Karnataka High Court
M.N. Chittiappa vs Deputy Commissioner on 28 January, 1991
Equivalent citations: ILR1991KAR794, 1991(1)KARLJ435
ORDER Case Note: KARNATAKA RENT CONTROL ACT, 1961 (Karnataka Act No. 22 of 1961) - Sections 4 & 10A -Section 4(1) or (2) inapplicable to building whereof order under Section 21(1)(h) passed; no statutory or legal obligation to report vacancy by such landlord - Section 10A: scope ambit & purport - Not open to Rent Controller to ignore order under Section 21(1)(h) & take action under Sections 10A & 4 - Existence of vacancy & failure to report pre-condition for any action - Not open to quasi-judicial authority to disregard order of Civil Court binding on it - Eviction order by consent as much enforceable as decree after contest Unauthorised occupant means any person in occupation not merely landlord of tenant - Section 10A not attracted if occupant in lawful occupation: no vacancy, no need to report. Held: (i) Neither Sub-section (1) or Sub-section (2) of Section 4 of the Act applies to a " building in respect of which the landlord has obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 21 of the Act...the landlord who obtained the eviction of the tenant and subsequently came into occupation of the premises in question was under no statutory or legal obligation to report any vacancy. (ii) From the provisions of Section 10A, it could be construed that action could be taken only when the vacancy of any building which is required to be intimated in accordance with Section 4 of the Act is not so intimated to the Controller and further when the Controller believes or has reason to believe that any person has in contravention of Sub-section (2) of Section 4 occupied the building or any part thereof...Whether directly or indirectly it is not open either to the Rent Controller or the Deputy Commissioner to ignore the order of eviction passed by a Competent Court under Section 21(1)(h) of the Act and proceed to take action under Section 10A read with Section 4 of the Act. Condition precedent for taking action under Section 10A read with Section 4 is non-reporting of the vacancy of the landlord. In other words, any action to be taken under Section 10A read with Section 4 presupposes the existence of a vacancy in the first place and failure to report the vacancy in the second place. The duty to report vacancy arises only when there is an existing vacancy...Susceptibility to action under Section 10A depends upon the applicability of Section 4(1) and (2) of the Act...Even assuming that the Civil Court had passed a wrong order in the opinion of the Rent Controller, even then the order is binding on the Rent Controller. It is an order passed by a Civil Court in a civil proceeding under the provisions of the Act and it is not open to a quasi-Judicial authority to disregard the order of eviction and to hold an enquiry in order to take action against the landlord for alleged violation of the provisions of Section 4(1) and (2) of the Act. Besides, the provisions of Section 4(1) and (2) of the Act cannot be utilised by the Rent Controller to defeat an order of eviction passed under Section 21(1)(h) of the same Act...The order passed by the Civil Court is subject only to judicial review and not to the review of the Rent Controller and an eviction order which is passed by consent of the landlord and the tenant is as much an enforceable order as a decree passed after contest. (iii) It is significant that in the language of Section 10A of the Act, action is contemplated only against an unauthorised occupant and the unauthorised occupant may be any person who is in occupation of the premises in contravention of Sub-section (2) of Section A of the Act. Occupant does not mean only a landlord or tenant. But if that person who is in occupation, produces an order of eviction passed against the tenant by a competent Civil Court and on the basis of which the person has come to be in occupation of the premises, the provisions of Section 10A are not attracted. If the occupant is in lawful occupation, the question of vacancy does not arise and when there is no vacancy, the necessity to report the vacancy would also become unnecessary and the action against any person, whether he is a landlord or the occupant, would not arise under Section 10A of the Act. Balakrishna, J.
1. Quashing of the order dated 4-4-1981 passed by the Deputy Commissioner, Bangalore District, Bangalore, as well as the order of the House Rent and Accommodation Controller (Civil Area), Bangalore, dated 23-3-1981 are the prayers of the petitioners in this Writ Petition. Quashing of notice dated 26-9-1980 which is a notice under Section 10-A(1) of the Karnataka Rent Control Act, 1961, and an order of restraint against the respondents, their servants and agents from interfering with the possession of the petitioners in respect of premises No. 72, Cunningham Road, Bangalore, are the other reliefs asked for by the petitioners.
2. On 4-4-1981, the Deputy Commissioner rejected the appeal of the petitioners and affirmed the Order dated 23-3-1981 passed by the Rent Controller. The appeal was preferred against the order of the Rent Controller holding that the petitioners are unauthorised occupants of the premises in question and directing them to vacate and hand over vacant possession of the premises to the office of the Rent Controller on or before 23-4-1981.
