Revenue Divisional Officer, Salem vs D. Krishnamoorthy and Another

Rajamannar, C.J.—This is an appeal against the judgment of Rajagopalan J. in W. P. No. 234 of 1956. That was a petition filed by the first

respondent D. Krishnamurthi, for the issue of a writ in the nature of a mandamus or other appropriate writ to direct the Revenue Divisional Officer,

Salem, who is also the Rent Controller, and one Abu Bakker, District Employment Officer, Salem, to forbear from interfering with the petitioner''s

right to occupy his house No. 17 Sahadevapuram extension, Salem. The first respondent who will be referred to hereinafter as the respondent

purchased the house on 27th May, 1954.

On the date of the Purchase the house was in the occupation of a tenant who continued to occupy it till he vacated the premises on 13th

September, 1955. The respondent gave the requisite notice of vacancy u/s 3(1)(a) of the Madras Buildings (Lease and Rent Control) Act, 1949

(Madras Act XXV of 1949) to the Rent Controller, Salem on 14th September, 1955. The notice appears to have been received by the Rent

Controller on the 16th September, 1955. The respondent also informed the Rent Controller that he required the house for his own occupation,

On the 24th September, 1955, the Rent Controller, Salem, passed an order in and by which he rejected the respondent''s request to be allowed to

occupy the building himself and allotted the building to one C. S. Devasahayam, Commercial tax Officer, Salem, for his residence. The respondent

was directed to deliver possession of the building to allottee for his occupation forthwith. C. S. Devasayam did not occupy the house. There

appears to have been a Petition to the Government to set aside the order of the Rent Controller but that was dismissed eventually.

But during the pendency of that petition before the Government there was stay of the order of the Rent Controller. On 17-2-1956 the Rent

Controller passed another order informing the respondent that the building had been allotted to S. A. Viswanathan, Personal Assistant to the

Collector (Estates) for his residence. By that order he purported to cancel his prior order allotting the building to Devasahayam. Even Sri

Viswanathan did not occupy the house. So on 17-2-1956 the Rent Controller passed another order cancelling his order dated 17-2-1956 and

allotting the house to Sri Abu Baker, District Employment Officer. The respondent thereupon filed an application to this court under Article 226 of

the Constitution, out of which this appeal arises. It now transpires that oven Sri Abu Baker did not occupy the house and upto this date the house

has been in the possession of the owner, namely, the respondent.

The writ petition was disposed of by Rajagopalan J. He held that the Rent Controller had no authority to exercise the statutory power vested in

him to requisition the premises of an owner for the Purpose of finding accommodation for an officer who was already in possession of a residential

house as a tenant, whatever be the inconvenience. On this ground the learned Judge quashed the order of the Rent Controller.

Another contention was raised before the learned Judge by the counsel on behalf of the respondent that the order of the Rent Controller dated

24-9-1955 could not be deemed to be a valid order passed in exercise of the power u/s 3(3) of the Rent Control Act, The order did not conform

to the language of the enactment. The learned Judge was apparently inclined not to accept the contention. He thought that it was not the mere form

or the absence of any specific words that really determined the question of jurisdiction or the issue whether the power conferred by Section 3(3) of

the Act was exercised properly.

At the same time the learned Judge thought it necessary to Point out that statutory authorities should conform even in form to the requirements of

the statutory provisions under which they exercised powers. The Rent Controller, Salem, has filed the above appeal challenging the correctness of

the view taken by Rajagopalan J. The material provisions of the Rent Control Act, (Madras Act XXV of 1949), are the following :

Section 3(1)(a); Every landlord shall within 7 days after the building becomes vacant by his ceasing to occupy it, or by the termination of a

tenancy or by release from requisition give notice of the vacancy in writing to the officer authorised in that behalf by the State Government

(hereinafter in this section referred to as the authorised officer). Provided that this sub-section shall not apply to a building in respect of which the

landlord has obtained an order for possession on any of the grounds specified in Section 7, Sub-section 3.

Section 3(3) : If within ten days of the receipt

by the authorised officer of a notice under Sub-section (1) or Sub-section (2) the State Government or the authorised officer does not intimate to

the landlord in writing that the building is required for the purposes of the State or Central Government or of any local authority or of any Public

institution under the control of any such Government or for the occupation of any officer of such Government the landlord shall be at liberty to let

the building to any tenant or to occupy it himself.

Section Sec: If the building is required for any of the purposes or for occupation by any of the officers, specified in Sub-section (3) the landlord

shall deliver possession of the building to the authorised officer and the State Government shall be deemed to be the tenant of the landlord with

retrospective effect from the date on which the authorised officer received notice under Sub-section (1) or Sub-section, (2).

There is nothing in Sub-section 3 of Section 3 of the Act which gives any indication as to when and in what circumstances the State Government or

the authorised officer would be justified in intimating to the landlord that the building is required for the purposes mentioned in that section. All that

the State Government or the authorised officer has to do is to intimate that the building is required for the said purposes within ten days of the

receipt by him of the notice under Sub-section (1) or (2) of Section 3 of the Act.

In our opinion it is not open to this court to hold in any case that the State Government or the authorised officer was not justified in intimating that a

particular building is required for the purposes of the State or Central Government or of any local authority or of any public institution, or for the

occupation of any officer of such Government. Of course, cases of mala fides will always be exceptions. If it is alleged and proved to the

satisfaction of this court that either the State Government or the authorised officer was actuated by malice and that the requisitioning of the building

was mala fide, then this court will certainly quash the order of the Government or the authorised officer.

