K.S. Palaniswamy, J.
1. The Petitioner, Srinivasa Ayyangar, is the owner of door No. 3/98, Vasudevapuram, Triplicane, Madras. The building consists of ground floor and first floor. The petitioner, along with his family, is occupying a portion of the ground floor. The remaining portion of the ground floor has been let out by the petitioner privately to another person. When the first floor fell vacant in the year 1952, the petitioner intimated the vacancy as required under the Madras Buildings (Lease and Rent Control) Act, 1949 (Madras Act XXV of 1949) and that portion was taken over by the Government and allotted to certain Government servants. The rent was Rs. 55 per month. When one Jayalakshmi, an allottee, vacated, the petitioner, on 17th July, 1969, applied to the Accommodation Controller, Madras, requesting for the release of the upstairs portion for his own occupation alleging inter alia that he had since retired from service as Assistant Accounts Officer, that his family had increased and that he required the upstairs portion for his own occupation. As the petitioner did not get a reply, he wrote to the Minister concerned on 28th October, 1969.
2. The Accommodation Controller submitted a report to the Government regarding the request of the petitioner as directed by the Government and thereupon the Government rejected the request of the petitioner, by order dated 6th December, 1969. This writ petition is filed to quash that order.
3. It is contended for the petitioner that the State Government failed to take into consideration relevant circumstances in considering the request of the petitioner, that though the Government were informed by the Accommodation Controller that the petitioner was a vegetarian the Government directed the allotment of the upstairs portion to a non-vegetarian, that in directing this allotment, the Government acted vindictively and that the order of rejection o f the petitioner's application for release is vitiated.
4. It is contended on behalf of the respondent in the counter affidavit that the petitioner has got another premises bearing door No. 11/5, Dr. Beasant Road, Triplicane, Madras, where his mother is living, that the said building is spacious, consisting of two storeys, that the petitioner can, if he wants, occupy a portion of that building and that, therefore, the Government rejected the petitioner's request for release, as the request was not bona fide.
5. The petitioner's case is that door No. 11/5, Beasant Road, belongs to his mother, that he was no doubt living with his mother for sometime along with his family, that finding it to be difficult to live with his mother, he had to shift to the ground floor of the premises in question and that he cannot, as of right, ask for accommodation of any portion of the building belonging to his mother. Therefore, the fact that the petitioner's mother is possessing a house property is hardly a relevant circumstance in considering the bona fides of the request of the petitioner.
6. The Accommodation Controller called for a report from the Accommodation Deputy Tahsildar, with reference to the request of the petitioner. The Accommodation Deputy Tahsildar fell into the error of taking into consideration the building belonging to the petitioner's mother and reported that the petitioner can occupy a portion of that building. But the Accommodation Controller gave a personal hearing to the petitioner and considered the entire matter and came to the conclusion that the petitioner's request was bona fide. He further reported that the petitioner could not live with his mother, that the petitioner's family requirement was such that the petitioner's request was reasonable and that, therefore, it would be equitable and fair that the building was released. The Accommodation Controller further reported that in response to the notice of vacancy 35 persons had given their consent and that though in normal circumstances he himself would have ordered the release of the premises in favour of the petitioner, he submitted a proposal to the Government in view of the fact that a large number of persons had given their consent. The Government did not agree with the Accommodation Controller and rejected the petitioner's request. It is rightly contended on behalf of the petitioner that the Government acted arbitrarily in not giving effect to the recommendation of the Accommodation Controller. It is true that the Government were not bound to accept the report of the Accommodation Controller. But where the Accommodation Controller has given reasons for his recommendation, one would expect the Government to consider whether those reasons are tenable or not. The Government appears to have fallen into the error in thinking that the petitioner could move into his mother's house for larger accommodation overlooking the contention of the petitioner that he was not in a position to move into his mother's house.
