The terms vacant and vacancy in Section 3(1)(a) of the Rent Act encompass not only physical vacancy but also constructive vacancy resulting from a change of possession. Failure to give notice under Section 3(1)(a) does not render the tenancy agreement void or illegal, and the Rent Controller retains jurisdiction to pass an appropriate order under Section 10 of the Act.

J. R. VIMADALAL, J.

( 1 ) 1. This is a petition in revision from the order of the learned Chief judge of the City Small Causes Court, hyderabad, allowing an appeal from the decision of the Rent Controller and holding that Sec. 3 of the Buildings (Lease. Rent and Evicton) Control Act, 1960 (hereinafter referred to as the "rent Act") does not apply to this case and the Rent Controller, therefore, had jurisdiction to entertain an eiction petition filed before him on the sole ground of wilful default in payment of rent by the respondent-tenants.

( 2 ) THE facts of the case are that the present petioners executed a registered sale deed in favour of the present respondent in respect of the house in question; that at the time of the execution of the said sale deed, the petitioners were in occupation of the said house; that thereafter the petitioners continued to live in the said house as tenants; and that the petitioners having committed default in payment of rent for the period 2-2-1968 to 1-9-1973 amounting to Rs. 3,608/- (after making certain deductions claimed by them), the present respondent filed an eviction petition before the Rent Controller against the present petitioners which was dismissed by the rent Controller on the ground that it was not maintainable. It was held by the Rent Controller that there was a vacancy of which notice ought to have been given under Sec. 3 of the Rent Act and that such notice not having been given, the tenancy became void and illegal and the Rent Controller had no jurisdiction to entertain the said petition under the Rent Act. On appeal to the Chief judge, City Small Causes Court, Hyderabad, however, a different view was taken. The learned Chief Judge took the view that since there was no physical vacancy in the present case on the date of execution of the rental agreement which necessitated a notice under Sec. 3 of the Rent Act, the Rent Controller had Jurisdiction to entertain the eviction petition that was filed before him. He, therefore, allowed the appeal and remanded the matter back to the Rent Controller for his findings- it is from that order of the Chief Judge of the Court of Small Causes that the tenants have approached this court in revision.

( 3 ) IN support of the order of the learned Chief Judge, it was contended on behalf of the landlady that the tenants who were in possession of the said premises after selling the same to her. had delivered constructive possession of those premises by executing a rental agreement in her favour and that there was no actual physical vacancy which was required to be notified to the authorised officer under Sec. 3 of the Rent Act and the Rent Controller, therefore, had jurisdiction to entertain the petition. On behalf of the tenants, on the other hand, it was contended that the landlady was entitled to the possession of the said premises as soon as she purchased the house from them and that when after the sale she allowed them to continue in possession of the same as tenants, she was creating a tenancy for the first time, and it was submitted that, under these circumstances, there had been a vacancy, which ueeded to be notified to the authorised officer under Sec. 3 of the Rent Act. It was further contended, that, in the absence of such notice, the said tenancy itself became void and illegal and the Rent controller had no jurisdiction to entertain an eviction petition under the Rent Act.

( 4 ) I will first turn to the relevant sections of the Rent Act with which I am concerned in the present case. Section 3 (1) (a) of the Rent Act is in the following terms: -"notice of Vacancy:- (1) (a) every landlord shall, within ten days after the building becomes vacant by his ceasing to occupy it, or by the termination of a tenancy, or by the eviction of the tenant or by release from requisition or otherwise, give notice of the vacancy in writing to the officer authorised in that behalf by the Government. "

( 5 ) SUB-SECTION (3) of the same section indicates that

Click Here to Read the rest of this document