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Judgment
N. Krishnaswamy Reddy, J.—The appellant-landlord was convicted u/s 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. u/s
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 Accommodation 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
allotted the house to one Shanmughan, Assistant Professor, English, Teacher''s College, Saidapet (P.W.1). The appellant told him that he had
preferred 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 ventilators.
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.
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.
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.
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.
The conviction of the appellant u/s 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 u/s 17 (1) read with Section 33 of the Act are set
aside.
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.
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.
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 u/s 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 u/s 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 u/s 3 (5) of the Act. If the Accommodation Controller had taken forcible possession u/s 3 (9) (a) (i), it
is doubtful whether the appellant could be proceeded u/s 3 (5) for having refused to deliver possession. The conviction and sentence u/s 3 (5) are
also set aside.
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.
In the result, the appeal is allowed. The fine, if paid, will be refunded to the appellant.