M. JAGAN MOHAN REDDY Vs. DY. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) THE 2nd appellant, who was admittedly a tenant of the 3rd respondent -landlady, was in occupation of the building bearing No. 3 -6 -766, Himayatnagar, Hyderabad. The 1st appellant claims to be the joint tenant along with the 2nd appellant. On 12 -6 -1980, a notice bearing No. 918/Accom. C1/80 -2, was issued to the 1st appellant by the Authorised Officer, the 1st respondent herein, under the provisions of the Andhra Pradesh. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the Act") stating that he was occupying the premises in contravention of the provisions of Section 3(1)(a) of the Act and calling upon him to show cause why he should not be summarily dispossessed under S. 3(8)(a) of the Act. In response to the said notice, the first appellant submitted his representation claiming that he was a Government servant working in the Home Department. Secretariat, Hyderabad, and residing in the said building along with his brother, Narayan Prasad Shukla (the 2nd appellant). It is his case that the 2nd appellant "brought up me as a guardian after the sudden demise of my father in distress condition since 1961 onwards and paying a rent of Rs. 350/ - per month regularly". He claimed that he was not in unauthorised occupation of the building and that, in any event, he, being a Government servant, was entitled to occupy the building as per the accommodation rules. By an order dated 17 -2 -1981, this building was allotted for locating the officer of the Tahsildar, Mushirabad Taluk, Hyderabad; but that office was not shifted to that building on the ground that it was not suitable for locating the officer. By another order dated 9 -9 -1981, the Authorised Officer allotted the building to the Director of Treasuries and Accounts, Hyderabad, for locating the Pension Payment Office and, pursuant to this order of allotment, the appellants were sought to be summarily dispossessed under Section 3(8)(a) of the Act. It is this order of the Authorised Officer that was called in question in the writ petition. The appellants contend that, inasmuch as there was never any vacancy, they were under no obligation to give any notice of vacancy and as such they cannot be treated as unauthorised occupants and liable to be evicted under Section 3(8) of the Act. They alternatively contended that the order of allotment is bad for the reason that the residential building is allotted for locating an office, which is a non -residential purpose. Unless a residential building is converted into a non -residential building is converted into a non -residential building under S. 18 of the Act, the order of allotment itself cannot be sustained and as such, they cannot be evicted. Lastly, it was contended that the order of eviction cannot be passed mechanically. The authorities ought to have taken into consideration all the facts and circumstances and as the building was a residential building, it could not be allotted for a non -residential purpose and over if the appellants were in unauthorised occupation, they should not be evicted on the mere ground that, because no notice of vacancy was given, the discretion cannot be exercised arbitrarily.

(2.) OUR learned brother, Choudary, J., agreed with the contention that, under Section 3(8)(a) of the Act, it is not obligatory on the part of the Authorised Officer to summarily dispossess a person merely because he is found to be in unauthorised occupation. However, he held that, since the building had been allotted for location of the officer of the Tahsildar and later on to the Director of Treasuries and Accounts, the allotment orders would clearly show that the building in question is needed for the statutory purposes of the Act and the fulfillment of those purposes would clearly justify the summary eviction of the appellants. He then considered the contention that the allotment orders themselves should be disregarded because they are bad. He rejected this contention holding that the Authorised Officer can make successive orders of allotment and he also observed that the question of conversion of a residential building into a non -residential building would not arise in this case for the reason that, after the Government became a tenant under Section 3(6) of the Act, it may be occupied by any officer of the State or Central Government specified in sub -section (3) of Section 3 of the Act. In that view of the matter, he dismissed the writ petition.

(3.) MR . Ramakrishna, the learned Government Pleader, however, contended that the mere fact of a residential building being allotted for locating an office therein and the use to which it is put on allotment, does not change the character of a residential building into a non -residential building and, therefore, there is no contravention of the proviso (v) to sub -section (6) of Section 3 of the Act. If this interpretation is accepted, then the proviso (v) to sub -section (6) of Section 3 will become otiose, for, admittedly, the Authorised officer is not entitled to make any construction and convert a residential building into a non -residential building, unless the permission in writing of the Controller is obtained under Sec. 18 of the Act, it could only mean that the residential building shall not be allotted for a non -residential purpose. The judgment of the Division Bench in P. Varadarajam v. State,, AIR 1976 Andh Pra 90 does not deal with this aspect of the matter. In that case, the right of the landlord to file a petition under Section 10 of the Act for the purpose of securing the eviction of the tenant on the ground that he requires it for his personal occupation alone came up for consideration before the Division Bench. The power of the Authorised Officer to convert the residential building into a non -residential building under the proviso (v) to sub -sec. (6) of Section 3 was not considered. We are clearly of the view that, while the Authorised Officer is empowered to take over possession of a building, whether it is residential or non -residential, his power to allot it for residential purposes or non -residential purposes is strictly governed by sub -section (6) of Section 3. It is doubtful whether a residential building can be allotted for a non -residential purpose and we express no opinion on that and whether permission in writing of the Controller under Section 18 should be sought or granted for conversion of a residential building into a non -residential building is a matter on which was do not wish to express any opinion. Be that as it may, so far as this case is concerned, no application was filed either by the landlord or by the Authorised Officer, who, according to the learned counsel for the respondents, is empowered to file such an application and no permission as such is granted by the Rent Controller in exercise of his powers under Section 18of the Act. We, therefore, hold that the Authorised Officer is not competent to convert the residential building into a non -residential building by merely allotting it for a non -residential purpose. As the order of allotment does not stand scrutiny and must be quashed, the consequential order of eviction also cannot be sustained. Further, under Section 3, upon a building becoming vacant, the Government does not automatically become a tenant of the building. To appreciate this position, it is necessary to refer to Sec. 3, which, in so far as it is relevant, reads as follows: -