Judgement Appeal (No. 23 of 1942) from a decree of the High Court (August 13, 1940), which affirmed a decree of the Court of Small Causes, Calcutta (March 17, 1938). The question in this appeal was whether, for the purpose of assessing the official residence of the Commissioner of the Presidency Division in Bengal to the consolidated rate the annual value thereof fell to be ascertained according to the method prescribed in sub-s. (a) of s. 127 of the Calcutta Municipal Act, 1923, or that prescribed in sub-s. (b) of that section. The house was owned by the respondent, the Government of Bengal, and occupied by the Commissioner subject to the terms of the general rules applicable to all government servants. The facts and the provisions of the relevant rules appear from the judgment of the Judicial Committee. The Chief Judge of the Court of Small Causes and, on appeal, the High Court (Mitter and Lodge JJ.) held that the correct basis of assessment was under sub-s. (a) of s. 127 of the Act of 1923. By s. 127 " For the purpose of assessing land and buildings " to the consolidated rate,—(a) the annual value of land, and " the annual value of any building erected for letting purposes " or ordinarily let, shall be deemed to be the gross annual " rent at which the land or building might at the time of " assessment reasonably be expected to let from year to year, " less in the case of a building, an allowance of ten per cent, for " the cost of repairs and for all other expenses necessary to " maintain the building in a state to command such gross " rent; and " (b) the annual value of any building not erected for " letting purposes and not ordinarily let shall be deemed to be " five per cent, on the sum obtained by adding the estimated " present cost of erecting the building, less a reasonable " amount to be deducted on account of depreciation (d any), " to the estimated present value of the land valued with the " building as part of the same premises." 1943. June 2, 3, 7, and 23. Sir Herbert Cunliffe K.C. and Pringle for the appellant. June 2, 3, 7, and 23. Sir Herbert Cunliffe K.C. and Pringle for the appellant. If the building is " ordinarily let " it falls to be assessed under sub-s. (a) of s. 127 of the Act, and the assessment is Rs. 9,720 ; if it is assessable under sub-s. (b) the figure is Rs. 16,837. "Ordinarily let" may mean "let* " under ordinary conditions," or it may mean " usually let," and then there would be an inquiry as to the purpose and conditions of the occupancy of this house. " Ordinarily let " implies negotiations of terms on both sides. Official committee meetings were held at the house on a number of days, and while it may be unfair to draw any definite inference either way from that, such inference as may be drawn should be in favour of the appellant, because here is an official residence being used for official purposes. Further, the governments right to turn the Commissioner out of the house at a moments notice does not indicate any of the primary rights of a lessee as they are known in this country. There is no express statement in the rules saying that it is obligatory for him to live there, but, it is submitted, on the evidence it is obligatory, and it is implicit in the rules. Secondly, his residence there was necessary for the performance of his duties. The house was not to be used for any purpose inconsistent with that for which the government has allowed him to occupy it. Further, he can only sublet with permission. Bertie v. Beaumont ((1812) 16 East 33.) is something like this case, and very strong to show that if the occupation is for the purpose of the office or service he does not become a tenant, and it cannot, therefore, be an ordinary letting. If the sum payable as " rent " is fixed by a percentage of the salary it can have no relation to the value of the house. It was established that this house was worth a rental of Rs. 900 a month, and the charge to the Commissioner was about Rs. 300. The net result, therefore, was the same as in Bertie v. Beaumont ((1812) 16 East 33.), he got by reason of the compulsory occupation of the house less than he would have received. It was established that this house was worth a rental of Rs. 900 a month, and the charge to the Commissioner was about Rs. 300. The net result, therefore, was the same as in Bertie v. Beaumont ((1812) 16 East 33.), he got by reason of the compulsory occupation of the house less than he would have received. Further, the salary of the Commissioner must vary according to his age and service. Bertie v. Beaumont (16 East 33.) is very near to this—the principle is the same. This house is not let at all in the sense in which that word is ordinarily used. He is not a tenant at all. He has to take in accordance with the rules laid down in respect of occupation of this kind of house, and repairs are the liability of the government. All this shows that the real responsibility for the house, the real occupation of it, is that bf the government by and through its servant and agent. It is part of the terms of his employment that he shall occupy the house. In Hughes v. Overseers of Chatham (( 1843) 5 Man. & Gr. 54.) there was no user of the house for public purposes, or for any purpose in the execution of his duty, which distinguishes it from this case. In Dobson v. Jones (( 1844) 5 Man. & Gr. 112.) the material and substantial facts are almost identical with this case. White v. Bayley (( 1861) 10 C. B. (N. S.) 227.) is also a very strong case. The Queen v. Spurrell (( 1865) L. R. I. Q. B. 72.) does not carry the matter any further. [Reference was also made to Fox v. Dalby (( 1874) L. R. 10 C. P. 285, 293.)]