1. The petitioner herein is a Central Government servant working in the postal department and he was allotted premises No. 41, Royapettah High Road, by the Government on a monthly rent of Rs. 55. The said premises was earlier requisitioned by the Government. The owner of the premises applied for release of the said premises on the ground that he required the premises bona fide for his own occupation. Though similar requests from the owner had been rejected on earlier occasions, the Accommodation Controller has chosen to direct the release of the building by an order, dated 1st July, 1982. In pursuance of the said order releasing the building at the instance of the owner, the petitioner who was an allotee was directed to deliver possession of the building under threat of a forcible eviction by an order, dated 2nd June, 1985. The said order was received by the petitioner on the June, 1983, and the petitioner thereafter filed an appeal to the first respondent herein, the State Government, on 20th July, 1983. The Government had chosen to entertain that appeal and has disposed of the same on the merits holding that the owner of the building has established his bona fide requirements for his own occupation and in that view dismissed the appeal filed by the petitioner. Aggrieved by the order of dismissal of his appeal, the petitioner has filed the present writ petition for quashing the order of the Government made in G.O.Ms No. 365, Home, dated 15th February, 1984. Apart from questioning the order of the Government on merits, the petitioner has also raised a ground that in so far as the Accommodation Controller did not fix any specified date for hearing and give notice of the same to the parties before him, the ultimate order passed by him stands vitiated for not following the procedure set out in Rr. 11 and 12 of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974.

2. When the writ petition was taken up for hearing, the learned Additional Government Pleader appearing for the first and the second respondents and the counsel appearing for the third respondent, the owner of the premises, have raised an objection as to the maintainability of the writ petition and their objections are two-fold. One is that the petitioner being only a licensee and as his rights flow only from the Government who had directed the release of the building and as he has no independent right in relation to the subject-matter he cannot maintain this writ petition against the orders of the Government. The second is that even assuming that the writ petition is maintainable, the petitioner is not entitled to succeed therein as his appeal before the Government was admittedly time barred and as such the Government should not have entertained the appeal and disposed of the same on merits.

3. In support of the first contention, reference is made to the decision of Sathiadev, J. in Viswanathan v. The Collector of Madras . W.P 9559 of 1982., and the decision of Mohan, J., in D. Durai v. Government Of Tamil Nadu . 89 L.W 558.. In the first case it has been held that since the writ petitioner is only a licencee under the Government which is legally the tenant of the premises, he cannot claim the status of a tenant under the Act and, therefore, he is not entitled to challenge an order passed by the Government directing the release of the building and the petitioner as an allottee is bound by the action of the Government and he cannot claim any independent right apart from his position as an allottee. In the second case, a house requisitioned by the Government under S. 3(3) was later released at the instance of the owner of the building. That order directing the release passed by the Government was challenged by the allottee of the premises on the ground that he was not given any notice before the order of release was passed, and, therefore, the order releasing the building is vitiated. Mohan, J. while dismissing the writ petition pointed out that the order directing the release of the building amounts to a revocation of the license granted in favour of the allottee, the writ petitioner, and as such he is not entitled to any notice. The learned Judge also proceeded on the basis that it is the Government which is the statutory tenant and the allottee is only a licensee from the Government and he has no independent right to agitate as against the Government. After a due consideration of the above two decisions relied on by the learned counsel for the respondents, I am of the view that those decisions do not apply to the facts of this case. Further the said decisions do not make any reference to the changes brought about in the statutory provisions by the amendment in the year 1973.

4. Before the amendment in 1973, an allottee of the premises requisitioned by the Government was treated as a mere licensee with no right of this own except the right he can claim through the Government and if the Government chooses to release the building it has earlier requisitioned, the allottee has no say in the matter. But that position has been some what changed by the amendment brought in the year 1973. S. 3 A(3) is to be noted in this connection. S. 3-A deals with the topic of release of the building. S. 3-A(1)(a) enables the owner of a residential building which has been requisitioned by the Government to apply for release on the ground that he requires it for his own occupation or for the occupation of any member of his family subject to the condition that the landlord or the member of the family is not occupying any residential building of his own in the city, town or village concerned. S. 3-A(3) which is relevant is as follows—

‘Any person who is aggrieved by an order passed by the authorised officer under Sub-S. (2) may, within fifteen days from the date of receipt of such order, prefer an appeal to the Government and the Government shall pass such order as they deem fit and on such appeal being preferred, the Government may order stay of further proceedings in the matter pending decision on the appeal.”

