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 & 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 enjction 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 petitioners 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. 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 needes 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.

3. I will first turn to the relevant sections of the Rent Act with which lain 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.”

4. Sub-Section (3) of the same section indicates that if, within 15 days after the receipt by the authorised officer of a notice under Sub-Section (1), the Government or the authorised officer does not intimate to the landlord in writing that the building is required for the purposes of the State Government or the Central Government or of any local authority or any public institution under the control of the Government, the landlord would be at liberty to let the building to any tenant or to occupy it himself. Sub-section (5) of Sec. 3 lays down in negative terms that the landlord cannot let the building to a tenant or occupy it himself before the expiry of the said period of 15 days, unless in the meantime he receives intimation that the building is not required for the purposes of the Government or the authorities or the institutions mentioned in sub-section (3). Sub-section (8) of Section 3 confers summary powers of dispossession on the Government if the provisions referred to earlier are not complied with by a landlord. Sub-Section (2) of Section 10 provides by clause (i) thereof that a landlord who seeks to evict his tenant, must apply to the Rent Controller for a direction in that behalf. One of the grounds on which the Rent Controller can pass an eviction order against the tedant is, if the tenant has failed to pay the rent due by him in respect of the building within the time specified therein. It is under the said clause that the eviction petition was filed by the landlady against the tenants in the present case.

5. Two questions arise for my decision in this revision application and they are as follows:—

1. Whether the words ‘vacant’ and ‘vacancy’ occurring in clause (a) of Sub-section (1) of Section 3 of the Rent Act Cannot only a physical vacancy, or whether they also take in within their compass a vacancy by constructive transfer of possession by reason of the words ‘or otherwise’ occurring therein and

2. What is the legal consequence of a notice under clause (a) of Sub-section (1) of Section 3 not being given to a case in which it is required to be given.

6. I will now proceed to deal with each of these two questions formulated by me.

7. It is the contention of the respondent-landlady before me that a notice under clause (a) of Sub-section (1) of Section 3 is required only in the case of an actual physical vacancy occurring in respect of the premises in question Reliance was sought to be placed in support of that contention, on a decision of a Division Bench of the Allahabad High Court in the case of Lachman Das v. Rent Control & Eviction officer (1) A.I.R 1953 All. 458 in which the facts were that the premises in question were owned by several persons, out of whom the shop in dispute was admittedly occupied by two of the co-owners. It appears that the said two co-owners, however, suspended their business in July or August, 1951 and one Lachman Das applied on 21st August, 1951 that the said shop should be allotted to him. On 27th August, 1951, one Krishna Kumar made & similar application with the consent of the said two co-owners, but on the 28th August, 1951, Lachhman Das secured in his favour a sale deed in respect of the goods and stock-in-trade lying in the said shop, as also of the rights of the said two co-owners in respect of their share in the said property. On 12th September, 1951, the Rent Control Officer made an order allotting the shop to Krishna Kumar, as a result of which Lachman Das filed the writ petition out of which the proceedings before the High Court arose. Quashing the order of allotment in favour of Krishna Kumar, the High Court took the view (para 6) that what was contemplated by the words ‘accommodation falling vacant’ under Section 7 of the U.P (Temporary) Control of Rent and Eviction Act (3 of 1947) was that the accommodation was not intended to be used by the owner for his own purposes but was intended to be let out to a tenant, or if the occupier was a tenant, that the tenant would cease to occupy, and that where a person purchased the rights of ownership and got into possession of the accommodation from the previous owner, who was in fact occupying the same for his own purposes it could not be said that at any point of time the accommodation had fallen vacant. The High Court took the view that, in the case before it, before the accommodation actually fell vacant, the accommodation had been transferred to the applicant and the Rent Control and Eviction Officer had, therefore, no jurisdiction to make the allotment it may be mentioned that clause (a) of sub-section (1) of Section 7 of the U.P Rent Act which was in question in the said case, is substantially in the same terms as clause (a) of Sub-section (1) of Section 3 of the Rent Act in the case before me and there is no material distinction that can be drawn between the terminology employed in those two sections. In so far as the Allahabad High Court construed those terms as applying only to an actual vacancy, I do not agree with the view taken by that Court in the said case.

