R. Amar Singh vs The State of Madras

Veeraswami, J.—The petitioner is said to be a tenant of a portion of premises No. 1-B, Sourashtranagar, Kodambakkam, Madras, the

landlord residing in another portion of the same building. The petitioner, on his own showing, was let into possession from August 1959 on a

monthly rental of Rs. 50. The previous tenancy in the portion now in the occupation of the petitioner fell vacant on 1st July, 1958. But the landlord

failed to intimate the vacancy, as required by S. 3 (1) of the Madras Buildings (Lease and Rent Control) Act, 1949. He was, therefore, prosecuted

for the violation and convicted by a criminal Court. By an order dated 5th October, 1959, the Accommodation Controller, Madras, informed the

petitioner that the portion in question was required for Government purposes, and directed him to hand over vacant possession to the

Accommodation Deputy Tahsildar (South) within a week from receipt of the order. The order further stated that on default steps would be taken

to recover possession of the portion forcibly under S. 3 (8) of the Act. This petition is to quash the order of the Accommodation Controller on the

ground that it is without jurisdiction. The petitioner''s contention is that Sub-S. (8) of S. 3 can be resorted to only in the event of a statutory tenancy

arising under Sub-S. (3) and that where there is contravention of Sub-S. (1) of S. 3 and for that reason there is no occasion for Sub-S. (3) to

operate, the contravention does not enable the Accommodation Controller to resort to Sub-S. (8). In other words, it is said that Sub-S. (8) is only

an enabling provision and where the Government is not otherwise entitled to possession as a tenant under S. 3, the power to dispossess cannot be

exercised. This view of Sub-S. (8) of S. 3 was accepted by me in W. P. No. 588 of 1959. This is what I said in that case :

It is true that this provision is in two parts, the first relating to any landlord, tenant or other person in occupation in contravention of the provisions

of S. 3 and the other to any landlord who fails to deliver possession to the State, notwithstanding that the State is deemed to be a tenant by virtue

of the section. Where, assuming for purpose of argument it is permissible, under the first part of this provision, a landlord, who is in occupation, is

made to surrender possession of the premises, it will be instructive to consider as to what is the nature of such possession in the hands of the

Government. Will that be a case of a tenancy and if so under what provision ? The answer, in my opinion, will have to be in the negative to both

the questions, The only provision under which the Government is to be deemed to be a tenant is S. 3 (3). There is no indication in S. 3 (8) (a) (i)

that where possession is taken under the first part thereof the Government is deemed to be a tenant. Though this provision, as I said, appears to be

in two parts, on a careful consideration to my mind, even the first part of the provision can be invoked only where the officer concerned has acted

under S. 3 (3) and intimated that the premises in question are required for purposes of the Government Where there is no tenancy in favour of the

Government created statutorily under the other provisions of S. 3, in my opinion, S. 3 (8) (a) (i) does not in itself have the effect, when it is

invoked, of creating such a tenancy.

In arriving at this view I observed that the earlier orders of this Court in W. P. Nos. 402 of 1958, 656 of 1958 and 860 of 1943 did not

particularly deal with this aspect, namely, whether even where there is no statutory tenancy coming into existence by virtue of S. 3 (3) any part of

S. 3 (8) (a) (i) could be availed of by the Accommodation Controller.

Examining the question over again, I am still of the view that Sub-S. (8) of S. 3 does not contain a power of requisition. A power of requisition

is a distinct one known to law and has to be provided for specifically by the Legislature. The whole object of Sub-S. (8), as I observed in the other

Writ Petition, is an enabling one. Before Sub-S. (8) was enacted, notwithstanding the fact that Government should be deemed to be a statutory

tenant, there was no provision to enable them to take possession. In such a case the Government had to resort to a suit in order to recover

possession on the basis of statutory tenancy. If it is the intention that even where there is failure to give notice as required by S. 3 (1) and the

Government could not, therefore, act under S. 3 (3), there should still be a statutory tenancy in their favour when they come to know of the

vacancy, that intention finds no expression anywhere in S. 3. The only consequence of a contravention of Sub-S. (1) of S. 3 is that the offender is

liable to be prosecuted in a criminal Court. Such a contravention is a criminal offence. But I am unable to regard Sub-S. (8) of S. 3 as penal in its

nature. As I view it, what is intended by it is that instead of the Government being driven to a suit to recover possession, they are enabled to

dispossess any one of the persons mentioned in the said section in order to effectuate the purpose of Government tenancy.

Looking at the language of Sub-S. (8) of S. 3, it seems to me, it is difficult to escape this conclusion. The words in Sub-S. (8) (a) (i) "" in

contravention of the provisions of this section "" can have reference to only the provisions which prohibit occupation as in Sub-S. (4) of S. 3. This

aspect appears even to be clearer if the last words in Sub-S. (8) (a) (i) are regarded, namely, "" to deliver to the State Government possession of

any building in respect of which they are deemed to be the tenant by virtue of this section."" In my opinion, these words not merely apply to the

second limb, but the first limb as well of Sub-S. (8) (a) (i) of S. 3.

There is nothing in Sub-S. (8) itself to assume a statutory tenancy in favour of the Government merely by a contravention of the provisions. In

the absence of anything in S. 3 which clothes the Government with a right to possession, the application of Sub-S. (8) does not arise. In other

words, as I already observed, it is only where the Government is entitled to possession that Sub-S. (8) can be resorted to for dispossessing the

person in occupation. On the above view of the object, nature and ambit of Sub-S. (8) of S. 3, it follows that the Accommodation Controller''s

notice in question cannot be sustained. It is hereby quashed. The petition is allowed and the rule nisi is made absolute. No costs.