. This house was not " ordinarily let " within the meaning of sub-s. (a) of s. 127 of the Act. Pringle followed. In Smith v. Seghill Overseers (( 1875) L. R. 10 Q. B. 422.) the houses were not in any way coloured by the nature or necessities of the employment. Bent v. Roberts (( 1877) 3 Ex. This house was not " ordinarily let " within the meaning of sub-s. (a) of s. 127 of the Act. Pringle followed. In Smith v. Seghill Overseers (( 1875) L. R. 10 Q. B. 422.) the houses were not in any way coloured by the nature or necessities of the employment. Bent v. Roberts (( 1877) 3 Ex. D. 66, 70.), where it was said that the occupant was " merely a servant of the constabulary put " into the house for their purposes, with liberty and permission " to live in that house just as long as they think fit, and no " longer," applies precisely to the occupation of the Commissioner here. In Reed v. Cattermole ([ 1937] 1 K. B. 613.) Romer L.J. applies the test as shortly as it can be done. The distinction is between a holding by a servant as a servant and a holding by a servant as a tenant. The facts in every case differ slightly, but it is clear that occupation not only by a servant but as a servant requires that the occupation must be coloured by the nature of his duties. [On the origin of s. 127 of the Act of 1923 reference was made to Calcutta Corporation v. Moti Chand Chowdhury (( 1938) L. R. 66 I. A. 42.) and Nundo Lal Bose v. Calcutta Corporation (( 1885) I. L. R. 11 C. 275.)]. Firstly, the conditions of user by successive Commissioners were imposed unilaterally by the Secretary of State under powers given by the Government of India Act to make rules as to conditions of service. That differentiates it from falling within landlord and tenant rules. Secondly, the terms laid down are liable to be altered, and have been. Thirdly, the consequences of the first two propositions are that a civil servant in this case has no right against his lessor or against the Secretary of State—no rights in the legal sense of anything enforceable in a court of law. [Reference was made to the Bengal Financial Rules and the Subsidiary Rules under the Treasury Orders, 1930.] An occupant being a public servant is .nowhere treated by the rules as the lessee or sub-lessee, or anything else. Rule 282, which deals with sub-letting, is simply a rule of convenience made for the purpose of securingto the government a return for a particular building. Rule 282, which deals with sub-letting, is simply a rule of convenience made for the purpose of securingto the government a return for a particular building. Secondly, in view of sub-r. iv. of s. 282, which provides that " the rent to be charged by the officer to his tenant should " not, except with the sanction of the local government in " special circumstances, exceed the rent paid by the officer " to government," it is not really a sub-letting at all. It is outside the scope and intent of the financial rules to create or define-the legal relations between the government and its servants in respect of government houses. The proper repository is the Fundamental Rules Fundamental cum Supplementary Rules, 1939, rr. 45, 45 (a). Thus a third party, the Secretary of State, regulates these matters by executive rules—that is the point—and in two places in the rules he has stressed that the allotment of residences should be appropriate to the state of the officer, his duties, and so on. From the very nature of their work these officials are often transferred at a moments notice Venkata Rao v. Secretary of State for India (( 1936) L. R. 64 I. A. 55, 63.). This case comes within the relevant test laid down in the authorities—occupation for the better performance of his duties Fox v. Dalby (( 1874) L. R. 10 C. P. 285.) ; Smith v. Seghill Overseers (L. R. 10 Q. B. 422.) ; and Reed v. Cattermole ([ 1937] 1 K.B. 613.). In regard to anything that can be rightly included in conditions of service a person in the position of a Commissioner has no rights in the sense of matters capable of being submitted to an independent tribunal such as a court. That goes to the root of the argument. In regard to anything that can be rightly included in conditions of service a person in the position of a Commissioner has