1. This appln. arises out of a petn. filed under Section 7, Madras Building (Lease and Bent Control) Act, for eviction in respect of premises belonging to the petnrs. in Mowbray's Road, Mylapore. It is a matter of admission that there has been default in due payment of rentwithin the meaning of Section 7 (2) (i). The petnra. would have been entitled to an order of eviction, but their petn. has been dismissed on the ground that the provisions of Section 7 (2) of the Act were not applicable to the premises in question as the pro. vincial Govt. are the tenants & are exempted from those provisions by a notfn. issued under Section 13 of the Act.
2. The only question which falls for decision on this appln. is whether this finding that theProvincial Govt. were the tenants of this building on the date of the appln. for eviction is correct. The relevant facts have to be ascertained from the correspondence which passed between the parties. On 27-5-1943 the Supdt. of Police, Special Branch, C. I. D. Madras at Vellore wrote a letter to the second petnr. herein who is the wife of the first petnr. who was then in Jail that the house in question would be taken up for occupation by an officer of that dept. on a monthly rent of Rs. 30, or the amount fixed by the Corporation of Madras whichever is less from 21-4-1943 subject to certain conditions which are not material. It is common ground that except this letter there was no other document relating to the tenancy of this building. One H. R. Bangara, Sub-Inspector, was in occupation of the house since the beginning of 1943. From October 1944 the fair rent for the building was fixed by the Rent Controller at RS. 40 p. m. The second petnr, issued a notice through her lawyer on 26-1-1945 to Mr. Bangara calling upon him to pay the balance of rent due from him calculating according to the order of the Rent Controller. To this Mr. Bangara replied on 30-1-1945 giving an explanation for the delay & added that in future any notice of the kind may be sent to the Supdt. Special Branch, C. I. D., Madras as the agreement renting out the house was made to him & he was the officer to deal with such things. It appears that thereupon petnr, 9 applied for copy of the agreement & she was furnished with a copy which is marked as Ex. 1 in this case on 29-3-1945.
3. To ascertain whether the Govt. are the tenants of this house, it is necessary to advert to the provisions of the Govt. of India Act, Section 175(3). That runs as follows :
'Subject to the provisions of this Act with res peat to the Federal Rly. authority, all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the Governor-General, or by the Governor ofjthe Province, as the case may be, & all such contracts & all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-General or Governor by such persons & in such manner as he may dicect or authorise.'
Under this sub-section, His Excellency the Governor has prescribed the authorities who should execute certain claasea of deeds, contracts & other instruments. Though several specific kinds of documents have been mentioned, there is no item which directly covers a lease of a building for the residence of a police official. The learned Advocate General contended that such a lease might fall under item 3, i. e., contracts & other instruments for the purchase, supply, conveyance or carriage of building materials, stores, machinery, etc., & the provision of labour for building or other work & such like engagements. Evidently the contention of the learned Advocate General is that the lease would fall within the scope of the residuary phrase 'such like engagements'. In our opinion, the suggestion is far-fetched. It involves too much strain on the language to bring a residential letunder the category of an engagement to be likened to contracts for the purchase, supply & conveyance or carriage of building materials & for the provision of labour for building & other work. It follows that a residential lease must fall under item 1, namely, all deeds & instruments relating to any matters other than those hereinafter specified. In respect of these the prescribed authorities are, Secretaries to Govt. & the Addl. Secretary to Govt. Development Dept. Appendix 7 to the Madras Financial Code which contains special rules & restrictions regarding particular items of contingent expenditure inter alia contains provisions for the renting of private lands & Govt. buildings for the residence of officers & for other public purposes (item 49). So far as the Police Dept. is concerned, originally it was the I. G. of Police who was empowered to rent houses for use as residence by Police officials like a Sub-Inspector in cases where the maximum monthly rent in Madras City was Rs. 30. By a later amendment in 1948, the D. I. G. of Police & other officers were so empowered. As the tenancy in respect of the house with which we are now concerned commenced in 1943 before the amendment, it was the I. G. of Police who was the authority empowered to rent a house for the use of a Sab-Inspector.
4. Undoubtedly, it is not necessary that there should be a formal document of lease as evidence of tenancy. A lease can be inferred from correspondence in which case there should be a communication signed by an officer with due authority. In the present case, there are two difficulties in the way of the learned Advocate General. The Supdt. of Police is not among the officers who are empowered to execute on behalf of the Governor deeds & instruments specified in item 1 in Appen. A. Secondly the Supdt. of Police was not at the time when the tenancy commenced the authority empowered to rent a house for the use as residence by a Sub-Inspector in the Madras City. It, therefore, follows that there could not be in law a tenancy between petnr. 2 & the Provincial Govt. as such. No, doubt it was in the contemplation of parties that only subordinate officers of the Police Dept. would be occupying the premises. But that is neither here nor there. What we have to decide is whether it can be said that the Provincial Govt. are the tenants of the building in question. It is not sufficient that an officer under the Provincial Govt. or a Dept. under the Provincial Govt. is a tenant. It can well be that Govt. officers or Govt. Depts. are tenants without any liability on the part of the Provincial Govt. as such because the conditions to be fulfilled before any such liability could arise are nob fulfilled. This is such a case. It has been held in this Ct. that if the provisions of Section 175(3), Govt. of India Act, are not satisfied, there is no contract which can bind the Govt. as such, vide Sarikara Mining Syndicate v. Secretary of State : AIR1938Mad749 and Perumal v. Madras Pro-vince, : AIR1950Mad194 . We are, therefore, constrained to hold that the Provincial Govt. are not the tenants of the building on the date of the appln. for evictions The resps. would not, therefore, be entitled to rely on an exemption from the provisions of Sub-section (2) of Section 7 of the Act. The petnrs. will be entitled to an order of eviction.
5. It was contended by the Advocate General that the parties including petnr. 2 were under the impression that virtually the Provincial Govt. were the tenants. Any such impression which they might have had cannot obviously decide the legal rights of parties.
6. The order of the appellate tribunal confirming the order of the Bent Controller is hereby quashed.