Tare, C.J.
1. This order shall also govern the disposal of Misc. Petition No. 680 of 1973 -- (S. Awatarsingh v. The Authorised Officer. Jabalpur, The said writ petition has been filed by Sardar Awatarsingh, who is respondentNo. 5 in Misc. Petition No. 617 of 1973. As the facts in both the cases are common, it is convenient to dispose of both the cases by a common order.
2. This is a petition under Articles 226 and 227 of the Constitution of India by the widow and the daughter of one. Harbanslal brother of the fifth respondent, S. Awatarsingh. The petitioners challenge the order of the Authorised Officer, dated. 4-8-1973 (Petitioners' Annexure-C), directing the first petitioner to vacate the premises and allotting the premises to the third respondent, namely. J. C. Johari, Dy. Superintendent of Police.
3. The fourth respondent. Sushil kumar is the landlord. His father. Labbooram Sharma had created the late Harbanslal as a tenant many years before and the fifth respondent. S. Awatarsingh, who is the younger brother of Harbanslal, was living with his brother and he was never a tenant of the premises. Harbanslal died in the year 1958 and after his death, the present petitioners became tenants by devolution of interests, S. Awatarsingh, who was living merely as a licensee of his elder brother, constructed his own house and has shifted there with his family. In the alternative, the petitioners claimed that they are dependants of S. Awatarsingh and as they needed the premises, they cannot be directed to vacate the quarters. We shall presently deal with these two inconsistent and contradictory claims.
4. The contention of respondents 1 and 2 is that Harbanslal was never the tenant of the premises but S. Awatarsingh was allotted the said quarters in his capacity as a displaced person under the C. P. & Berar Letting of Houses and Rent Control Order, 1949. As S. Awatarsingh has constructed his own house, which is a big one he does not need the premises and be has already shifted to his own house. Under the circumstances, the petitioners have no claim to continue to live in the house and the tenancy never devolved on the petitioners.
5. The most disputed question, which is very hotly contested is as to who was the tenant of the premises. It is the petitioners' contention that their predecessor. Harbanslal was the tenant and the then landlord. Labbooram Sharma had acknowledged Harbanslal as his tenant in support of this contention the petitioners have filed a statement of Shri Bhagwantsingh Baxi, Advocate, who stated that an Army Officer had vacated the premises and Harbanslal Anand had occupied the same. Thereupon Labbooram Sharma objected to the occupation by Harbanslal. With the intervention of D. D. Puni, a relation of Labbooram Sharma, Harbanslal was permitted to continue to occupy and Labbooram acknowledged him as a tenant, Harbanslal died in the year 1958. Awatarsingh, the younger brother of Harbanslal used to live with him, Awatarsingh had constructed his own house and he has occupied that and has vacated the rented premises, but Harbanslal's widow and daughter are continuing to live in the same. To the same effect is the statement of Awatarsingh (Petitioners' Annexure-B). He even went to the extent of denying that he had been allotted the house in the year 1950 as a displaced person.
6. As against this the respondents have filed the report of the Rent Control Inspector (Respondents' Annexure-3) stating that Awatarsingh was allotted the house as a displaced person and as Awatarsingh has constructed his own house and has shifted there, the rented Premises have fallen vacant and are available for allotment The landlord himself (respondent No. 4) had intimated the Collector on 20-8-1972 (Vide respondent's Annexure-4) that Awatarsingh had been allotted the house sometime in the year 1952 and that he has shifted to his newly constructed house. He was keeping his sister-in-law in the rented premises without any permission. The landlord also asserted in that letter that rent receipts were being issued in favour of Awatarsingh only. The landlord had intimated to the Collector that he had no objection if the premises were allotted to any other person.
7. The respondents also filed a statement of the present landlord (Respondents' Annexure-R-VIII) fully supporting the fact that the house had been allotted to Awatarsingh as a displaced Person in the year 1952.
