C.S. Mani vs The Accommodation Controller and Another

Padmanabhan, J.—The writ Petitioner is the hereditary trustee of Arulmigu Arasadi Karpaga Vinayagar Temple, Madras-5. The trust owns a residential building, door No. 58, T.P. Koil street, Triplicane, Madras-5. Even prior to 1974, the said building had been requisitioned by the Accommodation Controller, Madras, the first Respondent herein, u/s 3 read with Section 2(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (herein after referred to as the Act). The first Respondent had allotted the said building to Munusamy Mudaliar. The said Munusamy Mudaliar was paying the rent to the Petitioner herein on behalf of the first Respondent. While so on 21st August, 1974 the Government of Tamil Nadu issued G. O. Ms. No, 1998 Home, dated 12th August, 1974 exempting all the buildings owned by the Hindu, Christian and Muslim religious trusts and Charitable institution from all the provisions of the Act. It is the case of the Petitioner that with effect from 12th August, 1974, the said Munusamy Mudaliar continued to occupy the building as a tenant directly under him. The said Munusamy Mudaliar vacated the building on 30th June 1976. On 28th June, 1976 the Petitioner issued a notice to the first Respondent that Munusamy Mudaliar was about to vacate the building and that the same should not be allotted to any one else as the Petitioner required the building for demolition and reconstruction. Since the first Respondent did not sent a reply to the said notice, the Petitioner sent a further notice on 16th March, 1977 requesting the first Respondent to surrender possession of the building and not to make any further allotment. The first Respondent sent a communication No. A5/25300/75,dated 29th September, 1977 stating that the building was being allotted to the second Respondent on a rent of Rs 100. The Petitioner has, therefore, filed this writ petition for the issue of a writ of prohibition restraining the first Respondent from giving effect to the order dated 29th September, 1977 by which the building is said to have been allotted to the second Respondent on a rent of Rs. 100 per month.

Mr. K. V. Sankaran on behalf of the Petitioner contend that by virtue of the notification G.O. Ms. No. 1998 Home, dated 12th August, 1974 the Petitioner''s buildings got automatically released from the provisions of the Act. With effect from 12th August, 1974 Munusamy Mudaliar was in occupation of the building as a direct tenant of the Petitioner. Just before and after Munusamy Mudaliar vacated the building, the Petitioner gave notice of vacancy to the first Respondent u/s 3 of the Act, but the first Respondent failed to intimate the Petitioner that the building was required for the purpose of the State or for the occupation of any officer of the Government. Consequently, the Petitioner was at liberty to either let out the building or occupy the building. In this particular case the Petitioner required the. buildings for demolition and reconstruction. Having failed to take any action within ten days of the receipt of the notice from the. Petitioner, the first Respondent would not be entitled to allot the buildings to the second Respondent as stated in the order dated; 29th September, 1977.

In this context, it is necessary to state that on 1st September, 1976 the Government issued G. O. Ms. No, 2000 Home, dated 16th August, 1976 in supersession of G. O. Ms. No. 1998, Home, dated 12th August, 1974. By the said G. O. the Government confined the exemption from the provisions of the Act granted'' by G. O. dated 12th August, 1974 to all buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable institution from all the provisions of the Act. The first Respondent relying upon the said G. O. contends that even though under G.O. Ms. No. 1998, Home, dated, 12th August, 1974 the Government exempted the buildings owned by Hindu, Christian and Muslim religious trusts and charitable institution from all the provisions of the Act, the first Respondent had not really surrendered possession of the building to the Petitioner. The first Respondent continued to be in possession. Munusamy Mudaliar was only a licensee under the first Respondent and consequently he was not competent to enter into any private lease arrangement with the Petitioner. While so by G. O. Ms. No. 2000, Home, dated 16th August, 1976 the exemption originally granted in favour of the buildings owned by private trusts had been taken away. On the date of the said notification the building was still in the possession of the first Respondent. In the circumstances, the first Respondent''s action in allotting the building to the second Respondent was perfectly in order.

