N. Krishnaswamy Reddy, J.
1. The appellant-landlord was convicted under Section 3(5) and Section 17(1) read with sections of the Madras Buildings (Lease and rent) and Act, 1960 (hereinafter called 'the Act' and sentenced to pay a fine of Rs. 250 under each count (Rs. 500 in all), by the Chief presidency Magistrate, Madras. The Premises No. 6 , Jani Khan Street , 1st lane , Royapettah, Madras, the monthly rent of which was Rs. 65 and this building was subject to the provisions of the Act. This building was occupied by a private tenant and it was vacated on 7th October , 1966. Under Section 3 of the Act , the owner I required to intimate the accommodation Controller the vacancy of the building whenever there is any , within seven days. Accordingly , the appellant informed the Accommodation Controller about the vacancy under a letter dated 13th October, 1966 , which was within seven days. In the same letter, he requested for release of the said premises to enable him to occupy the same as he found it difficult to live with other members of his family in another house owned by the family. On receipt of this letter the attached to the Accommodation Controller's office (P.W.2) inspected the premises on 18th October , 1966 and made a report to the Accomodation Controller wrote to the appellant on 21st October ,1966, rejecting informing him that it should not be let out to any body else. The said order also requires that the appellant should hand over possession of the house to the person authorised by the Accommodation Controller. On 24th October 1966, the Accommodation Controller alloted the house to one Shanmughan, Assistant Professor , English , Teacher's College , Saidapet (P.W.1). The appellant told him that he had preffered an appeal against the order of the Accommodation Controller and that he would not handover possession to him. P.W.1 accordingly informed the Accommodation Controller by his letter dated 26th October 1966. In the meanwhile, the appellant appealed to the Government against the order of the Accommodation Controller-vide, Exhibit D-6. On receipt of the report from P.W.1 the Controller wrote to the appellant on 27th October, 1966 he should hand over possession immediately on receipt of his reference failing which Act. On 29th October, 1966, as per the instructions of the Controller forcible possession of the premises was taken and the allottee, namely, P.W 1 was asked to take possession of the premises. It was also noted that at the time of taking possession, the premises required the following repairs; (i) re-wiring to the premises; (ii) repairs to the flooring in the kitchen; and (iii) repairs to windows and ventilatours.
2. On the appeal petition filed by the appellant to the Government, the Government had passed an order on 7th November, 1966, requesting the Accommodation Controller not to proceed with the allotment of the premises pending orders on the said petition. On the same appeal, final orders were passed on 25th February. 1967, dismissing the appeal petition stating that the Government did not find any reason to reconsider the orders issued by the Accommodation Controller.
3. On the report of the Accommodation Inspector that the house was not in a tenantable condition and that P.W. 1 could not occupy the house, the Accommodation Controller filed a petition against the appellant before the rent Controller Act praying for restoration of the amenities; and against the order of the Rent Controller the appeal by the appellant is said to be still pending The Accommodation Controller also filed a complaint before the Court against the appellant for having failed to deliver possession of the building in a tenable conditions for having officer or to the allottee named by the authorised officer and also for having cut off the amenities without just or sufficient cause.
4. The case of the appellant is that the previous tenant who had been evicted from the premises after protracted proceedings before the Rent Controller had caused mischief to the house by pulling down window panels, electrical installation and also damaging the floor. He further stated that he was not responsible for any mischief done to the premises. He further stated that he could not deliver possession of the premises since he had filed an appeal to the Government and that while the appeal was pending, the Accommodation Controller had taken forcible possession of the premises and, therefore, he did not commit any of the offences.
5. He examined two witnesses on his side, D.W. 1, a retired Bailiff who executed the warrant of eviction against the previous tenant stated that he handed over possession of the same after evicting the tenant and when possession was handed over, the electric wires were found pulled out, the window panels missing and flooring damaged at the downstairs. D.W. 2 is the brother of the appellant and he spoke about the proceedings taken against the previous tenant and also the appeal filed by the appellant to the Government in respect of the occupation of the premises by the appellant.
6. The conviction of the appellant under Section 17 (1) of the Act cannot be sustained. Section 17 (1) of the Act says that no landlord shall, without just or sufficient cause cut off or withhold any of the amenities enjoyed by the tenant or be in any way responsible for the amenities being cut off or withheld. It is clear from this provision that the premises should have been occupied by a tenant and it must be under his enjoyment and if during such enjoyment, the landlord cuts off or withholds the amenities without just or sufficient cause, it will come within the mischief of Section 17 (1). At the time when the amenities were alleged to have been cut off, there was admittedly no tenant. The previous tenant was evicted on 7th October, 1966. The Accommodation Controller had taken possession only on 29th October, 1966. The amenities were cut off even before taking possession. Therefore, this section will not apply and in the result, the conviction and sentence under Section 17 (1) read with Section 33 of the Act are set aside.
7. Even in respect of the contravention of Section 3 (5), the conviction, in my view, under that section is also unsustainable. It is the admitted case that the appellant had not delivered possession and his defence was that he had preferred an appeal against the order of the Accommodation Controller to the Government and the appeal was then pending, and so, he could not deliver possession. If the building is not delivered, the Accommodation Controller by virtue of Section 3 (9) (a) (i) of the Act can taken forcible possession. Section 3 (9) (a) (i) reads thus:
Any officer empowered by the Government in this behalf may summarily dispossess 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 Government possession of any building in accordance with the provisions of Sub-section (5) and may taken possession of the building including any portion thereof which may have been sublet. The Government shall be deemed to be the tenant of such building with effect from the date of taking such possession.
8. The Proviso which is very relevant in this case reads thus:
Provided that in cases where any landlord has been refused permission for the occupation of a building under Clause (c) of Sub-section (8), not less than seven days' notice shall be given before action is taken under this sub-section.
9. It is, therefore, contended by virtue of this proviso, by the learned Counsel for the appellant that after the appellant has been refused permission for occupation of the building which was on 21st October, 1966, if the landlord (appellant) had refused to deliver possession under Section 3 (5), the Accommodation Controller should have given notice, not less than seven days before the forcible possession was taken by him. From the facts of this case, it is clear that permission for the occupation of the building to the landlord was refused on a 21st October, 1966. On 27th October, 1966 (Exhibit P-9) the appellant was asked to handover possession. On 29th October, 1966 (Exhibit P-10), forcible possession was taken under Section 3 (9) (a) (i) of the Act. Seven days' notice required by the proviso to Section 3 (9) (a) (i) was not admittedly given to the appellant. Within two days after the notice was given, action was taken. Even in the notice dated 27th October, 1966 (Exhibit P-9), the appellant was not required to handover possession within seven days from the receipt of the notice. No time was fixed in the notice. This is clearly illegal. It cannot, therefore, be said that the appellant committed an offence under Section 3 (5) of the Act. If the Accommodation Controller had taken forcible possession under Section 3 (9) (a) (i), it is doubtful whether the appellant could be proceeded under Section 3 (5) for having refused to deliver possession. The conviction and sentence under Section 3 (5) are also set aside.
10. It is a very unfortunate case where no one had occupied the building for about three years and it was lying vacant. The Government should have taken steps, even if certain repairs were required for the occupation of the house, to do such repairs and allow the allottee to occupy the house and recoup the amount spent by the Government for such repairs, from the owner of the house. It is for the appellant to seek his remedy in the appropriate forum for the non-occupation of the house.
11. In the result, the appeal is allowed. The fine, if paid, will be refunded to the appellant.