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Judgment
Ramanujam, J.—The Petitioner herein is a central Government Servant working in the postal department and he Was allotted Premises No.
41, Royapettah High Road by the Government on a monthly rent of Rs. 55. The said premises was earlier requisitioned by the Government. The
owner of the premises applied for release of the said premises on the ground that he required the premises bona fide for his own occupation.
Though similar requests from the owner had been rejected on earlier occasions, the Accommodation Controller has chosen it direct the release of
the building by an order, dated 1st July, 1982. In pursuance of the said order releasing the building at the instance of the owner, the Petitioner who
was an allottee was directed to deliver possession of the building under threat of a forcible eviction by an order, dated 2nd June, 1983. The, said
order was received by the Petitioner on 7th June, 1983 and the Petitioner thereafter filed an appeal to the first Respondent herein the State
Government, on 20th July, 1983. The Government had chosen to entertain that appeal and has disposed of the same on merits holding that the
owner of the building has established his bona fide requirement for his own occupation and in that view dismissed the appeal filed by the Petitioner.
Aggrieved by the order of dismissal of his appeal, the Petitioner has filed the present writ petition for quashing the order of the Government made
in G.O. Ms. No. 365, Home, dated 15th February, 19S4. Apart from questioning the order of the Government on merits, the Petitioner has also
raised a ground that in so far as the Accommodation Controller did not fix any specified date for hearing and give notice the same to the parties
before him, the ultimate order passed by him stands vitiated for mot following the procedure set out in Rules 11 and 12 of the Tamil Nadu
Buildings (Lease and Rent Control) Rules, 1974.
When the writ petition was taken up for hearing, the learned Additional Government Pleader appearing for the first and the second Respondents
and the counsel appearing for the third Respondent, the owner of the premises, have raised an objection as to the maintainability of the writ petition
and their objections are two-fold. One is that as the Petitioner being only a licensee and as his rights flow only from the Government who had
directed the release of the building and as he has no independent right in relation to the subject-matter he cannot maintain this writ petition against
the orders of the Government. The second is that even assuming that the writ petition is maintainable, the Petitioner is not entitled to succeed
therein as his appeal before the Government was admittedly time barred and as such the Government should not have entertained the appeal and
disposed of the same on merits.
In support of the first contention, reference is made to the decision of Sathiadev J., in Viswanathan v. The Collector of Madras (Writ Petition
No. 9559 of 1982) and the decision of Mohan J., in Durai v. Government of Tamil Nadu [1978] 89 L.W. 558. In the first case it has been held
that since the writ Petitioner is only a licensee under the Government which is legally the tenant of the premises, he cannot claim the status of a
tenant under the Act and, therefore, he is not entitled to challenge an order passed by the Government directing the release of the building and the
Petitioner as an allottee is bound by the action of the Government and he cannot claim any independent right apart from his position as an allottee.
In the second case, a house requisitioned by the Government u/s 3(3) was later released at the instance oft he owner of the building. That order
directing he release passed by the Government was challenged by the allottee of the premises on the ground that he was not given any notice
before the order of release was passed and, therefore, the order releasing the building is vitiated. Mohan J., while dismissing the writ petition
pointed out that the order directing the release of the building amounts to a revocation of the licence granted in favour of the allottee, the writ
Petitioner, and as such he is not entitled to any notice. The learned Judge also proceeded on the basis that it is the Government which is the
statutory tenant and the allottee is only a licensee from the Government and he has no independent right to agitate as against the Government. After
a due consideration of the above two decisions relied on by the learned Counsel for the Respondents I am of the view that those decisions do not
apply to the facts of this case. Further the said decisions do not make any reference, to the changes brought about in the statutory provisions by the
amendment in the year 1973.
