1. This petition under Article 226 of the Constitution for a writ of certiorari, or any other appropriate writ, is directed against an order of the Rent Controller, Chhindwara (respondent No. 2) dated 28-5-1958 and another affirming order of the Deputy Collector with appellate powers (respondent No. 3) dated 1.4-11-1958 granting, under Clause 13(3)(ii) and (v) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as the Rent Control Order), permission to the landlord (respondent No. 1) to serve a notice on his tenant (petitioner) to determine his tenancy,
2. The petitioner has been long occupying as a tenant a house in Golgunj, Chhindwara, more particularly described in paragraph 1 of Annexure A. The respondent No. 1 purchased the house from the previous owner, Mukitn Khan, on 26-8-1956. In December 1958, he made an application (Annexure A) for permission, under Clause 13 of the Rent Control. Order, to serve a notice to determine the tenancy on the following amongst other grounds:
(a) The petitioner occupied the house as a tenant on a (monthly) rent of Rs. 22-14-8.
(b) The petitioner was a habitual defaulter. He never paid rent in time. He did not pay any rent to the respondent No. 1 ever since he purchased the house in spite of demands.
(c) The petitioner has secured alternative accommodation in the shape of two houses in Chhindwara town.
3. In answer to the application, the petitioner filed his written statement (Annexure B) to say that -
(i) the rent of the house for 12 months from Diwali to Diwali was Rs. 275/- subject to a deduction of Rs. 60/- per yearly white-washing;
(ii) the petitioner was not a defaulter, much less a habitual defaulter, and used to regularly pay rent to Mukim Khan, who accepted Rs. 215/- in cash once a year according to the convenience of parties; and
(iii) the petitioner's house, which he has purchased is not only small in size and, therefore, not sufficient for his cloth shop and residence but is also dilapidated and not fit for occupation. The petitioner further stated that he remitted to the respondent No. 1 Rs. 215/- as rent for 12 months ending on 4-11-1957 by a money order dated 18-10-1957 but he refused to accept it.
4. The Rent Controller and the Deputy Collector with appellate powers held that the petitioner was a habitual defaulter and that he had secured alternative accommodation. On these two grounds, they granted to the respondent No. 1 permission to serve a notice to determine the tenancy.
5. There was in this ease an annual tenancy for a rent of Rs. 275/- as stated by the former owner Mukim Khan (Annexure D). Since the tenancy was not Created by a registered instrument, the terms of the tenancy could not be proved. This followed from Section 107 of1 the Transfer of Property Act and Section 49 of the Registration Act: Baldeo Prasad v. Dashrathlal, 1955 Nag LJ 103 : ((S) AIR 1955 Nag 27). It was, therefore, rightly held by the Rent Controller and the authority who heard the appeal that the presumption under Section 106 of the Transfer of Property Act applied and the tenancy must be deemed to be from month to month, terminable by fifteen days' notice expiring with the end of a month of the tenancy.
However, that section makes no provision for any presumption as to the time for payment of rent In the case of a tenancy presumed to be from month to month. The matter must therefore: be regulated by contract. It is true that where the tenancy is, by agreement, from month to month, the tenant is, under the ordinary law, bound to pay rent to the landlord on the 1st day of the succeeding month unless there be any contract to the contrary governing that matter. However, where, as in this case, there was no contract that a particular sum was payable as rent per month and all that appears to have been agreed was that a sum certain was payable for 12 months, that law does not apply. It may be that the agreement to pay a certain sum as rent for 12 months being an integral part of the lease which could be created only by a registered instrument is not provable.
Even so, it is manifest from the conduct of parties as appearing from the evidence on record that the petitioner used to pay to his landlord (predecessor of the respondent No. 1) a consolidated sum as rent for 12 months after deducting whitewashing charges. That being so, it is not open to the resnondent No, 1 to contend that the rent was payable every month. The respondent No. 1 is not entitled to take advantage of any default that the petitioner might have made in paying rent to his predecessor, who, in accepting the rent, presumably waived the defaults. So far as the respondent No. 1 is concerned, the rent due to him was, in accordance with the past practice remitted to him in good time, but he refused to accept it. That being so, the finding of the Rent Controller and the Deputy Collector with appellate powers to the affect that the rent was payable every month and that the petitioner had committed defaults in paying the rent regularly arc not based on any evidence and cannot be supported.
6. Another ground on which the Rent Controller and the Deputy Collector with appellate powers proceeded was that the petitioner had secured alternative accommodation, As to this, Budhmal, witness No. 1 for the respondent No. 1, stated as follows:
'The said house is in a dilapidated condition. It is difficult to reside and keep shop therein. There was also danger when I used to live therein. The applicant said that as the house was in dilapidated condition, he did not want to give it on rent. The second storey is not fit for being used. It is 2-3- cubits in height from the ground, i. e., ground floor. A man cannot stand in front of it. It will require Rs. 15,000/- to Rs. 7,000/- for repairing (it).'
The Rent Controller visited the houses and recorded the following inspection note:
'Inspected the two houses of non-applicant in the company of both parties and their counsel. Both the houses are old and in a neglected state. They are not incapable of repairs though the repairs will cost some money to the non-applicant. The house in Budhwari is situated in a row where all other houses are set in order and being utilised. The house in Goalgunj could also improve with some repairs to the rafters of the top-floor. It is already being used for keeping animals. Both houses have great site value of business importance.'
In view of the evidence of Budhmal and the inspection note recorded by the Rent Controller, there can he no doubt that the houses acquired by the petitioner are not fit for residence and cannot be made habitable except at considerable cost. That being the position, it could not be said that the petitioner had secured alternative accommodation. In our view, when a tenant has acquired houses which are not habitable, being in a dilapidated condition, and a considerable outlay is required to make them habitable, it cannot be said that the tenant has secured alternative accommodation within the meaning of Sub-clause (v) of Clause 13(3) of the Rent Control Order. We think that the Rent Controller and the Deputy Collector with appellate powers committed an error of law in regarding the dilapidated houses acquired by the petitioner as equivalent to securing alternative accommodation.
7. As we have shown, the first ground onwhich the Rent Controller and the Deputy Collectorwith appellate powers proceeded is without any basisin evidence. As to the second ground, they committed an error of law which is apparent on the face of the record. We therefore quash the ordersdated 28-5-1958 and 14-11-1958. We direct the respondent No. 1 to bear his own costs and paythose of the petitioner. Hearing fee Rs. 50/-. Theoutstanding amount of security shall be refunded to the petitioner.