3. Premises No. 72 (Old No. 2), Cunningham Road, Bangalore, was originally owned by Maharani of Vijayanagaram. By an instrument of settlement, the said property was settled on her two grand sons Mritunjaya Singh and Venkatesh Singh (respondents-3 and 4) on 15-5-1964. A power of attorney was granted to one late P.E. Palia of Bangalore on 27-10-1969, empowering him to deal with the said property with authority to manage the property, grant leases and to sell the entire property, according to the petitioners. The owners of the property are permanent residents of Varanasi.
4. The property in question consists of a bungalow and various out-buildings and structures built on a around area of 1,50,000 square feet. Through the power of attorney, some portions of the property were sold to several purchasers between 1968 and 1974. It is stated that the main building and the appurtenant grounds were in the occupation of the tenant, originally by the British Council and later by Mrs. P.M. Bilgen. Several frontal sites were sold from time to time and similarly the eastern portion also. It appears on the introduction of Part V-A to the Karnataka Rent Control Act, a declaration was filed under Section 31-B of the Act and the occupation of the tenant was regularised under Section 31-C of the Act.
5. On 12-12-1978, an agreement of sale was executed between the power of attorney holder and the 1st petitioner wherein the owners agreed to sell premises No. 72, Cunningham Road, Bangalore, excluding 41,380 square feet in the western portion which it appears they had agreed to sell to others, but including the grounds and bungalow for a price of Rs. 7,00,000/-and thereupon a sum of Rs. 35,000/- was paid by the 1st petitioner as earnest money and advance and the sale was stipulated to be completed by 30-6-1979 vide clauses 1 and 2 of the agreement. It seems the property agreed to be sold was in the occupation of Mrs. P.M. Bilgen and since possession had to be delivered to the purchaser, the tenant was directed to attorn herself to the purchaser. An express provision in the agreement of sale provided that the sale deed was to be in favour of the 1st petitioner or his nominee. Mrs. J. Rao, who is the sister of the 1st petitioner was initially mentioned as one of the intending purchasers for the purpose of acquiring the frontal portion for herself. It appears that one P.R. Shyamsundar was given and he immediately availed himself of the option to acquire the frontal portion to which reference has been made in the agreement. Mrs. J. Rao is stated to have elected to purchase another independent property and upon exercise of option by P.R. Shyamsundar, the petitioners became the actual purchasers. It is stated that on 21-12-1978 there was a further understanding between the parties confirmed by a letter of that date addressed by the power of attorney holder to the petitioners that in pursuance of the agreement of sale dated 12-12-1978, the petitioners may take constructive possession from the tenant and for the purpose of eviction and recovery of rent on the ground that the petitioners required the premises for their own use and occupation. It is alleged that by letter dated 21-12-1978 the petitioners acquired constructive possession of the property and thus became landlords in respect of the same vis-a-vis the tenant in occupation in part performance of the agreement dated 12-12-1978. According to the petitioners, they thus became landlords in law in respect of the premises. It is specifically stated that although the 1st petitioner was the original party to the agreement, he had asked the vendors' agent to effect the sale in favour of himself and his wife who is the 2nd petitioner and, therefore, in law, delivery of possession pursuant to the agreement effected as under the letter of 21-12-1978 was to both the petitioners who are no other than husband and wife.
6. It is stated that Mrs. Bilgen was in arrears of rent for several months and that the premises was also required for the personal occupation of the petitioners and it is for that reason only they had contracted to purchase it. Thus the 2nd petitioner came to file an eviction petition against Mrs. Bilgen in H.R.C.No. 542 of 1979 before the IV Additional Civil Judge, Bangalore, for eviction. Since Mrs. Bilgen was unable to pay up the arrears of rent and also since she was planning to go to U.K., she consented to vacate the premises and there was an order of eviction by consent dated 11-4-1979 giving her a reasonable time till the end of 1979 for vacating the premises. She handed over possession to the 2nd petitioner at the end of May 1979. It is thus the petitioners came to be in possession of the said property since then and, according to the petitioners, no vacancy has, therefore, arisen.
