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Judgment
M. N. Chandurkar, J.—This is a tenant''s petition challenging the orders of the Rent Control authorities holding that the landlords were entitled to terminate her tenancy under clause 13 (3) (ii) and (vii) of the C. P. and Berar Letting of Houses and Rent Control Order, hereafter referred to as the Rent Control Order. Originally the application before the Rent Controller was filed by Kishorilal and Chandrakant. The present respondents Nos. 4 to 8 are the legal representatives of Kishorilal, who died during the pendency of the appeal before the Deputy Collector, It was alleged by the landlords that the petitioner, who was occupying the house as an allottee at Rs. 22 per month as rent, was in arrears of rent of Rs. 104 and that she was a habitual defaulter. They also claimed permission to terminate her tenancy on the additional ground that the house was in a very bad state of repairs and that urgent repairs were necessary which could not be carried out without the tenant vacating the premises. A schedule showing the mode of payment since October 1962 to March 1965 was filed and during this period rent according to the schedule was paid only on 5 occasions. On evidence the Rent Controller found that the tenancy was a monthly tenancy and that the tenant was a habitual defaulter. The Bent Controller also found that the beams of the rooms had cracked and the whole structure had become insecure, and therefore, the tenant will have to vacate the premises before repairs could be carried out. Thus permission was granted to the landlords under clause 13 (3) (ii) and (vii) of the Rent Control Order. This order was upheld by the Deputy Collector in appeal by the tenant. The petitioner-tenant has now filed this petition challenging these orders.
The first contention raised by the counsel appearing on behalf of the petitioner was that initially the rent of the premises was Rs. 20 and that the landlords had unilaterally increased the rent of Rs. 22, and therefore, an excess of amount of Rs. 2 per month was recovered by the landlords right from the year 1953. According to the learned counsel, if the excess amount recovered at Rs. 24 per year was given credit for to the tenant, there was no case either of arrears or of habitual default. It is not possible to accept this contention. Apart from the fact that this question is raised for the first time in this Court, the petitioner has admitted in her written statement that she was occupying the premises on a monthly rent of Rs. 22. If this fact was not disputed, it is not now open to the petitioner to contend that the proper rent for the premises was Rs. 20 and not Rs. 22.
The learned counsel then raised a contention that since the petitioner was allotted these premises because she was a Government servant, the landlords could not invoke the provisions of clause 13 of the Rent Control Order and that the tenancy of the petitioner, which, according to the learned counsel, was created not by the landlords, but by the Allotting authority, could not be terminated under these provisions. The argument was that the provisions regarding allotment and the provisions in clauses 25, 26 and 28 of the Rent Control Order were a self-contained set of provisions under which alone the tenancy of the petitioner could be terminated. It is impossible to accept this contention. The allotment order is not on record, though the petitioner has filed what purports to be an authorisation permitting her to occupy the house in dispute. This document, which is annexure C, only says that "Miss, Kamal Niwal is authorised to occupy the vacant house specified above within two days of the receipt of this order". It is not possible to find out under what particular provision of the Rent Control Order the house was allotted to her, but it appears that the allotment was under clause 23 (1) of the Rent Control Order. Clause 23 (3) of the Rent Control Order reads as follows:
"23 (1). On receipt of the intimation in accordance with clause 22, the Collector may, within fifteen days from the date of receipt of the said intimation, order the: landlord to let the vacant house to any person holding an office of profit under the Union or State Government or to any person holding a post under the Madhya Pradesh Electricity Board, or to a displaced person or to an evicted person and thereupon notwithstanding any agreement to the contrary, the landlord shall let the house to such person and place him in possession thereof immediately, if it is vacant or as soon as it becomes vacant:
Provided that if the landlord has, in the intimation given under clause 22, stated that he needs the house for his own occupation, the Collector shall if, satisfied after due inquiry that the house is so needed, permit the landlord to occupy the same."
It is clear from the provisions of this clause that the only power which the Allotting authority exercises under this clause is the power to order the landlord to allot a vacant house to a particular person, who satisfied the requirement of that clause and the landlord has so choice in the matter in the sense that the Allotting authority has chosen a person, who is to become his tenant. But this clause does not bring into being a relationship of a landlord and a tenant which is brought about by the act of the landlord who lets the vacant house to the person in whose favour the allotment order is passed under clause 23 (1). Beyond restricting the power of the landlord to let the house to a particular person the Allotting authority does nothing more and since the house is to be let out by the landlord himself the tenancy is created by the landlord and not by the order of allotment. The moment the landlord lets the house to a person to whom it is allotted, the purpose of the order of allotment stands achieved and it thereafter ceases to be effective. It is, therefore, not correct to say that the Allotting authority creates the tenancy.
