D. A. Dubier v. Collector of Madras — 1989 DIGILAW 369 (MAD)

JUDGMENT Padmini Jesudurai, J. 1. The allottee of a residential building, requisitioned under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act), has filed the present appeal, aggrieved with the order of the learned Judge dismissing in limine his writ petition to quash the order of the Accommodation Controller, releasing the building to the landlady for her own occupation. 2. The appellant filed W.P. No.3899 of 1983 on the following averments: The building bearing Door No. 195, Purasawakkam High Road, Kilpauk, Madras - 10 was allotted to him on 27-6-1969 for his residential purpose and he has been residing therein ever since, presently paying Rs.250 as monthly rent In October 1982, he was promoted from the post of Reserve Inspector of Police to the post of Deputy Superintendent of Police, Armed Reserve, Thanjavur East for one day only. He took charge on 11-10-1982 and handed over charge on the same day and proceeded to Mount Abu, Rajasthan for a training, which held him there, till 8-1-1983. After completion of the course, he returned to Madras on 21-3-1983 and he was posted as Deputy Superintendent of Police (Cryptography) Police Radio Branch, Madras. On 8-3-1983, he received the order of the Accommodation Controller the first respondent herein directing him to vacate the premises within 15 days from the date of receipt thereof and hand over vacant possession. The order made reference to the fact that the appellant had not replied the first respondent letter dated 16-12-1982 and that the landlady's request for release of the house was genuine and had been ordered. The appellant sent a representation dated 10-2-1983 to the first respondent, pointing out the fact that his transfer to Thanjavur East was only for one day and that the second respondent's request was not genuine in view of her earlier unsuccessful attempt to evict him from the premises. The first respondent, despite his representation dated 10-2-1983, declined to withdraw the order of release of the building in favour of the second respondent and merely gave time till 2-5-1983 to vacate the premises. A copy of the petition given by the second respondent for releasing the building had not been furnished to the appellant. The impugned order was violative of the principles of natural justice, arbitrary and unreasonable and had to be quashed. A copy of the petition given by the second respondent for releasing the building had not been furnished to the appellant. The impugned order was violative of the principles of natural justice, arbitrary and unreasonable and had to be quashed. A writ of certiorari for the above purpose was sought. 3. Learned Judge dismissed the Writ Petition at the stage of admission, on the ground that the appellant was only a licensee and had no locus standi to file the Writ Petition against an order or release passed by the Accommodation Controller in favour of a landlord. Aggrieved with the order, the allottee has filed this writ appeal. 4. Thiru S. Sriram Panchu, learned Counsel for the appellant contended that the learned Judge was in error in holding that the appellant, as an allottee, had no locus standi to file the Writ Petition and that Section 3-A (3) which enables a person aggrieved with the order of release passed in favour of the landlord under Section 3-A(2) of the Act, to file an appeal, would bring within its ambit an allottee, who could be the only person aggrieved by such an order of release and that therefore, an allottee as an aggrieved person had a right to file an appeal and consequently could also maintain a writ petition. Since an allottee had a right of appeal, he also had a right of hearing in the release proceedings under Section 3-A(2). In the instant case a notice dated 16-12-82 had in fact been sent to him, but which had not been served on him due to his absence from Madras and the Accommodation Controller, ought to have followed up the matter by issuing a fresh notice and effecting proper service of the notice, before passing the impugned order of release. The learned Counsel also urged, that the release order, having been passed on a wrong basis that the appellant had been transferred out of Madras, when as a matter of fact, he was away on transfer only for one day, could not be sustained, the very substratum of the order, having been proved to be incorrect. The appellant whose right to occupy the premises, could be adversely affected, ought to have been put on notice and ought to have been given a right of hearing. Principle of natural justice had been violated. The appellant whose right to occupy the premises, could be adversely affected, ought to have been put on notice and ought to have been given a right of hearing. Principle of natural justice had been violated. The learned Counsel placed reliance upon certain decisions which we shall refer to later. 