Before the amendment in 1973, an allottee of the premises requisitioned by the Government was treated as a mere licensee with no right of his
own except the right he can claim through the Government and if the Government chooses to release the building it has earlier requisitioned, the
allottee has no say in the matter. But that position has been some what changed by the amendment brought in the year 1973 Section 3A(3) is to be
noted in this connection. Section 3A deals with the topic of release of the building. Section 3A(1)(a) enables the owner of a residential building
with has been requisitioned by the Government to apply for release on the ground that he requires it for his own occupation or for the occupation
of any member of his family subject to the condition that the landlord or the member of the family is not occupying any residential building of his
own in the city, town or village concerned. Section 3A(3) which is relevant is as follows.
Any person who is aggrieved by an order passed by the authorised officer under Sub-section (2) may, within fifteen days from the date of receipt
of such order, prefer an appeal to the Government and the Government shall pass such order as they deem fit and on such appeal being preferred,
the Government may order stay of further proceedings in the matter pending decision on the appeal.
The above Sub-section (3) uses the expression any person who is aggrieved by an order passed under Sub-section (2) releasing the building. If
really the only person who can be taken to be aggrieved is the landlord, the statute would have used the word landlord or the applicant for release
instead of the expression any person. The Sub-section seems to proceed that there is more than one person who can be aggrieved by an order
passed by the Government releasing the building. The other Sub-sections to Section 3A wherever the context requires, Use the expression
landlord. Therefore, the Legislature should have used the expression landlord in Sub-section (3) if the landlord is the only person who is taken to
be aggrieved by the order of the controller Sub-section (2) contemplates two kinds of orders passed by the concerned authorities, one an order
releasing the building and the other rejecting the application for release. Sub-section (3) is in general terms comprehending both the kinds of
orders. It is only in respect of a rejection of an application for release the landlord may be said, to be aggrieved. In respect of an order directing a
release, the landlord cannot be said to be an aggrieved person, but the allottee can be taken to be aggrieved. Thus the languages of Sub-section
(3) which uses the expressions any person aggrieved by an order tinder Sub-section (2) will take in, in the case of orders directing the release of
the building, the also tee who is factually aggrieved by the order of release.
In his connection, a look at the relevant riles is also necessary. Rule 11 Inter alia says that every application for release u/s 3A shall also state the
grounds on which the application is made and Sub-rule (2) of Rule 11 says that every application under the Act shall be accompanied by a spare
copy or sufficient number of spare copies thereof for service on the Respondent or Respondents mentioned therein. Rule 12 deals With the
procedure for disposal of applications, and that states that when an application is presented under Rule 11, the Controller or the authorised officer,
or an officer authorised by him, as the case may be, shall fix the date on which and the place at which the inquiry in respect of the application will
be held and send notice thereof to the applicant or applicants'' and the Respondent or Respondents mentioned in (he application and also send a
copy of the application along with the notice to the Respondent or Respondents. Sub-rule (2) of Rule 12 directs the Controller or he authorised
officer to give the parties a reasonable opportunity to state their case. He shall also record a brief note of the evidence of the parties and witnesses,
if any, examined on either side. Thus a conjoint reading of Rules 11 and 12 shows that they apply not only to the applications u/s 10 but also to
applications filed u/s 3A for release of the building and that there are two rival parties even in ah application for release u/s 3A(i). In the case of an
application for release of a building filed u/s 3A, the Government who is actually the statutory tenant cannot be a party for the Government it self
has been constituted as an Appellant authority under the rules. Therefore, the only party who can resist an application u/s 3A can only be the
allottee, though the allottee claims his right only through the Government. Rule 18 provides for appeals being filed to the Government against the
orders of the Accommodation Controller releasing or refusing to release the building. As already stand an order passed u/s 3A(2) may be positive
or negative, that is an order may be one releasing the building or it may be a refusal to release the building. If every order passed u/s 3A(2) should
be the subject matter of an appeal, then in respect of an order directing the realise of the building the appeal could be filed only by the allottee and
not by the Government which is the statutory tenant and which also happens to be the appellate authority under the Act. Rules 20 makes the
position still clear. That rule deals with inspection of the building by the authorised officer. That says that in cases falling under Sections 3, 3A and
12 of the Act, the authorised Officer, if he thinks fit to do so, may personally inspect the building concerned and may call for any particulars in
respect of the said building from the landlord or tenant or occupant or any previous tenant or occupant thereof and such landlord, tenant or
occupant s(sic) thereupon furnish such particular Thus (sic)me of their inspection, the allottee as a person in occupation of the premises is entitled
to appear and makes representations.
