N. Thangavelu vs The Accommodation Controller, Madras-2

Alagiriswami, J.—The petitioner is the present owner of the premises in respect of Which the writ petition is filed. He purchased it on 11th

December, 1964 from one Krishnaswami Mudaliar. This Krishnaswami Mudaliar had not gives notice to the Accommodation Controller when the

building fell vacant as required under S. 3 (1) of the Madras Buildings (Lease and Rent Control) Act. He was prosecuted and fined in respect of

his failure to give notice. Thereafter, en 28th April, 1966 the Accommodation Controller, respondent, issued a notice to the petitioner informing

him about the earlier proceedings and also that the premises was required for Governmental purposes and asking him to hand over possession of

the premises falling which the petitioner was informed that steps would be taken under S. 3 (9) of the Act. The writ petition has been filed for a

writ of mandamus directing the respondent to forbear from forcibly taking possession of the building from the petitioner. The building itself is in

occupation of a Government servant though under a private arrangement with the petitioner. The question for decision is whether it is open to the

Accommodation Controller to take possession of it under S. 3 (9) of the Act. S. 3 (9) (a) (i) of the Act is as follows :

Any officer empowered by the Government in this behalf may summarily dispossess any landlord, tenant or other person occupying any building in

contravention of the provisions of this section or any landlord who fails to deliver to the Government possession of any building in accordance with

the provisions of Sub-S. (5) and may take possession of the building including any portion thereof which may have been sublet. The Government

shall be deemed to be the tenant of such building with effect from the date of taking such possession.

It will be noticed that section refers to occupation in contravention of the provisions of the Act as also to Sub-S. 5 of S. 3. The scheme of the

Act is that every landlord should within seven days after his building falling vacant, give notice to the Accommodation Controller under Sub-S. 3

and if, within seven days of the receipt by the Accommodation Controller of a notice contemplated under Sub-S. 1 or Sub-3, he does not intimate

to the landlord that the building is required for the purposes of Government or any local authority or of any public institution under the control of

any such Government or for the occupation of any other officer of such Government, the landlord would be at liberty to let the building to any

tenant or to occupy it himself. Where intimation is given under Sub-S. (1) the landlord should not let the building to a tenant or occupy It himself

before the expiry of the period of seven days specified In Sub-S. (3). If the building is required for any of the purposes mentioned In Sub S (3) the

landlord shall deliver possession of the building to the Accommodation Controller or to the allottee named by the Accommodation Controller and

the Government shall thereupon be deemed to be the tenant and the Accommodation Controller is given power where the landlord fails to deliver

possession to the Accommodation Controller within 48 hours of the receipt of intimation that the building is required for Governmental purposes, if

the building has already been occupied either by the landlord or by a tenant inducted by him into the building, to dispossess the landlord or tenant

or other persona occupying the building tinder Sub-S. 9 already referred to. It would be clear there fore that before action could be taken under

Sub-s. 9 of S. 3, the building should have fallen vacant and notice should have been given to the Accommodation Controller and even where no

notice is given to the Accommodation Controller and the landlord either occupies it himself or permits another person to occupy it, that would be

an occupation in contravention of the provision of S. 3. Therefore, action can, in such cases be taken under sub S. 9 of S 3. In the present case,

Krishnaswami Modaliar was the original landlord and he had also been prosecuted and fined for failure to give notice. If he had continued to be the

landlord, there is no doubt that action could be taken under Sub-S. 9 of S. 3. Does the fact that subsequently the petitioner has become the

purchase of this property make any difference to this position? I think it does. The explanation 1 to sub-S. 1 of S. 3 lays down that a landlord, who

having obtained possession (i) of a residential building under sub-S. 3 of S. 10 lets the whole of it to a tenant or (ii) of a non-residential building

under Sub-S. (3) of S. 10 lets the whole or part of it to a tenant, shall be deemed to have failed to give notice. This is in addition to the provisions

of sub-S. (i) of S. 3. Sub-S. (1) provides for notice of vacancy being given when a building would become vacant by the landlord''s easing to

occupy it or by termination of (sic) or by eviction of the (sic) or where any such building has been requisitioned under any law for the time being in

force other than the Madras Buildings (Lease and Rent Control) Act by release from such requisition. In this case even if the petitioner is deemed

to be the landlord, the building did not become vacant by his ceasing to occupy it or by the termination of the tenancy or by the eviction of the

tenant or by the budding being released from requisition. The case of a buyer like the petitioner is provided for in explanation II to Sub-S. (1) of S.

It is as follows:

A buyer, (i) who having obtained vacant possession of a building, in pursuance of a sale of such building, lets the whole of it to a tenant or allows

the whole of it to be occupied by any person; or (ii) who, without obtaining such vacant possession, allows the (sic) to occupy the whole of the

building, shall be deemed to have failed to give notice under this Section.

In this case the petitioner did not obtain vacant possession of the building in pursuance of the sale in his favour nor has let the whole of it to a

tenant or allowed the whole of it to be occupied by any person, nor has he without obtaining vacant possession allowed the seller to occupy the

whole of the building. So he is not a person who was bound to give notice under sub-S. (1) of S. 3 and therefore the proceedings provided for by

subsequent sections of S. 3 cannot apply to him. The only way in which action could have been taken against the petitioner would be if the

explanation has read as follows:

A buyer who buys a property after it had fallen vacant as provided in Sub-S. (1) (a) (1) of S. 3 would also be deemed to be a landlord for all

the purposes of this Section. A buyer has been treated separately from the person who was the owner of the property at the time the property fell

vacant and there is separate provision in regard to him and the provision does not provide for the contingency like the one which has arisen in this

case. Therefore, no action could be taken against the petitioner directing him to deliver possession of the property nor could the present occupant

of the building be forcibly evicted by any officer authorized by the Government under S. 3 (9) (a) (i) of the Act. The petitioner is therefore entitled

to succeed. The writ petition is accordingly allowed with costs. Advocate''s fee Rs. 100.