no rights in the sense of matters capable of being submitted to an independent tribunal such as a court. That goes to the root of the argument. To sum-up, it is submitted (a) that the Commissioner is employed by the Crown to carry on certain functions of the administration, and the house is provided for that purpose, (b) The house has been paid for out of public funds, and has been selected as one proper to his status, conveniently situated for his work, with the intention of its being permanently the official residence of the holder of the appointment with a view to its becoming well-known to the public as such, (c) The provision of the house does not form part of his remuneration, on the contrary, he pays something for it, though a good deal less than a fair rent would be. (d) The terms of his occupation are not the product of any agreement between himself and the owner, that is, the local government, or, indeed, between him and anyone, but are determined from time to time by rules made executively by or under the authority of the minister responsible to Parliament for the good administration of the service. Applying to this set of circumstances any of the forms and privileges laid down, this is not a border line case, but a clear one, and the house was not" ordinarily let" within the meaning of sub-s. (a) of s. 127 of the Act of 1923. Tucker K.C. and Handoo for the respondent. The question arises not under an Act relating to landlord and tenant, but under one relating to rating, and the phrase for consideration is " ordinarily let." In two tax cases in England the words " ordinarily resident " have been construed Levene v. Inland Revenue Commissioners ([ 1927] 2 K. B. 38 ; [ 1928] A. C. 217.) and Inland Revenue Commissioners v. Lysaght ([ 1928] A. C. 234.). " Ordinarily let " in s. 127 of the Act means let in the ordinary common sense meaning of the word— tenant at will, any kind of tenancy—if the premises are let to the occupier, because the Act presupposes either (a) an owner in occupation, or (b) an owner not in occupation, but somebody else. Those are the only alternatives the Act contemplates, and that throws light on the true meaning and scope of the phrase " ordinarily let." Those words presuppose that there is somebody in possession on his own behalf. If he is merely in possession as agent his principal is in possession. In Reed v. Cattermole ([ 1937] 1 K. B. 613.) the occupier was in possession in a representative capacity. All that is necessary to satisfy the section is a parting with beneficial possession by the owner and consideration in money for the right to live there. There is no lease, it is a pure tenancy at the will of the Crown. It is a term of his employment that he pays the rent. He also pays the occupiers share of the taxes. That rent was payable, in this case only about one third of the true rent, is not itself conclusive. Assuming against the respondent that the occupation was obligatory, it was said in Smith v. Seghill Overseers (L. R. 10 Q. B. 422, 428.) that " the residence must be ancillary and " necessary to the performance of the servants duties; and " unless he is required for that purpose to reside in the house, " and not merely as an arbitrary regulation on the part of the " master, I do not think he is prevented from occupying as " a tenant." On the meaning of the words " required to occupy " premises for the purpose of his employment," it was held in The Queen v. Spurrell (L. R. 1 Q. B. 72.) that the sole test was whether the occupation was necessary for the service, and if so, it was the occupation of the master. [Reference was also made to Marsh v. Estcourt (( 1889) 24 Q. B. D. 147.).] There is no evidence to show that it is essential for the Commissioner here to live in this house to perform his duties ; there is no rule to say that it is obligatory to live there. [Reference was also made to Marsh v. Estcourt (( 1889) 24 Q. B. D. 147.).] There is no evidence to show that it is essential for the Commissioner here to live in this house to perform his duties ; there is no rule to say that it is obligatory to live there. Even assuming that the Board think that the occupation is connected with his service, and that he is there ready to deal with any official matters, then it is submitted that the fact that he could sublet is inconsistent with this being the occupation of the government through the Commissioner, and shows that it was his own beneficial occupation Charterhouse School v. Gayler ([ 1896] 1 Q. B. 437.). Reed v. Cattermole ([ 1937] 1 K. B. 613.) illustrates that it was not the minister there who was occupying the house, but the church through their minister. The Commissioner here is occupying the house for his own purposes, as a residence, and as a privilege on beneficial terms Whatever the Crowns rights, while he is there the premises are de facto let. The true position is that the rules are part of the terms under which this officer