M.S. Shaik Mohammed Shah vs State of Madras and Others

(1) The petitioner is an allottee of a portion in premises No. 63 Angappa Naicken Street. It appears that this premises was originally allotted to the

third respondent, a Government servant. On his expressing his willingness to let out a portion as the entire house was too large for his then

requirements, Government took back a portion of the house and allotted it to the petitioner who is also a Government servant. The arrangement

seems to have been that the third respondent used to collect the rent for this portion from the petitioner and pay it over the landlord. According to

the petitioner, certain personal disputes arose between himself and the third respondent moved the Accommodation Controller for cancellation of

the allotment in favour of the petitioner and the allotment of the entire house to himself. Orders appear to have been passed accepting the need of

the third respondent for the occupation of the entire house. The result was that the allotment in favour of the petitioner was put an end to and he

was directed to vacate that portion and hand over vacant possession thereof to the Accommodation Controller. The petitioner made certain

representations, but they failed to move the appropriate authorities, and, finally, he was told that if he did not surrender possession, he would be

forcibly evicted from the premises. The petitioner seeks the issue of a writ of certiorari to cancel this order, his contention being that as he is a sub-

tenant under the third respondent, he cannot be so evicted, and that Section 3(9)(a)(ii) of the Madras Rent Control Act cannot be invoked for the

purpose.

(2) It is unnecessary to traverse the averments in the counter affidavit of the third respondent except to say that he denies the allegations of any

personal illwill towards the petitioner. On behalf of the Accommodation Controller and the State of Madras, the stand has been taken that the

petitioner is not justified in his contention that the provisions of the Act has been misused or that the order is in excess of the powers vested in the

appropriate authority. It is stated that the petitioner is only a licensee and that according to the terms of the allotment order, it is open to the

Government to revoke the licensee and obtain vacant possession of the premises.

(3) The question is whether Section 3(9)(a)(ii) is applicable the facts and circumstances of the present case. It is not in dispute that though the third

respondent wished to sublet a portion of the premises on his own account and sought the permission of the Government to do so, Government

refused to permit that course. On the other hand, they took over that portion of the premises with the result that there were two allotments in

respect of the house instead of one, part of the house being allotted to the third respondent and part of the house to the petitioner. Section 3 of the

Act enables the Government to obtain possession of any premises, the vacancy of which has been notified if the Government should require the

premises for the occupation of a servant of the Government, or of any local authority, or of any public institution under the control of the

Government. Thereafter the Government becomes the statutory tenant; and when it puts in any one of the above class of persons, i. e., a

Government servant or a local authority or a public institution, as the occupier of the premises, that occupier does not become the tenant under the

owner. The tenancy which is statutory is only as between the owner and the State Government. What the Government do on the occasion of such

allotment is to obtain an agreement in writing from the Government servants concerned whereunder he undertakes top vacate the building as and

when the Government should require him to do so. It is also not in dispute that a person who has been allotted premises in the above manner is not

entitled to continue in occupation when he ceases to be a Government servant, or when he is transferred from the locality. The short question is

whether in these circumstances the right that is created in the allottee is anything more than that of a licensee.

(4) Mr. Padmanabhan, learned counsel for the petitioner, urges that though the petitioner might have been described as a licensee in the allotment

order, or in the agreement, that is not conclusive. The right has been given to him of being in exclusive occupation of the premises, and such

exclusive occupation is claimed to amount to a lease. He concedes at the same time that the petitioner is not entitled to all the rights of a lessee as

understood in law; that the petitioner has the allottee is not entitled to sublet, or transfer the premises to any person. If it is a lease as contended,

the question to ask would be whether he has an interest in the immovable property. Except that of the liberty of occupation which is conferred

upon him by the provisions of the Act, the petitioner cannot be heard to say that he has such an interest, which would amount to an interest in the

immovable property, which is the vital characteristics of a lease. Mr. Padmanabhan has also brought to my notice the decision of the Supreme

Court in Associated Hotels of India Ltd. Vs. R.N. Kapoor, . In that decision it has been clearly laid down that the nature of the transaction is not

conclusively established by the name given to it, but that the question whether it is a lease or a license would be one of determination of the

intention of the parties thereto. Reference has been made to Cobb v. Lane, 1952 1 All ER 1199 where Denning, L. J. Said.

The question in all these cases is one of intention. Did the circumstances and the conduct of the parties show that all that was intended was that the

occupier should have a personal privilege with no interest in the land?

Their Lordships notice that the dividing line between a licence and a lease may in some cases be very thin, but nevertheless when once the intention

of the parties is manifest, that should make the position clear.

(5) I am satisfied that the petitioner, a Government servant, who has been allotted premises of which the Government is the statutory tenant and

which the Government have taken possession of under the provisions of the Madras Buildings (Lease and Rent Control) Act, is nothing more than

a licensee. It should, therefore, follow that the Government where within the rights in cancelling the licence and seeking to recover possession of the

premises. Section 3(9)(a)(ii) is specifically intended to confer upon the Government this remedy of taking possession and the existence of this

provision itself makes it quite clear that a Government servant who has been allotted premises is only a licensee.

(6) It follows that the writ prayed for cannot issue. Having regard to the circumstances of the case and the difficulty of securing other

accommodation, it would be appropriate if the Accommodation Controller grants time till at least 31st March 1966 for the petitioner to vacate the

premises. The petition is dismissed. There will be no order as to costs.

(7) Petition dismissed.