5. Per contra, Thiru N. Kannan, learned Counsel for second respondent, strongly urged that the appellant is only a licencee and has no right or interest in the property. The order of allotment is liable to be revoked by the licensor. It is the Government, which is the tenant of requisitioned buildings; and an allottee can have no right under Act and no claims against the landlord, with whom he has no privity of contract. The proceedings for release, can only be between the landlord and the tenant, viz., the Government. A licensee, of the tenant who has no interest in the lease, can have no right of hearing. In the instant case, the representation of the appellant, though received after the order of release, was considered by the first respondent and a suitable reply, refusing to rescind the earlier order of release, had been subsequently passed. The learned Counsel placed certain decisions before us, which we shall refer to during the course of the discussion. 6. The only question that arises for consideration is whether the allottee has a right of representation in a right of appeal as an aggrieved person under Section 3-A(3). 7. It has not been seriously controverted by Thiru Sriram Panchu, learned Counsel for the appellant that despite the introduction of Section 3-A into the Act, the position of an allottee continues to be that of a licensee. The learned Counsel would only content that Section 3-A (3) confers a right of appeal, even to such a licensee. This Court in Shaik Mohammed v. State of Madras in clear terms has laid down that an allottee from the Government, of premises requisitioned under Section 3 of the Act, is only a licensee, the Government being the statutory tenant, having taken possession of premises under the provision of the Act. The allottee has merely the liberty of accommodation, conferred on him by the provisions of the Act and has no interest in the immovable property in his occupation. The allottee has merely the liberty of accommodation, conferred on him by the provisions of the Act and has no interest in the immovable property in his occupation. Further, it is seen that the Act itself consider an allottee only as a licensee, Section 3(9)(a)(i) and (ii) empower the authorised officer to a summarily dispossess any officer, local authority for public institutions continuing to occupy or failing to deliver possession of the building "after the termination of his or its licence to occupy such building". It is also significant that when one allottee, either by ceasing to be a Government servant or by being transferred out of station or due to any other reason vacates the premises, the tenancy between the landlord and the tenant, does not come to an end. The tenancy with the Government continues and a fresh allotment is made to someone else. 8. We shall now refer to certain decisions of this Court on the question, whether an allottee has a right of representation in the release proceedings under Section 3-A (2) of the Act or has a right of appeal as an aggrieved person under Section 3-A (3). In Viswanathan v. Collector of Madras WP. No.9559 of 1982 one of us Sathiadev, J., held that since, the allottee was only a licensee under the Government, which is legally the tenant of the premises, the allottee cannot claim the status of a tenant under Act and therefore, he is not entitled to challenge an order passed by the Government directing the release of the building but is bound by the action of the Government and cannot claim any independent right, apart from his possession as an allottee. 9. In Durai v. Government of Tamil Nadu 89 L.W., 558, a learned Judge, under similar circumstances, when an order of release was challenged by an allottee on the ground that he was not given any notice before the passing of the order, held that the order directing the release of the building, amounted to a revocation of the licence granted in favour of the allotted and he was not entitled to any notice. Being a mere licensee of the statutory tenant viz., the Government, the allottee had no independent right to agitate as against the Government. 10. Being a mere licensee of the statutory tenant viz., the Government, the allottee had no independent right to agitate as against the Government. 10. Distinguishing his case from the facts of the two decisions referred to above, Ramanujam, J., in S. Swaminathan v. The State of Tamil Nadu and Ors. 98 L.W. 346 held that Section 3-A and the Rules made under the Act, appear to proceed on the basis that even-though the Government is the statutory/tenant and the allottee is merely a licensee in occupation of the premises, the latter has a right of representation before the Accommodation Controller in the release proceedings and is also entitled to file an appeal, if the order or release is made, overlooking his representations. 