ORDER
Jayarama Chouta, J.
1. The prayer in the writ petition is to issue a writ of certio rarified mandamus or any other appropriate writ, order or direction in the nature of a writ of certiorarified Mandamus or any other appropriate writ, order or direction in the nature of a writ of certiorarified mandamus calling for the records comprised in the proceedings of the 2nd respondent dated 6.5.1988 in K.5/15916/87 and quash the proceedings and consequently, direct the respondents to order the release of the premises bearing Door No. 135, Eldams Road, Teynamepet, Madras-18 for the occupation of the 2nd petitioner and pass such further or other orders.
2. The necessary facts which could be gathered from the affidavit of the 1st petitioner for the purpose of disposal of the writ petition are, the 1st petitioner and his daughter, the 2nd petitioner, are in joint owners of the property bearing Door No. 135, Eldams Road, Teynampet, Madras-18. It is submitted on behalf of the petitioners that during the pendency of the writ petition, the 1st petitioner died on 2.3.1991. Learned advocate for the petitioners filed a memo to that effect into court to day and the same is recorded.
3. According to the petitioners, the said property was by the proceedings dated 3.5.1967 allotted to the 2nd respondent to the under Government tenancy. Subsequently, fair rent was fixed for the building at Rs. 2,100/- in C.R.P. No. 4536 of 1981 by this court. Originally the premises was used by the Special Deputy Director of Agriculture (Vegetables), and subsequently for the office of the Assistant Director of Horticulture. When the Assistant Director of Horticulture decided to vacate the premises, the 1st petitioner made representation to the authorities for the release of the said building under Section 3 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) since it was required for the 1st petitioner’s daughter, who was married and had two children and since she wanted to have an independent accommodation. It was further submitted that the 2nd petitioner, daughter of the 1st petitioner has no other independent residential or non. residential building in the City of Madras and the only property which is in the joint names of the petitioners is required, for her accommodation. It was further pointed out that the building was required in view of the fact that the 2nd petitioner has two grown up daughters and a son and that she wants to live separately from her parents and set up separate family. In spite of such request, the 2nd respondent did not consider the application of the 1st petitioner for a very long time but allotted the said premises, on the vacation of the same by the Assistant Director of Horticulture, in favour of the Tamil Nadu Tourism International Resorts Limited by order dated 11.2.1988. The petitioners moved this court for a writ of Mandamus directing the respondents to consider the application of the petitioners for release of the premises under Section 3-A(1)(a) of the Act in W.P. No. 1520 of 1988. This court by order dated 18.2.1988 directed the respondents to SS consider the request of the petitioners and pass orders on merits within a period of two months from the date of receipt of the orders from this court. Subsequent to the said order, the impugned order has been passed by the 2nd respondent. A true translated version of the impugned order. Which is in Tamil has been provided to me by the learned advocate for the petitioners.
4. Heard the learned Advocate on behalf of the petitioners and the learned Government advocate on behalf of the respondents.
5. Learned advocate for the petitioners Mr. Satish Parasaran took me through the impugned order passed by the 2nd respondent. The grounds on which the application of the petitioners had been rejected by the 2nd respondent are that the building in which the 2nd petitioner is – residing with her children has got a ground floor and a first floor and is a big house which is sufficient for Mr. and Mrs. Thathachari and the family of the daughter comprising four individuals, which is confirmed through enquiry. He has further stated in the impughed order that apart from the property which has been sought to be released, the 1st petitioner has a property at No. 20, Rajabamar street, which is in the name of the 1st petitioner’s wife and that house is sufficient for the requirement of the 1st petitioner’s daughter and her two children and therefore, the request of the 1st petitioner for release of the residential property was rejected.