is serving. The foregoing concludes th6 argument on the basis that the parties were private persons. Where the position is that the Commissioner is the servant of the Province of Bengal it is conceded that the contract of service between the Com missioner and the Crown cannot as regards any provisions of it be enforced in a court of law by the Commissioners Lucas v. Lucas (( 1943) 59 T. L. R. 281.) ; Shenton v. Smith ([ 1895] A. C. 229.). The contract of service is no contract at all in the strict legal sense. This arrangement under which he gets a house is something which is outside his contract of service ; and it is not one of the terms of that service that he shall either have it or live in it. Apart altogether from the contract of service, there are the outstanding facts that a house has been obtained for the Commissioner, he is living in it, and has his furniture and servants there, and on those facts the relationship of landlord and tenant is set up between the Crown and the Commissioner. Apart altogether from the contract of service, there are the outstanding facts that a house has been obtained for the Commissioner, he is living in it, and has his furniture and servants there, and on those facts the relationship of landlord and tenant is set up between the Crown and the Commissioner. On those facts only two things are possible, (a) he is there as tenant of the Crown, or (b) as a mere licensee. The question therefore is what is the difference between a mere licensee and a tenant Halsburys Laws of England, 2nd ed., vol. 20, p. 8 ; Foas Relationship of Landlord and Tenant, 6th ed., p. 7 ; in the case of a tenant possession must be exclusive. Here there is exclusive possession because that is implied in the very nature of the provisions under which the residence is allotted to him— as a private house which he can sublet—all of which are inconsistent with a license. It is also said at p. 445 of Foa that " the mere fact of occupation of premises by permission " of their owner creates a tenancy at will." See also Halsburys Laws of England, 2nd ed., vol. 20, pp. 117-8 and 120-1 ; and Doe d. Hull v. Wood (( 1845) 14 M. & W. 682, 687.), where it was said that " Richardson v. Langridge ((1811) 4 Taunt. 128.) correctly lays down the law .... " that a simple permission to occupy creates a tenancy at will." Here the Crown did put the Commissioner into exclusive possession, did charge a rent, and did permit him to sublet, and on those facts alone there was a tenancy at will [Reference was also made to Secretary of State for India v Yadavgir (( 1935) I. L. R. 60 B. 42.).] Sir Herbert Cunliffe K.C., in reply. There cannot be a letting without a contract express or implied. A tenancy at will involves a contract. There are several incidents of this so-called letting which are inconsistent with a tenancy at will, for in the case of a tenancy at will there are mutual rights and obligations which may be enforced Foas Relationship of Landlord and Tenant, 6th ed., p. 651 ; Woodfalls Law of Landlord and Tenant, 24th ed., pp. 283-7. Here the owner cannot be sued in respect of anything he may do to terminate the tenancy. 283-7. Here the owner cannot be sued in respect of anything he may do to terminate the tenancy. The rules are merely directions of the Crown for the general guidance, and there cannot be spelled out from them any contract; these are matters in respect of which no action will lie against the Crown Gibson v. East India Company (( 1839) 5 Bing. N. C. 262.) ; P. & 0. S. N. Co. v. Secretary of State for India (( 1861) 5 B. H. C. R., apdx. 1.) ; Secretary of State for India v. Moment (( 1912) L. R. 40 I. A. 48.) ; Nobin Chunder Dey v. Secretary of State for India (( 1875) I. L. R. 1 C. 11.) ; Grant v. Secretary of State for India (( 1877) 2 C. P. D. 445.); Shenton v. Smith ([ 1895] A. C. 229.) ; Gould v. Stuart ([ 1896] A. C. 575.) ; Dunn v. The Queen ([ 1896] 1 Q. B. 116.) ; Jehangir M. Cursetji v. Secretary of State for India (( 1902) I. L. R. 27 B. 189.) ; Secretary of State for India v. Shreegobinda Chaudhuri (( 1932) I. L. R. 59 C. 1289.) ; Venkata Rao v. Secretary of State for India ([ 1937] A. C. 248 ; L. R. 64 I. A. 55.). The evidence and the rules show that this house is occupied, and the arrangements made, as part of his official position, and there can be no implied contract. Dec. 21. The judgment of their Lordships was delivered by LORD PORTER. This appeal is against the judgment and decree of the High Court of Judicature at Fort William in Bengal, dated August 13, 1940, dismissing an appeal from the judgment and decree of the Chief Judge of the Court of Small Causes at Calcutta. The question at issue is whether, for the purpose of the assessment to the consolidated rate of a house in Calcutta owned by the respondent and occupied by the Commissioner of the Presidency Division in Bengal, the annual value falls to be calculated under sub-s. (a) or under sub-s. (b) of s. 12 of the