KARNATAKA HIGH COURT

                                             Subramanyaswamy S

                                                        Vs.

                                             Deputy Commissioner

                                                   WA 129/81

                           (D.M. Chandrashekhar C.J and N. Venkatachala, J)

                                                   26.02.1981

                                                  JUDGMENT

Venkatachala, J.

1. This appeal is from the order of Subhahit, J., dismissing WP No. 10069 of 1980. The
petitioner therein has presented this appeal. For the sake of convenience, the parties will
hereinafter be referred to according to their respective positions in the writ petition.

2. The material facts are these " Premises bearing No. 253/22 (first floor, left portion), First
Block, 4th Cross, Jayanagar Bangalore-II (hereinafter referred to as 'the premises') formed the
subject-matter of proceedings under the provisions of Part-II of the Karnataka Rent Control Act,
1961 (hereinafter referred to as 'the Act'. The Rent and Accommodation Controller, Civil Area,
Bangalore (hereinafter referred to as 'the Controller'), having information that the premises had
become vacant on 5.4.1980, got served on 18.4.1980 a notice on its owner (respondent-2) calling
upon her to report as required under Section 4(1) of the Act, the vacancy of the premises on or
before 20.4.1980. Thereafter, on 26.4.1980 the petitioner who claimed to have become the
usufructuary mortgagee of the said premises, filed before the Controller a report intimating that
the premises became vacant on 23.4.1980 and praying that the premises should be given to him
for his own use and occupation.

3. After considering the claim of the petitioner and the applications of others for allotment of the
premises, the Controller made an order on 27.5.1980 rejecting the claim of the petitioner and
allotting the premises to respondent-4. The Controller took the view that the claim of the
petitioner was not just and reasonable and that respondent-had to be given the highest priority
among the applicants for the purpose of allotment.

4. Feeling aggrieved by that order, the petitioner preferred an appeal before the Deputy
Commissioner who dismissed it affirming the order of the Controller and observed, inter alia,
that the petitioner had no valid claim for occupation of the premises, but would only be entitled
to receive rent thereof.

5. In the writ petition, the petitioner had impugned the said orders of the Controller and the
Deputy Commissioner. The learned Single Judge dismissing the writ petition declining the
interfere with those orders observing, inter alia that the Controller and the Deputy Commissioner
had rightly rejected the claim of the petitioner and that there was no apparent error of law therein
so as to call for interference.

6. In this appeal, Sri Mirle L. Krishnamurthy, learned counsel for the appellant-petitioner, firstly,
contended that the learned Single Judge, is dismissing the writ petition, had overlooked the legal
position that the petitioner, as the usufructuary mortgagee of the premises, was the landlord
thereof as defined in the Act and that, hence, the Controller and the Deputy Commissioner
should not have rejected his claim for personal use and occupation of the premises. Sri
Krishnamurthy referred to the definition of the term 'landlord in clause (h) of Section 3 of the Act
as any person who is for the time being receiving or entitled to receive the rent in respect of any
premises Sri Krishnamurhty argued that since the usufructuary mortgagee is entitled to receive
the rent of the premises, he comes within the definition of the term 'landlord' and that when he
claimed that the premises which had fallen vacant should be given to him for personal use and
occupation, 'the Controller should have given priority to his claim over the claims of other
applicants for allotment of the premises, unless his (the usufructuary mortgagee's) desire to
occupy the premises was not bonafide and reasonable and that in the present case there was
absolutely no reasons to hold that the desire of the petitioner who had no other premises to
occupy the premises in question, was either not bonafide or reasonable.

7. It was also contended by Sri Krishna Murthy that the Controller and the Deputy Commissioner
had no jurisdiction to go into the question whether the usufructuary mortgagee was genuine or a
make believe one. Shri Krishna Murthy submitted that the petitioner who was in need of
residential accommodation could not secure it for a long time inspite of repeated efforts, that
merely because the petitioner took the usufructuary mortgage of the premises just about the time
when it fell vacant, it could not be inferred that the transaction was a make believe one.

8. We shall proceed on the premises that the usufructuary mortgage in favour of the petitioner,
was a genuine one and examine the question whether an usufructuary mortgagee of premises
should receive the same consideration as the owner of the premises when the same falls vacant.
When any vacancy of premises occurs and the Controller has to make an order under Section 5
of the Act, the claim of the owner of the premises for his use and occupation should ordinarily
have priority over the application of any other person for allotment of such premises, if the claim
of the owner is bonafide and reasonable. But, should such priority be extended to an usufructuary
mortgagee of such premises ? No doubt, the definition of landlord in clause (h) of Section 3
includes an usufructuary mortgagee who is entitled to receive the rent of the premises during the
subsistence of such mortgage. But, the opening part of Section 3 of the Act itself qualifies the
definitions in that section by stating "unless the context otherwise requires". In constructing any
word occurring in a provision of an Act, it is permissible to depart from the meaning given to
that word in the definition thereof in the Act, if the context of that provision so requires. The
whole scheme of Part-II of the Act, is to regulate letting of premises which are in great scarcity at
present, so as to ensure availability of such premises when they fall vacant, to those who are in
need thereof at reasonable rent and in certain order of priority. If an usufructuary mortgagee of a
premises is put on par with the owner in regard to priority while deciding who should get such
premises when a vacancy thereof occurs, a moneyed person who can advance money and take an
usufructuary mortgage of such premises, gets an advantage over a person who is otherwise in
need of such premises, and desires to take it on lease, but does not have large funds to obtain
such usufructuary mortgage. The object of the legislature in enacting Part-II of the Act, will be
defeated if a person who has money and taken an usufructuary mortgage of the premises, is
given priority over applicants who can afford to pay nothing more than the fair rent for such
premises. If such priority is given to an usufructuary mortgagee, an owner of the premises can
also defeat the provisions of the Act which regulate the rent of premises so as to prevent
rackrenting when there is scarcity of accommodation. For instance, it would not be difficult for
the owner of a premises, by clearly manipulating the terms of the usufructuary mortgage, to get a
much higher yield for his premises than the rent which may be fixed by the Controller while
allotting the premises under Section 5 of the Act, to any person or public authority.

9. To prevent the object of Part-II of the Act being defeated, the word 'landlord' in Section 5
thereof, should, in the context of the provisions of that part, necessarily be given a restricted
meaning, so as not to include an usufructuary mortgagee of a premises though the definition of
the word 'landlord' in clause (h) of Section 3 (apart from the context) includes an usufructuary
mortgagee. Hence, we take the view that the word 'landlord' in Section 5 of the Act, does not
include an usufructuary mortgagee.

10. The petitioner, an usufructuary mortgagee, was, therefore, not entitled to claim any priority in
regard to the occupancy of the premises in question when the vacancy thereof occurred. If his
application to the Controller was considered on the same footing as any other application for
allotment of the premises, respondent-4 who is a member of the State Legislature and had made
an application for allotment of the premises, had under Rule 4-B of the Karnataka Rent Control
Rules, 1961, a claim for priority over the petitioner who is an employee in a Bank.

11. Sri Krishna Murthy contended that respondent-4 had already accommodation in the
Legislatures' Home and hence could not claim priority under Rule 4-B but, such a plea was not
put forward before the Controller or the Deputy Commissioner or in the writ petition. Whether
respondent-4 had accommodation in the Legislators' Home and whether such accommodation
was sufficient for himself and the members of his family are questions of fact which cannot be
enquired into in this appeal. We do not find any good ground to interfere with the order of the
learned Single Judge who dismissed the writ petition.

Accordingly, we do not admit this appeal, but dismiss it.
Petition dismiss.