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H. Shiva Rao Vs. the Collector of Madras - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1948)1MLJ266
AppellantH. Shiva Rao
RespondentThe Collector of Madras
Cases Referred and Kaikhushru Sorabji v. Commissioner of Police
Excerpt:
- .....quash his order which runs thus:in virtue of the powers vested in him under section 3(2), of the madras buildings (lease and rent control) act, 1946, the collector of madras is pleased to allot premises no. 16, rajarathnam street, kilpauk, madras, to dr. c. satyanarayana, for residential purposes with effect from 27th september, 1947.2. the house in question was comprised in the estate of one rao bahadur h. narayana rao who died leaving behind him a will under which the petitioner was appointed executor. it is alleged in the affidavit filed by the petitioner in support of the application that from about the end of 1942, the premises were occupied by successive officers of government or by government institutions. on the 5th february, 1947, one rao bahadur r. madhavachari who had been.....
Judgment:

Rajamannar, Officiating C.J.

1. This is an application for the issue of a writ of certiorari to call for the proceedings of the Collector of Madras, dated the 1st October, 1947, and to quash his order which runs thus:

In virtue of the powers vested in him under Section 3(2), of the Madras Buildings (Lease and Rent Control) Act, 1946, the Collector of Madras is pleased to allot premises No. 16, Rajarathnam Street, Kilpauk, Madras, to Dr. C. Satyanarayana, for residential purposes with effect from 27th September, 1947.

2. The house in question was comprised in the estate of one Rao Bahadur H. Narayana Rao who died leaving behind him a will under which the petitioner was appointed executor. It is alleged in the affidavit filed by the petitioner in support of the application that from about the end of 1942, the premises were occupied by Successive officers of Government or by Government institutions. On the 5th February, 1947, one Rao Bahadur R. Madhavachari who had been in occupation of the house vacated it, and the house was assigned to the Hon'ble Mr. B. Venkata-ratnam, minister to the Government of Madras, with effect from the 5th February, 1947. The order itself was passed on the 8th. In accordance with that order, the Hon'ble Mr. Venkataratnam occupied the premises from the 8th February, 1947, and vacated the same on the 25th March, 1947. Though Mr. Venkataratnam vacated the premises, it appears that the petitioner did not obtain vacant possession of the house. One Anjayya, editor of a Telugu weekly, came to occupy the pre-mises from about the 4th April, 1947. The petitioner attempted to obtain possession of the house for the use of the widow of the late Narayana Rao, the testator; but his attempt was not successful. On the 8th August, 1947, the Collector of Madras required the petitioner to furnish certain particulars regarding the house, and when the petitioner had complied with the request, the Collector passed an order on the 27th August, 1947, purporting to allot the house to the Educational Department for use as a hostel. The petitioner protested against the action of the Collector, but he did not get any relief. In supersession of the order of the 27th August, the Collector of Madras passed the order set out above on the 1st October, 1947. It is this last order that the petitioner seeks this Court to quash.

3. The order in question ex facie purports to be passed under Section 3(2) of Madras Act No. XV of 1946. The learned Advocate-General took a preliminary objection that any action taken under that sub-section by the Provincial Government or an officer empowered by them would not be a judicial act and any intimation by the Government or the officer under that Sub-section would not amount a judicial order which could be* quashed by a writ of cerliorari by this Court. To appreciate this contention, it is necessary to refer to some provisions of the Act.

4. Under Section 3(1) every landlord has to give notice in writing to the Con-troller within seven days after his building becomes vacant that it has so fallen vacant. The Controller, according to Section 2(2) of the Act, is the 'person appointed to perform the functions of a Controller under this Act.' It has been brought to our notice that in the City of Madras the Personal Assistant to the Collector of Madras is the person so appointed by G.O. No. 3741 dated 30th September, 1946. Sub-section (2) of Section 3 runs thus:

If, within a week of the receipt of a notice under Sub-section (1) by the Controller, the Provincial Government or any officer empowered by them in that behalf does not intimate to the landlord in writing that the building is required by them for any Governmental purposes or for use by any public institution under Government control or any officer of the Government, the landlord shall be at liberty to lease the building to any tenant.

5. Sub-section (3) is as follows:

If the Provincial Government require the building for any purpose specified in Sub-section (a) the Provincial Government shall be deemed to be the tenant of the landlord as from the date of the receipt of the notice under Sub-section (1) and the terms of the tenancy shall be such as may be agreed upon between them:

Provided that the rate of rent shall not exceed the fair rent that may be payable under the provisions of this Act.

6. It is clear that under Sub-section (2) within a week of the receipt of the notice sent by the landlord to the Controller under Sub-section (1), the Provincial Government has to decide whether the building is required by them for one or other of the porposes mentioned in that sub-section, and if the Government decide that the building is required for one or other of such purposes, the Government or an officer empow-ered by them in that behalf should intimate within the said time of one week to the landlord that the building is so required. Once they intimate to the landlord that they require the building for any of the purposes mentioned therein, the land-lord is not at liberty to lease the building to any tenant. The only action which the Government or any officer empowered by them can take under Sub-section (2) is to intimate to the landlord in writing that the building is required by the Government for a particular purpose. There is no provision in the sub-section for an order to be passed. It is not contemplated that the Government will have to give the landlord a hearing or that they are bound to consider any objections which the landlord may have to the action proposed to be taken by, the Government. It is for the Government to decide whether the building is required for any of the porposes and then to intimate to the landlord that they do require the building for such purpose.