7. It is stated that the petitioners occupied the premises for their own residential needs. The premises, it appears, was in a hopelessly dilapidated condition at that time and that the right side of the main building and dining hall roof had partly collapsed and that major repairs were effected during the month of June 1979 with the petitioners in occupation of the premises. It appears that at a cost of Rs. 5 lakhs, the building was renovated and re-done with regard to entire electrical and sanitary tines and installations. It is stated that the petitioners were always ready and willing to complete the sale, but on account of several factors sale was held up. One of the reasons was that the vendors had to produce the required certificate under Section 230A of the Income-Tax Act and secondly the capital gains concession which was in force till March 1979 was withdrawn by the Government as a result of which considered in conjunction with other sales effected and also required to be effected, tax liability became almost one-half of the sale price. Thirdly, there was a litigation commenced by one D. Soundarrajan who had an earlier agreement; for purchase of the western portion of the property which had been treated as having lapsed coupled with a controversy in regard to the identity of the vacant plot to be conveyed to him. He had even gone to the extent of filing a civil suit and obtained a temporary injunction. For the aforesaid reasons and also since the vendors wanted time to overcome them, the execution of the sale deed was held up. There was no reasonable certainty as to when they would be able to execute the sale deed and, therefore it was suggested that in furtherance of the agreement of sale dated 12-12-1978 and delivery of possession in part performance of it vide letter dated 21-12-1978, a formal lease deed in perpetuity was recommended to be considered for execution between the parties in order to safeguard the petitioners' interest. Because there were legal hurdles, the deed of lease for perpetuity could not be executed straightaway and, therefore, it was agreed that the lease should be initially for a term of two years with provision for perpetual options to the petitioners for renewal. This agreement was reduced into writing on 6-6-1979 and in pursuance of it a registered deed of lease was executed on 30-7-1979 with effect from 1-7-1979 as per Annexure-H between the petitioners and the owners represented by their agent Palia. It appears, the initial term of two years was renewed once by a letter dated 23-3-1981. According to the petitioners, at the end of May 1979, they took vacant possession and before the lease came into existence they were in constructive possession in part performance of the agreement. It is stated that the memorandum of agreement dated 6-6-1979 and the lease deed dated 30-7-1979 were in furtherance of the first agreement of sale in order to protect the rights of the petitioners and that there was no vacancy de facto or de June as on 1-7-1979 or 30-7-1979 since the petitioners claimed to be in actual possession even from the end of May 1979. It is stated that, since rent was agreed to be payable, the effective date of commencement of the lease was mentioned as 1-7-1979. It is claimed that the petitioners were not merely tenants in the premises, but also owners under an agreement of purchase entitled to remain in possession which they secured under an order of eviction passed by the Court in favour of the 2nd petitioner under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the Act'). It is stated that there was no obligation in law to notify vacancy before the petitioners occupied the premises as they were in lawful possession and also having regard to proviso to Section 4(2) of the Act.
8. A Notice dated 26-9-1980 was received from the Office of the Rent Controller by the petitioners alleging that the 1st petitioner having unauthorisedly occupied the premises, cause should be shown why he should not be evicted. The petitioners therefore filed a statement of objections. Thereafter, two more statement of objections in amplification of the earlier statement were filed by them vide Annexures 'L', 'L1' and 'L2'. On 12-3-1981, the petitioners filed the supporting documents denying violation of Sections 4 and 10 of the Act. Arguments were heard by the Rent Controller and thereafter followed an order dated 23-3-1981 by the Rent Controller holding that the petitioners are in unauthorised occupation of the premises in question and that they should hand over possession on or before 23-4-1981. Proceedings against the vendors were dropped under Section 4(3) of the Act by the Rent Controller.
9. The petitioners appealed against the impugned order of the Rent Controller to the Deputy Commissioner, Bangalore, who dismissed the appeal by order dated 4-4-1981. Hence, the petitioners are aggrieved.
10. The point is whether the Rent Controller is bound by the decree of the Civil Court which had passed an order of eviction against the tenant and whether he is precluded from going behind the said order.
11. The Writ Petition was preferred under Articles 226 and 227 of the Constitution of India Impleading the Deputy Commissioner, Bangalore District, and the House Rent and Accommodation Controller (Civil Area), Bangalore, as respondents-1 and 2. However, during the pendency of the Writ Petition, J.R. Mritunjaya Singh and A.M. Venkatesh Singh came to be impleaded by order of the Court passed on 14-8-1981 as respondents-3 and 4.