The above sub-S. (3) uses the expression ‘any person’ who is aggrieved by an order passed under sub-S. (2) releasing the building. If really the only person who can be taken to be aggrieved is the landlord, the statute would have used the word ‘landlord’ or ‘the applicant for release’ instead of the expression ‘any person’. The sub-section seems to proceed that there is more than one person who can be aggrieved by an order passed by the Government releasing the building. The other sub-sections to S. 3A wherever the context requires, use the expression ‘landlord’. Therefore, the Legislature should have used the expression ‘landlord’ in sub-S. (3) if the landlord is the only person who is taken to be aggrieved by the order of the Controller. Sub-S. (2) contemplates two kinds of orders passed by the concerned authorities; one, an order releasing the building and the other rejecting the application for release. Sub-S. (3) is in general terms comprehending both the kinds of orders. It is only in respect of a rejection of an application for release, the landlord may be said to be aggrieved. In respect of an order directing a release, the landlord cannot be said to be an aggrieved person, but the allottee can be taken to be aggrieved. Thus the language of sub-S. (3) which uses the expression ‘any person aggrieved by an order under Sub-S. (2) will take in, in the case of orders directing the release of the building, the allottee who is factually aggrieved by the order of release.

5. In this connection, a look at the relevant rules is also necessary. R. 11 inter alia says that every application for release under S. 3-A shall also state the grounds on which the application is made and sub-R. (2) of R. 11 says that every application under the Act shall be accompanied by a spare copy or sufficient number of spare copies thereof for service on the respondent or respondents mentioned therein. R. 12 deals with the procedure for disposal of applications, and that states that when an application is presented under R. 11, the Controller or the authorised Officer, or an officer authorised by him, as the case may be, shall fix the date on which and the place at which the enquiry in respect of the application will be held and send notice thereof to the applicant or applicants and the respondent or respondents mentioned in the application and also send a copy of the application along with the notice to the respondent or respondents. Sub-R. (2) of R. 12 directs the Controller or the authorised officer to give the parties a reasonable opportunity to state their case. He shall also record a brief note of the evidence of the parties and witnesses, if any, examined on either side. Thus a conjoint reading of Rr. 11 and 12 shows that they apply not only to the applications under S. 10, but also to applications filed under S. 3-A for release of the building and that there are two rival parties even in an application for release under S. 3-A(1). In the case of an application for release of a building filed under S. 3-A, the Government who is actually the statutory tenant cannot be a party, for, the Government itself has been constituted as an appellate authority under the Rules. Therefore the only party who can resist an application under S. 3-A can only be the allottee, though the allottee claims his right only through the Government. R. 18 provides for appeals being filed to the Government against the orders of the Accommodation Controller releasing or refusing to release the building. As already stated, an order passed under S. 3A(2) may be positive or negative, that is, an order may be one releasing the building or it may be a refusal to release the building. If every order passed under S. 3-A(2) should be the subject-matter of an appeal, then in respect of an order directing the release of the building, the appeal could be filed only by the allottee and not by the Government which is the statutory tenant and which also happens to be the appellate authority under the Act. R. 20 makes the position still clear. That rule deals with inspection of the building by the authorised officer. That says that in cases falling under Ss. 3, 3-A and 12 of the Act, the authorised officer, if he thinks fit to do so, may personally inspect the building concerned and may call for any particulars in respect of the said building from the landlord or tenant or occupant or any previous tenant or occupant thereof and such landlord, tenant or occupant shall thereupon furnish such particulars. Thus at the time of the inspection, the allottee as a person in occupation of the premises is entitled to appeal and make representations.

6. Thus S. 3-A and the Rules referred to above as amended 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, he has a right of representation before the Accommodation Controller while deciding the question as to whether the building is to be released or not and he is also authorised to file an appeal if the order of release is made overlooking his representations. In this case, it is only under R. 18, the petitioner has filed an appeal before the Government. As an occupant, the petitioner is aggrieved by the order passed by the Accommodation Controller under S. 3-A(2) and as an aggrieved person be is entitled to file an appeal under that section read with R. 18 to the Government. Having regard to the fact that the statute gives certain special rights, that is, right of representation, right to file an appeal to the Government, etc., the petitioner as an occupant of the premises which has since been directed to be released by the respondents 1 and 2 and who is aggrieved by the decision of the Government rejecting his appeal is entitled to come before this Court as against the rejection of his appeal.

7. Irrespective of the fact whether the petitioner is entitled to file an appeal before the Government as a party to the proceeding, the question to be considered now is whether the petitioner whose appeal has been rejected by the Government can come before this Court as an aggrieved party or not. If a person files an appeal before the Government and that appeal is rejected, no reasoning is necessary to show that he is an aggrieved person by the rejection of his appeal by the Government. Such a person can maintain a writ petition before this Court. In such a case he is not coming before this Court as a mere allottee but as a person whose appeal has been rejected by the Government. In this view of the matter, I am not inclined to uphold the objection taken by the learned counsel for the respondents that the petitioner cannot maintain the writ petition before this Court. The special facts that arise in this case were not present in the cases decided by Sathiadev, J. and Mohan, J., referred to above. Hence those decisions do not stand in the way of the petitioner maintaining the writ petition.