Calcutta Municipal Act (Beng. Act III of 1923). Act III of 1923). [His Lordship read the section and continued ] The house in question is No. 4, Theatre Road, Calcutta, which since its purchase by the respondent in 1906 has, with a few trivial exceptions, been occupied by the Commissioner as his official residence. The purpose for which it was erected is unknown, and the answer to the question which their Lordships have to determine therefore depends on whether it can be said to be ordinarily let or not. No question as to the amount chargeable arises. Whichever way their Lordships decide, the figures are not disputed. On one matter the disputants are not in conflict, it is agreed that ordinarily let means usually let, and it is not contended that the house must be shown to be let on ordinary terms. The house was purchased on behalf of the respondent at the end of 1906 or early 1907. Before buying it they wrote to the Government of India proposing to acquire a house which could be occupied by the Commissioner. From their letter it appears that the lack of suitable accommodation at reasonable cost, together with the possibility of being compelled to vacate at a moments notice any premises taken, and of failing to relet them, had resulted in the Commissioner either residing at his club or in an unsuitable position. The Government of Bengal were therefore anxious that a house should be available. In their view a good house in Calcutta itself, in an accessible and convenient situation which should be known to the public at large, was of the first importance. At that time they contemplated making residence compulsory. For about a year and a-half after it was acquired the house was occupied by the tenant then in possession. Thereafter it has been, with the exception of two immaterial periods, occupied by the Commissioner for the time being. It is of the old residential type, standing in a large garden. Its value to rent is about Rs. For about a year and a-half after it was acquired the house was occupied by the tenant then in possession. Thereafter it has been, with the exception of two immaterial periods, occupied by the Commissioner for the time being. It is of the old residential type, standing in a large garden. Its value to rent is about Rs. 900, and it bears a nameplate with the inscription " Commissioner, Presidency Division." Up to 1937 the assessment of the house had been treated as falling under s. 127 (b) of the Act, but on May 13 in that year the respondent filed a suit in the Court of Small Causes, Calcutta, the appropriate court for this purpose, claiming that the house was erected for letting, was let until 1908, and continued to be let thereafter, that a fair rent would be Rs. 700 per month, and that the correct annual value would be Rs. 7560. After hearing the evidence the Chief Judge held (1.) that the house had been let to each successive Commissioner since its acquisition, he being responsible for a sum as rent and the occupiers share of the taxes, both of which he was liable to pay so long as he held the post of Commissioner ; (2.) that during that period he had the right to occupy the property in consideration of his paying, or submitting to, a deduction from his salary of ten per cent. ; (3.) that the relationship of landlord and tenant existed between the Government and the Commissioner, and that the correct basis of assessment was under s. 127 (a), the correct figure for the annual value being Rs. 9720. On appeal to the High Court, the case was remitted to the Chief Judge to determine —(a) Whether the Commissioner was required to occupy the house for the performance of his services ; (b) did he occupy it in order to their performance ; or (c) was it conducive to that purpose more than any other house which he might have himself rented. In pursuance of these directions the learned Chief Judge took further evidence, and, after doing so, held that the fact that it was made obligatory for the Commissioner to reside in the house, together with the facts that every Commissioner had continually done so since its acquirement, that it was known as the Commissioners house, that it was situated in a convenient locality, and was in fact used by the Commissioner for the performance of some of his official duties, all led to the irresistible conclusion that the Commissioner (a) was required to occupy the house for the performance of his duties ; (b) did occupy it in order to their performance ; and (c) that it was conducive to that purpose more than any other house which he might himself have rented. The Chief Judge added that as a result of the additional evidence it appeared that the Commissioner occupied the house as a servant and not as a tenant. When the record was returned to the High Court the learned judges of that body differed from the Chief Judge. In their view the Commissioner held the house on the terms of the general rules applicable to all government servants, and those