State of Madras vs R. Amar Singh and another

Ramakrishnan, J.—The two appeals were tried together as it was felt that a common question arises in them. The common question in these cases is the proper interpretation of S. 3 (8) (a) (i) of the Madras Buildings (Lease and Rent Control) Act, 1949 (hereinafter called the Act), which confers a right on the State Government to empower any of its officers to summarily dispossess a landlord, tenant or other person occupying a building to which the Act applies, in certain eventualities. In both the appeals, the State of Madras represented by the Accommodation Controller appeals against the order of Veeraswami, J. in W.P. No. 1049 of 1959 (leading upto W.A. No. 187 of 1962) and in W.P. 1080 of 1959 (leading upto W.A. No. 279 of 1962). The decision in W.P. 1049 of 1959 is reported in Amar Singh v. State of Madras 75 L.W. 698. In both these cases a vacancy arose in respect of a residential house, but the landlord failed to give the statutory notice as required in S. 3 (1) (a) of the Act, within the prescribed time of 7 days. The landlord thereafter put a new tenant in possession, without reference to the Accommodation Controller. The authorities prosecuted the landlord before the Magistrate, for failure to give the notice and he was convicted and fined. The Accommodation Controller then gave notice to the newly inducted tenants directing them to vacate the premises in their occupation, relying upon S. 3 (8) (a) (i) of the Act. The two tenants then filed writ petitions before this Court, which came up before Veeraswami, J. In his order dealing with W.P. No. 1049 of 1959, the learned Judge allowed the writ petition, holding that the Accommodation Controller had no right to recover possession under S. 3 (8)(a)(i) of the Act, and quashed the notice given by the Accommodation Controller to the tenant to vacate the premises. For a like reason the other writ petition was also allowed, and an order quashing the notice was passed. The State Government represented by the Accommodation Controller, has filed the two appeals. It was since represented at the time of the hearing of the appeals, that so far as W.A. No. 187 of 1962 is concerned, the premises let out constitute only a portion, and that in regard to the rest of the portion, the landlord had been in occupation at all material times. S. 3 (10) (c) of the Madras Act XVIII of 1960 (which has amended the earlier Act), excludes from the operation of the rule about dispossession for failure to give notice of vacancy, a building of the above type. Therefore it was pointed out, that even if we are to allow the Writ Appeal No. 187 of 1962, and hold that the tenant was liable to be evicted under the prior Act, the Accommodation Controller would not be in a position to let the premises to any other person, because the new Act, which must apply for that purpose, will not cover a building of this description. Therefore no practical purpose will be served by dealing with the propriety of the direction to vacate, so far as W.A. No. 187 of 1962 is concerned. But in the case of W.A. No. 279 of 1962 a similar state of things does not obtain, and in fact the premises had been let into two portions to two different persons. There is, therefore, necessity to consider the correctness of the order in W.P. No. 1080 of 1959, which has led upto W.A. No. 279 of 1962. The relevant provision of the Act, S. 3 (8) (a) (i) is this:

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 State Government possession of any building in respect of which they are deemed to be the tenant by virtue of this section;

The learned Advocate General who appeared for the State Government, points out in our opinion rightly-that this section has two limbs, namely, (1) any landlord, tenant or other person occupying any building is contravention of any of the provisions of S. 3, and (2) any landlord who fails to deliver to the State Government possession of any building in respect of which they are deemed to be the tenant by virtue of S. 3. Under S. 3 (5) of the Act, the Government shall be deemed to be a statutory tenant, with retrospective effect, during the interregnum from the date on which the Accommodation Controller receives the notice of vacancy till the date when the Government actually commences occupation itself for any of the purposes of the State, or puts in possession the person for whose benefit the Government had intimated the landlord, that the building would be required. But the first limb, extracted above, according to its specific terms, makes no reference to statutory tenancy under S. 3; it deals with all cases where a landlord, tenant or other person is in occupation of a building in contravention of any of the provisions of S. 3. When a vacancy arises, and the landlord without giving the notice prescribed in S. 3 (1) (a) of the Act to the Accommodation Controller, inducts another person as a new tenant, such occupation, it is clear, will be in contravention of the provisions of S. 3 (1) (a) of the Act. Even if the landlord locks up the premises after the previous tenant leaves it, the possession will be with the landlord and such possession in the absence of the prescribed notice to the Accommodation Controller, will be in contravention to S. 3 (1) (a) of the Act. This question came up before Subba Rao, J., (as he then was) in Fathima Bi Vs. The State of Madras, and the learned Judge held at page 769:

Occupation of the building by a landlord or his tenant without issuing notice under S. 3(1)(a), which, as I already stated, is a part of the general scheme of requisition, is certainly a contravention of the provisions of the section. As the tenant is now in possession in contravention of that subsection, he is liable to be summarily evicted under S. 3(8).

Veeraswami J., however, referred to an earlier decision of his in W.P. 588 of 1959 reported in R. Srinivasalu Chetty Vs. The State of Madras, and expressed his opinion that though S. 3(8)(a)(i) is in two parts, even the first part can be invoked only where the Accommodation Controller has acted under S. 3 (3) of the Act and intimated that the premises in question are required for the purpose of the Government, but where there is no tenancy in favour of the Government created statutorily under the other provisions of S. 3, S. 3(8)(a)(i) does not in itself have the effect, when it is invoked, of creating such a tenancy. In other words, in the view of the learned Judge, the provisions giving the right of eviction in S. 3 (8) (a) (i) can be invoked only in cases where the Government could claim to be a statutory tenant, and that instead of driving the Government to a suit for possession, S. 3 (8) (a) gives it a summary remedy to obtain that relief. With due respect to the learned Judge, the above view does not give full effect to the limbs of S. 3 (8) (a) (i) of the Act, which, as we have observed above, deals with two distinct sets of circumstances. Only the second limb covers the case of a statutory tenancy in the Government. The first limb has nothing to do with statutory tenancy but covers all cases where the possession of the landlord, tenant or other person is found to be in contravention of the Act in the view of the learned, Judge, occupation in contravention of the first limb of S. 3 (8) (a) (i) will entail only a criminal prosecution to the landlord but neither he, nor a tenant inducted without notice to the Accommodation Controller, will be liable to eviction. This view, besides being opposed to the provisions of the Act, will lead also to certain adverse consequences, which the Act, itself was designed to prevent. Thus, the landlord can, without reporting a vacancy, let out the premises to a tenant of his own choosing and also at a rent fixed by him hoping that the only consequence will be a criminal prosecution and a fine, and that the advantage of getting a tenant of his own choosing for an amount of rent arbitrarily fixed by him, will far outweigh any disadvantage of a criminal prosecution and a fine. The Act was intended to relieve congestions in busy cities, and to enable the Accommodation Controller to allot vacant buildings in an equitable manner by giving preference to deserving cases. The interpretation of S. 3 (8) (a) of the Act in the decision under appeal will certainly set at nought one of the salutary provisions of the Act. Adopting the view of Subba Rao, J., (as he then was in Fathima Bi Vs. The State of Madras, we are of the opinion that in this case the Accommodation Controller was entitled to dispossess the petitioner and that the notice he had issued for that purpose was in order. We therefore allow the appeal W.A. 279 of 1962 and dismiss the Writ Petition No. 1080 of 1959. The appellant in this appeal will get the costs of this appeal from the respondent. W.A. 187 of 1962 is dismissed, but with no order as to costs.