12. Arguments were heard at length. A number of documents were filed by both the petitioners and respondents-3 and 4. The entire case turns on the question whether the Rent Controller and the Deputy Commissioner could subject an order of eviction passed by the Civil Court of competent jurisdiction to quasi judicial review.
13. What is not in controversy is that on 11-4-1979, an order of eviction came to be passed by the III Additional Civil judge, Bangalore City, on a petition filed by the 2nd petitioner herein on 15-3-1979 under Section 21(1)(a) and (h) of the Act praying for an order directing respondent Mrs. Paula M. Bilgen to quit and deliver vacant possession of the petition schedule premises. The order reads as follows:
"11-4-1979 Petition by Sri V.R.M.G. Notice to respondent served personally.
R.R. files power for respondent. Files objections conceding petition claim. Hence, petition is allowed as prayed for. Respondent granted time upto 31-12-1979 to vacate.
Sd/- M.B. Vishwanath, III Additional C.J.
11/4/1979 SCHEDULE All that piece and parcel of land with dwelling house and out buildings situated in and bearing premises No. 72, Cunningham Road, in the Civil Station of Bangalore bounded on the North by vacant site belonging to Mr. P.R. Shamsunder and roadway leading to Cunningham Road on the South private property of Mr. Rebello and others, on the East by property No. 72/1, belonging to M/s. Ingle and Company and on the West by building site of Mr. M.G.V. Reddy, Mrs. Govies and Mr. S.M. Ramesh."
14. Thus, the petition for eviction filed by the 2nd petitioner was allowed by the Court. From the order. It is seen that the respondent conceded the bona fide requirements of the petitioner under Section 21(1)(h) of the Act. After allowing the eviction petition, the Court granted time to the tenant to vacate the premises. Later on, the premises was vacated and the petitioners occupied the premises.
15. At this stage, it is necessary to refer to the show cause notice issued to the petitioners and the landlords under Sections 10-A(1) and 4(3) of the Act. On a report received from the Revenue Inspector, IV Circle, Bangalore, on 24-9-1980, that the premises in question had been occupied by one M.N. Chittiappa unauthorisedly since December 1979 on a monthly rent of Rs. 2,000/- and that the landlord of the premises is one Maharaja of Vijayanagaram who resides, at Varanasi and that the Revenue Inspector contacted the neighbours from whom he learnt that the entire premises was let out at Rs. 600/- per month and subsequently that the tenant vacated the premises and M.N. Chittiappa occupied the same unauthorisedly, the show cause notice was issued by the Rent Controller to the occupant and the landlords under Sections 10A(1) and 4(3) of the Act. On 3-10-1980 a Counsel filed vakalath on behalf of the landlords and the matter was posted to 10-12-1980 and later on to 22-1-1981. In course of time, statement of objections were filed by the concerned parties. In an elaborately written order, the Rent Controller held that the petitioners herein are unauthorised occupants of the premises in question and that they should vacate and hand over vacant possession of the premises to the office of the Rent Controller on or before 23-4-1981. He dropped the proceedings against respondents-3 and 4 herein.
16. Section 4 of the Act reads as follows:
"Intimation of vacancy by landlords:-(1) Every landlord shall, within fifteen days after the building becomes vacant by his ceasing to occupy it or by the termination of a tenancy or by the eviction of the tenant or by the release of the building from requisition, or otherwise, give intimation in the prescribed form by registered post to the Controller:
(2) xxx xxx xxx Provided that this sub-section shall not apply to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 21 or to any building which has been released from requisition for the use and occupation of the landlord himself:
Provided further that if the building is not occupied by the landlord after its release from requisition, within a period of two months from the date of such order or release, as the case may be, the landlord shall immediately after the said period of two months or within such further time as the Controller may allow, give intimation to the Controller in accordance with the provisions of this sub-section and for this purpose the buildings shall be deemed to have become vacant on the date of the expiry of the said period of two months.
(3) Any landlord who contravenes the provisions of Sub-section (1) or (2) shall, on conviction, be punished with fine which may extend to one thousand rupees: Provided that such fine shall not be less than fifty rupees.
