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C. Nataraja Mudaliar Vs. the Madras State Represented by the Accommodation Controller, Madras - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 6628 of 1951
Judge
Reported inAIR1953Mad252; (1952)2MLJ761
ActsMadras Buildings (Lease and Rent Control) Act, 1949 - Sections 3(1), 3(3), 3(4), 3(7) and 7(3); Madras Buildings (Lease and Rent Control) (Amendment) Act, 1951; Constitution of India - Articles 19, 19(1), 31 and 31(2)
AppellantC. Nataraja Mudaliar
RespondentThe Madras State Represented by the Accommodation Controller, Madras
Appellant AdvocateV.V. Srinivasa Aiyangar and ;N. Krishnamachari, Advs.
Respondent AdvocateV.P. Sarathi, Adv. for ;Govt. Pleader
DispositionPetition dismissed
Cases ReferredManohar Ramkrishna v. G. G. Desai
Excerpt:
.....19(5) of the constitution, whereas the learned government pleader contended that the appropriate article applicable is article 31(2) of the constitution and the requisition in question satisfied the conditions laid therein. in my opinion such result is clearly not the outcome of the constitution. so read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. article 31 is as much a part of the fundamental rights contained in part iii of the constitution as article 19; but, whereas art, 19 comes under 'right to freedom'.article 31 comes under 'right to property'.hence, according to the well-established rule of interpretation, where the same statute makes general provisions in respect of a particular..........follows:'article 19(i): all citizens shall have the right -- (f) to acquire, hold and dispose of property;article 19(5): nothing in sub-clauses (d). (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the state from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe. article 31(1); no person shall be deprived of his property save by authority of law:(2) no property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a 'writ of certiorari' to quash the order of the Accommodation Controller, Madras, made in respect' of the ground floor of the house and premises No. 9 Krishnapuram Street, Royapettah. The petitioner is the owner of the said house. He and his wife with their two sons were living in the said house from the year 1935, For about nine years they occupied the entire building. In June 1944 he let out the ground floor to Miss E. T. Rajeswari M. A., Professor of Physics in Lady Wellingdon Training College, Triplicane, Madras. It is said that the ground floor was let to her to oblige his friends. In June 1945 the petitioner's son died. Professor Rajeswari vacated the ground floor of the house on 27th April 1951.

The petitioner gave the notice of vacancy to the Accommodation Controller on 28th April 1951. He intimated to the officer his intention not to let it to any other tenants, as he required it for himself. Therein it was also stated that because of their old age and heart troubles, he and his wife were not in a position to get up and down the stair case of the house. The notice of vacancy was received by the Accommodation Controller on 1st May 1951. Thereupon on 7-5-1951 he issued a notice under Section 3(3) of the Madras Buildings (Lease and Rent Control) Act, 1949, as amended by Act 8 of 1951, allotting the said premises to Sri K.G. Lakshmivenkataraman, Inspector of Police, Crime Branch. The contentions of the learned counsel for the petitioner may be stated thus:

1. The Accommodation Controller has no power under Section 3(3) of the Act to allot a house to a Government servant if the landlord does not intend to let out his house;

2. The allotment of the ground floor of the house in the circumstances of the case is not only arbitrary, but is an unreasonable restriction on the petitioner's fundamental right guaranteed to him under Article 19(i)(i) of the Constitution of India.

2. The relevant provisions of the Madras Buildings (Lease and Rent Control) Act, 1949 bearing on the first contention read as follows:

Section 3(i) (a): Every landlord shall, within seven days after the building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by a 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.)

Section 3(3): If within the ten days of the receipt by the authorised officer of a notice under Sub-section (i) 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 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 3(4): The landlord shall not let the building to a tenant or occupy it himself, before the expiry of the period of ten days specified in Sub-section (3), unless in the meantime he has received intimation that the building is not required for the purpose, or for occupation by any of the officers, specified in that Sub-section.

Section 7(3)(a): A landlord may, subject to the provisions of Clause (d), apply to the controller for an order directing the tenant to put the landlord in possession of the building--

(i) in case it is a residential building, if the landlord requires it for his own occupation if he is not occupying a residential building of his own in the City, town or village concerned............ Section 7(3)(c): A landlord who is occupying only a part of a building, whether residential or non-residential may, notwithstanding anything contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purposes of a business which he is carrying on, as the case may be.'