11. A similar question arose before a Division Bench in S. Ganesan v. The Commissioner and Secretary to Government and Ors. 99 L.W 974, wherein an allottee, who had sent a representation to the Accommodation Controller that the prayer of the landlord for release was not bona fide and he could not pay exorbitant rent elsewhere, objected to the release and overruling his objection, a release order was passed, which the allottee unsuccessfully challenged before the Government in an appeal under Section 3-A (3) and thereafter, filed a Writ Petition which was also dismissed, against which he preferred the appeal. The question as to whether an allottee was entitled to an opportunity to be heard before the Accommodation Controller also, came up for consideration. The Bench, however took note of the three decisions referred to above and observed that it was needless to go into that question in that case, since, on the facts before it even' if it could be assumed that the allottee had a right of representation before the appropriate authority, he had in fact made a representation which had been considered by the authorities and rejected. The legal issue therefore was left open. 12. Relying upon the decision of Ramanujam, J. referred to in para 10 above, Thiru Sriram Panchu, strongly urged that, the Act confers on the allottee even on a licence, a right of appeal under Section 3-A (3), since an order of release adversely affects his right of occupation. We are unable to accept the contention of the learned Counsel, for the reasons which we shall presently state. We are unable to accept the contention of the learned Counsel, for the reasons which we shall presently state. The Act, as the Preamble itself indicates, is intended to protect tenants from unreasonable eviction. It determines certain rights vis-a-vis a landlord and his tenant The Act is not intended for the protection of licensees of either the landlord or the tenant That even under the Act, an allottee-licensee, is treated as one who has no interest in the premises, is clear from certain provisions. Under Section 10-3(a)(i) to (iii), when a landlord has obtained an order of eviction of a tenant-not being the Government-on the ground mat he requires the building for his own use, he has to occupy it within one month after the date of obtaining possession and has to continue to occupy it beyond a period of atleast six months. In the event of the landlord not so occupying the building within one month, or vacating the building within six months, the tenant who has been evicted could apply under Section 10(5) of the Act to be resorted to possession of the building. The parallel provision relating to tenancy with the Government is Section 3-A(4), wherein when the landlord has obtained possession of the building for own occupation, he shall within 30 days from the date of the receipt of the order, occupy the building, failing which, under Section 3-A(5), the building shall be deemed to have become vacant from the expiry of 30 days period and the provisions of Sub-sections 1, 3, 4, 5 and 9 of Section 3 are made to apply to such building, which would mean, that the building becomes available to the Accommodation Controller for allotment to any one. While in the case of private tenancies the evicted tenant gets a right of re-occupation, in the case of Government tenancy, it is the Government that gets right of repossession and not the allottee who last occupied it The allottee is not considered as party aggrieved by the failure of the landlord to occupy the building after obtaining release by evicting the allottee. 13. Further, in private tenancies under Section 14(2), when the landlord seeks possession of the premises for carrying out repairs, he is required to give an undertaking under Section 14(2)(a) that the building on completion of repairs, would be offered to the tenant who delivered possession. 13. Further, in private tenancies under Section 14(2), when the landlord seeks possession of the premises for carrying out repairs, he is required to give an undertaking under Section 14(2)(a) that the building on completion of repairs, would be offered to the tenant who delivered possession. Under Section 15(1), it is the same tenant, who has a right to reoccupy the building, after the repair is completed and under Sub-clause (2) in the event of the landlord failing to commence or complete the work of repair within the stipulated time or fails to put the tenant in possession after the repair, it is the same tenant, who on application would be put into possession of the building on the original terms and conditions. As against this, the parallel provision in Government tenancies as found in Section 12(3)(a) requires the landlord to give an undertaking to offer the building after completion of repairs not to the allottee but to the authorised officer for re-allotments to any person named by authorised officers. Similarly, under Section 12(6), where the landlord fails to commence or complete the repairs within the stipulated time, the authorised officer may suo motto or on application, order re-allotment of the building to any person named by him. It is significant that the original allottee has no vested right to claim re-allotment to him. 14. Section 3 dealing with the procedure for requisitioning premises for allotment to officers of the Government, also lays down the procedure by which the allottee is to be dispossessed. Section 3(9)(a)(ii) empowers the authorities to summarily dispossess any allottee continuing to occupy, or failing to deliver possession of any building in respect of which the Government is the tenant, after termination of his licence to such building and take possession of the building. Sub-clause (b) empowers the authorities to break open the premises for effecting dispossession. Under Sub-clause (c)(ii), the official, so dispossessed has