On an anxious consideration of the contentions advanced before me by Counsel on both sides, I am clearly of the opinion that the Petitioner is entitled to succeed. The building owned by the Petitioner was taken over by the first Respondent u/s 3 of the Act. As per Section 3(5) of the Act once the building is requisitioned by the first Respondent the Government shall be deemed to be the landlord. Therefore, the Government became a statutory tenant under the Petitioner by virtue of the operation of the deeming provisions of the Act and Munusamy Mudaliar, who was originally inducted into possession of the building by the Government was only in the position of a licensee. By G, O, Ms. No, 1998, Home, dated, 12th August, 1974 the Government exempted the building owned by the Hindu, Christian and Muslim religious trusts and charitable institutions from all the provisions of the Act. The effect of this G. O. was that from the date of the said G.O. the building No. 58, T. P. Koil street., Triplicane, Madras, belonging to the Petitioner, became exempted from the provisions of the Act. The consequence of the G. O. to the effect that the provisions of the Act would not apply to the Petitioner''s building, was that the Government ceased to be a statutory tenant in respect of the Petitioner''s building from the date of the said G. O. In other words, there was a termination of the statutory tenancy, that came in to existence when the Government took over the Petitioner''s building in the first instance. In the circumstances, it would not be open to the first Respondent to contend that notwithstanding G.O. Ms. No. 1998, Home, dated 12th August, 1974, the Government continued to be the statutory tenant, Mr. D. Krishnan, the learned Government Pleader argued that since the Government had taken possession as a statutory tenant, the relationship would continue till actual physical possession was surrendered to the Petitioner-landlord. Till the date of the notification G.O. Ms. No. 2000 Home, dated 16th August, 1976 the first Respondent had not surrendered physical possession of the building to the Petitioner. Therefore, when once on 16th August, 1976 the buildings owned by private trusts again came within the provisions of the Act it would be open to the first Respondent to allot the building to the second Respondent. I am unable to agree. With the publication of G. O, Ms. No. 1998, Home, dated, 12th August, 1974 there was a snapping of the statutory tenancy held by the Government. When once there was a termination of the tenancy, there could be an implied surrender of the building in favour of the Petitioner. It is not disputed by the first Respondent in the counter -affidavit that Mnnusamy Mudaliar continued to be in occupation of the building after 12th August 1974 as a direct tenant of the Petitioner. The only stand that has been taken in the counter-affidavit and that was pressed into service at the time of arguments by the learned Government Pleader was Munusamy Mudaliar was not competent to enter into any such arrangement with the Petitioner. This contention is clearly unsustainable. After the date of 12th August, 1974 the possession of the building by the first Respondent was wrongful. In the normal course of events, they should have made an express surrender of the building to the Petitioner. This was not done. The Petitioner was perfectly light to presume that with effect from 12th August, 1974 the first Respondent would have nothing to do with the building and that it would be open to him to treat Munusamy Mudaliar as his tenant. According to the Petitioner there was an arrangement between the Petitioner and Munusamy Mudaliar by which with effect from I2th August, 1974 Munusamy Mudaliar continued to be in possession as a tenant under the Petitioner. If this had not been the position, the Petitioner would have obtained a release of the building from the first respondent, Having notified that with effect from 12th August, 1974 all buildings owned by private trusts would be exempt from the provisions of the Act and having allowed the Petitioner to act on the assumption that the statutory tenancy in favour of the Government had become terminated, and that it would be open to the Petitioner to enter into a direct tenancy arrangement with Munusamy Mudaliar, the first Respondent would now be estopped from contending that there has been no surrender of the lease in favour of the Petitioner. I have no hesitation in holding that the legal consequence of the G.O. Ms. No. 1998, Home, dated, 12th August, 1974 was the termination of the statutory tenancy and an implied surrender of the tenancy in favour of the Petitioner. It therefore necessarily follows that with effect from 12th August, 1974 Munusamy Mudaliar continued to be in possession as a tenant of the Petitioner.

It is not disputed that the Petitioner gave notice of vacancy as required u/s 3 of the Act and that the first Respondent did not notify the Petitioner within ten days as required by Section 3(5) of the Act that the building was requited for the purposes of the Government or any of its officers. Consequently, the Petitioner is entitled to occupy the building. It is not now open to the first Respondent to allot the building to the second Respondent as stated in the impugned order. Having remained quiet for nearly a period of two years after the issue of G.O. Ms. No. 1998, Home, dated 12th August, 1974 the Government cannot take advantage of their own wrong and say that the building is again covered by the provisions of the Act by virtue of the notification G.O. Ms. No. 2000, Home, dated 16th August, 1976 and that they are entitled to allot it to the second Respondent. Therefore, the writ petition is allowed and a writ of prohibition will issue as prayed for. There will be no order as to costs.