XXX XXX XXX"
17. Thus, it is seen that neither Sub-section (1) or Sub-section (2) of Section 4 of the Act applies to a building in respect of which the landlord has obtained an order for possession on any of the grounds specified in Clause (h) of the proviso to Sub-section (1) of Section 21 of the Act. In the instant case, the petitioners have claimed to be the landlords in possession by virtue of an agreement of sale executed by the power of attorney holder of respondents-3 and 4. There can be no dispute about the fact that an order of eviction was passed by a competent Civil Court on 11-4-1979 in H.R.C. No. 542/1979. The 2nd petitioner had sued for eviction of the erstwhile tenant Mrs. Bilgen. The tenant conceded the bona fide requirements of the landlord and an order of eviction was passed. Proviso to Sub-section (2) of Section 4 of the Act is tracted to the facts of this case and, in my opinion, the landlord who obtained the eviction of the tenant and subsequently came into occupation of the premises in question was under no statutory or legal obligation to report any vacancy. The question of reporting vacancy did not arise for the reason that the landlord had taken possession of the vacant premises for own use and occupation under an order of competent Civil Court passed under Section 21(1)(h) of the Act.
18. Section 10A of the Act reads thus:-
"Eviction by the Controller:- (1) Where in accordance with the provision of, Section 4, the vacancy of any building is required to be intimated to the Controller and is not so intimated, and the Controller believes or has reason to believe that any person has in contravention of Sub-section (2) of Section 4 occupied the building or any part thereof, he may by notice in writing, call upon the person in occupation to show cause, within a time to be fixed by the Controller, why such person should not be evicted therefrom.
(2) If the person to whom a notice was issued under Sub-section (1) fails to appear before the Controller, or having appeared, fails to satisfy the Controller that he is entitled to remain in occupation of the building, the Controller may, without prejudice to any other action which may be taken against him under this Act or under any other law for the time being in force, direct him by order in writing to vacate the building within such period as may be specified in the order and deliver possession thereof to the Controller.
(3)(a) Upon service of an order under Sub-section (2), the person against whom an order is made and every person claiming under him shall vacate the building and deliver possession thereof to the Controller. If the building is not vacated and its possession delivered to the Controller within the period specified in the order, the Controller may summarily dispossess the persons in occupation and take possession of the building and thereupon the provisions of Sections 4, 5, 8, 9 and 10 shall apply to the building as if intimation of vacancy of the building was given to the Controller on the date on which he took possession of it.
(b) The provision of Sub-section (2) of Section 10 shall apply to any action taken by the Controller under Clause (a)."
19. From the above provisions, it could be construed that action could be taken only when the vacancy of any building which is required to be intimated in accordance with Section 4 of the Act is not so intimated to the Controller and further when the Controller believes or has reason to believe that any person has in contravention of Sub-section (2) of Section 4 occupied the building or any part thereof. Sub-section (2) of Section 4 is inapplicable to the facts of the case since under Sub-section (1) of Section 4 the landlord herein was under no legal obligation to intimate vacancy because the landlord had obtained an order of possession under Section 21(1)(h) of the Act through the Court invested with the Jurisdiction to pass an order of eviction.
20. The Rent Controller has virtually reviewed the order of eviction passed by the Civil Court and though in specific words he does not repudiate the order of eviction, he seeks justification for action under Section 10A read with Section 4 of the Act. It appears to me that the Rent Controller has mis-directed himself and similarly the Deputy Commissioner as an Appellate Authority. The effect and the binding nature of the order of eviction passed by the Civil Court has been totally lost sight of. Whether directly or indirectly it is not open either to the Rent Controller or the Deputy Commissioner to ignore the order of eviction passed by a competent Court under Section 21(1)(h) of the Act and proceed to take action under Section 10A read with Section 4 of the Act. Condition precedent for taking action under Section 10A read with Section 4 is non-reporting of the vacancy by the landlord. In other words, any action to be taken under Section 10A read with Section 4 presupposes the existence of a vacancy in the first place and failure to report the vacancy in the second place. The duty to report vacancy arised only when there is an existing vacancy. The landlord did obtain an order of eviction against the tenant and took possession of the premises by an order of the Court for bona fide use and occupation under Section 21(1)(h) of the Act. In such a situation, none of the provisions of the Act contemplates that the landlord should report the vacancy by applying the provisions of Section 4(1) and (2) of the Act. Susceptibility to action under Section 10A depends upon the applicability of Section 4(1) and (2) of the Act. The order of eviction passed in favour of the 2nd petitioner herein became final and conclusive since this order was not challenged before the appellate Court or the Court of Revision, as the case may be either by the tenant or by respondents-3 and 4 herein. The moot point is whether the Rent Controller can overlook or ignore such an order of eviction and proceed to take action against the petitioners for purported violation of Section 4(1) and (2) of the Act. As already pointed out, the provisions of Section 4(1) and (2) of the Act do not apply to the facts of this case and, therefore, action under Section 10A of the Act is unwarranted. Even assuming that the Civil Court had passed a wrong order in the opinion of the Rent Controller, even then the order is binding on the Rent Controller. It is an order passed by a Civil Court in a civil proceeding under the provisions of the Act and it is not open to a quasi-judicial authority to disregard the order of eviction and to hold an enquiry in order to take action against the landlord for alleged violation of the provisions of Section 4(1) and (2) of the Act. Besides, the provisions of Section 4(1) and (2) of the Act cannot be utilised by the Rent Controller to defeat an order of eviction passed under Section 21(1)(h) of the same Act.