to pay the Government the expenses, if any, incurred by the Government in such summary dispossession, as determined by them, which determination would be final. Sub-clause (b) empowers the authorities to break open the premises for effecting dispossession. Under Sub-clause (c)(ii), the official, so dispossessed has to pay the Government the expenses, if any, incurred by the Government in such summary dispossession, as determined by them, which determination would be final. Even in such a contingency, licensee is not given any rights under this Act whatever his rights against the licensor on the basis of the agreement between them might be/The Act does not consider the tenancy agreement as a Tripartite agreement between the landlord-the tenant-(Government) and allottee of the tenant The Act meant to determine rights between the two parties to the contract of lease, cannot be so interpreted as to create rights to third parties, to the prejudice of the rights of the contracting parties, unless the provisions of the Act, either explicitly or by necessary implication, give room for such an interpretation. 15. We shall now consider the reasons given fry the learned Judge (Ramanujam, J.) in S. Swaminathan v. The State of Tamil Nadu and Ors. 98 L.W. 346, for holding that an allottee is an aggrieved person under Section 3-A (2) and has consequently a right to appeal against an order of released in favour of the landlord. According to the learned Judge, the Legislature, if it had intended to confer a right appeal against an order passed under Section 3-A(2) of the Act only to the landlords, would have used the word "landlord" in Section 3-A(3) rather than the words "any person aggrieved with an order", since otherwise none would be aggrieved by an order or release and none would therefore, have a right of appeal against such an order of release. We do not feel persuaded to accept this reasoning, since it is possible to conceive of an order which the legislature, in the context of a particular enactment, could intend it to be final, with none as an aggrieved person with a right of appeal. We do not feel persuaded to accept this reasoning, since it is possible to conceive of an order which the legislature, in the context of a particular enactment, could intend it to be final, with none as an aggrieved person with a right of appeal. The learned Judge has also referred to Rules 11, 12 and 18 framed under the Act, which lay down the procedure for filing applications and disposal of appeals under the Act, wherein references is made to notice "to the respondent or respondents mentioned in the application." It is to be noted that Rules 11, 12 and 18 are common to applications and appeals under Section 3-A as well as to other provisions of the Act. No undue significance therefore, could be attached to the reference to "respondents" mentioned in the applications or appeal, as the case may be. The Rules have to be understood with such modification as are necessary to suit the nature of the application or appeal filed. 16. Nor do we feel inclined to adopt the reasoning of the learned Judge that Rule 20 which requires the occupant, to furnish particulars to an authorised officer personally inspecting the premises, while considering the applications under Sections 3-A and 12 of the Act, as creating a right in the allottee to be present at the time of such inspection and make representation. A reading of the Rule would show that it is only an enabling provision, which indicates the source from which the Accommodation Controller could gather necessary particulars in respect of the building while disposing of these applications. It is also significant that such particulars could be called for from the landlord or tenant or occupant or any previous tenant or occupant thereof (emphasis Supplied). An allottee in occupation and a previous allottee, who has since ceased to occupy the premises, are treated on par in the matter of competency to furnish information to the Accommodation Controller. This Rule cannot be interpreted, either as creating or recognising, any right of the licensee to be heard in these proceedings. 17. An allottee in occupation and a previous allottee, who has since ceased to occupy the premises, are treated on par in the matter of competency to furnish information to the Accommodation Controller. This Rule cannot be interpreted, either as creating or recognising, any right of the licensee to be heard in these proceedings. 