D. Krishnamurthi vs The Revenue Divisional Officer, Salem (Rent Controller) and another

Rajagopalan, J.—The petitioner purchased the house in question No. 17 Sahadevapuram, Extension, Salem Town, on 27th May 1954. His plea was that he purchased the house for his own residential purposes. At the time he bought the house, one Rangaswamt Iyengar was the tenant in possession, and he continued as a tenant till he vacated the house on 13th September 1955. When the tenant vacated the premises the petitioner as owner gave the requisite notice under S. 3 (1) (a) of the Madras Act XXV of 1949 to the Rent Controller. Salem. That was on 14th September 1955. At the same time the petitioner informed the Rent Controller that the petitioner required the house for his own occupation. On 24th September 1956 the Rent Controller passed an order in the following terms :

Enquiry reveals that the application of Sri D. Krishnamurthi, landlord of the building bearing door No. 17, Sahadevapuram extension, Salem Town, for his own use is not bona fide. Hence his application is rejected. (2) The building bearing door No. 17, Sahadevapuram Extension. Salem, belonging to Sri D. Krishnamurthi is allotted to Sri Cross 3. Devasahayam, B.A., Commercial Tax Officer, Salem, for his residence. (3) The allottee is requested to occupy the house immediately and intimate the fact of his occupation to this office. He is also requested to intimate the Rent Controller, when he vacates this building after his occupation. (4) The landlord is requested to deliver possession of the building to the allottee for his occupation forthwith.

Sri Devasahayam did not avail himself of the allotment, and he did not occupy the house. On 17th February 1936, the Rent Controller allotted the house to one Sri Viswanathan, Personal Assistant to the Collector. The order dated 17th February 1956 recited, "This cancels the order of allotment dated 24th September 1955 allotting the house to Sri S. Devasahayam

Sri Viswanathan did not occupy the house either. On 21st February 1956 the Rent Controller cancelled the order dated 17th February 1956 and allotted the house to Sri A. Abubaker, District Employment Officer.

On 21st February 1956 the Rent Controller issued a notice to the petitioner:

You are hereby directed to hand over possession of the building at once to the allottee failing which action will be taken against you for disobeying orders of the Rent Controller.

The petitioner applied under Art. 226 of the Constitution for the issue of a writ of certiorari to set aside the proceedings of the Rent Controller ending with his order dated 21st February 1956.

Pending disposal of writ petition No. 234 of 1956, the petitioner applied for and obtained an interim stay of the orders of the Rent Controller. Learned Counsel for the petitioner represented that under that stay order the petitioner occupied the premises.

The validity of the proceedings of the Rent Controller were attacked on the following grounds. There was no order of requisition under S. 3 (3) of the Act within the statutory period of ten days. The order dated 24th September 1955 purported to allot the house to Sri Devashayam. But it was not itself an order passed under S. 3(3) of the Act that the building was required for he purpose of the State or Central Government etc.

The second contention was that ever, if the power vested in the Rent Controller under S. 3 (3) to requisition the building for the purpose of the State Government had been exercised in this case, the exercise thereof was vitiated, because the purpose of the requisition was to allot the house to Sri S. Devasahayam, who was already in possession of a house, and who did not therefore stand in need of any house being requisitioned under S. 3 (3) of the Act for his residence.

I shall deal with the second of the contentions first. Both in paragraph 3 and paragraph 3 of his affidavit, the petitioner averred that Sri Devashayam was already residing in a house from which he could not be disturbed or evicted, and that he was not in need of another house. Those allegations were not traversed in the first counter affidavit filed on behalf of the first respondent, the Rent Controller. After the petition was heard in part, the first respondent was permitted to file a supplemental affidavit and that was dated 3rd December 1956. Paragraph 2 of the supplemental affidavit (sic) :

With regard to the allegations of the petitioner in para 3 of his affidavit that Mr. Cross Devasahayam was already residing in a house from which he could not be disturbed and in para 5 of his affidavit that the allotment was presumably with the object of providing Mr. Cross Devasahayam with a cheaper accommodation, the respectful submission is as follows: When I made the allotment in favour of Devasahayam, Commercial Tax Officer on 24th September 1955, he was residing temporarily at a portion of the house at Arisipalayam, an unsuitable building in an unhealthy locality and at a distance of 1 1/2 miles from his office and he was paying rent of Rs. 50. This handicapped him in his official work and he requested for an allotment of a house in a healthy locality and nearer to his office. It is under these circumstances the allotment was made in his favour on 24th September 1955.

This plea really does not advance the case of the first respondent any further. Devasahayam was in possession of a house, and being a Government servant, he could not be evicted therefrom, it was not the case of the first respondent that the house in Arisipaleyam, where Mr. Devasahayam resided, was not subject to the provisions of the Rent Control Act. That being the position, the requisition, obviously for the purpose of allotting the petitioner''s house to Mr. Devasahayam, who was already in possession of a house, could not be justified by recourse to S. 3 (3) of the Act. It was a similar view that I expressed in Premavathi Ammal v. State of Madras (1955) 1 M.L.J. 454=68 L.W. 224. Possibly, if a house already requisitioned under S. 3 (3) of the Act was available to the Rent Controller, he could allot that house to Mr. Devasahayam on the grounds mentioned by Devasahayam and accepted by the Rent Controller. The allotment of a house requisitioned under S. 3 (3) of the Act is not governed by the provisions of S. 3 (3) of the Act, and if the validity of the allotment as such where the house has been validity requisitioned under S. 3 (3) is challenged, different consideration may apply. But it is not the validity of the order of allotment that I am called upon to decide in this case but the validity of the order of requisition under S. 3 (3) assuming for the present that the order dated 24th September 1955 was an order passed under S. 3 (3) of the Act. As I said, when the avowed purpose was to find accommodation for an officer who was already in possession of a residential house as a tenant, whatever the inconvenience, still that did not authorise the Rent Controller to exercise the statutory power vested in him under S. 3 (3) of the Act to requisition the premises of an owner for that purpose, to find accommodation in this case for Mr. Devasahayam. That vitiated the exercise of the jurisdiction of the Rent Controller, and that itself should be sufficient to set aside the order dated 24th September 1955 and the orders subsequent thereto.

Learned Counsel contended that the order dated 24th September 1955 could not be construed to be an order passed in exercise of the power under S. 3 (3) of the Act. It informed the petitioner that his request to occupy the premises could not be complied with. It further informed the petitioner that the house had been allotted to Mr. Devasahayam. It did not in express terms inform the petitioner that the building was required for the purpose of the State or Central Government or of any local authority, or of any public institution under the control of such Government, or for the occupation of any such officer, which was what S. 3 (3) of the Act required and provided for. The learned Government Pleader urged that despite absence of any express Statement in the order dated 24th September 1955 to the effect the house was required for occupation of a Government Officer, the basis on which the allotment to Mr. Devasahayam was made was that the house was requisitioned under S. 3 (3) of the Act. It was in that light that the order should be interpreted. There is much to be said for the view urged by the learned Government Pleader. It is not the mere form, or the absence of any specific words, that really determines the question of jurisdiction, or determines the issue whether the power conferred by S. 3 (3) of the Act was exercised in a given case. The statutory authorities should however remember that when a specific statutory power is exercised, it is desirable to conform even in the form of the requirements of the statutory provisions. Since I have upheld the second of the contentions urged by the learned Counsel, that requisitioning of the house for the avowed purpose of allotting it to Mr. Devasahayam was bad in law, the order dated 24th September, 1955, and the further orders of the Rent Controller will stand set aside by the issue of a writ of certiorari. The rule is made absolute and the petition is allowed. No order as to costs.