JUDGMENT 1. Petitioner is a registered public trust and petitioner no.2 is its Secretary. Respondent no.2 Abdul Wahab was a tenant in occupation of block no. 8 in building bearing Municipal House No.136/0+8, situated at Nagarkhana road, Mahal, Nagpur. Respondent no. 2 filed an application under Clause 13 (7) of the C. P. and Berar Letting of Premises and Rent Control Order, 1949 (For short “Rent Control Order”) for restoration of the said shop to him. According to respondent no.2, he was occupying the said shop at monthly rent of Rs. 350/-per month. The petitioners/landlords requested him to vacate shop no.8 to allow them to store construction materials as first floor of the building was going to be constructed soon. Assurance was given to restore the possession of the said shop to him after completion of construction. On the basis of assurance, respondent no.2 claims to have vacated the said shop in favour of the landlords. The petitioners demolished certain portion of the building and made reconstruction but without making any changes in block nos 7 and 8. Block no. 7 was allotted to one Mr. Mirza Hakim Baig and block no. 8 was allotted to one Firoz Tailors. In fact, as per assurance given to respondent no.2, possession of said block no. 8 should have been restored to him on completion of construction work. With these contentions, he claimed restoration of possession. 2. The petitioners/landlords contested said application by filing written statement and denied the claim of respondent no.2. However, when the matter was fixed for evidence, respondent no. 2 alone filed affidavit in support of his claim. On behalf of the landlords, no evidence was led nor respondent no. 2 was cross-examined. Therefore, the Rent Controller passed order dated 20.06.1997 directing the landlords to give possession of block no. 8 to respondent no.2-tenant as per earlier terms and conditions of the tenants. That order was challenged by the present petitioners in appeal before the Additional Collector. However, the learned Additional Collector dismissed the appeal by impugned order dated 30.09.2000. Hence, this petition is filed by the landlords. 3. Heard learned counsel for the parties. Perused the record. 4. It was contended on behalf of the present petitioners that father of respondent no. 2 had agreed to surrender the tenancy right and that was recorded in minutes of the meeting of the petitioner-Trust. Hence, this petition is filed by the landlords. 3. Heard learned counsel for the parties. Perused the record. 4. It was contended on behalf of the present petitioners that father of respondent no. 2 had agreed to surrender the tenancy right and that was recorded in minutes of the meeting of the petitioner-Trust. It is contended that the said meeting was also attended by father of respondent no.2. However, this contention has not been proved. No evidence was led on behalf of the petitioners to prove that father of respondent no. 2 had entered into any such agreement. According to respondent no. 2, he had already attained the majority and he himself was tenant of the property. His father had no right to enter into any such contract or to surrender his tenancy rights. I find substance in the contention of respondent no.2. In the absence of any evidence led by the petitioners, it must be held that they have failed to prove that father of respondent no. 2 had surrendered the tenancy right of respondent no. 2. 5. Respondent no. 2 contended that there was an assurance given to him that after completion of construction, he would be reinducted in block no. 8. In support of this, respondent no. 2 relied upon a letter dated 27.09.1993 addressed by the then Secretary of petitioner-Trust to him. This letter reveals that present respondent no.2 had, by his letter dated 22.09.1990, assured to vacate room no. 8 by October-1990. For this, the Secretary expressed his thanks. In the second part of the letter he assured that in case any room is vacated and if that room is required to be rented out, first preference would be given to respondent no.2. However, later on the petitioners did not fulfill that assurance and it appears that said block no. 8 was given to some other tenant. 6. Learned counsel for petitioners vehemently contended that the application filed by respondent no. 2 under clause 13(7) of the Rent Control Order itself was not tenable under the law. He contends that only if respondent no. 2 would have vacated the premises in pursuance to the order passed by the Rent Controller under clause 13(3) (vii) of the Rent Control Order, he could move the Rent Controller for restoration of possession under Clause 13(7). But as respondent no. He contends that only if respondent no. 2 would have vacated the premises in pursuance to the order passed by the Rent Controller under clause 13(3) (vii) of the Rent Control Order, he could move the Rent Controller for restoration of possession under Clause 13(7). But as respondent no. 2 had not vacated the premises in pursuance to any such permission granted by the Rent Controller, application under clause 13(7) of the Rent Control Order itself is not tenable nor Rent Controller had any jurisdiction to pass any order. Learned counsel vehemently contended and in view of the given circumstances, respondent no. 2 would have remedy of filing a suit against the petitioners. On the other hand, learned counsel for respondent no.2 argued that this plea was neither raised by the petitioners before the Rent Controller nor in the appeal nor it was raised in the present petition and now, for the first time, during the arguments before this Court this point is raised. In view of this, according to learned counsel for respondent no.2, the said argument is liable to be rejected. 7. However, on perusal of the provisions of law and the authority of this Court in Hargovindji Chunnilal Bhayani..vs.. Mahatma Gandhi Sarwajanik Wachanalaya, Hinganghat; 1976 Mh.L.J. 237, I am afraid that the question of law, which is raised now, cannot be simply thrown away particularly when the writ petition has been filed under Article 227 of the Constitution of India. It is neither an appeal nor a revision. If the petitioners can point out that the application moved by respondent no. 2 under clause 13(7) of the Rent Control Order itself was not tenable under law, this Court will have to set aside the order passed by the Rent Controller, which was without any authority. 