The proviso to Sec.11 (1) of Bihar Act III of 1947 is not applicable to requisitioned property.

1. In M. J. C. 126 of 1955 the case of the petitioner is that holding No. 877, Z, Ward No. 2B, commonly known as Parmar Bhaban or Parmar House, was requisitioned by the Military authorities under Rule 75A of the Defence of India Rules through the Deputy Commissioner of Ranchi. The date of requisition is the 6th January, 1943. More than twelve years later, that is, on the 27th January, 1955, the Deputy Commissioner of Ranchi informed the petitioner that the house would be derequisitioned and released from the 31st January, 1955. The petitioner gave a certificate that he received back possession of the house from the Military authorities and that he had no claims against the Government of India except in So far as any arrears of rent had accrued.

The order of requisition is Annexure A of the application and the order of de-requisition is Annexure C. The certificate of discharge given by the petitioner is Annexure C/l. It is alleged on behalf of the petitioner that on the 14th February, l955, the House Controller of Ranchi made an order allotting the house to Mr. K.B. Srivastava, a Magistrate employed by the Government at Ranchi. This order is challenged by the petitioner on the ground that the House Controller had no authority to make allotment under the proviso to Sec.11 (1) of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947. (Eihar Act III of 1947), or under any other statutory provision.

2. The submission made by Mr. B.C. Ghosh on behalf of the petitioner is that the proviso to Sec.11 (1) of Bihar Act III of 1947 has no application and the House Controller had no authority to make the order of allotment on the 14th February, 1955, The argument of the learned Counsel is based on the proviso to Sec.11 (1) of the Act which is in the following terms :

"Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Sec.12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except-- (a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; and

(b) In the case of any other tenant, on the... expiry of the period of the tenancy, or for nonpayment of rent, or for breach of the conditions of the tenancy : Provided that where a servant of the Government in possession of any building as a tenant vacates such building, he shall within twenty-four hours of such vacation submit a report about such vacation to the District Magistrate who shall, Within a period of fifteen days from the date of the vacation, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable, subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government, or direct that the landlord shall be put in possession of the building."

It was submitted by the learned Counsel that the Military authorities were not in possession of the building in the status of tenant and so the proviso had no application. The argument was that there was a requisition of the house by the Military authorities acting under Rule 75A of the Defence of India Rules read with Ordinance No. 19 of 1943, which continued the emergency powers in relation to the requisition of land. In our opinion the submission of the learned Counsel is well-founded. Rule 75A of the Defence of India Rules made provision for requisitioning of movable and immovable property by the Government in certain circumstances. Rule 75A(1) states:

"If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, public safety,