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Madrasai Nusrathul Islam Trust, by Managing Trustee M.A. Md. Ismail Vs. the State of Madras, Represented by the Accommodation Controller - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1968)2MLJ77
AppellantMadrasai Nusrathul Islam Trust, by Managing Trustee M.A. Md. Ismail
RespondentThe State of Madras, Represented by the Accommodation Controller
Excerpt:
- .....in writing to the officer authorised in that behalf by the government, which, in this case, is the accommodation controller, the respondent herein. admittedly, the petitioner gave his report of vacancy on 14th august, 1963. on 19th august, 1963, the accommodation controller called for some particulars, and which also the petitioners supplied on 21st august, 1963. on 22nd august, 1963, the accommodation controller intimated to the petitioner, that an inspector would inspect the premises, and the inspector visited the premises, on 22nd august, 1963, and made a report that the roof of the kitchen and the passage had collapsed. thereupon, the accommodation controller wrote a letter on 22nd august, 1963, to the petitioner saying:it is reported by the accommodation inspector of this office.....
Judgment:
ORDER

P. Ramakrishnan, J.

1. In this writ petition, the necessity has arisen to interpret the provisions of Section 3 of the Madras Buildings (Lease and Rent Control) Act, 1960, in regard to a part of it, introduced for the first time in 1960, and for whose interpretation there is no clear authority. The circumstances have arisen in the following way.

2. The petitioner is a trust, and premises No. 12, Muthucattan Street, Periamet, Madras, belongs to the trust. The last tenant of the premises was one Gaughan, who vacated it on 12th August, 1963. Section 3 CO (a) of the Madras Buildings (Lease and Rent Control) Act (Madras Act XVIII of 1960) hereinafter called the Act, makes it obligatory that every landlord shall, within 7 days after the building becomes vacant, by the termination of tenancy, give notice of the vacancy in writing to the officer authorised in that behalf by the Government, which, in this case, is the Accommodation Controller, the respondent herein. Admittedly, the petitioner gave his report of vacancy on 14th August, 1963. On 19th August, 1963, the Accommodation Controller called for some particulars, and which also the petitioners supplied on 21st August, 1963. On 22nd August, 1963, the Accommodation Controller intimated to the petitioner, that an Inspector would inspect the premises, and the Inspector visited the premises, on 22nd August, 1963, and made a report that the roof of the kitchen and the passage had collapsed. Thereupon, the Accommodation Controller wrote a letter on 22nd August, 1963, to the petitioner saying:

It is reported by the Accommodation Inspector of this office that the roof of the kitchen and the passage of the above premises have collapsed. I, therefore, request you to intimate the vacancy after restoring the building to its original tenantable condition. Please note that the period of seven days for which you have to await the Accommodation Controller's orders regarding the disposal of the house will commence only from the date on which his report with the above action is received. Till then you should neither occupy the premises nor let out the same to any person.

3. The petitioner trust replied to this letter stating that they were not prepared to spend any amount on the repairs for the building and requested that the premises might be released to it for its occupation. In a communication dated 28th August, 1963, this request was turned down by the Accommodation Controller, and the petitioner was told that if he failed to intimate the vacancy (afresh) after bringing the premises to a tenantable condition action would be taken to prosecute him for non-intimation of vacancy. Subsequently on 18th June, 1964, the Accommodation Controller gave notice to the petitioner that he had allowed one Hameed to occupy the building and that it had not intimated the Vacancy as requited in his communication dated 26th August, 1963, after repairing the premises, arid asked it to show cause against prosecution. Another final notice to the same purport was issued on 18th January, 1965 to the petitioner. The petitioner filed there-after this writ petition under Article 226 of the Constitution praying for the issue of a writ of mandamus restraining the respondent, from proceeding further in pursuance of this final notice dated 18th January, 1965, for prosecuting the petitioner for not intimating the Vacancy after repairing the premises, as required in the letters above mentioned, sent by the Accommodation Controller to the petitioner.

4. In the counter-affidavit as well as at the time of the hearing of the writ petition, the learned Government Pleader, appearing for the respondent-Accommodation Controller, has sought reliance on the second proviso to Section 3 (5) of the Act, which is in the following terms:

Provided further that where owing to any omission or act or obstructive or preventive tactics on the part of the landlord there has been delay in coming to a decision whether or not the building is required for any of the purposes, or for occupation by any of the officers specified in Sub-section (3), the Government shall be deemed to be the tenant of the landlord only from such later date as may be fixed by the authorised officer having regard to the circumstances of each case.

5. The counter-affidavit stated that by keeping the building in untenantable condition at the time of giving the notice of the vacancy, the landlord had made it impossible for the Accommodation Controller to decide whether the building was required for any of the purpose mentioned in Section 3 (3) of the Act. It was in the above circumstances that the Accommodation Controller had required that the landlord should give a fresh intimation of Vacancy after making the building tenant-able.