8. To appreciate the arguments, it will be useful to refer to the relevant provisions of law. Clause 13(1) of the Rent Control Order provides that no landlord shall, except with the written permission of the Controller, give notice to a tenant determining the tenancy. Clause 13 (3) (vii) provides that if after hearing the parties, the Rent Controller is satisfied that the landlord desires to make essential repairs or alterations, which cannot be made without the tenant vacating the premises, he shall grant landlord the permission to give notice to determine the lease as required by sub-Clause (1). Clause 13 (3) (vii) provides that if after hearing the parties, the Rent Controller is satisfied that the landlord desires to make essential repairs or alterations, which cannot be made without the tenant vacating the premises, he shall grant landlord the permission to give notice to determine the lease as required by sub-Clause (1). When such permission is granted, the tenant gets the right of obtaining possession of the premises back under Clause 13(7) of the Rent Control Order, which reads as follows:- “13. Permission of controller for determining the lease. .(7) Where the landlord has obtained possession of a premises or portion thereof in pursuance of the permission granted by the Controller under sub-clause .(1) on the ground specified in item (vii) of sub-clause (3), he shall, after the repairs or alterations have been made, restore permission of the premises or portion thereof on the same conditions as before to the tenant who vacated it and shall not let the same to any other person or occupy it himself unless such tenant has waived in writing his claim to have such possession restored to him.” On perusal of this provision, it is clear that where the landlord has obtained possession of the premises in pursuance of the permission granted by the Controller under Clause 13 (1) on the ground specified in Clause 13 (3) (vii), the landlord shall, after repairs or alterations above have been completed, restore possession of the premises to the tenant. These provisions are made to see that the landlord is not put to any hardship if he needs the premises for the purpose of repairs or alterations and at the same time protection is also provided to the tenant that if he is required to vacate the premises in favour of the landlord for the purpose of repairs and alterations, he would get back possession of the premises, after the work of repairs and alterations is completed. If Clause 13 (3) (vii) and clause 13(7) of the Rent Control Order are read together, it appears that if the provisions of Clause (7) are not complied with, an application can be moved before the Rent Controller for enforcement of that right and restoration of possession. If Clause 13 (3) (vii) and clause 13(7) of the Rent Control Order are read together, it appears that if the provisions of Clause (7) are not complied with, an application can be moved before the Rent Controller for enforcement of that right and restoration of possession. However, if by some private agreement and particularly without any permission of the Rent Controller, the tenant vacates the premises in favour of the landlord, Clause 13 is completely silent and does not provide any protection and restoration in favour of the tenant. 9. The facts in Hargovindji Chunnilal Bhayani (supra) are similar to the present case. On being approached by the landlord, the tenant agreed to vacate the premises occupied by him for business to enable the landlord to construct new building in which, under an agreement between the parties, the landlord agreed to let out a particular block to the tenant after construction. On refusal of the landlord to let out the block, the tenant applied the Rent Controller under Clause 13 (7) and the Rent Control Order. After referring to the provisions, learned Single Judge of this Court in para 7 of the judgment, observed as follows:- “7. Now all these submissions cannot be accepted. It is plain that the terms of clause 13(3) (vii) of the Rent Control Order are not fulfilled so as to carve out a right in favour of the petitioner. It is not open for the authorities to substitute by interpretation different conditions than the one mentioned in clause 13 (7). The right given by sub-clause (7) in a contingent right depending upon the proceedings taken by the landlord under clause 13(3) (vii). It is not possible to extend that right to the private agreements between the parties which cannot be enforced under the scheme of the Rent Control Order. A look at the provisions of clause 13(1) read with clause 13(3) would indicate that it operates upon the right of the landlord to determine the tenancy by giving notice under the provisions of Transfer of Property Act. Such a landlord who seeks to exercise the right under that section has to satisfy the Rent Controller about the existence of the grounds mentioned in sub-clause (3) of Clause 13. In the entire body of the Order or even in the entire structure of clause 13 other modes of determining tenancies are not prohibited. Such a landlord who seeks to exercise the right under that section has to satisfy the Rent Controller about the existence of the grounds mentioned in sub-clause (3) of Clause 13. In the entire body of the Order or even in the entire structure of clause 13 other modes of determining tenancies are not prohibited. The tenant's right to terminate his own lease by surrender or by notice is not controller nor he is required to take any proceedings nor satisfy the authorities as to why he is surrendering the tenancy. It is only the landlord's right that is regulated. The nature of proceedings, therefore, under clause 13 of which subclause (7) is the part cannot be lost sight of and an interpretation which runs counter to the scheme of clause 13 itself cannot be accepted on the grounds of equity and justice. Sub-clause (7) therefore was not available to the petitioner nor it was incumbent upon the authorities to give him relief under that clause for he was not a tenant against whom any proceedings were taken under clause 13(3). He had entered into an agreement which was permissible and not prohibited and thereby created certain rights followed by certain obligations in his own favour or against him. The nature of his right thus is founded on an agreement as contradistinguished, upon an order as is required by the terms of sub-clause(7).” In that case, it was found that as the tenant had vacated the premises under a private agreement, his remedy was not under clause 13(7) of the Rent Control Order. 10. This authority supports the view taken by me. In the present case, the facts are identical and hence the legal position also cannot be different. In view of above, it must be held that application under clause 13(7) itself was not tenable and order passed by the Rent Controller is liable to be set aside. 11. For the aforesaid reasons, writ petition is allowed. The impugned orders passed by Rent Controller on 20.06.1997 as well as Additional Collector on 30.09.2000 in appeal stand set aside. Rule is made absolute. No orders as to costs.