The reference to clauses 25, 28 and 28 of the Heat Control Order, which is made by the learned counsel for the petitioner, is also of no assistance to him in aid of his argument that it is the Allotting authority which creates the tenancy. Under clause 25 there is an obligation on a person who is placed in possession of a house by an order under clause 23 or clause 24-A to vacate the house when the tenancy terminates as provided by that clause. It provides that when a person holding an office of profit under the Union or State Government or to any person holding a post under the Madhya Pradesh Electricity Board is placed in possession of the house under clause 23 or 24-A, then his tenancy shall terminate on the date of his transfer, or grant of leave other than casual leave to him, or on the date from which he ceases to hold an office of profit under the Union or State Government or ceases to hold a post under the Madhya Pradesh Electricity Board, as the case may be, No doubt this clause is a statutory provision bringing about an automatic termination of tenancy if the contingencies provided therein take place. This, however, is in addition to the normal mode in which a tenancy of an allottee could be terminated and it is not contemplated by the provisions of clause 25 that that is the only manner in which a tenancy should be terminated and that his tenancy could not be terminated in any other manner if it is possible under the general law read with other provisions of the Rent Control Order.
Then there is clause 26 which provides that a person who is an allottee and is placed in possession of the house in accordance with the order under clause 23, 24 or 24-A shall not sub-let any portion of the accommodation under his occupation except with the written permission of the Collector and the landlord This is an additional obligation which is cast on the allottee who takes the house because of the order under clause 23, 24 or 24-A and it provides that unless he obtains a written permission of the Collector and the landlord he cannot sub-let the premises which are allotted to him. This clause does not deal with any termination of tenancy, and therefore, the argument of the learned counsel that the provisions of clause 13 (3) (iii) and clause 26 of the Kent Control Order cannot stand together cannot be accepted. 6. Then the learned counsel contended that the only manner in which an allottee of a house under clause 23 could be ousted from possession is by taking action under clause 2 8 of the Rent Control Order and that the normal law stands abrogated by the provisions of clause 28. Clause 28 is in the following words:
"28 (1). The Collector may take or cause to be taken Such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary for the purpose of securing compliance with, or for preventing or rectifying any contravention of this Order or for the effective exercise of such power.
(2) The Collector or any officer authorised by a general or special order in writing in this behalf by the Collector may, with a view to securing compliance with this Order-
(a) require in writing any landlord or tenant to give information in his possession in respect of any house belonging to a tenant or occupied by such landlord as the case may be;
(b) enter after giving reasonable notice in writing, any premises for verification of any information received in respect of which he has reason to believe that a contravention of this Order has been committed."
It is impossible to see how these provisions can be invoked by the landlord against the tenant when a valid relationship of a landlord and a tenant has come into being, if the landlords want to evict the tenant. The tenant could not be evicted unless the tenancy rights are terminated. The tenancy rights cannot be terminated unless he takes recourse to the provisions of the Transfer of Property Act, but before taking recourse to the provisions of the Transfer of Property Act the rights of the landlords under that Act have been restricted by the provisions of the Rent Control Order and the Rent Control Order provides that the right of a landlord to terminate the tenancy will be subject to the provisions of clause 13 of the Rent Control Order. If the provisions of clause 13 of the Rent Control Order apply because the tenancy is created by the landlord and not by the Collector or the Allotting Authority, then clause 28 cannot be invoked by the landlord in order to oust the tenant before his tenancy is validly terminated. Clause 28 does not contemplate such a course because the power given to the Collector is to be exercised only where the compliance with the provisions of the Rent Control Order is to be secured or the contravention of the Order is to be prevented or rectified. Once the tenant has entered the premises his non-payment of rent cannot be said to be a contravention of the Rent Control Order, nor can the effort of the landlord to take action against such a defaulting tenant be termed as amounting to securing compliance with the provisions of the Rent Control Order. The argument based on clause 28 that the normal course regarding eviction of a tenant stands superseded by clause 28 is, therefore, without any substance.
An argument similar to the one which the learned counsel has advanced in this Court that a tenancy is really created by the Allotting Authority was also repelled by the Madhya Pradesh High Court in B. R. Sarwate v. Deputy Commissioner, Jabalpur 1952 N L J 400. The effect of the order passed under clause 23 of the Rent Control Order was considered by the Division Bench in that case and the Division Bench observed:
"Clause 23 of the Order does not create any tenancy but only empowers the Deputy Commissioner to order the landlord to let the vacant house to a Government servant or to a displaced person under certain circumstances. The tenancy is, therefore, between the Government servant or the displaced person and the landlord. How this lease is to be made is not laid down in the Order and so in that respect it will be governed by the Transfer of Property Act. Indeed, that law will govern the tenancy in all matters except those in respect of which provisions have been made in the Order. The only provision in the Order dealing with the determination of tenancy is clause 25. Clause 13 only speaks of a previous written permission to be obtained by the landlord before taking action under the Transfer of Property Act lo determine the tenancy."
The learned counsel was unable to challenge the finding given by both the Rent Control Authorities that the house needed repairs which could not be carried out without the tenant vacating the premises.
The result, therefore, is that there is no reason to interfere with the order of the Rent Control Authorities, The petition is, therefore, rejected with costs.