17. The learned Counsel for the second respondent placed reliance upon a decision of the Full Bench of Allahabad High Court in Talib Husain v. 1st Additional District Judge Nainital, wherein the question as to whether a prospective allottee under U.P. Urban Buildings (Regulation of Letting Rent Eviction) Act (13 of 1972) has right to object and contest an application for release made by landlord, was answered in the negative. Since the provisions of the UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act are substantially different from our own Act, we would prefer to seek guidance from the provisions of our own Act. 18. Thiru Sriram Panchu, learned Counsel for the appellant contended that in the instant case, the Accommodation Controller, having chosen to send a notice to the appellant to show cause as to why the building should not be released, should not have passed the impugned order without hearing the appellant. The show cause notice had not been received by the appellant, since he was away on training at Mount Abu, and the Accommodation Controller should have issued a second notice. We are unable to accept this contention that merely because, the Accommodation Controller chose to send a show cause notice, the appellant had a right to be heard. One of the averments in the release application was that the appellant had been transferred out of the City of Madras. This was a matter which had to be factually verified, since in the event of the Accommodation Controller releasing the building to the second respondent for her own use and occupation finding her claim to be bona fide and reasonable, the further question whether or not the appellant had been transferred from Madras, would not be relevant. This was a matter which had to be factually verified, since in the event of the Accommodation Controller releasing the building to the second respondent for her own use and occupation finding her claim to be bona fide and reasonable, the further question whether or not the appellant had been transferred from Madras, would not be relevant. However, if the Accommodation Controller found that the claim of the second respondent for her own occupation was neither bona fide nor reasonable and choose to reject the petition on that ground, the question as to whether or not the appellant was transferred out of Madras would be a relevant factor, since in the event of such transfer, the building would have to be reallotted to some other officer of the Government. In the circumstances of the case, the Accommodation Controller had to find out whether the appellant had in fact been transferred as was averred in the release application. It is also seen that on 11-10-1982, the appellant left Madras for Tanjore, joined duty there and from there left for Mount Abu and finally was posted to Madras only on 21-3-1983. So between 10-11-1982 and 21-3-1983, the appellant was an officer-trainee partem from Tanjore and was not entitled to occupy the premises in Madras. 19. The next contention of the learned Counsel for the appellant is that the principle of audi alterant partem, has been violated in that, the appellant was not given a hearing before the order of release was passed by the Accommodation Controller. Here again we are unable to accept the contention of the learned Counsel, since the principle of audi alterum partem, presupposes the existence of some legal right or interest in the subject matter of the lis. We have already held that an allottee of requisitioned premises is only a licensee, who has no interest over the property and has no claim or right as against the landlord. While in occupation, he enjoys a personal privilege extended to him, by the Government by virtue of his being one of its officers. This privilege would end, on his ceasing to be a Government Officer or on being transferred to some other place or on the several other contingencies agreed to between him and the Government. The question of a right of hearing in proceedings exclusively between the landlord and his tenant Government, does not arise. This privilege would end, on his ceasing to be a Government Officer or on being transferred to some other place or on the several other contingencies agreed to between him and the Government. The question of a right of hearing in proceedings exclusively between the landlord and his tenant Government, does not arise. Even if the Accommodation Controller was performing. a quasi-judicial function in the release proceedings, as was held by this Court in Pattabiraman v. Accommodation Controller it would still be a proceeding between the landlord and his tenant, in which (sic) can also none else will have a right of audience. 20. The learned Counsel for the appellant relying upon the decision of the Supreme Court in State of U.P. v. Maharaja Dharmander Prasad Singh, contended that the powers of revoking or cancelling the licence, is akin to and partakes of a quasi - judicial nature and the authority must bear an unbiased mind and consider impartially the objections raised by the aggrieved party and decide the matter consistent with principles of natural justice. No doubt in proceedings between the licensor and the licensee, the above decision would apply with all force. However, a proceeding under Section 3-A of the Act, being one between the landlord and his tenant (Government), rights inter se licensor and licensee, could not be determined. The decision, therefore, does not apply to the facts of the present case. 21. Over ruling the decision in S. Swaminathan v. The State of Tamil Nadu and Ors. 98.L.W.346, we hold that an allottee has no right of representation in the release proceeding under Section 3-A(2) of the Act and is not an aggrieved person under Section 3-A(3) and has no right of appeal under Section 3-A(3) against an order of release. 22. In the result, the appeal fails and is dismissed with costs of the second respondent Counsel's fee Rs.500/-.