8. It was on this material that the Collector. Jabalpur, came to the conclusion that Harbanslal was never a tenant of the suit premises, but the house had been allotted to the 5th respondent Awatarsingh in the year 1952 as a displaced person. So far as these two findings are concerned, they do not suffer from any legal infirmity and consequently, it is not open to the petitioners to challenge those findings and it is not for this Court to come to a different conclusion merely by re-assessing the evidence. We have, therefore, to proceed on the basis that the findings of fact recorded by the Rent Controlling Authorities are proper and correct and we have to work out the respective rights of the Parties on the basis of those findings. If S. Awatarsingh was the tenant of the suit premises on account of the fact that he had been allotted those premises in his capacity as a displaced person, he would continue to be a tenant even after the C. P. Berar Letting of Houses and Rent Control Order. 1949, was repealed by the M. P. Accommodation Control Act. 1955, which itself was later on repealed by the M. P. Accommodation Control Act. 1961. As no provision is made in the M. P. Accommodation Control Acts of the years 1955 and 1961 regarding allotment of houses to displaced persons. Awatarsingh will continue as a tenant under the ordinary law and the matter will be governed by Section 12 of the M. P. Accommodation Control Act. 1961. Now, it is an undisputed fact that Awatarsingh has constructed his own house and has shifted therein. As such, he does not require the rented premises for his own occupation. However, the further question is whether the petitioners can claim to continue to occupy the house in their own right.
9. The learned counsel for the petitioners invited attention to the definition of a 'member of the family' as per Section 2 (e) of the M. P. Accommodation Control Act. 1961, which is as follows:
' 'Member of the family' in the case of any person means the spouse, son, unmarried daughter, father, grandfather, mother, grandmother, unmarried sister, paternal uncle, paternal uncle's wife or widow, or brother's son or unmarried daughter living jointly with, or any other relation dependent on him'.
The contention of the learned counsel for the petitioner is that in view of this definition. Awatarsingh's sister-in-law and niece, who are dependent on him require the premises and therefore, they can claim to continue to occupy the house. In our opinion this is a fallacious argument. The definition clause itself states that the definition will prevail unless the context otherwise requires. We can well envisage situations where a person is transferred and he himself goes to the place where he is transferred, but on account of certain circumstances, he is required to keep bis entire family in the rented premises. In that event although his tenancy may stand terminated by virtue of Section 42 of the M. P. Accommodation Control Act, 1961, the fact that the landlord may permit his family members to continue to occupy the house will be a mere concesision, which cannot be claimed as of right. Even if it were to be assumed that the petitioners are dependents of the tenant. S. Awatarsingh, they cannot claim to continue to occupy the premises on the assumption that they need it. It is not the need of the tenant that is material under the M. P Accommodation Control Act, 1961, but It is the need of the landlord, which is material and the landlord can get the premises vacated not only for his own need, but for the members of the family mentioned in Section 2 (e) of the Act Once the tenant has given up the tenancy and has secured an alternative accommodation, his dependants cannot claim that a fresh tenancy ought to be created in their favour merely because, they do not want to shift to the newly constructed premises occupied by the head of the family. Therefore, this line of reasoning is obviously fallacious and if we were to accept the same, it will lead to the provisions of the M. P. Accommodation Control Act, 1961, being rendered nugatory and will create scope for committing frauds on the statute. Such an interpretation can evidently not be accepted by a Court of law. Moreover, the question, if the petitioners are dependents of S. Awatarsingh, was never raised before the Rent Controlling Authority. On the other hand, the petitioners' contention was that Harbanslal was the tenant and the tenancy devolved on the petitioners, while Awatarsingh being the brother of Harbanslal, was a mere licensee. Had the petitioners out up the case before the Rent Controlling Authorities as they now want to present before this Court, the Rent Controlling Authorities would have bad an occasion to consider this aspect But it is absolutely unfair on the Part of the petitioners to put up a case, which was never Put up before the Rent Controlling Authorities. Consequently, we would reject the contention that the petitioners are entitled to continue to occupy the house, as dependents of S. Awatarsingh, They must succeed or fail on their contention that Harbanslal was the tenant of the rented premises. Once that is found against them, the petitioners have no case, whatsoever; even as dependents of Awatarsingh, they have no independent right and their right to occupy will come to an end upon Awatarsingh giving up the premises and shifting to his own newly constructed house.
10. As a result of the discussion aforesaid, this petition fails and is accordingly dismissed with costs in favour of the first and the second respondents There shall be no order as to costs vis-a-vis the petitioners and respondents 3 to 5. Counsel's fee in this Court shall be Rs. 50/-, if certified. The outstanding amount of the security deposit, if any after deduction of costs be refunded to the Petitioners.
Consequently Misc. Petition No. 680 of 1973 also fails and is accordingly dismissed summarily without notice to the other side.