6. Attacking the said order, learned advocates for the petitioners took me through the application filed by the 1st petitioner before the Accommodation Controller, office of the Collector of Madras, wherein the 1st petitioner has stated that he and the 2nd petitioner are the joint owners of the premises in question, that the 2nd petitioner was married in 1966 and her husband C. V. Sundararajan is an officer in Air France, that they have got two daughters and they have been living with the 1st petitioner after marriage, that now the 2nd petitioner and her husband have expressed a desire to set up separate family in view of the children growing up and demanding comforts, which they are not able to provide by being along with the 1st petitioner and that therefore, the 1st petitioner thought it fit and prudent to concede to the wishes of his daughter and son-in-law and accordingly indicated his consent for their setting up their family. It was specifically mentioned in the said petition that the 1st petitioner’s daughter viz. the 2nd petitioner, does not prossess any other house except the petition premises. He has also stated that he has decided to give the petition premises to them for setting up their family. On these grounds, the 1st petitioner has applied for the release of the premises from the Government tenancy so that his daughter can be given accommodation for her personal occupation bona fide. Again, one more letter was sent to the Accommodation controller reiterating the points stated in the first petition.
7. Learned advocate for the petitioners took me through the provisions of Section 3-A(1)(a) of the Act, which reads as follows:-
* A landlord may apply to the authorised officer for the release of a building in respect of which a notice has been given under sub-section (1) of Section 3 or in respect of which, the Government are, under Sub-Section (5) of Section 3, deemed to be the tenant if.
(a) in the case of a residential building, the landlord requires it for his own occupation or for the occupation of any member of his family and the landlord or the member of his family is not occupying any residential building of his own in the city town or village concerned.”
8. The only requirement, which the authority has to consider is in the case of a residential building, whether the landlord requires it for his own occupation or for the occupation of any member of his family, and whether the landlord or the members of his family is not occupying any residential building of his own in the city, town or village concerned. Placing reliance on this Section learned advocate submitted that the 2nd petitioner does not occupy any residential building of her own in the city, town or village concerned and that she is residing with her father who is the 1st petitioner. Further, she wants the premises for her personal occupation along with the members of her family. According to the learned advocate for the petitioners both the requirements arc fulfilled in this case and hence the 2nd respondent ought to have released the building for the occupation of the 2nd petitioner.
9. In support of the above contention, learned advocate for the petitioners first took me through the decision reported in P.V. Parthasarathi Chettiar v. The State of Tamil Nadu . He has invited my attention to paragraph 6 of the said decision, which reads as follows:-
“None of the submissions made by the learned Government advocate is acceptable. This court repeatedly has taken the view that it is not for the Government or the private tenants, as the case may be, to dictate the landlord as to which portion he must choose for his personal accommodation or for the accommodation of any member of his family. In C.R. Parthasarathy v. The Accommodation Controller, Madras-2 (1974 (I) M. L. J. Sh. Notes 1), Ramaprasada Rao, J., has held as follows :-
‘As the law was clear that it was the landlord or landlady who had the voice and the choice to make in the matter of choosing one of his or her many houses, the Government had no part to play in that field of activity which was exclusively that of the landlord. Again, in Dr. K. Ramanujam v. Accommodation Controller, Madras (88 L.W., 618), Ramanujam J has taken a similar view after referring with approval to another judgment of Ramaprasada Rao J., in Mullalkodiammal v. Government of Tamil Nadu . The head note in Dr. K. Ramanujam v. Accommodation Controller, Madras (88 L.W.,618) is as follows:-
“Where a application by the owner of a building for release, was rejected by the Accommodation Controller on the grounds:(l) the landlord’s Unemployed son, and his daughter are occupying the rear portion of the premises and the accommodation available in the above portion is sufficient for their needs; and (2) the landlord owns another house at No. 8, Neelkanda Mehta street, and if he is keen in providing better accommodation to his son and daughter, he could have taken action to vacate the tenant in the above premises and accommodate his son and daughter, therein, The two reasons given for the rejection of the petitioner’s request for release of the building for his occupation are not tenable. It is for the petitioner to decide as to what accommodation or what house he should have for purposes of his residence or for the residence of the members of his family, and he or the members of his family cannot be forced to live in a portion of the premises against their will.”
In the light of the clear and consistent pronouncements of this court, it is too late in the date to contend that the reason given by the respondents 1 and 2 that the landlord can choose other buildings to accommodate his daughter and son in law, if necessary by evicting the private tenants, is in accordance with law.”