3. The first argument is that unless the landlord intends to let out a house, the authorised officer has no power to requisition the same. To put in other words, the volition of the landlord is paramount and the jurisdiction of the authorised officer to allot houses for the purposes mentioned in Section 3(3) of the Act is confined only to those houses intended to be let by the landlords and voluntarily thrown out for allotment. If a landlord has a hundred houses and is rich enough not to care to get any income from them by letting them out, the authorised officer will not have any power to allot them, however convenient and necessary they may be for the purposes of the State. This construction would limit the field of selection and enable wealthy landlords to circumvent the provisions of Section 3 by subterfuges. The conception of a requisition implies compulsion. It is intended to meet an emergency. The emergency necessitated the enacting of the drastic provisions and the construction suggested would defeat the purpose to a large extent.

4. The relevant provisions of the Act do not yield to any such construction. Under Section 3(1)(a) every landlord shall give the requisite notice to the authorised officer if the building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy or by release from requisition. This section does not say that the landlord need not give such a notice if he has no intention to let it out. If the Legislature intended to confine the scope of this provision only to such buildings intended to be let by the landlord, they would have said so Under Sub-section (3) the landlord shall be at liberty to let the building to any tenant or to occupy it himself if the State Government or the authorised officer does not intimate to the owner in writing within ten days of the receipt of the said notice their intention to requisition the building for the purposes mentioned therein. The landlord cannot, therefore, occupy his house till the State or the authorised officer sent the said communication to him.

This clearly indicates that the landlord's intention to let out is not a condition precedent for invoking the power of requisition, for his right to occupy the same accrues to him only if the State or the authorised officer does not require for the purposes stated in the prescribed time. Section 3 (4) prohibits the landlord from letting the building to a tenant or occupying it himself before the expiry of the period of the ten days specified in sub-s. (3). This provision contains a prohibition which flows from the provisions of Section 3 '(3). Under Section 3 (7) (a) when a landlord has two or more residential buildings, he is given the option to choose one of such buildings for his occupation and to give notice to the authorised officer of the building so chosen by him and of every other building not so chosen.

This provision, limiting the power of the landlord to choose one building for himself, establishes beyond any reasonable doubt that his intention to let a house is not a condition precedent for the exercise of the authorised officer's jurisdiction. If his intention was paramount, the Legislature would not have given this option to him, for it would have been within his power to reserve as many houses as he liked for himself. Section 7 (3) (a) on which reliance was placed by the learned counsel for the petitioner enables a landlord to apply to the Controller for an order directing the tenant to put him in possession if the landlord requires it for his occupation and is not occupying a residential building of his own in the city, town or village concerned. Section 7 (3) (c) enables a landlord who is occupying only a part of a building, whether residential or non-residential notwithstanding anything contained in Clause (a) to apply to the Controller for an order directing any tenant occupying the whole or any portion of the regaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purposes of a business which he is carrying on, as the case may be. These provisions enable the landlord to get possession of his house for his occupation if he is not occupying another house of his own and also enables him to occupy the entire house if he requires additional accommodation.

These provisions are obviously made to allay the hardship and inconvenience that would be felt by a landlord if he was not allowed to occupy at least one of his houses and if he was not given the additional accommodation required by him. The fact that these provisions had to be made to meet a particular contingency shows beyond any reasonable doubt that but for these provisions he might not be in a position to secure one of his own houses for his accommodation or to occupy the entire house if circumstances have changed. If it was within his uncontrolled discretion whether to let his house or not, these provisions would be unnecessary for he can by so intending exclude at least one house from the operation of the provisions of the Act. It is not necessary to pursue this argument further and to secutinise the other provisions of the Act for it is clear that the landlord's discretion is not the guiding factor. I therefore hold that the authorised officer has power to requisition a building notwithstanding the fact that the landlord is not willing to let out the same.

