, in support of her assertions. One of the deponnent is a retired member of the Karnataka Appellate Tribunal. Having regard to these affidavits and the circumstances of the case, I conclude that the petitioner was dispossessed after she obtained the interim order of stay in this Writ Petition on 5-5-1987 and after she brought to the notice of the Revenue Inspector about this order. Hence, the entire proceedings leading to the alleged dispossession of the landlady and the mahazar are to be declared as a nullity.
9. Next question is the validity of the order of the Deputy Commissioner rejecting the stay application filed by the landlady.” Prima facie, allottee is not entitled to have the premises allotted. It is an admitted fact (conceded by his Counsel) that the third respondent did not deposit the rent along with his application as provided under Section 8(5) of the Rent Control Act. This failure on his part is fatal to his claim for allotment as held by a Division Bench of this Court in Rama Rao T.N. v. Deputy Commissioner & Ors., 1977 (1) KLJ 71 (also see: 1979(1) Karnataka Law Journal 137), A.C. Joseph v. Spl. D.C. Therefore, even the test of prima facie case, goes against the claims of the allottee.
10. The grant or refusal of stay, is, no doubt a matter of judicial discretion. But the discretion has to be exercised in a reasonable manner by taking into consideration relevant factors. Failure to consider relevant factors will vitiate the order. Similarly, if the discretionary order, is the result of a wrong approach, again, such an order is liable to be set aside.
11. In cases of this type, as involved in the present Writ Petition, the Appellate Authority should weigh the balance of convenience while considering an application for stay Test of prima facie case will be elusive, specially when the landlady asserts that she has been in possession of the premises throughout and that it is not established that she is residing elsewhere.
12. I adopt the words of Lord Diplock in American Cynamide Co. v. Ethican Ltd., ILR (Karnataka) 1976(1) 426 at 429 to 431 when I observe here, that the appellant’s need for protection must be weighed against the need of the respondent to be protected. The injury that will result from the non-grant of the stay should be considered in the context that, in case, the landlady’s appeal is ultimately allowed, the disturbance and injury caused to her by her dispossession during the pendency of the appeal, far outweighs the injury if any that results from not giving possession to the allottee for a few days or weeks.
13. Here is the case where the landlady asserts that she has been living in the premises itself and the premises was not vacant to be filled up by the authorities under the Rent Control Act. The Rent Controller relied on the report of the Revenue Inspector as to the vacancy and the impression gained by himself on spot inspection. The said spot inspection by the Rent Controller was not known to the landlady and the details of inspection are not narrated in the order. When, admittedly, the landlady is working in Bangalore, she must be living in some place. If she was not residing in the premises in question, there should have been an averment and prima facie evidence as to the alternative place of her residence. The alleged tenant who is stated to have vacated the premises earlier was not examined and his statement is not forthcoming. Not a single neighbour states that the premises was tenanted earlier. Extract from the Property Tax Register of the City Corporation has not been referred. With such a back-ground, it will be causing chaos by rejecting the landlady’s prayer for interim relief of stay, solely on the basis of her failure to prove her possession with documentary evidence.
14. The burden was wrongly cast by the Deputy Commissioner while holding that the landlady did not establish her possession. There is no presumption in law, that, a building is always vacant. The Appellate Authority, here, failed to consider the great inconvenience and hardship that will result by the refusal to stay the order of allotment, in case, ultimately, it is established that the premises was not allottable under the Rent Control Act.
15. As far as the allottee is concerned, it will be a question of waiting for a few more weeks for the disposal of the appeal. In the meanwhile, he will continue to suffer his status-quo. But the injury caused to the landlady by the dispossession (result of rejecting her stay application) will be quite severe She has to shift her residence without any time left to search for a new shelter. She may return to the house, when ultimately she succeeds. In the meanwhile, she has to undergo the humiliating experience of getting evicted from her own house and bear the expenditure to take shelter elsewhere. The balance of convenience is entirely in favour of granting the interim relief sought by her against the allotment order. The rejection of her application for stay, by the Deputy Commissioner, is the result of a wrong approach and the said order is liable to be set aside. On the facts of this case, no other view is possible and therefore it is un-necessary to direct the Deputy Commissioner to re-hear the stay application. I direct that the petitioner’s stay application filed before the Deputy Commissioner shall stand allowed.
16. It was contended that the main appeal is posted to 19th instant for hearing before the Deputy Commissioner and therefore, I should not order restitution of possession to the landlady. Since I doubt the conduct of the 3rd respondent, who brought about the dispossession of the petitioner, and the preparation of the Mahazar, it is necessary to order restitution as consequences of declaring delivery of possession as void and setting aside of the order of Deputy Commissioner. I consider this, a fit case that possession shall be restored to the landlady by 5 P.M. of 20th instant, in case, the Deputy Commissioner fails to decide the appeal on the 19th instant. In case the appeal is heard on the 19th the order therein shall be pronounced in the forenoon of the 20th. so that by 5 P.M. of the said date, appropriate steps shall be taken to restore the possession to the petitioner, in case the appeal is allowed.
17. The Writ Petition is allowed. Rule is made absolute. The respondents are directed to restore possession of the premises to the landlady petitioner–on or before 20th instant (by 5 P.M.) subject to any order that may be made on the merits of the appeal by the Deputy Commissioner, which is to be heard on the 19th instant. A copy of this order shall be despatched and delivered at the office of the Deputy Commissioner by Monday, the 18th instant.