297 of 1951
Petition under article 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
SK Venkataranga Iyengar for the petitioner
AR 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 DK 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 oneof 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 and the said order vacated on 28th December
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 privateis 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 HRC 11940 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 522 Acc
b 49 dated 20th September 1949 confirmed by Appellate Authority in HRC Appeal No 117 of 1949 1950 dated 28th December 1949 and by the Government of Mysore in HRC 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
 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 2the 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 institutionand 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 191 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
Whether retrospective effect could be given to article 13 1 of the Constitution arose for decision in Keshavan Madhava Menon vs The State of Bombay1
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  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 2does 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 4of 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 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 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 KR Krishnaswarny


Summary:
The respondent was the Editor of the Deccan Herald owned and published by the appellant and the two contracts executed by the parties contained an arbitration clause that if in the interpretation or application of the contract any difference arose between the parties the same shall be referred to arbitration and the award shall be binding between the parties and also provided for apart from his monthly salary the payment of 10 of the profits to the respondent
Upon the termination of his services by the appellant the respondent brought a suit for accounts and payment of the profits found due to him
The appellant by an 714 application pleaded that the suit ought to be stayed under section 34 of the  and the dispute referred to arbitration in accordance with the agreement between the parties
The trial judge refused to exercise his discretion in favour of the appellant and refused to stay the suit
On appeal the High Court confirmed the decision of the trial court
The appellant came up to this Court by special leave under article 136 of the Constitution Held that the power conferred on the court by section 34 Of the  is discretionary and even though the conditions specified therein were fulfilled no party could claim there under a stay of legal proceedings instituted in a court as a matter of right
But the discretion vested in the court is a judicial discretion and must be exercised as such in the facts and circumstances of each case
No inflexible rules can therefore be laid down f or its exercise and the court has to act according to common sense and justice
Gardner vs Jay  referred to Where the discretion under the section has been properly and judiciously exercised by the trial court the appellate court would not be justified in interfering with such exercise of discretion merely on the ground that it would have taken a contrary decision if it had considered the matter at the trial stage
But if it appears to the appellate court that the trial court has exercised its discretion unreasonably or capriciously or has ignored relevant facts or has approached the matter unjudiciously it would be its duty to interfere
Charles Osenton  Co vs jhanaton  referred to
The words  interpretation and application of the contract frequently used in arbitration clauses as they have been in the contracts in question cover not only disputes relating to the construction of the relevant terms of the contract but also their effect and unless the context compels a contrary construction a dispute relating to the working of the contract falls within such a clause
But the Supreme Court would not lightly interfere under article 136 of the Constitution with the concurrent exercise of dis cretion of the courts below under section 34 Of the Act
Before it can justly do so the appellant must satisfy the Court on the relevant facts referred to by the courts below that they exercised their discretion in a manifestly unreasonable or perverse way which was likely to defeat the ends of justice