5. Learned counsel then contended that the order of the Accommodation Controller allotting the ground floor to a Government servant ignoring the circumstances of the case such as the petitioner's and his wife's old age, heart troubles etc. is an infringement of his fundamental right under Article 19(i)(f) read with Article 19(5) of the Constitution, whereas the learned Government Pleader contended that the appropriate article applicable is Article 31(2) of the Constitution and the requisition in question satisfied the conditions laid therein. The relevant provisions read as follows:

'Article 19(i): All citizens shall have the right -- (f) to acquire, hold and dispose of property;

Article 19(5): Nothing in Sub-clauses (d). (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said Sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Article 31(1); No person shall be deprived of his property save by authority of law:

(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless, the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

Item 36, List II, 7th Schedule : Acquisition or requisitioning at property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.

Entry 42, List III; Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given.'

6. It will be seen that both Arts. 19 and 31 appear in Part. III dealing with fundamental rights. The rights under Article 19 are placed under the heading 'Right to freedom'. Article 19 is confined only to citizens whereas Article 31 applies to any person. Both are fundamental rights. The difficulty to place a right infringed under one or other of the articles is often a difficult one. Before attempting to do so in the present case, it may be convenient at this stage to consider the relevant decisions. In -- 'A.K. Gopalan v. State of Madras', : 1950CriLJ1383 , the Supreme Court of India have laid down certain principles which in my view can usefully be applied to the present case.

There the question was whether the Preventive Detention Act, 1950, was 'ultra vires' the Constitution. The Supreme Court held that the said Act is 'intra vires' the Constitution, with the exception of Section 14 which is illegal and 'ultra vires'. It was' contended in that case that the detention came within the provisions of Article 22 relating to preventive detention and therefore Article 19(i)(d) would not apply. At page 35, Kania C. J. says:

'In my opinion such result is clearly not the outcome of the Constitution. The article has to be read without any pre-conceived notions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peacefully and without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation for instance for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of Article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life.'

7. Das J. resolves the conflict in a slightly different way. The learned Judge observed at page 113 :

'10 summarise, the freedom of the person is not the result of Article 19. Article 19 only deals with certain particular rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights. It does not deal with the freedom of the person as such. Article 11(i)(d) protected a specific aspect of the right of free locomotion, namely, the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such. The protection of Article 19 is conterminous with tne legal capacity of a citizen to exercise the rights protected thereby, for Sub-clauses (a) to (e) and (g) of Article 19(i) postulate the freedom of the person which alone can ensure the capacity to exercise the rights protected by those Sub-clauses A citizen who loses the freedom of his person by being lawfully detained whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and, therefore, has none of the rights which Sub-clauses (a) to (e) and (g) may protect, in my judgment Article 19 has no bearing on the question of the validity or otherwise of preventive detention and that being so, Clause (5) which prescribed a test of reasonableness to be defined and applied by the court has no application at all.'

In -- 'Kameshwar Singh v. Province of Bihar', AIR 1950 Pat 392, the question of the Bihar State Management of Estates and Tenures Act was raised. It was argued in that case that Article 31 is in the nature of an exception to the general rule laid down in Article 19(i)(t). Sinha J. in repelling that argument made the following observations at page 418;

'Article 31 cannot be read as an exception to the fundamental rights as declared in Article 19(i)(f). But certainly the two articles have got to be read together in order to give full effect to the intention of the Constituent Assembly. Article 31 is as much a part of the fundamental rights contained in Part III of the Constitution as Article 19; but, whereas Art, 19 comes under 'Right to Freedom'. Article 31 comes under 'Right to Property'. Hence, according to the well-established rule of interpretation, where the same statute makes general provisions in respect of a particular subject-matter, and makes specific provisions with respect to a special category, the latter must prevail over the general. It is also well settled that different provisions of the 'same statute, which are apparently inconsistent with each other, should be so construed as to give effect to all the provisions, so as to avoid a repugnancy.'

8. In this connection the observations of the learned Judges of the Supreme Court in --'Chiranjit Lal v. Union of India', : [1950]1SCR869 , and that of the High Court of Calcutta in -- 'Sudhindranath v. Sailendranath', 8V Cal LJ 140, may also be usefully referred to.