8. The further question is whether the appeal has rightly been entertained by the Government. According to the learned counsel for the respondents, an appeal against an order of the Accommodation Controller passed under S. 3-A(2) can be filed within 15 days from the date of the receipt of the order and in this case the appeal before the Government having been filed beyond the said period of 15 days, the Government should have rejected the appeal without going into the merits. It is not in dispute that the Accommodation Controller passed an order directing the petitioner to hand over possession of the premises on 2nd June, 1983 and that was received by the petitioner on 7th June, 1983. As per the provisions of the Act, the appeal has to be filed within 15 days from 7th June, 1983, but the appeal was actually filed in this case on 20th July, 1983. In the memorandum of grounds of appeal, the petitioner has admitted that the appeal is being filed beyond time but be has given certain explanation as to why the appeal could not be filed in time. Though the memorandum of appeal contained a prayer by the petitioner that the delay in filing the appeal should be condoned and the appeal should be dealt with on merits after such condonation, the impugned order of the Government straightway proceeds to deal with the appeal on merits without referring to the question of delay. It is in these circumstances, the learned counsel for the respondents have taken up the plea that the Government could not have entertained the appeal filed belatedly and it should have rejected the appeal as having been filed out of time. The learned counsel for the petitioner does not dispute the fact that the appeal has been filed before the Government beyond the time but what he contends is that since the Government has disposed of the appeal on merits it should be presumed that the Government has condoned the delay and that the mere fact that the Government has not chosen to pass any order regarding the question of delay will not invalidate the Government's Order dealing with the merits of the case. In support of this plea Mr. Sivamani, the learned counsel for the petitioner, refers to the following two decisions —(1) Kandan v. The Chairman, Madras Dock Labour Board, Madras, (2) Balmukund Sharma v. Board of Revenue.

9. In the first case, the Court was concerned with an order of rejection of an appeal passed by a Secretary of the Dock Labour Board. This Court held that the power to condone the delay vests with the Chairman of the Dock Labour Board under the Madras Dock Workers’ (Regulation of Employment) Scheme, 1956 and in that case, since the Chairman has not exercised his discretion in the matter of condonation of the delay but the Secretary exercised his discretion and rejected the appeal, the order rejecting the appeal was quashed and the matter was directed to be considered by the Chairman. I do not see how that decision will be of any help to the petitioner herein. In the second case, the Rajasthan High Court was dealing with a case where the appellate authority had entertained the appeal without making a specific order on the question of delay. But on the facts of that case, the Court drew an inference that the appellate authority condoned the delay even though it did not pass any specific order to that effect and proceeded to dispose of the appeal on merits. Relying on that decision Mr. Sivamani wants this Court to draw the inference that the first respondent in this case had in fact condoned the delay before proceeding with the appeal on merits. A perusal of the judgment of the Rajasthan High Court indicates that the appellate authority was in fact aware of the fact that the appeal has been filed belatedly but none the less chose to dispose of the appeal on merits. Thus the special facts of that case were sufficient to draw the inference that the appellate authority proceeded to deal with the merits after condonation of the delay, though no specific order was passed to that effect. But in this case, it is not possible to say that the Government was aware of the act while disposing of the appeal on merits, that the appeal has not been filed in time. As a matter of fact, the rules provide that the memorandum of appeal filed before the Government must contain the date of receipt of the order appealed against and a copy of the order appealed against should be appended to the memorandum of grounds of appeal. According to the learned Government Pleader these steps have not been taken by the petitioner and therefore the Government would not have been aware of the fact that there has been a delay in filing the appeal. The learned counsel for the petitioner, however, refers to the last paragraph in the memorandum of grounds of appeal wherein the petitioner has stated the reasons for the delay in filing the appeal. It is no doubt true that the memorandum of grounds of appeal contains the reasons for the delay and the request for condonation of the delay, but it is not clear whether while disposing the appeal the Government was really aware of the fact that there is a delay in filing the appeal from the file produced. Therefore unless one is in in a position to say that the Government was aware of the delay in filing the appeal while disposing of the appeal it is not possible to draw an inference that the Government has chosen to condone the delay and only thereafter it has proceeded to dispose of the appeal on merits. I am not therefore inclined to accept the contention of the learned counsel for the petitioner that the Government should be deemed to have condoned the delay while disposing of the appeal on merits.

10. It cannot be disputed that the Government as an appellate authority can dispose of the appeal on merits only when there is a proper appeal before it. If the appeal has been filed belatedly, unless the delay in filing the appeal is condoned, the appellate authority is not entitled to entertain the appeal and deal with the appeal on merits. Since the Government, in this case, has not chosen to deal with the question of delay and straightway proceeded to deal with the appeal on merits without going into the question as to whether the appeal has been properly filed or not, the impugned order of the Government disposing of the appeal on merits cannot legally be sustained. The result of allowing the petition is to restore the appeal filed by the petitioner before the Government and the said appeal has to be disposed of now by the Government. However, before going to deal with the appeal on merits, the Government has to give a finding whether a case has been made out for the condonation of the delay or not. If the Government finds that this is a case for the condonation of the delay, then it will have to necessarily give notice to the third respondent, the owner of the building and hear his objections before passing a final order. When the Government considers the question whether the delay in filing the appeal is to be condoned or not, the owner of the building will be given notice and he will be heard on all objections taken by him. The objections may also include as to whether S. 5 of the Limitation Act applies and whether there are sufficient grounds for the condonation of the delay.

11. The writ petition is allowed accordingly. There will be no order as to costs.

VCS.