21. I am not concerned with the merits or demerits of the order of eviction passed by the Civil Court. I am only concerned with the justifiability' of the action taken by the Rent Controller under Section 10A of the Act.
22. In CHETTUR v. RENT AND ACCOMMODATION CONTROLLER AND ORS. 1984 (2) KLC 50, it was held that when once an order is passed by the competent Court under Section 21(1)(h) of the Act, the proviso to Section 4(2) comes into operation making Section 4 and subsequent provisions in Part II of the Act inapplicable and thus taking away the Jurisdiction of the Rent Control Authorities and further that the jurisdiction exercised by Rent Control Authorities under Part II of the Act and the jurisdiction exercised by Civil Courts under Part V are separate, distinct and exclusive of each other. It was further held that when the jurisdiction of the Court and the Rent Controller are exclusive of each other, the Controller cannot sit in Judgment over the order passed by the Civil Court under Section 21(1)(h) of the Act.
23. The order passed by the Civil Court is subject only to judicial review and not to the review of the Rent Controller and an eviction order which is passed by consent of the landlord and the tenant is as much|an enforceable order as a decree passed after contest. Whether or not the petitioners should have been accepted or either of them should have been accepted or not accepted as landlord is beyond the scope of this Writ Petition, when there is an order of eviction passed by a competent Court and undisturbed by any higher Court. Before the Civil Court, the tenant did not question the capacity or the status of the petitioner therein who had sued for eviction. Since the 2nd petitioner herein obtained a valid order of eviction from the Court in the capacity of landlord, there was no statutory obligation cast on her to notify the vacancy because the vacancy was not in existence in the eye of law, particularly since the tenant had conceded the bona fides of the landlord. Even after considerable efflux of time, respondents-3 and 4 herein did not make the slightest effort to question the order of eviction passed by the Civil Court before the competent Court if, according to them, the order was illegal or invalid. In these circumstances, it cannot be said that there was any justification or basis for the Rent Controller to proceed under Section 10A of the Act against the petitioners.
24. It is significant that in the language of Section 10A of the Act, action is contemplated only against an unauthorised occupant and the unauthorised occupant may be any person who is in occupation of the premises in contravention of Sub-section (2) of Section 4 of the Act. Occupant does not mean only a landlord or tenant. But if that person who is in occupation produces an order of eviction passed against the tenant by a competent Civil Court and on the basis of which the person has come to be in occupation of the premises, the provisions of Section 10A are not attracted. If the occupant is in lawful occupation, the question of vacancy does not arise and when there is no vacancy, the necessity to report the vacancy would also become unnecessary and the action against any person, whether he is a landlord or the occupant, would not arise under Section 10A of the Act.
25. I am not prepared to accept the contention based on the 'right in future'. Remedy under Article 226 of the Constitution is available subject to the existence of the legal right 'in presenti'. The claims of respon-dents-3 and 4 that they are the true owners and the landlords in respect of the premises in question are yet to be established and this Court would not venture into disputed questions of fact either regarding ownership or regarding the question as to who is the real landlord.
26. In the facts and circumstances of the case and for the reasons above stated, I am of the opinion that there is jurisdictional error resulting from misdirection on the part of both the Rent Controller and the Deputy Commissioner and, therefore, the impugned orders and the notice which suffer from serious legal infirmity are liable to be quashed.
27. In the result, the Writ Petition is allowed and the order dated 4-4-1981 passed by respondent-1 in case No. HRC. (CIVIL) A.4/1981-82; order dated 23-3-1981 passed by respondent-2 in case No. HRC.Misc. 181/1980 and the notice dated 26-9-1980 issued by respondent-2, are hereby quashed. In the circumstances of the case, there shall be no order as to costs.