10. The other decision on which the learned advocate placed reliance is S.V. Kamaladevi v. The State of Tamil Nadu, (1984 (II) M.L.J. 498) in which this court has held as follows:-
“Section 3-A of the Tamil Nadu Buildings (Lease and Rent Control) Act says that in the case of a residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and the landlord or the member of his family is not occupying any residential building of his own in the city, town or village concerned, the landlord may apply to the authorised officer for the release of the building. In this case, the landlady was occupying a portion of the residential building. But, according to her that portion was quite insufficient for her living and therefore she requires the adjoining portion also for her own occupation, If the landlady required a portion of the premises for her own occupation the section will stand attracted. Here, admittedly, the landlady required it for her own occupation and not for any other purpose. Though she was occupying a portion of the building, since her need for more accommodation was bona fide she was entitled to relief under Section 3-A(1)(a) of the Act.”
11. Placing reliance on these decisions learned advocate for the petitioners submitted that the application of the 1st petitioner complied with all the requirements of section 3-A(1)(a) of the Act and hence the impugned order passed by the 2nd respondent is in contravention of the said provision and it is liable to be set aside.
12. On the other hand, learned Govt. Advocate appearing for the respondents, pointed out that there is an alternative remedy available for the petitioners by way of appeal under Section 3(3) of the Act and without exhausting the said remedy they have straight away filed the writ petition invoking the jurisdiction of this court under Article 226 of the Constitution of India which cannot be entertained. He has also pointed out that the petitioners have not mentioned that the remedy which is available under Section 3(A)(3) of the Act is not efficacious and on this ground alone the writ petition is liable to be dismissed.
13. In this connection, it would be better to point out that in the affidavit filed in support of the writ petition, the 1st petitioner has specifically stated in paragraph 4 of the affidavit as follows:-
“The petitioners submit that they have no other effective alternative remedies except to approach this Hon’ble Court and the remedy of appeal, if any, provided would not be an effective alternative remedy having regard to the facts and circumstances of the case. Since the order is ex facie violative of several pronouncements of this Hon’ble Court, the petitioners are constrained to move this Hon’ble Court at this stage and put forth the following among other grounds for consideration.”
14. It is true, the petitioners have got an alternative remedy which they could have resorted to. But, since the writ petition has been entertained and the matter is pending for more than seven years. I am not inclined to dismiss the writ petition on this ground.
15. The next contention of the learned Govt. advocate is, that the 2nd petitioner has not moved the 2nd respondent but it is only the 1st petitioner, father of the 2nd petitioner. Who moved the authority and on this ground the 2nd respondent was right in rejecting the prayer. It is a technical arguments. In fact, in the petition the 1st petitioner, has specifically mentioned that the 2nd petitioner has got joint ownership and is going to reside in the said premises along with the members of her family. He has specifically mentioned the bona fide, requirement of his daughter for her occupation. Hence, there is no force in this contention raised by the learned Government Advocate.
16. The third and last contention which the learned Government advocate has put forward is, Section 3-A(1)(a) of the Act says that the landlord requires for his own occupation or for the occupation of any member of his family and the landlord or the member of his family is not occupying any residential building of his own in the city, town or village concerned. Here, in the order the 2nd respondent has stated that the 1st petitioner apart form the property which has been sought to be released, has a property bearing Door No. 20, Rajabathar street, which is in the name of his wife and that house is sufficient for the requirement of the 2nd petitioner and her two daughter But the fact remains that the house is in the name of the mother of the 2nd petitioner, and that being so, it cannot be said that the 2nd petitioner is the owner and she has got another house to reside. Apart from the house, which is the subject matter of the writ petition there is no other house belonging to the 2nd petitioner. Under these circumstances, the 2nd respondent was not justified in rejecting the prayer of the 1st petitioner.
17. For the reasons stated above, I allow the writ petition and quash the impugned order. There will be no order as to costs. However I will grant six months time from today to the respondents to hand over Possession of the premises in question to the 2nd petitioner.