7. Such an act of the Government or of the officer of Government empowered by them in this behalf can in no sense be described as judicial or quasi-judicial. The Government and the officer do not hear evidence or exercise any judicial functions. There is no proposal or opposition before them. The intimation of heir decision to require the building for occupation is done in a purely administrative capacity; It has been pointed out again and again that from the fact that an action of Government or a public officer may have the effect of prejudicing the rights of private parties it does not follow that such an act is necessarily of a judicial nature (vide Rex v. London County Council. The Entertainments Protection Association, Ex parte (1931) 2 K.B. 215 Sreenivasa Ayyangar v. Hindu Religious Endowments Board, Madras : (1937)1MLJ442 and Kaikhushru Sorabji v. Commissioner of Police : AIR1947Bom153 . The fact that the Collector who was the officer empowered by the Government in this behalf clothes his intimation in the form of an order does not make it subject to the jurisdiction of this Court as if it were the order of a judicial or quasi-judicial tribunal. The petitioner will not, therefore, be entitled to the issue of a writ to quash the order in question.

8. During the course of the argument, it became apparent that the Government had not kept before them the provisions of the Act and the procedure laid down in the several provisions of the Act in dealing with the premises in question. It is not clear from the documents which have been placed before us both by the petitioner and by the learned Advocate-General on behalf of the Government how exactly the provisions of Section 3 of the Act became applicable to the building in question. It is difficult to find any communication from the landlord which could be deemed in law to be a notice in writing to the Controller under Section 3(1) of the Act. Evidently, this was a building which had been in the occupation of one or other of the Government officers even before the Act came into force on the 1 st October, 1946. What exactly were the terms of the tenancy at the time when the Act came into force we have no idea of. Thereafter, when the building was occupied by the Principal, Medical College, and was being used as a hostel for the women students of the Madras Medical College, on the 10th October, 1946, we find the Collector addressing the petitioner requesting him to intimate to him, that is the Collector as soon as vacancy occurred as required under Section 3(1) of the Act. This apparently means that the Collector presumed that the tenancy would terminate as soon as the building ceased to be a hostel for the women students and that the Government as such would not continue to be the tenants. On the 28th October, 1946, with reference to this letter of the Collector, the petitioner wrote a letter to the Principal, Medical College, with a copy to the Collector, in which he acknowledged a communication from him that the women students of the Medical College would be vacating the building on the 1st November, 1946, and that it will be occupied thereafter by the men students of the College He also stated therein that he agreed to the retention of the premises by Government provided the rent was fixed at Rs. 125 per mensem. This also indicates that both the Government and the petitioner thought that there was no continuous tenancy. Then we find on the 4th November, 1946, the Collector passing the following order:

under the provisions of Section 3(2) of the Madras Buildings (Lease and Rent Control) Act, 1946, the premises No. 16, Rajarathnam Street, Kilpauk, Madras, is allotted for residential purposes to Rao Bahadur Sri R. Madhavachari with effect from 30th October, 1946.

9. The learned Advocate-General, during his argument, contended that this would be the intimation to the landlord under Section 3(2) of the Act. Mr. Madhavachari vacated the building on the 3rd February, 1947. The question would arise if the Provincial Government can maintain that though the purpose for which the buil-ding was required, namely, for the residence of Mr. Madhavachari, came to an end, nevertheless the Government continued to be the tenants until they actually chose to surrender possession to the landlord. The learned Advocate-General relied upon the language of Sub-section (3) of Section 3. That section no doubt fixes the starting point of the tenancy and that is the date of the receipt of the notice under Sub-section (1); but there is no indication in that sub-section of the date of the termination of the tenancy. We think it is not unreasonable to consider Sub-sections (2) and (3) to mean that if the Provincial Government require a building for a particular purpose the tenancy would terminate as soon as the building ceases to be required for the purpose specified. It is, however, unnecessary to decide that question in this case.

10. The provisions of Section 3 of the Act are in their nature likely to deprive the landlord of his ordinary right of freedom to choose his tenant. The Government should therefore always take sufficient care to see that the terms of the different sub-sections of the section are followed and the conditions laid therein complied with before the rights of the landlord are interfered with. The scheme of the section is clear. As soon as a building falls vacant, the landlord is obliged to intimate the fact of the vacancy to the Controller who is a Government officer. Within a week of the receipt of the notice from the landlord, if the building is required for any of the purposes mentioned in Sub-section (2), the Government or the officer empowered by them should intimate to the landlord that the building is so required. If the purpose for which the building is required does not exist any longer, there is nothing to prevent the Government vacating the building and again when the landlord intimates the fact of the vacancy to the Controller requiring the building for any other purpose if the Government so require it.

11. We have refrained from expressing any opinion as to the validity of the several acts of the Provincial Government and their officers in this case, because of the view that we have expressed, namely, that the act or order of the Collector dated the 1st October, 1947 cannot be quashed by a writ of certiorari.

12. The application is therefore dismissed; but in the circumstances, we do not propose to make any order as to costs.


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