rules did not compel him to occupy the house, but did make him responsible for rent, leaving him free to sublet by permission of the government. They further held that having regard to these findings and the fact that the Commissioner had given evidence that he could perform his duties equally well though residing in another house, a finding in the affirmative under heads (b) and (c) was not justified. Accordingly, they held that the Commissioners occupation was that of a tenant and the house was assessable under s. 127 (a). The exact regulations which deal with the terms on which houses occupied by government officials are provided are not easy to ascertain. In answer to a letter from the Deputy Executive Officer of the Calcutta Corporation, Mr. G. S. Dutt, the Secretary of the Government of Bengal Department of Public Health and Local Self Government, after stating in an earlier letter that the occupation of the house by the Commissioner was compulsory, corrected himself on December 15, 1939, and said that the occupation was subject to certain rules, of which he enclosed a copy. These rules are printed in the record furnished to their. These rules are printed in the record furnished to their. Lordships, and are the only material so provided. Strictly speaking, they appear to contain internal regulations for the guidance of the financial department of the Government of Bengal, and they are not so framed as to, nor in any case could they of themselves, contain a contract between the government and one of its servants see Shenton v. Smith ([ 1895] A. C. 229.). Nor, indeed, do they authorize the government or anyone on its behalf to make such a contract. The power to make rules for regulating the conditions of service pay and allowances of the civil service in India is to be found in the Government of India Act, 1915, s. 96B. Under that authority certain fundamental rules were made, that applicable to the present case being No. 45, which provides that " A local government may make rules laying down the " principles governing the allotment to officers serving under " its administrative control for use by them as residences of " such buildings owned or leased by it .... as the local " government may make available for the purpose. Such " rules .... may prescribe the circumstances in which such " an officer shall be considered to be in occupation of " a residence." Rule 45 (a), after dealing with the method of calculating the capital cost to the government of buildings which it acquires, and of ascertaining the standard rent of such as are leased, goes on to provide in sub-r. iv. (b) that " unless in any case it be otherwise expressly provided in these " rules," the officer " shall pay (i.) rent for the residence, such " rent being the standard rent of ten per cent, of his monthly "emoluments whichever be less, and (ii.) municipal and other " taxes payable by government in respect of the residence " not being in the nature of house or property tax.” The rule further sets out various modifications of the provisions as to rent in particular cases, and in sub-r. vi. deals with the payment of additional rent in return for Special services undertaken by the government and requires the tenant to pay certain additional charges. deals with the payment of additional rent in return for Special services undertaken by the government and requires the tenant to pay certain additional charges. Under the provisions of fundamental r. 45, the government of Bengal did make certain subsidiary regulations dealing with the provision of residences to their servants, but as these regulations do not substantially differ from the financial rules set out in the record their Lordships treat the latter, as the parties were content to treat them, as being applicable to the present case. Those rules provide —" 279. Residence for " public servants may be .... purchased by government " . . . . (iv.) when it is shown to the satisfaction of the local " government that suitable house accommodation for officers "whose appointments are permanent in respect of locality "is not available in the vicinity or is available only under " circumstances which will be likely to place such officers in " an undesirable position in relation to house proprietors. " Rent Rules for Government Buildings used as Residences." " 281. The incumbent, whether permanent or temporary, of "an appointment for whose benefit a house has been constructed or purchased or leased by government will be held " responsible for the prescribed rent during his tenure of the " appointment." Certain instances are given in which the local government may make exception to this rule, e.g., when the house is not occupied because the holder of another post is doing the duty, or when the holder has been transferred from a post in the same station and it is not considered necessary that he should change his residence, or when an Indian officer is appointed and the residence