Thus Section 3A and the rules referred to above as amended appear 1o proceed on the basis that even through the Government is the statutory
tenant and the allottee is merely a licensee in occupation of the premises, he has a right of representation before the Accommodation, controller
While deciding the question as to whether the building is to be released cannot and he is also authorised to file an appeal if the order of release s
made overlooking his representations. In this case, it is only under Rule 18, the Petitioner has filed in, appeal before the Government. As an
occupant, the Petitioner is aggrieved by the order passed by the Accommodation Controller u/s 3A(2) and as an aggrieved person he is entitled to
file an appeal under that section read with Rule 18 to the Government. Having regard to the fact that the statute gives certain special rights, that is,
right of representation, right to file an appeal to the Government etc., the Petitioner as an occupant of the premises Which has since been directed
to be released by the Respondents 1 and 2 and who is aggrieved by the decision of the Government rejecting his appeal is entitled to come before
this Court as against the rejection of his appeal.
Irrespective of the fact whether the Petitioner is entitled to file an appeal be fore the Government as a party to the proceeding, the question to be
considered now is whether the Petitioner whose appeal has been ejected by the Government can come before this Court as an aggrieved party or
not. If a person files an appeal before the Government and that appeal is rejected, no reasoning is necessary to show that he is an agreed person
by the rejection of this appeal by the Government. Such a person can maintain a writ petition before this Court. In such a case he is not coming
before this Court as a mere allottee but as a person whose appeal has been rejected by the Government. In this view of the matter, I am not
inclined to uphold the objection taken by the learned Counsel for the Respondents that the Petitioner cannot maintain the writ petition before this
Court. The special facts that arise in ''his case were not present in the cases decided by Sathiadev, J., and Mohan, J., referred to above. Hence
those decisions do not stand in the way of the Petitioner maintaining the writ petition.
The further question is whether the appeal has rightly been entertained by he Government. According to the learned Counsel for the Respondent
appeal against an order of the Accommodation Controller passed(sic) Section 3A(2) can be filed within 15days from the date of the receipt of the
order and in this case the appeal before the Government having been filed beyond the said period of 15 days, the Government should have
rejected the appeal without going into the merits, It is not in dispute that the Accommodation controller passed an order directing the Petitioner to
hand over possession of the premises on 2nd June, 1983 and that was received by the Petitioner on 7th June, 1983. As per the provisions of the
Act, the appeal has to be filed within 15days from 7th June, 1983, but the appeal-was actually filed in this case on 20th July, 1983. In the
memorandum of grounds of appeal, the Petitioner has admitted that the appeal is being filed beyond time but he has given certain explanation as to
why the appeal could not be filed in lime. Though the memorandum of appeal contained a prayer by the Petitioner that the delay in filing the appeal
should be condoned and the appeal should be dealt with on merits after such condonation, the impugned order of the Government straightaway
proceeds to deal with the appeal on merits without referring to the question of delay. In is in those circumstances, the learned Counsel for the
Respondents have taken up the plea that the Government could not have entertained the appeal filed belatedly and it should have rejected the
appeal as having been filed out of time. The learned Counsel for the petition does not dispute the fact that the appeal has been filed before the
Government beyond the time but what he contends is that since the Government has disposed of the appeal on merits it should be presumed that
the Government has condoned the delay and that the mere fact that the government has not chosen to pass any order regarding the question of
delay will not invalidate the Government''s order dealing with the merits of the case. In support of this plea, Mr. N. Sivamani, the learned Counsel
for the Petitioner refers to tie following two decisions: Kandan v. The Chairman. Dock about Board, Madras (1982) 96 L.R. 68, Ram Balmukand
v. Board of Revenue ILR (1966) Raj 1091
In the first case, the Court was concerned with an. order of rejection of an appeal passed by a secretary of the Dock labour Board. This Court
