Judgment

Chandrasekhara Aiyar J. This is an application under Art. 32 of the Constitution for quashing the orders of the Deputy Commissioner and House Rent Controller, Bangalore, (respondent 2) allotting house No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the use of Sri Aswathanarayana Rao (respondent 3) and taking forcible possession of the same. The State of Mysore has been impleaded as respondent 1.

2. The facts are these. The petitioner D. K. Nabhirajiah is a merchant and is the owner of the premises aforesaid. After lengthy litigation, the previous tenant of the premises vacated it on 1-9-1949. On 2-9-1949, the petitioner notified the vacancy to respondent 2 as required by law but added that he wanted the premises for his own use to set up one of his grown-up sons in a business in electrical goods. Respondent 3 Aswathanarayana Rao however wanted the house for a children 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.

3. Respondent 2 made an order on 13-9-1949 in the following terms :

"With references to your vacancy report in respect of the above place you are informed under cl. 3 (2), Mysore House Rent and Accommodation Control Order, 1948 that the building is requiring for the occupation of Balamandir House for the children and for residential use of the Director. You are therefore directed under cl. 3 (4), Mysore House Rent and Accommodation Control Order, 1948 to hand over possession of the above house to the said Sri Aswathanarayan Rao, Director, Balamandira."

4. By an order dated 20-9-1949 made on an application by the petitioner dated 16-9-1949, 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.

5. 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 28-12-1949. 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 14-3-1950. He then resorted to the High Court of Mysore by means of a petition under S. 45, 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 forbearing of the act is itself illegal or ultra vires . Applications moved under Art. 226 of the Constitution in the course of the same proceedings also failed. This was on 5-1-1951.

6. Some intermediate steps may now be set out. Respondent 3 complained that he had not been given possession. On this complaint, respondent 2 passed an order on 20-3-1950 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 immediately why you should not be prosecuted for failure to obey the order. Please note that if the house is not handed over to the allottee, action will be taken under cl. 3 (6) to take forcible possession of the house through police."

7. 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 3-3-1950, he received the following reply :

"Your letters under reference have been examined carefully. It is correct, to say that allotment of a house to any party (private) is illegal. Clause 3, 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 allottee. You are hereby warned that if possession is not given to the a