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. 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 him and the landlord,.... 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 him and the landlord,.... The UP (Temporary) Control of Rent and Eviction Act simply takes away an owner's right to enter into a contract of tenancy with any person of his choice by requiring him to enter, or not to enter, into a contract of tenancy with a particular person. Other provisions of the Transfer of Property Act and Contract Act remain in force."--( 1963 AWR 125 at page 127 Col. 1) (Emphasis ours). See also the similar remarks of the Chief Justice in Lachmi Narain v. Rent Control and Eviction Officer 1962 AWR 161. 7. So the owner and the allottee have to conclude a contract of tenancy. But Sri Gupta says that it is a solecism to call it a contract. A true contract postulates free will. But after the order u/s 7(2) the owner has no free will. He is constrained to deliver possession to the allottee and to treat him as his tenant. This submission is, we think, made under some misapprehension. To create a lease there should be (1) a lessor and a lessee, (2) the thing to be let, (3) rent and (4) term of the lease. The choice of the owner is no doubt restricted as to the lessee. It is confined to the allottee. But as regards rent, the Act leaves the owner and the allottee free at the outset, to bargain. Section 5(1) provides that the rent shall be "such as may be agreed upon between the landlord and the tenant." If they fail to agree, then the owner can get only the annual reasonable rent as defined in the Act. As regards the term of the leased the owner's choice is absolutely unfettered. He may give the accommodation for any time as he likes. The tenancy may be from month to month or for a fixed term. Under Rules 4, 7 and 8 he has considerable freedom for choosing even his tenant. In short, he has substantial freedom to negotiate a bargain. In this work aday world there can be no absolute freedom of will. Even in its heyday, contract was not perfectly free. The tenancy may be from month to month or for a fixed term. Under Rules 4, 7 and 8 he has considerable freedom for choosing even his tenant. In short, he has substantial freedom to negotiate a bargain. In this work aday world there can be no absolute freedom of will. Even in its heyday, contract was not perfectly free. The starving worker had to sell his labour at the price dictated by the purchaser: the worker had no real freedom to bargain. In our constitutional set up the owner's right to contract may be regulated reasonably in the public interest. Indeed, the abridgement of the owner's freedom to contract enhances the allottee's freedom to contract during acute shortage of accommodation. The object of the Act is to prevent the owner from dictating unconscionable terms to the homeless allottee. The Act therefore seeks to secure due freedom of contract to both contracting parties. In New India Sugar Mills Ltd. Vs. Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207 . Sri Justice Shah, speaking for the majority, said: "A contract of sale postulates exercise of volition on the part of the contracting parties." This observation was made in a different factual context. The Government of Madras and the sugar manufacturer had no occasion to negotiate a sale and sugar was despatched in obedience to the direction of the controller. But after a direction u/s 7(2) the owner and the allottee get an opportunity of negotiating a bargain. The owner has substantial freedom of bargain. We think that in the context of the Act we are entitled to seek guidance from a passage in the dissenting judgment of Sri Justice Hidayatullah in the above said case. That passage is this: "It was argued that there must be mutuality. That one party must be free to offer and must offer and the other side must be free to accept and must accept the offer before a sale can be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sickbed? But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax on the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sickbed? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or maldistribution of goods, controls have been imposed. There are permits, price controls, rationing and shops which are licensed." (Ibid at page 1227.) 8. Sri Gupta also sought to draw support for his argument from the verbal difference in the definitions of the words 'landlord' and 'tenant'. While 'landlord' includes his heirs, the word 'tenant' does not. He sought to show "from this verbal difference that the allottee's right is not heritable. But there is very good explanation for the exclusion of the heirs from the definition of 'tenant'. The word includes several types of persons in its fold. It includes, inter alia, a tenant against whom a decree for ejectment has been passed before the commencement of the Act, a tenant to whom a quit notice has been given before or after the commencement of the Act, a tenant whose term has expired before or after the commencement of the Act and an allottee with whom the owner has not entered into or cannot be deemed to have entered into a contract of tenancy. In all these cases the tenancy is not heritable; the person in possession, inaccurately called a 'tenant' has a mere personal immunity from eviction. 9. It appears from the proviso to Section 6(2) that a 'tenant' may have a heritable interest in some cases. It provides that the decree u/s 5 will, as regards rent, operate as res judicata between the landlord and tenant and their representatives in interest. 10. It was also pointed out that the Act is a temporary Act and is designed to provide accommodation to the needy. The object will be defeated if the allottee's interest is held to be heritable. We do not perceive any such danger. If and when the heir does not really need the accommodation, he will cease to occupy it. 10. It was also pointed out that the Act is a temporary Act and is designed to provide accommodation to the needy. The object will be defeated if the allottee's interest is held to be heritable. We do not perceive any such danger. If and when the heir does not really need the accommodation, he will cease to occupy it. We are also unable to appreciate how Section 7-B of the Act is a pointer to the interest of the allottee being not heritable. It provides an additional and a speedy remedy for his ejectment if he does not pay rent. 11. To sum up, it is not correct to say that no allottee, on his death, leaves behind a heritable interest. It is also not correct to say that every allottee on his death, leaves behind a heritable interest. The question then is: When does an allottee leave behind a heritable interest on his death? Broadly speaking, our answer is: When there is a subsisting contract of tenancy between him and the landlord at the time of his death. Such contract may be express or implied. Its formation and subsistence at death are questions of fact to be decided on the facts of each case. An implied contract may be spelt out from the conduct of the landlord and the allottee and other circumstances. For instance, where the landlord accepts rent from the allottee without any protest, or where the District Magistrate allots the accommodation to his nominee Under Rule 4 or to the person suggested by him Under Rules 7 and 8, there should arise a contract of tenancy. These instances should not be supposed to be exhaustive; an implied contract of tenancy may arise in many other circumstances. If the tenancy arising out of an express or implied contract has, however been determined for one reason or the other before the death of the allottee, he will not leave behind a heritable interest. 12. As a result of the foregoing discussion the petition is allowed. The order of the Rent Control and Eviction Officer is quashed. The case will go back to him for rehearing. He should give opportunity to the parties to produce their evidence. 12. As a result of the foregoing discussion the petition is allowed. The order of the Rent Control and Eviction Officer is quashed. The case will go back to him for rehearing. He should give opportunity to the parties to produce their evidence. He should then find in the light of our observations whether a contract of tenancy subsisted between the Petitioner and Ram Das Mehrotra at the time of the death of the latter. If he finds that there did subsist a contract of tenancy at his death, then his heirs would inherit his interest. The Rent Control and Eviction Officer need do nothing further. If, on the other hand, he finds that a contract of tenancy did not subsist at the death of Ram Das, then the heirs of Ram Das will inherit nothing. The accommodation should then be treated as vacant and available for allotment. The Rent Control and Eviction Officer should then decide whether he should release the accommodation in favour of the Petitioner or allot it to the sons of Ram Das. 13. In the circumstances of this case parties shall bear their own costs.