JUDGMENT

S.N. Dwivedi, J. - Chaudharain Smt. Bhartoo v. Mst. Asa Devi 1966 AWR (H.C.) 55, reversing Mst. Asa Devi v. Chaudharain Smt. Bhartoo, 1959 ALJ 824 decides that a contractual tenant who continues to occupy the demised accommodation after the expiry of the term of the lease by virtue of the UP (Temporary) Control of Rent and Eviction Act (hereinafter called the Act) does not leave behind a heritable interest on his death. Encouraged by this decision, the Petitioner has put forward a much broader and bolder argument. The argument is this: No person who has occupied an accommodation by virtue of the direction u/s 7(2) of the Act to the owner of the accommodation to let it to him leaves behind a heritable interest on his death.

2. We think that the argument so generalised is mistaken. But before we examine it in detail let us first have the salient facts.

3. One Ram Das Mehrotra was allotted the disputed accommodation on 25-3-1950. He died on 15-9-1965. The Petitioner, who is the owner, wanted it to be released in his favour. Ram Prakash, the son of the deceased Ram Das Mehrotra, asserted that as the heir of the deceased he was entitled to continue in the accommodation. However, he also wanted that the accommodation should be allotted to him. The Rent Control and Eviction Officer allotted the accommodation to Ram Prakash and rejected the Petitioner's application for release. He informed the Petitioner as under:

The house is not vacant and hence the application for release has no basis and is therefore rejected. The house has not fallen vacant. The heirs of Sri Ram Dass are already living in the house whose possession should be regularised.

4. There is an apparent inconsistency in regard to vacancy of the accommodation in the two orders of the Rent Control and Eviction Officer. But they should be read harmoniously. And so read, they will make out that the Rent Control and Eviction Officer really thought that Ram Prakash inherited the right of Ram Das to occupy the accommodation. And so there was no vacancy. The allotment order in favour of Ram Prakash was a mere superfluity. On this reading of the two orders, obviously the Rent Control and Eviction Officer's assumption is as absolute as the argument of Sri Gupta. But law is seldom at home in the company of absolutes. It is always in quest of a middle path.

5. Sri Gupta has relied on many cases, English as well as Indian. It is not necessary to refer to them. They all bring out the distinction between a contractual tenant and a 'statutory tenant'. The distinction is this: a contractual tenant has an estate or interest in the demised property; a 'statutory tenant' has a mere personal right in the property in the absence of a provision in the statute creating an estate in his favour. So his right is not heritable. We accept this exposition of law. But it does not decide the case. The real issue before us is; whether a person who has procured an order u/s 7(2) of the Act (hereinafter called the allottee) in his favour gets a heritable interest in the accommodation? The answer will be found by examining the provisions of the Act and not by reading cases decided with reference to other Acts.

6. According to the preamble, the Act provides for powers to 'control the letting' of accommodations. The Act is not designed to empower any authority 'to let' an accommodation. The 'letting' is done by the owner of the accommodation. Section 7(2) makes this quite clear. It empowers the District Magistrate to direct a landlord 'to let' an accommodation. The expression 'to let' has been interpreted in Udho Dass v. Prem Prakash 1963 AWR 125. Sri Chief Justice Desai said there: To 'let out' means to enter into a contract of tenancy (with a person) and it is only after he has done so that the person gets a tenant's rights. The order issued by the District Magistrate does not confer any tenancy rights upon him, naturally he cannot become a tenant unless a contract of tenancy has been entered into between