Except in such cases we think it does not lie in the province of this Court to find out in each particular case whether or not the State Government or

the authorised officer was justified in intimating to the landlord that the building was required for purposes specified in Section 3(3) of the Act. The

learned Judge has imposed a limitation that the authorised officer cannot lawfully require a building for the occupation of any officer of the State or

Central Government unless the particular officer to whom it was intended to allot the building was not in Possession already of a residential house

as a tenant,

The learned Judge went so far as to say that even if the house which was in temporary occupation of a Government officer was highly

inconvenient to him or was unsuitable on any substantial ground even then the authorised officer cannot intimate to the landlord that the building

was required for the occupation of such an officer With respect we are unable to agree with the learned Judge. To give an instance, if an officer

high up in the hierarchy of Government officials and occupying a very important status and position has perforce been in occupation of a small

house totally unsuitable to him and not in keeping with the position which he occupies in life desires to move into a more suitable house, it certainly

cannot be said that the requisitioning u/s 3(3) of the Act would he improper or illegal.

One can understand the court holding that if it is established that the house was required not for the occupation of any Government Officer but for

a private person who happens to be a friend of the Rent Controller, that it is a mala fide exercise of the power of the authorised officer who

requisitions the building. The view taken by the learned Judge leads, in our opinion, to several anomalies. It is really that an officer of the Stale

Government or Central Government would be stranded without a roof over his head. Nevertheless the logical result of the learned Judge''s view is

that unless the officer is more or less stranded without any accommodation he cannot be allotted any house by resort to Section 3(3) of the Act.

Our attention was drawn to an earlier decision of the learned Judge in Premavati Ammal v. State of Madras, 1955 1 MLJ 454. In that case the

house was requisitioned u/s 3(3) of the Act for the purpose of occupation of Deputy Director Subsidiary Intelligence Bureau (Ministry of Home

Affairs. Government of India), Madras because the building which he was till then occupying was too costly for him in rent and he had accepted it

as a temporary measure for want of a more suitable building. The learned Judge quashed the order of the authorised officer made u/s 3(3) of the

Act, because the officer in question was already in occupation of a house though the rent for the building was too high. The learned Judge

observed thus:

If at the time the Accommodation Controller received the notice of vacancy u/s 3(1) of the Act, the Government servant for whom a house was

required had no house allotted to him in which he could live as a tenant, the discretion exercised in favour of requisitioning could not have been

challenged. In this case, however, Mr. Shetty had already been allotted a house but his complaint was that the rent for the building was too high

...... Such a consideration to benefit a Government officer to the extent of allotting a house cheaper than the one in which he was actually living at

the time of the exercise of the powers u/s 3(3) of the Act, is in my opinion totally irrelevant in the exercise of that statutory power.

We are unable to agree with him. If the house in question was bona fide required for the occupation of an officer of the State Government or the

Central Government then this court cannot go into the question whether in the opinion of this court the authorised officer was justified in making the

requisition.

Though we do not take the same view on the construction of Section 3(3) of the Act, nevertheless we think that the appeal should be dismissed

for another reason. Section 3(3) confers power on the State Government or the authorised officer to intimate to the landlord that a particular

building is required for one of several purposes namely (1) purposes of the State or Central Government or (2) of any local authority Or of any

public institution under the control of any such Government or (3) for the occupation of any officer of such Government.

The notice issued by the authorised officer under this provision should expressly intimate to the landlord for which purpose the building is

required. So far as the occupation of any Government officer is concerned the notice may be in general terms, say, that the house in question was

required for the occupation of State or Central Government officers. In this case there was no such order. Indeed, there is nothing in any of the

orders of the Rent Controller intimating to the landlord that the building was required for any of the purposes mentioned in Section 3(3) of the Act.

There is only an order allotting the house to a Government officer.

We are prepared to share with Rajagopalan J. in his opinion that even if the words ""required for the occupation of any officer of the State

Government"" were omitted but the purpose is dearly implicit, there will be no such excess of jurisdiction as would justify interference by us under

Article 226 of the Constitution. In the present case there is, however, another special circumstance. The first order of the Rent Controller dated

24-9-1955 allotted the house to one Sri Devasahayam. Actually it has turned out that he did not avail himself of that. He did not choose to occupy

it. The order of the Rent Controller could not, therefore, be implemented. The only order of the Rent Controller made within ten days of the receipt

by him of the notice given by the landlord under sub-section. (1) of Section 3 of the Act is the one dated 24-9-1955. Subsequent orders were

beyond that date. Section 3(3) docs not contemplate a series of orders.

It contemplates Only one order, namely, that the building is required for any one of the purposes mentioned therein, and not that without any

reference to the period of ten days specified therein the authorised officer can go on passing successive orders intimating to the landlord from time

to time that the house is being requisitioned for any one of the purposes mentioned in that sub-section. On the other hand it contemplates only one

order, namely, that the building is required for any one of the purposes mentioned therein.

For this reason also we think that there has been no valid and effective order Passed u/s 3(3) of the Act. We may add that the house ever since

it fell vacant has been upto date in the occupation of the owner himself. The period of ten days mentioned in Sub-section (3) of Section 3 of the

Act expired long ago and in our view fie Government cannot now purport to exercise that Power and require the building for any of the specified

purposes mentioned therein. On this ground the appeal fails. The appeal is dismissed but in the circumstances of the case there will be no order as

to costs.