7. What transpired before the Government rejected the petitioner's request gives room for the feeling that the order of rejection is not free from vindictiveness. The Accommodation Controller reported on 20th November, 1969, as to who among the applicants were vegetarians and who were non-vegetarians. This question about vegetarianism arose because of the fact that the petitioner, being a brahmin, is a vegetarian. The Government asked the Accommodation Controller whether there would be any objection to let out the portion to a non-vegetarian even though the landlord preferred a vegetarian. In reply to that communication, the Accommodation Controller reported saying that the petitioner, being a brahmin, is a vegetarian, that besides the other tenant occupying the remaining portion of the ground floor is also a vegetarian and that therefore there will be objection if the upstairs are allotted to a non-vegetarian tenant. But curiously, even after getting this report, the Government directed the allotment to a non-vegetarian. The petitioner's contention is that this act on the part of the Government in directing the allotment to a non-vegetarian followed by the rejection of his request for release savours of vindictiveness. This contention is not without substance. One fails to understand why the Government insisted upon the building being alloted to a non-vegetarian even after getting a report from the Accommodation Controller that the landlord being a vegetarian, there would be objection if the upstairs were allotted to a non-vegetarian. The Accommodation Controller was guided by the principle laid down by this Court in Namberumal Chetty's Charities v. Accommodation Controller (1959) 1 M.L.J. 297, wherein it is pointed out that while allotting portions, the Accommodation Controller should normally respect the consideration for sentiments of people living in the same building. A vegetarian may have strong objection to a non-vegetarian food being cooked nearby. It is pointed out on behalf of the petitioner that on account of the allotment of the upstairs portion to a non-vegetarian, the sullage water from the upstairs falls in front of the Courtyard, that the petitioner being an orthodox brahmin is unable to perform any religious ceremony in his house, that on occasions when he has to perform religious ceremony, he has necessarily to find accommodation elsewhere, and that on account of the allotment of the upstairs to a non-vegetarian, the petitioner is unable to make proper use of his building. It may be that the petitioner is orthodox having certain notions which may not be considered progressive. But even such persons who follow some principles according to their religious convictions are entitled to insist within the sphere of their legal rights and, of course, subject to public interest that they should have freedom of conscience and that nothing should be done to offend such principles. The owner of a building is entitled to enjoy his building in the best way possible, subject of course to public interest. It should not be forgotten that the provisions of the Act place drastic restrictions on the fundamental right of the citizen to hold and enjoy his property. But these restrictions have been constitutionally upheld only on the ground of public interest. When a citizen is sought to be deprived of his right to occupy his own building, all considerations, relevant for the purpose, including the question whether the requirement of the owner of the building to occupy himself is genuine or bona fide, should be taken into account. In this case, there is the further fact that the upstairs portion happened to be under Government tenancy by accident when the Madras Buildings (Lease and Rent Control) Act, 1960, came into force. Under this Act, a landlord occupying a part only of his building is not required to intimate vacancy under Section 3 when the remaining portion falls vacant. In such a case, he is entitled to deal with the remaining portion in any way he pleases. If the upstairs portion in the instant case had fallen vacant after the 1960 Act had come into force, the petitioner - would not have been put to the necessity of intimating the vacancy. But the statutory tenancy of the Government commenced in 1952 under the] 1949 Act, and that tenancy continued when the 1960 Act came into force. The Legislature in its wisdom made this change while the 1949 Act was re-enacted. It is obviously with a view to give freedom to the owner of the building to choose his own tenant that the Legislature enacted that in a case where the landlord himself is occupying a portion of the building, he need not intimate vacancy under Section 3 when the remaining portion falls vacant. Though the petitioner is not entitled to avail of this change in the law, it is a matter which cannot be totally ignored in considering his request for release.
8. From the correspondence that passed between the Government on the one hand and the Accommodation Controller on the other, it does not appear that the Government acted fairly in rejecting the claim of the petitioner. The order is unjust, inequitable and unfair. In this view, the writ petition is allowed and the impugned order is quashed. The Government shall deliver possession within two months from this date after providing another accommodation to the allottee. The petitioner is entitled to his costs. Advocate's fee Rs. 100.