9. The following three principles may therefore be borne in mind in approaching the question to be decided in this case:

1. The general provision must give place to the specific provision;

2. The pith and substance or the directness of the legislation, and

3. Whether the right sought to be protected under Article 19 has been taken away by legislation under another appropriate article? in the instant case, under Section 3 (3), Madras Buildings (Lease and Rent Control) Act, 1949, the authorised officer requisitioned the ground floor of the petitioner's house for the occupation of Sri Lakshmi Venkataraman, Inspector of Police) Crime Branch, Madras, for residential purposes. Under Article 31(2) no property shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession unless the law provides a compensation for the property taken possession of and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. Item 32 of the Second List read with entry 42 of the III list gives power to the legislature to make such a law. The Legislature, therefore, can make a law, as in the present case, empowering the authorised officer to requisition the property of a person. It would be valid if it were for a public purpose and if the law provides for compensation.

Under Section 3 (3) the authorised officer can require the property for 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 question is whether the requisition of a house or a building for the occupation of an officer of Government is a public purpose within the meaning of Article 31. In -- 'Manohar Ramkrishna v. G. G. Desai', AIR 1951 Nag 33, the learned Judges in dealing with the provisions of the C. P. and Berar Accommodation (Requisition) Act (63 of 1948), expressed the view that a requisition for accommodating a Government servant is a public purpose. At page 36 the learned Judge stated;

'It is said that the 'public purpose' contemplated by the clause must be read such as would 'bring a return to the public'. Section 3 (I) enables the requisitioning accommodation only for the purposes of 'providing residence for any person holding an office of profit under the Crown or for locating any public office of the Central or the Provincial Government or local authority'. Indubitably a public office, whether of the Central or Provincial (now Union or State) Government or a local authority exists for the benefit of the public and requisitioning accommodation for locating such office is a 'public purpose'. Similarly, a person holding an office of profit under the Government is charged with the performance of public duties. Such a person must, for enabling him to discharge his duties, be housed and so, in our opinion, requisitioning accommodation for him would be as much a public purpose as would be the location of a public office.'

10. I agree with the said observations. An officer of Government cannot satisfactorily discharge his duties if he is not given accommodation in the place where he is employed. In an over-populated city like Madras, when it is very difficult to find houses for accommodation, I cannot say that the requisition of a house for housing a Government servant is not a public purpose, for the interests of the Government and that of the public would necessarily suffer if their officers are not properly housed. As regards compensation, suitable provisions are made in the Madras Buildings (Lease and Rent Control) Act, 1949 for fixing the rent. The terms of the tenancy may be fixed by agreement, and if it is not possible, through civil courts. The Act also lays down the principles for fixing the rent.

11. Learned counsel for the petitioner contended that Article 31 has no application as it deals with a total deprivation of property, whereas the Madras Buildings (Lease and Rent Control) Act, 1949, regulates the letting of residential and non-residential buildings and controls the rents of such buildings and prevents unreasonable eviction of tenants therefrom. It is not correct to say that Article 311 deals only with total deprivation of property. Under Article 31(1) no person shall be deprived of his property save by authority of law. Article 31(2) deals with acquisition and taking possession. Acquisition means actual transference of property whereas taking possession of property need not imply a total deprivation of the ownership of property. The title to the property may continue in the owner but he may be dispossessed for a public purpose. Item 36 of List II provides both for acquisition and requisition of property.

I cannot therefore agree with the contention that requisition of property, which does not involve a total deprivation of the property from the owner, does not come within the meaning of Article 31. Nor can I agree with the contention that the Madras Buildings (Lease and Rent Control) Act, 1949, does not deal with the subject-matter covered by Article 31 of the Constitution of India, Section 3 (3) specifically enables the Government or the authorised officer to require any building for the purpose of the State. They can take possession of the same subject to the terms prescribed thereunder. The taking of possession under Section 3(3) is certainly covered by the words 'taken possession of' in Article 31(2) of the Constitution of India.

12. The subject-matter directly conies under Article 31. Article 31 being a special article) excludes the operation of the general article, Article 19. As the building was taken possession of under the law validly made, the petitioner is not protected by the provisions of Article 19, for Article 19(i)(f) can be invoked only if the petitioner is legally entitled to use his property.

13. I therefore hold that no right under Article 19 has been infringed by the order of the Accommodation Controller.

14. In this view it is not necessary to express my opinion on the connotation of the word 'hold' in Article 19(i)(f) or on the question whether in the circumstances of the case the requisition of the property for a police officer is a reasonable restriction in the interests of the general public on the right of the petitioner to use his premises. In the result the petition is dismissed with costs. Advocate's fee Rs. 100.


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