held that the power to condone the delay, vests with the Chairman of the Dock Labour Board under the Madras Dock Workers'' (Regulation of
Employment) Scheme, 1956 and in that case, since the Chairman has not exercised his discretion in the matter of condonation of the delay but the
Secretary exercised his discretion and rejected the appeal the order rejecting the appeal was clashed and the matter was directed to be considered
by the Chairman. I do not see how that decision will be of any help to the Petitioner herein. In the second case, the Rajasthan High Court was
dealing with a case where the appellate authority had entertained the appeal with out making a specific order on the question of delay. But on the
facts that case, the Court drew an inference that the appellate authority condoned the delay even though it did not pass any scarify order to that
effect and proceeded, to dispose of the appeal on merits. Relying on that decision, Mr. Sivamani wants the Court to draw the inference that the
first Respondent in this case had in fact condoned the delay before proceeding to deal the appeal on merits. A perusal of the judgment of the
Rajasthan High Court indicates that the appellate authority was in fact aware of the fact that the appeal has been filed belatedly but none the less
chose to dispose of; he appeal on merit. Thus the special facts of that case, were sufficient to draw the inference that the appellate authority
proceeded to deal with the merits after condonation of the delay, though no specific order was passed to that effect. But in this case it is not
possible to say the Government was aware of the fact while disposing of the appeal on merits, that the appeal has not been filed in time. As a
matter of fact, the rules provide that the memorandum of appeal Sled before the Government must contain the date of receipt of the order
appealed against and a copy of the order appealed against should be appended to the memorandum of grounds of appeal. According to the
learned Government Pleader these steps have not been taken by the Petitioner and therefore the Government would not have been aware of the
fact that there has been a delay in filing the appeal. The learned Counsel for the Petitioner, however, refers to the last paragraph in the
memorandum of grounds of appeal when the Petitioner has stated the reasons for the delay in filing the appeal. It is no doubt true that the
memorandum of ground of appeal contains the reasons for the delay and the request for condonation of the delay, but it is not clear whether while
disposing the appeal the Government was really aware of the fact that there is a delay in filing the appeal from the file produced. Therefore unless
one is on a position to say that the Government was aware of the delay in filing the appeal while disposing of the appeal it is not possible to draw
an inference that the Government has chosen to condone the delay and only thereafter it has proceeded to dispose of the appeal on merits. I am
not therefore inclined to accept the contention of the learned Counsel for the Petitioner that the Government should be deemed to have condoned
the delay while disposing of the appeal on merits.
It cannot be disputed that the Government as an appeal late authority can dispose of the appeal on merits only when there is a proper appeal
before it. If the appeal has been filed belatedly, unless the delay in filing the appeal is condoned, the appellate authority is not entitled to entertain
the appeal and deal with the appeal on merits. Since the Government in this case., has not chosen to deal with the question of delay and
straightaway proceeded to deal with the appeal on merits without going into the quest ion as to whether the appeal has been properly filed or not,
the impugned order of the Government disposing of the appeal on merits, cannot legally be sustained. The result of allowing the Petitioner is to
restore the appeal filed by the Petitioner before the Government and the said appeal has to be disposed of now by the Government. However,
before going to deal with the appeal on merits, the Government has to give a finding whether a case has been made out for the condonation of the
delay or not. If the Government finds that this is a case for the condonation of the delay, then it will have to necessarily give notice to the third
Respondent, the owner of the building and hear his objections before passing a final order. When the Government considers the question whether
the delay in filing the appeal is to be condoned or not, the owner of the building will be given notice and he will be heard on all objections taken by
him. The objections may also include as to whether Section-5 of the Limitation Act applies and whether there are sufficient grounds for the
condonation of the delay.
The writ petition is allowed accordingly. There will be no order as to costs.