8. Reliance was next sought to be placed on the decision of a single judge of the Madras High Court in the case of in re. T.K Rajagopalan (2) A.I.R 1951 Madras 705, but I do not propose to discuss the judgement in the said case for the simple reason that, that was a case of assignment of tenancy and, what is more, the assignor had given notice to quit and had actually vacated the premises in question. In my opinion, the first of the two questions formulated by me above, which I am now discussing, is capable of being decided on the plain language is capable of being decided on the plain language of clause (a) of Sub-section (1) of Section 3 itself, and it is for that reason that I do not subscribe to the view which the Allahabad High Court has taken in Lachman Das's case in regard to a section which was in pari materia with Sec. 3(1)(a) of the Rent Act in the present case. Clause (a) of sub-section (1) of Sec. 3 does not merely state, that it is applicable when a building becomes vacant or a vacancy occurs, but the concept of vacancy which the legislature had in mind is explained in Sec. 3(1)(a) itself. After stating that the provisions thereof come into play when the building becomes vacant, clause (a) proceeds to elaborate in clear terms what is the meaning of that term. It states that a building would become vacant either by the landlord 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’. It is quite clear that the four cases specified in clause (a) are not all cases of physical vacancy. The first of them viz., a landlord ceasing to occupy the building is a case of physical vacancy, and so also is the third case of the eviction of tenant. The second and fourth cases specified in clause (a) viz., the termination of a tenancy and release from requisition, are both cases of what may be called a constructive vacancy or, in other words, cases in which the premises may not be physically vacant at any point, os time. The question, however, arises as to what is the ambit of the words ‘or otherwise’ occurring after the four cases of vacancy specified in the section. It is a well established cannon of construction of statutes that when certain terms are specified and they fell within a particular genus, a general term that follows them must be construed ejusdem generis: that is to say, as being limited to the type of cases, or the genus, envisaged by the specific terms which precede them. This rule of construction ejusdem generis can, however, from its very nature, have no application when the specified cases do not fall within one and the same genus. In clause (a) of Sub-section (1) of Section 3, the four cases of vacancy expressly specified do not fall within the same genus, but as already stated above, fall within two different classes. Two of them fall within the class of actual physical vacancy, and the other two cases fall within the class of what may be called a constructive vacancy. That being the plain language of clause (a), I hold that the words ‘or otherwise’ occurring after the specific cases mentioned therein, cannot be construed ejusdem generis, but must be given the widest possible import. So construed, the words ‘or otherwise’ must obviously cover not only cases of physical vacancy other than those, specified in the said clause itself, but also all cases of constructive vacancy other than those specified therein. Turning to the facts of the present case, it is quite clear that though it is one in which no actual physical vacancy ever occurred, it is certainly a case in which there was a constructive change of possession, which resulted in that may, for the sake of convenience of expression, be called a constructive vacancy, at the point of time when the property was sold and the vendors became tenants of the purchaser. In the case of such a constructive vacancy also, in the view which I have taken above, the provisions of Sec. 3(1)(a) of the Rent Act are attracted and it was, therefore, incumbent on the landlady to have given notice to the appropriate officer in accordance therewith.

9. It was, however, sought to be contended that, even if it be held that notice under Sec. 3(1)(a) was necessary, the failure to give such a notice would not result in the legal relationship between the parties being anything other than that of landlord and tenant. That, indeed, is the second of the two questions formulated by me above. It is only if that legal result did not follow and the purported tenancy became illegal or void that the venders would become trespassers on the property, in which ease, of course the jurisdiction to evict them would not be that of the Rent Controller, but would be of the appopriate civil Court, as the vendor-tenants have contended in the present case. Reliance was sought to be placed on their behalf on the view taken by a Division Bench of this Court in the case of Eshwariah v. Kheni (3) (1969) (2) A.L.T 8, (paras 16 & 23) in which it was held that a contract of tenancy created by the landlord in contravention of the provisions of Section 3 of the Rent Act was illegal and void and no action for recovery of rent on the basis of such a void contract could lie before the Rent Controller under the Rent Act, nor would the Court render any assistance to the plaintiff in such a case. In the case of Murlidhar v. State of U.P (4) (1974) 2 SCC 472 : A.I.R 1974 S.C 1924 the Supreme Court took view the that even a person occupying accommodation without an allotment order, is a tenant and a lease made in violation of the provisions of the U.P (Temporary) Control of Rent and Eviction Act is valid between the parties and would create the relationship of landlord and tenant between them, although it might not bind the authorities concerned who may treat the accomodation as vacant and evict the tenant in exercise of their statutory powers (Paras 16 and 17). As in the U.P Rent Act, though failure to give the requisite notice is made an offence, there is no provision in our Rent Act rendering a contract no tenancy entered into by the landlord with another person void or illegal if he has entered into it without giving notice to the authority concerned. The landlord is not forbidden to do so, though, curiously enough, the prohibition contained in Sub-Section (5) of Section 3 of our Act would be attracted if notice has, in fact, been given to that authority by the landlord. The decision of the Supreme Court in Murlidhar's case must therefore, govern the present case also in that view of the matter, the view taken by the Division Bench of this Court in Eshwaraiah's case, which would otherwise have been binding on me, must be held to be no longer good law. In fact, a single Judge of this Court has, in the case of Mirza (Mohd.) v. K. Balakishtaiah (5) 1975 (2) APLJ 96, followed the view taken by the Supreme Court in Murlidhar's case, as indeed he was bound to do, in respect of Sec. 3 of our Rent Act and has held (paras 23-25) that, having regard to the object of that Act, if a landlord entered into an agreement with a tenant for whose protection the Act is intended, such tenant should not be deprived of protection under the Rent Act, whether or not there was contravention of Sec. 3(1)(a) of the Act, though that agreement is not binding upon the authorities concerned who can dispossess the person who is in occupation of the building in contravention of the provisions of the said section. In view of the decision of the Supreme Court in Murlidhar's case, I must hold that the failure on the part of the landlady in the present case to give a notice under Sec. 3(1)(a) of the Rent Act to the appropriate officer does not make the contract of tenancy between her and the vendor-tenants void so as to deprive the Rent Controller of his jurisdiction under the Act to pass an appropriate order under Sec. 10 thereof. I therefore, confirm the order of the learned Chief Judge, City Small Causes Court, though on different grounds. The order of remand passed by him for disposal by the Rent Controller on merits will also stand. The revision petition is therefore, dismissed with costs.