6. On the question of putting into a tenantable condition a building, regarding which a report of vacancy had been given by the landlord under the provisions of Section 3 (1) (a) of the Act, it has to be pointed out that Section 3 (5) and 22 of the Act, contain certain provisions. Section 3 (5) states, that, if the building is required for any of the purposes, or for occupation by any of the officers specified in Sub-section (3), the landlord shall deliver possession of the building and the fixtures and fittings in or on the buildings, in good tenantable repairs arid condition to the authorised officer, and thereupon the Government shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the authorised officer received notice under Sub-section (1) or Sub-section (2). Thereafter the terms of the fresh tenancy will be such as may be agreed upon between the landlord and the tenant, and in default of an agreement, as may be determined by the Controller. 'Section 22 (a) of the Act states that, if a landlord fails to make necessary repairs to the building within a reasonable time after notice is given by the authorised officer in the case of a building in respect of which the Government shall be deemed to be the tenant under Sub-section (5) of Section 3, the authorised officer may make such repairs or have them made by the allottee and deduct the cost thereof from the rent payable for the building of ask the allottee to make such a deduction from the rent payable. There is, therefore, a clear provision for dealing with a case where the Building, regarding which a report is made under Section 3(1) of the Act, is found to require repairs, in which case either of the two remedies provided in Section 22 can be adopted. But in such a case, Section 3 (5) does not empower the Accommodation Controller to postpone making his decision about allotting the house to an officer or an institution or authority under the control of the Government.

7. The respondent's Counsel, however, relied on the second proviso to Section 3 (5) above extracted as an authority, for justifying postponement of a decision about allotment, till such time as the building is put into a tenantable condition. The language of the proviso shows that it refers to certain circumstances where the Accommodation Controller need not come to a decision about allotment within 7 days prescribed in Section 3 (3) but can postpone coming to the decision in that respect. The question for consideration is what exactly is the situation thus visualised. The first part of this proviso refers to 'omission or act or obstructive or preventive tactics' on the part of the landlord leading to delay in coming to a decision, as to whether or not the building is required for any of the purposes or for, occupation by any of the officers specified in Sub-section (3). Clearly the first part of the proviso visualises only a limited situation, where the Accommodation Controller is empowered in certain circumstances to postpone the taking of decision and communicating that decision, beyond the period of seven days mentioned in Sub-section (3) of Section 3

8. The question for consideration is whether a case like the present one, where the building is found to require some repairs and which the Accommodation Controller considers it necessary for the landlord to carry Out, can, be construed as a proper ground for postponing coming to a decision about allotting the premises under the second proviso to Section 3 (5). It appears to me that it is not in every case, where repairs are required according to the view of the Accommodation Controller, that the power of extension contemplated in the proviso can be invoked. If that were the view to be taken of the proviso, it would impose in many cases an oppressive burden on the landlord who will have to comply with the terms of the Accommodation Controller for repairing the building irrespective of cost or time. On the other hand, Section 22, providing for effecting of such repairs, places an upper limit for such compulsory repairs, namely, it shall not in any one year exceed one-twelfth of the rent payable in respect of the building for that year. This would also show that the second proviso to Section 3 (5) is intended to deal only with a limited set of circumstances. To construe what circumstances are meant by the proviso, it appears reasonable to take the words 'omission or act or obstructive or preventive tactics' on the part of the landlord ejusdem generis; in other words what the proviso implies is an element of penalty, which requires the penalising of the landlord for obstructive or preventive tactics, which contributed to the delay on the part of the Accommodation Controller, in coming to a decision.

9. In this connection, reference can be made to the rules framed under the Act, Rule 6 provides for inspection of vacant buildings by prospective allottees. The landlord at times may deliberately fail to give the key of the building, to enable the prospective allottee to have inspection of the building, and that will be an act of omission on the part of the landlord within the meaning of the proviso, and the Accommodation Controller can take this as ground for extending the period for coming to a conclusion. Such omission can be construed as obstructive or preventive tactics on the part of the landlord. But where it is found that part, of the building requires some repairs and there is no evidence of the necessity for repairs having arisen through a deliberate omission or obstructive or preventive tactics on the part of the landlord, there will be no scope for invoking the principles stated in the second proviso to Section 3 (5) of the Act. In such cases, the ordinary rule of allowing the new tenant or officer to occupy the premises' subject to the condition of further steps being taken under Section 22 of the Act to effect repairs, should be resorted to; This appears to be the most reasonable way of giving a harmonious construction to the provisions of the section (section 3 of the Act) including the second proviso which is now before me for consideration as well as Section 22 of the Act.

10. Learned Counsel for the petitioner states that the second proviso should be limited to the purposes mentioned in the latter part of the proviso namely ' deeming the Government to be the tenant of the landlord only from such later date as may be fixed by the authorised officer having regard to the circumstances of each case' and that proviso cannot be used to cover a delay in making a decision, about the allotment and, consequently extending the period of 7 days for communicating that decision, as required under Section 3 (3) of the Act. If this view of the proviso is to be taken, it will ignore the first part of the proviso, which refers to delay coming to a decision about the requirement of the building (by the Accommodation Controller) owing the obstructive or preventive tactics adopted by the landlord. What I have stated above shows that the second proviso can be applied only to select cases, where there is clear proof of deliberate omission amounting to obstructive or preventive tactics and positive acts of obstruction or prevention on the part of the landlord, and it cannot be applied to a case where there is no wilful omission or deliberately obstructive or preventive tactics on the part of the landlord, but the necessity for repairs has arisen in the usual course, either due to the default of the previous tenant or some other similar causes. In the present case, the finding of the Accommodation Controller is that the building requires some repairs in respect of kitchen roof and passage. But there is no finding and no suggestion that these repairs have been necessitated by any deliberate omission or obstructive or preventive tactics on the part of the landlord. Consequently, in the view I have taken of the proviso there is no scope for invoking its application to the circumstances of the present case.

11. The writ petition is allowed. A writ of mandamus will issue restraining the Accommodation Controller from proceeding further with the proposal to prosecute the petitioner for non-compliance with the direction mentioned in the notice dated 18th January, 1965. There will be no order as to costs.


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