has been constructed to suit a European, or vice versa, or where a temporary holder for not more than two months is prevented from occupying the house by circumstances which the local government consider sufficient to warrant an exception. Rule 282 permits the subletting of such residences provided — " (i.) The sublet should be to a tenant approved by the " superintending engineer; (ii.) the officer will still remain " personally responsible for the rent and for any damage " caused to the building beyond fair wear and tear; " (iii.) Government will not recognise the sub-tenancy; " (iv.) The rent to be charged by the officer to his tenant should " not, except with the sanction of the local government in " special circumstances, exceed the rent paid by the officer " to government ; (v.) Sub-tenancy should continue only " for so long as the officer who makes the arrangement holds " the appointment for which the official residence is provided.” The only further evidence to which their Lordships need refer is that of the Commissioner at the material time, who stated that he was in exclusive occupation, that he could live in any other residential quarter in order to perform his duties, and could perform them equally well there, that official residences of Commissioners are generally known as Commissioners houses, and that a knowledge of their position and their accessibility is important, and that he has to pay ten per cent, of his salary whether he occupies the house or not. In the courts in India the question at issue was apparently treated as if it had arisen between subject and subject, and no question was raised as to the possibility of establishing a contract between a government and its servants or as to the authority under which such a contract was or could be made. Very scanty evidence has been furnished in the case, and none as to the making of any contract. If there be any it must be spelt out of the facts established, and mainly from the evidence of the Commissioner and the rules printed in the record. Apart from the complication arising from the fact that the house is occupied by a government servant, their Lordships find themselves in substantial agreement with the High Court in India. The general principles on which a tenancy as opposed to an occupation as servant is created are not in dispute. Apart from the complication arising from the fact that the house is occupied by a government servant, their Lordships find themselves in substantial agreement with the High Court in India. The general principles on which a tenancy as opposed to an occupation as servant is created are not in dispute. The mere fact that it is convenient to both parties that the servant should occupy a particular house, and that he is put in possession of it for that reason, does not prevent the servant from being a tenant; his possession is that of a tenant unless he is required to occupy the premises for the better performance of his duties though his residence is not necessary for that purpose or if his residence there be necessary for the performance of his duties though not specifically required see per Brett J. in Fox v. Dalby (L. R. 10 C. P. 285, 295.). The position is unaffected by the circumstance that the servant is entitled to occupy the house only so long as he retains his position as servant or the particular office in virtue of which the house is provided. The same principles apply though he may be a tenant at will see Smith v. Seghill Overseers (L. R. 10 Q. B. 422.), and Marsh v. Estcourt. (24 Q. B. D. 147.). In the present case their Lordships are of opinion that the Commissioner is neither compelled to live in the house nor is it necessary for him to do so in order to perform his duty. As to the latter point, their Lordships have the Commissioners evidence and nothing to contradict it. As to the former, it may be that when the house was purchased it was contemplated that those holding the office of Commissioner would be compelled to live there, but, if so, the intention was not carried out. He who holds the office is, indeed, required to pay rent, but provided he does so there is nothing to compel him to reside in the house. He may even sublet it with the permission of the government, though this does not involve a recognition of the sub-tenancy, and the sub-tenancy is to continue only for so long as the sub-lessor holds the appoint ment. He may even sublet it with the permission of the government, though this does not involve a recognition of the sub-tenancy, and the sub-tenancy is to continue only for so long as the sub-lessor holds the appoint ment. Having regard to the facts that it is contemplated that the Commissioner should occupy the whole house, that he is under an obligation to pay what is called rent whether he occupies it or not, and that he pays the occupiers share of taxes, their Lordships would unhesitatingly come to the conclusion that the Commissioner occupied the house