Decided on September 15,1970



- (1.) THE writ appeal raises a short point as to whether the occupation referred to in s. 3 (10) (c) of the Madras Buildings (Lease and Rent Control) Act should be actual physical occupation all the time. The respondent was occupying a portion of the building belonging to her, the rest of the portion being under tenancy. On termination of the tenancy in once portion of the first floor. the Accommodation controller, purporting to act under Section 3 (3), allotted that portion to a tenant of his nomination. He declined to give effect to Section (10) (c), though his attention was drawn to it. Srinivasan J, quashed this order.
(2.) THE learned Judge proceeded upon the footing that the petitioner herself was in occupation of a portion of the building. Before us, it is stated that it is not she but her daughter who lived in that portion. But we think that such occupation may well fall within the purview of Section 3 (10) (c ). Alagiriswami J. held the view in W. P. No. 2734 of 1969 (Mad) that when the section spoke of a building a part of which was occupied by its full owner, but the whole or any portion of the remaining part of the building was let to any tenant, it contemplated actual occupation of the building by the owner. He also went further to observe that merely because the owner of it is keeping a room locked, it does not become a case of occupation of the building by the owner for the purpose of Section 3 (10) (c) of the Act. With due respect, we are unable to agree with this view. Occupation may, no doubt, be physical, but it does not follow that the owner should actually reside in a portion of the house all the 24 hours in a day. It will be such occupation if, intending to reside in the house, the owner keeps a portion therein locked, so that when the opportunity or necessity arises, the portion may be free for use by him or her. This is the view of Srinivasan J. with which we find ourselves in agreement. The learned Judge said:- " it may be that a person who does not choose to reside permanently in one place may keep a part of his premises always available for his occupation and occupy it from time to time. That will be just as much occupation as occupation for all the time permanently by the owner. This provision is a new one, which did not find place in the old Act. If one can imagine the reasons which led to the introduction of this clause, it may well be that the Legislature intended that when the owner is himself in occupation of a part of the building, the choice of a tenant in respect of the part of the building should be left to him. Cases have not infrequently arisen under the old Act where the Accommodation controller has thrust upon a landlord a tenant of a religious persuasion and practices different from those of the owner. who was also occupying the building. This undoubtedly led to considerable hardship on the part of the landlord and it is presumably to avoid such situation that a provision of this kind has been enacted. " Whether that was the purpose of the Legislature in introducing the clause or not. we are clear that occupation for purposes of Section 3 (10) (c) may well be occupation where the owner resides in a portion of the house off and on and most of the time keeps it locked. The question is one of intention as disclosed by the act of user of the portion of the house. If, on a consideration of that, it is obvious that the owner occupied the house, then Section 3 (10) (c) should apply to it.
(3.) THE appeal is dismissed. No costs.;

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