Constructive possession and landlord nomination rights under Section 17(2) make allotment invalid without prior opportunity

Constructive possession of a building can satisfy Section 17(2) even where the landlord is not physically residing there, if the premises remain under control or contain household effects. On that footing, the statutory protection is not lost by temporary absence. Where Section 17(2) applies, the remaining vacant premises must be allotted only after the landlord is given an effective opportunity to nominate a tenant, and allotment made without that opportunity is contrary to the mandatory scheme and without jurisdictional basis.

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Issues: (i) Whether Section 17(2) applied where the landlord was not in actual residence but retained possession of the premises; (ii) Whether allotment of the vacant premises could be made without first affording the landlord an to nominate a tenant under Section 17(2).

Issue (i): Whether Section 17(2) applied where the landlord was not in actual residence but retained possession of the premises.

Analysis: Possession of a building by a landlord need not be limited to physical residence. Retention of the premises with household effects or control through locked premises is possession in the eye of law. The statutory protection under Section 17(2) is not excluded merely because the landlord is temporarily staying elsewhere.

Conclusion: Section 17(2) applied, and the landlord could not be treated as being out of possession merely because she was not physically residing in the premises.

Issue (ii): Whether allotment of the vacant premises could be made without first affording the landlord an opportunity to nominate a tenant under Section 17(2).

Analysis: The statutory scheme requires the allotment of the remaining part of a building, when covered by Section 17(2), to be made in favour of a person nominated by the landlord. Since no effective opportunity was given to the landlord to make such nomination, the allotment was contrary to the mandatory statutory requirement and lacked jurisdictional foundation.

Conclusion: The allotment made without compliance with Section 17(2) was invalid.

Final Conclusion: The appeal failed and the High Court's direction for reconsideration stood affirmed, while the landlord's statutory privilege of nomination under Section 17(2) was held to be mandatory.

Ratio Decidendi: A landlord's possession may be constructive rather than physical, and where Section 17(2) applies, allotment cannot be made unless the landlord is first afforded the right to nominate a tenant.

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