as a tenant in a case where anyone other than government was the owner. The difficulty in the case lies in that fact and in the fact that the Commissioner is a government servant. It was admitted on behalf of the respondent that except in special circumstances no contract would exist, or could be implied, between a government and its servant in respect of that service, and that there was nothing in the present case which would prevent the ordinary rule from applying. But it was said that though no contract could be implied in respect of the service, yet a contract could be expressly made, or could be implied, between those parties in respect of matters other than the service. Having regard to this argument it has in the first place to be determined whether the occupation of the house formed part of, or was incidental to, the contract of service, or whether it formed a separate transaction between the Crown and the Commissioner. As to this question, their Lordships entertain no doubt that the occupation is not incidental to, nor is it dependent on, the contract of service. It is true that in the ordinary course the house would not be put at the disposal of the Commissioner unless he held that office. It is given him for that reason, but its provision forms no part of the terms of service, and it is open to him to refuse to live there if he does not desire to do so. Certain limitations on the Commissioners rights (if he have any) must be conceded, namely, (i.) Even if in the particular case there were a contract the servant would still be subject to summary dismissal at the pleasure of the Crown. De Dohse v. Reg. (( 1886) 66 L. J. (Q. B.) 422. Certain limitations on the Commissioners rights (if he have any) must be conceded, namely, (i.) Even if in the particular case there were a contract the servant would still be subject to summary dismissal at the pleasure of the Crown. De Dohse v. Reg. (( 1886) 66 L. J. (Q. B.) 422. (H. L.).). (ii.) The Commissioner might be transferred at any time to another post, and is entitled (if at all) to occupy the residence only whilst he holds the office, (iii.) The Crown could at any moment terminate his occupation of the house even though he remained in his post of Commissioner. In these circumstances, were it not for the considerations hereinafter mentioned, it would have to be determined whether he had any estate in the house or whether he was a mere licensee in occupation as a servant of the government. If he had any right it could be no more than a tenancy at will, since the Crown could terminate his occupation at any time and the tenancy (if any) must be implied since no express contract exists. That such an implication is possible appears from Doe d. Hull v. Wood (14 M. & W. 682, 687.), where Parke B. said " Richardson v. " Langridge (4 Taunt. 128.) correctly lays down the law on this subject, " viz., that a simple permission to occupy creates a tenancy " at will.” It was suggested that in the present case the implication suggested would be impossible, inasmuch as a tenancy at will must be terminable at the will of either party. The Crown, it was contended, could terminate the occupation at any time, but the Commissioner could not. Their Lordships cannot accede to this argument. In their view the Commissioner could cease to occupy the house at any moment and thereupon would terminate any tenancy, though he would still remain liable for the payment of the yearly sum designated as rent. If, then, the existence of a tenancy at will can be implied, should such an implication be made in the case of a house situated in Calcutta, owned by the government of the Province of Bengal and occupied as the Commissioners house is occupied in the present instance. In their Lordships view it is not necessary finally to determine this question. In their Lordships view it is not necessary finally to determine this question. The rules, it is true, do not make a contract between the Crown and the Commissioner, but they do indicate the position if a house is in fact placed at his disposal. The Crown is under no obligation to provide a house nor the servant to live in it, but if a house is provided the Commissioner is in exclusive possession, and is responsible for the rent whether he lives in it or not; he may sublet, and he pays the occupiers share of the rates. Whatever the effect of such a circumstance in other cases (as to which they express no opinion) their Lordships are of opinion that where a house is put at the disposal of a government servant, occupied by him under the terms of the regulations applicable to the present case, and retained and enjoyed as this house has been, the building is ordinarily let within the meaning of the Act and is therefore rightly rated under s. 127 (a) of the Calcutta Municipal Act (Beng. Act III of 1923). They will humbly advise His Majesty to dismiss the appeal. The appellants must pay the costs of the proceedings before the Board.