K. Srinivasan, J.
1. The petitioner is the owner of the bungalow and outhouse of No. g Hindi Prachar Sabha Street, T. Nagar. The outhouse had been let to one Sundaram. The petitioner applied to the Accommodation Controller seeking to have the outhouse released for her personal occupation. The tenant contested the petition and the matter was finally posted for orders to 31st October, 1957. Some days prior to that date, the tenant is said to have reported to the Accommodation Controller that he had vacated the premises. On 31st October, 1957, the owner took possession of the premises. The Accommodation Controller issued a notice to the petitioner asking her to give notice of vacancy. On 3rd November, 1957, the petitioner sent a registered reply setting out the details. She also alleged therein that since the rent was less than Rs. 25, no notice was obligatory but nevertheless since a notice was demanded by the Controller, she was submitting one. This was duly acknowledged on 5th November, 1957. Thereafter, the petitioner sued the tenant for arrears of rent at Rs. 25 per month and obtained a decree.
2. The Accommodation Controller started proceedings before the Chief Presidency Magistrate for the alleged failure of the owner to send intimation of vacancy. Notwithstanding her contest, the petitioner was convicted and sentenced to pay a fine.
3. On 15th September, 1958, the Accommodation Controller issued a notice to the petitioner-owner alleging that no notice of the vacancy had been furnished. This was replied to by the petitioner and she enclosed a copy of the letter sent by her on 3rd November, 1957. Nearly four months thereafter, the Accommodation Controller issued a fresh notice demanding that the petitioner should surrender vacant possession of the premises. The petitioner objected, but the Accommodation Controller insisted that that should be done.
4. It is in these circumstances that the petitioner has approached this Court with a petition under Article 226. Her short contention is that the Accommodation Controller has no jurisdiction to demand possession of the premises, he not having done so within the period of ten days of the receipt of notice of intimation dated 3rd November, 1957. The petitioner claims that the fact that she had been wrongly convicted cannot enlarge the jurisdiction of the Accommodation Controller.
5. In the counter-affidavit filed on behalf of the respondent, it is admitted that on 29th October, 1957, the Accommodation Controller received intimation from the tenant that he had vacated the outhouse on 20th October, 1957 and had handed over possession to the petitioner. Thereafter, on 30th October, 1957, the Controller called upon the petitioner to give a vacancy report. The report was given by the owner on 3rd November, 1957, wherein she stated that the rent for the outhouse was only Rs. 24 per month. The petition which had been filed by the owner seeking possession of the premises for her own occupation had been dismissed. The counter-affidavit states that it was found on enquiry that the tenant had been paying a rent of Rs. 55 per month. The prosecution of the petitioner is referred to. After the prosecution ended, the Accommodation Controller issued a notice on 24th December, 1958, demanding vacant possession of the outhouse. The petitioner's contention that she had substantially complied with the provisions of the Act by furnishing the particulars on 3rd November, 1957 was not accepted and it is claimed that the Accommodation Controller has under the circumstances the power to demand and obtain vacant possession of the premises.
6. The records of the case before the Accommodation Controller have been produced and I am frankly unable to understand how there is any justification for the actions taken by the Accommodation Controller. The power that is conferred upon the Accommodation Controller in this regard is contained in Section 3(8) of the Madras Buildings (Lease and Rent Control) Act, 1949. Under Section 3(1) every landlord shall give a notice of vacancy within seven days after the building becomes vacant. Sub-section (3) states that if, within ten days of the receipt by the authorised officer of a notice under Sub-section (1) 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 purpose of the State, etc., or for the occupation of any officer of such Government, the landlord shall be at liberty to occupy it himself. Sub-section (4) prohibits the landlord from letting the building to a tenant or occupying it himself before the expiry of the period of ten days specified unless, in the meantime, intimation has been received that the building is not required under Sub-section (3). In the present case, it is not in dispute that the owner had filed an application before the Controller seeking to evict the tenant for the purpose of her own occupation. But that petition was dismissed on 30th October, 1957. Now, it appears that though the tenant contested the petition, he reported to have vacated the building and to have handed it over to the landlady. The record shows that he addressed a letter to the Accommodation Controller on 28th October, 1957, stating thus:
I have vacated the outhouse, etc., on 20th October, 1957, forenoon and handed possession to the landlady.
It is certainly not clear if possession was handed over on 20th October, 1957. It is admitted, however, that the tenant made an endorsement on the House Rent Control Application filed by the owner only on 30th October, 1957, and the owner claimed that the premises were vacated to her knowledge only on that date. In response to the notice issued by the Accommodation Controller on 30th October, 1957, following the intimation from the tenant by postcard dated 28th October, 1957, the owner replied on 3rd November, 1957. Undoubtedly, this letter constitutes a notice of vacancy. The owner's liability to notify the termination of a tenancy arises on the building becoming vacant. If the building fell vacant only on 31st October, 1957, it is obvious that the notice of vacancy contained in the letter dated 3rd November, 1957, is within the time stipulated. It is nowhere stated that the petitioner's claim that the building was vacated only on the 31st October is untrue. The mere fact that the tenant alleged that he had vacated the premises on a particular date long before 30th October, 1957 cannot be accepted, nor does It seem to have been considered and accepted. It must be remembered that at the material time, there were proceedings between the landlady and the tenant which came to a termination only on 30th October, 1957. It is clear therefore that the letter dated 3rd November, 1957 was an intimation of the vacancy in conformity 'with the requirements of the section.
7. Even assuming that the petitioner failed to give notice of vacancy of her own accord and assuming that the notice of vacancy had been given by the tenant and the Accommodation Controller became fully aware that the premises had fallen vacant by himself issuing a notice to the landlord, is it open to him to make an order allotting the building to any person beyond the period of ten days from the date of intimation of the vacancy? It is true that the period of ten days has to be computed from the date of the receipt by the authorised officer of the notice given by the landlord. In, this case, the landlady had in fact given a notice and even if that notice was belated I am unable to see how nearly a year after that date the Accommodation Controller can purport to exercise his powers of demanding vacant possession of the building. In the counter-affidavit, it is suggested that because the petitioner was found guilty 'by the Chief Presidency Magistrate for failure to comply with Section 3(1) of the Act, the Accommodation Controller purported to exercise his powers under Section 3(8) of the Act.
8. The authorities below seem to have ignored the position that at the time of the alleged vacancy certain proceedings were pending before the Accommodation Controller and it was not open to the petitioner to take possession except in accordance with any orders that might be passed in that proceeding. It was presumably for that reason that the tenant made an endorsement in that case on 30th October, 1957. Till the vacancy was so recorded in that manner in that proceeding, it was not open to the petitioner to recognise any vacancy and which as far as I can see amounted virtually to abandonment of the premises by the tenant and was not in the proper form in view of the pending proceedings. I am satisfied therefore that there was a valid notice of vacancy and that the notice dated 3rd November, 1957 does constitute a notice of vacancy. The period of one week available to the petitioner has to be computed from the date on which she took possession, that is on 31st October, 1957. If the notice dated 3rd November, 1957, is a proper notice of vacancy, then, the Accommodation Controller having failed to take steps under Section 3(3) of the Act within the ten days thereof, cannot exercise that power. The. plea of the respondent that it is not the power under Section 3(3) that is invoked but that under Section 3(8) of the Act, can be accepted only if the notice dated 3rd. November, 1957 is held invalid. I have already expressed my view with regard to the validity of the notice. It should therefore follow that the Accommodation Controller has no jurisdiction to exercise any power under Section 3(8) of the Act.
9. The result is, the petition is allowed. The rule is made absolute. There will however be no order as to costs.